Well, I just got back from voting. No, I didn't vote because of the hundred and twelve pieces of junk left on my door by certain campaigns. I voted because I always have, and always will. I pride myself on doing the research on everything on the ballot. I pride myself on never voting for only one party. I pride myself on thinking about the public questions, and analyzing decisions by the judges up for retention. Yes, I love voting, because it's the reason my ancestors came to this wonderful country.
That said, I disagree fundamentally with the "duty to vote" that we keep hearing about. Voting is a right. Not a fundamental right, since it can be taken away. But nowhere is there a duty to vote. It is a disgusting campaign tactic to get people to mindlessly support the candidate of the day. They say, "If you don't vote, your voice won't be heard." That's right, but my mom always said you should think before you speak, and a lot of voters don't.
Today at my polling place, a woman came into the booth beside me and immediately asked for assistance. She asked the assistant if she could vote for just one party. Of course the assistant pointed out the straight ticket buttons, and reminded the woman that there were several other things on the ballot that weren't ticket items: judicial retention, public questions, and races that are non-partisan here in Monroe County. "No," the woman said, "I just want to vote for the democrats today."
This is what is wrong with American voting mentally today. It doesn't matter if she blindlessly supports Democrats, Republicans, Libertarians, or anyone else. The problem is that she isn't taking the time to think anything out. She's ignoring public questions. She's ignoring the judiciary. All she cares about is putting her party into office. That is stupid voting.
I propose that we eliminate the straight ticket buttons. If you want to vote for all one party, you can take the minute and a half to push their individual names. But at least then you'd have to go through the seven pages and answer the damn questions. See what it is you're voting for. Think for five seconds about whether assessments should be run through the township or the county.
My biggest problem with this woman and voters like her is that she ignored the public questions. She obviously supports "democracy," and yet she chose to ignore the one area where we are democratic. No, we vote in a republic in almost all ways. Our representatives makes the laws, not us. The closest thing to actual democracy we have in this country is public questions. We the people make the law. Incredible. But she doesn't care. No one does.
And that is the problem.
Showing posts with label Indiana Politics. Show all posts
Showing posts with label Indiana Politics. Show all posts
11.04.2008
7.19.2008
Come on, Allen County!
What is going on in Allen County's courts?
This week we got news that a state panel cited Judge Kenneth R. Scheibenberger for official misconduct. Apparently, back in November, he put on his robe and walked into another judge's courtroom (misstep number one). Then he listened to an alleged drug dealer get sentenced by the other judge. He then threw a bit of a fit and started swearing the the family of the defendant (misstep number two). He claims that the drug dealer sold his son drugs that resulted in his son's death.
Well, today's News-Sentinel reports that the Circuit Court judge in Fort Wayne, Judge Thomas J. Felts, was operating his vehicle while drunk, and let it "coast backward" into a police cruiser in Indianapolis. He was pulled over near Monument Circle, and instead of putting the vehicle into park, he put it in reverse. This is his re-election year, but is running unopposed.
I have to wonder what the voters in Allen County think about all this. Fort Wayne is one of the busiest court systems in Indiana, and they really can't afford to lose their Circuit judge and one of their Superior judges.
Further, what were these judges thinking? Scheibenberger couldn't have thought anything good would come of going to this sentencing in his robe. In doing so he tarnished the reputation of judges everywhere. To swear up a storm while in your robe just looks bad all around.
I'm glad I work for a Judge this summer. I'm also glad it's not in Allen County, which has to be in chaos right now.
This week we got news that a state panel cited Judge Kenneth R. Scheibenberger for official misconduct. Apparently, back in November, he put on his robe and walked into another judge's courtroom (misstep number one). Then he listened to an alleged drug dealer get sentenced by the other judge. He then threw a bit of a fit and started swearing the the family of the defendant (misstep number two). He claims that the drug dealer sold his son drugs that resulted in his son's death.
Well, today's News-Sentinel reports that the Circuit Court judge in Fort Wayne, Judge Thomas J. Felts, was operating his vehicle while drunk, and let it "coast backward" into a police cruiser in Indianapolis. He was pulled over near Monument Circle, and instead of putting the vehicle into park, he put it in reverse. This is his re-election year, but is running unopposed.
I have to wonder what the voters in Allen County think about all this. Fort Wayne is one of the busiest court systems in Indiana, and they really can't afford to lose their Circuit judge and one of their Superior judges.
Further, what were these judges thinking? Scheibenberger couldn't have thought anything good would come of going to this sentencing in his robe. In doing so he tarnished the reputation of judges everywhere. To swear up a storm while in your robe just looks bad all around.
I'm glad I work for a Judge this summer. I'm also glad it's not in Allen County, which has to be in chaos right now.
2.15.2008
2008 General Assembly Series: SB65 and Needless Tragedy
Tragedy has befallen the nation yet again. Less than a year after the shootings at Virginia Tech, we have seen four school shootings in less than week. February 8, two students gunned down at Louisiana Tech. February 11, a high schooler shot another during gym class in Tennessee, and a junior high schooler in California is brain dead. Now, tonight, we get word that five people were killed at Northern Illinois University. This one hits particularly close to home, since I'm from northern Illinois, and at one time my brother had considered attending NIU.
I have no idea what is causing the increase in school shootings. Blame it on whomever you wish: parents, the media, the schools, rap music, or any other scapegoat. The fact is that more students are finding recourse through violence in schools. The fact that these shooting sprees tend to end in suicide does not mean that they are intended as suicide missions; I would tend to believe that at least some of these shooters realized what they had done and concluded that the only way out was through suicide.
How fortunate that the Indiana General Assembly happens to have bills before it to help prevent such shootings in Indiana. While nothing can make us 100% safe (even in the law school), I think that the laws the GA might pass would help disincentivize such shootings.
