The Moral Dimensions of the Wisconsin Public Trust Doctrine

Abstract

The Moral Dimensions of the Wisconsin Public Trust Doctrine explores the often-overlooked moral foundations of Wisconsin’s public trust doctrine—a constitutional commitment requiring the state to preserve its navigable waters for public benefit. While typically understood as a technical legal rule or historical remnant, this thesis argues that the doctrine embodies a deeper moral vision rooted in Wisconsin’s cultural identity and democratic values. Drawing on legal philosophers such as H.L.A. Hart, Tony Honoré, and David Schmidtz, the first chapter defines key terms—morality, law, and custom—and examines their interplay. It then proposes that the public trust doctrine should be interpreted not only as a legal norm but as a democratic axiom contributing to the endurance of democracy itself.

The second chapter provides a close textual reading of the Northwest Ordinance of 1787 and the Wisconsin Enabling Act, tracing the doctrine’s legal genealogy. It then analyzes core elements of the doctrine—navigability, state control, riparian rights, and scenic beauty—as expressions of a moral commitment to environmental stewardship and democratic governance. The final section identifies a distinctly “Wisconsinian” morality embedded in the doctrine, one that prizes conservation and participatory government.

Ultimately, this thesis contends that the Wisconsin public trust doctrine is not merely a legal duty but a moral dogma—shaping how Wisconsinites conceive of their relationship to nature, the state, and one another. It offers a compelling case study of how law can function as a vessel for moral values and a shared vision of the common good.