State Bar of Wisconsin

The Making of the Wisconsin Constitution

by Joseph A. Ranney

Wisconsin is one of a very few states still using its original constitution; in fact, Wisconsin has the oldest state constitution outside of New England.¹ The constitution's birth, however, was difficult. It required two separate constitutional conventions, one in 1846 and one in 1847-48. The two conventions had to wrestle with many of the most controversial political issues of the day. Some of the decisions that were made have become mere historical curiosities; but some still play a vital part in the state's life today.

The constitution's social background

Several lines of political and social thought played a major role in shaping the Wisconsin Constitution. In 1846 Wisconsin, although it was growing rapidly, was still very much a frontier state. "Both in fact and in the eyes of their people, states like Wisconsin ... stood ... in a colonial relationship to the Eastern states. The Easterners had the capital, the manufacturers, and the markets on which the younger states depended. Out of this background men made strong movements in the law." In Wisconsin the main movements arising out of this sentiment were directed at the abolition of banking in the new state and at laws making life easier for debtors.²

Another widespread sentiment in Wisconsin, which is reflected in many parts of the constitution, was a general distrust of government and a desire to limit its powers as much as possible.³ After American independence most states had created a weak executive and a strong legislature as part of their constitutional system, in line with the intense feeling against the English monarchy at that time. Over the next 70 years, however, legislative mistakes and abuses multiplied and disenchantment with strong legislative systems set in.⁴

The first constitutional convention, 1846

The first convention convened in October 1846. Democrats made up an overwhelming majority of the convention delegates: 103 Democrats and 18 Whigs were elected to the convention. However, the Democrats encompassed a broad variety of views. Most Democrats supported the social reform-minded "Barnburner" wing of the Jacksonian movement, but a substantial minority supported the party's conservative "Hunker" wing.⁵ The Barnburners generated much of the conflict at the 1846 convention by trying to incorporate into the constitution many Jacksonian social reforms, which were still very new and very controversial.

Curiously, the articles that created the fundamental structure of Wisconsin's government generated little controversy. The convention adopted a bill of rights that was copied mainly from the New York and Michigan state constitutions but really had its roots in the federal bill of rights. The 1846 Constitution included two major provisions not in the federal bill of rights: a ban on slavery and a guarantee that foreigners would have the same rights with respect to property as U.S. citizens.⁶

In accord with the prevailing mid-19th century distrust of strong government, the convention created both a weak executive and a fairly weak legislature. The governor was elected for two years only; after some debate, his salary was whittled down to $1,000 per year. He was given a veto but the veto was subject to override by a two-thirds vote of each house of the Legislature. He was not given any appointive power. His main duty was to "expedite all measures resolved upon by the legislature."⁷ The Legislature was given broad power to enact laws, but the constitution prohibited it from enacting certain specified types of legislation. To prevent political "rings" from dominating the state, the Barnburners inserted a provision that no state official could be elected to Congress or any other federal office during his term of office.⁸

Controversy began when the 1846 convention passed beyond these basic topics and considered which items on the Barnburners' menu of reforms should be enshrined in the constitution. Several of the reforms that the Barnburners succeeded in pushing through the convention, most notably a provision that the state's judges would be chosen by the people rather than the governor or legislature, generated little controversy. But three of the reforms-a strong antibank article, a homestead exemption and a guarantee of separate property rights to married women-ultimately led the voters to reject the 1846 Constitution.

The antibank article. Four days after the 1846 convention opened, Edward G. Ryan of Racine submitted an article that effectively prohibited all banking in Wisconsin. Ryan's article prohibited the legislature from creating or authorizing any banks; forbade all banking business within Wisconsin; and provided for a rapid phase-out of small paper currency in the expectation that Wisconsin's economy could be run on gold and silver only.⁹ Ryan and the antibank article's other defenders maintained that legislatures were all too subject to bribery and undue influence by banks; therefore, an antibanking law must be placed in the constitution to put banking beyond the Legislature's reach.¹⁰

