Constitutional Interpretation – Page 34 – Marquette University Law School Faculty Blog

Gableman Complaint is Dismissed

Post author:Richard M. Esenberg
Post published:July 8, 2010
Post category:Constitutional Interpretation First Amendment Political Processes & Rhetoric Wisconsin Supreme Court

The Judicial Commission announced today that it is discontinuing prosecution of its complaint against Justice Michael Gableman. Quite apart from the merits of the complaint, this seems like the right thing to do given the deadlock on the Court and the particular positions taken by the Abrahamson and Prosser groups. As I explained here and here, there seems to be no way that further proceedings could be expected to break the impasse.

An interesting constitutional question was embedded within the writings of the Prosser and Abrahamson groups.

Are “Clean Election” Schemes Headed to the Supreme Court?

Post author:Richard M. Esenberg
Post published:June 17, 2010
Post category:Constitutional Interpretation Election Law First Amendment

In a recent piece in the Harvard Journal of Law & Public Policy, I predicted the “lonely death” of public campaign financing. The point was that public financing schemes that provided what are often called “rescue funds,” i.e., additional public money for candidates who face an opponent (or independent opposition) that has spent more than some triggering amount. So, for example, if I am a publicly financed candidate who is running against an internet billionaire or a well financed independent campaign against me (undoubtedly by some group that is for “the children”), I can get additional public money to match the expenditures against me.

My argument was that these asymetrical financing systems are probably unconstitutional and that, as a result, any public financing system will be dwarfed by self financed candidates, independent expenditures or, increasingly, opposition campaigns whose use of the Internet and bundling is likely to dwarf any politically feasible amount of public financing.

Casey as Conscience Protection?

Post author:Richard M. Esenberg
Post published:June 7, 2010
Post category:Constitutional Interpretation

This past weekend I attended (and delivered a paper) at the annual meeting of University Faculty for Life at Catholic University’s Columbus School of Law. My paper had to do with Justice Breyer’s concept of Active Liberty and current notions of popular constitutionalism and abortion rights, focusing on the potential changes in the Roe/Casey framework suggested by (if not expressly called for in) Carhart v. Gonzales. But I’ll discuss that some other time.

Right now, I want to highlight a paper by Catholic’s Mark Rienzi. He argues that Casey‘s “sweet mystery” of life passage ought to create a constitutional right on the part of health care providers not to participate in abortion or to prescribe or administer what they regard to be abortifacients. But I think his argument has the potential to move beyond that and that is both its strength and its weakness.