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Indiana's Constitutional Past by Justice Brent E Dickson Justice Indiana Supreme Court

Justice Brent E. Dickson
Indiana Supreme Court

Justice Brent E. Dickson received his law degree from Indiana University. Dickson practiced law in Lafayette before being nominated by Governor Robert Orr as the 100th Justice of the Indiana Supreme Court.

Dickson has taught Indiana Constitutional Law as an adjunct professor at Indiana University School of Law since 1992. He has a strong interest in history and received his bachelor's degree in American history. He served as president of the Tippecanoe County Historical Association from 1974 to 1975 and on the Board of Governors from 1970-1975.

Remarks by Justice Brent E. Dickson, commemorating Indiana's 180th anniversary of statehood at the Indiana State Library and Historical Building auditorium December 8, 1996--sponsored by the Indiana Historical Society and the Indiana Historical Bureau.

State House, Corydon,
the first capital of the state of Indiana.
Indiana Division, Indiana State Library

The State of Indiana has a remarkable and fascinating constitutional history! The way we live, the way we prosper, the way we govern ourselves-our lives have been profoundly influenced by each of the legal documents that served as a "constitution" for our state. And as we've progressed from one to the next, we've drawn from the former ones, so that even today, almost 210 years after the first written document governing the lives of early Hoosier settlers, we still find a strong presence and influence of each of these governing documents. Before going further, let's identify each of the principal constitutional documents that we'll be discussing:

Northwest Ordinance (Ordinance of 1787)

Indiana Constitution of 1816

Indiana Constitution of 1851

Actually, the general principles of the American colonial system were provided by the federal Ordinance of April 23, 1784, originally drafted by Thomas Jefferson. It applied to all the territory not included in the original thirteen states, but it failed to provide any detail for an administrative structure, and it was never really implemented.

It was the Ordinance of 1787 that established in place a system of limited government and protection of individual liberties for the early residents of the Northwest Territory, which included what is now Indiana. Passed by the federal Congress under the Articles of Confederation and two months before the federal Constitution was adopted on September 17, 1787, the Ordinance of 1787 dealt with westward expansion. It was a compromise between those who wanted to grant immediate statehood and those who wished to keep the territories as perpetual colonies. The primary impetus for its adoption came from a group of land speculators who wished to establish colonies in the Ohio country.

There were two main parts of the Northwest Ordinance. The first part, about sixty per cent, provided details about how the territory was to be governed and how districts in the territory could become states. The final forty per cent is the most enduring because it recognized and protected certain rights and liberties for the people of the territory. In fact, the Ordinance itself proclaimed that its purpose was "for extending the fundamental principles of Civil and religious liberty, which form the basis whereon these Republics, their laws and constitutions are erected."

Here are some of those rights and liberties guaranteed by the Northwest Ordinance--see if they might have a familiar ring:

Article 1. "No person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in the said territory."

Article 2. assured the inhabitants of the territory that ". . . the benefits of the writ of habeas corpus," trial by jury, proportionate representation in the legislature, due course of law, right to bail (except capital offenses), all fines moderate, no cruel and unusual punishment, no taking of property or services without compensation and due process, and forbidding laws to interfere with existing private contracts.

Article 3. "Religion, Morality and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged." Also, requires "utmost good faith" toward the Indians, prohibiting the taking of Indian property, and encouraging laws "for preventing wrongs being done to them, and for preserving peace and friendship with them."

Article 6. "There shall be neither Slavery nor involuntary Servitude in the said territory."

What is truly amazing is that here in pioneer Indiana, in 1787, the settler's individual liberties were expressly recognized and protected in an official written document of law--four years before the rights and liberties of citizens of the United States living in the original thirteen states were protected by the federal Bill of Rights, which wasn't enacted until 1791!

The structural part of the Northwest Ordinance called for three steps to statehood. First, the area was governed by a territorial government, which was not elected but was instead governed by a territorial governor and other officials all appointed by the national government; the governor then appointed some of the other officials, including those who sat on the trial courts. Second, upon reaching a population threshold of five thousand free male residents of age, they could nominate delegates to a territorial legislature, but it was still the governor who was authorized to name the legislators from those nominated, and the governor held an absolute veto power over their decisions. Third, upon reaching a population of over 60,000 adult males in any of the three districts, they could apply for statehood and form their own constitution and government.

