By: Jennifer R. Dorow
It is easy to take our Constitution for granted. We learn about it as kids. We see it in person on school field trips to Washington, where it sits safely under shatterproof glass and constant police surveillance. Like the freedom it protects and the rule of law it secures, the Constitution’s existence is sometimes thought of as just another fact of life. Like the color wheel. Or the laws of gravity.
Nothing could be further from the truth. In fact, our system of liberty under law is fragile—even endangered. As Ronald Reagan put it, it is “never more than one generation away from extinction.” That is why, the Gipper added, “it must be fought for and defended constantly by each generation.”
People ask why I’m running for state supreme court. Reagan – who, by the way, is the namesake for my daughter’s middle name – gave the answer. We all must do our part to preserve the blessings of liberty. We must do what we can to uphold the Constitution.
But our duty does not end there. We owe the same fidelity and vigilance to the Constitution of the State of Wisconsin. Though lesser known, that document is just as important—to us Cheeseheads, anyway—as its famous sister in DC.
Why? Here are a few reasons.
First, while most state laws are enacted by legislators or (worse) unelected bureaucrats in Madison, this one was enacted directly by the People. That matters because it is the People who are sovereign. They make the laws that bind even the lawmakers. And so only the People can change or repeal them. Activist judges can try, but the People will never let them get away with it.
Second, just as the federal Constitution secures the freedom of American citizens by limiting and separating the powers of the national government, our state constitution keeps Wisconsinites free closer to home, by limiting and separating the powers of our state government.
It keeps everyone in their lanes. Unaccountable agencies don’t get to pass laws—our representatives in the Legislature do that. The executive also doesn’t interpret and apply law in concrete cases; that is the courts’ job. And, for their part, judges don’t preside over state government—that’s the role of the governor. They also don’t get to bend the laws one way or another. Instead, a judge’s role is to interpret and apply laws neutrally, according to their original public meaning, regardless of her own political preferences.
We often forget how important the structure of government, including at the state level, is to our rights. As Justice Scalia often said, “the foundation of our freedom” is not ultimately “based in the Bill of Rights.” After all, “every tinpot dictator has a Bill of Rights which he casually ignores.” Our strongest bulwark of liberty “is our structure of government which holds each branch . . . to account.”
That said, and third, our state bill of rights is still extremely important, too. I know this from personal experience as a judge, former criminal defense attorney (in the spirit of John Adams and Abraham Lincoln), and a former prosecutor.
Our Wisconsin bill of rights matters for lots of reasons. One is that it protects rights the federal Constitution does not explicitly address, including one of my favorites: the right to fish, hunt, and trap!
It also broadly proclaims in the body of the document what the federal system includes only in its Declaration of Independence: that “all people are born equally free and independent and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.”
Amen. To safeguard our experiment in constitutional self-government here in Wisconsin, our constitution must be jealously protected and relentlessly defended. If elected to serve as justice of the state Supreme Court, I will devote every minute of my work to that effort.
By: Jennifer R. Dorow