Indiana Constitution Protects Long-Established Unenumerated Rights, Including Personal and Economic Rights

So the Indiana Supreme Court held yesterday, though it concluded that, as to abortion, this is limited to situations where the abortion is necessary to protect the woman's life or health.

Article 1, Section 1 of the Indiana Constitution (the first section of the Indiana Bill of Rights) provides,

WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

Members of the Medical Licensing Board of Indiana v. Planned Parenthood, decided Friday by the Indiana Supreme Court, in an opinion by Justice Derek Molter, joined by Chief Justice Loretta Rush and Justice Mark Massa, concludes that this is a judicially enforceable provision that protects long-established unenumerated rights:

Interpreting Article 1, Section 1 requires us to uncover "the common understanding of both those who framed" our Constitution "and those who ratified it." … The first state constitutional document to include [the guarantees listed in Article 1, Section 1] was the Virginia Declaration of Rights in 1776, which was the first bill of rights adopted through a popularly elected convention. Steven G. Calabresi & Sofía M. Vickery, On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights Guarantees, 93 Tex. L. Rev. 1299 (2015). A month after Virginia adopted its Declaration of Rights, Pennsylvania adopted a similar provision in its constitution. Around the same time, Thomas Jefferson used the Virginia provision as a model for expressing these same ideas in the Declaration of Independence.

These provisions, known as "Lockean Natural Rights Guarantees," quickly became standard in state constitutions, and they are generally understood as constitutionalizing the social contract theory of the English political philosopher John Locke. Locke believed that before forming a civil society we were in a state of nature where we all had equal freedom to do as we pleased so long as we did not "take away or impair the life, or what tends to the preservation of life, the liberty, health, limb, or goods of another." That freedom included natural rights: "every [person] has a property in [their] own person," the "labour of [their] body," and "the work of [their] hands." But we left the state of nature and entered a civil society, giving up some of our natural rights in exchange for better protection of the remaining natural rights and for the enjoyment of new positive rights (e.g., the right to a jury trial). See generally Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, 5 N.Y.U. J.L. & Liberty 1 (2010).

The only reason for giving up some natural rights is to better secure the remainder, so citizens do not relinquish natural rights beyond what is reasonably necessary to secure the natural rights of the broader community. For that reason, civil laws can "be directed to no other end but the peace, safety, and public good of the people," or what we call the "police power." As George Mason, the author of the first Lockean Natural Rights Guarantee, explained:

To protect the weaker from the injuries and insults of the stronger were societies first formed; when men entered into compacts to give up some of their natural rights, that by union and mutual assistance they might secure the rest; but they gave up no more than the nature of the thing required. Every society, all government, and every kind of civil compact therefore, is or ought to be, calculated for the general good and safety of the community. Every power, every authority vested in particular men is, or ought to be, ultimately directed to this sole end; and whenever any power or authority whatever extends further, or is of longer duration than is in its nature necessary for these purposes, it may be called government, but it is in fact oppression.

Article 1, Section 1 implements this theory for our State, and it protects Hoosiers' rights in at least two key respects.

First, it guarantees certain fundamental rights … [including] unenumerated rights under the umbrella of "life, liberty, and the pursuit of happiness." … Those rights protect any interest "of such a quality that the founding generation would have considered it fundamental or 'natural'"—in other words, beyond the reach of government. It is impossible to catalogue Section 1's implicit fundamental rights, but a few examples include having and raising children, pursuing a vocation that does not harm others, and patient self-determination [citing precedents].

Of course, the precise contours of all rights, including unenumerated rights, must be established through individual cases in which each right is described with the appropriate level of particularity to consider whether the founding generation would have considered the right fundamental. And "[a]s a matter of state constitutional law, Indiana courts have used a number of different standards of review, depending upon the particular constitutional right alleged to be infringed and the magnitude of it."

Second, Article 1, Section 1 limits governmental authority to the police power. Unlike the Federal Constitution, our Indiana Constitution does not "establish a system of expressly enumerated powers." Instead, "power is generally vested in the legislature, and the outer boundary of that general power is marked by the requirement that it be exercised to advance 'peace, safety, and well-being.'"

When evaluating whether state action is an appropriate exercise of the police power, we "confine [ourselves] to the question, not of legislative policy, but of legislative power." To fall within the police power, a "law must not be arbitrary, unreasonable or patently beyond the necessities of the case." "If the law prohibits that which is harmless in itself, or if it is unreasonable and purely arbitrary, or requires that to be done which does not tend to promote" the police power, "it is an unauthorized exercise of power."

So, for example, we have held the General Assembly cannot prohibit people from advertising their lawful business [citing a case that was decided before the U.S. Supreme Court concluded that the Free Speech Clause generally protects advertising -EV], or require insurance agents to work on commission rather than salary, because those restrictions were not rationally related to protecting the public's peace, safety, and well-being. In contrast, the General Assembly may impose professional licensure requirements when they are rationally related to protecting consumers even though such laws may limit someone's ability to profit off their labor.

There is symmetry here. While the State worries judicial enforcement of unenumerated rights may overreach, most of the State's police powers are unenumerated too, so there should be equal concern that the State might view its own powers too generously. After all, our Constitution's language in delegating authority to the State for promoting the "peace, safety, and well-being" of Hoosiers is no less capacious than its language guaranteeing Hoosiers' rights to "life, liberty, and the pursuit of happiness." So, Article 1, Section 1 strikes a balance: it allows the State broad authority to promote the peace, safety, and well-being of Hoosiers, but that authority goes no farther than reasonably necessary to advance the police power, and not at the expense of alienating what Hoosiers have commonly understood to be certain fundamental rights….

The State …. worries that reading Section 1 as judicially enforceable will "wreak havoc on the constitutional structure" because it "would permit litigants to circumvent the framers' deliberate choices about which rights to include in Article 1 and how to frame them," allowing litigants to evade the limits of other provisions in the Bill of Rights by simply invoking Section 1's "capacious reference to 'life, liberty, and the pursuit of happiness.'"But the State has things backwards.

The more particular guarantees of liberty throughout the Bill of Rights "are but concrete manifestations" of Article 1's more general limiting principle that state power is limited to the police power and that Hoosiers have retained certain fundamental rights. Contrary to the State's framing, the "Indiana Constitution does not grant government an absolute, limitless state power and then withdraw discrete portions of it by specific excision." So the structure and purpose of our Constitution bolster our conclusion that Article 1, Section 1 is judicially enforceable….

More on the abortion question in a separate post.