The Outstater: When the Law Is not the Law

June 19, 2014

DO WE PUT TOO MUCH FAITH  in constitutions? What if securing liberty is harder work than setting words to paper?

Our foundation tried to answer that question 20 years ago this month. It filed a lawsuit against the Indiana Legislature, which had hidden a pay raise in a package of bills.

The Indiana Constitution, of course, specifically and exactly prohibits such trickery. Article IV, Section 19: “An act, except an act for the codification, revision or rearrangement of laws, shall be confined to one subject and matters properly connected therewith.”

There are obvious reasons for that. The authors suspected that future Hoosier legislators would from time to time try to slip one by the citizenry. The General Assembly that year simply confirmed the suspicion.

The court nonetheless turned its back on the case. The justices held that we had no “standing,” a term of legal art to which we will return in a minute.

Now, anyone who tries to make sense of Congress or a statehouse can imagine how better things would be today if every member had to vote up or down on each individual bill. The nation would be brimming with accountability. Reform would be a matter of course.

Justice Brent Dickson, in his minority opinion, argued that the resulting public good in itself justified taking up our case. He called the majority’s decision to the contrary “an enormous, if not a prohibitive, obstacle to citizens seeking access to the courts upon claims that the General Assembly has exceeded the limits of its constitutional powers.” He hinted that the court had abdicated its responsibility to define the extent of the powers of the political branches.

But there is more to it than that. A friend of legal talent explains: “Denying that a taxpayer has standing to bring an action against a political branch unless he can demonstrate a distinct harm particular to himself is the means by which courts have declined to intervene in what they regard as political questions.”

This so-called “political questions doctrine” is historically a measure of judicial “modesty and deference” to the political branches. And our little lawsuit, it turns out, joins a larger argument at the national level, one outlined in “Stopping a Lawless President,” a recent column by George Will. We have a president, Mr. Will admonishes the judiciary, who does not feel obligated to “take care that the laws be faithfully executed.”

Finally, the editors of the Wall Street Journal have added up the cost of such dereliction, particularly of allowing that same political questions doctrine to block the legal standing of citizens, particularly congressmen, who would otherwise sue:

“To the extent individuals have not suffered concrete injuries that the courts traditionally redress, (President Barack Obama) feels he can act without consequence to create whole-cloth regulatory regimes. This makes the inherent Article I powers of Congress irrelevant, with perhaps permanent damage to the separation of powers and political accountability. If Mr. Obama gets away with it, the next president probably will, too.”

We still hold, then, that the Indiana Legislature was profoundly wrong. And there has been no serious counter argument, i.e., that it has a right of convenience to bundle unpopular measures with popular ones and thereby render the legislative processes incomprehensible.

Nor is there any reason a majority in Indianapolis couldn’t pass a law next session reaffirming Article IV, Section 19, and then, on the signature of the governor, faithfully abiding by it.

Oh, but there is a reason, isn’t there?

Our politicians, or at least the more powerful among them, would be kings and not mere subjects of old laws. That is true to the degree that they are unabashed in ignoring the words of their own state Constitution — not refuting them, mind you, or even misinterpreting them, but simply ignoring them.

History tells us that that is concerning. The very reason legislatures and parliaments exist is to constrain the always tyrannical impulse of government. If, instead, they choose to act as governors themselves, and the judiciary thinks it unwise to intervene, your liberty is for sale or trade.

We discovered at some expense that there is no quick fix for that here, no lawsuit that can be filed one day and magically rebalance our political system the next. With legal and constitutional remedies blocked, representative democracy is what we have left, and it is a messy, grinding, uncertain slog — neighborhood by neighborhood, district by district, legislator by legislator.

That slog, however, has begun. This spring’s upset-filled GOP primary is portend. And no court need be consulted.

— Craig Ladwig



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