Constitution of Indiana

Authorization

In 1811 the Indiana Territory's House of Representatives adopted a memorial to the U.S. Congress asking permission for its citizens "to form a government and constitution and be admitted to the Union," but the War of 1812 delayed the process until 1815. Some members of the territory's general assembly, as well as Thomas Posey, governor of the Indiana Territory, objected to statehood at that time. They believed that the territory's limited size and scattered population would make a state government too costly to operate. However, after a census authorized in 1814 proved that its population had reached 63,897, exceeding the minimum population requirement of 60,000 as outlined in the Northwest Ordinance of 1787, efforts to pass a request to consider statehood for Indiana were renewed.

On December 11, 1815, the territory's House of Representatives voted seven to five in favor of the memorial to Congress stating its qualification to become a state. The request was presented in the U.S. House of Representatives on December 28, 1815, and introduced in the U.S. Senate on January 2, 1816. A House committee chaired by Jonathan Jennings, Indiana's territorial representative, reported out a bill for an Enabling Act, which provided for the election of delegates to a convention to consider statehood for Indiana. The bill passed in the U.S. House on March 30, 1816, and in the U.S. Senate on April 13. President James Madison signed the Enabling Act into law on April 19, 1816. If a majority of the delegates to Indiana's constitutional convention agreed, the delegates would proceed to create a state constitution.

As outlined in the Enabling Act, election of delegates to Indiana's first constitutional convention took place on May 13, 1816. The convention at Corydon, the territorial capital in Harrison County, began on Monday, June 10, 1816. The convention's elected delegation of forty-three men were apportioned among the thirteen counties that were "in existence prior the 1815 General Assembly" and based on each county's population.

Political climate/issues

In the early nineteenth century some of the Indiana Territory's citizens opposed statehood. The major concerns were the loss of financial support from the federal government if it became a state and the fear of a tax increase to pay for the new state government. The minority group preferred to wait until later, when the population was even larger and the state's economy and political structure was more firmly established. The majority of the territory's citizens viewed statehood as an opportunity for more self-government and wanted to proceed. The territory's pro-statehood faction preferred to elect their own state officials instead of having the federal government appoint individuals on their behalf, formulate state laws, discontinue the appointed territorial governor's absolute veto power, and allow its citizens to have greater participation in national politics, including voting powers in Congress.

At the time the delegates were gathering at Corydon in June 1816, slavery had become a major and divisive issue in the territory. The indenture law of 1805 had been repealed, but slavery continued to exist within Indiana. Two major factions emerged. An anti-slavery/pro-democracy group was led by Jonathan Jennings and his supporters. Former territorial governor and future U.S. president William Henry Harrison's allies led the pro-slavery/less democratic group. Supporters of Indiana statehood (the pro-Jennings faction) favored democracy, election of state officials, and voting representation in Congress. Harrison's allies supported slavery within the territory and maintaining Indiana's territorial status with a federally-appointed governor. The anti-slavery faction preparing for statehood hoped to institute a constitutional ban on slavery.

Constitutional Convention

On June 10, 1816, the first day of the convention, forty-two delegates convened at Corydon to discuss statehood for Indiana. The convention's forty-third delegate, Benjamin Parke, did not arrive until June 14. Thirty-four of the elected delegates agreed on the issue of statehood. On June 11, the delegation passed a resolution (34 to 8) to proceed with task of writing the state's first constitution and forming a state government.

Jonathan Jennings, who presided over the convention and was later elected the first governor of Indiana, appointed the delegates to various committees; William Hendricks, although he was not an elected delegate, served as the convention's secretary and was later elected as the new state's first representative to Congress. In addition to Jennings, notable members of the delegation included Franklin County delegates James Noble (who became the first U.S. Senator from Indiana after it achieved statehood) and Robert Hanna (who became Indiana's second U.S. Senator after statehood); Harrison County delegates Dennis Pennington and Davis Floyd; and among others, William Henry Harrison's friends and political allies: Benjamin Parke, John Johnson, John Badollet, and William Polke (delegates from Knox County), David Robb of Gibson County, and James Dill of Dearborn County.

Most convention delegates had ties to the South; all but nine had lived below the Mason-Dixon line before their arrival in the Indiana Territory. The youngest delegate (Joseph Holman of Wayne County) was twenty-eight; the oldest was fifty-eight. Eleven delegates had served in the territorial legislature and more than half of the delegates had previous legal training. Daniel Grass, the sole delegate from Warrick County, was excused on June 19 for the remainder of the convention due to ill health.

