|Oregon State Bar Bulletin — APRIL 2009|
With that indictment of 150 years of governance in Oregon, I am writing to call for a new Oregon Constitution, written in a convention by some of the very people I’ve castigated, people whose former thought patterns will be refocused and elevated by the responsibility thrust upon them. Only the People can write and ratify a constitution. It’s time for a civics lesson for Oregonians.
Time to Cast Out Oregon’s Dual Demons
Nineteenth century Jacksonian democracy is the first. Early 20th century populism is the second. The Oregon Jacksonians of 1857 cemented into our constitution the least appealing traits of antifederalist thought: racial exclusivity, go-it-alone survivalism, suspicion of government that borders on group paranoia. The “modern” Oregon populists of 100 years ago were no less strange and considerably more dangerous. Under the banner “Where the People Rule,” they undermined the rule of law by inducing Oregon to abandon the two most fundamental tenets of a constitutional republic: 1) that a constitution is higher law, hard to amend; and 2) that laws in a liberal democracy are enacted by the people’s elected representatives. The instrument of that abandonment, inserted into the Oregon Constitution in 1902, is the initiative process.
We need a new Oregon Constitution, one that restores the true value of the vote, one that protects individual and minority rights by placing rational limits on a rational government, one that disables a momentary majority from amending the constitution. It should be drafted in a convention led by the wisest Oregonians, with input from a wide spectrum of political views and few or no members of state government present.
A Short Primer on
Settlement patterns of the moment determined the delegate mix. Early settlement in the north Willamette and Tualatin valleys included New England and New York Whigs who formed a base reflective of the Northeastern United States. They wanted freedom and a government strong enough to protect Oregon’s growing commerce, which they tended to control. By the 1850s, however, a large flux of Midwestern settlers had come into the central and southern Willamette Valley, the Umpqua Valley and southwest Oregon. These people were farmers. They and their forebears came from Kentucky and Tennessee, through Indiana and Missouri, then to Oregon. They were heavily Scotch-Irish, viewing that ethnicity as a unifying tribal characteristic that put them in opposition to Catholics, foreigners, Yankees and “others.” They did not own slaves, but these settlers wanted to exclude free Negroes from the state (not a problem in the era of Dred Scott) and to remove or exterminate in place the native population. The newcomers, who quickly outnumbered Portland-area Whigs, were Jacksonian Democrats. They would have their way at the 1857 convention.
Fast forward to 1897. The Oregon Constitution had gone 40 years without an amendment, partly because state constitutions were viewed as little more than window dressing, but mainly because of a provision (Article XVII section 1) that made amendment difficult. The legislature had to approve a proposed amendment in two successive sessions before it went to the people.2 This was about to end. The movement for a “direct democracy” initiative system, to thwart a business-dominated Oregon Legislature without having to vote them out, came to Oregon in the person of William S. U’Ren.
U’Ren was not alone. The anti-monopoly, free silver, worker- and grange-driven Populist movement was rising in Oregon. When U.S. Senator John Mitchell refused to support U’Ren’s bill for an initiative system as the condition for his 1897 re-election by the legislature, U’Ren organized a coalition of Populists and Democrats — enough to keep a quorum from meeting — and shut down the legislative session. The legislature never met (you won’t find a volume of 1897 Oregon Laws), Mitchell was denied re-election, and the 1899 legislature passed the constitutional amendment that would become the “Oregon System” of initiative and referendum (recall came later).
The 1901 session passed the initiative amendment again, as the constitution required. By November 1902, when the amendment went to the people, progressivism was coming into its own. The amendment passed handily — the first and only time the Oregon Constitution would be amended by the difficult original method.
You see, Mr. U’Ren had slipped a fellow traveler into the initiative. Not only could it be used to enact statutes, it could also amend the Oregon Constitution, by the same method of petition and majority vote in a single election.3 The probable reason was that U’Ren was an ardent supporter of the “single tax” as the panacea for public finance in Oregon, and if it were in the constitution, the legislature could not repeal it.4 U’Ren worked hard to put the single tax on the Oregon ballot by initiative. He succeeded in 1908, but the measure lost badly and never resurfaced.
