¶ 37. (concurring). In 1996 the Wisconsin legislature passed a statute mandating six-person juries in misdemeanor cases. Wis. Stat. § 756.096(3)(am) (1995-96). In 1998 this court held the statute unconstitutional as a violation of art. I, § 7 of the Wisconsin Constitution. State v. Hansford, 219 Wis. 2d 226, 230, 580 N.W.2d 171 (1998).
¶ 38. This case is one of many in which six-person juries convicted defendants of crimes before announcement of the Hansford decision. Juergen Huebner seeks to overturn his conviction on the grounds that trial by a six-person jury deprived him of a fundamental constitutional right. The majority rejects his request, holding that the defendant waived his right to a twelve-person jury by failing to make a timely objection.
¶ 39. I agree with the result here but for different reasons. In my view, the defendant is not entitled to a new trial because the statute authorizing six-person juries in misdemeanor cases was constitutional at the time his case was tried. The Hansford decision was a serious mistake and should be overruled.
*501I-I
¶ 40. On July 13, 1787, Congress approved "An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio." The "Northwest Ordinance" provided principles to govern the territory that evolved into several north central states, including Wisconsin. The Northwest Ordinance contained fundamental principles of civil liberty that would "forever remain unalterable, unless by common consent." Section 13, ¶¶ 1-2.
¶ 41. Article II under Section 13 reads in part: "The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury."
¶ 42. In 1836 Congress passed "An Act establishing the Territorial Government of Wisconsin." In Section 12 of the Act, Congress provided that the inhabitants of the Territory were entitled to the rights, privileges, and advantages contained in the Northwest Ordinance.
¶ 43. The Wisconsin Constitution was adopted in March 1848, two months before Wisconsin officially became a state. The original document contained several provisions that are relevant to this case. Article I, § 5 provided for trial by jury: "The right of trial by jury shall remain inviolate; and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases, in the manner prescribed by law."
¶ 44. Article I, § 7 provided for the rights of the accused:
In all criminal prosecutions, the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation *502against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment or information, to a speedy public trial by an impartial jury of the county or district wherein the offence shall have been committed; which county or district shall have been previously ascertained by law.
¶ 45. Article I, § 8 described presentment or indictment in criminal cases: "No person shall be held to answer for a criminal offence, unless on the presentment or indictment of a grand jury, except. . .in cases cognizable by justices of the peace."
¶ 46. These sections recognized different levels of prosecution and offense and different rights depending upon the circumstances. Then as now, art. I, § 7 begins with the phrase, "In all criminal prosecutions." This language is broader than the phrase "in prosecutions by indictment or information" contained in the same section. Article I, § 8 suggested that "cases cognizable by justices of the peace" need not be commenced by "the presentment or indictment of a grand jury," presumably because those cases were less serious.
¶ 47. Article VII of the new constitution established the structure and powers of the Wisconsin judiciary. Section 2 provided that the judicial power of the state, both as to matters of law and equity, was vested in a supreme court, circuit courts, courts of probate, and in justices of the peace. Section 15 described justices of the peace and gave to them "such civil and criminal jurisdiction as shall he prescribed by law" (emphasis added).
¶ 48. Reading these provisions together, we see that the 1848 constitution ensured the accused "in prosecutions by indictment or information" the right to *503"trial by an impartial jury." It did not, however, require "presentment or indictment" in cases cognizable by justices of the peace. The constitution gave the legislature the authority to determine by law what cases were cognizable by justices of the peace, and hence what cases were not accompanied by presentment or indictment and what cases were not guaranteed a jury trial. Unless one is prepared to say that there is no distinction between "all criminal prosecutions" and "prosecutions by indictment or information," the Wisconsin Constitution did not unequivocally bestow upon all criminal defendants the constitutional guarantee of a jury trial. Even as it declared rights, the 1848 constitution afforded the legislature the' power to modify those rights in certain cases.
II
¶ 49. The original constitution not only assigned general legislative power to a senate and assembly but also empowered the new legislature to change existing law. Article XIV, § 2 authorized change in existing statutory law: "All laws now in force in the territory of Wisconsin, which are not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature" (emphasis added).
¶ 50. Section 13 authorized change in the common law: "Such parts of the common law as are now in force in the territory of Wisconsin; not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature" (emphasis added).
