You Have Got to (Cluck) Be Kidding Me

As I think I’ve previously said on an occasion or twelve, constitutions (whether that of the United States or the State of Indiana) are important documents. They represent the basic framework under which our government works and provide a broad description of rights retained by citizens. Constitutions are for the “big stuff” and aren’t the place to deal with the mundane.

Now, if you thought that this post was going to be about my opposition to the proposed amendment to Indiana’s Constitution to prohibit same-sex marriage (and take away the right of a future General Assembly to redefine marriage or create civil unions) then you’ll have to wait for another day (or go read this post or this post or any of these posts). Rather, I want to look at one of the dumbest proposed constitutional amendments that I’ve ever seen:

The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, or poultry, which is a valued part of our heritage and shall be forever preserved for the public good, subject to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly.

That is the text of Indiana Senate Joint Resolution 9, sponsored by Indiana state Senators Brent Steele (R-Southern Indiana) and Jim Banks (R-Northeast Indiana). If adopted, this provision would be enshrined in Indiana’s Bill of Rights.

There are so many problems with this proposed amendment that it’s hard to pick a good place to start.

First, is this really the sort of provision that needs to be added to our Constitution? And, just in case you’re not sure, here are the titles of all of the other provisions in Indiana’s Bill of Rights:

Inherent rights · Right to worship · Freedom of religious opinions · Freedom of religion · No religious test for office · No state money for religious institutions · Religion no bar to competency of witnesses · Mode of oath administration · Freedom of thought and speech · Libal, truth as defense [sic] · Search and seizure · Openess of the courts, Speedy trial [sic] · Rights of accused, Rights of victims · Double jeopardy and self-incrimination · Rights of persons arrested · Excessive bail or fines, Cruel and unusual punishment · Bailable offenses · Penal code and reformation · Criminal cases—Jury determination · Civil cases--Right of trial by jury · Compensation for services and property · Debts—Imprisonment exemption · Equal privileges and immunities · Ex post facto laws · Laws—Taking effect · Suspension of laws · Habeas corpus · Treason defined · Treason, proof · Effect of conviction · Right of assemblage and petition · Arms—Right to bear · Military · Quartering of soldiers · Titles of nobility · Freedom of emigration · Slavery—prohibition

If you’re curious about any of those rights, I encourage you to take a few minutes to read them (I bet very few Hoosiers have ever actually read even a small part of Indiana’s Constitution).

But anyway, does the right to “hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, or poultry” belong in that list. How does it compare to things like the right to worship, freedom of religion, search and seizure, double jeopardy, right of trial by jury, and slavery? Think about how our Bill of Rights would read: “… Section 36. Freedom of emigration. Section 37. Slavery—prohibition. Section 38. Freedom to hunt and raise poultry.” Wow, what a modern state we must be!

And, though I said above that this was not a post about the proposed Marriage Discrimination Amendment, consider for a moment that Republican lawmakers seem to think that the definition of marriage and efforts to prohibit same-sex marriage are, effectively on par with the right to raise poultry. I’m not sure if that tells us that banning same-sex marriage really isn’t that important, that hunting and fishing are way too important for some, or that some (most?) of our lawmakers simply don’t understand what the Constitution is and isn’t.

Think of some of the other “rights” that we all know that we have but that aren’t in the Constitution: the right to procreate, the right to name our children as we choose (not true in some European countries…), the right to marry who we want (within limits … sorry … couldn’t resist). I could go on and on. There are plenty of things that we can do that we haven’t bothered to put into our Constitution. Why is hunting, fishing, and the production of poultry so important? There are also many things that are important parts of our heritage that aren’t enshrined in our Constitution. Where is the right to play basketball?

And as I read the proposed amendment, it talks about the “agricultural or commercial production of meat, fish, or poultry”. What about the agricultural or commercial production of corn, soybeans, or whatever other agricultural products Hoosiers might want to grow? Why is the agricultural or commercial production of animals protected in the Constitution, but the agricultural or commercial production of crops not protected? Are animals more important to Hoosier heritage and the public good than crops? And while I presume that pork (“the other white meat”) is included in the definition of “meat”, I also note that the edible portion of a fruit or nut is also called “meat” — so, it would appear that the proposed amendment is only biased against vegetables (and I can’t remember: Is a tomato or fruit or vegetable?).

Moreover, it seems to me that the very language of the proposed amendment demonstrates that it is, in fact, worthless. After all, the rights of the people set forth in the proposed amendment would be “subject to laws prescribed by the General Assembly”. Well, does that mean that the General Assembly could ban hunting? Could the state ban pen hunting (“hunting” animals caged in a  pen)? Can the State require a hunting or fishing license? If so, how does that relate back to the very concept of hunting as a right of the people? I mean, if it’s a constitutional right, how can I not be eligible for a fishing license? If it is a right, how can the General Assembly pass laws that take that right away (or restrict it beyond a “reasonable time, place, and manner” — a phrase often used when discussing limitations upon constitutional rights)? And what of limitations on any of these rights already enshrined in Indiana’s laws? Are they void unless re-adopted in accordance with this new provision of the Constitution?

What about laws regulating farming or livestock production? Could the State prohibit the use of bovine growth hormone? Could the state even set standards for “organic” without running afoul of someone’s constitutional right to produce meat, fish, or poultry? Could the State ban certain types of meat, fish, or poultry because, for example, they are harmful to indigenous species or just harmful, in general? What if I want to produce lions, tigers, and bears? Oh, my!

Plus, think of the havoc on local zoning ordinances or covenants affecting many neighborhoods. Most zoning ordinances limit or restrict agricultural activities in certain areas. Would those ordinances now run a-fowl (sorry, couldn’t help it…) of the Constitution? Would the provision in a neighborhood covenant prohibiting homeowners from keeping livestock be void? Can you imagine your neighborhood after one neighbor decided to do some squirrel hunting in his backyard and another decided to raise poultry?

I’m also curious about the meaning of the phrase “shall be forever preserved for the public good”. What does that even mean? Does it mean that the right is a public good or does it mean that hunting, fishing, and production of poultry is a public good? And how are we supposed to preserve either of those things for the public good? If someone doesn’t want to fish or hunt or have livestock, must we require them to do so? What would happen if the last poultry farm in Indiana wanted to close? Would we have to have a state-owned poultry farm? And by “public good” do we mean that the product of the agricultural production of meat, fish, or poultry (as opposed to the commercial production of meat, fish, or poultry) is a resource belonging to the State and its citizens?

Sen. Vi Simpson (D-Bloomington) sought to have the phrase “or gardening” added to the proposed amendment. I suspect that her interest was less in protecting gardening and more in showing how truly silly this proposed amendment really is. Her proposal failed. In any event, 6 Republicans and 2 Democrats voted to pass the proposed amendment to the Indiana Constitution and send it to the full Senate for a hearing (1 Democrat and 1 Republican did not vote).

Hey, I’ll acknowledge that I’ve gotten a bit slap-happy as I’ve written this post. I have a hard time taking it seriously. But I’m not laughing at the notion of adding something like this to our Constitution. That is not a laughing matter. I believe that our Constitution should be a place to enshrine rights of Hoosiers. But let’s not clutter it up with things like this proposal; let’s save amendment to the Constitution to the “big stuff” — like, say, recognizing same-sex marriage…

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Update February 5, 2013: Just correcting some annoying typos. Also, please note that I wrote the foregoing before the following was added to the bill:

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.

Finally, please note that the Indiana General Assembly did pass this proposed constitutional amendment in 2011.