The current boundaries of the state were encompassed in the Northwest Territory which was governed by the first governor, Arthur St. Clair. Some people soon grew to resent St. Clair, as they viewed his rule as despotic and tyrannical and even compared him to King George III. When the Northwest Territory proceeded to the second stage in 1798, St. Clair vetoed several pieces of legislation passed by the interim territorial legislature. The Indiana territory finally rid itself of St. Clair when, in 1800, Congress divided the territory into two parts and appointed William Henry Harrison, at the age of twenty-seven, as the governor of the new Indiana Territory.

When the territory divided, the new governor, Harrison, did not fare much better. Although he might have been viewed as more moderate, the people's yearning for freedom still would not be mollified with anything less than complete independence and statehood. Harrison faced opposition from the Indians in the territory, but still another kind of opposition from the white inhabitants of the territory. Although the new territory passed on to the second stage in 1805 and gained its few advantages, the people were still opposed to the fact that the legislature met at the governor's whim, that their representative in Congress was appointed by the legislature instead of popularly elected, and that the representative had no vote in Washington. Despite Congress granting the people the right to elect their representative, the people still generally felt that the current system had too many trappings of an aristocracy.

There were other factors adding to the populace's discontent. In addition to the people's general dislike of the territorial government process, the territory had rapidly increased in population, the people believed that many of the officials were corrupt, there was a belief that the territory's interests were neglected because of the low political weight of the territory, and the people disliked the alleged ambitions of some of the current officials.

The movement to statehood did not come unopposed. There was a faction of people who did not feel that the territory could support the necessary government financially, as federal money would be withdrawn upon statehood and they felt that taxes were already too high. In fact, the new territorial governor, Thomas Posey, appointed in 1813 to replace Harrison who had left in 1812 to fight Indians and the British, wrote a letter to Secretary of State James Monroe saying that two thirds of the people in Indiana were too poor to support the government, and that there were not enough educated or talented men to run the government. He concluded by saying, "We have numbers sufficient, & that is all we can boast of."

In 1815, the representatives of the then Indiana Territory, met in Corydon and enacted a formal petition to be admitted to statehood. Then, on April 19, 1816, the Congress of the United States passed the Enabling Act. Among the provisions of the Enabling Act was one which authorized the people of the Indiana Territory to form a constitution and state government but required that it be "not repugnant" to the Northwest Ordinance. The people of the Indiana Territory then elected delegates to a constitutional convention, which convened June 10, 1816 and completed work on the adoption of a state Constitution on June 29, 1816. It was immediately transmitted to Congress and to the President, and finally, on December 11, 1816, Congress adopted and President James Madison approved a resolution "That the state shall be, and is hereby declared to be, one of the United States of America, and admitted into the Union on an equal footing with the original States in all respects whatever."

The beginning of the Ordinance of 1816 adopted by the Indiana Constitutional Convention as part of the statehood process.
Indiana State Archives

But clearly, we see the unmistakable imprint of the Northwest Ordinance in Indiana's first Constitution in 1816, particularly in the areas of religious freedom; the right to trial by jury in civil and criminal cases; the requirement that courts be open for redress of injury to person, property, or reputation; the prohibition against excessive fines and cruel or unusual punishment; the freedom of contract; and prohibitions against slavery, involuntary servitude, and government taking of property without compensation. In fact, the 1816 Constitution is extremely forceful in its antislavery provision, declaring that "as the holding any part of the human Creation in slavery . . . can only originate in usurpation and tyranny, no alteration of the constitution shall ever take place so as to introduce slavery or involuntary servitude in this State, otherwise than for the punishment of crimes."

Just as the Northwest Ordinance emphasized education, so did the 1816 Constitution. Our first Constitution said, "Knowledge and learning generally diffused . . . being essential to the preservation of a free Government . . . it shall be the duty of the General Assembly to provide lands for seminaries and public schools." Further, "The General Assembly shall from, time to time, pass such laws as shall be calculated to encourage intellectual, Scientifical, and agricultural improvement . . . and to countenance and encourage the principles of humanity, honesty, industry, and morality." Interestingly, our first Constitution required the General Assembly "to provide, by law, for a general system of education, ascending in a regular gradation, from township schools to a state university, wherein tuition shall be gratis, and equally open to all."