¶ 51. Common law prevails in Wisconsin until changed by statute. Aaby v. Citizens Nat'l Bank, 197 Wis. 56, 57, 221 N.W. 417 (1928). A rule of common law *504persistently embraced by text writers and the courts of sister states should not be ignored "unless a legislative intent to abrogate it has been clearly expressed." Nickel v. Hardware Mut. Cas. Co., 269 Wis. 647, 649, 70 N.W.2d 205 (1955) (citing Kappers v. Cast Stone Constr. Co., 184 Wis. 627, 200 N.W. 376 (1924)). To abrogate the common law, the intent of the legislature must be clearly expressed, either in specific language or in such a manner as to leave no reasonable doubt of the legislature's purpose. Sullivan v. School Dist. No. 1 Tomah, 179 Wis. 502, 506, 191 N.W. 1020 (1923).
¶ 52. Our decisions unquestionably show great deference to the common law, but the common law is not immutable. The legislature may modify or repeal the common law, as long as the change does not conflict with the constitution.
Ill
¶ 53.. In 1848 the first Wisconsin legislature engaged three people as commissioners to collate and revise all the public acts of the state of a general and permanent nature, in force at the close of the session. Revised Statutes of Wisconsin (1849) at vii. The commissioners reported their work to the second legislature. The second legislature eventually approved the revisions. Consequently, a substantial portion of the law enacted in 1849 was carried over from the Wisconsin Territory.
¶ 54. In 1849 the legislature expressed its intent to have six-person juries in certain cases. Chapter 86 of the Revised Statutes of Wisconsin (1849) related to county courts. Section 16 of Chapter 86 provided:
If an issue of law be made in the cause, it shall be tried by the court; if an issue of fact, it shall on *505demand of either party, as hereinafter provided, be tried by a jury to consist of not more than six persons; and if no jury be demanded by either party, the issue shall be tried by the court.
¶ 55. Chapter 88 of the Revised Statutes of Wisconsin (1849) related to "Justices' Courts," meaning justices of the peace. Section 80 of this chapter provided:
In every civil cause brought before a justice of the peace, after issue joined, and before the justice shall proceed to an examination of the testimony, or to inquire into the merits of the cause,-either party, on first paying to the justice the jury fees in advance, which shall be taxed against the losing party, may demand that the cause be tried by a jury of six men.
¶ 56. Chapter 89 of the same Revised Statutes related to criminal proceedings in Justices' Courts. Section 10 of this chapter provided:
After the joining of issue, and before the court shall proceed to an investigation of the merits of the cause, unless the accused shall expressly waive his right to a trial by jury, the court shall direct the sheriff or any constable of the county to make a list in writing, of the names of eighteen inhabitants of the county qualified to serve as jurors in the courts of record of this state, from which list the complainant and accused may each strike out six names.
Section 11 then provided:
In case the complainant or the accused shall neglect to strike out such names, the court shall direct some suitable, disinterested person, to strike out the names for either or both the parties so neglecting; and upon such names being struck out, the justice *506shall issue a venire, directed to the sheriff or any constable of the county, requiring him to summon the six persons whose names shall remain upon such list, to appear before such court at the time and place to be named therein, to make a jury for the trial of such offence.
¶ 57. There can be no mistake about the legislative intent in these statutes, which were approved one year after the Wisconsin Constitution was adopted and carried over from territorial law.
> HH
¶ 58. There is now a well-established methodology for interpreting provisions of the Wisconsin Constitution. "In interpreting a constitutional provision, the court turns to three sources in determining the provision's meaning: the plain meaning of the words in the 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." Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996); State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984). Contemporaneous legislative construction of a constitutional provision is entitled to great deference. Payne v. Racine, 217 Wis. 550, 558, 259 N.W. 437 (1935); State ex rel. Pluntz v. Johnson, 176 Wis. 107, 114-15, 186 N.W. 729 (1922).
¶ 59. In the December 1853 term, the supreme court decided Norval v. Rice, 2 Wis. 17, addressing the constitutionality of Section 16 of Chapter 86, which provided for a jury of six men instead of twelve in county court civil cases. The court ruled that the six-person jury violated art. I, § 5, which provided in part: *507"The right of trial by jury shall remain inviolate." Id. at 19.
¶ 60. The court traced the history of the jury to "before the Norman Conquest." Id. at 20. It cited Lord Coke, Crabb's History of English Law, Blackstone's Commentaries, Professor Woodesson's Lectures on the Law of England, Sir Matthew Hale, and Chitty's Case Law for the proposition that at common law a jury consisted of twelve men. The court quoted 1 Chitty's C.L. 505 to this effect: "The petit jury when sworn, must consist precisely of twelve, and is never to be either more or less on the trial of the general issue." Id. at 21. The court concluded:
In our view of the provisions of the Revised Statutes concerning County Courts, where they restrict the jury to six persons, they conflict with the enjoyment of a constitutional right, secured to every citizen, namely, the right of trial by a jury of twelve men; and we therefore hold, that when the defendant in the court below was denied a trial by a jury consisting of twelve men, he was deprived of a right secured to him by the Constitution.
