The Outstater

May 17, 2022

Indiana’s Pusillanimous Court

“Democracy and freedom will be the theme of every broadcast and editorial. Meanwhile, the ruling oligarchy and its highly trained elite of soldiers, policemen, thought-manufacturers and mind-manipulators will quietly run the show as they see fit.” — Aldous Huxley in “Brave New World, 1932

AMERICAN POLITICS operates as a ratchet. That is, it allows continuous motion in one direction while preventing motion in the opposite direction.

Some time ago, the Indiana Policy Review Foundation, led by the late Charlie Rice of Notre Dame Law School, took the Indiana Legislature to the state Supreme Court.

We argued that legislators hid a vote redefining their own salaries behind an unrelated provision to aid the disabled. We said it violated Article 4, Sec. 19 of the Indiana Constitution, to wit:

“Every act shall embrace but one subject and matters properly connected therewith.”

The court upheld a lower court ruling, although it was conceded that the legislation in fact did not “embrace but one subject.” The majority justices, revealing an elitist bent, merely said we “failed to demonstrate any interest beyond that of the general public.”

That was in 1995. At the time, although disappointed by the ruling, I thought that perhaps the decision touched on points of jurisprudence beyond the ken of an everyday journalist, something in the legal murk that only an accomplished juris doctor could sort out.

Today, I understand but wish I didn’t. I have gone back and read the dissenting opinion by Justice Brent Dickson:

“By refusing to allow the plaintiffs access to the courts for resolution of their claims of constitutional violation, the majority appears to relinquish to the legislative branch a portion of this Court’s judicial responsibility.”

Do you see what happened there? The Court had a choice between the Constitution and the legislative leadership. It chose the legislative leadership.

Put another way, it had a choice between supporting a collegial institution of the ruling elite or upholding the law. It chose the ruling elite.

Nobody had to go to the trouble of actually changing the words of the Constitution. They just ignored them, and the Court was perfectly fine with that — even for legislators to deceive the public to enrich themselves.

Does it get more clear?

Ratcheting forward, and given the foundation’s experience with Section 4, what now would prevent the court to rule in support of legislation, say, increasing the requirements to run for public office in ways that ensure incumbency and negate democratic remedy by the irrelevant “general public”? 

For many decades the direction of that ratchet has been toward the centralization of power and the degradation of constitution. Eventually, though, a ratchet breaks when either its prowl or the mainstay fails under stress.

Listen for the snap. — tcl


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