Constitutional Interpretation – Page 35 – Marquette University Law School Faculty Blog

Best of the Blogs

Post author:Richard M. Esenberg
Post published:July 10, 2010
Post category:Constitutional Interpretation Legal History Religion & Law Wisconsin Supreme Court

What do we have this week? Over at the wonderful Mirror of Justice, you can follow a debate involving Michael Perry, Mike Scaperlanda, Robbie George, Robert Hockett and Rick Garnett and others (I’ve linked to some but not all of the posts in the thread) on Pope Benedict XVI’s concern about the “dictatorship of relativism.” Professor Hockett’s argument that terms like “relativism” and “tolerance” often mask conclusions rather than do much argumentative work reminded me of Steven D. Smith’s excellent new book, The Disenchantment of Secular Discourse. I just finished reading it and hope to blog on it shortly.

At Public Discourse, Rob Vischer considers the Supreme Court’s recent decision in Christian Legal Society v. Martinez upholding a requirement at Hastings Law School that recognized student organizations may not exclude students based upon their refusal to accept the organization’s objectives or beliefs. Rob concludes:

The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

At Ballkinization, Jack Balkin expresses concern over a decision Thursday by a district judge in Massachusetts v. HHS finding that the Defense of Marriage Act violates the Tenth Amendment.

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.