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 Wisconsin Supreme Court simply declared that a Due Process Clause was in fact present in the state’s constitution – either as part of “general principles” or as an unenumerated “inherent right.”

In this presentation, Steven Biskupic looks at how an originalist interpretation should evaluate the anomalies arising from the “cut and pasting” in the Wisconsin constitution and considers whether “original public meaning” should give weight to the constitutional “repairs” undertaken by the early Wisconsin Supreme Court.

Steven M. Biskupic is a lawyer at Biskupic & Jacobs in Mequon, Wisconsin. Since 2005, he has been an adjunct professor at Marquette University Law School. From 2002 to 2008, Biskupic was the presidentially-appointed United States Attorney for the Eastern District of Wisconsin.

Lunch will be served.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.