Identifying a Wisconsin constitutional claim is easy enough. Open a copy of Wisconsin’s founding charter, and you’ll find substantive rights protecting everything from speech and worship to hunting and fishing. Dig a little deeper, and you’ll find structural protections such as the separation of powers. But what you won’t find is a roadmap to crafting a persuasive argument to support one of these claims. That’s where this article comes in.
Unlike the U.S. Constitution, which has been extensively examined, the Wisconsin Constitution presents a relatively unsettled frontier. If you’re lucky, you might find a handful of insightful cases interpreting the particular provision your client’s claim depends on. But often, your research will turn up just a few cases that might or might not be on point—and might or might not be correctly decided. What arguments can you make with so little to go on?
Fortunately, the Wisconsin Supreme Court recently offered some guidance on this question. It hasn’t made any bold pronouncements per se, but it has revealed the types of constitutional arguments it finds most compelling. Two considerations are paramount: 1) constitutional text, and 2) historical evidence informing how that text was understood when it was adopted. Regardless of judicial philosophy, arguments along these lines have found purchase with all members of the court.
Court Focused on Text and History
Consider, for example, two decisions issued within a few weeks of each other in summer 2022. In State ex rel. Kaul v. Prehn, the court’s more traditionally conservative wing drew on historical evidence from Wisconsin’s founding era – specifically, several 1849 statutes – to conclude that the governor’s appointment and removal powers under the Wisconsin Constitution are not as robust as are the president’s under the U.S. Constitution.1 But relying on historical evidence to inform constitutional meaning isn’t limited to the court’s conservative wing. In Becker v. Dane County, Justice Karofsky authored a majority-lead opinion that analyzed a nondelegation challenge brought under the Wisconsin Constitution.2 Joined by the more traditionally liberal wing of the court, Justice Karofsky drew on the same type of founding-era evidence – an 1849 statute – to conclude that a challenged statute did not violate the constitution’s separation-of-powers principles.3
Of course, there’s nothing new about the Wisconsin Supreme Court’s focus on constitutional text and the history informing that text. It has long looked to “three sources in determining a constitutional provision’s meaning,” all of which focus on text and history: “[1] the plain meaning of the words in the context used; [2] the constitutional debates and the practices in existence at the time of the writing of the constitution; and [3] the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption.”4 For example, in its decision in State v. Halverson (2021), the court unanimously applied this interpretive formulation.5 In Halverson, the court declined to read expanded Miranda protections into the Wisconsin Constitution because there was “no textual or historical basis” to do so.6 Other decisions in recent years also turned on historical evidence informing how constitutional text was understood when ratified (though not always in so unanimous a fashion).7
So, the court responds to arguments rooted in constitutional text and history. Identifying those concerns turns out to be the easy part. Far more challenging is crafting a persuasive argument focused on the text and its history. For that task, I submit the following four-step process.
Step 1: Identify the Relevant Text
All constitutional claims must be rooted in some constitutional text. For example, constitutional rights are tethered to various rights-conferring provisions,8 and the separation of powers is not only inherent in the constitution’s structure but expressly stated in provisions vesting certain powers in specific branches.9 The court has demonstrated time and again that it cares deeply about the text it is asked to interpret and apply.10 So, before going any further, read the constitution and identify with specificity the constitutional text on which your client’s claim relies. Then clearly identify that text in your brief.
Step 2: Ask the Right Question
Once you identify the relevant text, the next step is to ask the question that will guide the rest of the analytical inquiry: What was this text understood to mean when it was adopted?
You should ask this question regardless of ideological preference or judicial philosophy. Focus your inquiry on how the constitutional text was understood when it was adopted because doing so positions you to find the most persuasive evidence to support your constitutional argument (and score a win for your client).
Take, for example, the previously mentioned Prehn case. The U.S. Constitution’s well-known principles regarding the appointment and removal power would have supported a robust understanding of the governor’s power to remove political appointees from office.11 But the court observed that the framers of the Wisconsin Constitution took care to craft a government with a weaker executive than existed at the federal level.12 This sort of Wisconsin-specific, temporally targeted evidence goes directly to what the constitutional text was designed to accomplish. It is persuasive and difficult to ignore or argue around.
