Bradley, Dallet frame age-old constitutional debate

News analysis

It is an argument as old as the Republic itself — whether the U.S. constitution should be strictly or loosely interpreted — and in a recent Wisconsin Supreme Court decision the debate exploded full scale in a case that, oddly enough, the justices decided unanimously.

Under strict constructionism, the courts must apply the law as it is written in determining constitutionality; under a looser interpretation, the Founders’ intentions become a guide to application, a starting point, but along the way courts are free to consider current values and social and political conditions, as well as scientific findings, historical circumstances, and other factors in interpreting whether a statute passes constitutional muster.

Standing up for an expansive reading, at least as far as the state constitution is concerned, was liberal justice Rebecca Dallet, who argued not only that the state constitution provides broader protections for individual liberties than the federal constitution’s Fourteenth Amendment but that the court could fashion those protections using the aforementioned factors rather than relying on explicit textual authorization.

“In fact, we have a long history of interpreting our constitution to provide greater protections for the individual liberties of Wisconsinites than those mandated by the federal Constitution,” Dallet wrote in a separate concurring opinion to the main case.

Defending a strict constructionist reading was conservative justice Rebecca Grassl Bradley, who accused Dallet of channeling the spirit of liberal U.S. Supreme Court justice William Brennan for urging the court to abandon its past practice of construing Article I, Section 1 of the state constitution as identical to the protections of the Fourteenth Amendment.

“Instead, she invites litigants to ask this court to invent constitutional rights,” Bradley wrote. “As a pivotal part of her call for activism, justice Dallet claims this court has embraced a ‘pluralistic approach’ to constitutional interpretation in which this court ‘balance[s] the majority’s values against the values that should be protected from society’s majorities.’” 

Nothing could be further from the truth or more corrosive to our democratic form of government, Bradley asserted.

The volley occurred in a case in which all nine justices voted to reject a challenge to the state’s adoption laws, which prohibit a non-marital partner from adopting their partner’s child. The law also does not allow two unmarried adults to adopt a minor.

The couple alleged that the adoption statutes were unconstitutional because they treat the children of single parents differently than children with two married parents and treat unmarried romantic partners differently than spouses, the decision observed. Such differentiated classifications were arbitrary and not rationally related to any valid state interest, the couple charged.

The court disagreed.

“In reviewing the constitutionality of a statute under an equal protection analysis, the court first identifies the appropriate level of scrutiny,” Rebecca Bradley wrote for the court in the decision. “We consider whether the statute implicates a fundamental constitutional right or ‘whether a suspect class is disadvantaged by the challenged legislation.’” 

But if a fundamental constitutional right is not at stake and a protected class is not disadvantaged by the statute, the court applies a “relatively relaxed standard,” Bradley wrote, a rational basis review that reflects the court’s respect for the separation of powers and recognizes that “the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one.”

And that was the case in this situation, Bradley wrote.

“The adoption statutes do not implicate a fundamental right under the United States or Wisconsin Constitutions, nor do the statutes affect a protected class of individuals,” she wrote. “Accordingly, the statutory classifications establishing eligibility to adopt or to be adopted must be rationally related to a legitimate state interest in order to withstand A.M.B.’s challenge. Because a rational basis exists for the legislature’s policy choice to preclude an adoption by the non-marital partner of a birth parent, we hold the statutes do not violate the Equal Protection Clause and we therefore affirm the circuit court’s denial of the adoption petition.”

The concurrence

Despite agreeing with the court’s ruling, Dallet unleashed a concurring opinion in which she addressed the equal protection challenge offered by the challengers, a couple from Ashland, whom Dallet said simply brought forth a Fourteenth Amendment claim and not a state-based claim that could have provided broader protection of their rights.

“Our constitution was written independently of the United States Constitution and we must interpret it as such, based on its own language and our state’s unique identity,” Dallet wrote. “When we do so, there are several compelling reasons why we should read Article I, Section 1 as providing broader protections for individual liberties than the Fourteenth Amendment. We cannot simply assume — as petitioners seemingly did in this case — that these different constitutional provisions mean the same thing.”

Since the earliest days of Wisconsin’s history, Dallet wrote, the state court has embraced its role as the principal interpreters of the state constitution.

“And we have repeatedly declared that it is our duty to interpret our constitution independently of the United States Constitution,” she wrote, including providing greater protections for individual liberties than those mandated by the federal constitution.

