Originalism at the Wisconsin Supreme Court

Originalism has stirred much controversy in recent years, with numerous prominent figures taking up cudgels pro and con.  Simply defined, the label originalism stands for the view that such documents as the US and state constitutions should be interpreted as they were understood by the people who drafted them—or, as defenders of originalism have insisted tirelessly, according to the documents’ “original public meaning.”

Nationally, originalism is associated with conservative viewpoints, and such has been the case at the Wisconsin Supreme Court, especially over the last several years following the arrival of a new cohort of conservative justices.  Beginning with the 2019-20 term the court has filed roughly twice as many decisions per term containing non-trivial discussions of originalism as it did from 2015-16 through 2018-19—and approximately five times as many per term as appeared from 2010-11 through 2014-15.[1]

The Conservatives
The impact of recent conservatives poses a question regarding the stance on originalism taken by longer-tenured conservatives, particularly Justices Roggensack and Ziegler.  Both are clearly sympathetic, having joined a number of the vigorous endorsements of originalism authored by others, and they have presented originalist arguments themselves now and then.  Justice Ziegler’s majority opinion in
State v. Jeffrey Moeser (November 2022) sought to establish what constitutes an oath by devoting a few pages to the views of the “Founders” or alternatively “the founding generation.”  Justice Roggensack’s majority opinion in State v Roberson (December 2019) rejected social science as a tool for understanding a constitution—“Social science cannot change the original meaning of the Wisconsin Constitution, any more than it can change the meaning of the United States Constitution”—and she cited Justice Antonin Scalia approvingly on this score.[2]

That said, Justices Roggensack and Ziegler have taken a back seat to other justices in their promotion of originalism, and we can even spot the pair expressing reservations or qualifications on rare occasions that elicited rebukes from harder-line champions of the doctrine.  Thus, in Nancy Bartlett v. Tony Evers (July 2020) Justice Roggensack’s dissent voiced some favor for the limit that the doctrine of stare decisis could put on originalism.  More specifically, she invoked Justice Scalia to caution that deference to precedent created by previous judicial decisions (i.e., stare decisis) should give pause to the argument that an originalist reading of, say, a constitutional provision required the overturning of precedent on one topic or another.  “[E]ven prominent originalists respect stare decisis,” she declared, and named Scalia as Exhibit A.  Consequently, in the case at hand she counseled that “[w]e cannot rehash original meaning—and its interaction with stare decisis—every time a partial veto [from the governor—the issue in this case] comes before us. There is good reason that prominent originalists have recognized stare decisis as an exception to their judicial philosophy.”  And again she cited Scalia.[3]

This provoked Justice Kelly, whose own dissent identified Justice Roggensack by name and quoted her statement that “We cannot rehash original meaning—and its interaction with stare decisis—every time a partial veto comes before us.”  “Maybe,” Justice Kelly responded, “[b]ut if we were to address ourselves to the original meaning of the relevant constitutional text in this case, we wouldn’t be rehashing it, we would be analyzing it for the first time.”  Although stare decisis deserved respect, he continued, “we mustn’t let this principle capture us, for it contains dangers of its own”—concluding that “if the Chief Justice [Roggensack] believes Justice Scalia thought stare decisis should unalterably privilege precedent over text, she is mistaken.”

As for Justice Ziegler, her majority opinion in State v. Mitchell Christen (May 2021) did not rely on originalism to resolve the Second Amendment issue under consideration.  This disturbed Justice Hagedorn, whose concurrence regretted that “the majority’s analysis is insufficiently rooted in the original public meaning of the Second Amendment.  Therefore, I reach the same underlying conclusion, but rest instead on the history of the Second Amendment right as understood when adopted and incorporated against the states.”[4]

Thus, we need to turn to more recent conservatives for full-throated, extended advocacy of originalism, which is readily detectable after Justice Rebecca Bradley joined the court during the 2015-16 term.  Her first leading role in this regard occurred in June 2016, with the filing of a concurrence in Milwaukee Police Association v. City of MilwaukeeIn the process of outlining her originalist position, she employed the phrases “original meaning” and “originally understood” a total of 12 times, including twice in a paragraph that recommended “[c]onsultation of the contemporaneous writings of the framer of a constitutional amendment [that might] aid in ascertaining original meaning …”  Quoting Justice Scalia, she advised that such writings, “‘like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.’”

