“In that remote and despotic period, when the sovereign king chartered rights and liberties to his subjects – the people – all governmental powers were assumed to be his by divine right. In him were combined the legislative, executive and judicial powers of government. He was the lawgiver, interpreter and enforcer. When the powers were executed by agents, the agents were his, and responsible to him alone. On this continent we came to the time when the people, by revolution, took to themselves sovereignty, and in exercising supreme political power chartered governments by written constitutions. These organic instruments declared and guaranteed the rights and liberties of the individual, which had come to the people through centuries of struggle against absolutism in government. The majority was to rule, but under restraints and limitations which preserved to the minority its rights. ‘By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.’ Cooley, Const. Lim. (7th ed.) 56.”
Ellingham v. Dye, 178 Ind. 336, 342; 99 N.E. 1, 3 (1912).
When I was in law school more than 25 years ago, I ran across the 1912 decision of the Indiana Supreme Court quoted above. It fascinated me because, at least as I understood the context, it decided a question that brought Indiana to the brink of a constitutional crisis. The case involves an attempt by the Indiana Governor and the General Assembly to amend the Indiana Constitution without complying with the procedures prescribed by the Constitution itself. At the time I thought I might return to the case some day and write an article about it, maybe for a law review, but I never got around to it.
I was pleased to learn that someone else did. A few years ago, Ryan Schwier, then a law student at the Indiana University Robert H. McKinney School of Law and now a law clerk at the Indiana Supreme Court, wrote a case note on the Ellingham decision entitled The “Marshall Constitution” and the Jurisprudence of Article 16. An updated version of the note is now posted on The Indiana Legal Archive, a website maintained by Mr. Schwier. I recommend the full case note to anyone interested in Indiana history, particularly Indiana legal history. It provides more detail, color, and analysis than you’ll find in this short discussion.
In addition, the story surrounding the Ellingham decision was recounted by David J. Bennett in his book, He Almost Changed the World: The Life and Times of Thomas Riley Marshall.
The Indiana Constitution of 1816
Indiana has had two constitutions. The first was adopted in 1816 prior to Indiana’s admission to the Union. During the first few decades of its existence, Indiana experienced significant growing pains that many believed called for amending the Constitution, but the amendment procedures were cumbersome and difficult to implement. After several failed attempts, a constitutional convention was convened in 1850.
The Indiana Constitution of 1851 and Jacksonian Democracy
The Constitutional Convention of 1850 proposed a new Constitution that was approved by the voters in 1851. When I was in law school, my state constitutional law professor, Indiana Supreme Court Justice Jon Krahulik, occasionally remarked that the Indiana Constitution of 1851 is rooted in Jacksonian Democracy, the dominant American political philosophy during the years beginning with Jackson’s election in 1828 and extending through the years preceding the Civil War.
Jackson’s Democratic Party, which arose from a split of the former Democratic-Republican Party, espoused greater rights for individuals, including the expansion of voting rights to all white males, rather than being limited to property owners. Jacksonians were generally laissez-faire capitalists and strict constructionists who favored a limited role for the federal government. The Jacksonian Era saw a flourishing of the patronage system in which political supporters of elected officials were rewarded with appointed positions; today it might be called cronyism. Jacksonians argued that patronage encouraged political participation by ordinary citizens and reduced the corruption that, they maintained, grew out of long term civil service. In practice, patronage probably enabled more corruption than it discouraged.
The primary opposition to the Jacksonian Democrats came from the Whig Party, which evolved from the other faction of the old Democratic-Republican Party. By the time the Indiana Constitutional Convention was convened in 1850, the Democrats were the dominant party, both in the country and in Indiana. Of the 150 delegates to the Convention, the 95 Democrats outnumbered the Whigs (who had opposed the Convention to begin with) by almost 2 to 1, consistent with Justice Krahulik’s characterization of the Constitution of 1851 as deeply rooted in Jacksonian Democracy.
