Is Wisconsin’s
Constitution obsolete?
Participants
at conference oppose new constitution
By
David Ziemer
david.ziemer@wislawjournal.com
 |
“A
constitutional convention would be a free-for-all dominated
by special interests.”
Joseph A. Ranney,
Dewitt Ross & Stevens |
Is
the Wisconsin Constitution obsolete?
Not
according to a group of scholars and former governors who gathered
at a conference with that title at Marquette University last week.
But a lot of them would like to eliminate the uniformity of taxation
clause, Article VIII, Section 1. The clause prohibits property
taxes from being leveled on anything but a uniform basis determined
by the property’s assessed value.
The
two-day conference held on Oct. 5 and 6 was a joint project of
the Marquette University Law School, the Wisconsin Alliance of
Cities, and the LaFollette School of Public Affairs at UW-Madison.
Robert
F. Williams, Distinguished Professor of Law at Rutgers University
School of Law, Camden, and the Associate Director of the Center
for State Constitutional Studies, took no position on the question.
However,
he delivered the keynote address, framing the relevant question
as follows: “Is the constitution riddled with piecemeal amendments
that have eroded its coherence, or have the amendments kept the
constitution up to date?”
Wisconsin’s
constitution, drafted in 1848, after a failed attempt in 1846,
is the sixth oldest constitution in the nation — only five
New England states have older ones — and one of few in the
country to have never been revised.
Although
it has been frequently amended, Williams stated that the rate
of amendment — less than one per year — is actually
substantially below the national average.
Williams
stressed that, in evaluating the question, the constitution should
definitely not be compared to the U.S. Constituion. The federal
constitution, he noted, serves to delegate limited powers to the
national government — despite how liberally the Supreme Court
has interpreted it — while a state constitution serves to
limit the residual, plenary authority retained by the states when
the Union was formed.
Thus,
a state constitution must be longer, and must limit much more
authority, he said. Also, unlike the federal constitution, a state
constitution must not be treated as an idealized document, but
is a purely functional one.
In
addition to providing a framework, state constitutions also govern
policy that could be left to the Legislature, noting gambling
and same-sex marriage as examples. Williams stated that Wisconsin’s
has fewer policy provisions than average — 30 percent of
the constitution is devoted to policy, compared to 40 percent
average nationally.
The
Wisconsin Constitution is also more difficult to amend than most,
Williams observed, requiring two sessions of the Legislature and
separate presentation to the voters. Unlike many states, there
is no ballot initiative process.
Besides
the question of whether the constitution is riddled with piecemeal
amendments that erode coherence, or whether the amendments have
kept it up to date, Williams stated that the question of whether
to draft a new constitution comes down to a more practical consideration.
 |
“Does
the constitution stand in the way of the government doing
things it should do, or does it fail to stand in the way of
things that it should stop?”
Robert F. Williams,
Center for State
Constitutional Studies |
“Does
the constitution stand in the way of government doing things it
should do, or does it fail to stand in the way of things that
it should stop?” he asked.
Rephrasing
the question, Williams asked, “Is the constitutional overwhelming
democracy? Or is democracy overwhelming the constitution?”
However,
he noted that on controversial questions such as school choice,
stadium funding, and the uniformity clause, people will invariably
differ on whether the constitution is working or not.
Williams
also observed that the environment is much different now than
when the constitution was adopted in the 1840s. Then, constitutions
were largely drafted by elites who feared popular sovereignty,
he said. Today, citizens throughout the country have “convention
phobia” — the people fear the government insiders who
would be drafting a new constitution.
Observing
“this is not a grassroots conference,” Williams stated
that those who want a new constitution must convince ordinary
citizens that it matters to them.
They
must also expect to be presented with every hot-button issue of
the day.
Sometimes,
he observed, particular issues must be removed from consideration
in order for a successful constitutional revision. In New Jersey,
for example, a new constitution was drafted in 1947. After 100
years of unsuccessful efforts, change was possible only because
reapportionment of the state senate was taken off the table.
Williams
suggested three prerequisites for successfully drafting a new
constitution:
(1)
don’t do it when the legislature is being reapportioned;
(2)
strong gubernatorial leadership is necessary, but not always sufficient;
and
(3)
the actors must consider what is politically achievable.
As
noted, while the participants at the conference were not favorable
to a new constitution, the uniformity clause was a common sore
spot they wanted to repeal. Myron Orfield, executive director
for the Institute on Race & Poverty, at the University of
Minnesota, blamed the clause, and the Wisconsin Supreme Court’s
interpretation of it in Buse v. Smith, 247 N.W.2d 141 (1976),
for urban sprawl.
Orfield
contended that the clause was responsible for an increase in the
Milwau-kee metropolitan area’s land area of 72 percent, despite
a growth of only 7 percent in population.
Stating
that the clause fails to account for “modern metropolitan
reality,” he compared municipalities to states under the
Articles of Confederation, rather than under the U.S. Constitution.
Orfield contended that the clause hurts all types of communities,
from the city of Milwaukee through established suburbs to developing
suburbs, by forcing them to compete for a higher tax base.
According
to Orfield, inasmuch as all citizens want low taxes and high services,
the uniformity clause, as interpreted in Buse, drives people away
from established infrastructure to outlying areas with high tax
bases, high property values, and lower taxes.
