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Constitutional clutter

Would-be amendments are partisan overreach

Will Rogers, a humorist and entertainer from Oklahoma, is credited with saying, “You can’t legislate intelligence and common sense into people” – a statement often truncated into “You can’t legislate common sense.”

Though commentators and political observers have repeated versions of that rather astute line for decades, lawmakers still try.

Take the Indiana General Assembly, where some members want to do something worse than legislate common sense: they want to amend it into the state constitution.

How else can you explain a proposed constitutional amendment stating – essentially – that Hoosiers have a right to hunt, fish and farm as long as they follow hunting, fishing and farming laws?

Why not an amendment that says Hoosiers have a right to play baseball and eat apple pie?

Perhaps inspired by the tea party, legislators are lining up to throw into the constitution statements that do not belong there. Amending property tax formulas into the constitution in 2010 – the year the tea party hit its peak – may have been the point at which Indiana lawmakers decided that amendments are a better way to institutionalize partisan policies because they take longer to change than laws.

Before Indiana was ever a state, residents of the area hunted, fished and farmed, and nothing in the state’s laws has changed that despite lack of constitutional language bestowing such a right.

But now, 162 years after Indiana’s constitution was adopted, some lawmakers have found an urgent need to amend common sense into the constitution.

This rush to change the constitution that forms the basis of Indiana’s approach to government – and the rights of its citizens – only serves to water down and even trivialize the bedrock rights already there. Do we really want to put the right to hunt and fish up there with free speech and freedom of religion?

Consider that in the past 225 years, the U.S. Constitution has been amended only 27 times. And 10 of them were the Bill of Rights, coming soon after the original constitution was adopted.

And, instructively, two other amendments canceled each other out after Congress and the majority of states decided the Prohibition amendment – one leaders and followers rushed into without adequate study and contemplation – was a mistake. Prohibition should have been a lesson in the dangers of overreaching in the constitution.

Yet, if various Hoosier lawmakers had their way, a dozen or so amendments would advance just this year. One would unwisely shift the balance in the separation of powers, restricting court authority to order a county to follow the law and constitution if it cost money. One would launch another attack on unions, requiring a secret ballot for private union votes. Yet even the misnamed right-to-work law is just a law, not a part of the state constitution. Others would give state senators more power to choose state Supreme Court justices and court of appeals judges. Another (abandoned for the year on Thursday) would ban gay marriage, civil unions and – maybe or maybe not – the ability of companies to choose to offer domestic partner benefits.

Hoosier lawmakers need to answer hard questions about the right to hunt and fish amendment.

How might the “right to farm” affect laws that regulate pollution from chicken farms or zoning of hog farms or chemicals sprayed on crops? What about the constitutional requirement that “Hunting and fishing shall be the preferred means of managing and controlling wildlife”? Would that not make it unconstitutional for a pond owner to paint goose eggs to “control” the geese population? Wouldn’t cities that capture and euthanize stray dogs and cats be violating the constitution?

We don’t know what Will Rogers would say today about a constitutional right to go fishin’, but we do know what he said about the nation’s misguided rush to constitutionally ban liquor:

“Why don’t they pass a constitutional amendment preventing anybody from learning anything?” he asked. “If it works as well as Prohibition did, in five years Americans would be the smartest race of people on earth.”

Proposed amendment

If approved by the legislature and by Hoosiers in a referendum, this language would be added to the Indiana constitution:
“The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.”
Tracy Warner, editorial page editor, has worked at The Journal Gazette since 1981. He can be reached at 461-8113 or by email,

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