March 3, 2011

Club For Grothman assistant speaks

And it's none other than Rick Esenberg, who professes the law at Marquette University. Note Prof. Esenberg's — and the memo he discloses he assisted in preparing — conscientious avoidance of Wis. Const. art. IV, § 15, whose text could scarcely be more plain:
Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; . . .
All cases. That is, where there is no treason, felony, or breach of the peace — a Wisconsin court of appeals has lately interpreted this provision to include "all crimes" — there can be no arrest.

Sure, the Senate may "compel" absent members; but the acts of compelling must stop somewhere short of arrest, as absenteeism is hardly treasonous, criminal, or in disturbance of the peace.

O! for the olden days,* when "judicial conservatives" purported to honor the plain text of the law, and counsel "restraint." Perhaps Prof. Rick is arguing for something other than arrest, but he doesn't say.

Custody by means of physical force sounds like an arrest to me.

Ultimately, Sen. Fitzgerald and his conservative private attorneys can formulate all of the rules and resolutions they like, but none of them may trump the constitution's commands where they conflict.

And they clearly do here. Pure partisan politics, is what this is.

Much worse, actually, as the memo suggests that Sen. Julie Lassa, who is pregnant, be "carried ... feet first" into the Senate chamber.

I shite you not, dear readers. Win that "PR war," boys.

* Like probably last week when it was otherwise convenient.

Earlier: If Republicans oppose frivolous lawsuits
Later: Scotts Walker & Fitz — By any farce necessary
Breaking: A Volokh conspirator has been appalled


Anonymous said...

You forgot... "during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session."

So theoretically, all they have to do is not be in session for a period of time, and THEN arrest them. After all, they have left the state to prevent a quorum... so theres no point in being in session then.

illusory tenant said...

I didn't forget it. The clauses are separated by a semi-colon and the second begins with the word "nor" and refers to civil process. The first refers to arrest, which is at issue here. That is, arrest and civil process are two different things, according to this section of the constitution, unless you want to argue that arrest is a component of civil process, which it may have been, in England 241 years ago, as a Volokh conspirator has recently submitted.