By Bryan Corbin, Evansville Courier & Journal
INDIANAPOLIS - Kept in a dark vault in the Indiana State Archives because it is so old and priceless, the 1851 Indiana Constitution has been the basic operating manual for state and local government for a century and a half. To restructure the multiple layers of local government contributing to high property taxes, Gov. Mitch Daniels is asking whether - after 156 years - the system established by the constitution ought to be replaced.
The Republican governor has more in mind than just amending the state constitution, which has happened regularly in Indiana's history. Daniels has floated the idea of calling a constitutional convention, where delegates would rewrite the constitution from square one. Although parts of the current document could be retained, anything dealing with the structure of government and the legal rights of Hoosiers could potentially be changed.
Daniels has said he likes "big, bold solutions" and that dealing with high property taxes will involve modernizing what he calls Indiana's "antique system" established in 1851. He has appointed a panel of experts, led by his predecessor, former Democratic Gov. Joe Kernan, and Indiana Chief Justice Randall Shepard to study and recommend local government reforms.
Besides possibly consolidating schools or libraries and abolishing township-level and county-level assessors, the Kernan-Shepard commission was asked to find out whether a constitutional convention is "necessary or desirable as a means to achieve significant reforms in the structure and organization" of government.
"My point was, everything needs to be on the table, everything needs to be looked at," Daniels said recently.
A prominent Democrat, Indianapolis Mayor Bart Peterson, said in May that he supports a constitutional convention to restructure local government, his press secretary said. Peterson's own restructuring proposal was defeated in the Legislature this year, so a constitutional convention might be the way to "go after some real sacred cows," the mayor said at the time.
Indiana's last constitutional convention was in 1851, and the document it produced - handwritten vellum pages bound in calf leather - is still in effect. The idea of repealing the state constitution and starting over has been greeted with skepticism by legislators of the governor's own party.
For all its flaws, the 1851 state constitution has held up well in protecting individual rights, legal experts say.
"The state constitution is stronger and more on the side of the citizen, in my opinion, than the federal Constitution," said Cole Banks, an Evansville attorney who also teaches political science at the University of Southern Indiana.
If the Legislature agreed to trigger the rarely-seen convention process, "it would be a remarkable civic occasion for Hoosiers to consider fundamental principles about who we are as a state. But it could turn into an ugly spectacle and also invite a lot of groups to try to muscle their way into the constitution," said Robert Dion, associate professor of political science at the University of Evansville. "I'm sympathetic to the idea that the Kernan-Shepard commission wants to revisit the foundation of the organization of the state and achieve real fundamental reforms, and not tinker at the margins.
"But if you open the door to rewriting the constitution, you're asking for a storm of amendments and competing causes. It would be a real mess."
Delegates to a constitutional convention could alter basic features of government - not just the number and duties of state, county and township offices, but also the lengths of terms that officials serve - and they could change redistricting.
As a public defender in Vanderburgh County courts, Banks wonders about wholesale changes to the judicial system. Legal precedents may no longer apply, and the powers and six-year terms of circuit and superior court judges might change.
"A constitutional convention could cause the courts to be run on a state basis as opposed to a local basis, which might be good in some ways and bad in other ways," Banks said.
Human nature and political realities being what they are, any legislators who served as convention delegates might be reluctant to impose revolutionary changes.
But the risk of unintended political consequences concerns state Rep. Dennis Avery, D-Evansville.
"If we have a constitutional convention, there's no guarantee (the delegates) would do the things the governor wants," Avery said. "You're creating an unwieldy animal that could do what it wants to do, as long as the public supports the final project."
Avery recalled controversial social issues that special-interest groups have tried to amend into the state constitution in recent years. Much of this year's Legislature was consumed by debate on one proposed constitutional amendment, SJR 7, the same-sex-marriage ban, which was approved in the state Senate but did not pass in an Indiana House committee.
A constitution rewrite would open the door to adding SJR 7 while bypassing the time-consuming amendment process. But one of the most vocal supporters of SJR 7, lobbyist Eric Miller of the conservative group Advance America, said he opposes a convention.
"You could have a constitutional convention that could get into many more areas other than finding ways to streamline government," said Miller, who ran for governor in 2004. He said he prefers to pursue SJR 7 as an amendment, not through a convention.
So does state Sen. Brandt Hershman, the Senate sponsor of SJR 7.
"I don't believe in mixing issues," said Hershman, R-Wheatfield. Senate President David Long says the "tried-and-true" amendment process allows time for deliberation.
"There's some wisdom in that. You don't race to a conclusion," said Long, R-Fort Wayne, who opposes a convention.
By year's end, the Kernan-Shepard commission will recommend ways of changing local government, which might involve changes to the state constitution. Its findings would be non-binding on the Legislature.
Concerns about a convention are "very legitimate," Daniels said. "I'm just framing questions that we'd like these very wise people (the Kernan-Shepard commission) to speak to the state. They could easily come back with exactly that point of view."
Even if a convention was called and a new constitution was ratified by voters, the actual 1851 document would not be discarded; it would remain safely in the State Archives, preserved alongside its predecessor, the 1816 constitution.
State Archives program director Alan January said both documents spend most of the year in a vault but are displayed in a humidity-controlled case in the Statehouse several weeks a year.
"Those are among the most treasured documents of the state of Indiana," January said.