Sausage-making at the Indiana General Assembly

"It profits a man little to see either his sausages or his laws being made."

This famous quote is a source of contention over authorship. Regardless of whether you attribute it to John Godfrey Saxe or Otto von Bismarck or even Benjamin Franklin, it rings true . . . true enough for many to want to believe it had to come from a wit like Franklin or a consummate politician like Bismarck. I, for one, have no idea who John Godfrey Saxe was other than the internet assures me he originated the quote. And if it's on the Internet, it must be true.

Some colleagues saw this quote in action last week as they testified before a Senate committee at the Indiana General Assembly. Back when I was gainfully employed, I testified before legislative committees at both the state and national level. Don't look for my name associated with any hallmark legislation; they and I were both going through the motions. But it is a fundamental principle of our governmental integrity that our elected representatives listen to their constituents, and not just the professional lobbyists. I don't doubt that most Indiana legislators see this as important and even essential to our democracy.

Here's the rub: the legislators move from hearing to hearing each day and do yeoman's work of staying awake while the hoi polloi given speaking time delude themselves into thinking their testimony is the crucible that spurs the legislators to action. It may be unfair to charge our state reps with cynically sleep walking through the legislative day but then more than 2,000 bills have been introduced this session and the herd must be culled.

Bills before the Indiana General Assembly purport to streamline the non-criminal portion of the Indiana Military Code of Justice but do so by removing the right of a National Guardsman to appeal a non-judicial penalty to a full court martial. A court martial is the closest equivalent a service member has to trial by a jury. Note that the right to trial by jury is guaranteed in criminal cases by the Sixth Amendment and in civil cases by the Seventh Amendment. No exemption is made in either amendment for those serving in the military.

One of the rationales

given for this change is an appeal to better efficiency in government. Court martials do take time to conduct, time theoretically better spent on more urgent matters. This reasoning puts a premium on government efficiency, as hard as that is to think about without a progression of snickers floating through the gray cells.

I, for one, don't especially want an efficient government. But then, I am a libertarian who would rather live with an inefficient government which spends too much money on defense contracts and has trouble delivering the mail on time than one which resembles the cold competence in those dystopian novels I read in the 1960's.

While the House bill passed committee unanimously it did generate two dozen nays on the House floor. Unfortunately, the representatives I know best and who typically are pro-liberty all voted to remove this right of appeal.

Maybe there is something here I don't get. I'm not in Indianapolis every day making sausage so I should be careful about criticizing those who attempt to do so on our behalf. But still. Constitutional rights are at stake here, are they not? Surely one of my friends who serves in the General Assembly would have at least wondered about that.

I can say that this issue has compelled me to take my duties as citizen more seriously. For the first time I used my First Amendment right to petition the government by writing my state senator, someone I have never met due to my subdivision's redistricting last year, to urge her to give priority to the constitutional issue at play.

Unfortunately, my brief email did not carry the day. Nor did approximately 600 emails sent by my fellow members of the American Legion family. I watched via internet streaming the bill's second reading on the Senate floor; no one spoke to the constitutional issue at stake. The amendment to restore courts martial failed.

Oh, well. That's democracy for you. The majority prevails as it should in most instances. Our Founding Fathers knew well the value of democratic processes but also their imperfection. That's why we have a written Constitution with a Bill of Rights and judicial review. Maybe an Indiana court will rule on this someday.

Meanwhile Indiana's National Guardsmen must serve without an important judicial right. Which brings to mind a witticism from Gideon J. Tucker, a 19th century New York state judge:

"No man's life, liberty or property is safe while the Legislature is in session."

Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana Universitypurdue University Fort Wayne.