Apart from the portion of the 1816 Constitution dealing with individual rights and education, however, its provisions regarding the structure of government seem to be a reaction to the powerful, centralized territorial government set up by the Northwest Ordinance. For example, the Constitution required a strict separation of powers between the legislative, executive, and judicial branches of government, and declared that no person in one department shall exercise any power properly attached to one of the others; it stated that no person shall hold more than one lucrative office at the same time; and it provided that the governor's veto of legislation could be overridden by a simple majority, unlike the territorial governor with his absolute veto, or unlike the federal government, where Congress must have a two-thirds majority vote to override a presidential veto. One particularly interesting feature of the 1816 Constitution is a provision which required a referendum every twelve years to determine whether the voters wished to have a new constitutional convention, which would then be convened "to revise, amend, or change the constitution."

When the Indiana Constitutional Convention of 1850-1851 was held in Indianapolis, the mood of the citizens was much different from the spirit in 1816 when the Hoosier thirst for statehood was the main objective. The debates of the 1850-1851 Convention were officially reported, and we also know much about them from the vigorous newspapers of the day.

Detail from a broadside
Indiana Division, Indiana State Library

The convention that drafted the 1851 Constitution convened in the House chambers of the old Capitol building in Indianapolis on October 7, 1850, and then later moved to the Masonic Hall in Indianapolis at the start of 1851. We are told that the delegates consisted of sixty-two farmers, sixteen physicians, eleven merchants and traders, two teachers, two manufacturers, two surveyors, one tanner, one carpenter, one millwright, one county recorder, one accountant, one miller, one baker, one editor, and over fifty men who were attorneys, had studied law, or were or would become judges. Three of the delegates later would serve as judges on the Indiana Supreme Court. In addition, there were twelve others at the convention who sat as judges on lower state courts. The list of attorneys who had distinguished themselves, or would do so in the future, is substantial. It includes a United States vice-president, Thomas Hendricks; two United States senators, Hendricks and John Pettit; two Indiana governors, Hendricks and Alvin Hovey; an Indiana lieutenant governor, Samuel Hall; a United States judge advocate general, William McKee Dunn; a reporter of the Indiana Supreme Court, Horace Carter; two ministers to foreign countries, Hovey and James Borden; a Civil War general, Hovey; and finally, a number of United States congressmen and members of the Indiana General Assembly. A non-attorney, George W. Carr from Lawrence County, was elected president.

The Constitution drafted at the 1850-1851 convention, and thereafter easily ratified by Indiana voters, continues to be the Constitution of our state to the present day, although there have been various amendments from time to time. These include the change to gender neutral language, and various other amendments through the years, including two passed at our last general election.

Reflecting the philosophical underpinnings of its predecessor 1816 Constitution and the Northwest Ordinance, our 1851 Constitution begins (Article 1, Section 1, Bill of Rights) with a declaration of "natural rights" that seems to come right from the Declaration of Independence:

WE DECLARE That all men are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty and the pursuit of happiness . . . . [and that] For the advancement of these ends, the PEOPLE have, at all times, an indefeasible right to alter and reform their government.

What is significant about this is that there is no comparable provision in the United States Constitution. The language of the Declaration of Independence was not included in our federal Constitution, which does not expressly acknowledge that people have the inalienable rights of life, liberty, and the pursuit of happiness.

Our present state Constitution is clearly the result of a robust citizenry very apprehensive about the excesses of government power and very protective of individual liberties. The 1851 Constitution reflects this populism and a prevailing sympathy for Jacksonian democracy.

Article 1, named the "Bill of Rights," contains thirty-seven individual sections, providing considerable detail and emphasis to assure the protection of individual liberties. As an example, the federal Bill of Rights deals with religious freedom in only one section, the First Amendment, to state "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." But our Hoosier forefathers in 1851 declined to use the federal language and with much more specific detail enacted seven separate sections to assure the protection of religious liberties.