There is a caveat. The importance of asking a sufficiently narrow question cannot be exaggerated. The question must focus on the specific ratification timeframe of the specific constitutional provision at issue. The Wisconsin Constitution was enacted in 1848 and has been amended many times since. The timeframe for which historical evidence can inform constitutional meaning depends on when the text was ratified. So, if you want to know what the declaration of rights in article I, section 1 means, ask how it was understood when the provision was ratified in 1848. And if you want to know whether the right to “fish, hunt, trap, and take game” encompasses a particular sporting technique, inquire how its text was understood in 2003 when article I, section 26 was ratified. Every provision of the constitution has a ratification timestamp. Identify it, and then ask how the text was understood at that time.
Step 3: Seek Evidence of Meaning
With the right question identified, the task turns to the most time-intensive step: conducting historical research for evidence that informs how the constitutional text was understood when it was adopted. No historical source is out of bounds, although some are certainly more persuasive than others. Here are a handful of places to begin your research.
Accounts of Wisconsin’s Legal History. Wisconsin Supreme Court opinions have recently cited books and law review articles that provide accounts of Wisconsin’s founding and subsequent legal history.13 These sources provide insightful background information about the considerations that were front of mind at various points in the state’s history and why particular constitutional provisions came to be. Marquette University Law School’s Ray & Kay Eckstein Law Library has compiled a list of resources along these lines.14 The Wisconsin State Law Library also carries several insightful titles under the subject heading “Constitutional History – Wisconsin.” Be sure to check out Milo Quaife’s comprehensive four-volume series on Wisconsin’s founding.15
Notes from the Constitutional Conventions. Wisconsin’s constitution is the product of two conventions, one in 1846 and another in 1847-48.16 The notes from those conventions are available in a locked case at the Wisconsin State Law Library and on microfiche at the Ray & Kay Eckstein Law Library.17 They are also largely reproduced in Quaife’s four-volume series on Wisconsin’s founding.18
Wisconsin’s 1849 Statutes. The court has long found persuasive evidence in the earliest compilation of the Wisconsin Statutes.19 The first legislature was composed of members intimately familiar with the then-freshly drafted state constitution, and the court has therefore assigned significant weight to the practices codified in those statutes.20 A searchable copy of the 1849 statutes is available via HeinOnline’s historical archive of state statutes.21
Statutes Enacted Shortly After Ratification of Constitutional Amendments. As it does with the 1849 statutes, the court has often presumed that the legislature first charged with implementing a constitutional amendment does so consistently with the amendment’s meaning.22 Although the presumption is rebuttable, legislative enactments implementing constitutional amendments usually are valuable sources of meaning.23
Newspaper Archives. Unlike its federal counterpart, the Wisconsin Constitution was crafted during open conventions which were closely followed by the press.24 Therefore, newspaper articles covering the conventions, provide valuable insight into why specific provisions were drafted the way they were. Similarly, subsequent efforts to amend the constitution were covered in print and digital outlets. Those resources may enlighten what the amendments were understood to accomplish when adopted.25 The Archive of Wisconsin Newspapers, available via BadgerLink, is a searchable repository of Wisconsin newspapers dating back to 1852.26 Newspapers.com, which charges a subscription fee, reaches back even further. Quaife’s four-volume series also compiles and reproduces many relevant articles from the state’s founding era.27
Case Law. Cases published shortly after a constitutional provision’s adoption are often instructive – if not controlling – evidence of the text’s meaning.28 And for constitutional amendments that were ratified to supersede a court’s prior decision, the pre-ratification case might serve as evidence of what the amendment accomplished.29
Contemporary Legal Sources. Every provision of the Wisconsin Constitution was written within a legal landscape unique to its time. Reviewing legal resources that were available when a particular provision was ratified, such as treaties and dictionaries, may inform the provision’s meaning.30
Other Constitutions and Sources About Them. The Wisconsin Constitution was in some ways patterned on the U.S. Constitution and other state constitutions in existence during the 1840s.31 Comparing and contrasting the text of then-existing constitutions can offer useful, albeit indirect, evidence of the Wisconsin Constitution’s meaning.32 Similarly, historical sources examining these documents might also prove insightful.33
Anything Else That’s Helpful. This list is by no means exhaustive. Insightful history often appears in unexpected places.34 So examine any resource that could inform the meaning of the relevant constitutional text.