Ryan's proposal was too "inflamed and revolutionary" even for some of his fellow Barnburners. Said Samuel Beall, a Barnburner delegate from Taycheedah: "Let the old and rotten hulks of special charters and exclusive privileges be exploded. Assert the antibank doctrine in this respect to its fullest extent; but if the time should arrive in the progress of free trade and the wisdom of those who sent us here, when a system of general banking, open to everyone under proper restraints, shall be deemed advisable for the well-being of the state, let not the avenue of escape be sealed."¹¹

On Oct. 19 the convention passed Ryan's proposal by a vote of 79 to 27. However, as the convention wore on many of the delegates heard vocal objections from their constituents to the banking article. In November a motion was made to reconsider the article. It failed, but the vote showed that Ryan had lost many of his supporters.¹²

The homestead exemption. In 1846 the homestead exemption was a novel and controversial idea. Imprisonment of debtors had ended in Wisconsin only nine years before, and most courts and legal commentators firmly hold that any exemption of debtors' assets from the reach of creditors would violate the sanctity of contract. However, in the 1830s several groups, including the Barnburners and the National Reform Association, adopted the homestead exemption as one of their priorities.¹³

In the 1846 convention the Barnburners, led by David Noggle of Janesville, advocated a $1,000 homestead exemption on the grounds that it would help the poor continue to contribute to the economy without hurting their creditors unduly.¹⁴ Exemption opponents, led by Marshall Strong of Racine, complained that the provision "offers a splendid bounty to all the villains in the world to resort to Wisconsin." They also suggested that the exemption's nature and amount would need regular adjustment as social and economic conditions changed, and for that reason an exemption law should be left to the Legislature rather than embedded in the constitution. Noggle retorted that Strong "preaches false doctrine when he assumes that making men independent makes rascals of them." In early December the convention passed the exemption provision by a vote of 68 to 27.¹⁵

Married women's property rights. In 1846 the law treated married women as little more than legal extensions of their husbands. A married woman's property was completely within the control of her husband, and she could not use it in any manner without his consent.¹⁶ The Barnburners, led by General William R. Smith of Mineral Point, proposed that married women be given the exclusive right to control their property, and that their property be insulated from attachment to satisfy their husbands' debts. They criticized existing law as a remnant of the feudal era. The Barnburners linked married women's property rights closely with the homestead exemption: they felt that both provisions were essential to achieving their broader aim of equalizing economic opportunity for all.

Led by Ryan, most of the Hunkers and Whigs opposed the provision on the grounds that it would force women to operate outside the domestic sphere for which nature best fitted them and would require them to become speculators.¹⁷ Noggle replied sarcastically that "for true merit the female sex stand much higher than the male. They know but little of the low, truckling, vacillating demagogism that pervades the male portion of creation, and in that particular their ignorance is a jewel." On Dec. 7 the convention passed the married women's property rights provision by a vote of 58 to 37.¹⁸

Black suffrage. There was a vigorous debate over whether the few blacks in Wisconsin should have the vote. In the 1840s most delegates, and most Wisconsin settlers, abhorred slavery but felt that blacks were inferior to whites; they looked askance at abolitionism and equal rights for blacks. A few of the more idealistic Barnburners felt otherwise. Charles Burchard of Waukesha eloquently argued that the Jacksonian vision of equal rights for all could not truly be fulfilled unless blacks were included in it:

"We live, as has often been repeated in this hall, in an age of progressive democracy. ... In its political effects it discards the prerogative of a few to govern and looks to the rights of all. And whether you deem it practicable or not, you, who prattle about democracy, this spirit is opening a grand law of humanity more comprehensive than all others, that looks farther than the skin to say who shall have rights and who shall be maintained in the free enjoyment of what the God of nature has given them. You cannot guide this tendency of the age to sympathize alone with the serfs of Europe and the barbarians of Asia and leave untouched and unnoticed those in our midst who suffer either from the oppression of laws or for want of their protection."¹⁹

The provision's opponents stated baldly that blacks were not the equals of whites and were not fit to vote. Moses Strong of Mineral Point predicted that a constitution allowing blacks to vote would not get 50 votes west of the Rock River. As debate progressed, it became clear that a majority of delegates would not support unqualified inclusion of black suffrage in the constitution. Alexander Randall of Waukesha proposed, as a compromise, that a separate article allowing black suffrage be submitted to the people separate from the rest of the constitution. Randall's proposal narrowly passed by a vote of 53 to 46.²⁰