The Progressive Era
Fast-forward to 1911, the year of the events that led to Ellingham decision. The United States was well into the Progressive Era, the period from the 1890s through the 1920s marked by rapid change in American society, vigorous social activism, and aggressive political reform. Although there were Progressives in both the Democratic and Republican Parties, they had less influence in the latter, with Theodore Roosevelt, the best known Republican Progressive, losing to the more conservative William Howard Taft in a bid for the party’s 1912 Presidential nomination.
In many ways the Progressive movement was a repudiation of Jacksonian Democracy. U.S. Supreme Court Justices such as Oliver Wendell Holmes, Jr. and Louis Brandeis rejected strict constructionism and propounded the view that the U.S. Constitution is a living document. Where Jacksonians supported a limited role for the federal government, Progressives saw a more expansive role. Where Jacksonians were laissez-faire capitalists, the Progressives believed in more active regulation of businesses. Perhaps most importantly, Progressives fought to eliminate political machines, to fight corruption in politics, government, and business, and to dismantle patronage systems favored by the Jacksonians.
Even so, Progressives had some things in common with Jacksonians, particularly their populism. Despite that, and despite the focus on political and social reform, the Progressive movement did little to improve race relations or the lives of African Americans. Indeed, the Progressive Era saw the proliferation of Jim Crow laws and the rise of support for eugenics. Overall, however, the Progressive Era was very different from the Jacksonian Era, and the Democrats of 1911 were very different from Jacksonian Democrats.
The Progressive Era did not pass Indiana by. In November 1908, Democrat Thomas Marshall was elected governor. Governor Marshall later served as Vice President to Woodrow Wilson, probably the Democrat most commonly identified with the Progressive movement. In November 1910, the Democrats took control of both houses of the General Assembly for the first time in almost two decades.
The Marshall Constitution
Governor Marshall did not wait long after the 1910 election to stir the political pot. He believed the Indiana Constitution, which had been amended only once in sixty years, required extensive revisions. Many of the changes he desired — including authorization of a workers’ compensation law, a prohibition on increasing the salaries of public officials during their terms, authorization of laws for initiative and referendum, and recall of public officials other than judges — were consistent with the ideals of the Progressive movement. Others were more mechanical in nature, designed to fix provisions that simply did not work well. He also wanted tighter restrictions on voter eligibility, including a poll tax, that most people today would consider very unprogressive. The governor was determined to amend the Constitution and to do it quickly.
Marshall, however, had a problem. Like the procedures for amending the 1816 Constitution, the procedures for amending the Constitution of 1851, set out in Article 16, were slow and cumbersome. Amending the Constitution through Article 16 would take years, and the Constitution did not provide a method for convening a constitutional convention. Even if it had provided a method, Marshall feared that a constitutional convention would open the door to proponents of all sorts of special interests, such as prohibitionists.
Marshall thought he saw a solution in Article 1, Section 1 of the Constitution.
We declare that all men are created equal; that they are endowed by their Creator with certain unalienable 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.
If the people have “an indefeasible right to alter and reform their government,” could they adopt a new constitution without complying with the time-consuming procedures of Article 16? Marshall thought so. But how?
That part of the solution, Marshall believed, lay in Article 4, Section 1, providing that “the legislative authority of the State shall be vested in the General Assembly.” Although Article 16 prescribed the procedure for amendments, the Constitution was silent about replacing it with an entirely new one. Did the General Assembly’s legislative authority include the power to draft a proposed new constitution to be approved or rejected by the voters?
Again, Marshall thought so, and the Democrats devised a plan that was set into motion only three months after the 1910 election with the introduction of Senate Bill 407, drafted by the joint Democratic caucuses of the House and Senate. The bill set forth the entire text of a new constitution (albeit one that retained much of the language of the Constitution of 1851) and required that it be submitted to the voters in the next general election to be held in November 1912. Republicans in the General Assembly were outraged, calling the action “makeshift and subterfuge,” a “usurpation of power bordering on anarchy,” “contrary to precedents and usage,” “unAmerican,” undemocratic” and “revolutionary.” One Republican senator introduced a bill appointing Marshall as a committee of one with the power not only to adopt a new constitution but also to
. . . revise the Lord’s prayer, amend the Declaration of Independence, repeal the Mosaic Law, bring the Thirty-Nine Articles of Faith down to date, abridge the Sermon on the Mount, and do all other things as will appear in his infinite wisdom and supreme interest in the welfare of the people, to be fitting and proper.
