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Is Wisconsin’s Constitution obsolete?

“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 th
roughout 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 th
e 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.

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