Justice Kelly arrived the following term (2016-17), and he was soon siding regularly with Justice Bradley as an avid originalist.  For instance, the pair co-authored a dissent in E. Glen Porter v. State of Wisconsin (June 2018), instructing readers that “we may ascertain the original public meaning of liberty by considering the documented perspective of our nation’s founders, in particular the principal author of the Declaration of Independence, Thomas Jefferson.”  The next year, Justice Kelly joined Justice Bradley’s concurrence in State v. Stephan Roberson to emphasize that “[a]scertaining and faithfully applying the original meaning of the Constitution’s words precludes appalling social science-based notions of the day from infecting constitutional analysis.”  It would not be the last time that the pair advanced this argument.[5]

Although Justice Kelly suffered an electoral defeat in 2020, the court had by then acquired another justice—Brian Hagedorn—who entered the lists as an ardent proponent of originalism.  Indeed, so far this term he has taken the lead in asserting its principles—most strikingly in State v. Tomas Jaymitchell Hoyle (a concurrence joined by Justice Rebecca Bradley) and a majority opinion in Wisconsin Justice Initiative v. Wisconsin Elections CommissionWhile not as impassioned as some of Justice Bradley’s discourses on the topic, his two opinions amount to the most sustained defense of originalism yet presented by a Wisconsin Supreme Court justice.

In Hoyle (pertaining to the Fifth Amendment right not to testify) Justice Hagedorn began in the Middle Ages with a description of the shifting acceptance and rejection through subsequent centuries of a right not to testify against oneself in European and especially English and colonial American law—in order to arrive at the “founders’” sense of the Fifth Amendment.  Courts and governments altered this interpretation during the 19th and 20th centuries, Justice Hagedorn continued, but the original meaning of the Fifth Amendment should be one’s guide.

Next, 20 pages into the concurrence, came a detailed exposition of originalism.  Critics, Justice Hagedorn noted, often charge that (1) no generally-accepted understanding of various constitutional principles exists, and thus judges can abuse originalism to reach any outcome they desire; (2) originalism can bring about the repudiation of well-established comprehension of the constitution (essentially, the argument involving stare decisis that we’ve encountered already); and (3) many other tools, not just originalism, should be used for interpreting laws and the constitution.

Confronting these criticisms, Justice Hagedorn insisted that while it may not always be easy to determine a law’s original meaning, it was crucial to concentrate on doing so.  “The foremost reason judges must discern and follow the original meaning,” he explained, “is because a written constitution is the law, and all written laws should be construed to mean what they meant when they were written.”

As for the wide variety of other techniques recommended by critics for interpreting laws, “[s]everal of these—text, history, context, historical practice, and even some precedent—can be relevant to discerning the original meaning of the Constitution,” he granted.  But these tools must not become a means to read the law any way one pleases.  “At the end of the day, the dissent’s method of picking the legal tools you like—what the text meant when written being merely one data point to consider—is a subtle invitation for judges to decide what the Constitution should mean, rather than to keep the focus on what it does mean. This must not be.”

In short, “[o]riginalism may not answer every question,” Justice Hagedorn acknowledged, and “[o]riginalist judges may not always be consistent. But we can be sure of this: A choose-your-own-adventure judicial methodology poses an even greater danger because it offers no rubric to grade one’s fidelity to the law.”

A month and a half later, in Wisconsin Justice Initiative, Justice Hagedorn covered similar originalist ground.  Although he furnished less in the way of a point-by-point response to critics, much of the 42-page opinion featured an endorsement of originalism—“our solemn obligation to follow the original meaning of the constitution.”  Here, readers came upon numerous assertions by now familiar to us, including: “[T]he purpose of constitutional interpretation is to determine what the constitutional text meant when it was written, commonly called the original public meaning or original understanding.”  And, reprising a flourish that he employed in Hoyle, Justice Hagedorn recruited US Supreme Court Justice Neil Gorsuch once more to contend that criticism of originalism “‘isn’t an attack against originalism so much as it is an attack on written law.’”[6]

The Liberals.
What about the court’s liberal justices over the past decade or so?  Were they ever receptive to any aspect of originalism?  As it turns out, early in this interval, when originalist arguments were not surfacing frequently, some of them could be accepted to varying degrees by justices across the ideological spectrum—including liberals.

For example, in Peggy Coyne v. Scott Walker (May 2016) discussion of the “framers’ intent” ranged far beyond the court’s staunchest conservatives.  In this case (a dispute regarding Governor Scott Walker’s authority over the Superintendent of Public Instruction, Tony Evers) not only did Justice Prosser have as much to contribute on the topic as did the court’s most conservative justices, so did Justice Abrahamson, the court’s archetypal liberal.  “The framers of the Wisconsin Constitution considered and explicitly rejected a proposal to select a superintendent by gubernatorial appointment,” she argued in her concurrence, adding that, “[s]imply put, the framers viewed the superintendent as ‘indispensible,’ ‘the foundation, the life of progressive education’ who ‘alone c[ould] give uniformity, energy, and efficiency to the system.’”  “In light of this history and the text of the Wisconsin constitution,” she concluded, “I agree with Justice Prosser’s concurrence that the role of the superintendent, as envisioned by the framers, requires the authority to set standards.”