Senate Bill 0065, the so-called Handguns In Public bill is essential, and must be passed quickly, especially with this last week in the forefront of our minds. SB65 would add language to Title 35 that would read, in part:
"A person who possesses a valid license to carry a handgun issued under IC 35-47-2 may not be prohibited from possessing a handgun on land or in buildings and other structures owned or leased by:
(1) the state or a political subdivision of the state; or
(2) a nonpublic elementary school, nonpublic secondary school, or nonpublic postsecondary educational institution."
With the obvious exceptions of airports, prisons, and courthouses, under SB65 no card-carrying Hoosier could be prohibited from having a concealed weapon in a public place. This makes tremendous sense, but let me start by discussing the opposing side.
Opponents are concerned that the bill would mean more violence in schools. After all, if schools have more weapons, only more violence can occur, right? Wrong. First of all, to get a CCW, one must be over 18. That means high school kids (those who would be most likely to go off because of a hormonal imbalance or because a girl turned him down for a dance) would not have access to them, but the teachers (i.e. the people whose responsibility it is to guard the young people) would.
Further, since no person who has been convicted of a felony can get a CCW, the riskiest college-age students would also be prevented. On the other hand, responsible students who took the time to fill out the paper work and get registered would be able to keep weapons, in case, say, a student starts shooting in the middle of a geology lecture. Additionally, professors and administrators could keep a weapon for such times.
In other words, the good guys get armed while the bad guys either don't, or they resort to the same means they do now - that is, they carry them illegally.
On the other hand, a potential gunman would have second thoughts if he knew that any person he pulled a gun on was also armed. Certainly a gunman appearing in front of a class of 165 students to start shooting would fear, knowing that 150 guns were aimed back.
But even if we assume the possibility of deterrence was insufficient to prevent the shooting, the duration of the shooting would be dramatically shorter. The shooting at Virginia Tech went on for 9 minutes, and more than thirty people lose their lives. Imagine after minute 1, or even minute 2, how many lives could have been saved if even one person had possessed a firearm to stop the shooter.
Sadly, a similar bill (SB356) did not pass its third reading, due to a lack of a constitutional majority.
Any reasonable person knows that there is little we can do to deter a potential school-shooter. If he has his mind made up, then he's going to do it, and saying "No Guns on Campus" will mean nothing. But while we can't prevent such shootings easily, we can at least provide some protection for the potential victims of these tragedies. The Senate needs to vote Yes on SB65, and they need to do it now, before any Hoosier blood is tragically spilled.
I have no idea what is causing the increase in school shootings. Blame it on whomever you wish: parents, the media, the schools, rap music, or any other scapegoat. The fact is that more students are finding recourse through violence in schools. The fact that these shooting sprees tend to end in suicide does not mean that they are intended as suicide missions; I would tend to believe that at least some of these shooters realized what they had done and concluded that the only way out was through suicide.
How fortunate that the Indiana General Assembly happens to have bills before it to help prevent such shootings in Indiana. While nothing can make us 100% safe (even in the law school), I think that the laws the GA might pass would help disincentivize such shootings.
Senate Bill 0065, the so-called Handguns In Public bill is essential, and must be passed quickly, especially with this last week in the forefront of our minds. SB65 would add language to Title 35 that would read, in part:
"A person who possesses a valid license to carry a handgun issued under IC 35-47-2 may not be prohibited from possessing a handgun on land or in buildings and other structures owned or leased by:
(1) the state or a political subdivision of the state; or
(2) a nonpublic elementary school, nonpublic secondary school, or nonpublic postsecondary educational institution."
With the obvious exceptions of airports, prisons, and courthouses, under SB65 no card-carrying Hoosier could be prohibited from having a concealed weapon in a public place. This makes tremendous sense, but let me start by discussing the opposing side.
Opponents are concerned that the bill would mean more violence in schools. After all, if schools have more weapons, only more violence can occur, right? Wrong. First of all, to get a CCW, one must be over 18. That means high school kids (those who would be most likely to go off because of a hormonal imbalance or because a girl turned him down for a dance) would not have access to them, but the teachers (i.e. the people whose responsibility it is to guard the young people) would.
Further, since no person who has been convicted of a felony can get a CCW, the riskiest college-age students would also be prevented. On the other hand, responsible students who took the time to fill out the paper work and get registered would be able to keep weapons, in case, say, a student starts shooting in the middle of a geology lecture. Additionally, professors and administrators could keep a weapon for such times.
In other words, the good guys get armed while the bad guys either don't, or they resort to the same means they do now - that is, they carry them illegally.
On the other hand, a potential gunman would have second thoughts if he knew that any person he pulled a gun on was also armed. Certainly a gunman appearing in front of a class of 165 students to start shooting would fear, knowing that 150 guns were aimed back.
But even if we assume the possibility of deterrence was insufficient to prevent the shooting, the duration of the shooting would be dramatically shorter. The shooting at Virginia Tech went on for 9 minutes, and more than thirty people lose their lives. Imagine after minute 1, or even minute 2, how many lives could have been saved if even one person had possessed a firearm to stop the shooter.
Sadly, a similar bill (SB356) did not pass its third reading, due to a lack of a constitutional majority.
Any reasonable person knows that there is little we can do to deter a potential school-shooter. If he has his mind made up, then he's going to do it, and saying "No Guns on Campus" will mean nothing. But while we can't prevent such shootings easily, we can at least provide some protection for the potential victims of these tragedies. The Senate needs to vote Yes on SB65, and they need to do it now, before any Hoosier blood is tragically spilled.
1.31.2008
2008 General Assembly Series: SJR7 and the Waste of Tax Dollars
Anyone that has read my post from last February regarding SJR7, the so-called "Indiana Gay Marriage Ban", knows how I feel about the bill. I think it is a broad overreaching of the state government into the private lives of individuals and an attempt to codify bigotry in our most important document. Those opposed to the thought of same-sex marriage can be comfortable that Indiana law still prevents the marriage or civil union of two persons of the same gender. A constitutional amendment is just one more way to ensure that future generations can't become less bigoted than the current one.
