By Margo Kirchner

Russ Feingold and Peter Prindiville are raising concern about the movement toward a constitutional convention and progressives’ failure to take the movement seriously. 

The two discussed constitutional amendments and the contents of their book, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It, with Mike Gousha at an “On the Issues” event at Marquette University Law School on Tuesday.

Feingold is president of the American Constitution Society and a former U.S. senator from Wisconsin. Prindiville is a Washington, D.C., attorney and fellow at the Stanford Constitutional Law Center.

Article V of the Constitution sets forth two ways to amend the document: (1) a proposed amendment supported by two thirds of both houses of Congress, or (2) “on the Application of the Legislatures of two thirds of the several States,” a convention. 

Either path requires subsequent ratification by the legislatures or conventions of three-fourths of the states.

Since the signing of the Constitution in 1787, only 27 amendments have been ratified, with 10 of those a part of the bill of rights in 1791. As noted by Feingold at the event, there has not been a new proposed and ratified amendment for over 50 years.

No constitutional convention has ever occurred.

However, state legislatures have been quietly passing applications for one.

The Wisconsin Legislature passed a joint resolution in January 2022 calling for a convention to curtail the federal government. Its application for a convention was the subject of a recent dispute between legislators and Secretary of State Doug La Follette about mailing the resolution to federal officials.

At the On the Issues event Feingold and Prindiville called any Article V convention dangerous for several reasons.

First, the Constitution provides no rules on how such a convention would be held, they said. The Constitution does not clearly state how delegates are appointed, they said. Nor does it indicate what the parliamentary rules would be or whether anything higher than majority vote would be required to pass new language. “There are no rules for this,” Feingold stated, while Prindiville added that there are is no prescribed forum to resolve disputes that may occur—nothing indicates that the Supreme Court would have any involvement, for instance.

Feingold and Prindiville pointed out that Article V does not provide for involvement of “We the People.” Delegates could be chosen by legislatures, with no citizen involvement, vote, or approval. Feingold noted that the governor “has nothing to do with this.” It’s just the legislatures, and gerrymandered legislatures may not reflect the will of the people, he said.

Also, nothing in the Constitution restricts what gets discussed or reworked at a convention. Except as to equal voting in the Senate (specifically noted in Article V), everything could be “on the table” and “fair game,” Feingold and Prindiville said. Nothing in the Constitution provides a means for reining in what gets discussed and decided at a convention, they said.

A “runaway convention” could include lawyers altering language and rights that would have a profound effect, they warned. Prindiville identified as an example possible elimination of federal-court jurisdiction over civil rights cases. 

Then there is the issue of the groups currently pushing for a convention—groups that Feingold and Prindiville say are well funded and aim to gut the federal government.

In addition to state legislatures’ under-the-radar applications for a convention, various groups pushing for a convention have been holding mock events, grooming people to be convention delegates. According to Feingold, the “far right is very good at long-term planning.”

Feingold and Prindiville warned that Americans need to take this movement seriously. Progressives cannot assume that Article V will not be used, they said. Article V is in the Constitution and needs to be discussed and debated now, they said. They want to make amending the Constitution a topic of political debate and even discussion at the dinner table.

Feingold said that those who may call him alarmist have not learned from history. He pointed to the lack of importance given to the “archaic” Second Amendment for years as an example.

To progressives who may support a convention to eliminate the electoral college or proclaim that corporations are not people, Feingold again pointed to the lack of involvement by “the people” in the convention process and the likely control by legislatures and well-funded interest groups.

In addition to raising concern about the movement toward a convention, Feingold and Prindiville propose a way forward by altering Article V to make amendment easier and available to the people rather than just legislators. Feingold noted that the U.S. Constitution is one of the hardest to amend, and Prindiville noted that even George Washington admitted that the Constitution as first ratified had flaws. ​

By Margo Kirchner

First of two parts

The capture and escape of Joshua Glover in southeastern Wisconsin in 1854 sparked an abolitionist outcry and an attempt by the Wisconsin Supreme Court and Legislature to nullify federal slavery law.