However, constitutional amendment by initiative remained. Its cheapening of the Oregon political system and the Oregon Constitution, in ways the progressives of 1902 did not anticipate or to which they were tragically oblivious, still plays out today.
Strange Features of the 1857 Constitution
A provision that nearly passed would have directed juries in Oregon to decide not only the facts, but also the law in cases before them, on the theory that judges “mystified and misconstrued the law.” To this day, the Oregon Constitution (Article I section 16) says ambiguously that in criminal cases “the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law.”
After the American Revolution, executive appointment of judges was written into most states’ constitutions and the United States Constitution. Antifederalist Jacksonian democracy would change that pattern. Courts were a drain on early state finances, and frontiersmen kept their judges on a short leash. The 1851 Indiana Constitution threw out appointment of judges, in favor of judicial elections. Copying the Indiana Constitution, the Oregon Constitution of 1857 called for elected judges. Indiana has since amended its constitution to provide a “Missouri Plan” of judicial appointment and election. Oregon holds firm in the 19th century.
With zeal and conviction, many Oregonians still claim the Legislative Assembly is doing just fine with 1857-style biennial sessions and “citizen legislators” on starvation rations. Distrustful cynicism like that can serve a purpose if it’s followed by reasoned debate. In the 1790s, when the United States population was equal to Oregon’s today, Congress held annual sessions with full-time legislators. An Oregon constitutional convention could discuss whether we’re ready for the same thing.
Really Strange Features of the
Read Oregon Constitution Article I, the Bill of Rights, beginning with section 39 (adopted by initiative). That section, in 347 words, confirms the natural right of every Oregonian to purchase alcoholic liquor by the individual glass at retail. Article I section 8, protecting the freedoms of speech and press in Oregon, uses a paltry 37 words.
Continue to Bill of Rights section 41. Here is serious protection for fundamental rights. Section 41 uses 1,441 words to recognize and protect our “right” to make prison inmates “work as hard as the taxpayers who provide for their upkeep.” A statute would be as effective, but the 859,000 Oregon voters who ratified that 1994 constitutional initiative probably felt good when they voted for it.
Since 1902, the Oregon Constitution has been amended 240 times, while the United States Constitution has been amended eight times (not counting Prohibition and its repeal). The Oregon Constitution ought to describe Oregon’s government and protect basic human rights. Our profligate initiative has undermined that, and we deserve better. We need a constitutional convention.
How the Initiative is Bringing Us Down
Americans’ affinity for voting is endemic. The idea of human equality that spurred the American Revolution has created a healthy expansion of voting rights, first to men without wealth, then to African American males, to women, to people age 18 or over, and most recently to prison inmates. But we’ve conflated the civil right to vote with the mistaken notion that a momentary voting majority should have the power to rule. That power of “the people” to rule directly by plebiscite has been invoked by Robespierre and Napoleon, by Hugo Chávez and Adolf Hitler. It prompted James Madison in Federalist No. 63 to observe that “liberty may be endangered by the abuses of liberty.” Direct democracy brings down the quality of government and is positively dangerous.
Oregon has not fallen under tyranny with its initiative system, but it has fallen under the influence of petty demagogues of narrow view and limited foresight, from William U’Ren to Walter Pierce (populist governor elected in 1922 with backing from the Ku Klux Klan), to the initiative-wielding individuals we hear from today.
To the progressives who say the Oregon initiative gave us workers’ compensation, direct election of U.S. senators and women’s suffrage, I point out they would have come anyway about when they did, and I ask those progressives if the initiative is worth the pettifogging that burdens the Oregon Constitution with prisons to the exclusion of schools and with “family values” that expressly exclude stable, loving gay families. To the conservatives who would have the initiative pried only from their cold, dead hands, I ask them to remember that not so long ago initiatives were the effective tool of anti-nuclear activists and others who would create a command economy that rejects free enterprise. The pendulum swings. Good sense should not.
A Constitutional Convention — Now!
