A New Approach to Interpreting the Wisconsin Constitution?

In the most recent edition of the Yale Law Journal, Professor Abbe Gluck observes a phenomenon unique to state supreme courts: precedents that bind courts’ interpretive methods. At the U.S. Supreme Court, justices constantly argue about the proper method for interpreting contractual, regulatory, statutory, and constitutional texts. Prof. Gluck observes that in some state courts, including Wisconsin, a single case definitely sets the method by which future judges will interpret legal texts.

The Wisconsin case she refers to is, of course, State ex rel. Kalal v. Dane County Circuit Court (2004), which set a method by which the court would interpret statutes. That method focuses first on the text of the statute, and circumscribes the use of legislative history and other secondary sources.

Another Wisconsin case Prof. Gluck could mention is Buse v. Smith (1976), decided nearly thirty years before Kalal

In that case, the court decided on a method for interpreting the text of the Wisconsin Constitution.  While Kalal prioritizes text over secondary sources, Buse puts text on the same plane as legislative and ratification history and contemporaneous legislative enactments. In the case of original constitutional text, the court looks at debates in the constitutional conventions of 1846 and 1848. In the case of amendments, the court considers legislative history from both sessions of the legislature through which an amendment passed. It also considers newspaper stories, editorials, press releases, polling data, and other sources that are supposed to show what Wisconsin voters understood the amendment to mean when they ratified it at the polls.

In a paper just posted on SSRN, I argue that the Buse methodology is thoroughly flawed, and urge the court to use the Kalal method for both statutory and constitutional cases. Justice Michael Gableman, in his excellent opinion in Coulee Catholic Schools v. LIRC, first tied the holding of Kalal in with constitutional interpretation. For all the reasons laid out in the paper, I believe the court should follow up this initial intimation and straightforwardly state in its next constitutional case that Kalal has replaced Buse as the governing standard for interpretation of the Wisconsin Constitution.

This Post Has 8 Comments

  1. Ed Fallone

    Daniel: Your argument is both intellectually honest and well presented. As you might suspect, I respectfully disagree with you.

    There is much wisdom ingrained in the traditional common law process by which state courts in Wisconsin have interpreted both statutes and the Wisconsin Constitution since statehood. By “commmon law process,” I mean the way that courts have traditionally answered the question “How do I approach the interpretive task before me?” as reflected in judicial opinions that begin with the English Common Law and continue up to the present day.

    In my opinion, arguments to (1)embrace textualism as an alternative means of interpretation, and then (2)subsequently embed that interpretive choice as binding precedent that would prevent future derogations from the textualist method, do not sufficiently address the strengths of the traditional common law process as it has developed over time. I believe that these strengths are particularly present in the context of constitutional interpretation.

    I would resist both Justice Gableman’s embrace of textualism in the context of statutory construction and your argument that this approach should be extended to the State Constitution.

    On originalist grounds, I am not convinced that the public understood that the State Constitution would be interpreted under a textualist method at the time of Wisconsin statehood, since that is not how contemporary courts approached interpretive questions. The current members of the Wisconsin Supreme Court should hesitate before adopting fundamental principles (even arguably beneficial ones) that are at odds with original assumptions as to the process by which the words in text would be interpreted.

    Nor am I convinced that the asserted utilitarian benefits of a textualist approach outweigh the costs associated with the rejection of the common law method. The main cost I see is the uncertainty created when textualism allows the current justices to depart from a large body of precedent on the basis of a new reading of the words.

    I recognize that precedent can be ignored or distinguished away under the common law process as well, but it seems to me that the heavy weight accorded to the “words on the page” in a textualist approach permits a more casual disregard for precedent and hence creates greater uncertainty as to whether settled law will remain settled.

    On a final, and admittedly personal, note, I do wish you would stop being so productive. It is starting to make some of us look bad.

  2. Josh Byers

    Although I tend to agree with you, Daniel, on the substance of your comments, I question whether a method of interpretation can be considered precedent.

    Precedent, at least to me, refers to the substantive interpretations of the court–whether it be interpreting statutes, constitutions, procedural rules, or common law rules–not the methodology the court uses to make its interpretation. Yes, there is a healthy debate in the opinions amongst members of the court on the proper method of interpretation, especially in statutory interpretation cases, but those discussions do not focus on “what the law is.” To me, precedent tells you what the law is. After all, consider a court of appeals’ statutory interpretation case that takes an approach opposite to Kalal and that goes to the supreme court on appeal. It is quite possible that the court of appeals will be overruled because its approach led it to a different result than the supreme court concluded using a Kalal approach, but the supreme court isn’t going to overrule the court of appeals based on Kalal. If overruled, it will be because the supreme court disagreed with the conclusion of law made by the court of appeals.

