Indiana Bill of Rights by Randall T. Shepard, Chief Justice, Indiana Supreme Court
Indiana Bill of Rights
by Randall T. Shepard, Chief Justice, Indiana Supreme Court
The legendary debate over whether there should be a Bill of Rights in the Constitution of the United States echoes more than two centuries later in the modern discussions about the role of courts, federalism, and state constitutions.
At its most straightforward level, the eighteenth century debate focused on the nature of the national government which the constitution of 1787 intended to provide. Most of those who participated in drafting the document which created the government now located in Washington anticipated that it would be a relatively modest operation, so modest that it was unlikely its functions could impede individual liberty in any significant way.
That idea being widely accepted, those who opposed a Bill of Rights saw in the proposal the possibility that attempting to write down the rights of the people would in fact be harmful. They feared that individual liberties omitted from the list would be assumed not to exist.
Moreover, the constitutions of the several states all contained guarantees for their citizens. Starting with the example set by Virginia, early American states included a Bill of Rights in their own charters. Surely in a world where most government was state government, people thought, that was a sufficient protection.
In any event, the federal Bill of Rights became a necessary element of the campaign to ratify the constitution of 1787. From that date through the end of the nineteenth century, however, it played a relatively modest role, just as the national government continued to be a relatively small operation.
In the twentieth century the federal Bill of Rights has undergone several cycles. At the beginning of the century, most litigation on individual liberties was based in state constitutions. From the New Deal through the Supreme Court of Earl Warren, however, it became a weapon wielded far and wide to cause fundamental change in American life. Finally, beginning about 1980, use of the federal Bill of Rights seemed to peak, and the role of those Bills of Rights in state constitutions once again became prominent.
In modern America, government both state and federal has become so omnipresent that the doctrine of a "government of limited powers" no longer has much meaning. As this doctrine has waned the role of federal and state Bills of Rights in protecting Americans from government overreaching has become ever more critical.
I hope that you will acquire a deeper appreciation of the Indiana Bill of Rights and the federal Bill of Rights through your participation in this Close Up program.