Two years earlier, Glover had escaped from slavery in St. Louis and established a life in freedom in Racine, but federal deputy marshals captured him in his home under the Fugitive Slave Act of 1850. Outraged citizens of Milwaukee and Racine broke Glover out of jail and sent him on the Underground Railroad. Glover eventually reached safety in Canada.

Although Glover departed Wisconsin by mid-April 1854, his legal impact here had just begun. His escape from custody led to a struggle between state and federal authorities and the state’s defiance of the U.S. Supreme Court. 

Benammi Stone Garland purchased Glover, then known only by his first name, on January 1, 1850, on the steps of the St. Louis Courthouse. In May 1852, Glover escaped from Garland’s farm and crossed the Mississippi River to Alton, Illinois. Garland placed a reward notice in a Missouri newspaper on May 19, 1852, and ran the notice for about two weeks.

Glover traveled about 350 miles to Racine, arriving in late spring or early summer. Racine was a bustling community of 5,000 people due to its trading post, harbor, and plank road to Janesville. About 60 Black or mixed-race adults were recorded in the city’s 1850 census.

Glover found a job at a sawmill on the Root River a few miles out of town. He chose his last name and had his own home, where he lived freely for two years. 

Wisconsin’s antislavery movement was active by the early 1850s. The Burlington Liberty Association, the first antislavery society in the state, had been around since 1844. Sherman Booth published an abolitionist newspaper in Milwaukee called the Free Democrat. Chauncey Olin published the abolitionist American Freeman newspaper in Waukesha. The Underground Railroad (UGRR) stopped in Waukesha and elsewhere. And, as described by authors Ruby West Jackson and Walter T. McDonald, Racine was a “hotbed of abolitionist sympathizers.”*

Clayborn Benson, executive director of the Wisconsin Black Historical Society, said in a recent interview that abolitionists were motivated by several reasons. Some opposed slavery on religious grounds, while others opposed slavery for political purposes as part of the developing Republican Party. Some were European immigrants with ancestors who had been enslaved, while “free-soilists” did not want to compete against the South’s unpaid labor when it came to agriculture. 

Although Wisconsin’s antislavery movement was vigorous, Blacks nevertheless were not close to being treated equally with Whites. They had the right to assemble and act as jurors, said Benson. But Blacks were still denied the right to vote, and Whites did not want Blacks living nearby. In 1850 Milwaukee, about 100 Blacks lived in a city of 20,000.

Political battles raged in the nation over slavery in territories and newly formed states. Sentiment ran strongly in Wisconsin against slavery and its reach northward, and there was strong opposition  to returning  escaped slaves who had become Wisconsin residents. Many people in Wisconsin wanted “no part of enslavement,” said Benson.​

Slavery’s reach from the South, however, found support in the U.S. Constitution and federal law.
Article IV, section 2 of the U.S. Constitution provided that a slave in one state would not be discharged from service by escaping to another state and would be delivered back to his or her owner on demand. The Fugitive Slave Act of 1793 established a process for slave owners to reclaim runaway slaves, but in southern eyes it did not have teeth.

As part of the Compromise of 1850 between northern and southern states, a new fugitive slave act beefed-up the rights of slave owners to recover escaped slaves. A slave owner could obtain a court order in his home state confirming the status of a slave, then proceed to find and arrest the escapee with the assistance of federal marshals. A U.S. commissioner, rather than a regular district judge, could determine the fate of the person. Notably, the commissioner received a larger fee for sending a fugitive to slavery than for releasing him or her. The alleged fugitive slave was denied a jury trial or any other opportunity for testimony or defense. Moreover, the act created criminal penalties for citizens who helped escaped slaves or interfered with their return.

This is the first of two posts about Joshua Glover. Read the second one here.


The Fugitive Slave Act of 1850 “brings fire” to northern abolitionists and made them determined to help fugitives reach Canada, said Benson. Wisconsin politics included disagreements regarding whether the state had to defer to the federal government’s efforts to enforce the 1850 act. From 1850 to 1860 “there is turmoil,” Benson said. 

