2023 WI 38

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP2003

COMPLETE TITLE: Wisconsin Justice Initiative, Inc., a Wisconsin 

nonstock corporation, Jacqueline E. Boynton, 

Jerome F. Buting, Craig R. Johnson and Fred A. 

Risser,

 Plaintiffs-Respondents,

 v.

Wisconsin Elections Commission, Ann S. Jacobs, 

in her official capacity as Chair of the 

Wisconsin Elections Commission, Douglas La 

Follette, in his official capacity as Secretary 

of State of Wisconsin, and Josh Kaul, in his 

official capacity as Attorney General of 

Wisconsin,

 Defendants-Appellants.

ON CERTIFICATION FROM THE COURT OF APPEALS 

OPINION FILED: May 16, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 6, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: Frank D. Remington 

JUSTICES:

HAGEDORN, J., delivered the majority opinion of the Court, in 

which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, 

JJ., joined, and in which DALLET and KAROFSKY, JJ., joined with 

respect to ¶¶58-59 and 61-65. REBECCA GRASSL BRADLEY, J., filed 

a concurring opinion in which ZIEGLER, C.J., and ROGGENSACK, J., 

joined. DALLET, J., filed a concurring opinion in which 

KAROFSKY, J., joined, and in which ANN WALSH BRADLEY, J., joined 

with respect to ¶¶93-122. HAGEDORN, J., filed a concurring 

opinion in which DALLET, J., joined with respect to ¶¶137-150. 

ANN WALSH BRADLEY, J., filed a dissenting opinion.

NOT PARTICIPATING:

 

ATTORNEYS:
2

For the defendants-appellants, there were briefs filed by 

Jody J. Schmelzer and Hannah S. Jurss, assistant attorneys 

general, with whom on the briefs was Joshua L. Kaul, attorney 

general. There was an oral argument by Hannah S. Jurss, 

assistant attorney general. 

For the plaintiffs-respondents, there was a brief filed by 

Dennis M. Grzezinski and the Law Office of Dennis M. Grzezinski, 

Milwaukee. There was an oral argument by Dennis M. Grzezinski. 

An amicus curiae brief was filed by Mike Wittenwyler, 

Kendall W. Harrizon, Maxted M. Lenz, and Godfrey & Kahn, S.C.,

Madison, for Marsy’s Law for Wisconsin, L.L.C., Mothers Against 

Drunk Driving, Wisconsin Victim/Witness Professionals 

Association, Wisconsin Chiefs of Police Association, Milwaukee 

Police Association, Wisconsin Professional Police Association, 

Bolton Refuge House, Inc., Golden House, Inc., Unidos Against 

Domestic Violence, New Day Advocacy Center, and Eau Claire Area 

Hmong Mutual Assistance Association, Inc. 

An amicus curiae brief was filed by Scott E. Rosenow and 

WMC Litigation Center, Madison, for Wisconsin Manufacturers & 

Commerce, Inc. 

An amicus curiae brief was filed by Katie R. York, 

appellate division director, with whom on the brief was Kelli S. 

Thompson, state public defender, for the Wisconsin State Public 

Defender. 

An amicus curiae brief was filed by Christine Donahoe, Mel 

Barnes, Elizabeth M. Pierson, Jeffrey A. Mandell, Douglas M. 

Poland, Pahoua Thao, and Stafford Rosenbaum LLP, Madison, for 

the ACLU of Wisconsin and Law Forward, Inc. 
3

An amicus curiae brief was filed by Erika Jacobs Petty, 

Rachel E. Sattler, and Lotus Legal Clinic, Brookfield, for Lotus 

Legal Clinic. 
2023 WI 38

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP2003

(L.C. No. 2019CV3485)

STATE OF WISCONSIN : IN SUPREME COURT

Wisconsin Justice Initiative, Inc., a Wisconsin 

nonstock corporation, Jacqueline E. Boynton, 

Jerome F. Buting, Craig R. Johnson and Fred A. 

Risser,

 Plaintiffs-Respondents,

 v.

Wisconsin Elections Commission, Ann S. Jacobs, 

in her official capacity as Chair of the 

Wisconsin Elections Commission, Douglas La 

Follette, in his official capacity as Secretary 

of State of Wisconsin, and Josh Kaul, in his 

official capacity as Attorney General of 

Wisconsin,

 Defendants-Appellants.

FILED

MAY 16, 2023

Sheila T. Reiff

Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion of the Court, in 

which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, 

JJ., joined, and in which DALLET and KAROFSKY, JJ., joined with 

respect to ¶¶58-59 and 61-65. REBECCA GRASSL BRADLEY, J., filed 

a concurring opinion in which ZIEGLER, C.J., and ROGGENSACK, J., 

joined. DALLET, J., filed a concurring opinion in which 

KAROFSKY, J., joined, and in which ANN WALSH BRADLEY, J., joined 

with respect to ¶¶93-122. HAGEDORN, J., filed a concurring 

opinion in which DALLET, J., joined with respect to ¶¶137-150. 

ANN WALSH BRADLEY, J., filed a dissenting opinion.
No. 2020AP2003 

1

APPEAL from a judgment and an order of the Circuit Court 

for Dane County, Frank D. Remington, Judge. Reversed.

¶1 BRIAN HAGEDORN, J. When the Wisconsin Constitution 

was adopted in 1848, it included a process enabling amendments——

an act the people of Wisconsin have seen fit to do almost 150 

times. A proposed amendment must be approved by a majority of 

both houses of the legislature in two successive legislative 

sessions. Wis. Const. art. XII, § 1. Once it passes that test, 

the proposed amendment is submitted to the people. Id. If a 

majority vote yes, it becomes part of our constitution. Id. A 

victim's rights amendment termed "Marsy's Law" by its sponsors 

(a term we also use in this opinion) was ratified by the people 

in April of 2020. In this case, Wisconsin Justice Initiative, 

Inc. and several citizens (collectively "WJI") argue that 

Marsy's Law was adopted in violation of the process spelled out 

in the constitution. 

¶2 When considering claims grounded in the Wisconsin 

Constitution, our obligation is to faithfully interpret and 

apply its original meaning. The relevant constitutional text 

governing the claims here is found in Article XII, Section 1. 

It provides that the legislature has a duty "to submit such 

proposed amendment or amendments to the people in such manner 

and at such time as the legislature shall prescribe." Wis. 

Const. art. XII, § 1. And, "if more than one amendment be 

submitted, they shall be submitted in such manner that the 

people may vote for or against such amendments separately." Id. 
No. 2020AP2003 

2

¶3 The legislature has prescribed further guidelines via 

statute regarding the form of the ballot for proposed 

constitutional amendments. Notably, Wis. Stat. § 5.64(2)(am) 

(2021-22)1 requires ballot questions to contain a "concise 

statement of each question." However, WJI has not raised a 

challenge based upon this or any other statute. Therefore, this 

case concerns only the requirements of the Wisconsin 

Constitution which, by their plain terms, give broad discretion 

to the legislature to prescribe the manner of submission to the 

people. 

¶4 To that end, WJI argues that the ballot question for 

Marsy's Law submitted to Wisconsin voters ran afoul of Article 

XII, Section 1. WJI asserts the ballot question fails to 

contain "every essential" of the proposed amendment, and that it 

misled voters in several respects by neglecting the amendment's 

impact on the rights of criminal defendants. WJI pulls this 

supposed "every essential" requirement from language, although 

not the holdings, in two of our prior cases. See State ex rel. 

Ekern v. Zimmerman, 187 Wis. 180, 204 N.W. 803 (1925); State ex 

rel. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953). 

However, not a single constitutional amendment in Wisconsin 

history has ever undergone judicial review using this ostensible 

test. 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2021-22 version unless otherwise indicated.
No. 2020AP2003 

3

¶5 Examining the original meaning of the Wisconsin 

Constitution, we discern no such requirement, and therefore we 

decline the invitation to fashion a new, exacting constitutional 

standard. The constitution itself requires only that the 

legislature "submit" the proposed amendment to the people. See

Wis. Const. art. XII, § 1. In 1953, we did strike down a 

proposed amendment in Thomson——the only time we have done so on 

this basis in Wisconsin history——when we concluded the question 

submitted to the people described the amendment in a 

fundamentally counterfactual way. 264 Wis. at 660. The 

proposed amendment was therefore not, in any meaningful way, 

"submitted" to the people. Id. However, the extreme situation 

in Thomson is not present here. While WJI takes issue with the 

wording, completeness, and implications of the ballot question, 

we conclude the question was not fundamentally counterfactual 

such that voters were not afforded the opportunity to approve 

the actual amendment.

¶6 Additionally, in view of what WJI contends were 

modifications to the rights of criminal defendants and victims, 

it argues Marsy's Law should have been submitted to voters as 

multiple amendments, rather than as a single amendment. We have 

summarized our interpretation of this portion of Article XII, 

Section 1 as follows: 

It is within the discretion of the legislature to 

submit several distinct propositions as one amendment 

if they relate to the same subject matter and are 

designed to accomplish one general purpose. The 

general purpose of an amendment may be deduced from 

the text of the amendment itself and from the 
No. 2020AP2003 

4

historical context in which the amendment was adopted. 

And all of the propositions must tend to effect or 

carry out that purpose. 

McConkey v. Van Hollen, 2010 WI 57, ¶50, 326 Wis. 2d 1, 783 

N.W.2d 855 (cleaned up). Applying this test, we conclude all of 

the provisions of Marsy's Law relate to expanding and defining 

victim's rights and tend to effect and carry out this general 

purpose.

¶7 We therefore hold that WJI's challenges to Marsy's Law 

fail. The ballot question was not submitted to the people in 

violation of the process outlined in the Wisconsin Constitution. 

Therefore, absent challenge on other grounds, the amendment has 

been validly ratified and is part of the Wisconsin Constitution. 

I. BACKGROUND

¶8 In successive legislative sessions, both houses of the 

legislature adopted a proposal to amend Article I, Section 9m of 

the Wisconsin Constitution. See 2017 Enrolled Joint Resolution 

13; 2019 Enrolled Joint Resolution 3. The proposed amendment 

renumbered the existing Article 1 Section 9m to Section 9m(2) 

(intro.) and modified it as follows, with underlines 

representing additions to and strikethroughs representing 

deletion of the then-existing text:

[Article I] Section 9m (2) (intro.) This state shall 

treat crime victims, as defined by law, with fairness, 

dignity and respect for their privacy. This state 

shall ensure that crime victims have all of the 

following privileges and protections as provided by 

law: In order to preserve and protect victims' rights 

to justice and due process throughout the criminal and 

juvenile justice process, victims shall be entitled to 
No. 2020AP2003 

5

all of the following rights, which shall vest at the 

time of victimization and be protected by law in a 

manner no less vigorous than the protections afforded 

to the accused:

(a) To be treated with dignity, respect, courtesy, 

sensitivity, and fairness.

(b) To privacy.

(c) To proceedings free from unreasonable delay.

(d) To timely disposition of the case; the opportunity 

to attend court, free from unreasonable delay.

(e) Upon request, to attend all proceedings unless the 

trial court finds sequestration is necessary to a fair 

trial for the defendant; involving the case.

(f) To reasonable protection from the accused 

throughout the criminal and juvenile justice process;.

(g) Upon request, to reasonable and timely

notification of court proceedings; the opportunity to.

(h) Upon request, to confer with the prosecution; the 

opportunity to make a statement to the court at 

disposition; attorney for the government.

(i) Upon request, to be heard in any proceeding during 

which a right of the victim is implicated, including 

release, plea, sentencing, disposition, parole, 

revocation, expungement, or pardon.

(j) To have information pertaining to the economic, 

physical, and psychological effect upon the victim of 

the offense submitted to the authority with 

jurisdiction over the case and to have that 

information considered by that authority.

(k) Upon request, to timely notice of any release or 

escape of the accused or death of the accused if the 

accused is in custody or on supervision at the time of 

death.

(L) To refuse an interview, deposition, or other 

discovery request made by the accused or any person 

acting on behalf of the accused.
No. 2020AP2003 

6

(m) To full restitution; from any person who has been 

ordered to pay restitution to the victim and to be 

provided with assistance collecting restitution.

(n) To compensation; and as provided by law.

(o) Upon request, to reasonable and timely information 

about the status of the investigation and the outcome 

of the case and the release of the accused.

(p) To timely notice about all rights under this 

section and all other rights, privileges, or 

protections of the victim provided by law, including 

how such rights, privileges, or protections are 

enforced.

(3) Except as provided under sub. (2) (n), all 

provisions of this section are self-executing. The 

legislature shall provide may prescribe further

remedies for the violation of this section. Nothing in 

this section, or in any statute enacted pursuant to 

this section, shall limit any right of the accused 

which may be provided by law. and further procedures 

for compliance with and enforcement of this section.

2019 Enrolled Joint Resolution 3, § 1. 

¶9 The proposed amendment also created four new 

subsections:

[Article I] Section 9m (1)(a) In this section, 

notwithstanding any statutory right, privilege, or 

protection, "victim" means any of the following:

1. A person against whom an act is committed that 

would constitute a crime if committed by a competent 

adult.

2. If the person under subd. 1. is deceased or is 

physically or emotionally unable to exercise his or 

her rights under this section, the person's spouse, 

parent or legal guardian, sibling, child, person who 

resided with the deceased at the time of death, or 

other lawful representative.

3. If the person under subd. 1. is a minor, the 

person's parent, legal guardian or custodian, or other 

lawful representative.
No. 2020AP2003 

7

4. If the person under subd. 1. is adjudicated 

incompetent, the person's legal guardian or other 

lawful representative.

(b) "Victim" does not include the accused or a person 

who the court finds would not act in the best 

interests of a victim who is deceased, incompetent, a 

minor, or physically or emotionally unable to exercise 

his or her rights under this section.

. . .

[Article I] Section 9m (4)(a) In addition to any other 

available enforcement of rights or remedy for a 

violation of this section or of other rights, 

privileges, or protections provided by law, the 

victim, the victim's attorney or other lawful 

representative, or the attorney for the government 

upon request of the victim may assert and seek in any 

circuit court or before any other authority of 

competent jurisdiction, enforcement of the rights in 

this section and any other right, privilege, or 

protection afforded to the victim by law. The court 

or other authority with jurisdiction over the case 

shall act promptly on such a request and afford a 

remedy for the violation of any right of the victim. 

The court or other authority with jurisdiction over 

the case shall clearly state on the record the reasons 

for any decision regarding the disposition of a 

victim's right and shall provide those reasons to the 

victim or the victim's attorney or other lawful 

representative.

(b) Victims may obtain review of all adverse decisions 

concerning their rights as victims by courts or other 

authorities with jurisdiction under par. (a) by filing 

petitions for supervisory writ in the court of appeals 

and supreme court.

. . .

[Article I] Section 9m (5) This section does not 

create any cause of action for damages against the 

state; any political subdivision of the state; any 

officer, employee, or agent of the state or a 

political subdivision of the state acting in his or 

her official capacity; or any officer, employee, or 
No. 2020AP2003 

8

agent of the courts acting in his or her official 

capacity.

. . .

[Article I] Section 9m (6) This section is not 

intended and may not be interpreted to supersede a 

defendant's federal constitutional rights or to afford 

party status in a proceeding to any victim.

Id., §§ 2-5.

¶10 The legislature directed that this amendment, 

informally known as "Marsy's Law," be submitted for ratification 

at the April 7, 2020 election. The legislature determined that 

the ballot question should state as follows:

Question 1: "Additional rights of crime victims. 

Shall section 9m of article I of the constitution, 

which gives certain rights to crime victims, be 

amended to give crime victims additional rights, to 

require that the rights of crime victims be protected 

with equal force to the protections afforded the 

accused while leaving the federal constitutional 

rights of the accused intact, and to allow crime 

victims to enforce their rights in court?"

2019 Enrolled Joint Resolution 3.

¶11 Several months before the April election, WJI brought 

suit against the Wisconsin Elections Commission (WEC) alleging 

the ballot question failed to satisfy the requirements of the 

Wisconsin Constitution.2 WJI sought declarations that the ballot 

question violated Article XII, Section 1 of the Wisconsin 

Constitution on various grounds, and requested both a permanent 

injunction and a temporary injunction preventing submission of 

 

2 WJI also sued Dean Knudson, Douglas LaFollette, and Josh 

Kaul in their official capacities as Chair of the WEC, Secretary 

of State, and Attorney General, respectively. We refer to all 

the defendants collectively as WEC.
No. 2020AP2003 

9

the question to voters while the litigation was pending. The 

circuit court denied WJI's motion for a temporary injunction, 

and Wisconsinites ratified the amendment at the April 7, 2020 

election by a vote of 1,107,067 to 371,013. Several months 

later, the circuit court granted declaratory judgment in favor 

of WJI, concluding the ballot question failed to meet all the 

requirements with respect to content and form. The circuit 

court, on its own motion, stayed judgment pending appeal. WEC 

appealed, and the court of appeals certified the appeal to this 

court, which we accepted. 

II. DISCUSSION

¶12 The Wisconsin Constitution provides two mechanisms by 

which the people may change their founding charter: 

constitutional convention3 and constitutional amendment. This 

case concerns only the amendment process, which is spelled out 

in Article XII, Section 1:

Any amendment or amendments to this constitution may 

be proposed in either house of the legislature, and if 

the same shall be agreed to by a majority of the 

members elected to each of the two houses, such 

proposed amendment or amendments shall be entered on 

their journals, with the yeas and nays taken thereon, 

and referred to the legislature to be chosen at the 

next general election, and shall be published for 

three months previous to the time of holding such 

election; and if, in the legislature so next chosen, 

such proposed amendment or amendments shall be agreed 

to by a majority of all the members elected to each 

house, then it shall be the duty of the legislature to 

 

3 Wis. Const. art. XII, § 2.
No. 2020AP2003 

10

submit such proposed amendment or amendments to the 

people in such manner and at such time as the 

legislature shall prescribe; and if the people shall 

approve and ratify such amendment or amendments by a 

majority of the electors voting thereon, such 

amendment or amendments shall become part of the 

constitution; provided, that if more than one 

amendment be submitted, they shall be submitted in 

such manner that the people may vote for or against 

such amendments separately.

This section was adopted as part of our original constitution in 

1848 and has never been amended. Compare Wis. Const. art. XII, 

§ 1 (1848) with Wis. Const. art. XII, § 1 (2021); Ray A. Brown, 

The Making of the Wisconsin Constitution (Part II), 1952 Wis. L. 

Rev. 23, 60. 

¶13 WJI argues the ballot question for Marsy's Law 

violated two separate clauses of Article XII, Section 1. First, 

it contends the proposed amendment was not, in effect, submitted 

"to the people in such manner and at such time as the 

legislature shall prescribe." Wis. Const. art. XII, § 1. WJI 

maintains that this provision requires a ballot question on a 

proposed amendment to disclose "every essential" of the 

amendment and not be misleading. Separately, WJI asserts that 

Marsy's Law constituted "more than one amendment" and therefore 

voters should have been given the opportunity to "vote for or 

against such amendments separately." Id.

¶14 Analyzing these questions requires us to interpret the 

Wisconsin Constitution, and determine if the amendment was 

ratified in conformance with the constitutional procedures——

questions of law we determine independently. Serv. Emps. Int'l 

Union, Loca1 1 v. Vos, 2020 WI 67, ¶28, 393 Wis. 2d 38, 946 
No. 2020AP2003 

11

N.W.2d 35; McConkey, 326 Wis. 2d 1, ¶12. We begin by reviewing 

our approach to constitutional interpretation. 

A. Constitutional Interpretation

¶15 The Wisconsin Constitution begins, "We, the people of 

Wisconsin, grateful to Almighty God for our freedom, in order to 

secure its blessings, form a more perfect government, insure 

domestic tranquility and promote the general welfare, do 

establish this constitution." Wis. Const. pmbl. This reflects 

the foundational assumption of our system of government: all 

authority resides with the people, and it is the people alone 

who have the authority to establish the terms and methods by 

which they will be governed. The constitution is that 

foundational charter in which the people determine their 

fundamental law, and by which they consent to be governed. See

Wis. Const. art. I, § 1 (government derives its "just powers 

from the consent of the governed"). 