Three years later the liberal Justice Ann Walsh Bradley repeated these claims regarding the framers’ desires in another dispute over the authority of the Superintendent of Public Instruction (Kristi Koschkee v. Carolyn Taylor), and as recently as November 2022 (State v. Jeffrey Moeser) she enlisted some originalist arguments in her dissent addressing the question of what constitutes an oath in a Fourth Amendment evidence-suppression case.[7]

Still, the liberal appetite for originalist premises was never boundless.  Although Justice Abrahamson, for one, did not dismiss originalist arguments in toto—and occasionally invoked the “framers,” as we’ve seen—she also voiced misgivings about such approaches.  Concurring in State v. Douglas Williams (May 2012), for instance, she accepted certain techniques advocated by originalists,[8] but she hesitated over the decisiveness of historical references in resolving constitutional disputes.  “I appreciate the majority’s attempt to research constitutional history to answer the question presented.  History is relevant in constitutional interpretation.  However, its use poses challenges.”  The scarcity of sources could be a problem, and “[f]urthermore,” she warned, “there are often different historical narratives, and there is the ever-present danger that history can be read selectively to support a particular result.”

Her concern was also apparent in State v. James Brereton (February 2013) where she expressed disappointment that her colleagues (none of whom raised originalist arguments in this case) seemed disinclined to wrestle with the question of how to construe old documents whose authors could not have anticipated current issues and technology.  “The single main difficulty with the majority opinion is that it fails to appreciate that this case presents the court with the opportunity to begin the process of reconciling ever-changing technology with constitutional principles.”  She then summoned US Supreme Court Chief Justice John Roberts to drive home the point.  “‘When the framers wrote the Fourth Amendment about search and seizures,’” Roberts wondered to an audience at Rice University, “‘did they envision wiretaps?’  ‘Is being able to see through walls a violation of search and seizure protections?  I think it will be a good opportunity to see how prescient the framers were if the Constitution will be able to deal with these questions.’”  Alas, concluded Justice Abrahamson, “[o]ur court seems oblivious” to the challenge.

The debate explodes
After originalist pronouncements grew more frequent and vehement following the arrival of Justices Rebecca Bradley and Kelly, the court’s liberals appeared unruffled for a time.  In any event, they did not respond with comparable zeal for a few years
.[9]  That changed—dramatically—with the filing this spring of the decisions in Hoyle and Wisconsin Justice InitiativeAlthough no longer surprising to encounter sustained and spirited defenses of originalism (Justice Hagedorn’s arguments, described above), both decisions also included lengthy rebuttals authored by Justice Dallet.  Far more directly than the doubts articulated by Justice Abrahamson years before, Justice Dallet confronted originalism by name and in general—not simply as applied in a specific case.

Given that Justice Dallet outlined her core objections to originalism in both Hoyle and Wisconsin Justice Initiative—but devoted three times as many pages to the task in Wisconsin Justice Initiative—we’ll confine our summary to her concurrence in the latter case.  She began by rejecting the claim that originalism had long served as the court’s established method for interpreting constitutional articles and amendments.  “More pluralistic” techniques had often been employed in the past, she argued, and they remained useful now.  Along with analyzing the text and history of a constitutional provision, she elaborated, “we should also be guided by precedent, context, historical practice and tradition, and the need to balance the majority’s values against the values that should be protected from society’s majorities.”[10]

Justice Dallet likewise dismissed the belief that originalism helped restrain judges from shaping decisions to coincide with their personal views.  For one thing, she asserted, there existed no single, generally-accepted original understanding of various constitutional passages—or, alternatively, a dearth of primary sources made it all but impossible to ascertain any original interpretation of some constitutional text.  Indeed, she maintained, most constitutional provisions were written broadly—and the framers did so in order to allow ensuing generations to adapt them to matters that the founders could not foresee.  Consequently, with “original meaning” often opaque, courts could, under the banner of originalism, seize on anything they might discover in the past “to support their preordained conclusions …”  Or, as she contended later, “[w]ithout the objective answers it promises, originalism is no constraint on judges at all.”

Worse, she cautioned, even if it were possible to determine precisely the views of the framers of the United States or Wisconsin Constitutions, applying these views (those of white males from the 18th and 19th centuries) would likely require rulings that few people could accept today.  Repeating an alarm sounded in Hoyle, she warned that “Brown v. Board of Education, same sex marriage, virtually all rights of women and racial minorities, and any number of other fundamental rights are difficult, if not impossible, to justify on originalist grounds.”

And, with an eye to the future, she declared that just because a court’s majority embraced originalism at some point in the past, this did not mean that subsequent courts were thereby obligated to retain the same methodology.