The delegation's basic tasks included selection of presiding officers, adoption of a set of convention rules, meetings in committees and as a whole group to discuss proposed articles for the new constitution, and adoption of a final version of the document. Although the members of the delegation did not all agree, a majority group, mostly associated with the anti-territorial governor and anti-slavery faction, emerged in favor of statehood. The opposing consisted mostly of Harrison's friends and supporters of the territorial legislature who opposed statehood.

The summer heat often caused the delegation to move outdoors and work beneath the shade of a giant elm tree that would later be memorialized as the Constitution Elm. (A portion of the trunk is still preserved.) The delegates completed their work on the constitution in nineteen days, adjourning on June 29, 1816. The total cost of the convention was $3,076.21, which included compensating the delegates and their assistants for each day they attended the convention, as well as printing costs for the final version of the document and the acquisition of benches, tables, books, and stationery for the delegates.

Adoption

The delegates adopted the constitution with a simply majority vote (33 to 8). The new constitution became effective on June 29, 1816, the last day of the convention, when the delegates signed the document. It was not submitted to Indiana's voters for ratification.

Summary and features

Indiana's 1816 constitution, considered the most important document in the state's history, represented the more democratic views of the pro-statehood/anti-slavery faction. The document emerged from the constitutional convention as a statement of the "values and beliefs" of Indiana's pioneer era.

The state's first constitution is similar to that of the other state constitutions written around the same time. Because Ohio and Kentucky were the newest states closest to Indiana, the delegates to the Indiana constitutional convention referred to the constitutions of these two states, along with others such as Pennsylvania, New Hampshire, and Tennessee, for ideas and concepts as well as specific text. Content from the other state constitutions was chosen based on the Indiana delegates' preferences for their new state. Occasionally, original text was composed for specific articles or sections when the appropriate wording in other state constitutions was not sufficient. The delegates' selections resulted in Indiana's legislative branch being dominant over the executive and judicial branches of state government.

The Indiana delegates organized a republican form of government and created a state constitution that outlined a basic framework for governmental functions. Instead of providing specific details on individual issues, the constitution's broadly-defined principles enabled the state government to function as a loosely bound unit. "The People" were explicitly noted as being the sovereigns of the state.

The preamble outlined Indiana's rights to join the Union "on equal footing with the original states" in accordance with the laws of the U.S. Constitution, the Northwest Ordinance of 1787, and the Enabling Act. Article I, which contained a bill of rights for Indiana's citizens, conferred many of the same rights as the U.S. Bill of Rights, including civil liberties and such basic freedoms as the freedom of speech, the right to bear arms, and freedom of religion, among others. Article II called for the separation of powers between the legislative, executive, and judicial branches of state government.

Articles III, IV, and V outlined the powers of the state's legislative, executive, and judicial branches of government. Its bicameral legislature divided powers between two chambers (the state's House of Representatives and its Senate), each one composed of elected members. The state legislature was set to meet annually. Elections would be held annually to elect representatives. State senators would serve three-year terms, with one-third of the senators being elected each year. The governor and lieutenant governor would be elected to serve a term of three years. Indiana's governor was limited to serving two consecutive terms. A simple majority vote in the legislature could override the governor's veto. Article IV also outlined the election of other state officials. The judicial branch, as outlined in Article V, included the state's Supreme Court, circuit courts, and other inferior courts. The constitution allowed the state legislature to create and adjust state courts and judicial districts and the governor was given the authority to appoint judges to serve seven-year terms with input and confirmations from the state senate.

Article VI granted voting rights to white males twenty-one years of age and older who were citizens of the United States had lived in Indiana for at least one year. Under Article VII all "able-bodied" white men between the ages of 18 to 45 were required to serve in the militia when called upon to do so. Non-whites (more specifically, blacks, mulattos, and Native Americans) were prohibited from serving in the militia. Conscientious objectors would be fined if they did not serve.

The constitution's first of slavery appears in Article VIII, Section 1, which expressly prohibited alteration or amendment of the state constitution from ever permitting the introduction of slavery or involuntary servitude into the state. As one of the state constitution's most important provisions, this section allowed constitutional amendments for any reason other than the introduction of slavery or involuntary servitude. The anti-slavery clause in Article VIII stated: "But, as the holding any part of the human Creation in slavery, or involuntary servitude, can only originate in usurpation and tyranny, no alteration of this constitution shall ever take place so as to introduce slavery or involuntary servitude in this State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted." Indiana's 1851 constitution contains similar content, but clarified the legal status of slaves and indentured servants when they came into the state.