Garland remained intent on reclaiming Glover under the 1850 act. He somehow learned that Glover was in Wisconsin and provided a St. Louis court with proof of his ownership and Glover’s escape. The court ordered Glover’s removal from Wisconsin. 

Garland arrived in Milwaukee in early March 1854 with a St. Louis police officer and the Missouri court order. He swore out an affidavit and presented his paperwork to U.S. District Judge Andrew G. Miller, who issued a warrant for Glover’s arrest. 

Deputy U.S. Marshal Charles Cotton accompanied Garland and the St. Louis police officer to Racine, where they were joined by another federal deputy marshal.

Garland and the officers surprised Glover at his home on Friday, March 10, 1854. After a physical struggle the officers subdued Glover and led him away in shackles. Several reports indicate that Glover was bruised and bloodied during the capture.

Possibly because of the small size of the Racine jail or the abolitionist forces in Racine, the captors transported Glover to Milwaukee County’s larger and stronger jail located in Courthouse Square (now Cathedral Square). ​

By Margo Kirchner and Gretchen Schuldt

WJI is launching a project to fill some of the holes of Wisconsin legal history. 

We're looking for the people and events that played significant but largely overlooked roles in the state's legal development. 

There are likely many holes that can be filled; we just don’t know about them yet because the people and events have been deleted or relegated to the background for decades or longer. Their stories need to be told so we have a more comprehensive view of Wisconsin legal history.
​
This project was inspired by the absence of diversity in the four murals, completed in 1915, that hang in the State Supreme Court. 

They depict historic events and that's all well and good, but the only mural that includes people of color depicts a murder trial where the defendant is a Native American and the person being celebrated is a White male judge, one with a somewhat cloudy historical reputation. 

The other murals celebrate events that occurred in different times and places.

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This mural represents Roman law, showing Caesar Augustus Octavius presiding over the trial of a soldier; the scene depicts all White men. ​

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There are a lot of people and historic events not recognized in the Supreme Court art. The murals are definitely a product of their time.

But it's a different time now. 

We want to hear about the great variety of people and events that shaped Wisconsin legal history. 

The people don’t have to be lawyers, but they must have played a significant role in advancing the cause of justice in Wisconsin. A plaintiff in a civil rights lawsuit could qualify, for example, or a defender of consumer rights, or someone who broke down a legal barrier so others could succeed. 

We also are looking for the significant events that brought about positive change in Wisconsin law or in Wisconsin’s legal system, whether those events occurred in or outside of a courtroom.

​White people, Black people, Brown people, men, women, children. Protests, court decisions, orations – let's hear about them!

We will publish information about these folks and events on our blog; funding willing, WJI eventually will transform the information into a book and make it available to the public. We also have various events in mind to celebrate these unsung characters and occasions.

Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need:

-The name of the person / identity or name of event
-A picture, if available
-A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history
-Where we can find out more about the person or event

We are closing this phase of the project on Nov. 15.

Please send the information to gretchen@wjiinc.org or mail it to WJI, P.O. 
Box 100705, Milwaukee, WI 53210

​Attorney General Josh Kaul appealed the judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The appeal will be heard by the District III appeals court. The state is allowed to choose the appeals court district as long as it is not the district that includes the court that issued the original decision.
District III is located in Wausau and consists of judges Lisa K. Stark , Thomas M. Hruz, and Mark A. Seidl.

In the trial court, WJI and the individual plaintiffs argued that the ballot question failed to warn voters that they were striking the state constitution’s only reference to a defendant’s fair trial, eliminating a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altering defendants’ rights set forth in other sections of the Wisconsin Constitution and state statutes.

Remington agreed, writing that the question at hand was “about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on.” 
Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives. Again, Remington agreed.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring multiple ballot questions. Remington agreed again, holding that under the Wisconsin Constitution two questions were required: one for expanding victims’ rights and one for narrowing rights of the accused.

Remington did not comment on the public policy of Marsy’s Law. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.
​
Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters.

By Margo Kirchner

In a decision with statewide impact, Dane County Circuit Judge Frank D. Remington on Tuesday struck down the “Marsy’s Law” constitutional amendment adopted by voters in April. 

