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  • January 25, 2022

    Amending the Wisconsin Constitution: A Brief How-to Guide

    Amending the Wisconsin Constitution is not a quick or easy task, but it is not impossible. Alexander (Sandie) Pendleton and Benjamin Kuhlmann explain the process.

    Alexander T. Pendleton & Ben Kuhlmann

    Wisconsin State Capitol

    Fed up with the way state government works? Convinced that the Wisconsin Constitution insufficiently protects certain individual liberties? Convinced you’re the guy or gal destined to lead a movement to amend our Constitution, but unsure of the process? If so you’re in luck. Here’s a brief “how-to guide” to amending the Wisconsin Constitution.

    History

    The Wisconsin Constitution was debated and drafted in a constitutional convention that ran from December 1847 to February 1848, and the product of that convention was then ratified by the voters two months later.1

    Compared to other states, it has always been relatively difficult to amend the Wisconsin Constitution, as it has never contained a provision allowing for amendment by a citizen-initiated process. Despite this, according to the Wisconsin Blue Book, over the last 173 years the Wisconsin Constitution has been amended over 140 times, including as recently as April 2020.2

    Despite this seemingly large number, the frequency by which Wisconsin adopts new amendments is historically less than the average rate for amending state constitutions across the nation.3

    The Amendment Process

    Article XII of the Constitution provides for just two methods by which an amendment can be proposed and ratified. Section 1 provides for an amendment process that can be initiated by the legislative branch (with the proposed amendment then being put to the voters), and Section 2 provides a process by which to convene a constitutional convention.

    Amendment by the Legislative Initiated Process

    Alexander T. (Sandie) Pendleton Alexander T. Pendleton, Minnesota 1987, is a Milwaukee-based business lawyer and litigator with Pendleton Legal, S.C..

    Benjamin KuhlmannBen Kuhlmann, Case Western 2020, is a law clerk with the Third District Court of Appeals in Wasuau.

    For the Constitution to be amended by the legislature, the proposed amendment must be initially approved by a majority in both houses of the legislature, and then (once a general election has occurred, and the new legislature seated), the proposed amendment must again be approved by a majority in both houses.4 Once that has occurred, then the proposed amendment must be placed on the ballot “in such manner and at such time as the legislature shall prescribe” and the voters are provided the opportunity to vote for or against the proposed amendment.5

    There is relatively little judicial interpretation of Section 1, but one issue that has arisen on several occasions relates to the “separate amendment” rule in that section. Section 1 indicates “that if more than one amendment be submitted [to the voters], they shall be submitted in such manner that the people may vote for or against such amendments separately.” There are four reported decisions where a plaintiff has claimed that a particular amendment put to the voters violated the separate amendment rule.6

    The Wisconsin Supreme Court most recently considered this issue in 2010 in McConkey v. Van hollen, and noted therein:

    [T]he constitution grants the legislature considerable discretion in the manner in which amendments are drafted and submitted to the people. The inquiry is “whether the legislature in the formation of the question acted reasonably and within their constitutional grant of authority and discretion.” An otherwise valid amendment will therefore be construed as more than one amendment only in exceedingly rare circumstances.7

    The Court in McConkey went on to say:

    The proper test is laid out in Milwaukee Alliance: “It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose.” As we stated in Thomson, all of the propositions must “tend to effect or carry out” the purpose.8

    The “general purpose” of an amendment is to be “deduced from the text of the amendment itself and from the historical context in which the amendment was adopted.”9

    The Wisconsin Supreme Court has also considered the question of when an amendment ratified by the voters becomes effective, and has held it is not immediately after the election occurs. Instead, an amendment does not become effective until the results of the election are certified.10

    Amendment by Constitutional Convention

    Article XII, § 2 of the Constitution provides that:

    If at any time a majority of the senate and assembly shall deem it necessary to call a convention to revise or change this constitution, they shall recommend to the electors to vote for or against a convention at the next election for members of the legislature. And if it shall appear that a majority of the electors voting thereon have voted for a convention, the legislature shall, at its next session, provide for calling such convention.

    Since the constitutional convention of 1847-48, the senate and assembly has never deemed it necessary to call a convention.

    Conclusion

    The 1848 preamble to the Wisconsin Constitution states:

    We, the people of Wisconsin, grateful to Almighty God for our freedom, in order to secure its blessings, form a more perfect government, insure domestic tranquility and promote the general welfare, do establish this constitution.

    The 1848 preamble echoes sentiments from the preamble in the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”) and in the preamble to the U.S. Constitution (“We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”)

    Lofty goals!

    But there is also a humbleness to the Wisconsin Constitution, a sub silentio acknowledgment therein that the 1848 drafters were not perfect, and may not have created a perfect constitution. That acknowledgment is inherent in Article XII, and the two sections therein that enable each successive generation to amend the Wisconsin Constitution. So, if you are convinced that the Wisconsin Constitution is not now optimally drafted so as to achieve its lofty goals, Article XII awaits for you.

    This article was originally published on the State Bar of Wisconsin’s Agriculture Law and Rural Practice Blog of the Solo/Small Firm & General Practice Section. Visit the State Bar sections or the Solo/Small Firm & General Practice Section webpages to learn more about the benefits of section membership.

    Endnotes

    1 Ray A. Brown, The Making of the Wisconsin Constitution, 1949 Wis. L. Rev. 648, 648.

    2 Legis. Ref. Bureau, Wisconsin Blue Book 2019-2020, 503 (2019).

    3 Robert F. Williams, Is the Wisconsin State Constitution Obsolete? Toward a Twenty-First Century, Functionalist Assessment, 90 Marq. L. Rev. 425 (2007).

    4 Wis. Const. art XII, §1.

    5Id.; Bartlett v. Evers, 2020 WI 68, ¶32 n.12, 393 Wis. 2d 172, 945 N.W.2d 685 (“The Wisconsin Constitution provides that a proposed amendment must be approved by two consecutive legislatures and then ratified by the people”).

    6See McConkey v. Van Hollen, 2010 WI 57, 326 Wis. 2d 1, 783 N.W.2d 855; Milwaukee Alliance v. Elections Bd., 106 Wis. 2d 593, 317 N.W.2d 420 (1982); State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953); State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785 (1882).

    7Id. at 2010 WI 57, ¶40 (emphasis added, citation omitted).

    8Id. at 2010 WI 57, ¶28 (emphasis added, citation omitted).

    9Id. at 2010 WI 57, ¶50.

    10 See State v. Gonzales, 2002 WI 59, ¶26, 253 Wis. 2d 134, 645 N.W.2d 264; Wis. Stat. § 7.70(3)(h).



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    Agriculture Law & Rural Practice Blog is published by the Solo/Small Firm & General Practice Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Nancy Trueblood and review Author Submission Guidelines. Learn more about the Solo/Small Firm & General Practice Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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