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Rewriting Indiana’s constitution should modernize an antiquated, inefficient system of local government designed for horse-and-buggy days.
But a new constitution could also ensconce for decades or even centuries a short-sighted, permanent ban on property taxes, appealing to popular sentiment without a long-term perspective. The next constitution might replace the current requirement of free and uniform schools for all students with language about vouchers and charter schools. Framers of a new constitution would be hard-pressed to improve upon the 37-section Bill of Rights, which make up Article 1 of the 1851 constitution. A constitutional convention could get sidetracked from government structure to divisive social issues such as abortion or gay marriage, matters that arguably don’t even belong in the constitution.
“There isn’t a business today that operates the way it did 150 years ago,” said State Auditor Tim Berry, who formerly served as state treasurer and as Allen County treasurer. “Why should state government continue to operate that way?”
While Berry and many others welcome a close look at government organization – followed by meaningful changes – they also are cautious about a new constitution.
They should be. Many of the biggest concerns about state and local government can be addressed through amendments – a lengthy and arduous, but doable, process. A new constitution, on the other hand, has the potential to throw out long-savored personal protections and replace them with short-sighted limitations that focus on immediate needs.
“It does have to be written for the long term,” said William McLauchlan, associate professor of political science at Purdue University in West Lafayette and author of “The Indiana State Constitution: A Reference Guide.”
“Many of us don’t have the long-term view.”
Last month, Gov. Mitch Daniels raised the possibility of a new constitution when he appointed a blue-ribbon commission, co-headed by former Gov. Joe Kernan and Indiana Chief Justice Randall Shepard, to recommend changes in local government structure. He directed the commission to answer four specific questions, including: “Is a Constitutional Convention necessary or desirable as a means to achieve significant reforms in the structure and organization of Indiana state government?”
The panel met for the first time last week. Daniels wants a report by the end of the year.
After the first meeting, Shepard indicated that a new constitution is not necessary to achieve the governor’s goals and that it would be more practical to identify which portions of the constitution should be changed through amendments.
“I think it is probably going to be more productive for us to identify those things that can be done by the General Assembly or by the governor or some other part of the state structure without a constitutional change and then identify those that require it and say, ‘Here are the two or three or four things that ought to be done by amendment’ and recommend those,” he said.
Still, the commission is just getting started, and the idea of a new state constitution could resurface.
Here are answers to key questions regarding a new state constitution:
Q. What’s behind the talk of a constitutional convention?
The immediate impetus is the property-tax controversy. But Daniels, business leaders and other knowledgeable Hoosiers have long sought reform of local government. County government is particularly inefficient, with numerous elected department heads, all with their own mandate. County commissioners are both administrators and legislators. Township government is hopelessly obsolete, and the township-based property assessment has, in some areas of the state, broken down, exacerbating property-tax problems.
The 1851 constitution requires that voters in each county elect, among other office holders, an auditor, treasurer, recorder, surveyor and coroner – positions that are more administrative than policy-making. Many voters aren’t clear on the role each official performs. Incredibly, all but the surveyor are subject to term limits – yet the more powerful county commissioners and prosecutors are free from term limits.
Those constitutional offices have gotten in the way of proposals to consolidate and reform local government.
“When you look at really meaningful, wholesale changes in local government … more often than not, what seems like a good idea, you run into the roadblock of, ‘that’s a constitutional office, you can’t do anything with that,’ ” said Sam Talarico Jr., a Fort Wayne City Council member who’s been a leading proponent of restructuring local government. “Any sort of meaningful discussion of real, overall organization of communities has to look at” constitutional changes, he said. “Otherwise, there’s very little you can do.”
Q. Does fixing the problems require throwing out the old constitution and replacing it with an entirely new document?
Not necessarily.
The constitution mentions townships only in passing. Lawmakers and Hoosier voters could change the 1851 constitution with amendments rather than starting from scratch. The process allows even major changes. For example, Article 7, which governs the judiciary, was replaced in its entirety in 1970.
Amendments must be approved by two separately elected sessions of the legislature, and then voters must approve them in a statewide referendum. The lengthy process has advantages.
“There is logic in the time-consuming process of amending the constitution,” said State Senate President Pro Tem David Long. “It allows you time to think about it. It emphasizes the fact that we should be very cautious and very thoughtful and deliberative in approaching any changes to our constitution.”
Q. So why reinvent the state constitution?
Some state constitutions have been amended so many times that it’s better to approach the entire document as a whole rather than piecemeal fixes, said G. Alan Tarr, director of the Center for State Constitutional Studies at Rutgers University-Camden and author of “Understanding State Constitutions.”
Some elements of constitutions become unenforceable even though the language remains.