    Also, I don’t think that it is correct to say that, after Kalal, the court requires the method of interpretation set forth in that opinion to be used in all cases of statutory interpretation. I don’t recall if Kalal actually states that “this is the method of interpretation that should be used in all Wisconsin statutory interpretation cases going forward,” but I would argue that Kalal should be considered precedent only on the issue the meaning of s.968.02(3)–the statute at issue in the case.

    I see Kalal and subsequent cases following its methodology as the majority of the court saying that “this is the way we interpret statutes and we are going to continue to do so because of….” That has major ramifications, obviously, for lower court judges and litigants before the court that may be similar to binding precedent in terms of excluding certain arguments or analyses from the table (or at least making them much less likely to succeed). So, admittedly, in many ways the practical effect may be very much the same whether you call it precedent or not.

    Thanks, Daniel!

  3. Nick Zales

    As it now stands, the Wisconsin Constitution is often interpreted to favor the government, corporations and then the people in that order. Why not put the people first? “Interpretation” is simply a way to use legal terms of art to provide cover for what is really result-driven raw politics. The U.S. Supreme Court is a perfect example of that.

    A better question than how the court interprets the law is does the court best serve the people? By relegating them to third in the pecking order, it does not.

  4. Brett Eckstein

    This approach isn’t new, but let’s test this plain meaning approach to see if it should be the darling of judicial conservativism: give “plain meaning” to Article I Section 9 that is different from both Chief Judge Brown’s plain reading of it in his concurring opinion in Mallet, as well as the supreme court’s interpretation of it in both Collins and Mallet.

  5. Terrence Berres

    Chief Justice Rosenberry wrote that “[T]hose who have opposed the creation and extension of administrative tribunals have as a rule had the best of the argument on legal and constitutional grounds, but have been obliged to yield to an irresistible social pressure.” ‘Administrative Law and the Constitution’, 23 Am. Pol. Sci. Rev. 32, 34-35 (1929), {quoted by Joseph A. Ranney, Wisconsin’s Legal History: Part XI, ‘Marvin B. Rosenberry: Apostle of administrative law’, Wisconsin Lawyer) If so, then perhaps the court could consider a change to always basing rulings on the better constitutional or legal grounds.

  6. Jeff Scott Olson

    Constitutional fundamentalism would hold that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” does not apply to television or movies or the internet, because they were not present when the first Amendment was enacted and are neither speech or the press. Would Tom Jefferson and Ben Franklin have cabined our fundamental liberties so?

  7. Daniel Suhr

    Thanks to all of you for your thoughtful comments. Several of them will require further research on my part (like how the people of Wisconsin expected their constitution to be interpreted when it was adopted in 1848), but let me offer a few general observations in response to each.

    Prof. Fallone rightly points out the social value of stability in the case law. But this must be balanced against the goal of “getting it right.” The recent McDonald case provides an interesting example where only J. Thomas was willing to overturn a very old precedent (Slaughter-house) that was very wrong. I would have sided with Thomas in that case.
    Josh makes a very important distinction between the holding of the case and the method of interpretation, and the precedential value of each type of statement. You’re quite right that the Wisc. Supreme Court cannot bind itself or its lower courts to follow a particular methodology in the same way a ruling in a case is a binding precedent. That said, the Court has shown both from Kalal and from Buse that it will commit itself to a particular methodology and use it pretty consistently moving forward.

    Brett, I would commend to your attention the amicus brief of Civil Trial Counsel of Wisconsin, 2004 WL 5026979, on this matter. Plus, I don’t see why the text of the clause compels the conclusion of the Court in Mallet. The plaintiff had a “certain remedy” against the landlord; rather, he wanted the Court to set aside traditional principles of causation to permit him a remedy against the deeper pockets of the lead paint companies.

    Jeff, I’d say that originalism and textualism are not quite the straight-jacket you make them out to be. Originalists have no problem saying that what comes across the television is “speech,” or that TV news reporters are part of “the press” even though they don’t use a physical printing press to distribute their news product.

    Thanks, all, for the comments.

  8. Melissa Greipp

    A proposed version of the Wisconsin Constitution was first authored in 1846, but that first constitution was rejected. (The second proposed constitution was approved in 1848. The second constitution was arguably less radical in its approach than the first.) Daniel, do you think the change in the language from the first proposed constitution to the language of the second constitution might play into your analysis in any way? You may find it interesting and enjoyable to review the original drafting documents in Madison, if you have not already done so.

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