Indiana’s Proposed “Right to Hunt” Amendment
Somewhere near the end of your November 2016 general election ballot there will appear a proposed Amendment to Article 1 of the Indiana Constitution, which is the Hoosier “Bill of Rights.” Article 16, § 1 of the Indiana Constitution sets out the procedure for Amendments. An Amendment must be: approved by both houses of the General Assembly; approved by both houses a second time after an intervening general election; and then put to a vote by the “electors” for ratification.
The process of amending the Indiana Constitution is cumbersome and subject to an intentionally slow pace. Any proposed Amendment to the Indiana Constitution should be thoroughly considered, debated, edited and otherwise put into perfect form prior to its first approval in the General Assembly.
The proposed Amendment would establish at Article 1, § 39 of the Indiana Constitution what has been called a “right to hunt.” Here is the text in its entirety:
ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS:
Section 39. (a) The right to hunt, fish, and harvest wildlife:
(1) is a valued part of Indiana’s heritage; and
(2) shall be forever preserved for the public good.
(b) The people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:
(1) promote wildlife conservation and management; and
(2) preserve the future of hunting and fishing.
(c) Hunting and fishing shall be a preferred means of managing and controlling wildlife.
(d) This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
As one can see, the proposed Amendment would add to the Indiana Constitution a right to “hunt, fish, and harvest wildlife,” by “traditional” methods, subject only to laws prescribed by the General Assembly and rules made pursuant to authority of the General Assembly.
The procedure for amending the Indiana Constitution is (thankfully) much more democratic than the Article V procedure for amending the United States Constitution. For an Indiana Amendment, we Hoosiers get to vote. We can approve or reject the actions of the General Assembly. Concurrent with the right to vote is the responsibility to do so in an intelligent manner. I say to Hoosiers that you have the duty to vote down a proposed Amendment that is defective (a) because it contains a bad idea, or (b) because its text is so vague or otherwise deceptive that its meaning cannot be readily discerned. Does your vote make a difference? Yes, it does. When we consider all the Hoosiers not registered to vote, those registered to vote but staying home on election day, and those voting but skipping the end-of-the-ballot plebiscite, there are relatively few votes for or against proposed Amendments to the Indiana Constitution.
So let’s look critically at the proposed Amendment under the clarity criterion. Would the Amendment prohibit local regulation of hunting, fishing, and harvesting of wildlife on the county or municipal level? I believe that local regulation would be prohibited such that there would be no “home rule” options available to local governmental units.
What do they mean by “harvesting” anyway? The bare fact that I have to speculate means that the proposed Amendment is defective. My speculation is that the author used “harvesting” as a convenient euphemism for “trapping.” A steel jaw “leg hold” trap, for instance, has been known to prompt furry wildlife to chew off a limb. Wildlife caught in such a trap may be consumed by natural predators before the trapper returns to “harvest” his pelts.
While I generally support the activities of (regulated) fishing and hunting, I cannot support a state-wide right to trap that preempts local bans or local regulation. Many of you might go a step further and support a state-wide ban on fur-trapping.
Whether the proposed “right to hunt” Amendment is viewed as being wrong in substance or wrong by its lack of clarity, the document is garbage that is unworthy of inclusion in the Indiana Constitution. To obscure the controversial topic of trapping, the author turned to language of deception.
What about “canned” hunting? You may have noticed news accounts in the past couple of years about captive deer on fenced land and “hunters” who pay to shoot them. Does the proposed Amendment address this relevant issue? Not in any obvious way. “Canned” hunting could be protected by the proposed Amendment if deemed to be a “traditional method.” In Europe deer parks have at least a few centuries of history. From here it looks like the issue of “canned” hunting under a “right to hunt” Amendment would be consigned to the Courts. Accordingly, this inherent vagueness in the proposed Amendment is one more defect in the document.
My Digression
On the topic of Constitutional Amendments I am reminded of the controversial, doomed “Equal Rights Amendment” of the 1970’s. Here is the entire text of that proposed Amendment:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
I found myself having several reservations about the ERA, including redundancy, uncertainty, and an infamous change of rules for ratification. I was also annoyed by the starry-eyed devotion and earnestness of many ERA supporters who were happy to revere its text and unwilling to examine that text critically. I say to them that they are welcome to build a monument to gender equality (preferably on your own land and with your own money) but that my Constitution is no place for bad (albeit inspirational) legal writing.
To be fair I should mention that the ERA was authored in 1923. The faults in the document were less obvious in 1923 than they were in the 1970’s. For instance, there was the intervening 1964 Civil Rights Act with its familiar Title VII and its broad prohibition of discrimination based on one’s sex. Following 1964 the 1923 text of the proposed ERA could be described as somewhat redundant, even without consideration of Fourteenth Amendment Equal Protection (adopted circa 1868) providing in relevant part:
Section 1. “…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.”
By the time the ERA was making the rounds through state legislatures in the 1970’s, it was clear to any rational student of the law that the Fourteenth Amendment Equal Protection Clause applied to bar de jure discrimination based on sex.1
The apparent redundancy of the ERA was less of a problem to me than the central vagueness. I should explain my meaning. In 1923 there was no concept of “affirmative action” (a/k/a reverse discrimination) to atone for prior de jure discrimination against currently protected groups. I assure you that there is no reference in the U.S. Constitution to “affirmative action,” yet that practice has been imposed (for good or ill) by the “least democratic” branch of government (the Judiciary) pursuant to claimed Constitutional authority. So (naturally) I wondered whether the proposed ERA would: (a) authorize affirmative action; (b) prohibit affirmative action; or (c) leave the issue to the courts.
It seemed to me that the role (if any) of affirmative action under the ERA would be thrust upon an ill-prepared Judiciary. The Constitution and Courts do not need another “problem child” such as the ERA would have been if ratified. While I concede the nobility of the language of Section 1 of the ERA and while I agree without reservation with the principle of gender equality, the ERA was defective for its uncertainty and, consequently, unworthy of my U.S. Constitution.
In Conclusion
We Hoosiers are privileged to have an opportunity to vote on proposed Amendments to the Indiana Constitution. The value of the right to vote is diminished when the meaning of a proposed Amendment is not discernible from a simple reading of its text. The remedy for Hoosiers considering a vague, deceptive, or otherwise defective proposed Amendment is to vote it down.
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¹See, for instance, the SCOTUS majority opinion in Frontiero v. Richardson, 93 S.Ct. 1764, 411 U.S. 677 (1973) holding that classifications based upon sex were inherently suspect and subject to the same judicial scrutiny applicable to classifications based on race, alienage, and national origin.
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