Posted by: bridget | 1 October 2007

Happy October Term!

The Supreme Court has 19 new cases on its docket (newest cert grants here). Some highlights:

Eighth Amendment: the Court will determine whether or not a certain drug cocktail used in lethal injection constitutes “cruel and unusual punishment.”  (Baze v. Rees.) 

Snarky commentary: how about a rule that you can do anything to convicted murderers, up to and including what they did to their victims?  Barring that, how about a rule that you can terminate their lives in the same manner in which abortions are carried out?  Considering that one is a punishment imposed by the state for the most heinous of acts, and the other is merely a quasi-Constitutional right imposed by women who don’t particularly want to raise children with the men they sleep with, it seems fair.

Snark aside: a few Justices are enamoured of using foreign law and some (dubious) trends in state law to determine whether a particular method of execution constitutes “cruel and unusual punishment.”  Here, Justice Scalia’s originalist approach makes the most sense: the benchmark is the type of punishment allowed at the end of the 18th century.  That is the right agreed to by the document; moreover, it is much less suspectible to judicial activism and is preservative of a certain level of rights.  It fixes the floor, if you will.  Under a more flexible standard, the world and America could slowly change our notions of cruel and unusual punishment so that condemned prisoners suffer more anguish and pain than they would have at the time of the adoption of the Bill of Rights. 

Furthermore, it would be absurd to read the text of the Eighth Amendment to completely outlaw the death penalty; if that were the intention of the Founders, or of modern citizens, the text would explicitly forbid the death penalty (along with other forms of punishment for different crimes).  Those who do not want the death penalty are more than able to lobby their state legislatures for such a law, or an amendment to their own state’s constitutions. 

State voter ID laws:  Indiana currently requires people voting in state elections to present valid, current photo identification issued by Indiana or the federal government.  Those who do not have such identification are given provisional ballots. (Law here.)  Anyone over the age of 65 may vote by absentee ballot; those confined to nursing homes, for example, need not obtain state or federal photo identification.  Democrats claim that this is an attempt to disenfranchise elderly and poor voters, who do not have access to such identification and would be deterred from casting their (usually Democrat) votes.  Republicans claim that this is needed to combat voter fraud. 

Commentary: In Indiana, a driver’s license costs $19.50 for five years; identification cards cost $13.00 for non-senior citizens, and $10.00 for those who are over 65 or disabled.  Both identification cards last for six years.  Here is the list of acceptable documents.  Basically, with a birth certificate, a social security card, a secondary document (such as a bank statement, W-2, marriage or divorce decree, or credit card), and some form that indicates legal residency, a person may obtain a driver’s license or ID card.  This is the stuff required by employers under federal law.  Social security checks count towards eligible documents.  Fact is, people who don’t have these documents aren’t able to function in society – they cannot open bank accounts, drive, work, or rent many apartments. 

Ten bucks, a birth certificate, a bank statement, and social security card – you’re good to vote in Indiana.  While the very libertarian elephant opposes a national ID card (or any such system), she cannot understand how people function in the world without these documents.  Surely it is not that large an imposition to ask people to identify themselves before they vote. 

The Seventh Circuit upheld the law.  Judge Posner held that strict scrutiny analysis of election law was not mandated by the Constitution; that both voters and the State have an interest in reducing voter fraud; and that the harm was slight – so slight, in fact, that the Democratic Party could not produce a single would-be voter who would be deterred from voting due to the new law. 

Judge Posner’s reasoning is usually quite sound; however, he fell apart when analysing the provision of the law which allows persons to vote in an absentee ballot without a valid ID.  The plaintiffs complained that this provision made the law underinclusive; however, their complaint has the nature of “be careful what you wish for.”  The housebound elderly and the disabled benefit tremendously from such a law; were it to be another way, they would be entirely disenfranchised.  Should the law be overturned on the grounds of being underinclusive, the Indiana legislature could simply remove that exception and make it more difficult to vote.  Furthermore, absentee ballots are usually mailed to a residence; at the very least, a stranger cannot waylay the ballot and vote for the absentee person. 



  1. Function. That’s the big thing isn’t it ? The people who are either incapable.unwilling, or without legal standing in acquiring the ID items don’t need to be getting into the booth in the first place.

  2. To quote Dirty Harry (Clint Eastwood): “Well I’m all broken up about that man’s rights.”

    People receive the death penalty because of their commiting a very violent act against another. I couldn’t care one wit if it “hurts” a little when they die.

    Hey, here’s an idea. Bring back the guillotine! I’ll bet that doesn’t hurt much at all, though I’d never want to be the one to find out.

  3. In2theFray,

    Yeah, pretty much. I do understand people who are in nursing homes: they are often of sound mind, but incapable bodies. Ditto the housebound or the like. Those people, though, can get absentee ballots and send them in. If you can’t be bothered to do absentee, and you can’t get a photo ID, I don’t see how you are involved enough to vote. Indiana even requires the BMV (akin to the Registry or the DMV in other states) to be open for extended hours before and on election day. Oh, and if you don’t have a photo ID, you have 10 days to get one or certify that you are too indigent to pay the ten bucks.

    I can’t help but think that the Democratic party, were it truly concerned about its constituents, wouldn’t have been better off using the money for litigation to buy people their IDs. Then, they have the added benefit of easier participation in society.


    Thanks for stopping in. Yeah, the guillotine probably wouldn’t hurt much – only for a second. What next, do we have to give them their choice of happy drugs? Zoloft for death row inmates?

    It just seems as if, considering what these people are accused of, they get off easy. Many of them tortured their victims (burned, stabbed, raped while they lay dying) – and all they get is a little pinprick? Cry me a river… and, as a Constitutional matter, how is that cruel? How is that unusual? This is how we put doggies down – those cute little animals who love us, guard our homes, and don’t do a thing wrong except to chew our sneakers.

    (Rant over.)

  4. […] proper solution is not to ensure that those documents are never, ever needed (previously blogged, here): it is to help those people obtain proper identification, social security numbers, and the […]

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