HB 2620, if adopted, will provide for election in 2010 of 50 delegates — 10 from each congressional district — to meet in convention and draft a new constitution for the people’s review and ratification. What an opportunity for Oregonians to give themselves a lesson in political gravitas and civic responsibility! The best and the brightest in Oregon should stand for election. Let me name some names: Dave Frohnmayer (a natural for convention president), Betty Roberts, Matt Prophet, Gordon Smith, Avel Gordly, John Kitzhaber, Hans Linde, Norma Paulus. How about some leavening: Don McIntire, Joe Uris, Russell Sadler, David Fidanque, Dave Reinhard. Quality people of good will, all of them, able to understand the heavy responsibility of drafting a document for future generations.
I do think HB 2620 has some flaws. It currently provides for a government-appointed “Constitutional Commission” that would identify “potential corrections, improvements and additions” to the convention’s work. This patronizing call for adult supervision is misplaced. The old established government has no business meddling in the writing of the new constitution that will replace it. The people of Massachusetts recognized it in 1780, when they tossed out the state constitution their legislature had tried to endow them with and called a popular convention to draft a new one. That constitution serves the Commonwealth State to this day. For that reason I would add another amendment to HB 2620, to disable any sitting legislator or other statewide officeholder from being a delegate to the convention. The government does not endow the people with a constitution; the people create their government and endow it with a constitution.
Oregon needs a new constitution, maybe even one (I shudder to think) with an initiative process, maybe one with the due process clause that’s missing from our present constitution, and surely one with a cleaner and more manageable structure. This is the time, and the need is evident. An Oregon Constitutional Convention? Yes!
ABOUT THE AUTHOR
1. David Schuman, The Creation of the Oregon Constitution, 74 Or L Rev 611, 611 (1995).
2. This un-Jacksonian provision came from the Indiana Constitution of 1851, but the Hoosiers had copied it from the Michigan Constitution of 1835, a document drawn up by a coalition of Whigs and conservative Democrats from New England and New York. Michiganders of 1835 were no friends of President Andrew Jackson, who was supporting more populous Ohio in a boundary dispute.
3. In a seemingly magnanimous gesture, the People’s Power League supported a 1906 initiative that gave the legislature authority to refer constitutional amendments in the same single-election way. The difficult-amendment process for the Oregon Constitution was gone for good.
4. The single tax was first outlined by Henry George in his book Progress and Poverty (1880). This book, which William U’Ren read shortly before coming to Oregon in 1889, profoundly influenced U’Ren in creation of the initiative.
© 2009 Jim Westwood
Every now and then someone suggests that Oregon needs a new constitution. In the early 1950s, several legislators concluded that the 1857 constitution was out of date and too long. They argued that several of its sections belonged in the statute books, not in a constitution. In 1959, the legislature referred the question to the voters: Shall a new constitution be drafted? Voters at the 1960 general election approved the proposal, and a 17-member commission was appointed, including many of the leading political, business, legal and academic figures of the day.
The commission convened in June 1961 and submitted a proposed new constitution to the legislature in December 1962.1 Under the terms of the 1959 legislation, the new constitution could be submitted to the voters only if it was first approved by a two-thirds vote of both houses of the legislature. In the 1963 session, the proposal received the required 40 votes in the House, but failed in the Senate by one vote, with opposition centering on the fact that it allowed for population disparities among legislative districts at a ratio as high as 2-to-1.2
Debate over the proposal continued during the next three legislative sessions. Several significant changes were made to the 1962 draft, and a considerably modified version was submitted to the voters by the 1969 legislature. It was rejected in May 1970 by a margin of 64 percent to 36 percent.
A bill before the 2009 legislature proposes to try again. HB 2620 would call a constitutional convention for 2011, consisting of 50 delegates to be elected from the state’s five congressional districts. Even in the best of times, a constitutional convention would be a waste of taxpayer money; in the context of Oregon’s current budgetary crisis, the proposal should be summarily rejected.
Three principal arguments have been advanced over the past half century for a new Oregon Constitution. None is persuasive.
A new form of government?