As you conduct this historical research, use whatever organizational method works best for you to catalog the relevant evidence you find. Each piece you uncover will serve as a data point to help inform the meaning of the constitutional text at issue.
Step 4: Synthesize Evidence into an Argument
The final step is to synthesize the evidence identified in step 3 into a persuasive argument that answers the question posed in step 2 (and explains why your client should win). There are many ways to do this step well; every lawyer has a different style. Here are a few things to keep in mind as you proceed.
First, be honest with yourself about the strength of the historical evidence you’ve unearthed. Proving what a constitution means is a matter of examining and weighing competing evidence to determine which interpretation is most likely correct. Assess whether the available evidence 1) supports your proposed interpretation, 2) supports your opponent’s proposed interpretation, or 3) supports some previously unconsidered interpretation. You might conclude that the text is under-determinate and that the court should apply an implementing doctrine (such as tiers of scrutiny) to apply it effectively. Regardless, take stock of the historical evidence available and pay careful attention to how persuasively each data point informs the meaning of the constitutional provision your client’s claim depends on.
Second, make it easy for the court to follow your argument. When briefing, include traceable citations to the historical evidence that supports your case. Whenever possible, include relevant portions of the source materials in your brief’s appendix. Then, with crystal-like clarity, identify the inferences you think the court should draw from each historical source. Keep in mind that the court might not perceive the historical evidence the same way you do, at least initially, so describe your logic in straightforward terms. Use phrases like, “This convention note reveals that the framers chose word A to accomplish B,” or “This early statute demonstrates that practice C is permitted under constitutional provision D,” or “These newspaper articles reveal that constitutional amendment E was enacted to do F.” A clear statement of what the historical evidence reveals is the difference between aimless background information and a persuasive argument.
Finally, consider how the historical evidence comports with the relevant case law. You may find that the history reinforces an argument rooted in precedent. If so, use that evidence to bolster your case. Alternatively, you may conclude that a prior case is wrong and that the historical evidence supports a different interpretation of the constitutional text. Say so, and then make an argument to support your proposed reading.
Conclusion
Text and history are the keys to crafting a persuasive argument in support of a Wisconsin constitutional claim. Follow the steps outlined here – 1) identify the relevant text, 2) ask the right question, 3) seek evidence of meaning, and 4) synthesize the evidence into an argument – and you’ll be equipped to make a persuasive argument on your client’s behalf. Make no mistake, this is an intensive process. But done well, it’s worth the effort.
Also of Interest
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Endnotes
1 State ex rel. Kaul v. Prehn, 2022 WI 50, ¶¶ 44-51, 402 Wis. 2d 539, 976 N.W.2d 821.
2 Becker v. Dane Cnty., 2022 WI 63, 403 Wis. 2d 424, 977 N.W.2d 390 (majority/lead op.) (motion for reconsideration pending).
3 Id. ¶¶ 29-42 (majority/lead op.).
4 State v. Hamdan, 2003 WI 113, ¶ 64 n.29, 264 Wis. 2d 433, 665 N.W.2d 785 (quoted source omitted); see alsoBusé v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976).
5 State v. Halverson, 2021 WI 7, ¶ 26 & n.8, 395 Wis. 2d 385, 953 N.W.2d 847.
6 Id. ¶ 26.
7 See, e.g., James v. Heinrich, 2021 WI 58, ¶¶ 32-48, 397 Wis. 2d 517, 960 N.W.2d 350; Service Emps. Int’l Union, Loc. 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35; Bartlett v. Evers, 2020 WI 68, 393 Wis. 2d 172, 945 N.W.2d 685 (various opinions); State v. Moeser, 2022 WI 76, 405 Wis. 2d 1, 982 N.W.2d 45.
8 See Wis. Const. art. I.
9 See Wis. Const. art. IV, § 1, art. V, § 1, art. VII, § 2.
10 E.g., Service Emps. Int’l Union, 2020 WI 67, ¶ 28, 393 Wis. 2d 38; State v. Lemberger, 2017 WI 39, ¶ 34 n.13, 374 Wis. 2d 617, 893 N.W.2d 232.
