CAPSULE OUTLINE: INDIANA CON LAW
Framework for Interpreting
Use this any time the question calls for anything remotely related to state constitutional law and
interpretation.
1. Text first and foremost
2. History: forging the constitution in the context of Jacksonian common man democracy
3. Intent of the drafters (who apparently dug Jackson)
4. Precedent (caselaw and prior interpretation decisions)
5. If you can memorize them, the bar examiners seem to really enjoy seeing the following
sentences, as they almost always show up in examiner-written essay answers, though not
so often in student-written answers:
a. “Interpretation of the Indiana Constitution is controlled by the text itself,
illuminated by history and by the purpose and structure of our constitution and the
case law surrounding it.”
b. “Interpretation of the Indiana Constitution is a search for the common meaning of
those who framed the Constitution and those who ratified it.”
c. Marissa Bracke is really cool. (Yeah, I made that last one up. But it‟s my outline;
I can do that.)
Special Legislation
In Bar Exam World, Indiana likes to pass laws that specifically affect a certain county, or a
certain group of citizens, or localities that have a certain population that ends up affecting only
one major city or county. That‟s a Special Legislation issue.
1. Special legislation is prohibited in Indiana…
2. … BUT courts are very deferential to the legislature, and very few laws get struck down
because they‟re “special.”
3. TEST: Is the subject matter amenable to a general law of uniform application? In other
words, could the legislature have met their goal by passing a law that applied to
everyone/all places?
4. NOTE: A population-based classification will be upheld so long as there is some rational
basis behind it (and we know how easy rational bases are to find) and if other localities
can eventually qualify.
Germaneness
Despite the fact that I tend to write “Germanness,” as if there is some rule about how German
our state laws must be… this usually gets tested as a minor subissue, with only a sentence or two
being devoted to it in the essay answer.
1. Laws must deal with a single subject and matters connected to that subject
2. Courts are very deferential to the legislature though, and again use a reasonableness
standard when evaluating laws for germaneness
P&I Clause (Privileges & Immunity Clause
In Bar Exam World, laws are ALWAYS classifying people, whether it be male/female,
minor/adult, people who file suit while wearing blue suits/people who file while wearing black
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suits… In Bar Exam World, legislators love to classify, and they do it in about 90% of the laws
they pass. When they do, be sure you hit „em with your best P&I shot.
1. Court evaluates “whether any disparate treatment among classes of individuals under the
statute is reasonably related to inherent characteristics distinguishing the classes” and
then “whether any special privilege created under the statute is afforded and made
available to all persons similarly situated.”
2. In plain language: Is there a reasonable basis for the differing treatment given in the
statute? and Is everyone in the separated class getting the same treatment?
3. The Examiners seem to like it when you mention that the P&I Clause (Art. I Sec. 23)
correlates to the national Constitution‟s 14th Amendment Equal Protection Clause but
with a different analysis.
4. REMEMBER: Courts are VERY deferential to the legislature when evaluating the law!
Religion Clauses: Article I Sections 2-8
Watch for voucher programs, tax breaks for parents who send students to private schools, or tax
breaks for private schools themselves. Also watch for classification amongst religions which
could implicate both a Religion Clause answer and a P&I Clause answer.
NOTE: Freedom to worship, along with freedom of political speech, are “core values” and are
often tested. See “core values,” below.
1. Section 2: Right to worship according to the dictates of one‟s own conscience
2. Section 3: No law controlling free exercise & enjoyment of religious opinions or
interfering with rights of conscience
3. Section 4: No preference to any creed or religion, and no compelled attendance or
support of creed or religion
4. Section 5: No religious test required for an office of trust or profit
5. Section 6: No money from treasury for benefiting religious or theological institutions
6. Section 7: No rendering incompetent to witness based on religious opinions
7. Section 8: Manner of oath & affirmation (you don‟t have to say “so help me god” when
you get sworn in)
Core Values
Usually tested in the context of how much the state can regulate an area without getting into
constitutional trouble.
1. Worship and political speech are the two core values recognized in Indiana.
2. Legislature may not “materially burden” a core value
3. Political speech is popular comment on a public concern; speech directed at a political
actor or government action
4. Political speech may not be criminally punished unless it becomes a private nuisance
similar to what might be actionable under tort law.
5. “Time Manner Place” restrictions are a federal constitutional speech thing, not a state
thing, so don‟t get that mixed up. However, the time, manner and place stated in the
restriction on speech may be considered when determining whether political speech is
being materially burdened. Just remember that you‟re dealing with a different test and
TMP are merely factors, not the test itself.
Rights of Accused Persons
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Doesn‟t seem to be tested heavily on its own, but sometimes gets thrown into a sentence
supplementing some other subtopic.
1. public trial
2. proper venue
3. right to be heard
4. right to be present
5. right to confrontation
NOTE: The rights to be heard, be present, and to confrontation are broader than similar federal
rights have been interpreted to be. Thus far no question has asked for a detailed analysis on how
they differ, but noting that the state rights are construed more broadly gets tossed in from time to
time.
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