That is an interesting idea, but why did those nine commissioners in 1961 think Oregon would be a better place with that change? Oregonians now elect a secretary of state, a treasurer, an attorney general, a labor commissioner and a superintendent of public instruction, in addition to the governor. Exactly what, in the public life of our state, would be improved by eliminating these positions or making them appointive? What is it about the experience of other states that would persuade Oregonians that our system would be better if we eliminated these elective positions?
In Alaska and New Jersey, the only statewide elected officials, outside of the judicial branch, are the governor and lieutenant governor. Alaska and New Jersey are fine states, but what about their governance suggests that their system is superior to Oregon’s? Do they have better schools or highways? Are the rivers cleaner, the transit systems more efficient, the tax systems more fair and rational?
No doubt there is some aspect of life in every other state that Oregonians might envy, but it is unlikely that those enviable qualities have anything to do with the fact that the attorney general in those states is appointed rather than elected.
Perhaps more important, Oregon voters have shown no inclination that they would ever approve a constitution that took away their right to vote on the six existing statewide executive offices. In 1966, voters rejected a proposal that would have allowed the superintendent of public instruction to be appointed rather than elected. If Oregonians were unwilling to take that relatively small step, it is unlikely that they would give up their right to vote for the other offices either.
Modify the Bill of Rights?
No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.
The 1962 proposal contained the following “free speech” clause:
The right of free expression of opinion and to speak, write or print freely on any subject may not be restrained, but every person shall be held responsible under law for injury done by abuse of that right.3
Second, the Oregon Supreme Court typically determines the meaning of constitutional provisions by examining the historical context out of which they arose. In the case of Article I, section 8, the court has looked to the historical record to determine if the framers in 1857 intended to exclude certain categories of speech from the protection of that section. Using that methodology, the court has concluded that Article I, section 8, protects obscenity and commercial speech, because it found no evidence that the framers in 1857 intended to exclude those categories when they included protection for speech “on any subject whatever.” State v. Henry, 302 Or 510, 732 P2d 9 (1987), Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993).
But suppose Oregon voters had approved the commission’s proposed new constitution in 1964. The historical context in that year was very different from what it had been in 1857. By 1964, the U.S. Supreme Court had held that both obscenity and commercial speech were wholly outside the scope of First Amendment protection (Roth v. United States, 354 US 476 (1957); Valentine v. Chrestensen, 316 US 52 (1942)), and the Oregon Supreme Court had similarly held that obscenity was not protected by Article I, section 8. State v. Jackson, 224 Or 337, 354, 356 P2d 495 (1960).
Therefore, if Oregon voters had approved the commission’s proposed free speech clause in a 1964 election, it is likely that later courts would have held that the intent of those voters was consistent with the then-prevailing understanding of the scope of free speech protection. The upshot would be that obscenity and commercial speech would now be outside the scope of Oregon constitutional protection, instead of inside it.
Something similar would have happened with respect to the equal privileges and immunities clause in Article I, section 20. As of 1962, it was settled that Oregon’s constitutional guarantee of equal treatment under the law did not prevent the legislature from prohibiting women from entering saloons4 or from engaging in professional wrestling matches, because (as the court put it in 1956) the legislature had the power “to halt this ever-increasing feminine encroachment upon what for ages had been considered strictly as manly arts and privileges.”5 Voter approval of the virtually unchanged privileges and immunities clause in the new constitution in 1964, against the backdrop of those decisions, would have permanently enshrined that benighted view of gender equality in Oregon’s constitutional jurisprudence.
One other point about the Bill of Rights in the 1962 commission proposal is worth noting. One of the most heated debates among commission members centered on whether the constitution should contain a due process clause. Nine commissioners (including Justices O’Connell and Goodwin) voted to include such a clause, while seven other commissioners (including future Justices Linde and Van Hoomissen) dissented. The dissenters minced no words. The proposal was “dangerous” and “radical,” they said. It was a “tragic flaw,” a “time bomb” that would “perpetually threaten state and local programs with judicial devastation.”6
This disagreement shows how difficult it would be to reach consensus on what should be included in any new Bill of Rights. Article I, section 40, for example, currently endorses capital punishment. If you oppose capital punishment, would you vote for a new constitution that authorizes it? If you support capital punishment, would you vote for a new constitution that prohibits it? (Substitute “abortion” or “same sex marriage” for “capital punishment” in those sentences and you will recognize the heated conflicts that would divide any new constitutional convention.) Far better to leave the current text of the Bill of Rights just as it is. One delegate to the 1857 Oregon convention called the Indiana Bill of Rights, from which most of our original Bill of Rights was copied, “gold refined,”7 and we should be reluctant to tamper with it.
