Constitutional Interpretation – Page 36 – Marquette University Law School Faculty Blog

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.

Rediscovering the Privileges or Immunities Clause

Post author:Michael M. O'Hear
Post published:May 23, 2010
Post category:Constitutional Interpretation Legal History Legal Scholarship

The Privileges or Immunities Clause of the Fourteenth Amendment has been largely dormant since the Slaughterhouse Cases of 1873. Courts generally treat the Clause as adding little or nothing to the Fourteenth Amendment’s two better-known provisions, the Equal Protection and Due Process Clauses. However, Bruce Boyden argues in a new paper on SSRN that the Clause actually does have a distinctive role to play in constitutional doctrine, specifically, by regulating conflicts between states over competing “status regimes.”

As Bruce explains, America’s prototypical “status regime conflict” related to the rights of northern blacks who traveled to pro-slavery states prior to the Civil War. Much litigation resulted from the refusal of some southern and western states to recognize the rights of such travelers. Based on a review of the debates arising from these antebellum cases and the history surrounding the adoption of the Privileges or Immunities Clause, Bruce argues that the Clause was intended to ensure that interstate travelers could retain the legal status they enjoyed in their home states notwithstanding entrenched national divisions over legal status questions.

For Bruce, the ongoing significance of this history is that the Privileges or Immunities Clause should continue to be seen as a device for resolving status regime conflicts.