Constitutional Interpretation – Page 15 – Marquette University Law School Faculty Blog

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.

Commerce Claws

Post author:Natalie Fleury
Post published:December 11, 2012
Post category:Constitutional Interpretation Constitutional Law Public

There are more than 50 polydactl (6 toed) cats at the Hemingway Museum in Key West Florida. The cats are descended from six-toed felines raised by Hemingway at his house in Key West, which is now a museum. The cats roam the grounds and the house at will. Several years ago, a visitor became concerned about the cats’ welfare, and reported the issue to the US Department of Agriculture. Long story short, the USDA decided the cats fell under the Animal Welfare Act with its accompanying regulations and requirements. The museum filed suit stating that the USDA did not have authority over the cats, the judge disagreed, and the Museum appealed.

Last week a three-judge appeals court panel (11th Circuit) decided the case using a broad interpretation of the Animal Welfare Act. The court also evaluated whether the cats “substantially affect” interstate commerce under the Commerce Clause. One part of the analysis determined that the Hemingway Museum purposefully uses the cats for marketing campaigns to attract visitors from outside of Florida, and as such, their exhibition has a commercial purpose and affects interstate commerce. You can see more about the case here and here.

Home Rule Begins At Home

Post author:Danielle Bergner
Post published:November 29, 2012
Post category:Constitutional Interpretation Constitutional Law Public Wisconsin Law & Legal System

In Wisconsin, the Home Rule Amendment to the Wisconsin Constitution grants cities and villages the power to determine their local affairs and government, subject only to the constitution itself and uniform legislative enactments of statewide concern. The Wisconsin Supreme Court has recognized that the Home Rule Amendment serves not only to empower cities and villages, but also to curtail the power of the state legislature to act within the sphere of local affairs. Van Gilder v. City of Madison, 267 N.W. 25 (1936). The job of defining the proper province of constitutional home rule authority (i.e., what constitutes a matter of “local affairs and government” or a matter of “statewide concern”) falls to the courts and, not surprisingly, it is no easy task. Given the concurrent interest of state and local government in many governmental functions, one may argue that such functions cannot be so classified except by arbitrary reasoning.

Notwithstanding the difficulty in defining its exact reach, local home rule is worth preserving and worth defending.