Article IX outlined plans for public education. Its central item, which was new to American constitutions, included a clause that established "As soon as circumstances will permit" a "general system of education, ascending in regular gradation, from township schools to a state university, wherein tuition shall be gratis and equally open to all." This was a significant alteration and expansion of the education clauses of the template constitutions used during the convention. Because the opening phrase did not provide a specific timetable for implementation, a state-supported system of public education was delayed until a new state constitution was adopted in 1851. Article IX also provided for a reform-based penal code, funding for libraries, and state institutions to care for the elderly and those in need.

Indiana's delegates wrote their own content for Article X, which outlined the state's banking provisions. Article XI outlined general provisions that named Corydon the seat of state government until 1825, established salaries for judges and state officials, and set the state's geographical boundaries. While Article VIII banned the future importation of slaves and indentured servants into Indiana, Article XI left open to interpretation the issue of whether it was acceptable to allow pre-existing slavery and involuntary servitude arrangements within the state. Article XII outlined the process for the transition from a territorial government to a state government. This included, among other tasks, the election of state officials and representation in the Indiana General Assembly and the U.S. Congress.

Transition to statehood

Elections of state officers were held under the laws of the Indiana Territory on August 5, 1816. Jonathan Jennings was elected governor, Christopher Harrison was elected lieutenant governor, and William Hendricks was elected to the U.S. House of Representatives. The Indiana General Assembly met for the first time under the new constitution and state government on November 4, 1816. Jennings and Harrison were inaugurated on November 7. The state legislature elected James Noble and Waller Taylor to the U.S. Senate on the following day. Hendricks was sworn into office and seated as a member of the U.S. House on December 2, 1816. President James Madison signed the congressional resolution admitting Indiana as the nineteenth state in the Union "on equal footing with the original states in all respects whatever" on December 11, 1816, which is considered the state's birthday. Noble and Taylor were sworn into office seated as members of the U.S. Senate on December 12, 1816. Jennings appointed three judges (Jesse Lynch Holman, John Johnson, and James Scott) to serve seven-year terms on the Indiana Supreme Court, effective December 28, 1816. The final step to achieve statehood for Indiana occurred on March 3, 1817, when a federal act was approved to extend federal laws to Indiana.

Criticisms and call for rewrite

The 1816 constitution was never amended, although some of its provisions were criticized after its adoption. It was replaced with a new state constitution in 1851.

The most notable criticisms of the 1816 constitution were Corydon's identification as the seat of state government for the next nine years, inadequate provisions for amending the constitution, prohibition of salary increases for state government officials until 1819, term limits for judges, and a failure to provide for selection of a state attorney general or prosecuting attorney. Some critics felt that decisions regarding these issues were the responsibility of the elected representatives to the state legislature. Others who opposed statehood at the time viewed the new state constitution as "premature."

In the years following its adoption, rapid social change initiated the need to revise the state's constitution. Some of the divisive issues were guaranteeing secrecy of ballots, granting more local power over school funding, suffrage for immigrants, continuing concerns over the amendment process for the constitution, extending legislative terms and legislative sessions, the impeachment process for state officials, and limiting legislative authority over local matters. Although there had been four previous attempts to initiate another constitutional convention, the state legislature did not call for Indiana's second constitutional convention until 1849. Its delegates convened at Indianapolis in 1850.

Constitution of 1851

In the 1840s, a crisis in the state due to overspending caused the state to become insolvent. The situation, and the call for constitutional change to prevent a reoccurrence of the events, finally made the idea of a new constitution popular among the public. In response to the growing criticism, a constitutional referendum was held in 1850, two years before the required twelve-year referendum. The vote came out 81,500 for and 57,418 against reforming the constitution. That year the Indiana General Assembly passed legislation to provide for the election of 150 delegates, with representation from each county and apportioned according to the district makeup of the state, to be elected to attend a convention to write a new state constitution.

Constitutional Convention

The 150 delegates were elected in the 1850 election and the convention was convened in the Hall of Representatives at the Statehouse in Indianapolis, starting October 7, 1850. The delegation was split with 95 Democrats and 55 Whigs. George Whitfield Carr, who was the Speaker of the House in the last session of the General Assembly, presided over the convention. Other members included Thomas Hendricks, David Wallace, and Alvin P. Hovey.

Both parties adopted a set of proposals they wanted incorporated into the constitution prior to the convention. Whigs wanted all judicial and legislative office at all levels of government publicly elected, expansion of suffrage to all citizens over 21 including blacks, a ban on public debt, minimum funding requirements for schools, requiring the legislature to only enact laws that went into effect statewide (ending private acts), and the lowering of salaries of all public officials. The Democrats adopted their items after the Whigs, and included the same items. Democrats accused the Whigs of stealing their issues to gain more representation at the convention.

