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June 27, 2005


Greg Chaimov

Nice site.

Here's a question from an inquiring mind:

Why did the court look at (let alone rely on) history when there appears to have been as much textual support (felons excluded in other provisions) for a decision as the court needed in other cases?

Steve Bushong

Mr. Chaimov asks an excellent question. Perhaps the Court will tell us when it decides State v. Ciancanelli, SC No. S49707. The State of Oregon pointed out in its brief in Ciancanelli that "resort to the full array of primary and secondary sources that are the daily grist of professional historians will require the acquisition and exercise of skills not previously required of judges and lawyers[.]" State's Br. at 49.

But it seems at this juncture that the Court is using history to help it discern what the framers intended by the words they used in the constitutional provision at issue. The Court explained in Yancy v. Shatzer, 337 Or 345, 353 (2004), that its goal is to ascertain and give effect to the framers' intent, and that it does so in part by looking at the "historical circumstances" that led to the provision at issue. Seems like that's what Justice Durham did in this case.

Tom Christ

I'm as befuddled as Greg. Why doesn't the court construe the constitution -- or, at least, the original constitution -- the same way it construes a statute?

As we all know, statutory construction is progressive -- starting, at level one, with the text and context of the statute. If the text, taken in context, is unambiguous, the court's inquiry is over, according to PGE v. BOLI, 317 Or 606, 610-12 (1993). The court won't proceed to review the statute's history of the circumstances of its enactment. The same progressive methodology -- start with the text and, if unambiguous, quit there -- applies to the interpretation of constitutional provisions proposed by initiative. See Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 559-60 (1994).

A different methodology applies, however, to interpretation for the original constitution. Thus, in State v. Hirsch/Friend, 338 Or 622 (2005), the court didn't quit after concluding, based on a text and context review, that the constitutional right to bear arms (Art I, ยง 27) does not permit an exception for convicted felons. 338 Or at 632-36. The court went on to examine the history of the provision, and of analogous provisions in other constitutions, going backward in time to 16th-century England. Id. at 656-60. And, in the end, the court based its ruling on that history, rather than the text of the provision in question. Id. at 677. The court said: "Our inquiry, however, is not limited to the text of Article I, section 27 * * *." Id. at 674.

Well, why not? As I said at the top, what justifies not using the same methodolgy to construe constitutional language as to construe statutory language? I should think that drafter of a constitution would be more careful about their choice of words than drafters of mere legislation. It seems to me, then, that their word choice should be entitled to more judicial deference, not less. (I'm assuming here that people in 1859, no less than people today, meant what they said and said what they meant.)

It seems to be, at least on first reading, that Hirsch/Friend would have ended differently if the court had followed its PGE v. BOLI methodology.

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