Remington permanently enjoined the amendment, but ordered that it stay in effect pending appeal. His decision is here.

WJI, three individual voters, and Sen. Fred Risser brought the case, arguing that the April 2020 ballot question failed to fully and fairly inform the public of the essential components of the alleged victim’s rights amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject.

“Plaintiffs are pleased by the court's decision,” said their attorney, Dennis Grzezinski.  “It protects Wisconsin voters' important right not to be misled by a ballot question when they vote on proposed amendments to the state constitution.”

The suit named as defendants the Wisconsin Elections Commission and its chair, Dean Knudson; Secretary of State Douglas LaFollette; and Attorney General Josh Kaul. Kaul’s office represent the defendants.

The plaintiffs argued that although Wisconsin Supreme Court case law gives the Legislature discretion in formulating a ballot question, that discretion is not limitless.

The Supreme Court has said that a constitutional ballot question must “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” so the public “may be fully informed on the subject” on which it is voting. 

The plaintiffs argued that the April 2020 ballot question failed this test. They contended that the question failed to warn voters that the amendment struck the state constitution’s only reference to a “fair trial for the defendant,” eliminated a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altered defendants’ rights set forth in other sections of the Wisconsin Constitution or state statutes. 

Remington agreed, finding that the “question presented to the voters was insufficient because it did not reference the effect on the existing constitutional rights of the accused.”

Remington stated: “If the amendments to Wisconsin’s Constitution had just given crime victims meaningful and enforceable constitutional rights equal to the rights of the accused, (as suggested in the ballot question), this case would easily have been resolved. But, in this court’s opinion, the amendments went further and reduced and in some ways eliminated existing State Constitutional rights. From a constitutional perspective, this is a problem. Reducing or eliminating existing constitutional rights required the informed approval and ratification by Wisconsin voters.”

Remington found that the ballot question failed to communicate to voters that the amendments would eliminate the rights of those accused of a crime of their right to a fair trial and affect other existing rights in the Wisconsin Constitution. “The question today is about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on,” he wrote.

Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives.

Again, Remington agreed, stating that the question presented “did not accurately correspond to the language in the proposed amendments regarding the standard ‘no less vigorous.’”

“Clearly, if something is to be done no less vigorous it can be greater to that which is equal,” he said.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring separate ballot questions. The Wisconsin Constitution mandates 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.”

Remington agreed again: “These amendments, taken as a whole, required two questions 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.”

"This is a great victory for the citizens of Wisconsin and our criminal justice system,” said Craig Johnson, WJI president and an individual plaintiff in the case. “Since this referendum passed in April, confusion has reigned in the courts as prosecutors, judges and attorneys for the accused have tried to decipher the meaning of undefined terms and confusing procedural requirements. It has undermined protections for the accused and has not improved justice for victims.”

“Prior to this amendment's passage, we had a system that worked and provided meaningful protections for victims in this state. We don't need a 'one-size fits all' solution to a problem that doesn't exist imposed on us by a billionaire from out of state," Johnson added.

Remington made clear his decision was not about the merits of the victim's rights or defendant's rights as affected by the amendment. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

"Nothing in this opinion should suggest that the provisions relating to the rights of the accused should or should not be deleted," he wrote. "Nothing in this opinion should suggest that the provisions relating to victims and victim rights should or should not be made part of the State Constitution. The sole purpose of this opinion is to hold that if the provisions relating to the rights of the accused are to be repealed from the existing State Constitution it was constitutionally required that the voters be asked that question directly.

"In the end, it is ultimately up to the voters to determine what changes are to be made to the State Constitution."

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.

Remington’s decision means that Marsy’s Law amendments have been invalidated in three states.  The supreme courts of Kentucky and Montana struck Marsy’s Law due to violations of rules for constitutional amendments, but Kentucky adopted the measure again Tuesday. A court in Pennsylvania held that the ballot question for voters there did not adequately set forth contents of the amendment and contained too many matters for one question. An en banc Pennsylvania appellate court heard arguments on the case on June 10.

Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters. ​