It took the 69 delegates to Wisconsin’s last constitutional convention just seven weeks to draft the state constitution under which we live today. The constitution, drafted and ratified in 1848, is among the oldest in the nation. It’s been amended 138 times, but it has never been rewritten.

Is it time to start from scratch? Is it time to rewrite a document produced 31 years before Edison invented the light bulb, 55 years before Wilbur and Orville Wright made their brief flight in Kitty Hawk, N.C., and 60 years before the first Model T rolled off Henry Ford’s assembly line in Dearborn, Mich.?

Wisconsin’s current constitution was written even before the horse-and-buggy era arrived in Wisconsin. Our population was rural and our economy was based on natural resources and muscle power. At statehood, only the wealthy could afford a horse. Oxen far outnumbered horses in the new state.

The framework of government created in the 1848 constitution was well suited to the 300,000 people who lived in the young state of Wisconsin. Boundaries were rigid — after all, the surveyors preceded even the settlers. The needs of citizens were simple in the 19th century, and there was enough elbow room to minimize conflicts.

In the 1848 document, "generally speaking, local government was placed under the care of the legislature," historian Alice E. Smith later wrote.¹ The level of care was adequate for decades.

Eventually, however, phenomenal growth and the industrial evolution of Wisconsin’s economy strained the fabric of the system of government that our founders established. Land was no longer the principal measure of wealth. Cartels and monopolies transformed our economic life, and created new responsibilities for government. The strain was quickly felt in our wallets.

In 1908, voters approved a constitutional amendment that authorized a state income tax. In 1911, along with enacting the income tax, the legislature created a state shared revenue program that returned 70% of income tax revenue to municipalities and 20% to counties.² In 1914 voters rejected an amendment calling for home rule for cities and villages, but in 1924 they embraced the principle of home rule.

Through it all, the essential framework of government was largely unaltered.

Patched with duct tape and held together with baling wire, the institutions of government that our founders created remain in force today, but they are ill-equipped to deal with the 21st century global economy in which we must play.

Our governmental framework encourages us to compete with our neighbors for new development, and it discourages planning for growth. It discourages regional solutions to 21st century problems that are regional in nature. What worked well for a few generations has resulted in such bad relations between local officials in some parts of the state that they will only sit down with one another in the same room if it’s a courtroom.

Rewriting the state constitution from top to bottom is neither a radical idea nor a new one.

"Because of the changes in the needs of our society, it seems timely to consider the problems and techniques of revision of the constitution as a whole," Thomas E. Fairchild and Charles P. Seibold wrote in the Wisconsin Law Review in 1950.³

Seibold and Fairchild — Fairchild later became chief judge of the 7th U.S. Circuit Court of Appeals — had some pretty specific ideas about how the state constitution should be rewritten.

The legislature failed to reapportion the state after the 1940 census, so Fairchild and Seibold urged consideration of a better reapportionment process. They also advocated study of a unicameral legislature and reform of the judiciary. Some of the latter has been accomplished in the intervening years by constitutional amendment.

Fairchild and Seibold further urged that a new constitution be neither too prescriptive nor too proscriptive. A constitution, after all, is an architectural sketch of what we want government to do, not the detailed blueprint. At 15,531 words, our 1848 constitution was sufficiently lean. But even a lean constitution can become obsolete.

The most common argument against a constitutional convention is that it will draw the fringe element. Will the debate between those who want to create a bill of rights for animals and those who want to create a constitutional right to raise livestock for slaughter drown out discussion of what tools government should have available to hone our economy and allow us to thrive economically?

I have enough faith in the basic intelligence and common sense of the citizens of Wisconsin to assert that it will not.

Delegates to the last constitutional convention avoided such hot-button issues of the mid-1800s as slavery and married womens’ right to own property in their own name. They avoided what Rufus King termed the "ultraisms" of an 1846 constitutional convention whose efforts were rejected by the voters.

Other states have made real advances through constitutional conventions, and in still others the struggle continues. Illinois added substantial home rule authority to the powers of local governments in the 1970s. Alabama is struggling to replace its Jim Crow constitution of 1901, which was more concerned with perpetuating segregation than making government work for the people.

Adlai Stevenson once said that Wisconsin stood apart from from other states because its citizens understood that government should not "stumble along like a drunkard in the dark, but (rather) light its way by the best torches of knowledge and understanding it could find." ⁴

It’s time to rekindle those torches of knowledge and understanding and begin the process of creating a bright economic and governmental future for Wisconsin. It won’t be an easy task and it won’t be accomplished overnight, but we have a duty to bestow on future generations a state that has the best system of government that we mortals can devise.

Endnotes

¹Smith, Alice E., The History of Wisconsin, vol 1, State Historical Society of Wisconsin, Madison, 1973, p. 672.

²Wis. Dept. of Revenue, Division of Research & Analysis, State Shared Revenue, October 2002. See http://www.dor.state.wi.us/ra/shrev02.html

³Fairchild, Thomas E. and Siebold, Charles P., "Constitutional Revision in Wisconsin," Wisconsin Law Review, March 1950.

⁴Quoted in: Stark, Jack, The Wisconsin State Constitution: A Reference Guide, Greenwood Press, Westport, Conn. 1997.