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Category: Constitutional Interpretation, Legal History, Religion & Law, Wisconsin Supreme Court
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What do we have this week? Over at the wonderful Mirror of Justice, you can follow a debate involving Michael Perry, Mike Scaperlanda, Robbie George, Robert Hockett and Rick Garnett  and others (I’ve linked to some but not all of the posts in the thread) on Pope Benedict XVI’s concern about the “dictatorship of relativism.”  Professor Hockett’s argument that terms like “relativism” and “tolerance” often mask conclusions rather than do much argumentative work reminded me of Steven D. Smith’s excellent new book, The Disenchantment of Secular Discourse. I just finished reading it and hope to  blog on it shortly.

At Public Discourse, Rob Vischer considers the Supreme Court’s recent decision in Christian Legal Society v. Martinez upholding a requirement at Hastings Law School that recognized student organizations may not exclude students based upon their refusal to accept the organization’s objectives or beliefs. Rob concludes:

The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

At Ballkinization, Jack Balkin expresses concern over a decision Thursday by a district judge in Massachusetts v. HHS finding that the Defense of Marriage Act violates the Tenth Amendment. 

Jack supports same sex marriage and opposes DOMA, but the view of the Tenth Amendment adopted by Judge Tauro would, in his view, severely restrict the authority of Congress and “undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” He writes:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

I should note that Judge Tauro issued another decision on Thursday striking DOMA on equal protection grounds.

At the Volokh Conspiracy, Randy Barnett comments on Tom Wood’s recent book, Nullification. The book argues that states have the power to nullify laws that Congress lacks the authority to enact. Professor Barnett is unsympathetic, observing that “[p]olitical activists should not waste their precious energies on sketchy constitutional theories such as the assertion of a state power to nullify unconstitutional laws . . . .”

An interesting aspect of Woods book, at least for us here in Wisconsin, is its discussion of the Wisconsin Supreme Court’s refusal to acknowledge the validity of the Fugitive Slave Act and the decision of the United States Supreme Court in Ableman v. Booth, 62 U.S. 506 (1859). The case grew out of the incarceration in Milwaukee of a fugitive slave named Joshua Glover in 1854. Sherman Booth, who was then editor of the  Milwaukee Free Democrat (later to become the Waukesha Freeman), rode through the streets of the city, announcing “Freemen! To the rescue! Slave catchers are in our midst! Be at the courthouse at two o’clock!”” A group of citizens answered the call and forcibly removed Glover from the  jail in the Milwaukee County courthouse, then located on what is now Cathedral Square. Glover was spirited away to Canada. The incident is memorialized today by a mural on the McKinley Avenue underpass.

Booth was prosecuted by federal authorities  for violation of the Act, but the Wisconsin Supreme Court twice orderd his release. Although the United States Supreme Court reversed these orders, the Wisconsin Supreme Court ultimately declined to accept the mandate.  The Wisconsin Court, which then sat three, split one to one with one recusal (Booth’s lawyer, Byron Paine, had rode abolitionist sentiment to  seat on the court). Thus, deadlock and impasse has a long history here.  The  state legislature promulgated a “Declaration of Defiance” stating that the United States Supreme Court’s decision was void, without authority and of no effect.

Nevertheless, Booth was ultimately rearrested by federal authorities and, like Joshua Glover, forcibly removed from custody by a group of supporters. He was ultimately recaptured but then pardoned by President James Buchanan shortly before the inauguration of Abraham Lincoln.  He was later involved in the case of Gillespie v. Palmer, which held — sixteen years after the fact — that a referendum conducted shortly after statehood granted the vote to African-American males.

But Booth may not have been quite the saint he might seem to be. As his conviction for violation of the Fugitive Slave Act was being considered by the United States Supreme Court, he was tried for the seduction of a fourteen-year-old girl, Caroline Cook. The trial ended in a hung jury.  Booth died in Chicago just before his 92nd birthday but is buried here at the Forest Home Cemetery.

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