Constitutional Interpretation – Page 13 – Marquette University Law School Faculty Blog

When Rules Are Invisible

Post author:Melissa Love Koenig
Post published:March 16, 2013
Post category:Constitutional Interpretation Public

Researchers at CERN laboratory in Switzerland announced this week that they believe they have evidence of the existence of the Higgs boson, or Higgs particle. The Higgs boson and the associated Higgs field help to explain, among other things, how particles achieve mass. In 1964 physicist Peter Higgs and five other researchers theorized the Higgs boson. Researchers at CERN have been colliding particles in the Large Hydron Collider to look for the Higgs boson.

The Higgs boson is part of the Standard Model theory, which explains the interactions and characteristics of subatomic particles. Researchers had accounted for the Higgs boson in their Standard Model calculations over the years. In November 2011, a CERN physicist said, “’For our theory to be right, we need the Higgs to exist. If it doesn’t, we need something to replace it.’” The question now appears to be what kind of Higgs boson researchers have observed.

Reading about the Higgs boson announcement reminded me of Professor Lawrence Tribe’s book The Invisible Constitution. The Higgs boson and the United States Constitution don’t at first glance have much in common, but the way Tribe approaches interpreting the Constitution parallels the approach of theoretical physicists in creating models that explain the invisible rules that govern the physical universe. In fact, Tribe himself draws an analogy to physics throughout the book.

Important Points Won Even as ACA Case Was Lost, Paul Clement Says

Post author:Alan J. Borsuk
Post published:March 7, 2013
Post category:Congress & Congressional Power Constitutional Interpretation Federal Law & Legal System Federalism Public Speakers at Marquette U.S. Supreme Court

Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.”

Remembering Professor Bork

Post author:David R. Papke
Post published:December 20, 2012
Post category:Constitutional Interpretation Judges & Judicial Process Public U.S. Supreme Court

Published reports of the death of Robert Bork on December 19 not surprisingly dwelled on the most controversial events in his long life in the law. As Solicitor General under President Nixon, Bork in 1975 carried out orders to fire the Watergate special prosecutor. In 1987, Bork was nominated for the Supreme Court by President Reagan but then rejected by the Senate. During the 1990s and 2000s, Bork, while employed by conservative think tanks, vigorously argued that elitist liberals were trying to take over the judiciary.

For my own part, I recall Robert Bork from my first year of law school and from the time before he became a prominent national figure. It seems hard to believe, but I actually had Professor Bork for Constitutional Law. I also had Professor Bork for Legal Research and Writing because the Yale Law School in those distant days folded each student’s instruction in legal research and writing into an arbitrarily selected substantive first-year course.

I have no evidence that Professor Bork ever read the assorted memoranda and briefs I wrote “under his tutelage,” but I certainly recall his approach to Constitutional Law.