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The Narratives and Counternarratives of Indiana Legal History
DAVID J. BODENHAMER AND RANDALL T. SHEPARD
| Every state has a story its citizens tell to identify where they are from and who they are.1 Indiana's narrative is both American and midwestern. Hoosiers are the most representative of Americans, or so we believe. Indiana is the home of Middletown, the name sociologists Robert and Helen Lynd gave to Muncie, the site for their famous studies in the 1920s and 1930s. We are literally and metaphorically residents of the "Crossroads of America," the tag cited most often by the state's tourism and economic development offices. We live in the nation's heartland, a broad middle ground from Ohio to Kansas where the values that made our country great find their strongest and most fruitful expression. Like all midwesterners, but more so, we Hoosiers are authentically American. |
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Of course, there is a counternarrative to the Indiana story that emphasizes the middling nature of our history. In this telling, we are stifled by consensus and marked by mediocrity. We are followers, not leaders; the state of vice presidents, not presidents. We are the "booboisie": small-minded shopkeepers, farmers, and mill workers who are always placing respectability before creativity, petty morality before progressive ideas. Our motto in this counternarrative is "Good enough is good enough." |
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In both versions of the Indiana story, law plays a role. In them, as in all variants of the American story, law is an embodiment of values. We are a nation—and a state—of laws. In our national mythology, law is the instrument of popular will and the protector of individual liberties. Stemming from fundamental compacts, national and state constitutions, these laws reflect who we are and shape the society we are becoming. The preferred narrative casts law as forward-looking or progressive. Law has enabled a polyglot society to meld and has provided both ballast and impetus to an economy that rapidly moved from agriculture to industry to service activities over a brief 150-year history. The counternarrative is darker in its portrait, seeing law as discriminatory and protective of entrenched interests. In this story, law is oppressive and moralistic, the stern guardian of small-town values that kept Indiana benighted and backward, an obstacle to progress rather than its aide. |
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Neither story is correct, but what is striking about both is their inability to speak with discernment or detail about the role of law in Indiana's history. A cursory glance through our primers reveals why. For most of our chroniclers, law is present primarily during the foundational moments in our past—the Northwest Ordinance of 1787, the Constitution of 1816, and the Constitution of 1851. During these events, law is seminal: it is the expression of our highest aspirations, and sometimes—as with the 1851 prohibition of African American immigration—it reveals our deeper shame. At other times, law is largely the result of politics, the true central actor in both versions of the Indiana story. It is the exercise of power—sometimes for good cause, sometimes not—wielded by the legislature or by the governor but only rarely by its chief guardian, the state's courts. |
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In truth, the role of law in Indiana's story is complex. It has been progressive and conservative, enlightened and reactionary, influenced by law elsewhere and isolated from the larger national legal culture. Dominant political and economic interests have wielded it to serve their purposes, but its basic thrust has been democratic, not hegemonic. In a state not known for innovation, Indiana law has been cautiously progressive. |
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