Thus our Constitution expressly recognizes the right to worship according to the dictates of our own consciences; and it prohibits laws which control the free exercise or enjoyment of religious opinions or interfere with right of conscience; prohibits laws which give any preference to any creed, religious society, or mode of worship; prohibits laws which compel any person to attend, erect, or support, any place of worship or to maintain any ministry against his consent; prohibits laws that require any religious test as a qualification for testimony or for office of trust or profit; and prohibits money from the public treasury being spent "for the benefit of any religious or theological institution."

In the area of individual rights such as freedom of religion, freedom of speech and press, jury trial, due course of law, freedom of contract, and fairness in criminal cases with protection of the rights of people accused of crime, our present Constitution can easily be traced back to its 1816 predecessor and to the 1787 Northwest Ordinance. Likewise, the 1851 Constitution also harkens back to its ancestor documents with regard to the role of government in public education. This is another major difference where Indiana has chosen to preserve values and institutions that are not in our federal Constitution. The 1851 Constitution did not retain the language requiring a free education through college, but it did expressly emphasize the duty of government to provide for education:

Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.

Aside from its fervent protection of religious and other individual liberties, the 1851 Constitution, like the 1816 Constitution, departed from the Northwest Ordinance as to the structure and organization of government. By the mid-1800s, Hoosier citizens were extremely troubled by government insolvency, by special government grants to commercial ventures such as canal building and state banks, and by an unequal system of taxation; and people were generally very suspicious of government power. So it is not surprising that the 1851 Constitution contained many new provisions relating to term limits; popular election of state office holders; the right of any person of sound moral character to practice law; limiting the state from going into debt; requiring the assessment and taxation to be uniform and equal; prohibiting special laws that benefit individuals or particular classes of people; and prohibiting the grant of special privileges or immunities.

All this discussion and focus upon our state Constitution and its predecessors is not a purely intellectual pastime. In recent years, more and more state courts across the country are taking a renewed look at their own state constitutions. In the past twenty years, there has been a definite movement away from relying solely on the federal Constitution. The fact is, each state is free to structure its own government system and to provide protection for individual freedoms and liberties in addition to that found in the federal Constitution. Upon taking office, each Indiana judge--actually, each state officeholder--takes an oath to uphold both the United States Constitution and the Indiana Constitution. So it is not unusual to see court decisions looking to our state constitutional history to help interpret and construe the words of our 1851 Constitution. The Northwest Ordinance, as a part of that history, has been used in a number of opinions, either as controlling law, or in interpreting the Indiana Constitution. Since 1933, there have been at least nine different cases citing the Northwest Ordinance.

Several of those cases have traced the origin or source of certain laws or authority back to the Ordinance, including questions regarding the grant of title of navigable waters; the right of the legislature to control jurisdiction of the courts over divorce and to provide for a widow's interest in the estate; and the power of the government to grant land to establish educational institutions.

The Northwest Ordinance has more recently also been discussed in court opinions interpreting our 1851 Constitution: for example, in cases interpreting the meaning of the term "involuntary servitude" and "particular services" being taken without just compensation, in 1988; and in interpreting the residency requirement for governors, in 1991. As lawyers and judges "rediscover" our Indiana Constitution, it is the focus of consideration with growing frequency. We now often find court decisions expressly enforcing language and provisions in the Indiana Constitution which are different from the federal Constitution. Some examples are recent cases interpreting Indiana's unique "face to face" language in our provision assuring the right to confront witnesses; our state's particular free speech clause which protects the right to speak or write freely "on any subject whatever" but simultaneously requires responsibility "for abuse" thereof; the meaning of "reasonable" search and seizure in Indiana; the right of an accused person to testify on his own behalf-a right not expressly found in the federal Constitution; the requirement that all criminal penalties be proportioned to the offense; and various provisions requiring the Indiana General Assembly to enact certain laws or provide certain laws or certain services.