Nonetheless, both the Senate and the House passed the bill, and the Governor signed it on March 4, 1911, less than three weeks after the plan was announced. The proposed new constitution became known as the Marshall Constitution.
John T. Dye, an Indianapolis attorney and former president of the Indiana State Bar Association, filed a lawsuit in Marion County Circuit Court on his own behalf as an Indiana citizen, voter, and taxpayer, and on behalf of all other Indiana citizens, voters, and taxpayers, seeking an injunction prohibiting the submission of the proposed new constitution to the voters. The defendants were the Indiana Secretary of State Lew Ellingham and the state board of election commissioners who would have responsibility for placing the approval of the new constitution on the ballot in the general election. The court, with a Democratic judge on the bench, held a hearing and heard arguments (which, according to the Ellingham decision, were “memorable in the legal annals of the state”) and enjoined the Secretary of State and the board of election commissioners from placing approval of the Marshall Constitution on the ballot.
The Indiana Supreme Court Decision
The Indiana Supreme Court affirmed the decision of the Circuit Court in a 3-2 decision. Chief Judge Charles Cox, the only Democrat on the Court voting to affirm, wrote the majority opinion. The plaintiffs posited a plethora of legal theories supporting their position that the General Assembly’s act was invalid, but the Supreme Court addressed only one of them, that the General Assembly had no authority to pass Senate Bill 407. If Senate Bill 407 were deemed to be an amendment to the Constitution, the decision to invalidate would be easy because it did not comply with Article 16. The more difficult question was whether the General Assembly’s legislative authority under Article 4, Section 1 included the power to propose a new constitution. The Supreme Court held that it did not.
In a lengthy analysis of Indiana history, the proceedings of the Constitutional Convention of 1850, precedent from other jurisdictions, and writings of recognized legal experts, the Court drew a distinction between legislative authority to pass laws and the authority to make or modify fundamental law, i.e., a constitution. In short, the Court held that the grant of the “legislative authority of the State” set forth in Article 4, Section 1 did not include the authority to propose a new constitution. The only authority the General Assembly had to make or modify fundamental law lay in Article 16, and there was not even a pretense of complying with its requirements.
For their part, the defendants argued, among other things, that the Court did not have jurisdiction to decide the validity of a new constitution, which was a closer question than it might first appear. The Court’s authority to review the validity of legislation was well established and thoroughly discussed in the Court’s opinion, but that did not answer the question because Court itself held that proposing a new constitution was not legislation. Instead, it was an attempt to create fundamental law. Acknowledging the existence of some conflicting authority, the Court held that the weight of the precedent supported the Court’s broad, inherent authority to decide the validity of not only legislation but also fundamental law.
The defendants also asserted that the Court had no authority to enjoin the state board of election commissioners because the Governor was a member of that board, and state courts have no injunction authority to compel or to prohibit a governor to do anything. The Supreme Court dispensed with that argument on the basis that the Governor’s membership on the board was not part of his Constitutional responsibilities or obligations, but rather created by statute. In essence, when acting in that role, he was like any other member of an administrative board with delegated ministerial duties.
Thus the Supreme Court held that it did, indeed, have the authority to decide whether Senate Bill 407 was constitutional and to prohibit the Secretary of State and board of election commissioners from submitting the Marshall Constitution to the voters.
Constitutional Crisis Averted
I suppose almost any action by a court enjoining an action by another branch of government poses a possibility for a constitutional crisis. If nothing else, the court’s authority would be undermined, not only for the present but also for the future, if the court’s order were ignored.
