School vouchers and the Indiana Constitution: What would the framers say?

Article 1, Section 6 of the Indiana Constitution says, simply, “No money shall be drawn from the treasury, for the benefit of any religious or theological institution.”

Supporters of Indiana’s school voucher program insist that doesn’t mean the state can’t fund religion. Vouchers are state funds, after all; and most of the schools getting them are religious institutions. Some law professors and school-law experts say the Indiana Supreme Court is likely to declare the voucher program acceptable.

But it seems unlikely that the men who drafted and approved Indiana’s constitution would agree. Here’s their explanation for what they were trying to do, as recorded in the journal of the 1850-51 constitutional convention:

“ … to secure the rights of conscience and prevent the imposition, on the citizen, of any tax to support any ministry or mode of worship against his consent, it is provided, that no person shall be rendered incompetent as a witness, in consequences of his opinions in matters of religion; and that no money shall be drawn from the treasury for the benefit of any religious or theological institution.”

In other words, it was a matter of individual rights – Article 1, Section 6 is part of the Bill of Rights – that taxpayers should not be required to support religious institutions.

Another way of getting at the historical meaning of the phrase is to look at the debates about public education that took place in the mid-19th century. The constitution also requires Indiana to establish “a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.”

According to the late Indiana University historian Donald Carmony, the state’s embrace of free and universal public education was largely the result of one man: Caleb Mills, a Dartmouth-educated founder of Wabash College who delivered annual messages on education to the legislature. Mills lamented Indiana’s high illiteracy rate, the worst in the North, and took strong exception to the pre-1850 practice of providing public funds for private and sectarian schools.

“Mills emphasized three items,” Carmony writes in Indiana 1816-50: The Pioneer Era. “First, state and local tax money should be used only for support of public common schools. Second, morality and religion could and should be discussed and sustained in such schools. Third, if state and local money were made available for denominational and private schools, it would be very dangerous to the ‘social and political fabric …’”

Indiana legislators, by adopting the voucher program in 2011, chose to disregard the plain language of the constitution. The Supreme Court may think that’s OK. Caleb Mills, were he around today, most definitely would not.

10 thoughts on “School vouchers and the Indiana Constitution: What would the framers say?

  1. The current political powers care little about the constitution or the residents of the state. The powers only care about their political agenda. As a taxpayer with no children in school I am certain some of my tax money is being sent to religious schools. The legislators think this is morally right, yet if most of the religious schools were Islamic religious based the voucher bill would never had passed. Can you say hypocritical?

  2. I think its sad that politicians can just arbitrarily decide to disregard constitutional law and public law to further their own agendas with no regard for the future generations to come. How is this system going to help the Children in the next generation?

    Its already noticeable that the mass Intelligence of humanity is declining due to technology and Political agendas. Take in point the removal of Hand writing or script from the Indiana schools. That is a historical writing style and is necessary for a true signature.

    So if children aren’t learning script in school, then how will they ever be able to sign their signature? I understand that some say; “well all they need is an X to sign their name.” However, I wonder if those same people understand that to sign an X for your name you must have a witness with them?

    Or better yet that it states in both the state constitution and state law that no taxpayers shall be forced to support a religious centered organization.

    ” … to secure the rights of conscience and prevent the imposition, on the citizen, of any tax to support any ministry or mode of worship against his consent, it is provided, that no person shall be rendered incompetent as a witness, in consequences of his opinions in matters of religion; and that no money shall be drawn from the treasury for the benefit of any religious or theological institution.”

    So if this is the case then what the hell are the politicians doing? Why aren’t they being arrested for violating law? If you or I broke a law that was common knowledge its sure as the sun comes up going to me getting arrested and thrown in jail.. usually on a charge that these same politicians created just to add more money to their pockets and support their own projects.

    it is sickening how these politicians are above the law and how the common citizens let them get away with this garbage. Wake up people this is our country and we live in it and pay for its support. take responsibility for those you elected considering they aren’t taking responsibility for what they are doing to screw us.

  3. Attitudes change, and so do our understandings of the law. In the 1850’s, in the infamous Dred Scott decision, the Supreme Court found the Constitution permitted slavery. As the new movie Lincoln shows, that soon changed, but not without difficulty.

    In the case of schools, the Supreme Court addressed the legitimacy of non-public schools in the 1920’s, in Pierce vs Society of Sisters, in which an Oregon law requiring students to attend public schools was challenged by parents who wanted to send their children to sectarian ones. The parents won.

    In the Indiana case, the right to a non-public education is not at issue. The question the state Supreme Court will have to decide is whether or not public funds can be used to pay part of the costs of it.

    • Thanks, Les. A “living, breathing” constitution? 🙂 … Of course, the same 1851 Indiana constitution that I’m endorsing also said that no “negro or mulatto” should be allowed to enter or settle in the state! But I agree, regardless of whether Caleb Mills or I might think private schools are bad for society, the only question here is whether public funds can be used to help support them. And if not, we can always debate whether the constitution should be amended to allow it.

  4. I like it that you’re looking back at history. Here’s a strong possibility, though: the framers of the Indiana Constitution were very concerned about Roman Catholicism and wished to suppress Roman Catholic schools, while continuing to teach Protestant Christianity in the public schools. As you noted, religion was to be taught in the public schools.

    The idea is plausible because there had been a large increase in Roman Catholic immigration and religious schools, and the Papacy was quite hostile to any but monarchical government at the time. The “Know-Nothing” Party, whose central idea was the Catholic Threat, never got the Presidency, but was a serious threat to the Whigs and Democrats.

    • Yeah, that’s an interesting question. Voucher advocates have certainly argued that all “no-aid” provisions in state constitutions are “Blaine Amendments” — related to the failed attempt to amend the U.S. Constitution in the 1870s and rooted in anti-Catholic bigotry. Others say that’s not the case, that at least some of the state provisions (like Indiana’s) were considerably earlier than Blaine and tied to freedom of conscience, not anti-Catholicism. (And there’s apparently disagreement over whether Blaine and his supporters were motivated by bigotry. Both sides are presented here:

      The Americans United brief in the Indiana voucher case cites evidence that there were few Catholics in Indiana by 1850 and argues that it wasn’t about the Catholics at all (

      Obviously there was serious anti-Catholic bigotry in Indiana later — as evidenced by the rise of the Klan in the 1920s. My impression from what I’ve read so far about the 1850-51 constitutional convention was that those guys were more attuned to feuding between Presbyterians and Methodists and not so concerned with Catholics. But it’s certainly a topic for research.

  5. The violation of individual rights concerning state-religion that Caleb Mills was worried about is only valid if the the funds were taken away from a taxpayer and given straight to a church instituted school by the state. The purpouse of the voucher program was to give more individual rights to the student receiving a fair state-garanteed education, as promised. I don’t think Mr. Mills would object to having more individual rights and freedom for students. The argument that the taxpayers rights are violated become invalid, since the taxes have to be raised for public education regardless of school choice, according to the state constitution. It’s a dialogue of the state asking the student “Here is the tax money we raised for your education. Now, where would you like us to mail the check?”. Remember, the voucher program and school choice are small stepping-stones to promote better educational opportunities in the future. Currently, the only private institutions ready to go happen to be religious in nature because they already had funding support from the church fellowships for decades. Certainly, this is a barrier that needs to be crossed. The real fruit is on the other side. When pooled public and private funding has led to independant non-religious schools as well. We’ll never get there if we don’t keep moving this direction.

  6. Pingback: Voucher decision sad but no surprise | School Matters

  7. Pingback: Supreme Court case ‘a virtual earthquake’ for public schools | School Matters

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