Looking ahead
The exchanges between Justices Hagedorn and Dallet concerned a good deal more than the holdings in Hoyle and Wisconsin Justice Initiative.  For example, we’ve witnessed each side in this debate worry that the competing approach would enable judges to more readily craft decisions on numerous other issues to fit their own creeds.  It also appeared that both justices were rehearsing arguments for more substantial cases that could reach the court during the two upcoming years of liberal ascendancy.  At any rate, a challenge to Wisconsin’s gerrymandered election maps seems certain to spawn debate on originalism, as sitting justices have already tipped their hands regarding the Wisconsin Constitution and cartographic cunning.

Justice Rebecca Bradley, for instance, has insisted that political gerrymandering fits smoothly with the Wisconsin Constitution.  Dissenting in Billie Johnson v Wisconsin Election Commission (March 2022), she explained that “Wisconsin’s founders knew political actors would act politically.  They did not impose a partisan fairness requirement on the redistricting process, because telling partisans in the Legislature not to act for partisan advantage would have been like ordering water to be dry.”  Justice Dallet sees things differently and made this clear in the November 2021 iteration of the same case: “[T]he majority is wrong that determining when partisan gerrymandering has gone too far is a non-justiciable political question under the Wisconsin Constitution.”

In short, who can doubt that more starring roles await originalism at the Wisconsin Supreme Court?

 

[1] I’m counting cases in which at least one Wisconsin Supreme Court justice devoted “non-trivial” attention to originalism.  This, of course, is a subjective measure, and different observers would surely arrive at slightly different totals of such cases.  However, any reasonable definition and application of “non-trivial” would yield results supporting the conclusion that many more of these originalism cases have appeared in recent years.

[2] For a few more instances of Justice Roggensack applying aspects of originalism (sometimes briefly), see Kristi Koschkee v. Carolyn Taylor (June 2019); State v. Douglas Williams (May 2012); and State v. Brad Forbush (April 2011).

[3] Internal citations are omitted from all quotations in this post.

[4] It is interesting to note that in this case we have one originalist interpretation of the Second Amendment (Justice Hagedorn’s) concluding that the defendant was rightfully convicted of brandishing a firearm while intoxicated, and a second originalist interpretation of the same amendment (Justice Rebecca Bradley’s) arguing that he should not have been convicted.

[5] For an additional sampling of cases in which Justices Rebecca Bradley and Kelly posed originalist arguments, see State v. Courtney Brown (July 2020); Wisconsin Legislature v. Andrea Palm (May 2020); and Cacie Michels v. Keaton Lyons (May 2019).

[6] Emphasis in the original.

[7] “Although there is disagreement in constitutional analyses about how much weight should be given to the original meaning of the constitutional text,” she explained in Moeser, “there appears a general agreement that, no matter the approach, it deserves some weight and matters at least to some degree.”  Her conservative opponents in these cases also marshalled originalist arguments in support of their positions.

[8] For example, she noted that “[i]n interpreting a constitutional provision, the court ordinarily turns to three sources: the words in the constitutional provision in the context used; the constitutional debates and practices in existence at the time of the adoption of the constitutional provision; and the earliest interpretation of the constitutional provision by the legislature as manifested in the first law passed following adoption.

[9] In State v. C.G. (July 2022), Justice Rebecca Bradley’s majority opinion (joined by Justices Roggensack, Ziegler, and Hagedorn) mounted an extensive originalist argument.  In response, without using the term “originalism” or any other version of the word “original,” Justice Ann Walsh Bradley’s dissent (joined by Justices Dallet and Karofsky) devoted one of its 17½ pages to challenging some of Justice Rebecca Bradley’s originalist assertions.  For instance: “At the outset I observe that although the majority’s historical journey back to the 18th and 19th centuries is interesting, it is misplaced.  In denying that Ella’s choice of name implicates the First Amendment, the majority attempts to support its determination with reference to a ‘nineteenth century English solicitor general,’ nineteenth century commentators on English law, and practices prevailing at the time of the founding.  With all due respect, we are in the 21st century and our conception of individual rights and who is entitled to those rights has thankfully changed in the two centuries since these sources were germane.”  Justice Rebecca Bradley replied that these comments by Justice Ann Walsh Bradley “reflect the philosophy of living constitutionalism, which would rewrite the Constitution to reflect the views and values of judges.  Exploring the historical record is more than ‘interesting’—it is impossible to ascertain the meaning of a constitutional provision without undertaking this analysis.

[10] Regarding the phrase “the majority’s values against the values that should be protected from society’s majorities,” Justice Dallet quotes herself in Hoyle quoting Erwin Chemerinsky.  I have omitted all the internal quotation marks here.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

alan.ball@marquette.edu

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 91 years.

Comments

  1. Ralph A. Weber says

    Thank you for this excellent history.

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