Joseph
A. Ranney, an attorney at Dewitt Ross & Stevens, also contended
that a new constitution was not required, but that the uniformity
clause should be repealed, as well as the internal improvements
clause. The internal improvements clause limits borrowing by the
state and municipalities.
Ranney
contended that the Wisconsin Constitution has been a success.
As noted, it is the oldest outside of New England, and although
it has been amended 142 times in 158 years, that is lower than
the national average.
Ranney
noted that the 1846 constitution failed, largely because it contained
many controversial reform provisions, such as women’s property
rights and bank regulation, while the 1848 version left such issues
to the Legislature. As a result, frequent amendment has not been
needed.
Ranney
examined the history of amendments, dividing Wisconsin’s
history into four eras: 1848-1900; 1900-20; 1920-60; and 1960-present.
The
constitutional amendments during the first era, he found, largely
dealt with “housekeeping” amendments — those that
eliminated obsolete matters, such as constitutional provisions
setting the salaries for state employees. However, the era also
expanded the internal improvements clause from the state to municipalities.
The clause provided that municipalities cannot incur total debt
greater than 5 percent of the assessed value of all property within
their limits.
The
period 1900-20 — covering the Progressive Era — Ranney
found noteworthy for the high rate at which constitutional amendments
were proposed — and rejected. Twenty-seven amendments were
submitted to the voters during the period, compared with only
24 in the state’s first 52 yeas, but only 52 percent were
approved, compared with 71 percent in the earlier era. Ten amendments
proposed by the Progressives were rejected by the voters in the
1914 election alone.
The
period 1920-60 produced fewer proposed amendments, only 40. The
central theme of the amendments, Ranney found, was incremental
expansion of governmental authority to promote social and economic
welfare. Many of the amendments passed amended the internal improvements
clause to permit greater borrowing by the state and municipal
governments.
The
period from 1960 to the present, Ranney said, is noteworthy for
the expansion of the bill of rights and the expansion of gambling,
which was wholly prohibited until 1965, but has greatly expanded
since. Also, as in the previous era, many amendments contracted
the internal improvements clause and the uniformity clause.
Ranney
also found that many of the proposed amendments during this era
have been substantive, rather than procedural, and very controversial,
dealing with issues such as gambling, the right to bear arms,
and same-sex marriage.
Concluding,
“in the main, Wisconsin’s constitutional system has
been successful,” Ranney recommended four changes in lieu
of a new constitution:
(1)
eliminate the internal improvements clause altogether;
(2)
eliminate the uniformity clause altogether;
(3)
eliminate whatever obsolete “housekeeping” clauses remain;
and
(4)
make the constitution harder to amend by requiring popular vote
of two-thirds, rather than a majority.
Rejecting
a call for a new constitution, Ranney asserted, “A constitutional
convention would be a free-for-all dominated by special interests.”
That
opinion was largely shared by the former governors who participated
in the Thursday night roundtable, as well.
Asserting
that a new constitution is unnecessary, former Gov. Patrick J.
Lucey noted that, during his tenure as governor, the constitution
underwent major amendments to revamp the judicial branch; the
court of appeals was created, the trial courts were restructured,
and the Supreme Court was given rule-making authority and power
over attorney discipline.
However,
the Buse decision was also issued during his tenure, and he supported
amendment of the uniformity clause to permit sharing of property
taxes among municipalities.
Former
Gov. Anthony S. Earl also opposed a constitutional convention,
stating that it is only individual court interpretations that
he disagrees with, not the constitution as written.
Even
former Lt. Gov. Margaret Farrow supported amendment to the uniformity
clause, although far less drastic than the changes proposed by
others at the conference.
Farrow
said that the uniformity clause discourages mergers between municipalities,
of which there are too many. Because one of the potential units
to a merger invariably carries more debt than the other, the uniformity
clause discourages merger, because the other unit never wants
to be saddled with the other’s debt.
Farrow
thus suggested that the clause be amended in the narrow case of
municipal mergers, so that taxpayers in each body could remain
responsible for their own debt for a limited period of time, rather
than combining the entire debt and obligating all taxpayers in
the new government to retire it equally.
Lucey
also proposed that the constitution be amended so that the offices
of secretary of state and superintendent of public instruction
would be filled by appointment from the governor, rather than
elected statewide. Lucey dismissed the secretary of state’s
position as insignificant, and complained that, in the last 25
years, the department of public instruction has been politicized
by the teachers’ unions.
Former
Gov. Lee Sherman Dreyfus was too ill to attend, but appeared by
video. Like many of the others, he feared that any constitutional
convention would be hijacked by special interests. “Go slow!”
he warned.
The
conference contrarian, William Niskanen, chairman of the Cato
Institute, also opposed a new constitution, arguing that, relative
to other states, Wisconsin is performing well.
Nevertheless,
he argued, “Citizens should consider changes to the constitution
to make Wisconsin demonstrably superior to other states.”
His proposals for change were vastly different than those of the
other participants.
Fiscally,
he suggested the following amendments: limiting state expenditures
to 110 percent of revenues from the second prior fiscal year,
unless legislators approve a greater amount; providing that the
rate of taxes may not be increased without the approval of legislators
elected to the next session; and requiring the state to compensate
local governments for the incremental cost of any new state mandates.
On
education, he urged that school vouchers not be limited to poor
students in Milwaukee, but be available to all students.
Papers
by the participants in the conference will be published in an
upcoming issue of the Marquette Law Review.