“For example, we concluded that the Wisconsin Constitution guarantees the right to counsel at the state’s expense in criminal cases more than 100 years before the United States Supreme Court recognized the same right in Gideon v. Wainwright,” she wrote. “More than 40 years before Mapp v. Ohio, we held that suppression was the appropriate remedy for unlawful searches and seizures under our constitution. And we have also said that when police deliberately violate a criminal defendant’s Miranda rights, our constitution requires that the evidence be suppressed, even if the Fourth Amendment doesn’t require the same.”

As those examples illustrate, Dallet wrote, the court has long recognized greater protections for individual liberties in the Wisconsin constitution because it is meaningfully different than the federal constitution.

“The Wisconsin Constitution reflects the unique features of our state and its laws, our history, and the ‘distinctive attitudes of [our] state’s citizenry,’” she wrote. “We must consider these differences — both textual and contextual — as part of the pluralistic approach to state constitutional interpretation we have applied previously.”

Specifically, Dallet wrote, Article I, Section 1 of the state constitution has dramatically different language than the Fourteenth Amendment, which protects the enumerated rights of “life, liberty, and property.” The Wisconsin language, Dallet continued, bestows “inherent rights,” which previous court decisions have taken to mean is “broad enough to cover every principle of natural right, of abstract justice.”

“Whereas the Fourteenth Amendment’s protections extend only to those rights ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ the inherent rights contemplated by Article I, Section 1 are not so limited,” she wrote. “Moreover, Article I, Section 1 begins with the clear and expansive declaration that all people are ‘born equally free and independent.’ By contrast, the Fourteenth Amendment contains a narrower guarantee of ‘equal protection of the laws.’”

The difference in language isn’t surprising, Dallet continued, given the different histories that led to their composition. The state constitution’s language was inspired by ‘revolutionary, republican, egalitarian ideology’ derived from the 1776 Virginia Declaration of Rights, whereas the Fourteenth Amendment’s concerns were with due process and that era’s “problems of the people being denied the equal protection of the laws.”

“The Fourteenth Amendment wasn’t ratified until twenty years after Wisconsin achieved statehood and nearly a century after virtually identical language first appeared in the Virginia Declaration of Rights,” she wrote. “Far from the ‘revolutionary’ ideals that our Wisconsin Constitution protects, the Fourteenth Amendment was a pragmatic step in the aftermath of the Civil War to protect the rights of African Americans who had been freed from slavery.”

Finally, Dallet argued that the challengers in the case — like many others who come before the court — failed to raise state constitutional claims, which she said flowed directly from the focus on the Fourteenth Amendment.

“Although petitioners argued that the adoption statutes at issue violate Article I, Section 1 of the Wisconsin Constitution, they offered little more than a citation to that section as support,” she wrote. “Otherwise, the parties’ briefs focused solely on the Fourteenth Amendment and federal precedent, and ignored the Wisconsin Constitution entirely.”

That oversight and failure to recognize the broader protections offered by the state constitution should end, Dallet argued.

“But we must break this self-perpetuating cycle whereby lawyers fail to develop state constitutional arguments because they lack clear legal standards, which further prevents courts from developing clear legal standards,” she wrote. “In a way, the lack of settled case law should be encouraging to litigants. It is up to us — judges, lawyers, and citizens — to give effect to the fundamental guarantees of Article I, Section 1. And in doing so, I agree with what justice Dodge wrote more than 100 years ago, when he said that Article I, Section 1, should ‘not receive an unduly limited construction.’”

Justices Ann Walsh Bradley and Janet Protasiewicz joined in the concurrence.

The counter concurrence

In her concurrence, justice Rebecca Grassl Bradley observed that invoking state constitutional rights has been out of vogue for some time, in part because the U.S. Supreme Court federalized constitutional rights during the Warren Court era. 

“As Justice William Brennan put it, the Court ‘fundamentally reshaped the law of this land’ by ‘nationaliz[ing] civil rights,’” Bradley wrote. “As a result, the relevance of state constitutions appeared to fade. Litigants stopped arguing their cases under state constitutions. Some state courts interpreted their state constitutions in lockstep with the federal courts’ interpretation of the Federal Constitution.”

Bradley also acknowledged that in recent years a newfound interest in asserting state constitutional rights has emerged, which, in theory, she wrote, should benefit individual liberty.

“State constitutional rights are just as important and worthy of protection as federal constitutional rights,” she wrote. “And this court has a duty to enforce the rights protected under the Wisconsin Constitution.”

However, Bradley asserted, not all arguments for enforcing state constitutional rights are rooted in text, history, and tradition, and indeed some stem from disappointment with the outcomes in certain federal Supreme Court decisions. 

