Indiana state supreme court justice Steven David, a recent appointee of Governor Mitch Daniels, authored a 3-2 opinion that openly admits to overturning several centuries of common law understanding. At issue was this question: If police officers attempt to unlawfully enter the home of a free citizen, does that citizen have the right to resist them?

Justice David’s opinion grants the longstanding existence of a “common-law right to reasonably resist unlawful entry by police officers.” He writes that the “English common-law right to resist unlawful police action existed for over three hundred years,” and possibly nearly 800 years, dating back to the Magna Carta in 1215. He concludes, however, that “public policy” now “disfavors any such right.”

Judges, of course, are not supposed to concern themselves with matters of “public policy.”

Dissenting from Davis’s opinion, Justice Robert Rucker quotes 18th century remarks attributed to William Pitt, earl of Chatham, which the U.S. Supreme Court quoted in 1958:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!”

It would be one thing if the Indiana state legislature had voted to overturn this aspect of common law. Legislatures are not bound by common law, unless specific common law provisions are codified in that state’s constitution or in the federal Constitution. But that is not what happened in this case. Rather, the Indiana state supreme court simply decided that this longstanding common law protection of individual liberty and property must give way to prevailing concerns over public policy — or, rather, to the public policy concerns of three judges.

While Daniels’s record on judicial appointments appears to have been at least somewhat unjustly maligned —see this largely persuasive defenseby his general council — Justice David’s opinion is unlikely to help Daniels gain traction with those who’ve already been alarmed by his proposed “social truce” or by what appears to be his relative ambivalence toward foreign policy.

Indeed, questions about his commitment to non-budgetary matters — and about whether his self-effacing, non-combative style is well suited to fighting for them — likely go a long way toward explainingwhy Daniels has just a 39 percent favorability rating and trails Rick Santorum, Herman Cain, Ron Paul and eight other prospective GOP presidential candidatesin Rasmussen’s most recent survey of likely Republican primary voters. According to Rasmussen, Paul Ryan and Chris Christie each have a favorability rating (79 percent apiece) that’s more than twice as high as Daniels’s.

Some have wondered how committed Daniels would be to nominating and securing the confirmation of Supreme Court justices who would be committed to applying the law, rather than making it. Would Daniels appoint justices who would be true to the plain and historically understood meanings of the Constitution’s text? Whatever the answer, Justice David’s opinion isn’t likely to inspire renewed confidence in Daniels’s commitment to getting his judicial appointments right.

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