Constitutional Interpretation – Page 25 – Marquette University Law School Faculty Blog

The Constitutional Right of Recall

Post author:Edward A. Fallone
Post published:August 22, 2011
Post category:Constitutional Interpretation Federalism Political Processes & Rhetoric Public Wisconsin Law & Legal System

The largest newspaper in Wisconsin, the Milwaukee Journal-Sentinel, continues to take the editorial position that the public’s right to recall elected officials should only be exercised in cases of misfeasance in office or of criminal conduct. The editorial page actively disparages the use of the recall process in cases where voters simply disagree with the policy choices of their elected representatives. Recent examples of this editorial position can be seen here, and in the decision to excerpt a similar editorial published by the newspaper USA Today here. On this past Sunday, Steven Walters commented in the Journal-Sentinel on possible amendments to the Wisconsin Constitution intended to modify the existing recall provisions and to bring them into line with the more limited scope advocated by these editorials.

I have commented on this issue before. The editorial position of the Milwaukee Journal-Sentinel is misguided. In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country. The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.”

The Constitutional Equality of Women

Post author:Lisa A. Mazzie
Post published:August 18, 2011
Post category:Constitutional Interpretation Feminism International Law & Diplomacy Public

For young women coming of age today, their equality with men seems assured. As youngsters they’ve played on co-ed sports teams; they’ve often been more successful than boys in school; they’ve pursued careers in previously male-dominated fields like math and science, medicine and law. For them, women have always been able to vote, abortion has always been legal, and women have reached high places in politics. Many probably have mothers (and fathers) who came of age during and after the second wave of feminism, believing they would raise their daughters to believe in their capacity to be equal citizens.

It might surprise some women, then, to learn that women’s equality is not guaranteed, at least not constitutionally.

Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

Post author:Michael M. O'Hear
Post published:July 29, 2011
Post category:Constitutional Interpretation Criminal Law & Process Federal Criminal Law & Process Federalism Public Seventh Circuit

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.