Consider President Jackson’s response to the United Supreme Court decision in Worcester v. Georgia, 31 U.S. 515 (1832). Samuel Worcester was convicted under a Georgia statute that prohibited non-Indians from being present on Indian lands without a license. The Supreme Court, with Chief Justice John Marshall writing the opinion of the Court, held that the Georgia statute was unconstitutional because it violated the sovereignty of Indian tribes, which the Court recognized for the first time. Jackson is attributed with saying, “John Marshall has made his decision, now let him enforce it!” Whether Jackson actually said that, it is probably an accurate reflection of his views. Although Jackson later carried out acts that trampled on the sovereignty of Indian tribes, the risk of a constitutional crisis posed by Worcester was limited because nothing in the case prohibited or mandated the President, or any part of the federal government, to do anything. The only action ordered was the release of Worcester by the state of Georgia, which eventually happened.
There are more recent examples of public officials refusing to comply with court orders that fell short of triggering full-blown constitutional crises. Those that come to mind include the Arkansas governor’s attempt to block court-ordered school desegregation; the Alabama Supreme Court chief justice’s violation of a federal court order to remove from state grounds a monument to the Ten Commandments; and the conflict between the Pennsylvania legislature and the Pennsylvania Supreme Court over the remapping of Congressional districts.
It strikes me, however, that the decision in Ellingham posed more than the usual risk associated with a court’s invalidation of a legislative act or an injunction constraining a body of the executive branch. Governor Marshall disagreed bitterly with the decision. He thought the dissenters got it right. According to Bennett, Marshall later said, “I think no fair-minded man, now unmoved by the excitement of these times, will dare dispute the logic and the law of the minority opinion. . . . [M]y contention was, is now and ever shall be that there was never a more flagrant interference on the part of the judicial with the rights, privileges and duties of the legislature and executive branches of government than is contained in the majority opinion of the Supreme Court of the State of Indiana. . . . I had no respect for [the decision] and now have a supreme contempt for it.”
Others agreed with Marshall and urged him to ignore the decision. Instead, he sought review by the U.S. Supreme Court. When that Court declined to hear the case, Governor Marshall complied with the decision of the Indiana Supreme Court.
What might have happened if Marshall had listened to those who wanted him to ignore the opinion, if the Secretary of State and the board of election commissioners had thumbed their noses at the Marion Circuit Court and the Indiana Supreme Court by placing the Marshall Constitution on the ballot, and it had been approved by the voters? Would the courts or anyone else have accepted the Marshall Constitution as valid? After all, the Indiana Supreme Court held only that the General Assembly had no power to propose a new constitution and require it to be submitted to the voters. The Court did not question the proposition that the people had the power to approve a new constitution under their “indefeasible right to alter or reform their government” described by Article 1, Section 1. Indeed, the Ellingham decision acknowledged that the people had that right even if the Constitution did expressly reserve it to them. Moreover, the Constitution neither prescribed nor proscribed any particular method by which the people may act. But would the Indiana Supreme Court have recognized the voters’ approval of a new constitution if it had been secured by means of a violation of both the Marion Circuit Court order and its own decision?
Although the Ellingham decision had the potential to trigger a state constitutional crisis, it did not. In my view, the reason lies in Governor Marshall’s respect for the judiciary, particularly the Indiana Supreme Court. As Mr. Schwier wrote in his case note, Governor Marshall, despite his harsh view of the decision itself, responded to it by saying:
I have no right to discuss or criticize an action of the Indiana Supreme Court. That body is part of the state government, and it is not incumbent upon me to criticize its actions.
According to Bennett, Marshall later explained his thinking:
I did not feel that I could afford to show any disrespect to the majority of the Supreme Court of the State of Indiana, or to lessen the respect in which I was teaching the people to hold the court’s opinions, by myself openly flaunting one of its opinions. And so I obeyed the judgment of the court.
That respect for the Court’s authority, I believe, is what kept the Indiana government from coming apart at the seams.
 Even so, Jacksonians did not embrace a broad view of states’ rights. A seminal event of Jackson’s Presidency was the Nullification Crisis in which South Carolina threatened to secede in opposition to a federal tariff. Jackson famously told a South Carolinian visiting the White House, “Please give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.” Coming from Old Hickory, that may not have been hyperbole.
 The 1912 platform of the Progressive Party (also known as the Bull Moose Party), the party that nominated Theodore Roosevelt for President after he lost the Republican nomination, offers a good sense of Progressive positions on the issues of the day.