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Strict Constructionism Takes Trouncing In Wisconsin Court Election

April 13, 2020

It was a Supreme Court election outcome that no one could have predicted, given the unique circumstances that Wisconsin found itself at the time of April balloting.  With a pandemic shutting down larges swaths of Wisconsin,  partisan skirmishes playing out in the courts, and deep divides among the electorate it would have been wise to bet on a slim win by the conservative candidate, Daniel Kelly.   But in a stunning victory challenger Jill Karofsky, a Dane County Circuit Judge, will make top-of-the fold headlines for the Tuesday morning newspapers.

There will be many ways to review the election, and strive to understand what allowed for the conservative candidate to get dismissed from his job so soundly.   Part of the reason can be found in the three Milwaukee suburban counties, where many voters just stayed home.  Not even tweets from Donald Trump on Election Day could gin up the appetite of those voters.  With no Republican presidential primary it was in the WOW counties where Karofsky seriously outpaced Governor Tony Evers’ count in 2018, and Hillary Clinton’s numbers in 2016.

One county alone shows why Democrats can genuinely smile.  In Kenosha County Karofsky won big, the same place where Trump prevailed in 2016.  In 2019, Brian Hagedorn the conservative-backed candidate, won that county with 734 votes.  This election a liberal judge won with nearly 5,000 votes.

Many have reason to well-argue why the race matters going forward towards November.  If for no other reason the psychological impact will energize the Democratic base.   I, however, have a differing perspective as to why this race has such importance to our state.

Kelly views the State Constitution as a cold rock-like document, and applies his legal reasoning with a strict interpretation that runs counter to the fact we are dealing with a living document.

Conservatives like to consider  ‘original intent’ as an intellectual concept, and insist those appointed to the bench follow ‘strict constructionist’ thinking.  This idea is a disservice to the state, not to mention a slap at the framers of the national Constitution, and those here in the Badger State.  Kelly sided with the view that reigning in the courts from ‘liberalism’ is a positive outcome, but never seemed to recognize that allowing conservatives license to use ‘original intent’ can also be viewed as a weapon when used by justices.   

To state, as the ‘originalists’ do, that the words of the Constitution do not evolve with time is a seriously flawed idea.  To pretend that our state with current ideas and events does not necessitate a Constitution that bends and adapts within the framework of guiding principles is one of the most bizarre and dangerous concepts that has ever been suggested.  But that was the type of legal foundation Kelly represented.   And that is the primary reason I am very pleased with the election victory of Karofsky.

Pragmatic and logical voters made a very strong statement with their understanding that past decisions made by the courts, public needs and expectations, along with the larger values that were implied in our Constitution, are all needed to be used by judges when constructing rulings.

When voters cast ballots at this trying time in Wisconsin they made a solid choice for the court.  They also gave added support for our living Constitution.

I want to say thank you to each voter who cast a ballot, regardless of party or candidate.  Civic duty is not conducted in only the best of times, but the best of who we are can always shine.   So thanks!

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