I applauded last year when the bill died in the House. But the bill has again passed the Senate, with a vote of 39-9 (practically the same as last year). The bill is stalled in the House, and it looks ready to die at the hands of House Democrats again. That is, unless Rep. Eric Turner (R-Marion) has his way, and manages to have it attached to the same bill capping property taxes. That just shows the shady dealings that go on in politics: attaching a frivolous and hateful bill to one for which the people are desperately crying out.
The arguments for this ban are same arguments we heard for decades regarding interracial marriage. Anti-miscegenation laws were in place since the beginnings of this nation, often appearing in state Constitutions. Loving v. Virginia, 388 U.S. 1 (1967), was the final nail in the coffin of those racist laws. There, the Supreme Court reversed a trial judge's decision that a black woman and white man could not enter the state without being subject to arrest. The trial judge showed his true colors when he stated, "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3. In other words, interracial marriage was "unnatural." This argument sounds familiar.
It took 103 years, but South Carolina finally removed the prohibition on "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood" from its Constitution in 1998. How sad that such bigotry was written into a Constitution for so long. It casts a shadow of shame on the people of the state. Now Indiana wants to do the same.
If the state wants to ban gay marriage in statutes, and that is the will of the people, so be it. Not all of us may agree, but such is the way of politics and legislation. As I stated in my previous post, amending the Constitution really is not something we should do lightly. And besides, haven't we got more important bill to pass right now?
I applauded last year when the bill died in the House. But the bill has again passed the Senate, with a vote of 39-9 (practically the same as last year). The bill is stalled in the House, and it looks ready to die at the hands of House Democrats again. That is, unless Rep. Eric Turner (R-Marion) has his way, and manages to have it attached to the same bill capping property taxes. That just shows the shady dealings that go on in politics: attaching a frivolous and hateful bill to one for which the people are desperately crying out.
The arguments for this ban are same arguments we heard for decades regarding interracial marriage. Anti-miscegenation laws were in place since the beginnings of this nation, often appearing in state Constitutions. Loving v. Virginia, 388 U.S. 1 (1967), was the final nail in the coffin of those racist laws. There, the Supreme Court reversed a trial judge's decision that a black woman and white man could not enter the state without being subject to arrest. The trial judge showed his true colors when he stated, "Almighty God created the races white, black, yellow, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. at 3. In other words, interracial marriage was "unnatural." This argument sounds familiar.
It took 103 years, but South Carolina finally removed the prohibition on "marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood" from its Constitution in 1998. How sad that such bigotry was written into a Constitution for so long. It casts a shadow of shame on the people of the state. Now Indiana wants to do the same.
If the state wants to ban gay marriage in statutes, and that is the will of the people, so be it. Not all of us may agree, but such is the way of politics and legislation. As I stated in my previous post, amending the Constitution really is not something we should do lightly. And besides, haven't we got more important bill to pass right now?
1.15.2008
2008 General Assembly Series: SB47 and the Request for Death
It is my favorite time of the year. Not because I like snow or the cold, or because I enjoy the post-Christmas atmosphere. No, this is my favorite time of year because our fine legislators here in Indiana have the opportunity to meet for their short annual session. I'm not entirely sure why I enjoy the General Assembly so much, but I think it has everything to do with my interest in politics and law, my inspired admiration of federalism, and the sheer history in those two chambers in Indianapolis.
As part of this year's General Assembly Series, I wanted to take a closer look at some of the proposed bills that our elected representatives have put forth as being the will of the people. This series will run over the next week or two, and will give me a chance to inform the public about some of the laws being debated.
One of the more interesting proposed bills this session is Senate Bill 0047, authored by Senator Waterman (R, Dist. 39) and now before the Committee on the Judiciary for its first reading. The bill would allow certain incarcerated persons who have been sentenced to: (1) at least 200 years imprisonment; (2) an executed sentence of life imprisonment; or (3) life imprisonment without parole; to request the imposition of a death sentence. Individuals requesting the sentence would be interviewed by a psychologist or psychiatrist to determine whether the person understands the proceedings, is mentally ill or has mental retardation (as defined in IC 35-36-9-2), and whether the person has attempted suicide, among other things. Should they have a change of heart, the incarcerated person has the authority suspend execution and reinstate the original sentence.
While evaluating this bill, we ought to consider three major points: the cost comparison for the taxpayers of the two options, the Constitutionality of the bill, and whether this is a fair punishment in the eyes of the victims.
Many studies suggest that the actual cost of imposing the death penalty is higher than putting a person in prison for life. The Indiana Criminal Justice Institute notes that the major reason that is true is that "[in] Indiana[,] capital cases are more extensively litigated than other murder cases… When the ultimate penalty is at stake, litigation moves into a 'super due process' mode that goes above and beyond the due process invoked by a potential term of years." Goodpaster, Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole, The Application of Indiana's Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission, 2002, at 122A. The report states that the death penalty costs exceed "life without parole" costs by 34% to 37%. Id. But for cases covered under the new law, the cost of the original trial would be the same as any other non-capital offense.
Admittedly, the cost of the court hearing and psychological testing would drive up the cost of the death penalty. However, the individual would not use prison (and thus taxpayer) resources for the remainder of their life. The report puts the estimated time on death row at 10.5 years, and the average stay for LWOP at 30-40 years. Id at 122E. Further, the report puts the cost of health care for aging prisoners at over $6000 per year. Id at 122D. Assuming that the person elected to have the death penalty shortly after their sentencing, and that the psychological screening took only a short while, the incarcerated person could potentially have received death within one to two years. Compared to thirty years, the taxpayers are saving quite a bit of money. Even if the individual waits five years (and all possible appeals), the turnaround under this bill would be so quick that there would not be a 10.5 year wait for death. Purely economically, incarcerated persons electing the death penalty could save Hoosier taxpayers thousands, while freeing needed space in our already overcrowded prisons.
