Constitutional Law – Page 32 – Marquette University Law School Faculty Blog

The Legacy of Gideon v. Wainwright in Wisconsin

Post author:Kelli Thompson
Post published:July 3, 2013
Post category:Constitutional Law Criminal Law & Process Public Wisconsin Criminal Law & Process

I’d like to take the opportunity through my posts this month to talk about some of the trends and milestones that I see in the field of law, particularly as it pertains to our criminal justice system.

Gideon v. Wainwright, the landmark 1963 U.S. Supreme Court case, started with a handwritten petition from Clarence Gideon. The decision in Gideon set the country’s criminal justice system on a different course: defendants who could not afford legal counsel had the right be be provided with such representation.

Although the scope of the constitutional right to counsel was established with the Gideon decision, the responsibility and the details of its implementation were left to the individual states. In the early years following the decision, Wisconsin complied with the requirement through a county-by-county system. This county-based approach changed in 1977 when Wisconsin took the strategic step of adopting a statewide model of indigent defense, establishing the Office of the State Public Defender (SPD) as an independent, executive-branch state agency. SPD trial offices started to open across the state, and the appellate representation, previously overseen by the Wisconsin Supreme Court, was transferred to the agency. The SPD ensures that our state meets the constitutional requirements set forth in Gideon.

(Marriage) Equality and the Popularity Paradox

Post author:Irene Ten Cate
Post published:June 30, 2013
Post category:Civil Rights Constitutional Interpretation Constitutional Law Family Law Federalism Public

Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition.

Constitutional Questions Downunder

Post author:Anna High
Post published:June 26, 2013
Post category:Constitutional Law International Law & Diplomacy Public

I woke up this morning to find that Australia, for the time being, has no Prime Minister. The position is vacant following Julia Gillard’s resignation last night. For those of you unfamiliar with antipodean politics, our system is a hybrid “Washminster” system, fusing federal elements of the American system with the British concept of responsible government. The Australian Federal Parliament is bicameral (House of Representatives and Senate). The office of Australian Prime Minister is the apex of the executive structure, but is not directly elected by the Australian people. Citizens vote for Members of Parliament, and the leader of the political party with a majority of seats in the House of Representatives is appointed Prime Minister. Of course, Australians usually bear in mind the leader of each major political party (i.e. the contenders for the position of Prime Minister) when casting their ballots.

As a result of this system, it is possible for a change in Prime Minister to occur mid-term if the ruling Party decides to change leadership (historically, a rare occurrence). It was just such a change that made Julia Gillard Prime Minister in 2010, and today she has been deposed as Prime Minister by the same means.