It is difficult to read a news story about current events in our state or nation without someone saying, “This is about my constitutional rights.” It’s usually not being stated so much as it is shouted, in the comments section of social media posts, in roadside protests, or in public meetings.

On one hand, all the shouting about rights can be exhausting, particularly when the issue is not at all related to the Constitution. In a perfect world, I could pull out my pocket U.S. Constitution (thank you 1L Con Law professor) and explain that whatever people are screaming about is not found in the Constitution. Or, I could explain that not only do “you” have constitutional rights, but “I” have constitutional rights, and “those people over there” also have constitutional rights, and sometimes working with all those rights at the same time can be a tricky balancing act. However, we don’t live in a perfect world, and no one in the history of the world has ever changed their strongly held worldview because someone on Facebook suggested they were uneducated.

On the other hand, a lot of the rallies and demonstrations we have seen over the past year truly are in response to real infringement of constitutional rights for large swaths of our society. This shouting serves a legitimate purpose of forcing all of us to reckon with things we’d rather keep hidden from view.

Britney Spears’ Conservatorship Case: Issues Within the Guardianship System

For the shouting that doesn’t fit into the category of real infringement of constitutional rights, we might still be onto something good. If we can apply this current interest in constitutional rights in a productive way, what could be accomplished?

For example, apply “This is about my constitutional rights!” to the media craze over Britney Spears’ conservatorship case. I recently was interviewed for apodcast on this topic and the topic of guardianships in general. What a great opportunity to talk about issues within the guardianship system and how those relate to individual rights! It was a fun podcast, and good questions were asked. But, at the end of our brief discussion, the host said something to the effect of, “Far from the most pressing, urgent legal case in America, but interesting nonetheless.”

I was somewhat disappointed that was how that ended. Yes, Britney Spears’ name is more synonymous with frivolous pop music than the gravitas of constitutional law, but how is her very public struggle to determine whether she should have control over her money, reproductive decisions, and family not a pressing issue? I’d rather each person under guardianship get as much attention as Spears is getting right now, but if this is the situation we are in, why not seize this opportunity? How wonderful is it that people who will never take a class in constitutional law are learning and writing about how our legal system works and what should be fixed.

This gives us an opportunity to explain to our friends and family that, while we don’t really know all that is going on with Spears’ case, there are many people under guardianship currently, and so many things we could do to improve the guardianship system for everyone. To make sure people’s fundamental constitutional rights are respected regardless of incompetence. To provide user-friendly avenues for relief when things run awry. To explain that this isn’t about being a fan of Spears but about protecting the rights of you, me, and everyone under guardianship, world famous or not.

Elder Financial Exploitation Legislation: Unintended Constitutional Effects on Older Clients

In another application of “This is about my constitutional rights,” the Elder Law and Special Needs Section was closely following the elder financial exploitation legislation pending in Wisconsin earlier in 2021. The section repeatedly implored the legislature to consider the (hopefully) unintended effects of these proposals on the rights of our clients over age 60. We asked whether it was appropriate to allow accounts to be frozen or powers of attorney (POAs) to be dishonored, solely based on a potentially untrained bank employee’s belief that a person needs protection because they’re “old.”

One of our esteemed section members testified before the Senate Financial Institutions and Revenue Committee about the negative effect this legislation would have on the individual rights of all people over a certain age. Whether that testimony made the difference or not, the point was crucial. If we are concerned about “your” constitutional rights and “my” constitutional rights, we should also be concerned about “their” constitutional rights (“their” being people over age 60, if you yourself do not fit into that category).

No one in the history of the world has ever changed their strongly held worldview because someone on Facebook suggested they were uneducated.

In elder law and disability law, and countless other areas of law, we can all be constitutional lawyers. Whether we carry around pocket Constitutions or not, we advocate for the rights of our clients. In elder law, we draft POAs to allow our clients to make their own decisions about their health care and their property. We defend against guardianships when clients should not have rights removed. We educate on supported decision-making and the “dignity of risk.” We advocate for adult-at-risk restraining orders or POA reviews, or other forms of intervention, when we see people violating the rights of others who cannot protect themselves. We consider autonomy and self-determination and “least restrictive environment consistent with needs.”

We help create special needs trusts and ABLE accounts (a particular type of tax-advantaged account) to make sure that people with disabilities can live as independently as possible, so that a lack of money will not result in a lack of options. We help restore the right to vote and help people with disabilities have access to free and fair elections.

We Can All Be Constitutional Lawyers

Real threats to our constitutional rights are happening every day, both through legislative efforts as well as the way existing laws are interpreted and applied (or ignored). There is a lot of work to be done, and we do not have the luxury of only seeing as allies those people who see things exactly the way we do. We exist in a moment when the Constitution is receiving a lot of attention, and that provides attorneys with a unique opportunity to engage with others and facilitate real change, if we are willing to make the effort.

» Cite this article: 94 Wis. Law. 32-35 (October 2021).