Of course the major concern ought to be the constitutionality of the bill, both in the Indiana and U.S. Constitutions. After all, a jury of his or her peers found only that the incarcerated ought to be in prison for life, not that he or she ought to be executed. To punish a person more than a jury saw fit might be considered cruel or unusual. I sought comparable laws in other states, but it seems that Indiana is the first to propose one. As such, no such law has been tested by any court for its constitutionality. Some states do allow death row inmates to choose their method of execution, and this has been found to be constitutional. Looking purely at the language of the Constitution, it would seem that the voluntary election of the death penalty can hardly be considered cruel, since the incarcerated is putting the punishment onto himself. Can one be cruel to oneself? Yes, but people with such tendencies would likely be ruled out through the psychological exam. I would tend to believe that such a law is constitutional, but without precedent to guide me, it is frankly a shot in the dark.
Perhaps the concern that some taxpayers and believers in punishment will have is the concern that choosing the death penalty is a cop out. I tend to agree with this view. It is much easier for a person to elect death than to sit in a cell thinking about their crimes, their solitude. Just as we tend to call suicide "the coward's way out," allowing a needle into your arm (should our honorable Supreme Court hold needles still uncruel and usual) could be called cowardly. Passing such a law could be seen as weak on crime.
On the other hand, one of the primary concerns with the death penalty is that it kills innocent people. Yes, without a doubt innocent people have been sentenced to death. However, I cannot believe that an innocent person would elect to choose death, and thus the law would have 100% accuracy. An innocent person clings to hope, believing that they will one day be vindicated and set free. Even those who lose hope couldn't pass the psychological exam, because "I've lost hope" hardly qualifies as a reason to elect death.
I certainly am not suggesting that I like or dislike the law. I think it is inventive, and certainly worth looking at. I simply hope that the Judicial Committee, and eventually the General Assembly, will consider these points as they debate the purpose, wording, and efficacy of this bill.
As part of this year's General Assembly Series, I wanted to take a closer look at some of the proposed bills that our elected representatives have put forth as being the will of the people. This series will run over the next week or two, and will give me a chance to inform the public about some of the laws being debated.
One of the more interesting proposed bills this session is Senate Bill 0047, authored by Senator Waterman (R, Dist. 39) and now before the Committee on the Judiciary for its first reading. The bill would allow certain incarcerated persons who have been sentenced to: (1) at least 200 years imprisonment; (2) an executed sentence of life imprisonment; or (3) life imprisonment without parole; to request the imposition of a death sentence. Individuals requesting the sentence would be interviewed by a psychologist or psychiatrist to determine whether the person understands the proceedings, is mentally ill or has mental retardation (as defined in IC 35-36-9-2), and whether the person has attempted suicide, among other things. Should they have a change of heart, the incarcerated person has the authority suspend execution and reinstate the original sentence.
While evaluating this bill, we ought to consider three major points: the cost comparison for the taxpayers of the two options, the Constitutionality of the bill, and whether this is a fair punishment in the eyes of the victims.
Many studies suggest that the actual cost of imposing the death penalty is higher than putting a person in prison for life. The Indiana Criminal Justice Institute notes that the major reason that is true is that "[in] Indiana[,] capital cases are more extensively litigated than other murder cases… When the ultimate penalty is at stake, litigation moves into a 'super due process' mode that goes above and beyond the due process invoked by a potential term of years." Goodpaster, Cost Comparison between a Death Penalty Case and a Case Where the Charge and Conviction is Life without Parole, The Application of Indiana's Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission, 2002, at 122A. The report states that the death penalty costs exceed "life without parole" costs by 34% to 37%. Id. But for cases covered under the new law, the cost of the original trial would be the same as any other non-capital offense.
Admittedly, the cost of the court hearing and psychological testing would drive up the cost of the death penalty. However, the individual would not use prison (and thus taxpayer) resources for the remainder of their life. The report puts the estimated time on death row at 10.5 years, and the average stay for LWOP at 30-40 years. Id at 122E. Further, the report puts the cost of health care for aging prisoners at over $6000 per year. Id at 122D. Assuming that the person elected to have the death penalty shortly after their sentencing, and that the psychological screening took only a short while, the incarcerated person could potentially have received death within one to two years. Compared to thirty years, the taxpayers are saving quite a bit of money. Even if the individual waits five years (and all possible appeals), the turnaround under this bill would be so quick that there would not be a 10.5 year wait for death. Purely economically, incarcerated persons electing the death penalty could save Hoosier taxpayers thousands, while freeing needed space in our already overcrowded prisons.
Of course the major concern ought to be the constitutionality of the bill, both in the Indiana and U.S. Constitutions. After all, a jury of his or her peers found only that the incarcerated ought to be in prison for life, not that he or she ought to be executed. To punish a person more than a jury saw fit might be considered cruel or unusual. I sought comparable laws in other states, but it seems that Indiana is the first to propose one. As such, no such law has been tested by any court for its constitutionality. Some states do allow death row inmates to choose their method of execution, and this has been found to be constitutional. Looking purely at the language of the Constitution, it would seem that the voluntary election of the death penalty can hardly be considered cruel, since the incarcerated is putting the punishment onto himself. Can one be cruel to oneself? Yes, but people with such tendencies would likely be ruled out through the psychological exam. I would tend to believe that such a law is constitutional, but without precedent to guide me, it is frankly a shot in the dark.
Perhaps the concern that some taxpayers and believers in punishment will have is the concern that choosing the death penalty is a cop out. I tend to agree with this view. It is much easier for a person to elect death than to sit in a cell thinking about their crimes, their solitude. Just as we tend to call suicide "the coward's way out," allowing a needle into your arm (should our honorable Supreme Court hold needles still uncruel and usual) could be called cowardly. Passing such a law could be seen as weak on crime.