¶16 This contrasts with the constitutional system of the 

British from whom we declared independence. While our friends

in Great Britain speak of being governed by a "constitution," it 

is not a written constitution. Nikolas Bowie, Why the 

Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 

(2019). Rather, for them, it is a set of civic values and norms 

accepted by the people through the years. Id. But that is not 
No. 2020AP2003 

12

how we do it here. Our constitutions——state and federal——are 

written documents. They are law and should be read as such.4 

¶17 This foundational point means our authority to 

interpret the constitution when deciding cases is not without 

limits. The constitution establishes the entities and 

institutions that the people have determined will order their 

lives. Each of our three branches of government——legislative, 

executive, and judicial——is created by the constitution and 

subject to it. Vos, 393 Wis. 2d 38, ¶31; League of Women Voters 

of Wis. v. Evers, 2019 WI 75, ¶30, 387 Wis. 2d 511, 929 

N.W.2d 209. The constitution tells the judiciary, no less than 

any other branch, what we can do, what we must do, and what we 

cannot do. See generally Wis. Const. art. VII (providing 

powers, obligations, and prohibitions of various kinds on the 

judiciary). We must be faithful to the charge we have been 

given by the people, exercising only the authority entrusted to 

us. Vos, 393 Wis. 2d 38, ¶¶31-33; see also The Federalist No. 

78, at 470 (A. Hamilton) (C. Rossiter ed. 1961) (calling judges 

the "faithful guardians of the Constitution").

 

4 See, e.g., U.S. Const. art. VI, cl. 2 (declaring the 

federal Constitution "the supreme Law of the Land"); The 

Attainment of Statehood 883 (Milo M. Quaife, ed. 1928) 

(detailing that the president of the state constitutional 

convention adjourned the convention in 1848 by remarking, "[t]he 

result of our labors, if approved, becomes henceforth the 

supreme law of our adopted land, and whether well or ill done it 

stands forth as the record of our united opinions upon the form 

of government best suited to the condition of our people"); 

Daniel R. Suhr, Interpreting the Wisconsin Constitution, 97 

Marq. L. Rev. 93, 93 (2013) (stating the "Wisconsin Constitution 

is the state's fundamental law"). 
No. 2020AP2003 

13

¶18 The main power we have been given in the constitution 

is the judicial power, which by necessity means the power to 

interpret the law in appropriate cases. See Gabler v. Crime 

Victims Rts. Bd., 2017 WI 67, ¶37, 376 Wis. 2d 147, 897 

N.W.2d 384. One of our most famous early cases, Attorney 

General ex rel. Bashford v. Barstow, presented a significant 

challenge to this court at a time when many questioned our 

authority to issue orders in a disputed gubernatorial contest. 

4 Wis. 567 [*567] (1855). Chief Justice Whiton explained that 

the legal rights at issue were "fixed by the constitution, and 

the court, if it has jurisdiction of this proceeding, is the 

mere instrument provided by the constitution to ascertain and 

enforce their rights as fixed by that instrument." Id. at 672-

73 [*659]. Although the case centered on who the lawful 

occupant of the governor's office was, the court's role was "the 

same as in all controversies between party and party; not to 

create rights, but to ascertain and enforce them." Id. at 673 

[*659]. Thus, we have understood from early on that our role is 

not to use the constitution to create new rights and protections 

that are not there, but to ascertain and enforce the rights and 

protections that are already there, fixed by the people in the 

text of the constitution. See Jacobs v. Major, 139 Wis. 2d 492, 

512, 407 N.W.2d 832 (1987) ("Courts would be ill-advised to 

rewrite history and plain, clear constitutional language to 

create some new rights contrary to history."). Where our 

constitution needs updating, the people may do so through 
No. 2020AP2003 

14

constitutional amendment or constitutional convention; that 

authority has not been given to us. See Wis. Const. art. XII. 

¶19 This should not be surprising because that is exactly 

how we have described our duty when interpreting other sources 

of law. When it comes to statutory interpretation, we 

understand that it is "a solemn obligation of the judiciary to 

faithfully give effect to the laws enacted by the legislature, 

and to do so requires a determination of statutory meaning." 

State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 

271 Wis. 2d 633, 681 N.W.2d 110. This is why the focus in 

statutory interpretation is on the language of the statutory 

text, read reasonably, along with relevant statutory context and 

structure. Id., ¶44-46. The whole goal "of statutory 

interpretation is to determine what the statute means so that it 

may be given its full, proper, and intended effect." Id., ¶44. 

¶20 Our obligation to be true to the law the people have 

enacted requires the same kind of consideration of 

constitutional meaning as we give to statutory meaning. The 

awesome responsibility entrusted to us by the people calls us to 

have the humility and fortitude to say what the law is, not what 

we may wish it to be. We do not "update" statutes to fit with 

the times. We do not rewrite statutes to account for changing 

moral norms. We do not modify statutes so they better accord 

with our sense of justice or good public policy. We do not 

ignore or fail to interpret statutes to mean what they say when 

critics are loud. We have repeatedly said it is not our job to 

judge the wisdom of the laws we interpret; rather, it is our job 
No. 2020AP2003 

15

to interpret the law as we find it. See, e.g., Town of Wilson 

v. City of Sheboygan, 2020 WI 16, ¶45, 390 Wis. 2d 266, 938 

N.W.2d 493 ("The Town's argument that a petitioner should be 

required to use one method of calculation over another is a 

policy argument and has no support in the statutory language."); 

Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶40, 382 

Wis. 2d 1, 913 N.W.2d 131 ("[A] court cannot issue a declaration 

regarding the wisdom of a legislative determination."); Columbus 

Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶34, 267 

Wis. 2d 59, 671 N.W.2d 633 ("[W]e must apply the statute as 

written, not interpret it as we think it should have been 

written."); Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶57, 

237 Wis. 2d 99, 613 N.W.2d 849 ("It is not our role to determine 

the wisdom or rationale underpinning a particular legislative 

pronouncement."); Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 

415, 147 N.W.2d 633 (1967) ("We are not concerned with the 

wisdom of what the legislature has done.").

¶21 Just as the purpose of statutory interpretation is to 

determine what the statutory text means, the purpose of 

constitutional interpretation is to determine what the 

constitutional text meant when it was written, commonly called 

the original public meaning or original understanding. Although 

constitutional language is at times written with less precision, 

that fact does not fundamentally change the nature of our 

charge. We must similarly focus on the constitutional text, 

reading it reasonably, in context, and with a view of the 

provision's place within the constitutional structure. Vos, 393 
No. 2020AP2003 

16

Wis. 2d 38, ¶28. Other sources such as the debates and 

practices at the time of adoption, along with early legislative 

enactments, may prove helpful aids to interpretation. State v. 

Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953 N.W.2d 847. 

Just as we leave policy choices to the legislature in statutory 

interpretation, we must leave policy choices to the people in 

constitutional interpretation. See Vos, 393 Wis. 2d 38, ¶28 

("The text of the constitution reflects the policy choices of 

the people, and therefore constitutional interpretation 

similarly focuses primarily on the language of the 

constitution."); Flynn v. DOA, 216 Wis. 2d 521, 529, 576 

N.W.2d 245 (1998) ("It is for the legislature to make policy 

choices, ours to judge them based not on our preference but on

legal principles and constitutional authority."). 

¶22 Although we have not been entirely consistent in its 

application, we have consistently described our task as one 

focused on the meaning of the text.5 For many years, we have 

commonly recited that when interpreting a constitutional 

provision, we look to "the plain meaning of the words in the 

 

5 This is also true across the country. "[T]he 

supermajority of state supreme courts have expressly identified 

originalism as the primary canon of state constitutional 

interpretation." Jeremy M. Christiansen, Originalism: The 

Primary Canon of State Constitutional Interpretation, 15 Geo. J. 

L. & Pub. Pol'y 341, 344 (2017); see, e.g., Elliott v. State, 

824 S.E.2d 265, 268-269 (Ga. 2019); People v. Tanner, 853 

N.W.2d 653, 667 (Mich. 2014); Woonsocket Sch. Comm. v. Chafee, 

89 A.3d 778, 787 (R.I. 2014); League of Educ. Voters v. State, 

295 P.3d 743, 749 (Wash. 2013) (en banc); Commonwealth v. Rose, 

81 A.3d 123, 127 (Pa. 2013); State v. Hernandez, 268 P.3d 822, 

¶8 (Utah 2011).
No. 2020AP2003 

17

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."6

Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996). 

Notably, all of these are directed at the original meaning of 

the constitution. 

¶23 This court has doubled down on this approach in recent 

years.7 In State v. Roberson, for example, we overruled our 

 

6 We have——without controversy——embraced this formulation of 

how we do constitutional interpretation for decades, just as 

Kalal has taken root as the proper approach to statutory 

interpretation. See State ex rel. Kalal v. Cir. Ct. for Dane 

Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110; Daniel R. 

Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969, 

970 (2017) (explaining "Kalal transformed statutory 

interpretation in Wisconsin" by advancing "a uniform method" for 

Wisconsin courts to use when interpreting statutes). As a 

result, the Wisconsin court system has a growing culture where 

the meaning of the text reigns supreme. And for that, we should 

be grateful. 

Justice Dallet's concurrence, on the other hand, suggests 

we should depart from a methodology focused on the meaning of 

the text we are interpreting in favor of a more eclectic and 

"pluralistic" approach. Justice Dallet concurrence, ¶94. The 

concurrence's open pining for the freedom to go beyond the 

meaning of constitutional language must be and is rejected. 

7 Justice Dallet's concurrence tries to marshal cases 

challenging this. Justice Dallet's concurrence, ¶97. It points 

to Becker v. Dane County, 2022 WI 63, ¶33, 403 Wis. 2d 424, 977 

N.W.2d 390. But the constitutional analysis cited was joined by 

only three justices and is not an opinion of the court. Justice 

Dallet's concurrence also cites State v. Roundtree, 2021 WI 1, 

395 Wis. 2d 94, 952 N.W.2d 765; State v. Christen, 2021 WI 39, 

396 Wis. 2d 705, 958 N.W.2d 746; and Miller v. Carroll, 2020 

WI 56, 392 Wis. 2d 49, 944 N.W.2d 542. But those cases involved 

applying United States Supreme Court precedent on the Second 
No. 2020AP2003 

18

prior decision in State v. Dubose,8 which had adopted new 

requirements for the admissibility of out-of-court 

identification evidence under the Wisconsin Constitution. State 

v. Roberson, 2019 WI 102, ¶3, 389 Wis. 2d 190, 935 N.W.2d 813. 

We did so, however, not based on the policies reflected in this 

decision, but based on our assessment of the "original meaning 

of the Wisconsin Constitution." Id., ¶44. We recognized that 

while state constitutions may provide further protection to 

citizens than the federal Constitution, "the question for a

state court is whether its state constitution actually affords 

greater protection." Id., ¶56. Critically, we held, "A state 

court does not have the power to write into its state 

constitution additional protection that is not supported by its 

text or historical meaning." Id.

 

Amendment and Due Process Clauses of the federal Constitution. 

The only other example it offers is State v. Knapp, 2005 WI 127, 

285 Wis. 2d 86, 700 N.W.2d 899, a single decision from 18 years 

ago that remains controversial for its departure from 

traditional judicial reasoning and constitutional analysis. See

State v. Halverson, 2021 WI 7, ¶38, 395 Wis. 2d 385, 953 

N.W.2d 847 (Rebecca Grassl Bradley, J., concurring) ("Because 

the Knapp court's interpretation of Article I, Section 8 of the 

Wisconsin Constitution lacks any mooring in text or history, 

this court should restore the original meaning of this 

constitutional provision."); Judge Diane S. Sykes, Reflections 

on the Wisconsin Supreme Court, Hallows Lecture (March 7, 2006), 

in Marquette Lawyer, Summer/Fall 2006, at 60 ("The court's 

decision [in Knapp] rests not on the language or history of the 

state constitution's self-incrimination clause but on the 

court's own policy judgment flowing from an expansive view of 

the deterrence rationale of the exclusionary rule.").

8 State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 

N.W.2d 582, overruled by State v. Roberson, 2019 WI 102, 389 

Wis. 2d 190, 935 N.W.2d 813.
No. 2020AP2003 

19

¶24 In Halverson, a criminal defendant asked us to 

conclude under the Wisconsin Constitution that an incarcerated 

individual is "in custody" for purposes of requiring Miranda

warnings, despite rejection of that principle under the federal 

Constitution. 395 Wis. 2d 385, ¶¶2-4. We unanimously rebuffed 

that argument in part because the defendant provided no argument 

rooted in the text or history of the Wisconsin Constitution. 

Id., ¶¶26-28. We did not view the request as a wide-ranging 

invitation to make new judicial policy on custodial 

interrogations. Rather, we emphasized that "any argument based 

on the Wisconsin Constitution must actually be grounded in the 

Wisconsin Constitution." Id., ¶24

¶25 Likewise, in State ex rel. Kaul v. Prehn, the State 

asked us to hold that the Governor should have similar removal 

powers as the President does under the federal Constitution. 

2022 WI 50, ¶2, 402 Wis. 2d 539, 976 N.W.2d 821. We rejected 

the State's overreliance on federal law because the federal 

cases lent "only limited support to structure, meaning, and 

original understanding of the Wisconsin Governor's removal 

power." Id., ¶43. We emphasized that "we focus on the language 

of the adopted text" when interpreting the constitution, and

said it was the State's obligation to present historical 

research and evidence of the Wisconsin Constitution's "original 

meaning." Id., ¶¶12, 44. We went on to consult and discuss the 

original understanding of the appointment powers of the Governor 

by reference to the historical record, including records of the 
No. 2020AP2003 

20

constitutional convention and early legislative enactments. 

Id., ¶¶48-51. 

¶26 In Johnson v. WEC, we examined the requirements under 

the Wisconsin Constitution as it related to redrawing 

legislative maps. 2021 WI 87, ¶2, 399 Wis. 2d 623, 967 

N.W.2d 469. In doing so, we reviewed the text and history in 

search of the "original meaning" of the relevant constitutional 

provisions. Id., ¶¶28, 33, 58. We rejected, for example, the 

notion that the Wisconsin Constitution authorizes judicial 

consideration of partisanship because "[n]othing supports the 

notion that Article I, Section 1 of the Wisconsin Constitution 

was originally understood" this way. Id., ¶58. 

¶27 When considering our role in constitutional 

interpretation, Justice Smith said it well in 1855. It is worth 

quoting at length:

Let us then look to that constitution, adopted by the 

people of Wisconsin, and endeavor to ascertain its 

true intent and meaning, the distribution of the 

powers of government which it has in fact made, and 

the agencies which it has provided, whereby those 

powers are to be executed. And here, let it be 

remarked, that our conclusions must be guided and

determined . . . by the plain, simple, but 

authoritative and mandatory provisions of our own 

constitution. We made it ourselves. We are bound to 

abide by it, until altered, amended or annulled, and 

we must construe it, and support it, not according to 

the vague, conjectural hypothesis of volunteer 

expounders, resident in other states, having no care 

or interest in the government, and having no knowledge 

of the constitution of our state, but according to its 

plain letter and meaning, as the oath-bond of our 

safety——as the palladium of our rights and liberties——

as the vital principle of our social and political 

organism.
No. 2020AP2003 

21

Bashford, 4 Wis. at 785 [*757-58] (Smith, J.).

¶28 In short, our solemn duty in constitutional 

interpretation is to faithfully discern and apply the 

constitution as it is written.9 What the constitution says, it 

says. What it does not say, it does not say. Through careful, 

humble, and courageous fidelity to the constitution, we allow 

the people to govern themselves, we support and uphold the 

constitutional rights and protections the people have 

established, and we ensure that the government the people have 

authorized remains in their hands. 

B. Submitted to the People

¶29 We turn then to the first constitutional challenge WJI 

poses: Was the proposed amendment submitted to the people in 

compliance with Article XII, Section 1? Before addressing WJI's 

several arguments concerning this clause, we begin with the 

original meaning of Article XII, Section 1.

 

9 Justice Dallet's concurrence attempts to critique 

originalism by raising some of the challenges that come with 

understanding legal texts. Reading the concurrence's nearhopeless description of the interpretive task, one wonders why 

we bother with a written constitution at all. None of the 

issues she identifies are unique to constitutional language, 

however. The same problems inhere in the interpretation of 

statutes and other legal texts. Laws written by people, 

sometimes hundreds of years ago, can be difficult to interpret 

and apply. But this fact does not change the nature of our 

duty. Thus, the concurrence's broadside against originalism 

"isn't an attack against originalism so much as it is an attack 

on written law." Neil Gorsuch, A Republic, If You Can Keep It

113 (2019).
No. 2020AP2003 

22

1. The Original Meaning of Article XII, Section 1 & Ekern

¶30 Our constitutional analysis begins with the text. As 

relevant to this dispute, following initial adoption in the 

legislature and other procedural requirements, the constitution 

requires "the legislature to submit such proposed amendment or 

amendments to the people in such manner and at such time as the 

legislature shall prescribe." Wis. Const. art. XII, § 1. This 

language commands only two things: First, the amendment must be 

"submitted" to the people; and second, it must be done in the 

manner and at the time prescribed by the legislature. Id. The 

legislature has enacted Wis. Stat. § 5.64(2),10 which spells out 

various instructions for submission such as giving a "concise

statement of each question." However, WJI does not develop any 

separate arguments under this statute. Therefore, we do not 

address the statute further and focus our attention solely on 

the requirements in the constitution itself. See Vos, 393 

Wis. 2d 38, ¶24 ("We do not step out of our neutral role to 

 

10 Wisconsin Stat. § 5.64(2)(am) states:

There shall be a separate ballot when any proposed 

constitutional amendment or any other measure or 

question is submitted to a vote of the people, except 

as authorized in s. 5.655. The ballot shall give a 

concise statement of each question in accordance with 

the act or resolution directing submission in the same 

form as prescribed by the commission under s. 

7.08(1)(a). The question may not be worded in such a 

manner as to require a negative vote to approve a 

proposition or an affirmative vote to disapprove a 

proposition. Unless otherwise expressly provided, 

this ballot form shall be used at all elections when 

questions are submitted to a vote of the people.
No. 2020AP2003 

23

develop or construct arguments for parties; it is up to them to 

make their case.").

¶31 On its face, the constitutional requirement that an 

amendment be "submitted" to the people does not contain any 

explicit obligations regarding form or substance. The 

legislature is granted substantial discretion and freedom in how 

amendments can be submitted to the people. The text simply 

requires that the people must have the opportunity to ratify or 

reject a proposed amendment. 

¶32 Moving to other evidence of the original 

understanding, we are unaware of any ratification debates or 

other contemporaneous evidence from the constitutional 

convention that bear on the meaning of this provision. But 

early legislative actions pursuant to this provision confirm our 

reading of the text of Article XII, Section 1. We look to these 

early legislative actions not to conclusively settle 

constitutional meaning, but because they can reveal how a 

constitutional provision was understood at the time of adoption. 

See, e.g., Vos, 393 Wis. 2d 38, ¶67. In other words, early 

legislatures attempting to amend the constitution are likely to 

have acted consistent with their understanding of its 

requirements, and therefore proceed consistent with the original 

public meaning of Article XII, Section 1. 

¶33 In the early years after our constitution was adopted, 

ballot questions were uniformly submitted as simple up or down 

votes. In 1854, the legislature submitted three separate 

amendments to the voters concerning: (1) 2-year terms for 
No. 2020AP2003 

24

assemblymen, (2) 4-year terms for senators, and (3) biennial 

legislative sessions. §§ 1-3, ch. 89, Laws of 1854. The 

electors were given three ballots: 

 "'For amendment to section four' or 'against 

amendment to section four'";

 "'for amendment to section five' or 'against 

amendment to section five'"; and

 "'for amendment to section eleven' or 'against 

amendment to section eleven.'"

§ 4, ch. 89, Laws of 1854. This process confirms that the 

constitutional command to submit the amendment to the people for 

ratification was understood not to demand any particular 

substantive content. It simply required that voters be afforded 

a clear opportunity to ratify a proposed amendment. 

¶34 The pattern continued. In 1862, the legislature 

submitted to voters an amendment to increase the governor's pay 

to $2,500 per year. § 1, ch. 202, Laws of 1862. There again, 

the question on the ballot was simply "for the amendment to the 

constitution" or "against the amendment to the constitution." 

§ 2, ch. 202, Laws of 1862. In 1867, the people were asked to 

amend the constitution to increase legislative pay to $350 per 

year. Ch. 25, Laws of 1867. The question on the ballot once 

again was "for amendment to the constitution" and "for amendment 

to the constitution, no." § 2, ch. 25, Laws of 1867. And in 

1869, the legislature submitted two amendments to the people to 

increase the salary of the governor to $5,000 per year and the 

lieutenant governor to $1,000 per year. Ch. 186, Laws of 1869. 
No. 2020AP2003 

25

The legislature submitted both amendments in the same ballot 

question: "for amendments to the constitution" and "for 

amendments to the constitution, no." § 2, ch. 186, Laws of 

1869. 

