Cafeteria Constitutionalism

Published February 24, 2007

GREEN LAKE, Wis.–For the past few years, some judges in Wisconsin have been rewriting state law from the bench. Now it’s possible that they soon may go even further by rewriting the Wisconsin constitution.

Wisconsin’s capital, Madison, is already doing exactly that. Appointees to Madison’s boards and commissions must take an oath of office to uphold the U.S. and Wisconsin constitutions. But last month the city council approved a measure allowing them to refuse to swear to uphold a state constitutional amendment banning gay marriage if they disagree with it. And where Madison leads, the Wisconsin Supreme Court is usually not far behind.

It’s one thing to disagree with the amendment, quite another to rewrite the constitution. There is a disconnect between traditional democratic principles and the notion that citizens need not uphold provisions of state and federal constitutions with which they disagree. When the consent of the governed is withdrawn–which is what the “anti-oath” does–it fractures the social contract.

Other constitutional provisions, whether state or federal, become fair game for those who disagree with them. Don’t like guns? Refuse to uphold the state constitutional amendment giving Wisconsinites the right to hunt. Disagree with free speech? Ban the First Amendment. And so on. The anti-oath law is frightening because citizens and officeholders may now pick and choose what other constitutional provisions they believe ought not be enforced. Call it cafeteria constitutionalism.

Wisconsin is known as something of a blue state, so it would not have been surprising if the 2006 gay marriage ban had failed, especially in a year when here, as in many states, Democrats swept into office. Instead, 60% of voters approved it. Wisconsin is actually more of a purple state, mixing liberal and conservative positions. It has as one of its favorite sons “Fighting Bob” LaFollette, who, though a Republican, was known for his pro-union and anti-corporate philosophy. Since then, the state as a whole has consistently re-elected Russ Feingold and Herb Kohl to the U.S. Senate. Gov. Jim Doyle, despite having a scandal-plagued first term, handily won a second term over his Republican opponent, former Republican congressman Mark Green of Green Bay. To replace him, voters elected a Democrat.

But the state has a contrarian streak as well, especially outside of its two major cities, Madison and Milwaukee. Passage of the gay marriage ban amendment is only one example. Voters also narrowly elected a Republican as state attorney general–perhaps to keep an eye on Gov. Doyle. And though Republicans lost control of the state Senate, they kept control of the state House. And the Supreme Court would be dominated by conservatives today but for Gov. Doyle’s appointment of a liberal to fill a conservative vacancy several years ago.

Now Wisconsin finds itself with an election for the state Supreme Court. It’s difficult to call. Already dominated 4-3 by liberal judicial activists, voters in April will elect a replacement for a conservative judge who is retiring, choosing between a conservative candidate and a liberal one for the post. So the balance of power will either remain the same or increase to 5-2.

The marriage amendment is likely to play a prominent role in this election because a challenge to its constitutionality is expected to reach the high court–although issues that affect the business marketplace are probably more critical to the state’s economic survival. Businesses want certainty and Wisconsin doesn’t provide it right now under leftward domination of the court.

If the liberal candidate wins, activists will continue their domination of the court for the next generation, according to Jim Pugh of the Wisconsin Manufacturers & Commerce organization. More anti-market rulings are likely to result. The court has already gained national notoriety for allowing the use of “junk science” in its courtrooms, doing away with the requirement that a particular manufacturer’s lead paint be linked to an injury before a consumer can sue, and for sitting as a “super-legislature,” by eliminating caps on noneconomic damages in medical malpractice cases.

Any product could become the next target of tort lawyers seeking to expand business liability. And a Rhode Island-style lead-based paint case, in which contingent-fee attorneys will argue the paint is a public nuisance and seek billions in damages, will go to trial sometime this year.

The contrast between the liberal candidate and the conservative one, then, could not be more stark, both on business liability issues and social ones like gay marriage. The conservative, Annette Ziegler, a circuit court judge from Washington County in southeast Wisconsin, favors a “modest” role for the courts: “The court’s duty is not to determine what the law should be or to negate laws to arrive at a desired outcome.” That’s about all she can say on issues likely to come before the court due to judicial canons of ethics.

The liberal, Linda Clifford, is not a sitting judge but has been a Madison liberal active in private practice for 32 years, including representation on behalf of the ACLU. She has support from Gov. Doyle, financial and otherwise. Because she was not a judicial candidate in 2004, she was free to speak out then on the gay marriage ban and did so in a letter to the state legislature opining that, among other things, the gay marriage ban violates the U.S. Constitution and U.S. Supreme Court holdings.

So we probably know how she will rule on that issue, and we have a pretty good idea how she will rule in business liability/personal injury cases. It does not bode well for the business climate in Wisconsin.

But what we don’t know yet is whether, if Ms. Clifford wins, she will swear to uphold the Wisconsin constitution’s gay marriage ban. Believing as she says she does that it is unconstitutional, it’s hard to see how she possibly could. And if she can’t or won’t swear to uphold the constitution, or, at least, not all of it–if she instead chooses to take an anti-oath–is she disqualified from serving on the court? It’s something for Wisconsin contrarians to ponder.

Maureen Martin ([email protected]) an attorney, is senior fellow for legal affairs at The Heartland Institute.