The first week was spent organizing the convention, and the first session was convened on December 26, 1850. Once debate focused on the constitution, the primary goal was to find ways to reduce the cost of government and increase its efficiency. The session lasted 127 days, ending February 10, 1851. Topics discussed were election of local officials, sheriffs, commissioners, board members, judges, coroners, auditors, clerks, etc.; expansion of suffrage; biennial legislative sessions, banning special legislation targeting only certain localities, and the impeachment process for local officials. To remedy many of these problems, the constitutions of Illinois and Wisconsin were used as references, their states having already dealt with similar issues. The resulting constitution was Jacksonian, and significantly expanded the democratic principles.

Adoption

The new constitution was written in several different sections. When the constitution was submitted to the public for voting, they could vote on each section, meaning that all, part, or none of the constitution could be approved. Some sections that were approved in the convention were voted down by the public, including a clause allowing universal suffrage regardless of race or sex.

The constitution was submitted to the general public in the election of 1851 and was ratified, went into effect 4th July, 1851, and has since remained the highest state law in Indiana. The sitting elected government was permitted to retain their seats, but had to swear an oath to uphold the new constitution until a new government could be elected.

Clauses

With the anticipated reduction in workload the General Assembly was changed to meet biennially rather than annually. Terms of office were extended for all elected offices, representatives to two years, senators to four, and governors to four years. To prevent the legislature from interfering in local affairs, as had become common, the General Assembly was banned from creating legislation that would not be applied to the entire state.

To remedy the state's suffrage problem, voter rights were granted to any naturalized or native white male citizen who had reached the age of 21. This gave the right to vote to hundreds of thousands of voters who previously had been ineligible to vote.

Women's rights were also greatly expanded in the new constitution. Married women were granted the right to own private property, and also granted the right to jointly own property with her husband.

The most controversial clause in the new constitution was the ban placed on allowing blacks to immigrate to Indiana. It was later struck down by the courts.

The Courts were reorganized and the Supreme Court was made an elective body. Their terms were extended to seven years.

Another clause dealt with the Bank of Indiana. It barred the bank's charter from being extended and put a ban on the creation of another similar bank.

One of the most important changes was the abandonment of the short ballot. More public positions were made electable like the Secretary of State, and Attorney General. These changes were pushed through by the Whig minority in a hope to break the Democratic hold on power.

Education was the focus of several sections of the constitution. The clauses dealt primarily with forcing the state government to adequately fund local schools while providing boards of local residents to manage the funds and the schools. It also created a state superintendent of public instruction and gave the state some authority in setting curriculum. The constitution also officially adopted Indiana University as the state's seminary, guaranteeing it state funding.

Because no divorce clause was included in the original constitution the legislature had had to grant divorces on a case by case basis. This, and other issues were delegated to the courts and clerks in the new constitution.

Amendments

The early criticism of the constitution was its lax voter regulations. From the time of its adoptions until 1917, Indiana was frequently the victim of voter fraud. A 1917 amendment put voter registration rules in place.

The whole of article thirteen, which contained several other restrictions on blacks, was repealed and amended in 1881. The final barrier, banning blacks from joining the militia, was removed in 1963, the same year the Indiana Civil Rights Act was passed into law.

Another problem was the organization of the courts. The Supreme Court became overloaded with cases and an appellate court was created at the turn of the century. During the 1970s a series of amendments were enacted to make the court constitutional and to reform the method of electing Supreme Court Justices. Justices were again made appointed positions, a list of candidates was created by the Indiana Judicial Nominating Commission, narrowed to three finalists and thus submitted to the governor who then chooses one. The Justice could then serve two years before being subjected to a retention election, if retained then the Justice could continue their term for up to ten years. All five of the justices must face a retention vote once every ten years on the ballot of that general election.

During the 1970s it became apparent that the General Assembly was not able to complete all their work in the time allotted by the constitution. An amendment was passed that allowed the General Assembly to meet annually. The long session, which occurred the year after the election, was left the same allowing the body to continue meeting for 61 days, but on the following year the assembly was authorized to meet again for a thirty-day period.

Constitutional decisions

The state supreme court used the 1816 clause prohibiting slavery in several cases, including Lasselle v. State (1820) and In re Clark (1821).

The clauses banning black immigration immediately came under criticism and was ruled unconstitutional in the Supreme Court case of Smith v. Moody in 1861.

In 1864 Article 13 of Indiana's revised 1851 constitution, which prohibited blacks from moving to Indiana, was declared unconstitutional after the famous case of Freeman v. Robinson (1855).

Preamble

The changes and the concerns in society can be noted by the comparison of the preambles in the original 1816 constitution, and the current constitution. The preamble to the original 1816 constitution read:

The preamble of the current constitution reads:

Articles

The Constitution consists of a preamble and 16 articles. They are as follows:

General provisions