February 17, 2008

Does Gableman need a civics lesson?

A local conservative, returning from a Michael Gableman event, tells us that Gableman made a comment that "just might shock the liberals." Asked to opine on some legislation currently making its way through Congress, Gableman is reported to have said, 'As long as it passed constitutional muster, I would defer to the legislative branch.'

On its face, this isn't so much shocking as it is just plain strange. Because it's the courts that are often asked to determine whether legislation "passes constitutional muster" in the first place. The question of deferring to the legislature, and to what degree, arises during the court's legal analysis of the legislation compared to the commands or restrictions dictated by the language of a constitution.

Saying legislation "passed constitutional muster" means it survived judicial review — review by the court that compared the legislation to the constitution. Once legislation has survived judicial review, then courts are deferring to themselves when they say legislation has passed constitutional muster.

It's possible that Gableman had in mind advisory opinions. Those are opinions of a State Attorney General sought by the legislature while the legislative process is underway. For example, the legislature may have concerns about the potential unconstitutionality of statutory language, and may seek the opinion of the State AG before finalizing that language.

But advisory opinions are just that — advisory. They don't bind the decisions of the courts in the event the legislation is challenged on constitutional grounds. However, the question that raised Gableman's reply had to do with federal legislation, and there are no advisory opinions in the federal system.

Or maybe Gableman was talking about France, where the courts frequently intervene with written opinions during the course of legislative formulation. Except this isn't France.

If Gableman really did say that, then it should shock everybody, not just liberals. After all, this is a guy who's presenting himself as qualified to sit on the highest appeals court in the State of Wisconsin. Is he?

And if Gableman's understanding of the American constitutional scheme is really as skewed as it appears from that remark, then no wonder his political campaign has been thus far devoted to negative attacks against Justice Butler, and not to presenting a meaningful explication of his own judicial "philosophy." Does he have one?

Instead, all he ever says is that he's a "stark contrast" to Justice Butler. Perhaps we're beginning to see the true basis for that "stark contrast," on a point that clearly favors Justice Butler. Because, for good or ill, I'm pretty sure that Justice Butler understands how the judicial review process works.

[Please visit the iT Butler/Gableman archive.]


Anonymous said...

The way I read the quote, his statement means that he wont' reach further than the Constitution(s) to invalidate laws. See the Court's selective use of statistical analysis in Ferdon for an example of such judicial "overreaching."

illusory tenant said...

A fair cop perhaps, Anon. Although Ferdon may not be your best example, where judges faced the following constitutional language:

"All people ... have certain inherent rights; among these are life, liberty and the pursuit of happiness[.]"

When only three of the inherent rights are enumerated, how can judges not "reach further" than the constitution? In this instance, it practically compels them to do so.

Moreover, the three enumerated rights are themselves so vague, they beg interpretation, and that interpretation cannot be found in the text of the constitution.