On the other hand, one of the primary concerns with the death penalty is that it kills innocent people. Yes, without a doubt innocent people have been sentenced to death. However, I cannot believe that an innocent person would elect to choose death, and thus the law would have 100% accuracy. An innocent person clings to hope, believing that they will one day be vindicated and set free. Even those who lose hope couldn't pass the psychological exam, because "I've lost hope" hardly qualifies as a reason to elect death.
I certainly am not suggesting that I like or dislike the law. I think it is inventive, and certainly worth looking at. I simply hope that the Judicial Committee, and eventually the General Assembly, will consider these points as they debate the purpose, wording, and efficacy of this bill.
8.29.2007
Oenophiles rejoice!
One of the great perks of being situated in south-central Indiana is that I happen to be in wine country (as much as one can have in this particular climate). There are several wineries in the Bloomington area, and I have to believe that their presence brings Indiana Law a wealth of connoisseur law professors.
Ironically, Indiana is a harsh place to be an oenophile. The state is in the pockets of the large alcohol distributors, providing that we can't import wine from out of state, and, until recently, couldn't even have wine from Indiana wineries shipped to our homes (today, the restrictions on wine shipping are still extremely harsh). As a result of this environment, several lawsuits have been brought in an attempt to loosen the grip of these distributors. Fortunately, the biggest wine lovers I know are all law professors.
One such professor, Patrick Baude, was recently involved in a suit, and today the court ruled in his favor. I'd love to summarize the decision, but aside from its length*, I'd hate to screw up briefing a professor's case. If and when I have Professor Baude again, I'd hate for that to be hanging over my head.
"This litigation challenges the constitutionality of Indiana laws that allegedly restrict the ability of wineries, and out-of-state wineries in particular, to sell their product directly to Indiana residents, primarily by orders placed by telephone or over the Internet."
Preventing out-of-state wineries from shipping to Indiana residents violates the Commerce Clause. The defendants, the Indiana ATC and one of the wholesalers, say that the restrictions are there "for the children". Poppycock, says the court (not in those words, of course).
The gist of the decision:
"[T]he court finds the wholesale prohibition, Ind. Code § 7.1-3-26-7(a)(6), to be unconstitutional insofar as it bars wineries that possess wholesale privileges in states other than Indiana from seeking a Direct Wine Seller’s permit. The court also finds the requirement of an initial face-to-face transaction between a winery and customer prior to direct shipment, as described in Ind. Code §§ 7.1-3-26-6(4), 7.1-3-26-9(1)(A), to be unconstitutional. These two conditions constitute a form of economic protectionism and violate the Commerce Clause of the Constitution.
"The court does not find Indiana’s general prohibition of direct shipping, Ind. Code Ind. Code § 7.1-5-11-1.5, to be unconstitutional except with respect to the two specific conditions in the statutory provisions cited above. Nor does the court find the statute allowing an Indiana farm winery to sell its product onsite and at certain other locations, Ind. Code § 7.1-3-12-5, to be unconstitutional."
Not a complete knock-out win, but definitely a step in the right direction. So on this night, I propose a toast to Professor Baude and his success in this litigation. Congratulations!
*Please note, Professor, that I did actually read the whole case. I just didn't think my readers wanted the details.
Ironically, Indiana is a harsh place to be an oenophile. The state is in the pockets of the large alcohol distributors, providing that we can't import wine from out of state, and, until recently, couldn't even have wine from Indiana wineries shipped to our homes (today, the restrictions on wine shipping are still extremely harsh). As a result of this environment, several lawsuits have been brought in an attempt to loosen the grip of these distributors. Fortunately, the biggest wine lovers I know are all law professors.
One such professor, Patrick Baude, was recently involved in a suit, and today the court ruled in his favor. I'd love to summarize the decision, but aside from its length*, I'd hate to screw up briefing a professor's case. If and when I have Professor Baude again, I'd hate for that to be hanging over my head.
"This litigation challenges the constitutionality of Indiana laws that allegedly restrict the ability of wineries, and out-of-state wineries in particular, to sell their product directly to Indiana residents, primarily by orders placed by telephone or over the Internet."
Preventing out-of-state wineries from shipping to Indiana residents violates the Commerce Clause. The defendants, the Indiana ATC and one of the wholesalers, say that the restrictions are there "for the children". Poppycock, says the court (not in those words, of course).
The gist of the decision:
"[T]he court finds the wholesale prohibition, Ind. Code § 7.1-3-26-7(a)(6), to be unconstitutional insofar as it bars wineries that possess wholesale privileges in states other than Indiana from seeking a Direct Wine Seller’s permit. The court also finds the requirement of an initial face-to-face transaction between a winery and customer prior to direct shipment, as described in Ind. Code §§ 7.1-3-26-6(4), 7.1-3-26-9(1)(A), to be unconstitutional. These two conditions constitute a form of economic protectionism and violate the Commerce Clause of the Constitution.
"The court does not find Indiana’s general prohibition of direct shipping, Ind. Code Ind. Code § 7.1-5-11-1.5, to be unconstitutional except with respect to the two specific conditions in the statutory provisions cited above. Nor does the court find the statute allowing an Indiana farm winery to sell its product onsite and at certain other locations, Ind. Code § 7.1-3-12-5, to be unconstitutional."
Not a complete knock-out win, but definitely a step in the right direction. So on this night, I propose a toast to Professor Baude and his success in this litigation. Congratulations!
*Please note, Professor, that I did actually read the whole case. I just didn't think my readers wanted the details.
7.09.2007
Nanny State Strikes Again
First of all, before I get started, I want to give a shoutout to the several blogs that have linked to mine in the past week or so. I have all of them in the Blogroll to your right, but I appreciate the warm welcome to IU Law from Doug Hass and Kyle Michael, and of course the links from Evan Schaeffer are always appreciated.
