Guest Essayist: The Honorable Randall T. Shepard

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Formation of today’s traditional Midwest took root in the years after the Treaty of Paris ended the conflict known to Europeans as the Seven Years War, known in America as the French and Indiana War.  Signed in 1763, this resolution gave the British nominal control over the land from the Atlantic to the Mississippi.

During the Revolution, Indiana was the site of a battle for Fort Sackville, at Vincennes.  As American forces took the fort, they turned toward an effort driving out the British out of places like Illinois and Michigan, the ultimate objective being  Detroit.

After the war, the much-maligned Continental Congress took important steps in organizing these areas.  They adopted the Northwest Ordinance of 1787, with the idea that Ohio, Indiana, Illinois, Wisconsin, and Michigan would eventually be divided into five states of the union.

From the time Ohio became a state in 1803, Indiana’s leaders were hard at work on achieving this end.  They soon scheduled a special census and petitioned for statehood in 1811, an initiative derailed largely by the turmoil of the War of 1812.  With a new census in hand, they petitioned again in 1815 and succeeded in becoming the nineteenth state in 1816.

By the time of statehood the capital had moved from Vincennes to Corydon, both of them towns in the southernmost part of the state.  It was a moment when almost all of the state’s population lived within a short horse ride of the Ohio River, then the nation’s superhighway for both commerce and migration.

The state’s leaders recognized that much future growth would occur in the north.  They settled on relocating the capital to the center of the state, and in 1820 they hired Alexander Ralston to lay out a plan for a new urban place.  Ralston had  assisted Pierre L’Enfant in designing a city plan for Washington in 1791. Hiring him was a sign of pioneer ambition to build a spirited society.

Over the succeeding decades, Indiana focused on three societal objectives.  The first was a shared aspiration to build the bones necessary for a vigorous economy.  The second was a determination to create an educational system that would provide young people with the foundation needed to thrive in that economy.  The third was the struggle against slavery.

Much of published history on infrastructure focuses on the extraordinary Internal Improvements Act of 1836, which led to extensive construction of canals, but the real action was in building roads.  Appropriations for road construction began as early as 1821, some of it financed by sale of federal land given the state for development purposes.  To accelerate the progress, the legislature decreed that every able-bodied man aged twenty-one to fifty must work on building roads and highways “or pay an equivalent therefor” in cash.  This command was structured like a progressive tax.  Persons who owned no real estate owed three days labor each year, people who owned less than eighty acres owed four days, and so on up to a maximum of ten days.

As for education, the constitution of 1816 contained a clause wholly unknown to the Constitution of the United States.  Indiana’s organic document declared that it was the duty of the legislature to create a system of education extending from township schools to a state university, open to all and tuition-free.

The legislature created township schools and took advantage of congressional land donations to finance them.  It created a manual labor obligation for building schools, just as it had for roads, and authorized local tax levies for education.  Institutions called county seminaries, conceived as secondary schools, covered half the counties by the time of the Civil War.  Following a territorial decision to create Vincennes University in 1806, the new state created Indiana University, which opened in 1825.  County libraries were authorized in the 1820’s, as was a state library.

Indiana had been declared a place free from slavery from its earliest days.  The Northwest Ordinance provided that Indiana should be free even as a territory.  The constitution of 1816 seemed to make this plain enough:  “There shall be neither slavery nor involuntary servitude in this state, otherwise than for the punishment of crimes….”   Notwithstanding the directness of these declarations, the executive and legislative branches periodically blew hot and cold on issues such as immigration and repatriation.  By contrast, the Indiana Supreme Court was almost always a place where antislavery forces prevailed.

Perhaps the most famous case in the court’s history involved an army general who asserted ownership of a young girl named Polly Strong by virtue of his having purchased Polly’s mother, legally, while Indiana was still part of Virginia.  The Supreme Court ruled for Polly Strong, saying: “The framers of our constitution intended a total and entire prohibition of slavery in this State; and we can conceive of no form of words in which that intention could have been more clearly expressed.”  The court took the same position a year later as respects involuntary servitude.  As straightforward as this seems to the modern mind, it did not always or everywhere go down easy.  Illinois courts did not put the last vestiges of slavery to the torch for another twenty-five years.

This attitude about slavery revealed itself in the state’s participation in the Civil War.  Indiana contributed more troops to the Union armies than any state but New York, and when part of a southern-sympathetic legislature refused to appropriate funds to the support the troops, Governor Oliver Morton undertook to borrow and spend millions in support of the cause by executive decree.

The anti-slavery rulings arising from the Indiana Constitution were an important part of the state’s constitutional history, but they hardly stood alone.

In 1854, for example, the state supreme court held that trial courts could appoint counsel for indigent criminal defendants, at state expense.  “It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid.  No Court could be respected, or respect itself, to sit and hear such a trial.”  This position was all the more remarkable inasmuch as the right to counsel in a federal criminal trial was not established until 1938.  And the U.S. Supreme Court decision compelling all states to provide indigent counsel, Gideon v. Wainwright, was not decided until 1963.

Indiana’s constitution was also held to require exclusion of illegally seized evidence in a criminal case.  The Indiana Supreme Court took this position in 1922, at a time when exclusion was widely unpopular in the national legal community.

Similar robust approaches have long been evident in other fields.  For example, in 1893, the Indiana court held that the constitution authorized admission of women to the bar, notwithstanding that it did not say so (which is what most other state high courts required before acting).  The court said:  “If nature has endowed woman with wisdom, if our colleges have given her an education, if her energy and diligence have lead her to a knowledge of the law, and if her ambition directs her to adopt the profession, shall it be said that forgotten fiction must bar the door against her?”

In the present moment, few would mistake Indiana for a “blue state” chock full of political progressives, but its history and its present illustrate long-standing commitment to fairness, equal treatment, and opportunity.

Randall T. Shepard of Evansville was appointed to the Indiana Supreme Court by Governor Robert D. Orr in 1985 at the age of 38. He became Chief Justice of Indiana in March 1987 and retired from the Court in March 2012, at which point he was the longest-serving Chief Justice in Indiana history and the senior Chief Justice in the country’s state supreme courts.

A seventh generation Hoosier, Shepard graduated from Princeton University cum laude and from the Yale Law School. He earned a Master of Laws degree in the judicial process from the University of Virginia.

Shepard was Judge of the Vanderburgh Superior Court from 1980 until his appointment. He earlier served as executive assistant to Mayor Russell Lloyd of Evansville and as special assistant to the Under Secretary of the U.S. Department of Transportation.

Chief Justice Shepard has served as chair of the ABA Appellate Judges Conference and of the Section of Legal Education and Admissions to the Bar and as President of the National Conference of Chief Justices. Chief Justice John Roberts recently appointed him to the U.S. Judicial Conference Advisory Committee on Civil Rules. He is a trustee emeritus of the National Trust for Historic Preservation and a former chair of Indiana Landmarks, Inc.

He teaches periodically at the law schools of Indiana, NYU, and Yale.

He is married and has one daughter.

Since leaving the Court, Shepard has served as a Senior Judge in the Indiana Court of Appeals and as Executive in Residence at I.U.’s Public Policy Institute. He now chairs the ABA Task Force on the Future of Legal Education and has become a director of Old National Bancorp.

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you Judge Shepard this essay. Wonderful example of a well thought out Constitution and Court decisions to match it. I can understand your pride in Indiana evident in the essay.

    PSD

    Reply

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