In his novel 1984, George Orwell imagined a future world where a government at war could switch allegiances with the country’s enemies and allies and a docile public would accept the revised version of history unquestioningly. Orwell, a keen observer of the modern world, recognized that history itself could be manufactured and manipulated in the service of broader purposes.
This morning’s edition of the Milwaukee Journal Sentinel contains an opinion piece by Chrisitian Schneider of the Wisconsin Policy Research Institute (WPRI) entitled “Not What They Meant Democracy to Look Like.” In it, Mr. Schneider argues that the current effort to recall Governor Scott Walker and other elected state officials runs contrary to the original intent of Senator Bob La Follette and other advocates of the recall provisions of the Wisconsin State Constitution. His op ed is excerpted from a larger piece that Mr. Schneider has authored for WPRI entitled “The History of the Recall in Wisconsin.”
In the newspaper piece, Mr. Schneider makes the assertion that “a review of documents and press accounts from the time the recall constitutional amendment passed shows that the current use of the recall is far different from what the original drafters had envisioned.” His argument is that the recall provisions of the Wisconsin Constitution were intended to apply solely to judges and state senators, and not to executive branch officials such as the governor, because the two year term of office in place for governors at the time that the amendment passed would have made the recall of a governor impractical.
The historical record is completely contrary to Mr. Schneider’s assertion. Moreover, the evidence that he relies upon is completely inadequate to establish the existence of the skewed original intent that he advances.
The original push to add recall provisions to the Wisconsin Constitution, conducted during the 1911 legislative term, was clearly modeled on the nationwide campaign to adopt recall provisions. I have previously written about the history of the recall movement here. None of the other states that recall advocates in Wisconsin looked to as models in 1911 had exempted executive branch officials from the recall power. Moreover, far from being directed at judges, the original provisions in 1911 were amended in response to criticism so that they exempted judges from the scope of the recall (see page 139 of this history by the Legislative Research Bureau).
Given this record, it is impossible to conclude that the original legislation adopting recall provisions was primarily directed at the removal of elected judges. However, the original legislation was rejected by the voters in 1914, and did not become part of the Wisconsin Constitution. Mr. Schneider appears to argue that when the recall provisions were introduced once again, in 1923 by State Senator Henry Huber, they were no longer intended to apply broadly to all elected officials. Apparently we are to believe that between 1911 and 1923 the intent of the recall provision had changed from an intent to apply the recall to all elected officials except judges to an intent to apply the recall provisions primarily to judges.
Mr. Schneider can cite to no statement from Senator Huber or any member of the Progressive Party supporting this rather implausible conclusion. Instead, he relies primarily on the fact that the use of the recall against public officials serving terms of less than four years (as governors did at that time) would have been impractical.
However, in order to arrive at this rather novel conclusion, Mr. Schneider contravenes two basic tenets of constitutional interpretation.
First of all, it is a mistake to construe the intent of a constitutional provision to be narrower than the plain text of the document. The text of Article XIII of the Wisconsin Constitution provides for the recall of “any incumbent elective officer.” Mr. Schneider would ask us to believe that the 1923 advocates of the recall did not understand the word “any” to include the governor. In so doing, he asks us to substitute his preferred result for the plain meaning of the text. This would be a mistake. In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the United States Supreme Court made the mistake of assuming that the drafters of the Fourteenth Amendment could never have intended the Privileges or Immunities Clause to have the broad application suggested by its language. As a result, the historian Edwin Corwin observed, this provision of the federal constitution was “rendered a ‘practical nullity’ by a single decision of the Supreme Court within five years after its ratification.”
Second, it is never proper to attempt to divine the original intent of a constitutional provision by relying upon the arguments of its opponents. Almost all of Mr. Schneider’s evidence in support of his proferred interpretation comes from editorials and statements of persons who opposed the ratification of the recall provisions. The statements of opponents are no evidence at all of the intention of supporters. When we seek guidance for the intention of the Framers of the United States Constitution, we look to the authors of the Federalist Papers (Hamilton, Madison and Jay) who argued in favor of ratification. We do not seek to understand the Framers’ intent from the characterizations of the text put forward by those who opposed the Constitution’s adoption. Opponents have every motive to misconstrue the language in order to alarm the public.
George Orwell was amazingly prescient. He understood how the public’s understanding of history could be manipulated by propaganda, and how history itself has no existence except in the minds of the masses. The debate over the Wisconsin Recalls provides all of us with an opportunity to observe the ongoing attempt to re-write history right before our eyes.