¶35 Thus, no ballot question in the first 22 years after 

the constitution was adopted contained any substantive 

description of the amendment at all. So far as we can tell, no 

one questioned the validity of this process. If in fact the 

constitution requires the content of a proposed amendment to be 

included in the ballot question, the inescapable conclusion is 

that every one of these amendments was submitted to the people 

in an unconstitutional manner——with no one batting an eye. That 

is highly unlikely. The overwhelming, indeed, uniform teaching 

of the text and history surrounding Article XII, Section 1 of 

the Wisconsin Constitution is that an amendment only needs to be 

submitted to the people for ratification. It need not——as a 

constitutional prerequisite——contain any kind of description of 

the amendment's substance.11

¶36 This leads to two questions. First, where does the 

proposed "every essential" test come from, then? And second, 

are there circumstances under which a proposed amendment can be 

 

11 Justice Dallet's concurrence critiques our interpretive 

principles because, she argues, originalism is "almost always 

fruitless." Justice Dallet concurrence, ¶108. But this case 

stands in direct conflict with those assertions. The original 

meaning in this case is apparent, with text and history all 

pointing in the same direction. While some cases may involve 

harder questions, here, as is often the case, a careful analysis 

yields a relatively clear answer. 
No. 2020AP2003 

26

deemed not "submitted" to the people under Article XII, Section 

1? To provide the necessary context for these questions, we 

continue with a brief survey of the historical practice, 

legislative changes, and cases that led to the arguments before 

us today. 

¶37 Starting in 1870, the legislature changed its practice 

and began adding a general subject area to the ballot question, 

although still without explaining any of the content of the 

proposed amendment. Criminal defendants at that time had to be 

presented to or indicted by a grand jury (absent a few 

exceptions) before answering a criminal offense. Wis. Const. 

art. 1, § 8 (1848). In 1870, the legislature asked voters to 

amend the constitution and remove the grand jury requirement. 

Ch. 118, Laws of 1870. Voters in favor of the amendment were 

asked to cast a ballot "against the grand jury system" while 

those who opposed the proposed amendment voted "for the grand 

jury system." § 2, ch. 118, Laws of 1870. In 1871, voters were 

asked to add Sections 31 (prohibiting special legislation and 

private laws) and 32 (authorizing general laws on subject areas 

prohibited under section 31) to Article IV. Ch. 122, Laws of 

1871. Those in favor of the amendment were asked to vote 

"against special legislation" and those opposed to the amendment 

cast a ballot "for special legislation." § 2, ch. 122, Laws of 

1871. Along these lines, in 1872, the ballot question asked the 

people to vote "for amending the constitution increasing the 

number of justices of the supreme court" or "against amending 
No. 2020AP2003 

27

the constitution increasing the number of justices of the 

supreme court." § 2, ch. 111, Laws of 1872.

¶38 1874 saw a longer, more substantive question submitted 

to the people, immediately followed by a return to ballot 

questions without subject matter. The ballot language in 1874 

was "for amending the constitution limiting bonded indebtedness 

by counties, towns, cities and villages, to five per cent" and 

"against amending the constitution limiting the bonded 

indebtedness by counties, towns, cities and villages to five per 

cent." § 2, ch. 37, Laws of 1874. Following this, however, the 

legislature again began asking simple yes or no questions. In 

1877 the voters were asked to increase the composition of the 

supreme court again (the earlier proposal failed). Ch. 48, Laws 

of 1877. The ballot question presented this time was, "for 

amendment to the constitution" or "for amendment to the 

constitution, no." § 2, ch. 48, Laws of 1877. Also that year, 

the legislature asked the people to amend the provision 

regarding claims against the state. Ch. 158, Laws of 1877. The 

ballot question simply asked: "for the amendment" and "against 

the amendment." § 2, ch. 158, Laws of 1877. Other proposed 

amendments proceeded similarly.12 

 

12 All ballot questions from 1881 until 1897 simply served 

to identify the section (or sections) amended. See § 2, ch. 

262, Laws of 1881 (amending Article IV, Sections 4, 5, 11, and 

21); § 2, ch. 273, Laws of 1882 (amending Article III, Section 

1); § 2, ch. 290, Laws of 1882 (amending Article VI, Section 4; 

Article VII, Section 12; and Article XIII, Section 1); § 2, ch. 

362, Laws of 1891 (amending Article IV, Section 31); § 2, ch. 

69, Laws of 1897 (amending Article VII, Section 7). Or they 
No. 2020AP2003 

28

¶39 Then, just before the turn of the century, the 

legislature adopted a statute that required "a concise statement 

of the nature" of a proposed amendment. Wis. Stat. ch. 5, § 39 

(1898). This mandate was moved in 1907 to the predecessor of 

what later became today's Wis. Stat. § 5.64. § 2, ch. 583, Laws 

of 1907 (creating § 38(7)).13 And in 1908, ballot questions 

began to include substantive descriptions of proposed 

amendments. That year, four amendments were submitted to the 

people. Voters were asked to vote yes or no to the following 

questions:

 "For the amendment providing state aid in the 

construction or improvement of public highways." 

§ 2, ch. 238, Laws of 1907.

 "For the amendments authorizing a graduated 

income tax." § 2, ch. 661, Laws of 1907.

 "For the amendment extending from three to six 

days the time allowed the governor in which to 

approve bills." Id.

 "For the amendment providing that after December 

1st, 1912, electors shall be citizens of the 

United States." Id.

And so the trend continued moving forward. 

¶40 The first case to address the manner of the 

legislature's submission to the people occurred in 1925. The 

question before this court in Ekern was whether the legislature 

 

asked if the voter was for or against an amendment. See § 2, 

ch. 22, Laws of 1889 (amending Article VII, Section 4).

13 See § 25, ch. 383, Laws of 1915 (renumbering § 38 to Wis. 

Stat. § 6.23); § 1, ch. 666, Laws of 1965 (renumbering Wis. 

Stat. § 6.23 to Wis. Stat. § 5.64).
No. 2020AP2003 

29

complied with the constitution when it delegated the drafting of 

a ballot question to the secretary of state. 187 Wis. at 196-

200. We held that this was permissible. Id. at 205. The 

constitution requires that the legislature determine the 

"manner" of submission to the people, and we concluded this 

language was broad enough to encompass directing the secretary 

of state to determine the content of the ballot question. Id. 

Although extraneous to the issue in the case, the court engaged 

in an extended digression regarding the content and design of 

ballot questions. Id. at 200-02. Because this language is the 

genesis for the proposed "every essential" test we are asked to 

breathe life into in this case, we quote the discussion at 

length and in context:

A constitutional amendment being designed to affect 

the fundamental law, the highest degree of care and 

foresight which the legislature is capable of 

exercising, in order that the proposed amendment may 

not fall by the wayside and thus result in thwarting 

the will of the people, should be exercised as an act 

of wisdom, and therefore, under the law as it now 

exists, it would appear to be highly desirable that 

the form of the question which should be submitted 

should be prescribed and set forth in the act 

directing its submission. Every legislature has among 

its members lawyers who have obtained distinction in 

their profession and who have made a special study of 

constitutional law, and ever since the adoption of the 

constitution it has been the practice of the 

legislature to appoint such members on the judiciary 

committees of the two houses. The knowledge, 

experience, and prudence of such members of the 

judiciary committee, when supplemented by the aid and 

advice of the legal department of the state, are 

liable to result in the production of a better form of 

submission than if the whole responsibility is rested 

upon an administrative officer, with the aid of the 
No. 2020AP2003 

30

attorney general alone. But the question raised in 

the instant case is not one which involves the best 

method, the greatest wisdom, or the most comprehensive 

foresight, but whether the general statutes above 

referred to were adequate to comply with the 

constitutional provisions; and this depends entirely 

upon the construction to be placed upon the provision 

of the fundamental law above quoted on the subject of 

amendments. Had the framers of the constitution 

intended that the legislature should prescribe the 

form, it might easily have done so by using a few 

additional words, or it might have so worded the 

provision that the idea of form would have been 

necessarily included by implication. This, however, 

was not the case, and it is highly probable that the 

framers had in mind the vital distinction existing 

between matters of substance and matters of mere form. 

Had the legislature in the instant case prescribed the 

form of submission in a manner which would have failed 

to present the real question, or had they by error or 

mistake presented an entirely different question, no 

claim could be made that the proposed amendment would 

have been validly enacted. In other words, even if 

the form is prescribed by the legislature it must 

reasonably, intelligently, and fairly comprise or have 

reference to every essential of the amendment. This 

demonstrates quite clearly the fact that the form of 

submission is after all a mere form, and that the 

principal and essential criterion consists in the 

submission of a question or a form which has for its 

object and purpose an intelligent and comprehensive 

submission to the people, so that the latter may be 

fully informed on the subject upon which they are 

required to exercise a franchise.

Id. (emphasis added). 

¶41 Reviewing this discussion, the "every essential" 

language does not read as a separate test. Rather, it comes as 

an explanatory statement (phrased as "[i]n other words") for the 

comment that the real question, not an entirely different 

question, must be submitted to the people. Therefore, an effort 

to infuse constitutional significance into this language is not 
No. 2020AP2003 

31

an accurate reading of Ekern on its own terms. The relevant 

discussion in Ekern simply does not set forth a substantive, 

explainable "every essential" test at all. And why would it? 

The content of the ballot question was not challenged and was 

not at issue. There was no need to create, much less apply, a 

new substantive constitutional test. 

¶42 Therefore, we do not understand Ekern as adopting or 

creating a new, undefined, and strict constitutional test for 

detail and accuracy in constitutional amendment ballot 

questions. Rather, Ekern's discussion is best read as affirming 

the unremarkable proposition that the real question of the 

amendment must be submitted to the people. This is consistent 

with the constitutional requirement that a proposed amendment 

must be "submitted" in order to be validly ratified. Where a 

question is not the real question at all, such a proposal cannot 

be said to be submitted to the people. 

¶43 This reading of Ekern animated our decision years 

later in Thomson, 264 Wis. at 659–60. Thomson concerned 

proposed amendments related to legislative apportionment. 

Id. at 650-51. The amendments were challenged on the grounds 

that they should have been submitted as separate amendments——an 

issue we return to later——and that the ballot question was 

contrary to the amendment itself. Id. at 655, 657. 

¶44 The ballot question in Thomson stated that, if 

approved, "the legislature shall apportion senate districts 

along" certain municipal lines——using mandatory language. 

Id. at 660. The problem, we explained, is "the actual 
No. 2020AP2003 

32

amendment . . . has no such mandate at all and under it the

legislature is uncontrolled except that the territory inclosed 

shall be 'contiguous' and 'convenient.'" Id. The question 

given to the voters was the opposite of what the amendment 

actually provided. We concluded the question was misinformation 

and not "in accord with the fact." Id. We cited Ekern and 

concluded that the "question as actually submitted did not 

present the real question but by error or mistake presented an 

entirely different one." Id. Accordingly, there was "no valid 

submission to or ratification by the people." Id. To this day, 

Thomson remains the only case in state history where a 

constitutional amendment was deemed invalid because it was not 

"submitted" to the people. 

¶45 A final case we must address involved the court of 

appeals' efforts to understand these two prior cases, and what 

sort of requirement an "every essential" test is. The issue in 

Metropolitan Milwaukee Ass'n of Commerce, Inc. v. City of 

Milwaukee was the validity of a municipal ballot question——not a 

constitutional amendment. 2011 WI App 45, ¶1, 332 Wis. 2d 459, 

798 N.W.2d 287. One argument raised was whether municipal 

ballot questions under Wis. Stat. § 9.20(6) were subject to the 

"'every essential' element" test. Id., ¶¶10, 12. The court of 

appeals answered in the negative. Id., ¶13. It began by 

discussing Ekern, and concluded that in context it was not clear 

an every essential standard was even being proposed at all, an 

observation we agree with. Id., ¶22. It then read our decision 

in Thomson as adopting the "every essential" language into the 
No. 2020AP2003 

33

statutory requirement of a "concise statement"——an issue not 

before us here.14 Id., ¶23. But, the court noted, Thomson never 

had to apply the "every essential" language in its reasoning 

because of its conclusion the ballot statement was inaccurate. 

Id. The court of appeals went on to address the municipal 

ballot issue, ultimately concluding the inclusion of "every 

essential" of a proposal was not incorporated into municipal 

ballot questions under the relevant statute. Id., ¶30.

2. Takeaways

¶46 So what principles of law can we derive from this 

discussion? 

¶47 First, Article XII, Section 1 does not require any 

substantive discussion of the amendment in the ballot question 

submitted to the people. No explanation or summary is 

constitutionally commanded. 

¶48 Second, the constitution requires that the amendment 

be "submitted" to the people for ratification. We held in 

Thomson, borrowing language from Ekern, that an amendment has 

not been "submitted" to the people when the ballot question 

fails to present the real question or is contrary to the 

amendment itself. Thomson, 264 Wis. 2d at 660. In other words, 

voters have not been given the opportunity to vote for or 

 

14 We observe that our decision in State ex rel. Thomson v. 

Zimmerman never clarified or discussed the legal foundation for 

an "every essential" analysis. 264 Wis. 644, 60 N.W.2d 416 

(1953). Therefore, we question whether Thomson held anything 

regarding the statutory "concise statement" requirement.
No. 2020AP2003 

34

against a proposal when the ballot question is fundamentally 

counterfactual. When a ballot question is factually inaccurate 

in a fundamental way, it cannot be said that the amendment was 

actually submitted to the people for ratification. But given 

the unique facts of Thomson and the broad authority given to the 

legislature in the constitution, this requirement is narrow and 

will be triggered only in rare circumstances. 

¶49 Third, this court has never, in a single case, 

developed or applied an "every essential" test for review of 

proposed constitutional amendments. Nowhere in our two cases 

that use this language have we established, defined, or utilized 

such a test. 

¶50 And finally, because it is our solemn obligation to 

follow the original meaning of the constitution, we will not 

design, invent, or breathe life into the so-called "every 

essential" test without a constitutional command to do so. 

¶51 Insofar as the content of a proposed ballot question 

is concerned, the relevant constitutional question is whether 

the proposed amendment was, at a basic level, submitted to the 

people for ratification. A ballot question could violate this 

constitutional requirement only in the rare circumstance that 

the question is fundamentally counterfactual such that voters 

were not asked to approve the actual amendment. These 

principles in hand, we examine WJI's argument that the ballot 

question at issue here failed to satisfy this constitutional 

requirement.
No. 2020AP2003 

35

3. Applied Here

¶52 Once again, the ballot question submitted to voters 

for Marsy's Law stated:

Additional rights of crime victims. Shall section 9m 

of article I of the constitution, which gives certain 

rights to crime victims, be amended to give crime 

victims additional rights, to require that the rights 

of crime victims be protected with equal force to the 

protections afforded the accused while leaving the 

federal constitutional rights of the accused intact, 

and to allow crime victims to enforce their rights in 

court?

2019 Enrolled Joint Resolution 3. WJI raises several objections 

to this question. 

¶53 First, WJI argues that the ballot question fails 

because it does not mention the new section creating a 

constitutional definition of a "victim." In an amendment of 

this length and complexity, the legislature had to make choices

of what to include and how to phrase it. We must give 

significant deference to the legislature in making these choices 

because the constitution affords the legislature substantial 

discretion in submitting an amendment to the people. While the 

legislature could have decided that more be said, WJI's legal 

argument depends on its erroneous contention that the 

constitution demands a more exacting review of the legislature's 

choices. It does not. A constitutional definition of "victim" 

fits comfortably within the statement that crime victims are 

given certain or additional rights, as the ballot question 

states. Nothing here is fundamentally counterfactual such that 

voters were not asked to approve the actual amendment. 
No. 2020AP2003 

36

¶54 Second, WJI contends the ballot question failed to 

correctly capture how the rights of the accused would change. 

It offers several arguments in this regard. WJI asserts the 

ballot question is misleading because it requires "that the 

rights of crime victims will be protected with equal force to 

the protections afforded the accused," while the text of the 

amendment says victim rights will "be protected by law in a 

manner no less vigorous than the protections afforded to the 

accused." 2019 Enrolled Joint Resolution 3 (emphasis added); 

Wis. Const. art. I, § 9m(2) (emphasis added). While the parties 

debate the import of this wording choice, we again emphasize the 

deference owed to the legislature in explaining the proposal to 

the people. Minor deficiencies in a summary (and all summaries 

will, by necessity, be incomplete) do not give rise to the kind 

of bait-and-switch we struck down in Thomson. This does not 

rise to the level of a fundamentally counterfactual question 

such that voters were not asked to approve the actual amendment. 

¶55 WJI additionally suggests the ballot question is 

misleading because the amendment reduces the rights of the 

accused. Prior to Marsy's Law, Article I, Section 9m stated, 

"Nothing in this section, or in any statute enacted pursuant to 

this section, shall limit any right of the accused which may be 

provided by law." Wis. Const. art. I, § 9m (2017). Marsy's Law 

struck this sentence and added: "This section is not intended 

and may not be interpreted to supersede a defendant's federal 

constitutional rights or to afford party status in a proceeding 

to any victim." Wis. Const. art. I, § 9m(6); 2019 Enrolled 
No. 2020AP2003 

37

Joint Resolution 3, §§ 1, 5. WJI says the ballot question was 

misleading because this change in its view could reduce the

rights of the accused in some situations, yet voters were told 

"the federal constitutional rights of the accused" would be left 

intact. We once again return to the relevant question: the 

issue is not whether the amendment was explained, but whether it 

was "submitted" to the people. Nothing in the constitution 

requires that all components be presented in the ballot 

question. The constitution leaves the level of detail required 

to the legislature, which may impose more or less requirements 

on itself. The failure to raise an issue in a summary or 

describe it with precision does not amount to the kind of 

wholesale inaccuracy of Thomson or suggest the amendment was not 

submitted to the people. This as well does not rise to the 

level of a fundamentally counterfactual question such that 

voters were not asked to approve the actual amendment. 

¶56 Finally, WJI contends the ballot question is infirm 

for failing to inform the people that victims can now obtain 

review of adverse decisions by filing a supervisory writ in this 

court or the court of appeals. See Wis. Const. art. I, 

§ 9m(4)(b); 2019 Enrolled Joint Resolution 3, § 3. We leave the 

substantive impact of this change for another day. But WJI's 

argument again depends on the constitution requiring a level of 

completeness in a proposed question that simply isn't there. 

The right to file a supervisory writ is certainly encompassed by 

the ballot question's statement that crime victims will be given 
No. 2020AP2003 

38

certain rights. Nothing about its absence renders the ballot 

question even arguably inaccurate. 

¶57 For these reasons, the challenges to the form of the 

ballot question presented to the people of Wisconsin do not 

succeed. The question approved by voters was not fundamentally 

counterfactual in any way. The proposed amendment was submitted 

to the people for ratification, and as far as the challenge 

before us today is concerned, that is all the constitution 

requires. 

C. Multiple Amendments

¶58 Finally, WJI argues that the amendment should have 

been submitted as multiple amendments, rather than one. The 

relevant constitutional text governing this claim is also found 

in Article XII, Section 1 of the Wisconsin Constitution. It 

states, "if more than one amendment be submitted, they shall be 

submitted in such manner that the people may vote for or against 

such amendments separately." Wis. Const. art. XII, § 1.

¶59 The text, plainly read, creates a straightforward 

requirement: multiple amendments must be submitted separately. 

The question then becomes, what constitutes more than one 

amendment?

¶60 Unlike the other claims in this case, this issue is 

one the court has addressed on several occasions. Our first 

consideration of the multiple amendments question in Article 

XII, Section 1 occurred in State ex rel. Hudd v. Timme, 54 

Wis. 318, 335, 11 N.W. 785 (1882). There, we carefully 
No. 2020AP2003 

39

considered the text and relevant history to determine the 

original understanding of this provision.15 Id. at 335-38.

¶61 Focusing on the language, we explained that there 

could be only two constructions of this sentence. Id. at 335. 

"First, it may be construed . . . that every proposition in the 

shape of an amendment to the constitution, which standing alone 

changes or abolishes any of its present provisions, or adds any 

new provision thereto, shall be so drawn that it can be 

submitted separately, and must be so submitted." Id. Such a 

reading did not make sense, however. Id. It would "be so 

narrow as to render it practically impossible to amend the 

constitution." Id.

