As America marks Constitution Day, Dan O’Donnell reflects on the ridiculous and, well, unconstitutional way Wisconsin Democrats want to change our state’s constitution.
Special Guest Perspective by Dan O’Donnell
We the people of the United States, in order to form a more perfect union, establish this Constitution so that we may change it when we believe that we can make our union even more perfect.
Such is sadly the state of modern liberal politics; an arrogant belief in personal morality over constitutional jurisprudence so overwhelming that it prompts a near-constant desire to bend the timeless to the whims of the moment.
On Monday, the nation marked the 231stanniversary of the adoption of the Constitution with a pitched battle over the confirmation of a Supreme Court Justice who will (perhaps) be sworn to uphold it. Yet deeper than partisan bickering over decades-old allegations is a seismic divide over the very nature of the Constitution in 2018. Is it, as the Democratic Party now maintains, a “living, breathing document” that must “change with the times”? Or is it, as the Republican Party long maintained, the iron-clad foundation for America itself?
That foundation, Democrats argue, was built on sand, as constitutional protections did not extend to minorities and women and, because of that (and because all of its authors and signers were white men—some of whom owned slaves), its framework must essentially be rebuilt on firmer grounds of diversity and inclusion.
Nowhere is this desire more evident than in Wisconsin, where Democrats have proposed amendments to the State Constitution so radical that they would not only fundamentally rewrite the document, but also essentially overrule the U.S. Constitution itself.
Naturally, the author of these amendments, Rep. Chris Taylor (D-Madison), is so illiterate in constitutional law that she fails to grasp that nothing can, in fact, overrule the U.S. Constitution. The “Supremacy Clause” of Article VI, Clause 2 establishes that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
How, then, could this proposed amendment possibly be constitutional?
The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose, except that the state and each city, town, and village may, in order to protect the health and safety of people and communities, regulate the carrying of arms.
The Second Amendment to the U.S. Constitution provides that the “right of the people to keep and bear arms, shall not be infringed” and, even more perplexingly, Taylor’s proposed amendment is self-nullifying.
Article XI of the Wisconsin Constitution provides that:
Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.
Since the Wisconsin Constitution provides that people may carry arms for “any…lawful purpose” and the State Legislature enacted a law allowing citizens to carry concealed arms in 2011, Taylor’s constitutional amendment is itself unconstitutional, as it violates Article XI’s prohibition on cities enacting laws that contradict “enactments of the legislature,” to say nothing of the Second Amendment to the U.S. Constitution.
Such constitutional illiteracy underpins the remainder of Taylor’s amendments, which create out of thin air “rights” to abortions (euphemistically termed “reproductive health”), collective bargaining, “quality, affordable health care services,” equal pay, and a living wage:
Every person has the right to a just and fair wage that ensures for the person and the person’s family an existence worthy of human dignity and a sufficient standard of living.
What exactly is “just and fair?” What, precisely, constitutes a “sufficient standard of living?” Who determines this? The Legislature? The Judiciary?
In its ruling in Connally v. General Construction Co., the United States Supreme Court held in 1926 that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”
Since it is literally anyone’s guess as to what constitutes the “just and fair wage” required under Taylor’s proposed amendment, that amendment is unconstitutionally vague.
So too is her amendment requiring “quality, affordable” health care, as the concept of “quality” itself is inherently subjective. What one health care consumer values another might despise. Likewise, the concept of affordability is contingent upon one’s wealth, and thus “affordable health care” has a much different meaning for someone making $1 million a year than it does for someone making $10,000. A $10,000 deductible would be easily affordable for a millionaire, but obviously not affordable at all for someone who would have to devote her entire annual income to paying it.
Taylor and the Assembly Democrats who support her proposed amendments have clearly taken none of these issues into account and merely put forward a sort of “wish list” of personal policy preferences.
This, of course, a constitution does not make. The beauty of both the U.S. and Wisconsin Constitutions is that the framework of government they establish and rights of the citizenry that they protect are, at their core, timeless. Taylor’s new and improved Wisconsin Constitution would, by necessity, change every time inflation rises or health care costs go up.
Far from a bedrock of shared, universal principles on which Wisconsinites can rely and by which they can live, a constitution as the state’s Democrats would frame it would be constantly churning quicksand into which stable governance would inevitably be sucked.
Call it a Tyranny of Good Intentions—government of, by and for those who consider themselves to be the most moral and most just with a governing document that can change as often as they change their minds.
Fortunately, the framers of the Constitution whom America remembered on Monday anticipated such a threat and did what they could to combat it within the document they had crafted.
When the Constitutional Convention ended 231 years ago, a concerned woman from Philadelphia asked Ben Franklin what sort of government he and his fellow framers had adopted.
“Monarchy or Republic?” she asked.
“A Republic,” Franklin answered. “If you can keep it.”