“Negative reaction to the Burger, Rehnquist, and Roberts courts’ reluctance to ‘innovate’ new federal constitutional rights triggered a resurgence of interest by litigants and legal commentators in asking state courts to fill the gap,” she wrote. “For example, in two famous law review articles, justice William Brennan urged state courts to ‘step into the breach’ created by the court, and argued that ‘activist intervention[s]’ into democratic governance are less problematic when done by state courts.”

The pressure on state courts to intrude on the democratic process has only intensified with such landmark decisions as Dobbs v. Jackson, Bradley wrote. And now comes Dallet, channeling Brennan, Bradley argued.

“It is not for judges to superimpose their values on the constitution,” she wrote. “… What the constitution does not say is as important as what it says. If the constitution itself does not bar majorities from passing certain laws, there is no lawful basis for judges to say otherwise. Nothing in the constitution authorizes judges to void laws that violate some judges’ sense of what ought to be. There is a good reason jurists ‘seldom endorse[]’ the views espoused by justice Dallet openly: They contradict ‘the basic democratic theory of our government.’”

And that’s what Dallet’s call to broadly interpret the state constitution amounts to, Bradley argued.

“Justice Dallet attempts to conceal her call for an antidemocratic power grab with the illusion of inclusive language,” she wrote. “She intimates that future generations must each decide for themselves what the constitution means in their time: ‘It is up to us — judges, lawyers, and citizens — to give effect to’ the constitution’s words today.”

When the president of Wisconsin’s 1848 convention said “the pages of our constitution . . . abound[] in the declaration of those great principles which characterize the age in which we live,” Bradley wrote, he did not mean to characterize the constitution as an empty vessel into which each generation may pour its prejudices and aspirations. 

“He meant exactly what he said,” she wrote. “The new constitution embodied the values and principles of that time, and those principles were to remain fixed and endure throughout the ages.”

What Dallet ultimately advocates for, Bradley wrote, was the discredited “practice of constitutional revision” by a committee of four lawyers who happen to form a majority on the court.

“Should a majority of this court — four lawyers — decide to imbue the constitution with modern meanings divorced from the constitutional text and the history and traditions of this state, they will rob the people of Wisconsin of their most important liberty: the freedom to govern themselves,” Bradley wrote.

The result was a transfer of power from the people, Bradley argued.

“Although living constitutionalism is often couched in the rhetoric of flexibility and a purported need to adjust for a changing society, in practice it presents a grave threat to democracy by thwarting the people from passing legislation to accommodate changing views,” she wrote. “Living constitutionalism invites lawyers donning robes to decide all the important issues of the day, removing their resolution from the political process altogether and depriving the people of any say in such matters.”

How to interpret the constitution 101

Dallet’s invitation to reimagine the constitution’s text with a so-called “pluralistic approach” flies in the face of the court’s established method of constitutional interpretation and should be rejected, Bradley asserted.

“As with statutory interpretation, the goal of constitutional interpretation is to ascertain the meaning of the constitutional text as it would have been understood by those who adopted it,” she wrote. “Judges lack any authority to ‘rewrite the Constitution to reflect the[ir] views and values.’ As stated by Justice Cassoday in 1890: ‘It is no part of the duty of this court to make or unmake, but simply to construe this provision of the constitution. All questions of political and governmental ethics, all questions of policy, must be regarded as having been fully considered by the convention which framed, and conclusively determined by the people who adopted, the constitution, more than 40 years ago. The oath of every official in the state is to support that constitution as it is, and not as it might have been.’”

Constitutional interpretation focuses on the text of the constitution, Bradley declared, first to the plain meaning of the word. Another useful guide in ascertaining the text’s original public meaning would be the debates over the constitutional provision and the practices at the time of the provision’s adoption, Bradley wrote, as well as post-enactment construction of a constitutional provision by the other branches of government.

The bottom line is, Bradley asserted, any argument construing Article I, Section 1 of the Wisconsin constitution to protect an asserted right must be grounded in the constitution’s actual text and history.

“Certainly, states have the power to afford greater protection to citizens under their constitutions than the federal constitution does,” she wrote. “But it cannot simply be assumed that the Wisconsin constitution provides more protection for an asserted right than the federal constitution.”

Quoting case law, Bradley said the question for a state court is whether its constitution actually affords greater protection, knowing that it lacks the power to write into its constitution additional protection that is not supported by its text or historical meaning.

Bradley said the court had ruled many times that, in interpreting a constitutional provision, there are three sources: the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption.

“Litigants asserting a right under Article I, Section 1 must ground their arguments in those considerations — not policy or subjective moral judgments,” she wrote. “Our constitution and our commitment to a democratic form of government demand nothing less.”

Chief justice Annette Ziegler and justice Brian Hagedorn joined the concurrence.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.