dissenting.
I dissent. I believe the Court's decision is wrong for the following reasons.
1. Both precedent and established constitutional jurisprudence counsel uphold ing the challenged statute.
As the Court observes, we rejected challenges to the constitutionality of statutes under art. IV, § 28, of the Indiana Constitution as non-justicilable prior to 19836. While it is certainly true that since that time, this Court has adopted different formulations or tests for analyzing such challenges, each result has been the same: the Court has deferred to the Legislature's judgment. In recent years, this has been especially apparent:
In Evansville-Vanderburgh Levee Authority District v. Kamp, 240 Ind. 659, 168 N.E.2d 208 (1960), we affirmed the constitutionality of the Legislature's decigion to allow Vanderburgh County to have a unique city-county levee authority.
In Dortch v. Lugar, 255 Ind. 545, 266 N.E.2d 25 (1971), we affirmed the constitutionality of the Legislature's decision to allow Marion County to have the unique Unigov system of government.
In Indiana Gaming Commission v. Moseley, 643 N.E.2d 296 (Ind.1994), we affirmed the constitutionality of the Legislature's decision to allow Lake County to have a unique system for gambling referendums.
In State v. Hoovler, 668 N.E.2d 1229 (Ind.1996), we affirmed the constitutionality of the Legislature's decision to allow Tippecanoe County to have a unique environmental cleanup tax.
In Williams v. State, 724 N.E.2d 1070 (Ind.2000), we affirmed the constitutionality of the Legislature's decision to allow Lake County to have a unique sys*698tem for the appointment of Superior Court magistrates.
Each of these cases used a somewhat different formulation or test for analyzing the claim but reached a uniform result: that the Legislature was acting within the bounds of its constitutional authority. In my view, the precedent here has not been established so much by the particular words different judges have used in their opinions as by the uniform results those opinions have reached.
These results have been correct and highly appropriate for, as we frequently observe, "Presuming [a] statute to be constitutional, courts place the burden upon the challenger 'to negative every conceivable basis which might have supported'" constitutionality. Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994) (upholding the constitutionality of a statute that denied worker's compensation benefits to farm workers) (quoting Johnson v. St. Vincent Hosp., Inc., 273 Ind. 874, 392, 404 N.E.2d 585, 597 (1980) (upholding the constitutionality of the Indiana medical malpractice act)). Such reasoning is deeply grounded in the jurisprudence of judicial review that recognizes people's elected representatives in a democracy, not unelected judges, are entrusted with the lawmaking power. Judicial review of the legality of such laws poses a "countermajoritarian difficulty." 1 Unless a challenged statute is within the scope of the Bill of Rights, is directed against discrete and insular minorities, or restricts those political processes that can ordinarily be expected to bring about repeal of undesirable legislation, American courts presume constitutionality. United States v. Carolene Prods. Co., 804 U.S. 144, 152-53 & n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1988).
The legislation at issue here represents a political struggle between suburban and urban interests. While the geographic focus of this particular law was St. Joseph County, the legislative history shows a hard-fought battle in which the suburban interests narrowly prevailed. The vote in the House of Representatives on the bill was 51-49-the minimum number necessary to pass.2 The vote in the Senate on the bill was 27-19-one more than the minimum.3 Such close votes indicate that this was a bill with significance well beyond St. Joseph County. It is a classic case of the countermajoritarian difficulty when a court intervenes to turn those who lost a close fight in the Legislature into winners.
2. The Court gives little guidance to the General Assembly for the future.
In the future, the Legislature will need to contend with today's decision when it attempts to address such questions as flood control in Vanderburgh, Unigov in Marion, riverboat gambling or selection of magistrates in Lake, environmental taxes in Tippecanoe, or annexation in St. Joseph Counties. The Court gives little guidance to the Legislature in how it will answer that question.
The test announced by the Court today is that special legislation will pass constitutional muster only if "the conditions the *699law addresses" are unique to the county to which the legislation applies: "if the conditions the law addresses are found in at least a variety of places throughout the state, a general law can be made applicable and is required by Article IV, and special legislation is not permitted."
