Sticking It To The Constitution

Yesterday, I spoke on a panel on the occasion of Constitution Day here at Marquette University.  What follows is a copy of my remarks: 

Today’s panel asks, “What does it mean to stick to the Constitution?”  This is another way of asking how we – you, me judges, lawmakers – should go about interpreting the meaning of the constitutional text.

Today, this interpretative question is often presented as a binary debate between either originalism or a “living Constitution.”

My argument today is that this clear dichotomy is nothing more than an illusion.  There is not a choice between two stark extremes.  This is because, in practice, most originalists and advocates of a living Constitution tend to meet in the middle.

So this debate between originalism and the living Constitution is often very loud and very energetic, but it tends to distract us from the real question.   Both sides of the debate behave as if the original intent of the Framers of the Constitution is important.  They argue very heatedly over how much weight to give to this original intent, in comparison to other factors such as changing circumstances or contrary precedent.

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Restoring Public Confidence in the Judicial System

“[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Taken from paragraph six of the Preamble[1] to the Model Rules of Professional Conduct, this quote sets out our duty to educate the public.

In April 2009, then Wisconsin State Bar President Diane Diel discussed this very quote in a short article published in Wisconsin Lawyer magazine.[2]  The article focused on the negative effect judicial elections have on the public’s confidence in the judicial system — discussing current Justice Michael Gableman’s allegedly unethical ad that aired during his campaign against Justice Louis Butler and his subsequent disciplinary hearing — and the ever-controversial topic of judicial recusals, focusing on whether judges should be required to recuse themselves from deciding cases in which they received campaign contributions from an interested party.

Diel’s article seems to have foreshadowed the current turbulence in the Wisconsin Supreme Court, which has led to plunging confidence in the judicial system.  

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Dorsey v. United States: So Long, Saving Statute?

Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010.  The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986.  There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime.  However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it.  Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.

Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty.  However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication.  Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent.  By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.

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