Originalism, Precedent, and the Wisconsin Constitution

The Wisconsin Constitution was a document prepared in a hurry. The fall 1848 national election was expected to be a referendum on the spread of slavery and the only way for residents of the Wisconsin territory to vote in the national election was for Wisconsin to become a state. In order to become a state, however, Wisconsin first needed a constitution. For 40 days in late December 1847 and January 1848, a constitutional convention met in Madison. Using the 1840’s equivalent, delegates cut and pasted whole sections from the constitutions of New York and Michigan, as well as from an 1846 Wisconsin version that had been soundly rejected by the territory’s voters.

As a result, the finished product, despite having long endured, is filled with anomalies. Perhaps the most striking is that the Wisconsin constitution does not have a Due Process Clause. When this oversight was noticed after ratification, the…