This was a sad week in Indiana for civil liberties. At the demands of the General Assembly, Indiana modified its seat belt laws to require use for all occupants of a motor vehicle, with a few exceptions for farm trucks, mail carriers, and newpaper delivery persons, among others. I simply cannot agree with this law and its alleged benefits for the public.
I agree completely that seat belts are a good idea. For the love of mercy, wear a damn seatbelt. Since we were kids, we've been raised to know that seat belts make driving much safer, and news stories abound of what happens when you don't (like Governor Corzine's incident in New Jersey when his SUV was driving 91 mph). Plain and simple, if you don't wear a seat belt, you are taking unnecesary risks in an age when stupid drivers are everywhere.
That said, the government has no place telling me how I should behave in my space. Who is harmed when I don't wear a seat belt? Well, unless my body flies out of the car and happens to hit another vehicle or human being, only myself. I agree with laws saying that parents should buckle in their children (duty of care). And I mostly agree with laws that make seat belts in cars mandatory (though my libertarian beliefs lead me to believe that a car company would have to be stupid not to install them anyways, simply because sales to educated [or common sense-using] consumers would drop). But telling me that, as an adult, I can't make up my own mind about my own safety is ridiculous.
Sure, there were 899 seat belt deaths in Indiana in 2006. Again, I'm all for safety. But when the government has to take care of us, we've lost everything that gives us free will, the essence of any free society.
I also oppose these laws from the standpoint of a law student. Generally speaking, I distrust laws criminalizing omission. There are times when such laws are necessary (requiring lifeguards to act to save drowning children, requiring parents to feed their children, and other scenarios where there is a duty to act). But criminalizing NOT acting for one's own good is government coercion. Think about it. Blacks defines coercion as "compulsion by physical force or threat of physical force". What happens if you choose not to wear your seat belt? Punishment by the state.
Perhaps the law is bad also because it encourages arbitrary enforcement. If I get pulled over in my Benz wearing a suit and listening to smooth jazz, I am probably less likely to recieve an actual citation than the poor black kid driving a beat-up Lincoln. Further, police may use this law as an excuse to pull over "suspicious" vehicles for a chance to get a whiff of that potentially pot-laced air. I am not saying that police are naturally corrupt, or that these scenarios will necessarily happen, but it doesn't take much of an imagination to see these problems in the law.
This is the latest in a string of government attempts to make us all better off by taking away our freedoms. It's the little things that count. This may seem minor (like surrendering trans-fats), but it preps us for losing more freedoms in the future. At some point we have to say, "Enough is enough; we can take care of ourselves."
I would love to get some feedback on this if you have a moment. Do you agree/disagree with my position?
This was a sad week in Indiana for civil liberties. At the demands of the General Assembly, Indiana modified its seat belt laws to require use for all occupants of a motor vehicle, with a few exceptions for farm trucks, mail carriers, and newpaper delivery persons, among others. I simply cannot agree with this law and its alleged benefits for the public.
I agree completely that seat belts are a good idea. For the love of mercy, wear a damn seatbelt. Since we were kids, we've been raised to know that seat belts make driving much safer, and news stories abound of what happens when you don't (like Governor Corzine's incident in New Jersey when his SUV was driving 91 mph). Plain and simple, if you don't wear a seat belt, you are taking unnecesary risks in an age when stupid drivers are everywhere.
That said, the government has no place telling me how I should behave in my space. Who is harmed when I don't wear a seat belt? Well, unless my body flies out of the car and happens to hit another vehicle or human being, only myself. I agree with laws saying that parents should buckle in their children (duty of care). And I mostly agree with laws that make seat belts in cars mandatory (though my libertarian beliefs lead me to believe that a car company would have to be stupid not to install them anyways, simply because sales to educated [or common sense-using] consumers would drop). But telling me that, as an adult, I can't make up my own mind about my own safety is ridiculous.
Sure, there were 899 seat belt deaths in Indiana in 2006. Again, I'm all for safety. But when the government has to take care of us, we've lost everything that gives us free will, the essence of any free society.
I also oppose these laws from the standpoint of a law student. Generally speaking, I distrust laws criminalizing omission. There are times when such laws are necessary (requiring lifeguards to act to save drowning children, requiring parents to feed their children, and other scenarios where there is a duty to act). But criminalizing NOT acting for one's own good is government coercion. Think about it. Blacks defines coercion as "compulsion by physical force or threat of physical force". What happens if you choose not to wear your seat belt? Punishment by the state.
Perhaps the law is bad also because it encourages arbitrary enforcement. If I get pulled over in my Benz wearing a suit and listening to smooth jazz, I am probably less likely to recieve an actual citation than the poor black kid driving a beat-up Lincoln. Further, police may use this law as an excuse to pull over "suspicious" vehicles for a chance to get a whiff of that potentially pot-laced air. I am not saying that police are naturally corrupt, or that these scenarios will necessarily happen, but it doesn't take much of an imagination to see these problems in the law.
This is the latest in a string of government attempts to make us all better off by taking away our freedoms. It's the little things that count. This may seem minor (like surrendering trans-fats), but it preps us for losing more freedoms in the future. At some point we have to say, "Enough is enough; we can take care of ourselves."
I would love to get some feedback on this if you have a moment. Do you agree/disagree with my position?
2.23.2007
SJR7: A Legal and Philosophical Analysis of the Indiana "Gay Marriage Ban"
Ten days ago, the Indiana Senate passed Senate Joint Resolution No. 0007 (SJR7) in a 39-10 vote. This mimics the same vote in 2005, which passed 42-8 in the Senate and 76-23 in the House. The text of this bill, kept the same as the 2005 bill, was read by the Senate Committee on Judiciary, and was reported favorably with a "Do Pass" recommendation. The text of the bill would create an additional section in Article 1 of the Indiana Constitution, to follow immediately Section 37 (the elimination of slavery in the state). The exact text that would be amended is as follows:
Section 38. (a) Marriage in Indiana consists only of the union of one man and one woman. (b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
If passed by the Indiana voters, Indiana would be the 28th state to constitutionally define marriage.