Id. at 23.
¶ 61. Basing its decision on language in § 5 of art. I, the court asserted that, "the trial by jury in a court of record which has been enjoyed before the adoption of the Constitution, remains inviolate." Id. The court thus implied that common law notions of the jury may not be altered by the legislature.
¶ 62. There are several troublesome elements to the Norval decision. First, although the court discussed juries in the Wisconsin Territory, conceding that in justice of the peace courts, juries "of six only" were allowed in all cases except "actions of forcible entry and *508detainment,"1 it nonetheless attached no significance to the fact that these six-person juries existed in the territory before the adoption of the Wisconsin Constitution, operated for years under the principles of the Northwest Ordinance, and continued as part of state law pursuant to art. XIV, § 2 after the constitution was adopted.
¶ 63. Second, the court made no reference to art. XIV, § 13, which gives the legislature power to change the common law. It disregarded the power of the legislature to change common law until it addressed a law it liked, the 1850 act providing for the protection of married women, an act that overturned a common law rule that "marriage deprived the wife of the right to maintain an action in her own name alone, upon contracts *509made by her before marriage." Id. at 24. The court recognized that law as valid.2 In short, the court not only discounted the practices in existence at the time of the writing of the constitution but also disavowed the earliest interpretation of the constitution in the first laws passed following adoption.
¶ 64. Third, the court failed to discuss the presumption of constitutionality.3 The court simply observed that it was "a delicate matter for courts to declare a legislative enactment unconstitutional." Id. at 23.
*510V
¶ 65. In Hansford, this court relied heavily on Norval. 219 Wis. 2d at 237 — 39. It noted that Edward V. Whiton, Chief Justice of the three-member supreme court that decided Norval in 1853, was a delegate at the 1847-48 convention that redrafted the Wisconsin Constitution.4 Id. at 239. Hansford did not mention, however, that five members of the legislature that passed the six-person jury bills — Senators Warren Chase and George W. Lakin and Representatives Paul Crandall, James Fagan, and James D. Reymert — were also members of the 1847-48 convention.
¶ 66. The Hansford opinion cites Bennett v. State, 57 Wis. 69, 75, 14 N.W. 912 (1883), Jennings v. State, 134 Wis. 307, 309, 114 N.W. 492 (1908), and State ex rel. Sauk County Disk Attorney v. Gollmar, 32 Wis. 2d 406, 409, 145 N.W.2d 670 (1966), for the proposition that a criminal defendant's right to a trial by jury as guaranteed by art. I, § 7 of the Wisconsin Con*511stitution "is the right to a jury of 12 persons." Hansford, 219 Wis. 2d at 241. Each of these cases uses Norval, a civil case that relied on a different section of the constitution, as precedent. Moreover, Bennett involved a first-degree murder felony, not a misdemeanor, so that it is not directly on point.
¶ 67. Hansford also invoked State v. Lockwood, 43 Wis. 403, 405 (1877), which observed that: "The right of trial by jury. . .is secured by the constitution, upon a principle of public policy, and cannot be waived" (emphasis added). The emphasized language, not quoted in Hansford, is in direct contradiction to the holding in this case. It also directly contradicted art. I, § 5, which provided that "a jury trial may be waived by the parties in all cases," as well as Chapter 89, Section 10 Revised Statutes (1849), which authorized waiver in a criminal case.
¶ 68. This court is not bound by common law principles that the legislature was empowered to change and did change. We are not shackled to precedent that is plainly mistaken, particularly when that precedent disregards and disrespects a coequal branch of government that has clearly and constitutionally expressed its intent. If IVoruaZ is viewed as good law, we are likely to see additional challenges to Wisconsin statutes providing for juries of less than twelve.
VI
¶ 69. Wisconsin joined the Union on May 29, 1848, as the 30th state. 1999-2000 Wisconsin Blue Book at 204. Twenty-nine states preceded Wisconsin. In several of these states, early court decisions interpreted the right of trial by jury to require twelve jurors. Vaughn v. Scade, 30 Mo. 600 (1860); Opinion of the Justices, 41 N.H. 550 (1860); Cruger v. Hudson River *512R.R. Co., 2 Kern 190 (N.Y. Ct. App. 1854); Work v. State, 2 Ohio St. 296, 59 Am. Dec. 671 (1853); State v. Cox, 8 Ark. 436 (1848).