¶62 Instead, we adopted the second construction, and 

concluded that the relevant language must mean that only 

"amendments which have different objects and purposes in view" 

must be submitted separately. Id. at 336. We explained, "In 

order to constitute more than one amendment, the propositions 

submitted must relate to more than one subject, and have at 

least two distinct and separate purposes not dependent upon or 

connected with each other." Id. The court then confirmed this 

reading by considering the process utilized in the adoption of 

earlier amendments. Id. at 337-38. It concluded that its 

 

15 The court in State ex rel. Hudd v. Timme did not use the 

terminology of originalism to explain its analysis, but that is 

what it did. 54 Wis. 318, 11 N.W. 785 (1882). The court began 

with the text, and then proceeded to consider the history to 

determine how the language was understood when drafted. Id. at 

335-38. 
No. 2020AP2003 

40

reading of the text was the understanding of nearly everyone 

when earlier amendments were submitted to the people, without 

objection. Id. at 338. 

¶63 We therefore held that the multiple amendment 

requirement "must be construed to mean amendments which have 

different objects and purposes in view." Id. at 336. And in 

"order to constitute more than one amendment, the propositions 

submitted must relate to more than one subject, and have at 

least two distinct and separate purposes not dependent upon or 

connected with each other." Id. Our test has remained 

substantially the same since. See, e.g., Thomson, 264 Wis. at 

656 (concluding "that a separate submission was required of the 

amendment" because it failed to satisfy Hudd's test).

¶64 Our most recent formulation of the test was in 

McConkey, a case challenging the adoption of Article XIII, 

Section 13, governing marriage. 326 Wis. 2d 1, ¶1. There, we 

articulated the test as follows:

It is within the discretion of the legislature to 

submit several distinct propositions as one amendment 

if they relate to the same subject matter and are 

designed to accomplish one general purpose. The 

general purpose of an amendment may be deduced from 

the text of the amendment itself and from the 

historical context in which the amendment was adopted. 

And all of the propositions must tend to effect or 

carry out that purpose.

Id., ¶50 (cleaned up). Applying this test, we concluded a 

single amendment was appropriate because "the general purpose of 

the marriage amendment is to preserve the legal status of 

marriage in Wisconsin as between one man and one woman. Both 
No. 2020AP2003 

41

propositions in the marriage amendment relate to and are 

connected with this purpose." Id., ¶56.

¶65 The parties do not dispute that this is the governing 

test. And we see no reason to question the textual and 

historical analysis done by Hudd and its progeny. Employing

this test, we have no difficulty concluding Marsy's Law did not 

violate the constitutional prohibition on submitting multiple 

amendments as one. The amendment broadly protects and expands 

crime victims' rights. This is plain from the text and history 

of its adoption. In so doing, it amends only Section 9m of 

Article I. Even if WJI is correct that it will impact those 

accused of crimes as well (an issue we need not decide), all of 

the changes relate to the same, general purpose of expanding and 

protecting the rights of crime victims. All of the propositions 

are aimed at this goal, and tend to effect or carry this out. 

We hold that WJI's challenge to Marsy's Law on the ground that 

it was required to be submitted as separate constitutional 

amendments fails. 

III. CONCLUSION

¶66 Through the Wisconsin Constitution, the people of 

Wisconsin have given the legislature broad authority to 

determine how proposed constitutional amendments may be 

submitted to the people for ratification. WJI argues that the 

ballot question for Marsy's Law was constitutionally deficient 

under Article XII, Section 1 on multiple grounds. We disagree. 

We conclude that the ballot question was not fundamentally 
No. 2020AP2003 

42

counterfactual such that voters were not afforded the 

opportunity to approve the actual amendment. Rather, Marsy's 

Law was validly submitted to and ratified by the people of 

Wisconsin, as the constitution requires. WJI further argues 

Marsy's Law should have been split into more than one amendment, 

each receiving a separate vote. However, the constitution did 

not require that here. We conclude the amendment had the single 

general purpose of expanding and protecting victims' rights, and 

all provisions of the proposed amendment furthered this purpose. 

For these reasons, WJI's constitutional challenges to the 

ratification of Marsy's Law do not succeed, and we reverse the 

circuit court's judgment to the contrary.

By the Court.—The judgment and order of the circuit court 

is reversed.
No. 2020AP2003.rgb

1

¶67 REBECCA GRASSL BRADLEY, J. (concurring). 

If the judicial power extended to every question under 

the [C]onstitution it would involve almost every 

subject proper for legislative discussion and 

decision . . . . The division of power . . . could 

exist no longer, and the other departments would be 

swallowed up by the judiciary.

John Marshall, Speech (Mar. 7, 1800), reprinted in 4 The Papers 

of John Marshall 82, 95 (Charles T. Cullen ed., 1984).

¶68 Not every constitutional question falls under the 

authority of the judiciary to answer: "Sometimes, . . . 'the 

law is that the judicial department has no business entertaining 

[a] claim of unlawfulness——because the question is entrusted to 

one of the political branches or involves no judicially 

enforceable rights.'" Johnson v. Wis. Elections Comm'n, 2021 WI 

87, ¶40, 399 Wis. 2d 623, 967 N.W.2d 469 (quoting Rucho v. 

Common Cause, 588 U.S. __, 139 S. Ct. 2484, 2494 (2019)) 

(ellipsis and modification in the original). "The judiciary 

should not be drawn into deciding issues that are essentially 

political in nature, exclusively committed by the constitution 

to another branch of government and not susceptible to judicial 

management or resolution." Vincent v. Voight, 2000 WI 93, ¶192, 

236 Wis. 2d 588, 614 N.W.2d 388 (Sykes, J., 

concurring/dissenting).

¶69 I join the majority opinion and write separately to 

explain why the "every essential" test is incompatible with the 

political question doctrine. As the majority holds, whether a 

ballot question states "every essential" of a proposed amendment 

is non-cognizable. Nevertheless, three justices cast themselves 
No. 2020AP2003.rgb

2

as legal writing professors with the power to grade the 

legislature's work. Justice Rebecca Frank Dallet, joined by 

Justice Jill J. Karofsky, writes in concurrence to give the 

legislature's work a passing grade, while Justice Ann Walsh 

Bradley, in dissent, gives the legislature an F. This court 

lacks the authority these justices would usurp from the 

legislature. Cf. Johnson, 399 Wis. 2d 623, ¶45 ("Nothing in the 

Wisconsin Constitution authorizes this court to recast itself as 

a redistricting commission[.]"). 

¶70 The "every essential" test is incompatible with the 

political question doctrine for at least two reasons. First, 

Article XII, Section 1 of the Wisconsin Constitution assigns the 

legislature, not the judiciary, the power to determine the 

manner by which a proposed amendment is submitted to the people. 

See id. ¶51 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). 

It states, in relevant part:

[I]t shall be the duty of the legislature to submit 

such proposed amendment . . . to the people in such 

manner and at such time as the legislature shall 

prescribe; . . . provided, that if more than one 

amendment be submitted, they shall be submitted in 

such manner that the people may vote for or against 

such amendments separately.[1]

Wis. Const. art. XII, § 1. Self-evidently, while this provision 

requires the legislature to submit a proposed amendment to the 

people, it also gives the legislature, not the judiciary, the 

 

1 The Wisconsin Constitution posted on the Wisconsin 

Historical Society's website places a period before "provided"

and capitalizes the P. Wis. Const. art. XI, § 1 (1848), 

https://content.wisconsinhistory.org/digital/collection/tp/id/71

791.
No. 2020AP2003.rgb

3

power to determine how that submission occurs. The constitution 

imposes only one textually-expressed limitation on the 

legislature's power to determine the manner of submission: "if 

more than one amendment be submitted," the people must be able 

to vote on each separately. Id. The judiciary does not have 

the authority to compel the legislature to exercise its power 

over the manner of submission in a particular way. As explained 

more thoroughly below, this court possesses the power to 

determine whether a proposed amendment was even submitted to the 

people, but such a claim is distinguishable from a complaint 

about an unartful manner of submission. 

¶71 This case accordingly presents a separation of powers 

issue. As one amicus curiae explains, "[i]f affirmed, the 

circuit court's decision could force the [l]egislature to use 

new language that no longer expresses the [l]egislature's 

desired meaning. . . . [T]he [l]egislature presumptively chose 

those words for a reason[.]" Challenges to the manner of 

submission are therefore "beyond the purview of judicial review" 

because they present purely political questions. 

¶72 The desire of Justices Ann Walsh Bradley, Dallet, and 

Karofsky to entertain these political questions would likely 

spawn "defensive" ballot question drafting. Cf. Brief for the 

Wisconsin Legislature as Amicus Curiae Supporting Petitioners, 

Bartlett v. Evers, 2020 WI 68, 393 Wis. 2d 172, 945 N.W.2d 685 

(No. 2019AP1376-OA), 2020 WL 811784 *1 ("Governors of this 

[s]tate have regularly misused their claimed veto power to 

rewrite appropriation laws, striking out sentence fragments to 
No. 2020AP2003.rgb

4

create new provisions that the [l]egislature did not enact. To 

combat this gubernatorial lawmaking, the [l]egislature drafts 

legislation defensively, removing descriptive language that the 

[g]overnor could turn into operative text, revising language 

that would contribute to the clarity of law, changing every 'may 

not' to 'cannot,' and so on."). The legislature could, for 

example, quote the proposed amendment verbatim on the ballot, 

perhaps satisfying the values-based concerns of the 

aforementioned justices. The Wisconsin Constitution, however, 

does not impose such a cumbersome requirement.

¶73 Second, the "every essential" test is not a

"manageable standard[]" by which the judiciary could objectively 

evaluate the manner of submission. See Johnson, 399 

Wis. 2d 623, ¶39. The judicial power vested in this court by 

Article VII, Section 2 of the Wisconsin Constitution, like the 

judicial power vested in the United States Supreme Court, "is 

the power to act in the manner traditional for English and 

American courts. One of the most obvious limitations imposed by 

that requirement is that judicial action must be governed by 

standard, by rule." See Vieth v. Jubelirer, 541 U.S. 267, 278 

(2004) (plurality). These standards and rules must be 

"'principled, rational, and based upon reasoned distinctions' 

found in the . . . law[]." Rucho, 139 S. Ct. at 2507 (quoting 

Vieth, 541 U.S. at 278). Otherwise, "intervening courts——even 

when proceeding with best intentions——would risk assuming 

political, not legal, responsibility[.]" Id. 2498–99 (quoting 

Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the 
No. 2020AP2003.rgb

5

judgment)). Whether a particular characteristic of a proposed 

amendment is "essential" sounds a lot like the "I know it when I 

see it" test. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) 

(Stewart, J., concurring). The judiciary, however, must make 

decisions based on reason, not instinct.

¶74 The lack of manageability can be gleaned by comparing 

and contrasting Justice Dallet's concurrence to the dissent. 

Justice Dallet states:

I conclude that a ballot description, if the 

legislature chooses to provide one, must accurately 

summarize the significant changes the proposed 

amendment would make to the [Wisconsin] Constitution.

. . . .

In this case, the legislature's summary was sufficient 

and . . . [the proposed amendment] was thus validly 

submitted to the people. Although . . . [the proposed 

amendment's challengers] point[] to some of the 

amendment's particulars that weren't described 

specifically in the ballot language, . . . a summary 

always leaves some details out. The legislature's 

description of . . . [the proposed amendment] is 

accurate, and the expanded definition of "victim," and 

arguable changes to the state constitutional rights of 

the accused and this court's jurisdiction weren't so 

significant that they needed to be described on the 

ballot.

Justice Dallet's Concurrence, ¶¶133, 135. At no point does 

Justice Dallet explain why an "expanded definition of 'victim'" 

is not "so significant." She also does not explain why 

"arguable changes to the state constitutional rights of the 

accused and this court's jurisdiction" are not "so significant." 

Her analysis is conclusory, and a reasonable person could 

certainly consider such changes to be significant. 
No. 2020AP2003.rgb

6

¶75 Recognizing the inherent vagueness of the "every 

essential" test, Justice Dallet "acknowledge[s] . . . that this 

rule doesn't always provide clear answers." Id., ¶134. In 

actuality, the "every essential" test is incapable of providing 

any answers whatsoever. The test is based purely on subjective 

perception, not objective rule. As Justice Dallet reasons, 

"[b]ecause a summary . . . will always be incomplete and isn't 

meant to take the place of the text of a proposed amendment, 

judgment will always be required. But that is okay. We trust 

judges to make judgment calls all the time[.]" Id. Her view 

invites judicial overreach because it is based on the rule of 

judges rather than the rule of law. 

¶76 Embracing a standardless test would empower a single 

circuit court judge in a single county to toss the results of a 

statewide election based on little more than subjective 

predilections. This court would become the final arbiter of 

every proposed constitutional amendment, without any express 

grant of constitutional authority to second guess the 

legislature's work. As the majority notes, only once in 

Wisconsin's 175-year history has this court declared a proposed 

amendment was not ratified based on a challenge to the wording 

of a ballot question——despite the Wisconsin Constitution having 

been amended nearly 150 times. Majority op., ¶¶1, 5 (citing 

State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 

(1953)).

¶77 Justice Dallet is also wrong to suggest her approach 

is "the only way to preserve both the legislature's authority to 
No. 2020AP2003.rgb

7

specify the manner in which amendments are to be submitted to 

the people and the right of the people to decide whether to 

change the [Wisconsin] Constitution." Justice Dallet's 

Concurrence, ¶134. Several steps must be followed before a 

proposed amendment even becomes a ballot question, and the 

people maintain control over the process at every step. Article 

XII, Section 1 of the Wisconsin Constitution specifies the 

amendment procedure. As relevant to this case, "a majority of 

the members elected to each of the two houses [of the 

legislature]" must vote in favor of a proposed amendment. Wis. 

Const. art. XII, § 1. Thereafter, "such proposed 

amendment . . . shall be entered on their journals, with the 

yeas and nays taken thereon, and referred to the legislature to 

be chosen at the next general election, and shall be published 

for three months previous to the time of holding such 

election[.]" Id. In the next legislative session, which occurs 

after a legislative election, "a majority of all members elected 

to each house" must vote in favor of the proposed amendment. 

Id. The legislature then has a "duty" to "submit" the proposed 

amendment to the people, although the legislature has the power

to "prescribe" the "manner" and "time" of submission. Id. If a 

majority of people who vote on whether to adopt the proposed 

amendment approve its adoption, the amendment is ratified. Id. 

An early treatise on the Wisconsin Constitution explains this 

"gauntlet" decreases the chance "that a very unwise measure"

could succeed. See A.O. Wright, An Exposition of the 

Constitution of the State of Wisconsin 153 (Revised & Improved 
No. 2020AP2003.rgb

8

ed. 1897). "Ample opportunity is . . . given for discussion[.]" 

Id. The people, without judicial intervention, can "preserve" 

their popular sovereignty.

¶78 Similar to Justice Dallet, Justice Ann Walsh Bradley 

never defines an "essential," instead concluding "[b]y any 

definition of the word" the ballot question in this case was 

legally inadequate. Dissent, ¶185. The definition, however, 

matters a great deal, largely because the difficulty in defining 

the word demonstrates that judges should not be defining it in 

the first place. 

¶79 Illustrating the problem, the dissent declares, "I do 

not argue . . . that all components of an amendment [need] be 

presented in a ballot question. Our precedent establishes, and 

I would maintain, only that 'every essential' is required." 

Id., ¶187. Nothing in this judicially conceived test tells us 

how to distinguish between a mere "component" of a proposed 

amendment and an "essential." Nor does the dissent. 

Regardless, as the majority opinion explains, "our precedent" 

requires no such thing. In its certification of this appeal, 

the court of appeals noted, "there is little case law examining 

the 'every essential' test . . . and, in fact, no case law 

applying this test to a given ballot question." Wis. Just. 

Initiative, Inc. v. Wis. Elections Comm'n, No. 2020AP2003, 

unpublished certification, at 3 (Wis. Ct. App. Dec. 21, 2021). 

The majority explains the suspect origins of the "every 

essential" test in a nuanced, scholarly manner; in contrast, the 

dissent simply takes one sentence from a century-old case out of 
No. 2020AP2003.rgb

9

context and runs with it. "[I]t is tempting for a creative 

court to reach a decision by extorting from precedents something 

which they do not contain. Once embarked on this path, it is 

too easy for the court to extend [its] precedents, which were 

themselves the extensions of others, till, by this accommodating 

principle, a whole system of law is built up without the 

authority or interference of the [people]." Bartlett, 393 

Wis. 2d 172, ¶202 (Kelly, J., concurring/dissenting) 

(modifications in the original) (citations and quotation marks 

omitted). 

¶80 Unlike the "every essential" test, the counterfactual 

test this court adopts is consistent with the text of Article 

XII, Section 1 of the Wisconsin Constitution and is justiciable. 

While the legislature has the power to decide the manner by 

which a proposed amendment is submitted to the people, the 

legislature has the "duty . . . to submit such proposed 

amendment[.]" See Wis. Const. art. XII, § 1. That duty is not 

fulfilled when the ballot question misidentifies the proposed 

amendment with counterfactual information. A challenge alleging 

the presence of counterfactual information takes issue not with 

the "manner" of submission but with whether submission even 

occurred. See id. Applying the counterfactual test therefore 

does not usurp the legislature's authority but rather ensures 

the legislature has fulfilled its constitutional duty.

¶81 The reasoning underlying Justice Dallet's defense of 

the "every essential" test is difficult to discern and seemingly 

contradictory. For example, she states: "whether an amendment 
No. 2020AP2003.rgb

10

was submitted to the people always requires courts to analyze 

whether the manner the legislature prescribed for submission 

satisfied that constitutional requirement." Justice Dallet's 

Concurrence, ¶134 n.9. Justice Dallet seems to concede she is 

in fact proposing judicial review of the manner of submission. 

She fails to appreciate the fundamental distinction between what

the legislature submitted to the people and how the legislature 

made a submission. In conflating the two, Justice Dallet shows 

little respect for the constitutional prerogatives of a 

coordinate branch.

¶82 The counterfactual test is straightforward and capable 

of judicial review: Did the ballot question contain clearly 

false information? Whether a statement is true or false is 

simply a factual determination, and while factual determinations 

are not always easy, they do not turn on personal beliefs. A 

factual determination is difficult only to the extent that 

evidence is lacking or conflicting. In contrast, the "every 

essential" test is largely indeterminate, even if the evidence 

is clear, precisely because it requires a judge to form a 

political opinion.

¶83 Justice Dallet responds that "the majority's approach 

also requires judgment to determine what questions are 

'fundamentally counterfactual.'" Id., ¶134 (quoting majority 

op., ¶51). She continues, "[a]s the use of the word 

'fundamentally' implies, superficially counterfactual ballot 

questions would pass the majority's test. But the majority 

offers no principled way of distinguishing between superficially 
No. 2020AP2003.rgb

11

counterfactual and 'fundamentally' counterfactual ballot 

questions." Id. 

¶84 As a preliminary matter, Justice Dallet misunderstands 

the word "fundamentally." The word merely signals a 

presumption: if a judge is unsure whether information in a 

ballot question is counterfactual, the judge should assume it is 

not. This presumption respects the power the people 

constitutionally conferred on the legislature and minimizes 

indeterminacy. As well as Justice Dallet's argument can be 

understood, she seems to suggest that because the counterfactual 

test has, as most legal tests do, a degree of indeterminacy when 

the facts are unclear, any objection to the "every essential" 

test grounded in that test's indeterminacy is equally applicable 

to the counterfactual test. Not so. 

¶85 Justice Dallet commits the "fallacy of the beard." In 

the classic book Straight and Crooked Thinking, the author 

explained:

[W]e may deny the reality of difference because there 

is continuous variation between the different things. 

A very old example illustrates this error. One may 

throw doubt on the reality of a beard by a process 

beginning by asking whether a man with one hair on his 

chin has a beard. The answer is clearly "No." Then 

one may ask whether with two hairs on his chin a man 

has a beard. Again the answer must be "No." So again 

with "three," "four," etc. At no point can our 

opponent say "Yes," for if he has answered "No" for, 

let us say, twenty-nine hairs and "Yes" for thirty, it 

is easy to pour scorn on the suggestion that the 

difference between twenty-nine and thirty hairs is the 

difference between not having and having a beard. Yet 

by this process of adding one hair at a time, we can 

reach a number of hairs which would undoubtedly make 

up a beard. The trouble lies in the fact that the 

difference between a beard and no beard is like the 
No. 2020AP2003.rgb

12

difference between white and gray in the fact that one 

can pass by continuous steps from one to the other.