The procedure to amend the Constitution of Indiana is no small task, and there is only one method of amendment, as opposed to the Central government (commonly called the Federal government, a misnomer since the word federal actually encapsulates both state and national government), which has many ways to amend. As described in Article 16 of the Indiana code, the amendment can be put forth by either branch of the General Assembly. If a simple majority of both houses agree, the bill is entered into the journals, and must wait for the next Assembly (presumably 2 years later). If the bill passes both houses with a simple majority without any changes, the bill is sent to the electorate at the next general election. If more than 50% of the voters that turn out approve the amendment, the Constitution is so changed, and every judge in Indiana must respect that law.
I should point out that Indiana law already defines marriage as one man and one woman. That law was originally more of a dig at polygamists that homosexuals. But the wording is clear, and the law stands. So why do we need to amend our Constitution if it's already a law? This is a question asked by most of the opponents of the bill, but it's quite simple. The Republicans in control of the Indiana GA are actually correct when they say that an "activist judge" could overturn the law. That's because that law is unconstitutional, and, frankly, I'm surprised that the law hasn't been struck down yet.
The Indiana Bill of Rights in Article 1 clearly states in section 23 that "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." So by allowing heterosexual couples the privileges of marriage (including tax breaks, adoption permits, insurance, hospital visitation rights, and much more), the GA has granted a class of citizens privileges over another class. This is right in line with not allowing blacks to marry (wait, we did that for a while too) or allow races to mix. Obviously, the law on the books now is unconstitutional, and the GA Republicans know that. They may be bigots, but they're not (all) stupid. So to make that law constitutional, they would have to change the Constitution. Removing Section 23 is probably not going to happen, since it would allow the GA to prevent blacks from voting or women from driving. So they have to add a section to justify their law.
Let me talk a bit about the philosophy of this law. Now, the same type of thing has been discussed on the National level, and it is my opinion that any Central mandate on marriage would be unconstitutional, and downright wrong. The Tenth amendment gives the states rights to control every not discussed in the Constitution, including licenses, law enforcement, and, yes, marriage. If any one is going to make a law banning some sort of marriage, it HAS to be the states, and there is no way to justify it any other way. That's right in line with allowing the Central government to control education (which, they do, and since they took over in the 1940s, Americans have gotten stupider and have received poorer educations than they ever did under state control).
But even though states have the legal right to define marriage, should they? Where I come from, dictionaries define, not politicians. Does the state have the right to tell churches what they can use their money for? No. Does the state have the right to tell churches how to pray, or who to pray for? No. So why can the state tell churches who to marry (or not)? Most churches won't marry same-sex couples anyway, but those that will have determined that it is religiously okay to do so. And if a same-sex couple wants to get married in a civil ceremony at the courthouse, why shouldn't they be permitted to? Who does their union hurt?
Okay, yes, the state would receive fewer tax revenues because of marriage deductions. That would be a drop in the bucket for Indiana, whose GDP is about the same as the Netherlands. Any other harm done? "Uncomfortable" situations when neighbors meet, maybe? Come on, every television show has done an episode where gay neighbors move in, and while at first the family is uncomfortable with how to talk to them, eventually they come to the conclusion that same-sex couples are just as normal as they are, if not more so. That's not "liberal media" spreading a message, it's how it works.
If you grew up in a conservative white-collar suburb like I did, you can remember the day that the first black family moved into the neighborhood. At first, everyone was nervous. Change is unusual, and we responded in different ways. But eventually we realized that they were just like us, that those kids could play tag and kick-the-can just like we could. The same thing would happen in a neighborhood if a gay couple moved in. At first, sure, there would be a lot of staring and a "there goes the neighborhood" sort of atmosphere. But that wears off, and normalcy returns. The state allowing same-sex marriage would hurt no one. Yet it would make citizens of the state happy. God forbid that government ever allows that.
I really hate that this law is even put forth in a state I love so dearly. I really do love Indiana, and I want to live here for the rest of my days (less maybe 8 years in D.C.). But I find it offensive that our lawmakers would even suggest such a law, and I will find it equally reprehensible if the electorate of this state writes bigotry into our Constitution. All for what, to prevent "activist judges" from interpreting the law as they see fit (hello, that's what judges do)? It doesn't take an activist judge to see that the law is unfair and unconstitutional. I haven't even walked into a law school classroom yet and I can tell you that.
So what do I do? Do I abandon the state that I love so much? Do I become part of the "Brain Drain" and jump off a ship that is clearly heading for an iceberg? No. I can understand people of my generation wanting to get off this ship, but I'm staying. Positive change can come just as quick as negative change.
I think this law will pass, and I believe the electorate of Indiana will pass the amendment. That's how little faith I have in the electorate of Indiana. Don't get me wrong, I'm conservative, but this goes too far. A real Republican would never vote for this law, because it's a case of the state telling people what they can and cannot do, and real Republicans hate that. Where they got the notion that being Republican meant being a religiously conservative person, I will never know. This is just another case of the government doing more than we pay them for. I'm a Libertarian, and this amendment is just one of many reasons why.
In conclusion, there is no justification for allowing a ban on gay marriage in our state. Legally and philosophically, there just isn't a convincing argument to be made for the law, and proponents of the amendment prove this by using religion to support their cause. But it will pass, and will become law, unless the minds of Hoosier voters turn dramatically.
Even if this law passes, don't leave the state as part of the Brain Drain. The State would be wrong, and the voters too, but I swear to you that when I get control of the Governor's office, that amendment will be wiped off the books. I can't get elected -- freedom-minded people can't get elected -- if the people that believe in their ideals leave the state. Stay here. Be a Hoosier. Love Indiana, even when you occasionally disagree with it. Only then will the love be returned.
And vote NO on SJR7.