The renewed interest in Indiana's constitutional past is reflected throughout our judicial system. In more and more cases, lawyers are making persuasive arguments based on Indiana's Constitutions of 1851 and 1816 and the Northwest Ordinance. Our law schools, bar associations, and other entities are presenting major conferences and seminars regarding the Indiana Constitution and its history. In fact, three of the four law schools located in Indiana now offer a course in state constitutional law. And, unlike most states, Indiana's bar examination requires students to be tested about their knowledge of Indiana constitutional law.

Evidence of this renewed interest can also be seen in law journal articles published in recent years, among which are Chief Justice Randall Shepard's article, "Second Wind for the Indiana Bill of Rights" in 1989, and Indiana University law professor Patrick Baude's 1987 article, "Is There Independent Life in the Indiana Constitution?" As lawyers and courts turn ever greater attention to the interpretation of our state Constitution and its underpinnings, we are developing a deeper appreciation for and reliance upon the wonderful work of the Indiana Historical Bureau, the Indiana Historical Society, and the many other individuals and organizations whose mission is and has been the preservation, discovery, and perpetuation of Indiana history.

The Indiana citizens who settled the Indiana Territory under the protections of the Northwest Ordinance, those who crafted the 1816 Constitution to obtain statehood, those who enacted a new Constitution in 1851, and those who have since then been continuously involved in amending that document as changes are needed--to these Hoosiers you and I are deeply indebted for a wonderful constitutional legacy. It is altogether fitting that on this day when we celebrate the 180th anniversary of Indiana's statehood, our attention is drawn to the crucial and still vibrant role of the documents of Indiana's constitutional past.

Suggested reading

Boswell, Jessie P., comp. Index to the Journal and Debates of the Indiana Constitutional Convention, 1850-1851. Indianapolis: Indiana Historical Bureau, 1938.

Buley, R. Carlyle. The Old Northwest: Pioneer Period, 1815-1840. 2 vols., Bloomington: Indiana University Press, in association with the Indiana Historical Society, reprint 1983.

Constitution Making in Indiana (4 vols., Indianapolis: Indiana Historical Bureau, 1916-1978) is the definitive treatment of how Indiana's constitutional government has evolved. Volume 1 contains the text of both the 1816 and 1851 constitutions as well as a 227-page introduction explaining the process of forming these documents. Volumes 2-4 contain the legislative processes from 1851-1960 to amend the present constitution. Charles Kettleborough compiled and edited the first three volumes; John A. Bremer compiled and edited Volume 4.

Volume 1, 1780-1851
Volume 2, 1851-1916
Volume 3, 1916-1930
Volume 4, 1930-1960

Ewbank, Louis B., and Dorothy L. Riker, eds. The Laws of Indiana Territory, 1809-1816. Indianapolis: Indiana Historical Bureau, 1934.

Hawkins, Hubert H., comp. Indiana's Road to Statehood. Indianapolis: Indiana Historical Bureau, 1969.

Journal of the Convention of the People of the State of Indiana to Amend the Constitution. Indianapolis: Indiana Historical Bureau, reprint 1936.

Onuf, Peter S. Statehood and Union: A History of the Northwest Ordinance. Bloomington: Indiana University Press, 1987.

Patrick, John J. Lessons on the Northwest Ordinance of 1787: Learning Materials for Secondary School Courses in American History. Indianapolis: Indiana Historical Bureau, Indiana Committee for the Humanities, Social Studies Development Center, Indiana University, and ERIC Clearinghouse for Social Studies/Social Science Education, 1987.

Philbrick, Francis S., ed. The Laws of Indiana Territory, 1801-1809. Indianapolis: Indiana Historical Bureau, reprint 1931.

Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana, 1850. 2 vols., Indianapolis: Indiana Historical Bureau, reprint 1935.

Taylor, Robert M., Jr., ed. The Northwest Ordinance 1787: A Bicentennial Handbook. Indianapolis: Indiana Historical Society, 1987.

Walsh, Justin E. The Centennial History of the Indiana General Assembly, 1816-1978. Indianapolis: The Select Committee on the Centennial History of the Indiana General Assembly in cooperation with the Indiana Historical Bureau, 1987.

Indiana History Bulletins are widely distributed around the state. All issues were sent to public libraries and schools, as well as to historical societies and museums.

Indiana's Constitutional Past - entire issue