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Wisconsin Supreme Court Debates Approaches to Constitutional Interpretation 

A recent opinion reminds advocates to make independent state constitutional arguments.


Sparks flew in a recent ruling from the Wisconsin Supreme Court, where the court rejected a federal Equal Protection Clause challenge to an adoption law that barred a mother’s long-term male partner from adopting her child because they were not married. 

The acrimony within the court had nothing to do with the merits of the case; the holding was unanimous. Rather, the disagreement detailed in the case’s concurrences concerned how a future court might interpret a similar challenge under the Wisconsin Constitution: Are text and history the only game in town, or is a “pluralistic approach” more appropriate?

In In the matter of the adoption of MMC, the mother and her partner argued that Wisconsin’s marriage requirement for stepparent adoption violated their equal protection rights. While they raised claims under both the 14th Amendment’s Equal Protection Clause and Article I, Section 1, of the Wisconsin Constitution, their arguments focused exclusively on the 14th Amendment.

According to the court’s opinion, the state constitutional claim was in name only with no independent justification. That meant the case was over when the petitioners lost on their federal claim because the court concluded that adoption is not a fundamental right and there was a rational basis to require the partner to first marry the girl’s mother.

But what if the family had made independent state arguments? That scenario played out in the dueling concurrences.

The second concurrence, by Justice Rebecca Dallet, began uncontroversially with the most obvious topic: the text. The words in Article I, Section 1, of the Wisconsin Constitution are remarkably different from the 14th Amendment. In relevant part the Wisconsin provision says, “All people are born equally free and independent, and have certain inherent rights: among these are life, liberty and the pursuit of happiness.”

The 14th Amendment’s Equal Protection Clause, meanwhile, reads: “No State shall . . . deny to any person in its jurisdiction the equal protection of the laws.” This doesn’t just textually diverge from Wisconsin’s Section 1; it is completely and utterly different. And yet Wisconsin courts have long-interpreted them as meaning the same thing. Dallet’s primary point was that it isn’t all that hard for advocates to argue that one means something different than the other. She also noted that the Wisconsin Constitution, adopted in 1848 at statehood, and the 14th Amendment, adopted in 1868 during the crucible of Reconstruction, had different purposes and histories. This isn’t terribly difficult to argue either.

Dallet then noted that we must take a “pluralistic approach to state constitutional interpretation.” Text and history are great but we should also look to precedent, she asserted, and — here’s where things got contentious — the need to balance majoritarian and minoritarian “values.”

She closed by stating that lawyers frequently don’t make any of these arguments: text, values, you name it. Advocates all too often fail to develop state constitutional claims, thus failing to create precedent and maintaining state constitutions’ second-class status. Dallet referenced this “self-perpetuating cycle” and declared “it is up to us — judges, lawyers, and citizens — to give effect to the fundamental guarantees of Article I, Section 1.”

This call for a pluralistic approach and value balancing did not sit well with Justice Rebecca Bradley. She authored the majority opinion but also wrote her own concurrence. With scathing language, she pushed back on Dallet’s approach and claimed it was a stealth call for “living constitutionalism.”

Bradley opened with some background on the importance of state constitutions, citing luminaries in the area such as federal appellate Judge Jeffrey Sutton, Arizona Supreme Court Justice Clint Bolick, and former Oregon Supreme Court Justice Hans Linde. She then argued, though, that a lot of recent interest in state constitutions — much of it in the wake of U.S. Supreme Court Justice William Brennan’s famous advocacy — isn’t so much about enforcing state constitutional rights as enacting policy that litigants couldn’t achieve in the federal courts. She accused Dallet of “channeling the spirit” of Brennan through her call for a “pluralistic approach.” Of that she said: “Nothing could be further from the truth or more corrosive to our democratic form of government.” Ouch! (And that’s just a small part of Bradley’s critique.)

She then outlined appropriate ways of interpreting state constitutions. These will be familiar to students of originalism: text, ratification materials, and contemporaneous writings and cases from just after the constitution’s adoption. Indeed, Bradley has done this in many opinions in recent years about the meaning of the Wisconsin Constitution.

In the end, this debate is quite similar to the debate we often hear concerning the U.S. Constitution and whether originalism, “living constitutionalism,” “common law constitutionalism,” or a mix of all are the right ways to interpret centuries-old text. Though I swing more to the originalist side of things — as anyone who has read my work would know — advocates would do well to look to all these interpretive methods. They should use quotes from state constitutional ratification debates. Use the particular history of the state constitution’s adoption. Use early cases. But also use particular traditions, even recent traditions, of the state and its culture. And, by all means, use the text.

But most importantly use something. The unanimous majority opinion in this case, from a deeply divided court, demonstrates that making a robust federal constitutional argument and adding “Oh, and the state constitution too” isn’t enough. It might take just one lawyer in one case to expand state constitutional rights — one willing to do their homework and put the arguments before the court.

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice and the author of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.

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