In this argument, the fact of continuous variation has 

been used to undermine the reality of the difference. 

Because there is no sharp dividing line, it has been 

suggested that there is no difference. This is 

clearly a piece of crooked argument[.]

Robert H. Thouless, Straight and Crooked Thinking 169–70 (2d 

prtg. 1932). Justice Dallet suggests that determining whether a 

test is objective is itself a subjective determination and 

therefore cannot be done properly. Obviously, subjectivity and 

objectivity exist on a spectrum, just like the colors white and 

grey. Just as a reasonable person can look at a color and 

determine whether it is white or grey, a reasonable person can 

look at a legal test and determine whether it is subjective or 

objective. No one can seriously question the objectivity of the 

counterfactual test, even if it may be difficult to apply in 

some cases (although not in this one), or the subjectivity of 

the "every essential" test. The former is indeterminate only to 

the extent a factual determination is impossible, but the latter 

is indeterminate even when the facts are undisputed. Notably, 

Justice Dallet never argues the "every essential" test will 

constrain judges acting in good faith to the same extent as the 

counterfactual test.

¶86 Justice Dallet mischaracterizes my view of the 

counterfactual test as "somehow free from subjectivity." 

Justice Dallet's Concurrence, ¶134 n.10. Justice Dallet 

struggles to understand that the attributes of perfectly 

subjective and perfectly objective are opposite ends of a 

continuum. A test can be deemed subjective or objective without 
No. 2020AP2003.rgb

13

being perfectly so. The counterfactual test is not perfectly 

objective, nor is recognizing that a man has a beard.

¶87 Unlike the "every essential" test endorsed by three 

justices, the counterfactual test safeguards democracy by 

preserving the prerogatives of the people's representatives in

the legislature to decide political questions. Three justices 

would instead supplant the legislature's constitutionally 

assigned role, arrogate the power to set aside the notparticularly-close results of a lawfully-conducted election, and 

embrace a judicially invented test never before applied in the 

history of Wisconsin. None of these justices defines with any 

particularity the test they propose to determine whether such an 

undemocratic remedy is warranted, much less identify the source 

of their authority to impose it. Without elaboration on the 

"every essential" test, judges are licensed to inject their 

political will into the analysis, potentially substituting their 

will for the will of the people.

¶88 Ironically, these justices suggest that if the 

judiciary is denied the power to discard election results at 

will, democracy will suffer. Their concerns arise from both a 

misunderstanding of the constitutional purpose of a ballot 

question and a distrust of voters. For example, the dissent 

complains, "[t]hose voters who do not research a proposed 

amendment beforehand will see the ballot question and only the 

ballot question prior to casting their votes." Dissent, ¶189. 

The constitutional purpose of a ballot question, however, is not 

to educate voters. As indicated by the historical analysis 
No. 2020AP2003.rgb

14

discussed in the majority opinion, a ballot question merely 

identifies the particular proposed amendment the voters will 

decide to ratify——or not. Second, as the Wisconsin Elections 

Commission explains, "[v]oters are expected to 

review . . . election notices and apprise themselves of public 

debate, and educate themselves on the substance and implications 

of a proposed amendment." (Citation omitted.) By analogy, a 

ballot for President of the United States does not describe the 

candidates or their platforms. Voters are trusted to inform 

themselves.

¶89 Alexis de Tocqueville observed, "[s]carcely any 

political question arises in the United States which is not 

resolved, sooner or later, into a judicial question." 1 Alexis 

de Tocqueville, Democracy in America 357 (Francis Bowen ed., 

Henry Reeve trans., 1863). If true, government by the people 

would be replaced with judicial supremacy. Because this court 

rightly refuses to entertain political questions in this case, I 

respectfully concur.

¶90 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join 

this concurrence.
No. 2020AP2003.rfd

1

¶91 REBECCA FRANK DALLET, J. (concurring). I agree with 

the majority that Marsy's Law was validly adopted because the 

amendment complied with Article XII, Section 1's requirements 

that proposed constitutional amendments be "submit[ted] to the 

people" and not contain "more than one amendment."1 See Wis. 

Const. art. XII, § 1. Evaluating whether Marsy's Law was 

submitted to the people requires us to balance two competing 

interests reflected in Article XII, Section 1: (1) the 

legislature's authority to specify the time and manner in which 

amendments are to be submitted, and (2) the people's right to 

evaluate and vote on proposed constitutional amendments. Doing 

so leads to the conclusion that Marsy's Law was submitted to the 

people because the summary of the amendment that appeared on the 

ballot accurately summarized the significant changes the 

amendment would make to the constitution. 

¶92 The majority uses a similar interest-balancing 

approach, but arrives at a rule that is too narrow. And it does 

so only after a ten page digression extolling the virtues of 

originalism, which it then tacitly abandons as futile. Because 

I reject both originalism and the majority's narrow conception 

of what it means for a proposed amendment to be submitted to the 

people, I respectfully concur. 

 

1 Because I agree with the majority that WJI's second claim 

should be rejected based on our longstanding precedent about 

multiple amendments, I join ¶¶58-59 and 61-65 of the majority 

opinion. 
No. 2020AP2003.rfd

2

I

¶93 The majority begins by reviewing what it claims to be 

"our approach to constitutional interpretation," an approach it 

says seeks "to determine what the constitutional text meant when 

it was written, commonly called the original public meaning or 

original understanding." See majority op., ¶¶14, 21. According 

to the majority, we have "commonly recited" and "consistently 

described" this as our approach over "many years." See id., 

¶22. Thus, according to the majority, our singular approach to 

constitutional interpretation is originalism and we must follow 

it, no matter where it leads. See id. ¶¶21-28 (collecting 

cases). 

¶94 I disagree with these conclusions for three reasons. 

First, the majority's claim that originalism is somehow our 

settled approach to constitutional interpretation is incorrect. 

In fact, many of our recent cases use a more inclusive approach 

to constitutional interpretation that considers more than merely 

text and history. Second, the majority's two defenses of 

originalism——(1) that originalism is simply how we interpret any 

written law, and (2) that originalism constrains judges to their 

proper role by providing a basis for decisions different than a 

judge's personal views——are both unconvincing. In my view, a 

more pluralistic method is needed to interpret faithfully the 

Wisconsin Constitution (or the United States Constitution for 

that matter). Under such an approach text and history of course 

matter, but so do precedent, context, historical practice and 

tradition. And third, an earlier court's choice of an 
No. 2020AP2003.rfd

3

interpretive methodology like originalism does not bind later 

courts to use that same methodology. 

A

¶95 Before addressing the majority's unconvincing defenses 

of originalism and my competing view of how to interpret the 

Wisconsin Constitution, it's useful first to lay out what the 

majority means by "originalism," why it is wrong to claim that 

originalism is our consistent approach to constitutional 

interpretation, and its arguments for why originalism is 

required. 

¶96 There are a number of different variations on 

originalism, but all spring from "the following three 

propositions: (1) the meaning of the constitutional text is 

fixed at the time of ratification; (2) judges should give that 

meaning a primary role in constitutional interpretation; and (3) 

pragmatic modern concerns and consequences are not allowed to 

trump discoverable original meaning." See Eric J. Segall, 

Originalism As Faith 8 (2018). The majority agrees with each of 

these propositions. It says that "our solemn duty in 

constitutional interpretation is to faithfully discern and apply 

the constitution as it is written." See majority op., ¶28. To 

do that, the majority explains we must identify the "original 

public meaning or original understanding" of the constitutional 

provision we are interpreting, and apply that original public 

meaning no matter the consequences. See id., ¶21. In this 

respect, the majority agrees with most contemporary academic and 
No. 2020AP2003.rfd

4

judicial originalists who, in a break from their predecessors,2

also focus on identifying and applying the original public 

meaning. See, e.g., Antonin Scalia, Originalism: The Lesser 

Evil, 57 U. Cin. L. Rev. 849, 856 (1989). And although the 

majority acknowledges that we have not always done so, it argues 

that our cases have "consistently described our task as one 

focused on the meaning of the text," and have recently "doubled 

down on" an approach focused on the original public meaning. 

See majority op., ¶¶22-23. 

¶97 This claim, however, is incorrect. In fact, in a 

number of recent cases the court has taken a more pluralistic 

approach to constitutional interpretation that takes into 

account more than just text and history. See Becker v. Dane 

County, 2022 WI 63, ¶33, 403 Wis. 2d 424, 977 N.W.2d 390 (lead 

op.) (rejecting plaintiffs' invitation to revisit our case law 

regarding the separation of powers to fit better with their 

account of the original public meaning); State v. Roundtree, 

2021 WI 1, ¶¶20-52, 395 Wis. 2d 94, 952 N.W.2d 765 (analyzing 

the text and history of the Second Amendment along with 

precedent and empirical evidence about the risks underlying the 

prohibition on felons possessing firearms); Miller v. Carroll, 

 

2 Earlier originalists tended to focus on the intent of the 

framers. See Robert Bork, Neutral Principles and Some First 

Amendment Problems, 47 Ind. L.J. 1, 13-14 (1971). But this 

approach was abandoned in the face of "serious problems" 

identifying whose views counted, and how to discern intent when 

the framers' views differed. See Erwin Chemerinsky, Worse Than 

Nothing: The Dangerous Fallacy of Originalism 17 (2022) (noting, 

for example, James Madison's and Alexander Hamilton's 

disagreements about the authority of Congress and the executive 

branch). 
No. 2020AP2003.rfd

5

2020 WI 56, ¶¶21-35, 392 Wis. 2d 49, 944 N.W.2d 542 (applying 

United States Supreme Court precedent to conclude that a judge's 

acceptance of a Facebook friend request created a "serious risk 

of actual bias" that violated a litigant's Due Process rights); 

State v. Knapp, 2005 WI 127, ¶¶60-63, 75-83, 285 Wis. 2d 86, 700 

N.W.2d 899 (refusing to interpret Article I, Section 8 of the 

Wisconsin Constitution in lockstep with the Fifth Amendment 

based on the need to deter intentional Miranda3 violations). And 

these decisions and others like them were criticized by some 

justices as non-originalist, or at least not sufficiently 

originalist. See, e.g., Becker, 403 Wis. 2d 424, ¶76 (Rebecca 

Grassl Bradley, J., dissenting) (contending that the original 

public meaning of the Wisconsin Constitution contradicted the 

lead opinion and the concurrence's interpretation); Roundtree, 

395 Wis. 2d 94, at ¶67 (Rebecca Grassl Bradley, J., dissenting) 

(asserting that "the majority contravenes the original public 

meaning of the Second Amendment"); State v. Christen, 2021 WI 

39, ¶65, 396 Wis. 2d 705, 958 N.W.2d 746 (Hagedorn, J., 

concurring) (criticizing the majority's analysis as 

"insufficiently rooted in the original public meaning of the 

Second Amendment"); State v. Halverson, 2021 WI 7, ¶45, 395 

Wis. 2d 385, 953 N.W.2d 847 (Hagedorn, J., concurring) (arguing 

that Knapp is "non-textual" and "ahistorical"); Miller, 392 

Wis. 2d 49, ¶104 (Hagedorn, J., dissenting) ("Today's decision 

continues the march away from the original public meaning of our 

Constitution."). Thus, the majority cannot claim that 

 

3 Miranda v. Arizona, 384 U.S. 436 (1966).
No. 2020AP2003.rfd

6

originalism is somehow our consensus approach to constitutional 

interpretation. 

¶98 Setting aside its claim that originalist 

interpretation is our dominant approach, the majority offers a 

simple account for why we should embrace its particular brand of 

originalism. The argument goes like this: We have only the 

judicial power, "the power to interpret the law in appropriate 

cases." See majority op., ¶18. And that power is limited to 

applying the law as it exists, not as we might want it to be. 

See id. Since the Wisconsin Constitution is written law, it 

should be interpreted in the same way as other written law, "as 

we find it." Id., ¶20. The way you do that is by trying to 

ascertain the constitution's meaning from the text, reading it 

reasonably, in context, in the way in which it would have been 

understood by people when it was written. Id., ¶21. That is 

what we have done in the past, see id., ¶¶22-26, and that is 

what we should continue to do in order to ensure that we "leave 

policy choices to the people." Id., ¶21. 

¶99 In sum, the majority's defense of originalism rests on 

two related arguments. First, originalism is simply what we do 

whenever we read any text; we look at the words, figure out what 

they meant to people at the time they were written, and apply 

that meaning. And second, originalism helps separate judicial 

decisions from the policy views of individual judges and keeps 

the authority to change the constitution where it belongs, with 

the people acting through their elected representatives. 
No. 2020AP2003.rfd

7

B

¶100 Both of the majority's arguments for originalism are 

unconvincing. Its argument that originalism flows directly from 

the fact that our constitutions are written is circular and thus 

doesn't support its conclusion. And the argument about 

constraining judges fails because originalism does not, and 

cannot, accomplish that goal. 

1

¶101 "Our constitutions——state and federal——are written 

documents," and according to the majority they "should be read 

as such." Majority op., ¶16. In the majority's view, that 

means we must "ascertain and enforce the rights and protections 

that are already there, fixed by the people in the text of the 

constitution." Id. ¶18. In short, the Wisconsin Constitution 

was written down, and because it was written down, we have to 

look for its original public meaning because that's just what it 

means to interpret written law. See id. 

¶102 Although this argument is somewhat common4 it suffers 

from a fatal flaw: it assumes its own conclusion. It simply 

defines "interpretation" as "synonymous with originalist 

interpretation" and then uses that definition as evidence that 

only originalist interpretation is permissible. Andrew B. Coan, 

 

4 Indeed, many scholars have asserted that "'our commitment 

to a written constitution' entails not only judicial review but 

also an originalist approach to constitutional interpretation." 

Andrew B. Coan, The Irrelevance of Writtenness in Constitutional 

Interpretation, 158 U. Pa. L. Rev. 1025, 1027 (2010) (quoting 

source).
No. 2020AP2003.rfd

8

The Irrelevance of Writtenness in Constitutional Interpretation,

158 U. Pa. L. Rev. 1025, 1030 (2010); see also Erwin 

Chemerinsky, Worse Than Nothing: The Dangerous Fallacy of 

Originalism 26 (2022) ("[A]rguments from definition aren't 

arguments at all; they do not defend their conclusion but assume 

it."). The normative question of how we should interpret the 

constitution thus remains unanswered. 

¶103 The majority's only response is to complain that "one 

wonders why we bother with a written constitution at all." See

majority op., ¶28 n.9. But there are all kinds of reasons why——

and none of them require us to be originalists. "For example, 

one might be committed to a written constitution as a focal 

point for legal coordination in the manner of the rules of the 

road; as a flexible framework for common law elaboration; as a 

locus of normative discourse in a flourishing constitutional 

culture; or as one of many legitimate ingredients in a 

pluralistic practice of constitutional adjudication." Coan, 

supra at 1047. Each of these approaches honors and gives effect 

to constitutional text. And the fact is, neither the United 

States nor the Wisconsin constitutions tell us which one we 

should choose. See Cass R. Sunstein, There Is Nothing That 

Interpretation Just Is, 30 Const. Commentary 193, 211-12 (2015). 

(explaining that the Constitution does not "set out the rules 

for its own interpretation."). 

¶104 In making that choice, it's important to remember that 

"[t]he meaning of the Constitution must be made rather than 

found, not in the grand (and preposterous) sense that it is 
No. 2020AP2003.rfd

9

entirely up for grabs, but in the more mundane sense that it 

must be settled by an account of interpretation that it does not 

itself contain." Id. at 212. In other words, the majority's 

simplistic description of constitutional interpretation as 

"faithfully discern[ing] and apply[ing] the constitution as it 

is written" is worthless. See majority op., ¶28. Sure, 

sometimes our constitution uses very clear language. It doesn't 

take anything beyond the constitution's words to know, for 

example, that someone licensed to practice law in Wisconsin for 

only four years can't serve as a member of this court. See Wis. 

Const. art. VII, § 24 (requiring a license to practice law in 

Wisconsin for "5 years immediately prior to election or 

appointment"). But you don't need originalism to reach that 

conclusion, just the text. 

¶105 Most of our constitution, by contrast, was written 

broadly, and for good reasons. Indeed, the Wisconsin 

Constitution——now the sixth oldest in the nation, see Jack Stark 

& Steve Miller, The Wisconsin State Constitution 11 (2d ed. 

2019)——came about only after a prior, more specific proposed 

constitution was rejected by the people, largely because it 

tried to settle too many then-contemporary policy disputes. See

Joseph A. Ranney, Wisconsin and the Shaping of American Law 46 

(2017). No doubt part of the reason our constitution has 

endured so long is because its breadth gave the people of our 

state the room needed to adapt to new problems. See Ray A. 

Brown, The Making of the Wisconsin Constitution (Part II), 1952 

Wis. L. Rev. 23, 63 ("[T]he wisdom, conscious or unconscious, of 
No. 2020AP2003.rfd

10

the founders by concentrating on fundamental outlines and 

refraining in the main from details, provided the state with a 

constitution, which . . . has permitted the government to grow 

and adapt itself to new conditions and new concepts."). 

¶106 The breadth and adaptability of our constitution is 

evident in its many clauses declaring broad principles in 

general terms. The Wisconsin Constitution contains, for 

example, a guarantee of "a certain remedy in the law for all 

injuries, or wrongs," a prohibition against "control of, or 

interference with, the rights of conscience," and a 

pronouncement that "[t]he blessings of a free government can 

only be maintained by a firm adherence to justice, moderation, 

temperance, frugality and virtue, and by frequent recurrence to 

fundamental principles." See Wis. Const. art. I, §§ 9, 18, 22. 

And our framers recognized that by writing these provisions 

broadly it would be up to future judges and interpreters to 

decide what they mean. As the state constitutional convention's 

president put it, the framers of our constitution sought to 

declare "those great principles which characterize the age in 

which we live, and which, under the protection of Heaven, will——

nay, must——guard the honor, promote the prosperity, and secure 

the permanent welfare of our beloved country." The Attainment 

of Statehood 883 (Milo M. Quaife, ed. 1928). They weren't 

trying to write specific rules settling difficult questions for 

all time. Instead, they were——like the framers of the United 

States Constitution——trying to "provide a political platform 

wide enough to allow for considerable latitude within which 
No. 2020AP2003.rfd

11

future generations could make their own decisions." See Joseph 

J. Ellis, The Quartet: Orchestrating the Second American 

Revolution, 1783-1789, at 219 (2015); see also Jack Balkin, 

Living Originalism 27 (2011) ("[C]onstitutional framers and 

ratifiers very often use open-ended language that deliberately 

delegates questions of application to future interpreters."). 

Simply observing, as the majority does, that the constitution 

was written down does not demonstrate that originalism is the 

best way to make those decisions. 

2

¶107 The majority's second defense of originalism——that it 

constrains judges to their proper role by focusing them on the 

text and history of the Wisconsin Constitution, which provide a 

basis for judicial decisions that differ from an individual 

judge's personal views——also falls flat. 

¶108 The central problem with this argument is that the 

search for original meaning is almost always fruitless. "The 

reality is that for most provisions, this single understanding 

[of the original public meaning] did not exist." See

Chemerinsky, supra at 56. And this is just as true of the 

Wisconsin Constitution as it is of the United States 

Constitution, if not more so. To begin with, there are far 

fewer sources to draw on in trying to determine what the 

Wisconsin Constitution meant to the people who drafted and 

adopted it. There are only a handful of volumes collecting 

sources regarding the 1846 and 1847-48 conventions and the 

ratification debates. See The Movement for Statehood, 1845-1846
No. 2020AP2003.rfd

12

(Milo M. Quaife ed. 1918); The Convention of 1846 (Milo M. 

Quaife, ed. 1919); The Struggle Over Ratification, 1846-1847

(Milo M. Quaife, ed. 1920); Attainment, supra. And there are a 

couple of law review articles from the 1940s and 1950s as well, 

but they review basically the same materials contained in the 

print volumes. See Ray A. Brown, The Making of the Wisconsin 

Constitution (Part I), 1949 Wis. L. Rev. 648; Brown, The Making 

of the Wisconsin Constitution (Part II), supra. 