But how will this work? Let us take what appears to the Court to be the easiest case, the Tippecanoe County environmental tax at issue in Hoovier The Court tells us that the unique condition the law addresses is that Tippecanoe County has "unique Superfund site needs." But this condition is found in a variety of other counties throughout the state: at least fifteen other Indiana counties have Superfund sites on the U.S. Environmental Protection Agency's Superfund National Priorities List.4 That is, the law in Hoovier clearly addresses conditions "found in at least a variety of places throughout the state." The Court's opinion today says the Hoovier statute is permissible but the Court's test indicates that it is not.
Perhaps the greatest difficulty the Legislature will face is trying to figure out what a court will hold to be "the conditions the law addresses." Consider the riverboat gambling statute at issue in Moseley. It permits such gambling in certain areas contiguous to Lake Michigan, the Ohio River, and Patoka Lake. If "the conditions the law addresses" are adjacency to large bodies of water, the statute does not meet the Court's test because these conditions are found in a variety of other places: areas adjacent to the Maumee and Wabash Rivers, Lakes Maxinkukee, Wawasee, and Monroe, ete. But perhaps a court will hold the law addresses different conditions. How is the Legislature to know?
3. The Court renders an enormous body of Indiana law suspect and takes on an enormous burden for the judicial system.
In the Moseley case, one amicus, in an effort to demonstrate how many statutes would be constitutionally questionable if we were to find the riverboat gambling statute violated art. I, § 28, filed an appendix with us with a copy of all such laws. It ran over 500 pages.
With today's decision, the Court renders at least suspect the validity of those 500 pages of the Indiana Code. The only way to resolve the uncertainty will be through litigation, one statute at a time.
4. The Court improperly subjects the City's claim to art. I, § 28, serutiny.
The Court subjects the City's claim to scrutiny under the Equal Privileges and Immunities Clause of art. I, § 28. But art. I, § 28, applies only to "citizens," which a political subdivision is not. (I note the City makes no argument that the statute violates its privileges or immunities.) It is wrong as a textual matter to say that legislation that applies to some geographic areas of the state and not others could violate the Equal Privileges and Immunities Clause; our Bill of Rights does not confer citizenship on political subdivisions. It is also wrong as a jurisprudential matter not to afford more deference to enactments adopted by the legislative branch in the exercise of its powers under art. IV than to legislation within a specific prohibition of the Bill of Rights. See Carolene Prods., 804 U.S. at 152-58 n. 4, 58 S.Ct. TI8.
This Court was correct when it held that claims under art. IV, § 28, presented no justiciable issue. Board of Comm'rs of *700Jennings County v. Fetter, 193 Ind. 288, 296, 139 N.E. 451, 454 (1928); Gentile v. State, 29 Ind. 409 (1868).5
. The scholarship is voluminous. The classics include: Learned Hand, The Bill Of Rights (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, in Principles, Politics and Fundamental Law (1961); Alexander Bickel, The Supreme Court, 1960 Term Forward: The Passive Virtues, 75 Harv. L. Rev. 40 (1961); Alexander Bickel, The Least Dangerous Branch (1962); Gerald Gunther, The Subtle Vices of the "Passive Virtues"-A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964).
. 1993 H.J. 636.
. 1993 S.J. 669.
. See http:// www.epa.gov/superfund/ sites/ npl/in.htm (visited Jan. 15, 2003). Indiana has many more Superfund sites that do not rise to the level of a National Priority Site. See http:// www.epa.gov/superfund/ sites/cur-sites/incerlst.htm (visited Jan. 15, 2003).
. These early cases deserve more credit than the Court gives them today because cases decided close to the time of the enactment of the constitutional provision help us understand the intent of the framers. See McIntosh v. Melroe Co., 729 N.E.2d 972, 974 (Ind.2000); Richardson v. State, 717 N.E.2d 32, 38 (Ind. 1999); Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991), cert. denied 502 U.S. 1094, 112 S.Ct. 1170, 117 LEd.2d 415 (1992) (quoting State v. Gibson, 36 Ind. 389, 391 (1871)).