¶ 70. In Williams v. Florida, 399 U.S. 78, 86 (1970), however, the Supreme Court held that the Sixth Amendment right to an impartial jury did not explicitly codify a twelve-member jury as a constitutional requirement. The Court said: "We hold that the 12-man panel is not a necessary ingredient of 'trial by jury,' and that [Florida's] refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth."
¶ 71. There are now juries of less than twelve in a number of the 29 states that preceded Wisconsin into the Union. See Brown v. State, 684 N.E.2d 529 (Ind. App. 1997); Carter v. State, 702 S.W.2d 774 (Tex. App. 1986); O'Brien v. State, 422 N.E.2d 1266 (Ind. App. 1981); State ex rel. Columbus v. Boyland, 391 N.E.2d 324 (Ohio 1979); Williams v. State, 224 So. 2d 406 (Fla. App. 1969). These juries have been effected without modifying the state constitutions.
¶ 72. I freely acknowledge that strong arguments can be made in behalf of twelve-member juries. These arguments may be stronger and better than the arguments for six-member juries. But public policy was not the issue in Hansford. The issue in Hansford was whether the Wisconsin Constitution deprives the Wisconsin legislature of the power to mandate jury trials of six persons in misdemeanor cases — beyond a reasonable doubt. In answering this question, our court erred. I believe this court should have upheld the 1996 legislation.
¶ 73. As the majority opinion correctly states at ¶ 17: "Huebner has not lost his right to a jury trial." His *513right to a jury trial remained inviolate. Huebner received a fair trial by a constitutional jury in a misdemeanor case. Consequently, I concur in the judgment to affirm his conviction.
Justice of the peace courts had jurisdiction in criminal cases and tried minor crimes pursuant to Chapter 89 of the Revised Statutes of Wisconsin (1849). Section 2 of this chapter provided: "Justices of the peace shall have power to hold a court, subject to the provisions hereinafter contained, to hear, try and determine all charges for offences arising within their respective counties, where jurisdiction is conferred upon them by any law of this State."
Section 8 of Chapter 89 further provided: "If the plea of the accused be not guilty, and no jury be demanded by him, the said court shall proceed to try such issue, and to determine the same according to the evidence which may be produced against and in behalf of such accused."
Section 28 of Chapter 89 named specific minor crimes presented before justices of the peace:
No assault, battery or affray, shall be indictable, but all such offences shall be prosecuted and determined in a summary manner, by complaint made before a justice of the peace, and on conviction thereof, the offender may be punished by fine not less than five dollars, nor more than fifty dollars, according to the nature of the offense.
In retrospect, it is quite evident that we have changed many elements of the common law with respect to juries. Modern juries do not consist of twelve men, contrary to common law. Persons with criminal convictions are not automatically disqualified as prospective jurors, contrary to common law. See State v. Mendoza, 227 Wis. 2d 838, 851 n.7, 596 N.W.2d 736 (1999). In 1859, this court recognized that the legislature could change the manner of selecting juries. Perry v. State, 9 Wis. 15 (1859). The court said:
[W]e think the manner of designating the persons who are to act as jurors.. .is clearly within the control of the legislature; and that the constitutional right of every accused person to a jury trial, is not impaired merely because those persons have been selected instead of drawn. Or, in other words, we think that in order to preserve the right of trial by jury, it is not necessary to preserve any particular mode of designating jurors, even though such mode may have been in force at the time of the adoption of the constitutional provision. All that the right includes, is a fair and impartial jury, not the particular mode of designating it.
9 Wis. at 17-18.
As this court observed in Association, of State Prosecutors v. Milwaukee County, 199 Wis. 2d 549, 557, 544 N.W.2d 888 (1996), "A statute is presumed to be constitutional. . . .When attacking the constitutionality of a statute, the contesting party must prove the unconstitutionality of the statute beyond a reasonable doubt."
Edward V. Whiton served in the Territorial Legislature. In 1839, he was commissioned to compile all the laws passed by the legislature at the 1838-39 session. Statutes of the Territory of Wisconsin (1839). Whiton recorded "An Act concerning justices of the peace." Id. at319. Section 2 of Article Sixth of the Act reads in part:
In every action to be brought, by virtue of this act, it shall be lawful for either of the parties to the suit, or the attorney of either of them, after issue joined, (and before the court shall proceed to inquire into the merits of the cause,) to demand of said court, that said action be tried by a jury of six jurors, on first paying to the justice the jury fees in advance, which shall be taxed against the losing party, and upon such demand, the justice shall direct the sheriff or any constable of the county who may be present, or if no officer be present, the justice may appoint a suitable person to perform the duties required by this section.
Id. at 327.