¶109 What even these limited sources reveal is not one 

single, universally accepted original public meaning of the 

Wisconsin Constitution. Instead, they demonstrate that the 

questions that consumed the drafters of the Wisconsin 

Constitution——whether the document would retain the failed 1846 

constitution's provisions prohibiting banking, guaranteeing 

property rights to married women, and creating an elected 

judiciary, for example——tell us nothing about how to resolve 

contemporary cases. See Brown, The Making of the Wisconsin 

Constitution (Part II), supra at 26; see also generally The 

Attainment of Statehood, supra. They also show that, when it 

came to the document's more open-ended provisions, the drafters 

left little evidence of what they thought these clauses meant. 

See Brown, The Making of the Wisconsin Constitution (Part I), 

supra at 689 (noting that although some provisions of the 1846 

constitution's bill of rights were "greatly altered before final 

adoption, there was general agreement as to the provisions which 

it should contain"); Brown, The Making of the Wisconsin 

Constitution (Part II), supra at 57 ("The committee in charge 
No. 2020AP2003.rfd

13

of" Article I, the Declaration of Rights, "adopted this article 

[from the 1846 constitution] without material changes, and so 

generally accepted were they, that no debate arose on" them). 

The same is true of many of the constitution's more specific 

provisions like the one about how to amend the constitution at 

issue in this case, Article XII, Section 1. As the majority 

acknowledges, there is no evidence from the constitutional 

convention or ratification debates that sheds any light on its 

meaning. See majority op., ¶32. 

¶110 The majority suggests that when these sources are 

unclear or silent, early legislative actions can identify the 

original public meaning of uncertain constitutional provisions. 

See id. But that too is inadequate. First, any effort to 

identify what early legislative enactments mean about the 

constitution requires sifting through voluminous materials that 

often conflict with one another. Compare Julian Davis Mortenson 

& Nicholas Bagley, Delegation at the Founding, 121 Colum. L. 

Rev. 277, 332-66 (2021) (reviewing evidence from early 

congresses demonstrating that "[t]he nondelegation doctrine 

simply was not an accepted feature of the constitutional fabric 

at the time of ratification"), with Ilan Wurman, Nondelegation 

at the Founding, 130 Yale L.J. 1490, 1494 (2021) (arguing that 

"[a]lthough the history is messy," it supports a version of the 

nondelegation doctrine). Conflicting history means that early 

legislative enactments are of little use in identifying what the 

constitution means. Worse yet, rather than acknowledge these 

conflicts, courts often cherry-pick historical examples to 
No. 2020AP2003.rfd

14

support their preordained conclusions instead, a practice 

rightly derided as "law office history." See Chemerinsky, supra

at 66; see also, e.g., Dobbs v. Jackson Women's Health Org., 142 

S. Ct. 2228, 2324 (2022) (Breyer, Sotomayor, & Kagan, JJ., 

dissenting) (noting that "early law in fact does provide some 

support for abortion rights" and that the majority's citation to 

laws adopted after the Fourteenth Amendment was ratified was

"convenient . . . , but it is window dressing"). Second, 

relying on early legislative inaction as evidence of the 

constitution's original public meaning is particularly 

problematic. There are all kinds of reasons why an early 

legislature might not have acted in a manner that is 

nevertheless constitutionally permissible for a later 

legislature. See Leah M. Litman, Debunking Antinovelty, 66 Duke 

L.J. 1407, 1427-29 (2017) (identifying some of these reasons 

including new factual and legal developments); see also

Chemerinsky, supra at 66 ("The absence of a specific practice at 

a specific time does not mean that those then in power thought 

the practice was unconstitutional."). Finally, early 

legislative enactments are "at best weak evidence of original 

meaning." Gary Lawson, Delegation and Original Meaning, 88 Va. 

L. Rev. 327, 398 (2002). Although early legislative enactments 

might reflect what legislators thought the constitution meant, 

their interpretations might not have been widely held. See id. 

Moreover, legislators are not "disinterested observers;" they 

are capable of misinterpreting the constitution or ignoring its 

meaning entirely when it is politically expedient. See id.; 
No. 2020AP2003.rfd

15

Chemerinsky, supra at 65 (explaining that it is "possible that 

the Framers wrote the [relevant constitutional provision] in an 

effort to outlaw the practice, but faced with the political 

realities of governing they saw no alternative but to engage in 

the forbidden behavior."). Thus, their actions cannot 

meaningfully inform our interpretation of what the constitution 

means. 

¶111 In addition to the problems with identifying original 

public meaning, "[o]ne of the largest difficulties in applying 

originalism is choosing the level of abstraction at which the 

original understanding is stated." Chemerinsky, supra at 67. 

This issue is illustrated by the majority's discussion of early 

historical practices regarding constitutional amendments. As 

the majority explains, early legislatures submitted 

constitutional amendments to the people as simple yes-or-no 

questions, for the amendment or against the amendment. See

majority op., ¶33-34. Accordingly, the language that appeared 

on the ballot regarding those early amendments didn't describe 

the substance or intended effect of the proposed amendments at 

all. See id. ¶35. The legislature moved away from that 

practice in fits and starts beginning in the 1870s, however, 

directing that somewhat more descriptive language appear on the 

ballot during that period. See id. ¶¶37-38. And that practice 

eventually solidified into a statute requiring that a "concise 

statement of the nature" of the proposed amendment appear on the 

ballot. See Wis. Stat. ch. 5, § 39 (1898); see also Wis. Stat. 

§ 5.64 (2021-22). 
No. 2020AP2003.rfd

16

¶112 From this history, the majority derives the principle 

that "an amendment only needs to be submitted to the people for 

ratification," no description required. See majority op., ¶35. 

Fair enough, but at this level of abstraction the majority's 

purported original public meaning tells us nothing. What about 

when the legislature does describe an amendment's substance on 

the ballot? Can the legislature then offer an incomplete 

description? An inaccurate one? If the purported original 

public meaning of Article XII, Section 1 doesn't answer those 

questions for the majority then something else has to. 

¶113 Whatever that something is, it's not originalism. 

That is because, as the preceding discussion demonstrates, what 

originalism requires judges to identify——a single, objective 

original public meaning——is something we cannot know. And even 

if we do somehow identify one original public meaning, like the 

majority's abstract insight about Article XII, Section 1, it 

tells us nothing about how to resolve real cases. Without the 

objective answers it promises, originalism is no constraint on 

judges at all. Constitutional interpretation is never as simple 

as just "apply[ing] the constitution as it is written." See

majority op., ¶28. That is because the constitution forces us 

to choose between competing interests all the time, and valueneutral judging is therefore impossible. Take, for example, 

Article I, Section 11 of the Wisconsin Constitution, which 

provides that "[t]he right of the people to be secure in their 

persons, houses, papers, and effects against unreasonable 

searches and seizures shall not be violated." What is 
No. 2020AP2003.rfd

17

reasonable when it comes to drone surveillance or searching cell 

phones isn't dictated by any original understanding. There 

could never be an "original understanding" on these topics 

because they were unimaginable at the time our constitution was 

written. Moreover, evaluating whether a search is 

"unreasonable" always requires a value judgment, balancing the 

interests of the government against an invasion of privacy. So 

too in deciding what it means for a constitutional amendment to 

be "submit[ted] to the people." See Wis. Const. art. XII, § 1. 

¶114 Finally, even if the original public meaning of many 

provisions of the Wisconsin Constitution were discoverable, 

applying it would lead to intolerable results. As one scholar 

said, "[t]he only kind of originalism that is reasonably 

determinate leads to conclusions that practically no one 

accepts." David A. Strauss, Can Originalism Be Saved?, 92 B.U. 

L. Rev. 1161, 1162 (2012). For example, Article I, Section 9 of 

the Wisconsin Constitution provides that "[e]very person is 

entitled to a certain remedy in the laws for all injuries, or 

wrongs which he may receive in his person, property, or 

character; he ought to obtain justice freely, and without being 

obliged to purchase it, completely and without denial, promptly 

and without delay, conformably to the laws." There is no 

escaping that, as the use of male pronouns demonstrates, the 

original public meaning of this provision and many others in our 

original constitution didn't include women. The delegates to 

the constitutional convention were all men, and as mentioned 

previously, part of the reason the proposed 1846 constitution 
No. 2020AP2003.rfd

18

was rejected was because it guaranteed a modicum of autonomy to 

women through its provisions about married women owning 

property. See Ranney, supra at 46-47. Yet we would never say 

today that, because the original public meaning of this 

provision didn't include women, women are therefore not entitled 

to a "remedy in the laws." Wis. Const. art. I, § 9. And that's 

not the only example. Take Article I, Section 18's guarantee of 

"[t]he right of every person to worship Almighty God according 

to the dictates of conscience." At the 1847-48 convention, a 

motion to strike the words "Almighty God" on the grounds that 

the people had the right to worship whomever or whatever they 

wanted was defeated as "too radical a doctrine for our Godfearing forefathers." See Brown, The Making of the Wisconsin 

Constitution (Part II), supra at 57. Although this supports the 

conclusion that the original public meaning of Article I, 

Section 18's guarantee of religious liberty was inapplicable to 

those who didn't share our founders' belief in "Almighty God," 

even those who claim to be originalists would not reach such a 

repellent conclusion today. 

3

¶115 In summary, the majority's arguments fail to defend 

originalism as a theory of constitutional interpretation. 

Originalism isn't required merely because the Wisconsin 

Constitution was written down. Rather, there are many plausible 

ways of interpreting the constitution that are both nonoriginalist and true to the text. See Coan, supra at 1047. 

And originalism doesn't constrain judges by providing objective 
No. 2020AP2003.rfd

19

answers to difficult constitutional questions. See Chemerinsky, 

supra at 166 ("Originalism fails on its own terms to provide a 

constraint on judging. It is only a fig leaf allowing a justice 

to pretend to adhere to a neutral method.") After all, the 

search for an original public meaning is usually impossible, and 

even when it's not, leads to useless insights, abhorrent 

results, or both. 

¶116 Many of originalism's most vocal proponents suggest 

that rejecting it means embracing the rule of "philosopher-king 

judges [who] swoop down from their marble palace to ordain 

answers rather than allow the people and their representatives 

to discuss, debate, and resolve them." Neil Gorsuch, A 

Republic, If You Can Keep It 113 (2020). The majority takes a 

similar tack, accusing me of "open[ly] pining for the freedom to 

go beyond the meaning of constitutional language." See majority 

op., ¶22 n.6. But this criticism misses the point. The 

"constitutional language" alone doesn't resolve difficult cases. 

Constitutional adjudication is and always has been more 

complicated than that. And for that reason, no theory——

originalism or any other——can provide determinate answers to 

difficult constitutional questions. 

¶117 If that is true, then how should we go about 

interpreting our constitutions? In my view, we should use the 

same kind of pluralistic approach I have identified previously. 

See State v. Hoyle, 2023 WI 24, ¶109, 406 Wis. 2d 373, 987 

N.W.2d 732 (Dallet, J., dissenting). We should analyze the 

United States or Wisconsin constitutions' text and history
No. 2020AP2003.rfd

20

carefully, but we should also be guided by precedent, context, 

historical practice and tradition, and the need to balance "'the 

majority's values against the values that should be protected 

from society's majorities.'" Id. (quoting Chemerinsky, supra at 

207). 

C

¶118 In closing I note that even if the majority were 

correct that originalism is our consensus approach to 

interpreting the Wisconsin Constitution, that approach would 

nevertheless not be binding in future cases. See majority op., 

¶¶22-26. That is because reliance on a particular method of 

interpretation in one case doesn't bind future courts to use 

that same method in all future cases. 

¶119 We have never said that our methodological choices 

bind us in future cases even though we have occasionally assumed 

so in other contexts. For example, State ex rel. Kalal v. 

Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 

N.W.2d 110 and subsequent cases applying it appear to assume 

that its statutory-interpretation framework is binding. See

Abbe Gluck, The States As Laboratories of Statutory 

Interpretation: Methodological Consensus and the New Textualism, 

119 Yale L.J. 1750, 1800-03 (2010) (noting that "most of [our] 

court's disputes" about Kalal "are about how [its] framework 

should be applied, not whether it controls."). But there are 

good reasons to doubt that assumption. After all, the United 

States Supreme Court doesn't treat prior methodological choices 

as binding in either statutory or constitutional cases. Id. at 
No. 2020AP2003.rfd

21

1823 ("The U.S. Supreme Court does not apply methodological 

stare decisis . . . in the context of articulating binding 

statutory interpretation frameworks."); Richard H. Fallon, Jr., 

Constitutional Constraints, 97 Calif. L. Rev. 975, 1013 (2009) 

("Although methodological disputes grow heated in some cases, it 

is striking that in the domain of constitutional adjudication, 

the justices have seldom exhibited much interest in attempting 

to bind either themselves or each other, in advance, to the kind 

of general interpretative approaches that academic theorists 

champion."). 

¶120 There are several likely reasons the Court does not do 

so. For one thing, abstract, general methodologies like 

originalism (or Kalal, for that matter) are an awkward fit with 

stare decisis, which aims to treat like cases alike. See Chad 

M. Oldfather, Methodological Pluralism and Constitutional 

Interpretation, 80 Brook. L. Rev. 1, 42-44 (2014). If the 

choice of originalism in one constitutional case is treated as 

binding that means all constitutional cases must be decided 

using originalist methods. But this one-size-fits-all thinking 

would upend existing precedent because "[a]ny form of 

originalist analysis with bite . . . would generate unpalatable 

results when viewed from a contemporary perspective." Id. at 

45. For example, Brown v. Board of Education,5 same sex 

 

5 347 U.S. 483 (1954).
No. 2020AP2003.rfd

22

marriage, virtually all rights of women6 and racial minorities, 

and any number of other fundamental rights are difficult, if not 

impossible, to justify on originalist grounds. See Chemerinsky, 

supra at 92-114. Because "the Court would be unlikely to find 

all substantive conclusions generated by a particular 

methodology palatable," avoiding those results would mean having 

to abandon the supposedly settled choice of methodology or 

twisting that method so much that it no longer really applied at 

all. See Oldfather, supra at 45-46. Safer then not to adopt 

any binding methodology, except perhaps in determining the 

application of an already settled constitutional interpretation.7 

See id. at 39-42 (explaining that stare decisis can play a role 

when it comes to "decision rules," that is, rules that help

implement an existing interpretation of the Constitution like 

 

6 Indeed, just last year, the United States Supreme Court 

concluded that "history and tradition" led to the "clear 

answer . . . that the Fourteenth Amendment does not protect the 

right to an abortion." Dobbs, 142 S. Ct. at 2248. But as in 

District of Columbia v. Heller, 554 U.S. 570 (2008), the history 

on which the majority relied is contested. See Dobbs, 142 S. 

Ct. at 2324 (Breyer, Sotomayor, & Kagan, JJ., dissenting) 

("[E]mbarrassingly for the majority . . . early law in fact does 

provide some support for abortion rights."); see also Heller, 

554 U.S. at 595 (arguing that the text and history of the Second 

Amendment supported a constitutional right to possess a gun for 

self-defense in the home); id. at 640 (Stevens, J., dissenting) 

(contending that text and history supported the opposite 

result). 

7 For example, the United States Supreme Court's decision 

last year in New York State Rifle & Pistol Association v. Bruen, 

142 S. Ct. 2111 (2022) explained that "text and history" are the 

test for whether firearm regulations are permitted by the Second 

Amendment. Id. at 2127. But in doing so, the Court never said 

that "text and history" should be the sole test for interpreting 

every provision of the United States Constitution.
No. 2020AP2003.rfd

23

the tiered-scrutiny framework for claims under the Equal 

Protection Clause). 

¶121 For another thing, reasonable judges disagree about 

the best way to interpret the constitution. If everyone agreed 

about the appropriate method for interpreting the constitution, 

or if there were a clear best method, there would be no need to 

treat methodologies like originalism as binding in future cases—

—consensus would already accomplish that goal. But even selfprofessed originalists disagree about how to do originalism, to 

say nothing of those who believe non-originalist methods are 

best. See Segall, supra at 123 (explaining that Justice 

Scalia's and Justice Thomas's "ideologies have nuanced

differences such as their use of precedent, tradition, and what 

evidence counts toward original meaning."). In the face of such 

disagreements, labeling a particular method of constitutional 

interpretation as binding precedent cannot force consensus. 

¶122 Indeed, disagreement about the proper method of 

interpreting the Wisconsin Constitution is almost as old as this 

court. In Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 

(1911), two members of the court wrote at length to express 

their divergent views about the appropriate methods of 

constitutional interpretation. Chief Justice Winslow, writing 

for the majority, favored the view that "the changed social, 

economic, and governmental conditions and ideals of the 

time . . . must also logically . . . become influential factors 

in the settlement of problems of construction and 

interpretation." Id. at 349-50. But Justice Marshall 
No. 2020AP2003.rfd

24

disagreed, asserting that "[i]f the constitution is to 

efficiently endure, the idea that it is capable of being resquared, from time to time, to fit new legislative or judicial 

notions of necessities in præsenti . . . must be combated 

whenever and wherever advanced." Id. at 375 (Marshall, J., 

concurring). And that disagreement continues to this day. 

Compare Hoyle, 406 Wis. 2d 373, ¶¶83-89 (Hagedorn, J., 

concurring), with id., ¶¶106-09 (Dallet, J., dissenting). We 

should not pretend that these disagreements are settled merely 

because four members of the court have, in a few cases, applied 

a particular method of constitutional interpretation. Such 

decisions do not conclusively bind this court to originalism any 

more than Chief Justice Winslow's opinion more than a century 

ago compels us to reject it. 

II

¶123 Turning now to the specific issue in this case, 

Wisconsin Justice Initiative (WJI) argues that the way in which 

Marsy's Law was submitted for ratification violated two aspects 

of Article XII, Section 1, which governs the process by which 

the legislature may propose amendments to the Wisconsin 

Constitution. First, WJI asserts that the language that 

appeared on the ballot describing the proposed amendment was 

incomplete, inaccurate, or perhaps misleading, and thus the 

amendment wasn't truly "submit[ted] . . . to the people" for 

ratification. See Wis. Const. art. XII, § 1. And second, 

because Marsy's Law affects the rights of crime victims and the 

accused in different ways, WJI concludes that it is "more than 
No. 2020AP2003.rfd

25

one amendment," and thus should've been submitted to the people 

separately. See id. 

¶124 I agree with the majority's analysis of why, based on 

our longstanding precedent about multiple amendments, WJI's 

second claim should be rejected. I therefore join ¶¶58-59 and 

61-65 of the majority opinion. I disagree, however, with the 

majority's explanation of why, despite the issues WJI identifies 

with the language that appeared on the ballot, Marsy's Law was 

nonetheless "submit[ted] to the people" as required by Article 

XII, Section 1. 

A

¶125 Amendments to the Wisconsin Constitution may be 

proposed by the legislature through the process set forth in 

Article XII, Section 1. It provides that if a proposed 

amendment is approved by a majority vote of two consecutive 

legislatures, "entered on [the legislature's] journals, with the 

yeas and nays taken thereon," and published for three months 

prior to the next general election, "it shall be the duty of the 

legislature to submit such proposed amendment or amendments to 

the people in such manner and at such time as the legislature 

shall prescribe." Wis. Const. art. XII, § 1. "[I]f more than 

one amendment [is] submitted" to the people for ratification, 

each amendment "shall be submitted in such manner that the 

people may vote for or against such amendments separately." Id. 

If a majority of voters approve of the amendment, it becomes 

part of the constitution. See id. 
No. 2020AP2003.rfd

26

¶126 The constitution doesn't explain what it means for a 

proposed amendment to be "submit[ted] . . . to the people." Id. 

All it says is that the amendment must be submitted "in such 

manner and at such time as the legislature shall prescribe." 

Id. 

¶127 As discussed previously, for much of the state's early 

history, the legislature submitted proposed constitutional 

amendments to the people through simple yes-or-no questions, for 

the amendment or against the amendment. See majority op., ¶¶33-

34. Accordingly, the language that appeared on the ballot 

regarding those early amendments didn't describe the substance 

or intended effect of the proposed amendments at all. See id., 

¶35. But over time the legislature moved toward the 

contemporary practice of providing a short description of 

proposed constitutional amendments on the ballot. See id., 

¶¶37-38. 

¶128 That move raised a potential problem. Could the 

legislature direct that the ballot describe a proposed amendment 

in a way that was fundamentally incomplete, inaccurate, or 

deceptive? Was such an amendment still "submit[ted] . . . to 

the people?" See Wis. Const. art. XII, § 1. In State ex rel. 

