Constitutional Interpretation – Page 8 – Marquette University Law School Faculty Blog

ACS Panel Explains Voting Rights Litigation in Wisconsin

Post author:Edward A. Fallone
Post published:October 21, 2016
Post category:Civil Rights Constitutional Interpretation Constitutional Law Election Law Judges & Judicial Process Marquette Law School Political Processes & Rhetoric Public Speakers at Marquette Wisconsin Law & Legal System

On October 20, I had the honor of moderating a panel discussion at the Law School devoted to Voting Rights Litigation in Wisconsin. The event was co-sponsored by the Marquette University Law School Student Chapter of the American Constitution Society and the Milwaukee Chapter of the American Constitution Society (ACS). A crowd of approximately 60 persons witnessed a lively presentation on the right to vote under the U.S. Constitution, recent legislation in Wisconsin that places burdens on the ability of some people to vote in our State, and the status of litigation in the federal courts challenging these state laws.

The event began with a welcome from the Chair of the Milwaukee Chapter of the ACS, Attorney Craig Mastantuono. Attorney Mastantuono began with a description of the mission of the American Constitution Society and the benefits of membership. He also noted the excellent timing of the day’s event, given the attention currently being given to the integrity of the American voting system. Then Attorney Mastantuono introduced the Mayor of Milwaukee, the Honorable Tom Barrett.

Mayor Barrett began his remarks by providing the Marquette University law students in attendance with a bit of career advice: namely, the importance of being nice to your colleagues in the workplace. Turning to topic of the federal judiciary, Mayor Barrett criticized lawmakers who impose litmus tests on judicial appointees, in a misguided attempt to ensure that there is “only one type of thinking in our court system.” Mayor Barrett also expressed his disappointment in the fact that Wisconsin is no longer a national leader in ensuring access to the ballot, and criticized recent state laws that have made it more difficult to vote in the City of Milwaukee. Finally, while he touted the benefits of early voting as a means of improving ballot access, the Mayor explained that there are limits to the City’s ability to expand the early voting process due to the City’s interest in maintaining a well-administered voting process.

Time is Running Out to Confirm Judge Garland

Post author:Edward A. Fallone
Post published:August 19, 2016
Post category:Constitutional Interpretation Constitutional Law Judges & Judicial Process Political Processes & Rhetoric Public U.S. Supreme Court

The unprecedented, and unconstitutional, obstruction of Supreme Court nominee Judge Merrick Garland is just one of many recent missteps by Republican leaders. For example, mainstream Republican presidential candidates strategically withheld their attacks on Donald Trump during the primary season, in the hopes that he would be an easy target to topple once the field sorted out. This was a major blunder. More broadly, the decision of Republican leaders in Congress to make the repeal of the Affordable Care Act the centerpiece of their legislative agenda, at a time when Republicans lacked a veto-proof majority, was an empty gesture which merely fueled anger among their Party’s base and ultimately made Trump possible. Both of these decisions were political calculations that seemed clever at the time, but which turned out to have disastrous consequences for the Republican Party. However, the unjustified refusal to hold hearings on a highly-regarded and moderate Supreme Court nominee has the potential to dwarf every other political miscalculation that Republican leaders have made over the last eight years.

First of all, it is important to recognize that Judge Merrick Garland is a laudable nominee for the U.S. Supreme Court. He is a former federal prosecutor, a highly respected Judge on the U.S. Court of Appeals for the District of Columbia, and someone identified by Senator Orrin Hatch and other prominent Republicans (prior to his nomination) as the type of judge who would receive bi-partisan support in Congress. Post-nomination arguments raised about Judge Garland’s supposed lack of respect for the Second Amendment are not justified by his actual opinions and, in reality, are merely a fig leaf contrived to rationalize opposition to the nomination by Republican lawmakers.

In addition, the refusal of the Senate to take up the nomination is a clear violation of the Constitution.

How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

Post author:Edward A. Fallone
Post published:June 23, 2016
Post category:Constitutional Interpretation Constitutional Law Judges & Judicial Process Milwaukee Public Wisconsin Supreme Court

Today the Wisconsin Supreme Court issued its opinion in the case of Black v. City of Milwaukee, 2016 WI 47, holding that a state law (Wis. Stat. 66.0502) that prohibits cities and other municipalities from imposing residency requirements on municipal employees does not contravene the Home Rule provision of the Wisconsin Constitution (Art. XI, sec. 3(1)). The result of the ruling is that the City of Milwaukee may no longer require city employees to reside within the City limits, with the resultant loss of significant tax revenue for Milwaukee.

Reading the text of the Home Rule provision, one might reasonably question how the Wisconsin Supreme Court arrived at this conclusion. The relevant text of Art. XI states:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.

However, the Justices of the Wisconsin Supreme Court have very helpfully demonstrated how the clear language of the Wisconsin Constitution can be interpreted away in four easy steps.

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