The convention concluded its business in December 1846. Many of the delegates openly expressed their uneasiness about the constitution's chances of passage. Although they originally had wanted to make the constitution "a general declaration of what is morally right and what is morally wrong ... to be set before legislators as a warning for all time, and a first spring whence all their laws are to proceed," the final product was weighed down with too much detail and too many pronouncements on controversial issues. The banking article and the homestead exemption had divided the convention badly. In particular, many delegates felt that the failure of the motion to reconsider the banking article was "a clincher" that laid to rest any remaining hope that the constitution might pass.²¹ The delegates' uneasiness proved to be amply justified. Despite a vigorous campaign by Ryan and others for the constitution, in April 1847 Wisconsin voters rejected it by a vote of 20,233 to 14,119 (59 percent to 41 percent). The article on black suffrage was defeated by an even wider margin of 14,615 against to 7,664 for (66 percent to 34 percent).²²

The second constitutional convention, 1847-48

Although the 1846 Constitution had gone down to defeat, there was little question that Wisconsin's voters were eager for another convention and for statehood. Accordingly, in October 1847 territorial governor Henry Dodge called a second convention. This convention was smaller and had a more even party balance than the first: it consisted of 43 Democrats, 25 Whigs and three independent delegates. Only five of the delegates had attended the first convention. The delegates generally agreed that most of the 1846 Constitution was sound and that the new convention should use it as a starting point; but almost all of them, including the Barnburners, felt that they had to be more careful than their predecessors about incorporating social reforms into the constitution.²³

Banking. It was apparent from the convention's beginning that a majority of delegates favored leaving the door open for some sort of banking system in Wisconsin. The antibank delegates fell back on a proposal that the Legislature be allowed only to pass special laws chartering individual banks, not general banking laws, and that no individual law would be valid until it passed a public referendum. This was too much for the moderate delegates: many of them, led by Stoddard Judd of Racine, protested that they didn't like banks but that special banking laws would promote monopoly and destroy the Jacksonian ideal of equal opportunity for all. Judd and Byron Kilbourn of Milwaukee stressed that in order for Wisconsin to participate fully in the American economy in the coming decades, it would have to allow a banking system to develop.²⁴

The pro-bank, moderate and antibank factions wrangled for more than a month. No proposal could be found that would command majority support. Finally, Charles Larkin of Milwaukee broke the deadlock by proposing the following compromise: when the constitution was voted on, the voters would be asked to vote separately on the question of "bank" or "no bank." If they voted "bank," the Legislature could enact either a general banking law or special banking laws, none of which would go into effect until passed by referendum. Larkin's proposal was hailed as "the first glimpse of day after groping ... in the dark," and it quickly passed by a vote of 46 to 15.²⁵

Homestead exemption and married women's property rights. Several delegates to the 1847 convention opined that these provisions, more than any others, were responsible for the defeat of the 1846 Constitution. There was virtually no sentiment in the 1847 convention for dealing with the issue of married women's property rights in the constitution.²⁶

A small group of unreconstructed Barnburners continued to argue that a detailed homestead article should be placed in the constitution. A majority of the delegates, however, favored simply making a general statement in the constitution that there must be some sort of homestead exemption and leaving the details to the Legislature. Morgan L. Martin of Green Bay proposed that the legislature be instructed to exempt "the necessary comforts of life" from collection by creditors. Some delegates argued this would discriminate against the poor, who had a more modest idea of "necessary comforts" than the rich, and some argued that any homestead exemption would make it difficult for people of modest means to get credit. But Martin's idea found favor with the convention, the homestead provision passed on a 38 to 26 vote.²⁷

