Constitutional Interpretation – Page 27 – Marquette University Law School Faculty Blog

Defendant Can Raise Tenth-Amendment Challenge to Her Conviction, SCOTUS Rules

Post author:Michael M. O'Hear
Post published:June 16, 2011
Post category:Constitutional Interpretation Criminal Law & Process Federal Criminal Law & Process Federalism U.S. Supreme Court

Earlier today, in Bond v. United States (No. 09-1227), the Supreme Court ruled that the defendant should have been permitted to raise a Tenth-Amendment challenge to the chemical-weapons statute that she was convicted of violating. In response to her indictment for violating 18 U.S.C. § 229, Bond had argued

that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.

The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.

In reversing this decision, the Court did not address the merits of the objections. As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.” Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute. Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.

Cross posted at Life Sentences Blog.

The Constitutionality of the Open Meetings Law

Post author:Edward A. Fallone
Post published:June 8, 2011
Post category:Constitutional Interpretation Wisconsin Law & Legal System Wisconsin Supreme Court

During oral argument this past Monday in Ozanne v. Fitzgerald, the Wisconsin Supreme Court was asked to rule that the Open Meetings Law violates the Wisconsin Constitution to the extent that the law grants authority to the Wisconsin circuit courts to void legislative enactments passed in violation of its provisions.

This is not a novel argument. Over the years, opponents of state “sunshine laws” have filed legal challenges to public records and open meetings laws around the country. Sometimes, these challenges have been based on First Amendment claims. At other times, they have attempted to argue that the judicial enforcement of sunshine laws violates the doctrine of separation of powers.

In 1992, the Supreme Court of Florida considered and rejected this exact argument.

Local Food Systems and the Reawakening of Republicanism

Post author:Gabe Johnson-Karp
Post published:May 31, 2011
Post category:Constitutional Interpretation Legal Scholarship

This post is a summary of a full-length piece that the author is currently working on with Marquette Law School Professor Chad Oldfather. The ideas expressed in this post represent a work in progress, and portions of the argument are likely to undergo substantial revisions before the final piece is completed. Notwithstanding the collaboration with Professor Oldfather, any errors in this piece, either substantive or grammatical, are solely the author’s.

Until recently, the Supreme Court’s Dormant Commerce Clause doctrine has been applied to invalidate states’ attempts to implement legislation that discriminates against out-of-state interests, on the theory that Congress’s affirmative powers under the Commerce Clause necessarily imply a limit on states’ abilities to enact laws that would affect interstate commerce. Recently, the Court has pulled back slightly from its formerly aggressive Dormant Commerce Clause jurisprudence, and there has been a revitalization of federalist principles by which the Court has sought to recognize greater powers in the states to direct local governmental activities. This recent trend has found specific support in a number of the Court’s jurisprudential developments, including its broad interpretation of the Eleventh Amendment and its attempts at narrowing federal powers under the Commerce Clause. However, in light of many of the other developments in federal-state relations, a clearer, more textually defensible basis for a reinvigoration of federalist principles may be found in the Republican Guarantee Clause of Article IV.

This theory is based on the idea that, the Constitution’s guarantee of republicanism provides substantive protections of the rights of the people, as well as the states, to enact legislation intended to further legitimate local interests, regardless of the alleged effect on interstate commerce. Thus, where Congress has not enacted contrary preemptive legislation, the federal courts should refrain from imposing judicial constraints on the peoples’ ability to protect themselves as they elect to do so through the representative process.

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