{"id":16936,"date":"2012-04-08T13:59:03","date_gmt":"2012-04-08T18:59:03","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=16936"},"modified":"2012-04-08T21:03:12","modified_gmt":"2012-04-09T02:03:12","slug":"the-use-and-misuse-of-history","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/04\/the-use-and-misuse-of-history\/","title":{"rendered":"The Use and Misuse of History"},"content":{"rendered":"

\"\"<\/a>In his novel 1984<\/em>, George Orwell imagined a future world where a government at war could switch allegiances with\u00a0the country’s enemies and allies and a docile public would\u00a0accept the revised version of history\u00a0unquestioningly.\u00a0 Orwell, a keen observer of the modern world, recognized that history itself could be manufactured and manipulated in the service of broader purposes.<\/p>\n

This morning’s edition of the Milwaukee Journal\u00a0Sentinel contains an opinion piece by Chrisitian Schneider of the Wisconsin Policy Research Institute (WPRI) entitled “Not What They Meant Democracy to Look Like<\/a>.”\u00a0 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\u00a0of Senator Bob La Follette and other advocates of the recall provisions of the Wisconsin State Constitution.\u00a0 His op ed is excerpted from a larger piece that Mr. Schneider has authored for WPRI entitled “The History of the Recall in Wisconsin.<\/a>”<\/p>\n

In the newspaper\u00a0piece, Mr. Schneider makes the assertion that\u00a0“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.”\u00a0 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.<\/p>\n

The historical record is completely contrary to Mr. Schneider’s assertion.\u00a0 Moreover, the evidence that he relies upon is completely inadequate to establish the existence of the skewed original intent that he advances.<\/p>\n

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.\u00a0 I have previously written about the history of the recall movement here<\/a>.\u00a0 None of the other states that recall advocates in Wisconsin looked to as models in 1911 had\u00a0exempted executive branch officials from the recall power.\u00a0 Moreover, far from being directed at judges, the original provisions in 1911 were amended in response to criticism so that they\u00a0exempted<\/em> judges from the scope of the recall (see page 139 of this history <\/a>by the Legislative Research Bureau).<\/p>\n

Given this record, it is impossible to conclude that the original legislation adopting recall provisions was primarily directed at the removal of elected judges.\u00a0 However, the original legislation was rejected by the voters in 1914, and did not become part of the Wisconsin Constitution.\u00a0 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.\u00a0 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<\/em> judges to an intent to apply the recall provisions primarily<\/em> to judges.<\/p>\n

Mr. Schneider can cite to no statement from Senator Huber or any member of the Progressive Party\u00a0supporting this rather implausible conclusion.\u00a0 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.<\/p>\n

However, in order to arrive at this rather novel conclusion, Mr. Schneider contravenes two basic tenets of constitutional interpretation.<\/p>\n

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.\u00a0 The text of Article XIII of the Wisconsin Constitution <\/a>provides for the recall of “any incumbent elective officer.”\u00a0 Mr. Schneider\u00a0would ask us to believe that the 1923\u00a0advocates of the recall did not understand\u00a0the word “any” to include\u00a0the governor.\u00a0 In so doing, he asks us to substitute his preferred result for the plain meaning of the text.\u00a0 This would be a mistake.\u00a0 In the Slaughter-House Cases,<\/em> 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.\u00a0 As a result,\u00a0the 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.”<\/p>\n

Second, it is never proper to attempt to divine the original intent of a constitutional provision by relying upon the arguments of its opponents.\u00a0 <\/em>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.\u00a0\u00a0The statements of opponents are no evidence at all of the intention of\u00a0supporters.\u00a0 When we seek guidance for the intention of the Framers of the United States Constitution, we look to the authors of the Federalist Papers<\/em> (Hamilton, Madison and Jay) who argued in favor of ratification.\u00a0 We do not seek to understand the Framers’\u00a0intent from the characterizations of the text put forward by those who\u00a0opposed the Constitution’s adoption.\u00a0 Opponents have every motive to misconstrue the language in order to alarm the public.<\/p>\n

George Orwell was amazingly prescient.\u00a0 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.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

In his novel 1984, George Orwell imagined a future world where a government at war could switch allegiances with\u00a0the country’s enemies and allies and a docile public would\u00a0accept the revised version of history\u00a0unquestioningly.\u00a0 Orwell, a keen observer of the modern world, recognized that history itself could be manufactured and manipulated in the service of broader 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