Black suffrage. Even though the voters had decisively rejected black suffrage earlier in the year, its proponents continued to press their case in the 1847 convention. The motion to strike the word "white" from the suffrage clause was again defeated, but 21 of 69 delegates voted for the motion (compared to 14 of 125 at the 1846 convention). Near the convention's end, Louis Harvey of Clinton proposed that the Legislature be authorized to allow black suffrage, subject to popular referendum. Harvey's proposal appealed to many delegates because a vote for it could be defended back home as a vote for popular sovereignty rather than black equality or abolitionism. The proposal passed by a vote of 45 to 21.²⁸

The second convention completed its work in February 1848. The campaign over ratification of the new constitution proceeded quickly and quietly. Most of the 1846 Constitution opponents were satisfied with the changes that the second convention had made; the main opposition to the new constitution came from abolitionists, who were unhappy about the lack of black suffrage, and from a hard core of banking opponents. The voters approved the new constitution by a margin of 16,799 to 6,384, and on May 29, 1848, Wisconsin was formally admitted to the Union.²⁹

Epilogue

Why has Wisconsin's constitution endured while so many other state constitutions of the mid-19th century have been superseded? There are probably three main reasons. First, most features of the basic governmental framework that the Wisconsin constitution established-the bill of rights and the limited powers of the governor and legislature in particular-were well within the mainstream of what other states had created during the preceding 70 years.

Second, the 1847-48 convention exercised better judgment than the 1846 convention about which social and legal reforms should be placed in the constitution and which should not. The convention shied away from using the constitution to resolve such issues as banking and married women's property rights because it sensed that there was no popular consensus on those issues that could safely be made part of the state's organic law.

Third, the constitution has survived because Wisconsin has never gone through a period of truly radical political or social change. Many multiple-constitution states have gone through such periods. For example, most southern states enacted new constitutions in the early 1860s when they seceded from the Union, in the late 1860s and early 1870s when Reconstruction governments took over, and again in the 1880s and 1890s after Reconstruction had ended. Rhode Island enacted a new constitution after the extremely narrow suffrage provisions of its original constitution triggered the "Dorr Rebellion," a near civil war, within the state in 1842.³⁰ Wisconsin voters have amended the constitution some 126 times since 1848,³¹ but apparently they have felt, and continue to feel, that necessary changes can be accomplished by tinkering with the 1848 Constitution rather than building a new one.

Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of several articles on legal and historical topics.

Ironically, several of the Barnburners' proposals for social reform that led to the defeat of the 1846 Constitution were enacted as law in Wisconsin with little controversy within a few years of the defeat. The Legislature passed a general banking law in 1852, but the law contained several safeguards that might almost have come from the pen of Edward Ryan himself.³² The Legislature passed a broad debtors' property exemption law in 1849.³³ The Legislature passed a law giving married women separate property rights in 1850.³⁴ The voters approved black suffrage by a narrow margin shortly after statehood.³⁵

The features of the Wisconsin Constitution that generated the most controversy and debate when they were enacted have for the most part become noncontroversial or simply obsolete. Some features that generated little controversy in the 1840s have become the subject of controversy since then-most recently, in the debate since the late 1980s over the scope of the governor's veto power and the balance of power between the governor and the Legislature, and in the recent amendments to the constitution's antilottery clause.³⁶ It is useful for us as lawyers, and indeed for Wisconsin citizens in general, to reexamine the origins of our constitution today not only to appreciate its basic and enduring strengths but also to remind ourselves that even strong, stable constitutions inevitably change in both form and meaning as the times change.

Endnotes

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¹ The Wisconsin Constitution was enacted in 1848. The only states that have older constitutions are Massachusetts (1780), New Hampshire (1784), Vermont (1793), Maine (1820) and Rhode Island (1843). See generally Nick Papastravros, ed., Constitutions of the United States, National and State (Dobbs Ferry, N.Y.: rev. ed., 1992).

² J.W. Hurst, The Growth of American Law: The Law Makers at 8-9 (Boston, 1950); M. Quaife, The Movement for Statehood 1845-46 at 35-36 (Madison, 1918) (hereinafter Movement for Statehood); Brown, The Making of the Wisconsin Constitution, 1949 Wis. L. Rev. 648, 652-53. For a good general discussion of the evolution of the Jacksonian sentiment against banks and for lenient treatment of debtors, see A. Schlesinger Jr. The Age of Jackson at 76-80, 134-37, 334-39 (Boston, 1945).