For example, Tarr said, Alabama’s constitution still bans interracial marriage. Indiana still requires that “All bills or notes issued as money shall be, at all times, redeemable in gold or silver.”
A new constitution could restructure state and local government and eliminate antiquated portions of the current document.
“If you were starting from scratch today …you would not invest so much power in local officials,” said Patrick Baude, a professor at the Indiana School of Law. “We could certainly overhaul county government, which is fairly inefficient.”
Daniels and key leaders of his administration come from business environments that emphasize hierarchal, top-down methods. If they had their way, a new constitution would likely give more power to state officials and make it easier to combine functions of government units, such as cities and counties. Yet, Baude notes, large bureaucracies with consolidated decision-making have their own problems. “Oftentimes the structure of democracy does not lend itself to those virtues.”
Q. What else could happen?
“People might see this as an opportunity to gain, perhaps, some political advantage, which is not what a constitution ought to be about,” McLauchlan said.
Sen. Long said three issues are sure to come up: Government restructuring, abortion and property taxes. “Those would be considered, no question about it,” he said.
Property-tax opponents would likely seek a constitutional ban on the tax. Certainly, changes are in order, but to forbid future legislatures to enact some sort of equitable property tax would be shortsighted.
Q. So Illinois changed its constitution. Have other states?
Indiana is on its second state constitution. Alabama has had six. Numerous other states have had multiple constitutions.
The last state to adopt a new constitution was Georgia, in 1982.
Several states adopted new constitutions in the late 1960s and early 1970s, largely spurred by the U.S. Supreme Court’s one-person, one-vote ruling, Tarr said. That ruling required some states to rewrite language that determined how legislative districts were drawn.
Indiana lawmakers appointed a Constitutional Revision Commission in 1968 that later suggested specific amendments but stopped short of recommending an entirely new document.
Q. What is the process of writing a new constitution?
“There’s no real procedure for doing it,” Purdue’s McLauchlan said. “It’s unclear how that would work.”
The General Assembly would most likely determine the procedure. Theoretically, the convention should have one Republican and one Democratic delegate from each of the state’s 92 counties – but a convention of 184 delegates is reaching an unwieldy number.
McLauchlan believes legislators should be banned from serving as delegates, “not because they are necessarily inept people but because they would be much more likely to politicize it.”
Any final document should go to Hoosiers statewide in a referendum. A case could be made for requiring a two-thirds majority vote to approve a new constitution.
Typically, Tarr said, voters decide in a referendum whether to have a constitutional convention; voters choose the delegates who write it; then voters must approve the final language.
“Fear of conventions, some would say, is fear of the people,” Tarr said. “I don’t fear conventions. … I think there are a lot of checks.”
Q. How was the current constitution adopted?
In 1850, legislators called for a constitutional convention, and voters approved the idea in a statewide referendum. Hoosier voters then elected 150 delegates – 100 from each of the Indiana House districts and 50 from the Senate districts.
Ninety-five were Democrats while the remaining 55 were Whigs, historian David Vanderstel wrote in an article about the convention that appears on the Indiana Historical Bureau Web site. “Of these representatives, 42 percent were farmers, 25 percent were lawyers, and 12 percent were physicians. Only 13 of the 150 delegates were native-born Hoosiers, while one-half were Southern-born. Seventy-nine of the men had previous experience as lawmakers.”
Delegates met from Oct. 7, 1850, to Feb. 10, 1851. In an election on Aug. 4, 1851, Hoosiers overwhelmingly approved the new constitution.
Q. What’s next?
The Daniels’ commission will study the issue – with much of the discussions, unfortunately, behind closed doors. Chief Justice Shepard – who knows the constitution’s strengths and weaknesses as well as any Hoosier – may well have the biggest say.
If the commission fails to recommend a constitutional convention when it issues its report in December, the issue is probably dead for years. If it favors a commission, it may or may not recommend a process, but the General Assembly would very likely have final power for initiating a procedure.
It should do so only with extreme caution, Long believes.
“I think you have to have a pretty well thought out and agreed upon set of topics,” he said. “Obviously, it’s wide open at that point for all sorts of modifications. I think we should be very cautious in approaching any dramatic modifications to our constitution.”
Having served as both state auditor and state treasurer, Berry believes that those offices should be combined and that other changes in government structure are due. But he is also wary to launch immediately into a convention and, like Long, believes reaching consensus on the goals is necessary beforehand. Otherwise, “we’re opening ourselves up to a free-for-all without knowing what we want to achieve.”
Q. What’s the bottom line?
Constitutional amendments are in order, particularly language dealing with local government. Yet, as Indiana University’s Baude said, “I don’t think there’s anything seriously wrong with the Indiana constitution.”
