Why Indiana matters: Randy Barnett

When I was growing up just across the border from Hammond, Indiana, I never imagined that the fate of the U.S. and its Constitution would one day be in the hands of Indiana voters. Yet, tomorrow a relative handful of Hoosier Republicans can determine the future of the country while millions like me sit and watch what they do.

Indiana matters so much because we have a “republican” rather than a “democratic” Constitution. A democratic constitution views "We the People" as a group, so a “democratic constitution” is needed to create a government that allows the “will of the people” to prevail. And the “people’s will” must be the desires of the majority, not everyone.

In contrast, a “republican” constitution views "We the People" as individuals, each of whom has the inalienable rights to life, liberty and the pursuit of happiness, and it is “to secure these rights (that) governments are instituted among men.” Governments, then, are not “us.” Those who work for the government are our servants, not our voice. A republican Constitution is needed to empower our servants to protect our rights without themselves violating them. A republican Constitution, then, provides the law that governs those who govern us.

After the American revolution, the Founders soured on the democratic governments in their 13 states, so they replaced the Articles of Confederation with a new “republican” form of government, which would better secure the individual rights of the people. To prevent our servants from violating our rights, power was divided in various ways so democratic majorities could be blocked from oppressing the rights of the individual.

In our federal system, each state establishes its own “republican” government, allowing Americans to move to whichever mix of economic and social policies appeal to them (while the 14th Amendment empowers federal courts to ensure that states do not abuse the rights of their own citizens). When the Democratic and Republican political parties arose in the 19th Century, they too were organized state by state, each with its own rules. To get the nomination of their party, candidates must run a gauntlet of 50 separate states, who select delegates to a national convention that then selects its nominee according to the rules of their party’s convention.

It’s because of this “republican” system that Indiana matters so much. A democratic constitution would simply hold a national primary on a single day, and whoever gained a majority of the national vote would be the candidate of the party. The votes of Indiana’s Republicans would be swamped by candidates running up huge totals in states like New York, Texas and California. Further, by staggering the delegate selection decisions in the 50 states over many months, and moving from one state to another, our republican Constitution gives Republican voters time to see how candidates perform under pressure and to winnow the field.

Now it’s Indiana’s turn. Those who vote in the primary tomorrow are not the “voice of the people.” They don’t speak for me. Rather, they are individual electors offering their input into a complex selection system.

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But Indiana matters for another reason too. With the death of Justice Antonin Scalia — and likely retirement of more justices over the next four years — the future of our republican Constitution now hangs in the balance. The next president will determine whether its original constitutional limits on federal and state power are followed, or are further weakened by deferring to expansions of federal power — like the five justices did who upheld Obamacare.

Only one of the remaining top two Republican candidates, Ted Cruz, loves and understands the limits on government power imposed by our Republican Constitution, which he memorized and recited as a teen. So too does Carly Fiorina, whose father was a conservative federal judge. If Indiana supports them, then other states like California will matter too. If Indiana fails to support them, however, then it’s game over, and either Donald Trump or Hillary Clinton will appoint justices who will stand aside and let them flout the constitutional limits on their powers.

Thanks to what’s left of our republican Constitution, then, Indiana really matters. And tomorrow its voters will decide if the Constitution will continue to matter, too. Go Hoosiers!

Randy Barnett teaches constitutional law at Georgetown Law, where he directs the Georgetown Center for the Constitution and is the author of the recently published Our Republican Constitution: Securing the Liberty and Sovereignty of We the People.

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