³ Quaife, Movement for Statehood at 30.

⁴ Still, State Making in Wisconsin, 20 Wis. Mag. Hist. at 34, 37-40, 51-53 (1936); L. Friedman, A History of American Law at 106-9, 302-4 (New York, 1973).

⁵ Brown, The Making of the Wisconsin Constitution, Wis. L. Rev. at 656-59. The names of the two factions originated in New York. Reformers in that state gibed that conservative Democrats supported Jackson only because they "hankered" after office; the conservatives said that the reformers' program was like a farmer burning down his barn to get rid of rats. Schlesinger, The Age of Jackson at 397-98. Neither the Hunkers nor the Barnburners were solidly united on the bank issue. The Whigs were united more by their dislike of Jackson than by anything else, although they generally favored banking, government support of internal improvements and other measures which would facilitate the United States' transition from an agrarian to a commercial and industrial economy. See R. Remini, Henry Clay: Statesman for the Union at 461-64 (New York, 1991).

⁶ Brown, The Making of the Wisconsin Constitution, 1949 Wis. L. Rev. at 655; Brown, The Making of the Wisconsin Constitution: Part II, 1952 Wis. L. Rev. 23, 59; Wis. Const. (1846) art. XVI. The 1846 Constitution is set forth in full at Quaife, The Convention of 1846 at 732-35 (Madison, 1918) (hereinafter Convention of 1846). Both the 1846 and the 1848 constitutions borrowed heavily from New York law, particularly the New York constitution of 1846, for many of their provisions. See Alexander, Wisconsin, New York's Daughter State, 30 Wis. Mag. Hist. 11, 24-25 (Sept. 1946).

⁷ Wis. Const. (1846) art. III §§ 4, 5, 11.

⁸ Wis. Const. (1846) art. VI and art. VIII, § 6.

⁹ Journal of the Convention of 1846 (hereinafter 1846 Journal), Oct. 9, 1846, reprinted in Quaife, Convention of 1846 at 70-71.

¹⁰ Madison Democrat, Oct. 31, 1846 (reporting remarks of David Noggle) and Madison Express, Oct. 20, 1846, both reprinted in Quaife, Convention of 1846 at 103-14.

¹¹ Madison Argus, Oct. 12, 1846, reprinted in Quaife, Convention of 1846 at 127.

¹² Madison Express, Nov. 24, 1846, reprinted in Quaife, Convention of 1846 at 512.

¹³ London, Homestead Exemption in the Wisconsin Constitution, 32 Wis. Mag. Hist. 176, 177 (Dec. 1948); A.E. Smith, The History of Wisconsin Vol. I: From Exploration to Statehood at 389-90 (Madison, 1973).

¹⁴ Madison Democrat, Jan. 2, 1847, reprinted in Quaife, Constitution of 1846 at 658-70.

¹⁵ Madison Express, Dec. 15, 1846 (reporting Marshall Strong's remarks) and Madison Democrat, Jan. 2, 1847 (reporting Noggle's remarks), reprinted in Quaife, Convention of 1846 at 647-58, 666.

¹⁶ See Friedman, A History of American Law at 184-86, quoting Chancellor James Kent, Commentaries Vol. II (2d ed. 1832). The first state to enact a married woman's property rights law was Mississippi in 1839.

¹⁷ Ryan generally sided with the Barnburners on economic issues-for example, he was a fervent antimonopolist-but he was much more conservative about social reforms and tended to side with the Hunkers in that area, A. Beitzinger, Edward G. Ryan: Lion of the Law at 19-22 (Madison, 1960).

¹⁸ Madison Argus, Dec. 8, 1846 (reporting Smith's and Ryan's remarks) and Madison Democrat, Jan. 2, 1847 (reporting Noggle's remarks), reprinted in Quaife, Convention of 1846 at 631-32, 662.

¹⁹ Madison Express, Oct. 27, 1847, reprinted in Quaife, Convention of 1846 at 243.

²⁰ Madison Express, Oct. 27, 1846 (reporting Strong's remarks), reprinted in Quaife, Convention of 1846 at 215.