Oregonians have shown that they agree. In 1994, Oregon voters rejected a proposal to add an Equal Protection Clause modeled after the federal provision. In 1972, they rejected a proposal to discard the prohibition on the use of taxpayer dollars to support religion in Article I, section 5, and to substitute the far more ambiguous language of the Establishment Clause of the First Amendment. And in 1994, 1996, 2000 and 2006, they rejected proposed constitutional amendments that would have weakened the strong protection for freedom of speech in Article I, section 8.
Oregonians have spoken: leave our Bill of Rights alone.
Clean Up the Mess?
I don’t know why Oregon voters decided to place this provision in the constitution in 1952. Perhaps it was because the memory of Prohibition was still relatively fresh and voters wanted to make sure that the legislature could not interfere with their right to have a cocktail.
But the advocates of constitutional revision are not proposing that Oregon ban liquor by the drink. Their only objection to having the provision in the constitution is an esthetic one: Gee whiz, it just doesn’t belong there! It belongs in the statutes!
Why? If the liquor by the drink clause were transferred from the constitution to the statute books, would Oregon be a better state? Would constitutional interpretation be easier? Would government be more efficient? Of course not. We would still be governed by the same law, but we would simply find it on a different page of the law books.
A similar point can be made about most of the other material that the reformers want to transfer from the constitution to the statute books. Some people say the constitution should not be a tax code, and that the tax limitation measures approved in recent years should be in the statutes, where the legislature can improve and clarify them. But that criticism ignores the very reason that the tax limitation measures were put in the constitution in the first place. The whole point of putting laws in the constitution rather than in the statute books is to put them beyond the reach of legislative tampering.
Yes, the result is a constitution that is long, messy and ambiguous. But there is no law that says a constitution has to be tidy or short. Democracy is messy, and a democratic system that includes the initiative is especially messy, because initiative measures are often written by persons with no training in the art of drafting statutory or constitutional language.
My own view is that the initiative system has caused more harm than good in Oregon’s history, and I would like to see its use restricted. But there is no doubt that Oregonians have used the initiative system to create the kind of constitution that reflects their attitudes and values, and it is folly to think that Oregon voters would approve any new constitution that eliminated that system. (The 1961 commission recognized that reality and included the 1902 initiative and referendum provisions virtually verbatim in its new constitution.)
It was distrust of the legislature that fueled the adoption of the initiative in 1902, and it is distrust of the legislature that continues to prevent any significant modification of it. To constitutional purists, it may not seem right to have a liquor by the drink clause or a prison work program in the constitution; but to most Oregonians, it seems exactly right to have them there, where the legislature can’t fool with them.
ABOUT THE AUTHOR
1. The full text of the proposed constitution is in “A New Constitution for Oregon,” 67 Or L Rev 127-168 (1988).
2. The U.S. Supreme Court did not adopt the “one person, one vote” standard for legislative apportionment until the following year, in Reynolds v. Sims, 377 US 533 (1964).
3. Revised Constitution, Article I, section 2, reproduced in 67 Or L Rev at 131.
4. State v. Baker, 50 Or 381, 92 P 1076 (1907).
5. State v. Hunter, 208 Or 282, 288, 300 P2d 455 (1956).
6. C. Barton, et al., “Separate Views of Seven Members Opposing Substantive Due Process,” 67 Or L Rev 224, 224-227 (1988).
7. Charles H. Carey, ed., The Oregon Constitution 101 (1926) (remarks of Delegate Delazon Smith).
8. “A New Constitution for Oregon,” 67 Or L Rev 127, 210 (1988) (“Dissenting Opinion of Stafford Hansell”).
© 2009 Charlie Hinkle