11 SeePrehn, 2022 WI 50, ¶ 43, 402 Wis. 2d 539.
12 Id. ¶¶ 44-51.
13 E.g., id. ¶ 48 (citing Ray A. Brown, The Making of the Wisconsin Constitution (Part I), 1949 Wis. L. Rev. 648 (1949) (hereinafter Brown (Part I)); Ray A. Brown, The Making of the Wisconsin Constitution (Part II), 1952 Wis. L. Rev. 23 (1952); Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin’s Legal System (1999)).
14 WI Constitution: History & Revisions, Marquette Univ. Law School (last updated Jan. 2010), https://law.marquette.edu/law-library/wisconsin-constitution-history-and-revisions-selective-bibliography.
15 Milo M. Quaife, The Movement for Statehood, 1845–1846 (1918); Milo M. Quaife, The Convention of 1846 (1919); Milo M. Quaife, The Struggle Over Ratification, 1846–1847 (1920); Milo M. Quaife, The Attainment of Statehood (1928). The first three Quaife volumes are available online via HathiTrust. See also A.O. Wright, An Exposition of the Constitution of the State of Wisconsin (1897).
16 Brown (Part I), supra note 13, at 655 n.*.
17 The call numbers for the 1846 convention journal are KFW2801 1846 .A25 at the Wisconsin State Law Library and KFW2802 1846 .A25 at the Ray & Kay Eckstein Law Library. And the call numbers for the 1847-48 convention journal are KFW2801 1848 .A25 at the Wisconsin State Law Library and KFW2802 1847 .A25 at the Ray & Kay Eckstein Law Library.
18 Supra note 15.
19 E.g., State ex rel. Pluntz v. Johnson, 176 Wis. 107, 114-15, 186 N.W. 729 (1922); Busé, 74 Wis. 2d at 572; Becker, 2022 WI 63, ¶¶ 29-42, 403 Wis. 2d 424; Prehn, 2022 WI 50, ¶¶ 44-51, 402 Wis. 2d 539.
20 State v. Beno, 116 Wis. 2d 122, 138, 341 N.W.2d 668 (1984).
21 https://heinonline.org/HOL/Page?handle=hein.sstatutes/ststwis0001&id=1&size=2&collection=sstatutes&index=sstatutes/state114320.
22 State v. Williams, 2012 WI 59, ¶ 55, 341 Wis. 2d 191, 814 N.W.2d 560.
23 Cf. Daniel R. Suhr, Interpreting the Wisconsin Constitution, 97 Marq. L. Rev. 93, 115-16 (2013).
24 Brown (Part I), supra note 13, at 660..
25 See, e.g., Appling v. Walker, 2014 WI 96, ¶ 29, 358 Wis. 2d 132, 853 N.W.2d 888; Williams, 2012 WI 59, ¶ 53, 341 Wis. 2d 191.
26 Archive of Wisconsin Newspapers, BadgerLink, https://badgerlink.dpi.wi.gov/resource/archive-wisconsin-newspapers.
27 Supra note 15.
28 E.g., Bartlett, 2020 WI 68, ¶¶ 247-249, 393 Wis. 2d 172 (Hagedorn, J., concurring).
29 E.g., State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 165-66, 115 N.W.2d 761 (1962) (superseded by Wis. Const. art. I, § 23).
30 E.g., Koschkee v. Taylor, 2019 WI 76, ¶ 28, 387 Wis. 2d 552, 929 N.W.2d 600; Parsons v. Associated Banc-Corp., 2017 WI 37, ¶ 25 n.4, 374 Wis. 2d 513, 893 N.W.2d 212.
31 Williams, 2012 WI 59, ¶ 35 & n.11, 341 Wis. 2d 191.
32 E.g., State ex. rel. Martin v. Heil, 242 Wis. 41, 56-57, 7 N.W.2d 375 (1942).
33 E.g., Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶¶ 3-11, 376 Wis. 2d 147, 897 N.W.2d 384; Service Emps. Int’l Union, 2020 WI 67, ¶¶ 30-31, 393 Wis. 2d 38.
34 Cf. Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. L. Rev. 1915.
» Cite this article: 96 Wis. Law. 20-25 (March 2023).