²¹ Madison Express, Nov. 24, 1846 (quoting the convention chair, Don A.J. Upham of Milwaukee), reprinted in Quaife, Convention of 1846 at 512.

²² The vote totals are found in Leslie H. Fishel Jr., Wisconsin and Negro Suffrage, 46 Wis. Mag. Hist. 180, 183 (Spring 1963).

²³ Journal of the 1847-48 Convention (hereinafter 1847-48 Journal), Dec. 16, 1847, reprinted in M. Quaife, ed., The Attainment of Statehood at 179 (Madison, 1928) (hereinafter Quaife, Attainment of Statehood).

²⁴ 1847-48 Journal, Dec. 23, 1847 (antibank proposal), Jan. 10, 1847 (Judd's remarks) and Jan. 11, 1847 (Kilbourn's remarks), reprinted in Quaife, Attainment of Statehood at 240-41, 489-90, 499-503.

²⁵ 1847-48 Journal, Jan. 13, 1848, reprinted in Quaife, Attainment of Statehood at 548-49; Wis. Const. (1848) art. XI, § 1.

²⁶ 1847-48 Journal, Dec. 16, 1847 (remarks of Kilbourn), Dec. 28, 1847 (remarks of Experience Estabrook), Dec. 20, 1847 (remarks of Morgan L. Martin), reprinted in Quaife, Attainment of Statehood at 179, 285, 290.

²⁷ 1847-48 Journal, Dec. 28, 1847 (remarks of Warren Chase and John Doran and introduction of Martin amendment), Jan. 27, 1848 (remarks of Abram Vanderpoel and Chase), reprinted in Quaife, Attainment of Statehood at 284-86, 295, 759-64, 797; Wis. Const. (1848) art. I, § 17.

²⁸ 1847-48 Journal, Jan. 3, 1848, reprinted in Quaife, Attainment of Statehood at 398-400; Wis. Const. (1848) art. III, § 4.

²⁹ Quaife, Attainment of Statehood at vii-viii. The vote totals are taken from 1991-92 Wisconsin Blue Book (Madison, 1991) (hereinafter 1991-92 Blue Book) at 213.

³⁰ Friedman, A History of American Law at 105, 302-3.

³¹ 1991-92 Blue Book at 212.

³² L. 1852, ch. 479. For example, the banking act provided that banknotes could only be issued by the state comptroller (section 4). The comptroller could give the notes to banks for circulation by the banks, but only when the banks deposited securities equal in value to at least 125 percent of the face value of the notes (sections 5, 9). The act provided extensive safeguards to ensure that only solid securities would be given for notes (sections 6-8). The voters approved the banking law by a lopsided margin of 32,826 to 8,711 in November 1852. 1991-92 Blue Book at 213.

³³ L. 1849, ch. 102, §§ 51-58.

³⁴ L. 1850, ch. 44.

³⁵ See L. 1849, ch, 137. The vote on this question was lower than for state offices which were up for election at the same time. Because the vote for black suffrage was not a majority of all votes cast at the election for any office, Wisconsin officials refused to let blacks vote in subsequent elections. However, in 1866 the Wisconsin Supreme Court ruled that because a majority of those voting on the black suffrage question in 1849 had voted for black suffrage, Wisconsin had in fact enacted black suffrage in 1849. Gillespie v. Palmer, 20 Wis. 572 (1866). See generally, Fishel, Wisconsin and Negro Suffrage, 46 Wis. Mag. Hist. at 184-85, 194-96.

³⁶ The governor first received line-item veto power with respect to appropriations bills in 1930 when art. V, section 10 was amended to create that power. The veto provision was amended again in 1989 to bar the governor from making "Vanna White vetoes," that is, creating new words by striking letters from words in a bill. The 1846 convention approved the antilottery provision of the constitution by a wide margin and with no debate, and the 1848 convention preserved it intact without debate. 1846 Journal, Nov. 13, 1846, reprinted in Quaife, Convention of 1846 at 453; Wis. Const. (1848) art. I, § 24. It was not amended in any way until 1965; it has been amended four times since then. See 1991-92 Blue Book at 178-79.

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