Articles on Wisconsin legal history
The beginnings of Wisconsin's progressive tradition: The 1848 Constitution
Written by Joseph A. Ranney, Attorney at Law
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Robert M. LaFollette, who was Wisconsin's governor from 1901 to 1906 and a U.S. senator from 1906 until his death in 1925, is usually credited with being the founder of Wisconsin's progressive tradition. Few people realize that tradition began long before LaFollette. The authors of Wisconsin's 1848 state Constitution considered and adopted many reforms which were radical for the time. In many ways they created the tradition of active, innovative government which Wisconsinites have supported ever since.
Elective judges. In 1848, only one American state (Mississippi) allowed the people to elect their own judges. In Great Britain, from which America borrowed much of its early law, judges were considered servants of the king and were appointed by him. Following Britain's lead, American states placed judicial appointments in the hands of governors and legislators.
The framers of Wisconsin's Constitution believed the people deserved better. A committee of the 1846 constitutional convention recommended that all the state's judges be elected, not appointed. "Confidence in the people and a belief in the political perfectibility of man," stated the committee, "are the basis of our institutions. Every man should be made to feel that he is a citizen, a part of the state, and that a portion of its sovereignty resides in him." The convention agreed.
Homestead exemption. In the 1840s debt was thought of very differently than it is today. To be in debt was considered a sign of moral degeneracy rather than simple bad luck, and in many states debtors could be put in jail until they paid up. Wisconsin itself did not abolish imprisonment for debt until 1837.
At the 1846 convention several delegates proposed that Wisconsin adopt a homestead exemption —that is, a provision that debtors could keep certain basic necessities, such as a home and basic tools for earning a living, no matter how deep in debt they were. Texas had recently created such an exemption for the first time, and it seemed to work well. Some delegates objected that a exemption would violate the rights of creditors to be paid what they were owed. It would "offer a splendid bounty to all the villains in the world to resort to Wisconsin." Wisconsin should not follow Texas, "that noted asylum for all the desperadoes in the country."
Exemption supporters retorted that opponents assumed, wrongly, that making men "independent makes rascals of them." Supporters argued that the exemption would help the poor con-tinue to contribute to the economy without hurting creditors unduly. The exemption was ultimately left out of the Constitution, but it was quickly enacted into law by the Legislature after statehood.
Women's property rights. In the 1840s women had virtually no rights to control their own property. The law treated them simply as appendages of their husbands and assumed only males were competent to handle business affairs.
In the 1846 convention, several delegates proposed that married women be given the right to control their own property for the first time. They did so more out of a desire to protect those assets from the husband's creditors than a desire to give women more power, but even so their proposal represented a major advance in thinking with respect to women. Opponents argued that giving women control over property would destroy marriages and weaken the family. David Noggle, a delegate from Janesville, lampooned this argument:
"Who believes [married women's property rights] will make a fiend of a worthy wife? No one believes it; it is all humbug. Sir, I do contend that for true merit the female sex stand much higher than the male. They know but little of the low, truckling and vacillating demagogism that pervades the male portion of creation, and in that particular their ignorance is a jewel."
Like the homestead exemption, the women's property provision was ultimately left out of the Constitution but it was enacted into law soon after statehood and has remained a part of Wisconsin's law ever since.
Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.