May 1 has been celebrated as Law Day in the United States since a joint resolution of Congress was passed in 1961. Traditionally, the American Bar Association declares a Law Day theme, to be used as an educational tool and a conversation starter. This year’s theme, “Toward a More Perfect Union: The Constitution in Times of Change,” contains so much possibility that I, as president of the State Bar of Wisconsin, hope to only begin a conversation for interested readers to take up.
Cheryl Daniels, U.W. Law 1985, is president of the State Bar of Wisconsin. She is now retired in Madison after a career in government, with 35 years as program counsel, administrative law judge, and assistant legal counsel at the Wisconsin Department of Agriculture, Trade & Consumer Protection.
Changing times are a given in the history of the United States, with the force of people coming to its shores and borders acting on people already living on this land as a constant disrupter and catalyst for change, whether believed to be “good,” “bad,” or something more mixed. And at least one of the pivotal authors of the U.S. Constitution, James Madison, understood that the Constitution, too, might need to be acted upon because of changing times:
“That useful alterations will be suggested by experience, could not but be foreseen.” – James Madison (The Federalist, No. 43, 296)
But what are the useful alterations that the citizens of this country can all agree are needed? There is long history in this country of laws, existing and being approved of under this Constitution, that deliberately segregated diverse groups of people, based on race, sex, gender, religion, national origin, disabilities, and other identity. The fact that the 13th Amendment, which abolished slavery, wasn’t passed until 77 years after U.S. independence and a bloody civil war is now rightly seen as shameful in the extreme. Since then, it has taken varying amounts of time to change the Constitution to allow voting, a foundational right and responsibility of each adult citizen in this republic, for Black men, women, and young adults. But we have seen such a pushback on laws that have imperfectly tried to ensure this fundamental constitutional right can truly be freely exercised by all. There have been legal battles over the constitutional soundness of laws meant to help mitigate the effects of those other laws and practices of segregation that continue to this day.
So how do we, as citizens, begin to figure out what needs fundamental change, either within the U.S. Constitution or within the statutes that are always needed to push our imperfect union forward in changing times?
My suggestion is one used by retiring U.S. Supreme Court Justice Stephen Breyer, who regularly questions the actual effects of a law on individuals in their daily lives, whether the possible “taking” of a property because a government has so limited its use, or two consenting adults not being allowed to marry each other, or any number of other legal effects on individuals’ daily lives. If each of us takes the time to ask for evidence, and be ever aware of a law’s effects on other people we might not have thought about, perhaps we will begin to have the open conversation needed to make us that “more perfect Union.”
At least one of the pivotal authors of the U.S. Constitution, James Madison, understood that the Constitution, too, might need to be acted upon because of changing times.
» Cite this article: 95 Wis. Law. 4 (May 2022).