Ekern v. Zimmerman, 187 Wis. 180, 200-02, 204 N.W. 803 (1925), 

this court said no. We explained that if the legislature 

"prescribed the form of submission in a manner which would have 

failed to present the real question, or had they by error or 

mistake presented an entirely different question, no claim could 

be made that the proposed amendment would have been validly 
No. 2020AP2003.rfd

27

enacted." Id. at 201. That makes sense. If the legislature 

misleads the people, intentionally or not, about what a proposed 

constitutional amendment would do, then the question was never 

truly submitted to them at all. 

¶129 Ekern didn't stop there though. In the next sentence, 

it said "[i]n other words, even if the form is prescribed by the 

legislature it must reasonably, intelligently, and fairly 

comprise or have reference to every essential of the amendment." 

Id. WJI seizes on this sentence, arguing that the language the 

legislature directed appear on the April 2020 general election 

ballot regarding Marsy's Law fell short of that mark. The 

ballot read: 

Question 1: "Additional rights of crime victims. 

Shall section 9m of article I of the constitution, 

which gives certain rights to crime victims, be 

amended to give crime victims additional rights, to 

require that the rights of crime victims be protected 

with equal force to the protections afforded the 

accused while leaving the federal constitutional 

rights of the accused intact, and to allow crime 

victims to enforce their rights in court?"

2019 Enrolled Joint Res. 3. According to WJI, this language 

doesn't describe "every essential" of Marsy's Law because it 

fails to mention that Marsy's Law expanded the definition of 

"victim," altered the state constitutional rights of the 

accused, and changed our court's jurisdiction.8

¶130 The majority disagrees with WJI's view that Ekern

imposed a constitutional requirement that ballot language 

contain "every essential" of a proposed amendment. See majority 

 

8 I accept, for purposes of this opinion only, WJI's 

characterizations of the substantive effects of Marsy's Law. 
No. 2020AP2003.rfd

28

op., ¶49. According to the majority, "the relevant 

constitutional question is whether the proposed amendment was, 

at a basic level, submitted to the people for ratification." 

Id., ¶51. And the majority concludes that the only way in which 

an amendment could flunk that test is "in the rare circumstance 

that the question is fundamentally counterfactual such that 

voters were not asked to approve the actual amendment." Id. 

Because the ballot language about Marsy's Law does not fit 

within that narrow category, the majority concludes that the 

amendment was validly adopted. 

¶131 Before getting to why I think the majority's proposed 

rule is too narrow, it's important to note one thing. Despite 

the majority's purported allegiance to originalism, this 

analysis is anything but originalist. The text of Article XII, 

Section 1 doesn't tell us what it means for an amendment to be 

"submit[ted] to the people." Indeed, it's plausible to read the 

text as allowing the legislature to do whatever it wants when it 

comes to describing constitutional amendments on the ballot. 

And knowing that early legislatures used to provide no 

descriptions on the ballot at all doesn't help us answer whether 

an amendment submitted with a misleading or incomplete 

description is submitted to the people either. 

¶132 Accordingly, to answer that question, the majority 

engages in precisely the kind of interest balancing that I 

argued earlier is a necessary part of constitutional 

interpretation. See supra Part I.B.2. Here, the relevant 

interests are the legislature's authority, explicit in the 
No. 2020AP2003.rfd

29

constitution, to specify the time and manner in which amendments 

are to be submitted, and the people's right——also reflected in 

the constitution——fairly to evaluate and vote on a proposed 

constitutional amendment. And we know that no matter what the 

majority says, it has to be balancing these interests. That is 

because the text could plausibly mean that the legislature has 

carte blanche when it comes to prescribing how constitutional 

amendments are submitted to the people and all the history tells 

us is that the legislature doesn't have to describe the contents 

of proposed amendments at all. So without saying so, the 

majority tries to strike an appropriate balance between these 

interests that preserves both the legislature's discretion and 

the people's right to decide whether to amend the constitution. 

¶133 The problem is that the new rule the majority derives 

from Ekern and our other cases regarding the submission-to-thepeople requirement is still too narrow. Although the majority 

is certainly correct that a "fundamentally counterfactual" 

ballot question doesn't comply with the constitution, that's not 

the only way to violate the requirement that an amendment be 

submitted to the people. See majority op., ¶51. An amendment 

that is described in a way that is so incomplete as to be 

misleading is also not submitted to the people. For example, if 

the legislature had described Marsy's Law on the ballot as 

merely "an amendment to expand the definition of 'victim' 

contained in Article I, § 9m of the Constitution," that 

description wouldn't violate the majority's rule. This 

statement is accurate, it's not fundamentally counterfactual. 
No. 2020AP2003.rfd

30

But the description would also be misleading because Marsy's Law 

made many more significant changes to Article I, Section 9m. 

And if the people voted to adopt the amendment in reliance on 

such a description, it can't be said that all of those more 

significant changes were submitted to the people for 

ratification. This, I think, is what Ekern was referring to 

when it said the ballot must describe "every essential" of the 

proposed amendment. See Ekern, 187 Wis. at 201. Thus, I 

conclude that a ballot description, if the legislature chooses 

to provide one, must accurately summarize the significant 

changes the proposed amendment would make to the Constitution. 

¶134 I acknowledge, of course, that this rule doesn't 

always provide clear answers. Because a summary that appears on 

the ballot will always be incomplete and isn't meant to take the 

place of the text of a proposed amendment, judgment will always

be required. But that is okay. We trust judges to make 

judgment calls all the time, and doing so in this context is the 

only way to preserve both the legislature's authority to specify 

the manner in which amendments are to be submitted to the people 

and the right of the people to decide whether to change the 
No. 2020AP2003.rfd

31

constitution.9 Indeed, the majority's approach also requires 

judgment to determine what questions are "fundamentally

counterfactual." See majority op., ¶51 (emphasis added). As 

the use of the word "fundamentally" implies, superficially 

counterfactual ballot questions would pass the majority's test. 

But the majority offers no principled way of distinguishing 

between superficially counterfactual and "fundamentally" 

counterfactual ballot questions.10 

¶135 In this case, the legislature's summary was sufficient 

and Marsy's Law was thus validly submitted to the people. 

Although WJI points to some of the amendment's particulars that 

weren't described specifically in the ballot language, as I said 

before, a summary always leaves some details out. The 

 

9 Justice Rebecca Grassl Bradley's concurrence accuses me of 

committing a logical fallacy while making one of her own. See

Justice Rebecca Grassl Bradley's concurrence, ¶85. According to 

her concurrence, the majority's approach is consistent with the 

constitution because it identifies whether an amendment was 

"submitted to the people," while mine is impermissible because 

it focuses on "the manner of submission." See id. ¶¶69-70. But 

this is a straw man. Both the majority and I are answering the 

same question: whether Marsy's Law was "submitted to the 

people." We just disagree on the meaning of that constitutional 

requirement. Article XII, Section 1 says that "it shall be the 

duty of the legislature to submit . . . proposed . . . 

amendments to the people in such manner . . . as the legislature 

may prescribe." As this language makes clear, the manner of 

submission and the submission itself are inextricably 

intertwined. Thus, deciding whether an amendment was submitted 

to the people always requires courts to analyze whether the 

manner the legislature prescribed for submission satisfied that 

constitutional requirement. 

10 For this reason, Justice Rebecca Grassl Bradley's 

concurrence is wrong to suggest that the "fundamentally 

counterfactual" test is somehow free from subjectivity. See

Justice Rebecca Grassl Bradley's concurrence, ¶¶82-84. 
No. 2020AP2003.rfd

32

legislature's description of Marsy's Law is accurate, and the 

expanded definition of "victim," and arguable changes to the 

state constitutional rights of the accused and this court's 

jurisdiction weren't so significant that they needed to be 

described on the ballot. In short, the legislature gave voters 

the gist of Marsy's Law, and in an accurate way, and that is all 

that is required. Accordingly, I respectfully concur. 

¶136 I am authorized to state that Justice JILL J. KAROFSKY 

joins this concurrence, and Justice ANN WALSH BRADLEY joins this 

concurrence with respect to ¶¶93-122. 
No. 2020AP2003.bh

1

¶137 BRIAN HAGEDORN, J. (concurring). A central feature 

of the American legal system is the idea that matters once 

decided should generally remain that way. The default norm is 

that when an appellate court takes up and decides an issue, its 

legal determination remains the rule for that court and 

authoritatively binds lower courts facing the same question. We 

call this "precedent," and it is a practice that goes back 

centuries. 

¶138 But by necessity, judicial opinions touch on matters 

beyond the issues in a case. They might describe a prior 

opinion or legal doctrine tangential to an issue, but not 

necessary for resolution of the case. The law calls this 

"dicta." This word comes from the Latin, obiter dictum, which 

means "something said in passing."1 So while the reason or 

rationale for a decision (in Latin, ratio decidendi2) constitutes 

precedent, the other things said by a court do not. This is 

true even when the court comments on the law. 

¶139 In recent years, however, some discussion in Wisconsin 

has minimized dicta and maximized the effect of the words in 

judicial opinions. This is problematic for many reasons. I 

write separately to bring clarity to what this court has and has 

not said about dicta, and to issue a clarion call to re-embrace 

 

1 Obiter Dictum, Black's Law Dictionary 569 (11th ed. 2019). 

Dicta is the plural of dictum. Dictum, Black's Law Dictionary

569 (11th ed. 2019).

2 Ratio Decidendi, Black's Law Dictionary 1514 (11th ed. 

2019).
No. 2020AP2003.bh

2

dicta's crucial role in understanding our case-deciding, 

precedent-setting function. 

¶140 Both we and the Wisconsin Court of Appeals largely 

carry out our case-deciding work through written judicial 

opinions. We distribute these opinions to the parties, make 

them available to the public, and print them in reporters that 

stretch back to before Wisconsin's statehood. While the 

Wisconsin Reports are filled with sound writing and compelling 

legal analysis (and, to be sure, some of the other variety), 

lawyers and lower courts need to know what from these opinions 

constitutes a rule of decision governing the next case. Is 

every jot and tittle, stray statement, or tangential footnote 

binding legal precedent that must be followed faithfully? 

¶141 The answer to this question almost always and 

everywhere is no. While debate continues over where to draw the 

line in principle and from case to case, the general rule 

remains that the holding of a case——that is, the legal rationale 

underlying and necessary to a decision——constitutes precedent. 

Other discussion, including discussion of legal matters, is nonbinding dicta.3 

 

3 See, e.g., Central Green Co. v. United States, 531 

U.S. 425, 431 (2001); M. Elaine Buccieri, et al., 21 C.J.S. 

Courts, § 223 ("Dictum is a statement on a matter that is not 

necessarily involved in the case and is not binding as 

authority."); Ryan S. Killian, Dicta and the Rule of Law, 2013 

Pepp. L. Rev. 1, 8 (2013); Judith M. Stinson, Why Dicta Becomes 

Holding and Why It Matters, 76 Brook. L. Rev. 219, 223 (2010); 

David Coale & Wendy Couture, Loud Rules, 34 Pepp. L. Rev. 715, 

725 (2007); Michael C. Dorf, Dicta and Article III, 142 U. Pa. 

L. Rev. 1997, 2000 (1994).

Chief Justice Marshall explained the distinction this way:
No. 2020AP2003.bh

3

¶142 From our earliest days, this court acknowledged and 

understood the important distinction between the holding of a 

case and the non-binding dicta contained within it. See, e.g.,

Stucke v. Milwaukee & Mississippi R.R. Co., 9 Wis. 202, 211 

(1859) (explaining a doctrine "rests in mere obiter dicta, 

without a direct authority in its favor"). We have repeated the 

unremarkable rule that when we deliberately take up and decide 

an issue central to the disposition of a case, it is considered 

precedential. See State v. Picotte, 2003 WI 42, ¶19 n.21, 261 

Wis. 2d 249, 661 N.W.2d 381; State v. Kruse, 101 Wis. 2d 387, 

392, 305 N.W.2d 85 (1981). But where our opinions addressed 

tangential matters not central to the question presented, we 

labeled such statements dictum and recognized that "[t]his court 

is not bound by its own dicta." Am. Fam. Mut. Ins. Co. v. 

Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984); see also

State v. Sartin, 200 Wis. 2d 47, 60, 546 N.W.2d 449 (1996); 

State ex rel. Ekern v. Dammann, 215 Wis. 394, 403, 254 N.W. 759 

 

It is a maxim not to be disregarded, that general 

expressions, in every opinion, are to be taken in 

connection with the case in which those expressions 

are used. If they go beyond the case, they may be 

respected, but ought not to control the judgment in a 

subsequent suit when the very point is presented for 

decision. The reason of this maxim is obvious. The 

question actually before the Court is investigated 

with care, and considered in its full extent. Other 

principles which may serve to illustrate it, are 

considered in their relation to the case decided, but 

their possible bearing on all other cases is seldom 

completely investigated.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821).
No. 2020AP2003.bh

4

(1934).4 Put simply, not every statement in our opinion pages, 

no matter how peripheral to the issues in the case, constitutes 

a precedential opinion of the court.

¶143 This practice took a confusing turn in 2010, however. 

In Zarder v. Humana Ins. Co., we addressed whether the court of 

appeals may decline to follow a statement in a majority opinion 

of this court on the grounds that it is dictum. 2010 WI 35, 

¶¶50-58, 324 Wis. 2d 325, 782 N.W.2d 682. The answer, somewhat 

surprisingly, was no. Id., ¶58. This new approach directly 

contradicted prior statements of this court. In State v. Koput, 

for example, we stated it was perfectly appropriate "for the 

court of appeals or a circuit court to evaluate statements in 

our opinions on the basis of whether they constitute dictum." 

142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804 (1988). The court of 

appeals was wrong to think "it was required to give equal weight 

to every statement in our opinions." Id. Nevertheless, in 

Zarder we concluded that because the court of appeals could not 

overrule itself (citing Cook v. Cook5), "the court of appeals may 

not dismiss a statement from an opinion by this court by 

concluding that it is dictum." 324 Wis. 2d 325, ¶58. 

 

4 The Seventh Circuit acknowledged this as well. Cole v. 

Young, 817 F.2d 412, 418 (7th Cir. 1987) ("Wisconsin follows the 

common law rule that dicta——statements of law going beyond the 

particular facts of the case——do not constitute binding 

precedent."). 

5 In Cook v. Cook, we declared that the court of appeals 

could not "overrule, modify or withdraw language from its prior 

published decisions" even if it believed the prior decision "is 

erroneous." 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).
No. 2020AP2003.bh

5

¶144 This portion of Zarder deserves reexamination. Its 

reasoning was questionable, its foundation was weak, and its 

consequences have undermined a proper conception of the judicial 

role. Just because we stated in Cook that the court of appeals 

cannot overrule itself does not mean it cannot disregard 

statements that were never binding in the first place. Indeed, 

the traditional rule is that only the rationale for a decision 

has precedential effect. See, e.g., Cohens v. Virginia, 19 U.S. 

(6 Wheat.) 264, 399-400 (1821); Koput, 142 Wis. 2d at 386-87; 

Lakeshore Com. Fin. Corp. v. Drobac, 107 Wis. 2d 445, 457-58, 

319 N.W.2d 839 (1982). Simply because the rule of decision in a 

case cannot be ignored does not transform non-binding dictum 

into binding precedent. Logically, Zarder's conclusion does not 

follow. 

¶145 Furthermore, the Zarder rule itself distorts the law. 

Let me give an example. When I joined the court of appeals, one 

of the very first questions that came across my desk was a 

motion for leave to appeal. Wisconsin Stat. § 808.03(2) spells 

out three statutory criteria for permissive appeals: "(a) 

Materially advance the termination of the litigation or clarify 

further proceedings in the litigation; (b) Protect the 

petitioner from substantial or irreparable injury; or (c) 

Clarify an issue of general importance in the administration of 

justice." But form orders from the court of appeals also cited 

State v. Webb, 160 Wis. 2d 622, 632, 467 N.W.2d 108 (1991) and 

stated, "Additionally, before leave to appeal will be granted, 

the petitioner must show a substantial likelihood of success on 
No. 2020AP2003.bh

6

the merits of the appeal." While the likelihood of success 

would likely be relevant, I thought it odd that an additional 

requirement not listed in the statutes was added to the draft 

order. So I searched for the answer.

¶146 In a discussion tangential to the issue in Webb, this 

court identified the three statutory criteria governing the 

consideration of a motion for leave to appeal, and then said, 

"The defendant must also show a substantial likelihood of 

success on the merits." 160 Wis. 2d at 632. In support of this 

statement, the Webb court cited Wisconsin's Appellate Practice 

and Procedure treatise. Id. That treatise does not list 

"substantial likelihood of success" as a separate factor, but 

notes that it is implicit in the enumerated criterion and is 

likely to influence a decision by the court of appeals to take a 

case. See David L. Walther, Patricia L. Grove, & Michael S. 

Heffernan, Appellate Practice and Procedure in Wisconsin, § 9.2 

at 9–2 (1990). Therefore, even though the statute does not 

establish likelihood of success as a separate factor, the court 

of appeals felt bound by Webb's offhand remark. It is 

disturbing that a single inartfully-phrased sentence on a 

peripheral legal matter can have that much impact. Zarder

effectively transformed a stray comment in a supreme court 

opinion into a de facto statutory amendment——at least insofar as 

the court of appeals was concerned.

¶147 Moreover, Zarder has led some in the legal community, 

and even on this court, to suggest we no longer recognize a role 

for dicta in our opinions. Every description or discussion, in 
No. 2020AP2003.bh

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this view, constitutes a precedential holding of this court. To 

be sure, Zarder never says this. In fact, Zarder recognizes and 

describes two divergent definitions of dicta in our cases. See

324 Wis. 2d 325, ¶52 n.19.6 These two lines of cases discuss how 

to define dicta, not whether our opinions contain dicta. Id. 

As far as I am aware, this court has never held——in what would 

be a dramatic departure from basic norms of American 

jurisprudence——that the bench and bar must respect every word or 

discussion in our opinions as precedent. 

¶148 Yet for whatever reason, Zarder seems to have 

distorted how we think about our judicial work-product as well. 

Perhaps the feeling that everything we do and say must be 

followed is partially to blame for the increasing length of our 

opinions. Perhaps it contributes to the seeming itch to address 

legal matters in our decisions beyond those necessary to resolve 

a case. Increasingly, we also find ourselves carefully parsing 

which parts of opinions we "withdraw language" from and which we 

do not——a practice that does not appear common around the 

country or at the United States Supreme Court. Furthermore, we 

have ceased calling language in our own opinions dicta. Indeed, 

since Zarder, I cannot find any time we explicitly concluded 

that a portion of our own opinions was nonbinding dicta. Once 

again, Zarder on its own terms doesn't demand this, nor does it 

 

6 Zarder explains that our cases reflect two definitions of 

dicta and those cases debate what, beyond the holding, has 

binding effect on future courts. See Zarder v. Humana Ins. Co., 

2010 WI 35, ¶52 n.19, 324 Wis. 2d 325, 782 N.W.2d 682. I do not 

attempt here to choose sides, but rather, to restart this 

debate.
No. 2020AP2003.bh

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call into question the existence of dicta as a general matter. 

But its directional influence casts a long shadow. 

¶149 This departure from judicial norms may also reflect an 

over-inflated sense of our own importance and role in the 

constitutional order. The judicial role is, at root, a casedeciding function. See Serv. Emps. Int'l Union, Local 1 v. Vos, 

2020 WI 67, ¶31, 393 Wis. 2d 38, 946 N.W.2d 35. And cases are 

brought by parties whose legal rights and obligations must be 

determined. Id. Treating the legal rationale for a decision as 

precedential helps ensure consistency in the application of the 

law to other parties with similar issues, and gives due respect 

to the learned members of the judiciary who have come before. 

But treating as precedential legal discussions or comments not 

central to deciding a case flips this on its head, and 

reimagines our opinions as akin to legislation. In effect, it 

gives this court power to do far more than decide cases, and 

therefore, makes us likely to transgress our own guardrails——

both constitutional and prudential. 

¶150 Our opinions are not statutes, they interpret them. 

Our opinions are not the constitution, they interpret it. Our 

opinions are explanations of how and why we decided a case a 

particular way. They are meant to resolve the issue before us 

and, in so doing, set forth a legal standard that will be 

applied in other cases. But we don't know what we don't know. 