Section 38. (a) Marriage in Indiana consists only of the union of one man and one woman. (b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
If passed by the Indiana voters, Indiana would be the 28th state to constitutionally define marriage.
The procedure to amend the Constitution of Indiana is no small task, and there is only one method of amendment, as opposed to the Central government (commonly called the Federal government, a misnomer since the word federal actually encapsulates both state and national government), which has many ways to amend. As described in Article 16 of the Indiana code, the amendment can be put forth by either branch of the General Assembly. If a simple majority of both houses agree, the bill is entered into the journals, and must wait for the next Assembly (presumably 2 years later). If the bill passes both houses with a simple majority without any changes, the bill is sent to the electorate at the next general election. If more than 50% of the voters that turn out approve the amendment, the Constitution is so changed, and every judge in Indiana must respect that law.
I should point out that Indiana law already defines marriage as one man and one woman. That law was originally more of a dig at polygamists that homosexuals. But the wording is clear, and the law stands. So why do we need to amend our Constitution if it's already a law? This is a question asked by most of the opponents of the bill, but it's quite simple. The Republicans in control of the Indiana GA are actually correct when they say that an "activist judge" could overturn the law. That's because that law is unconstitutional, and, frankly, I'm surprised that the law hasn't been struck down yet.
The Indiana Bill of Rights in Article 1 clearly states in section 23 that "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." So by allowing heterosexual couples the privileges of marriage (including tax breaks, adoption permits, insurance, hospital visitation rights, and much more), the GA has granted a class of citizens privileges over another class. This is right in line with not allowing blacks to marry (wait, we did that for a while too) or allow races to mix. Obviously, the law on the books now is unconstitutional, and the GA Republicans know that. They may be bigots, but they're not (all) stupid. So to make that law constitutional, they would have to change the Constitution. Removing Section 23 is probably not going to happen, since it would allow the GA to prevent blacks from voting or women from driving. So they have to add a section to justify their law.
Let me talk a bit about the philosophy of this law. Now, the same type of thing has been discussed on the National level, and it is my opinion that any Central mandate on marriage would be unconstitutional, and downright wrong. The Tenth amendment gives the states rights to control every not discussed in the Constitution, including licenses, law enforcement, and, yes, marriage. If any one is going to make a law banning some sort of marriage, it HAS to be the states, and there is no way to justify it any other way. That's right in line with allowing the Central government to control education (which, they do, and since they took over in the 1940s, Americans have gotten stupider and have received poorer educations than they ever did under state control).
But even though states have the legal right to define marriage, should they? Where I come from, dictionaries define, not politicians. Does the state have the right to tell churches what they can use their money for? No. Does the state have the right to tell churches how to pray, or who to pray for? No. So why can the state tell churches who to marry (or not)? Most churches won't marry same-sex couples anyway, but those that will have determined that it is religiously okay to do so. And if a same-sex couple wants to get married in a civil ceremony at the courthouse, why shouldn't they be permitted to? Who does their union hurt?
Okay, yes, the state would receive fewer tax revenues because of marriage deductions. That would be a drop in the bucket for Indiana, whose GDP is about the same as the Netherlands. Any other harm done? "Uncomfortable" situations when neighbors meet, maybe? Come on, every television show has done an episode where gay neighbors move in, and while at first the family is uncomfortable with how to talk to them, eventually they come to the conclusion that same-sex couples are just as normal as they are, if not more so. That's not "liberal media" spreading a message, it's how it works.
If you grew up in a conservative white-collar suburb like I did, you can remember the day that the first black family moved into the neighborhood. At first, everyone was nervous. Change is unusual, and we responded in different ways. But eventually we realized that they were just like us, that those kids could play tag and kick-the-can just like we could. The same thing would happen in a neighborhood if a gay couple moved in. At first, sure, there would be a lot of staring and a "there goes the neighborhood" sort of atmosphere. But that wears off, and normalcy returns. The state allowing same-sex marriage would hurt no one. Yet it would make citizens of the state happy. God forbid that government ever allows that.
I really hate that this law is even put forth in a state I love so dearly. I really do love Indiana, and I want to live here for the rest of my days (less maybe 8 years in D.C.). But I find it offensive that our lawmakers would even suggest such a law, and I will find it equally reprehensible if the electorate of this state writes bigotry into our Constitution. All for what, to prevent "activist judges" from interpreting the law as they see fit (hello, that's what judges do)? It doesn't take an activist judge to see that the law is unfair and unconstitutional. I haven't even walked into a law school classroom yet and I can tell you that.
So what do I do? Do I abandon the state that I love so much? Do I become part of the "Brain Drain" and jump off a ship that is clearly heading for an iceberg? No. I can understand people of my generation wanting to get off this ship, but I'm staying. Positive change can come just as quick as negative change.
I think this law will pass, and I believe the electorate of Indiana will pass the amendment. That's how little faith I have in the electorate of Indiana. Don't get me wrong, I'm conservative, but this goes too far. A real Republican would never vote for this law, because it's a case of the state telling people what they can and cannot do, and real Republicans hate that. Where they got the notion that being Republican meant being a religiously conservative person, I will never know. This is just another case of the government doing more than we pay them for. I'm a Libertarian, and this amendment is just one of many reasons why.
In conclusion, there is no justification for allowing a ban on gay marriage in our state. Legally and philosophically, there just isn't a convincing argument to be made for the law, and proponents of the amendment prove this by using religion to support their cause. But it will pass, and will become law, unless the minds of Hoosier voters turn dramatically.
Even if this law passes, don't leave the state as part of the Brain Drain. The State would be wrong, and the voters too, but I swear to you that when I get control of the Governor's office, that amendment will be wiped off the books. I can't get elected -- freedom-minded people can't get elected -- if the people that believe in their ideals leave the state. Stay here. Be a Hoosier. Love Indiana, even when you occasionally disagree with it. Only then will the love be returned.
And vote NO on SJR7.
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