Wisconsin & The Meaning of the Arrest Clause


As Akil Amar and Neal Katyal note in a 1995 law review article, modern cases have given the arrest clause such a narrow construction as to make it a “virtual nullity.” They suggest, however, that a broader interpretation of the clause that once prevailed may be more consistent with the original understanding. Specifically, they argue that “arrest” may be “understood more functionally as extending to various civil cases that interfere with– that arrest– a person’s performance of her duties in public office.” In support of this view, they cite, among other things, an 1840 decision of the Wisconsin Supreme Court which held that the privilege should be given a “liberal construction” to ensure “the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of congress.”

Even at the time when the privilege was given its broadest reading, however, there appears to be no case or commentator suggesting that the privilege would in any way inhibit a legislature from arresting its own members. Among other things, such an interpretation would render unconstitutional longstanding rules and practices of both the U.S. House and Senate. For example, a House rule provides that in the absence of a quorum, “a majority of those present may order the Sergeant-at-Arms to send officers appointed by him to arrest those Members for whom no sufficient excuse is made and shall secure and retain their attendance.”

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Something that should go through one WI Senator’s mind is the oft chance that if she follows her Party’s instructions to the bitter end could have a very unpalatable result. The aspect is that her future child’s birth certificate could have as the place of birth the infirmary of a local penitentiary should be a point to cosider. I think she should look at the laws surrounding “unfit parenthood” for those convicted of felonies also. Rhetorically speaking, Is it worth that much of a risk to anothers future to just to show how vindictive you can be?