We make mistakes and misdescribe things and use imprecise 

language. Perhaps a little judicial modesty is in order. Stray 

statements or tangential discussions in opinions should not bind 
No. 2020AP2003.bh

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future courts or demand a stare decisis analysis. Recognizing 

dicta serves as a check on the current court, and keeps us in 

our proper case-deciding constitutional lane. We should embrace 

it. We should employ it. And neither we nor lower courts 

should feel compelled to bow before every prior pen-stroke in 

our opinions. 

¶151 So why raise this now? Because these concepts would 

be beneficial in cases like this. Here, the parties ask us to 

breathe life into Ekern's statement that "even if the form is 

prescribed by the legislature it must reasonably, intelligently, 

and fairly comprise or have reference to every essential of the 

amendment." State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 

201, 204 N.W. 803 (1925). But this statement in Ekern was not 

necessary to the issue decided in that case, which was whether 

the content of a ballot question may be delegated to the 

secretary of state. Id. at 196-200. In other words, this is 

classic dicta. Unfortunately, the parties argued the case as if 

we are obligated to do something with this language. But we are 

not. The premise is incorrect. The tangential discussion in 

Ekern may have persuasive value, but it did not create a 

judicial test we are bound to apply forevermore. We should call 

it dicta and call it a day, leaving us to focus on the 

requirements found in Article XII, Section 1 of the Wisconsin 

Constitution. That approach is appropriate here, and will be 

useful and appropriate in cases moving forward. 

¶152 I am authorized to state that Justice REBECCA FRANK 

DALLET joins this concurrence with respect to ¶¶137-150.
No. 2020AP2003.awb

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¶153 ANN WALSH BRADLEY, J. (dissenting). Ballot question 

challenges have been few and far between in the history of our 

state. Such a challenge reached this court in State ex rel. 

Ekern v. Zimmerman, 187 Wis. 180, 204 N.W. 803 (1925). There, 

the court established a test for our review of a ballot question 

challenge: "it must reasonably, intelligently, and fairly 

comprise or have reference to every essential of the amendment." 

Id. at 201 (emphasis added).

¶154 Yet rather than respecting the precedent of a nearly 

century-old unanimous opinion, the majority charts a new course 

not requested by either party. Instead of applying the test 

established in Ekern, the majority conjures its own test, never 

before stated, much less applied. 

¶155 Specifically, the majority sets forth that "[a] ballot 

question could violate [the] constitutional requirement only in 

the rare circumstance that the question is fundamentally 

counterfactual such that voters were not asked to approve the 

actual amendment." Majority op., ¶51. In addition to being 

created by the majority from whole cloth, this new test is 

unnecessary for the simple reason that we already have a test 

from Ekern. 

¶156 The majority arrives at its newly discovered test by 

tossing precedent to the wind and engaging in an unconvincing 

search for the "original meaning" of the state constitution's 

command that the legislature "submit" a proposed amendment to 

the people. As Justice Dallet's concurrence aptly explains, the 
No. 2020AP2003.awb

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endeavor of divining the "original meaning" of a constitutional 

provision is largely a futile endeavor.1 

¶157 But even setting this aside, the majority's analysis 

rests on an infirm foundation. It erroneously dismisses the 

Ekern test, and instead creates and applies a newly-minted test, 

resulting in an overly permissive approach that risks giving the 

legislature carte blanche in crafting ballot questions. 

¶158 I would follow our precedent set forth in Ekern. 

Applying the Ekern framework, I determine instead that the 

ballot question here failed to convey "every essential" of the 

amendment as is required. From the ballot question only, voters 

would have no idea that the proposed amendment diminishes the 

rights of criminal defendants in addition to bolstering the 

rights of crime victims. In my view, the diminution of a 

defendant's rights previously protected by law, constitutes an 

"essential" element of the amendment. Because the ballot 

question failed to accurately represent an essential element of 

the law to the voters who approved it, I respectfully dissent.

I

¶159 At the April 7, 2020 election, voters were presented 

with a yes or no vote on an amendment to Article I, § 9m of the 

Wisconsin Constitution.2 This section of the constitution 

addresses the rights of victims of crime, and the amendment 

sought to expand the rights to which crime victims are entitled.

 

1 I join part I of Justice Dallet's concurrence.

2 As the majority observes, this amendment is informally 

known as "Marsy's Law." Majority op., ¶10.
No. 2020AP2003.awb

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¶160 When the amendment was presented to voters, the ballot 

question gave no hint that a defendant's rights were being 

diminished. It stated: 

Shall section 9m of article I of the constitution, 

which gives certain rights to crime victims, be 

amended to give crime victims additional rights, to 

require that the rights of crime victims be protected 

with equal force to the protections afforded the 

accused while leaving the federal constitutional 

rights of the accused intact, and to allow crime 

victims to enforce their rights in court?

Majority op., ¶10. 

¶161 The Wisconsin Justice Initiative (WJI) brought this 

suit, asserting that the ballot question failed to satisfy the 

requirements set forth in the state constitution for distilling 

a constitutional amendment down to a ballot question that is 

then presented to the voters. Id., ¶11. At the outset, it 

should be emphasized that the substance of the amendment is not 

at issue, except to the extent that the court must determine 

whether the ballot question accurately represented the substance 

of the law to the voters who approved it. 

¶162 In the course of tackling the question that now comes 

before us, the circuit court found several shortcomings with the 

above language. Among the shortcomings, it determined that "the 

single question presented to the voters was insufficient because 
No. 2020AP2003.awb

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it did not reference the effect on the existing constitutional 

rights of the accused."3 

¶163 The circuit court stayed its ruling pending appeal, 

and the court of appeals certified WEC's appeal to this court. 

Now, the majority reverses the circuit court.

¶164 Purportedly grounding its determination in the 

constitution's "original meaning," the majority turns its back 

on Ekern, seeing only a requirement that the legislature 

"submit" the proposed amendment to the people. Majority op., 

¶5. Applying such an understanding, the majority concludes that 

"the question was not fundamentally counterfactual such that 

voters were not afforded the opportunity to approve the actual 

amendment" and was thus permissible. Id. The upshot is that 

"absent challenge on other grounds, the amendment has been 

validly ratified and is part of the Wisconsin Constitution." 

Id., ¶7.

 

3 The circuit court additionally determined that the 

question "did not accurately correspond to the language in the 

proposed amendments regarding the standard 'no less vigorous'" 

and that the amendment required two ballot questions rather than 

a single question "because the portion of the amendments that 

affected the rights of the accused did not sufficiently relate 

to the principal purpose behind the changes being driven by 

Marsy's Law to create rights for crime victims."

Because I determine the ballot question to fail the "every 

essential" test, I need not address these additional bases for 

the circuit court's decision.
No. 2020AP2003.awb

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II

¶165 I begin by setting forth the guiding principles in 

reviewing a ballot question. Subsequently, I address the 

majority's errors.

¶166 It is true that the legislature has a fair amount of 

discretion in constructing a ballot question. McConkey v. Van 

Hollen, 2010 WI 57, ¶40, 326 Wis. 2d 1, 783 N.W.2d 855. Indeed, 

this court has stated that the amount of discretion granted to 

the legislature is "considerable." Id. 

¶167 According to the state constitution, "it shall be the 

duty of the legislature to submit such proposed amendment or 

amendments to the people in such manner and at such time as the 

legislature shall prescribe." Wis. Const. art. XII, § 1. 

"Article XII, sec. 1 expressly delegates to the legislature the 

authority to determine the method for placing proposed 

constitutional amendments before the people." Milwaukee All. 

Against Racist and Political Repression v. Elections Bd., 106 

Wis. 2d 593, 603, 317 N.W.2d 420 (1982). "The inquiry is 

'whether the legislature in the formation of the question acted 

reasonably and within their constitutional grant of authority 

and discretion.'" McConkey, 326 Wis. 2d 1, ¶40 (quoting 

Milwaukee All., 106 Wis. 2d at 604). 

¶168 The legislature's discretion is broad, but it is not 

unlimited. In accordance with the constitution ("in such manner 

and at such time as the legislature shall prescribe"), statutory 

constraints on the legislature's authority indicate that the 

ballot question "shall include a complete statement of the 
No. 2020AP2003.awb

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referendum question upon which the voters shall be requested to 

vote." Wis. Stat. § 13.175.4 Wisconsin Stat. § 5.64(2)(am) 

provides further guidance on what must be included in a ballot 

question, requiring a "concise statement" and setting forth 

additional requirements: 

There shall be a separate ballot when any proposed 

constitutional amendment or any other measure or 

question is submitted to a vote of the people, except 

as authorized in s. 5.655. The ballot shall give a 

concise statement of each question in accordance with 

the act or resolution directing submission in the same 

form as prescribed by the commission under s. 

7.08(1)(a). The question may not be worded in such a

manner as to require a negative vote to approve a 

proposition or an affirmative vote to disapprove a 

proposition. Unless otherwise expressly provided, 

this ballot form shall be used at all elections when 

questions are submitted to a vote of the people.

Wis. Stat. § 5.64(2)(am).

¶169 As stated, this court has also previously set forth a 

test for reviewing a ballot question challenge, providing that a

ballot question violates the constitution when it "fail[s] to 

present the real question" or "present[s] an entirely different 

question." Ekern, 187 Wis. at 201. "In other words, even if 

the form is prescribed by the Legislature, it must reasonably, 

intelligently, and fairly comprise or have reference to every 

essential of the amendment." Id. (emphasis added).

 

4 As the majority correctly observes, no argument was raised 

here regarding the legislature's compliance with its statutory 

obligations. See majority op., ¶3.
No. 2020AP2003.awb

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III

A

¶170 The root of the majority's error lies in its hasty 

dismissal of the Ekern test.

¶171 This court in Ekern set forth what the parties refer 

to as the "every essential" test. It requires that a ballot 

question "must reasonably, intelligently, and fairly comprise or 

have reference to every essential of the amendment." Ekern, 187 

Wis. at 201. As the court of appeals observes in its

certification in the present case, this court has not expanded 

on what it really means for a ballot question to include "every 

essential" and this case presents an opportunity for the court 

to explain and apply this court's statement in Ekern. See Wis. 

Just. Initiative v. Wis. Elections Comm'n, No. 2020AP2003, 

unpublished certification, at 3 (Dec. 21, 2021).

¶172 But instead of taking that opportunity, the majority 

simply dispenses with Ekern. In the majority's view, the "every 

essential" test is no test at all, but is instead just an 

"explanatory statement."5 Majority op., ¶41. Such a 

 

5 Justice Hagedorn's concurrence goes a step further, 

asserting that the "every essential" test is mere dicta. Such 

an approach runs counter to the thrust of our recent 

jurisprudence. See Teigen v. Wis. Elections Comm'n, 2022 WI 64, 

¶139 n.8, 403 Wis. 2d 607, 976 N.W.2d 519 (Rebecca Grassl 

Bradley, J., concurring) (explaining that "[o]ur court does not 

recognize the concept of dicta"). 

This approach to dicta has been recognized to be simple and 

clear. It does not require the reader to dissect an opinion to 

determine, under whatever definition of dicta is embraced, what 

is and is not "necessary" or "germane" to the holding. See

Justice Hagedorn's concurrence, ¶147. 
No. 2020AP2003.awb

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characterization would be news to the court in State ex rel. 

Thomson v. Zimmerman, 264 Wis. 644, 659, 60 N.W.2d 416 (1953), 

who noted (although did not decide) a controversy over whether a 

ballot question "fairly comprised every essential of the 

amendment." And it most certainly is news to the parties here, 

who both argued their positions in terms of the "every 

essential" framework Ekern set forth.

¶173 By dismissing the "every essential" test of Ekern, the 

majority is able to avoid an exacting stare decisis analysis in 

order to determine if it should be overruled. See Johnson 

Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI 108, ¶94, 264 

Wis. 2d 60, 665 N.W.2d 257. Instead of analyzing whether a 

"special justification," see Hinrichs v. DOW Chem. Co., 2020 WI 

2, ¶¶67-68, 389 Wis. 2d 669, 937 N.W.2d 37, is present that 

would compel Ekern to be overruled, the majority relies on the 

convenient and outcome-determinative hypothesis that the 

relevant language is not actually the "test" the parties think 

it is. 

 

Such an approach also fosters consistency and 

predictability. "As the distinction between holding and dicta 

becomes increasingly vague, past precedents can be increasingly 

manipulated . . . [by] offer[ing] some facially plausible 

argument for disregarding a statement in a prior case." Michael 

Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 

953, 1024 (2005). Therefore, "loose and unpredictable standards 

for determining whether a statement is dicta can undermine stare 

decisis and the principles of judicial restraint." Est. of 

Genrich v. OHIC Ins. Co., 2009 WI 67, ¶83, 318 Wis. 2d 553, 769 

N.W.2d 481 (Ann Walsh Bradley, J., concurring in part and 

dissenting in part).
No. 2020AP2003.awb

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¶174 Of note is that no party here asked us to overrule 

Ekern.6 See St. Augustine Sch. v. Taylor, 2021 WI 70, ¶37, 398 

Wis. 2d 92, 961 N.W.2d 635 (observing that "no party asked us to 

overrule either" of two cases and declining to "overrule or 

revisit either case on our own initiative"). Indeed, WEC argued 

within the confines of Ekern that the ballot question at issue 

provided "every essential" of the amendment. We have thus been 

provided no special justification for overruling Ekern. As 

such, I would maintain the Ekern test. Doing so not only 

respects the precedent established by the courts who came before 

us, but in this case furthers the aims of democratic governance. 

Making sure that a ballot question includes "every essential" of 

an amendment ensures that the public is informed and can "vote 

intelligently." Ekern, 187 Wis. at 204. This is critical to 

maintaining a democracy. 

¶175 The result of the majority's error is an overly 

permissive approach that risks giving the legislature carte 

blanche in crafting ballot questions. The potential for a 

ballot question to mislead the public leads me to believe that a 

more exacting standard is necessary. Ekern's "every essential" 

test provides more of a safeguard, enhancing the sacred right to 

vote, than does the majority's proffered new test. 

¶176 When a ballot question fails to accurately describe 

"every essential" of a corresponding constitutional amendment, 

the people have not spoken on the true question. Rather than 

 

6 WEC confirmed at oral argument that it was not asking for 

this court to overturn "any of its prior decisions."
No. 2020AP2003.awb

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heralding that "the people have spoken" through their votes, 

instead the people are misled and democracy is undermined. 

Accordingly, I would maintain a test that provides more of a 

safeguard against such an outcome. The established Ekern test 

fits the bill.

B

¶177 Applying the Ekern test to the ballot question at 

issue here, I determine that the ballot question fails to inform 

voters of "every essential" of the amendment.

¶178 It is true that our previous cases offer precious 

little guidance in what it means to inform voters of "every 

essential." Indeed, challenges to ballot questions are rare in 

our jurisprudence, and when they are challenged the attack is 

often leveled on other grounds. See, e.g., McConkey, 326 

Wis. 2d 1, ¶4 (addressing a challenge under the "separate 

amendment rule").

¶179 As observed above, both parties here framed their 

arguments in terms of the Ekern test, and their arguments 

provide us with some guideposts as to the contours of the 

inquiry. WEC proposes the following understanding: "this Court 

should hold that the 'every essential' standard requires that 

the Legislature 'fairly express' the 'clear and essential 

purpose' of the proposed amendment in the ballot question." For 

support, WEC points us to Minnesota law applying a similar 

standard. See Breza v. Kiffmeyer, 723 N.W.2d 633, 636 (Minn. 

2006).
No. 2020AP2003.awb

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¶180 In contrast, WJI cites language in Ekern itself as 

providing the operative standard: "It is clear and unambiguous, 

so as to enable voters to vote intelligently." Ekern, 187 Wis. 

at 204. "[T]he principal and essential criterion consists in a 

submission of a question or a form which has for its object and 

purpose an intelligent and comprehensive submission to the 

people, so that the latter may be fully informed on the subject 

upon which they are required to exercise a franchise." Id. at 

201-02; Thomson, 264 Wis. at 659.

¶181 Under either formulation, the ballot question here 

fails. I begin my analysis with the essential fact, recognized 

by the circuit court, that the victim's rights amendment does 

more than just increase the rights of crime victims. The 

majority fails to acknowledge this. Instead, it opines: "all 

of the provisions of Marsy's Law relate to expanding and 

defining victim's rights and tend to effect and carry out this 

general purpose." Majority op., ¶6. 

¶182 Several provisions of the amendment do, in fact, 

decrease the rights afforded to criminal defendants. For 

example, the amendment limits the rights of criminal defendants 

in the following ways:

 Where the previous version of § 9m stated that 

"[n]othing in this section, or in any statute enacted 

pursuant to this section, shall limit any right of the 

accused which may be provided by law," the new version 

protects only the federal constitutional rights of the 

defendant, not the broader protection of "any 
No. 2020AP2003.awb

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right . . . provided by law." The change allows for 

a limitation of the defendant's rights that are 

provided by statute, or by the Wisconsin Constitution, 

which may afford greater protections than its federal 

counterpart. See State v. Eason, 2001 WI 98, ¶60, 245 

Wis. 2d 206, 629 N.W.2d 625.

 The amendment adversely impacts the defendant's 

ability to obtain discovery, giving victims the 

constitutional right "[t]o refuse an interview, 

deposition, or other discovery request made by the 

accused or any person acting on behalf of the 

accused." Wis. Const. art. I, § 9m(2)(L).

 The circuit court's ability to sequester a victim 

witness where "sequestration is necessary to a fair 

trial for the defendant" has been removed.

¶183 The new language that allows a victim to essentially 

refuse interviews and discovery requests would certainly seem to 

have a detrimental effect on the rights of the accused. 

Similarly, the previous constitutional language allowed a 

circuit court to sequester a victim from the courtroom to 

preserve the fair trial right of the defendant. This right is 

now gone. 

¶184 Shouldn't the voters be informed that a constitutional 

amendment diminishes the rights of criminal defendants before 

voting on it? In light of these provisions, it is apparent that 

the amendment serves dual "purposes," both expanding the rights 

of victims and diminishing those of the accused.
No. 2020AP2003.awb

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¶185 By any definition of the word, such a change is an 

"essential" aspect of an amendment. Accordingly, a voter would 

need to be informed of the change before voting "intelligently." 

Its lack of inclusion has the significant potential to mislead 

voters as to the consequences of their votes.

¶186 The majority tersely disposes of this argument within 

the span of a single paragraph. See majority op., ¶55. It does 

so with a one-two punch, first setting up a false dichotomy 

followed closely by a strawman. To explain, the majority 

directs the reader not to the question of "whether the amendment 

was explained, but whether it was 'submitted' to the people." 

Id. Yet according to the majority, if an amendment is not 

properly explained (i.e., it is "fundamentally counterfactual"), 

that does not constitute "submission." In other words, an 

examination of the "explanation" offered is not irrelevant to 

the "submission" question, but is instead part and parcel of 

such a determination.

¶187 Next, the majority advances that "[n]othing in the 

constitution requires that all components be presented in the 

ballot question." Id. This is a strawman. I do not argue, and 

I do not understand any of the parties to be arguing, that all

components of an amendment be presented in a ballot question. 

Our precedent establishes, and I maintain, that only "every 

essential" is required. 

¶188 When an amendment to the state constitution is placed 

before the voters for an up or down vote, it is imperative that 

the voters know what they are voting on. It can be a difficult 
No. 2020AP2003.awb

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exercise to distill a complex and multifaceted constitutional 

amendment down to a simple description that will fit on the 

ballot, yet still informs voters of the true nature of the 

question.

¶189 Nevertheless, the ballot question is the only text 

that all voters are guaranteed to see. See Craig M. Burnett & 

Vladimir Kogan, When Does Ballot Language Influence Voter 

Choices? Evidence from a Survey Experiment, 32 Pol. Commc'n 

109, 112 (2015). Those voters who do not research a proposed 

amendment beforehand will see the ballot question, and only the 

ballot question, prior to casting their vote. This gives the 

framing provided by the ballot question considerable power in 

shaping how voters think about and understand the question 

presented.

¶190 That ballot question language possesses this power to 

frame the issue in turn dictates that the language provide an 

accurate picture of the measure that is placed before the 

voters. To this end, we should maintain the vitality of 

judicial review in the ballot question context, rather than 

essentially surrendering our responsibility for judicial review 

to the legislature. Democracy works best when voters are fully 

informed. The majority opinion takes a step backward in this 

endeavor. 

¶191 For the foregoing reasons, I respectfully dissent.
No. 2020AP2003.awb

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