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September 09, 2005


Tom Christ

Is anyone besides me troubled by the methodology our appellate courts are using to construe original provisions of the state constitution? Provisions that seem to be absolute are deemed, instead, to be qualified, because some legislature somewhere else enacted a contrary law at some earlier time and that qualification is deemed to have been imported into our constitution, the plain language notwithstanding. Thus, a prohibition on laws “restraining the free expression of opinion” does not prohibit a law against nude dancing – a form of expression – because laws against public nudity existed elsewhere when the prohibition was adopted. See State v. Ciancanelli. A “right to bear arms” is not really a right to bear arms – meaning it isn’t something that just everyone is entitled to do (i.e., no felons allowed) – because some other states had laws restricting that right (in other ways) when Oregon voters adopted it. See State v. Hirsch/Friend. And a guarantee that “every man shall have a remedy by due course of law for injury done him in his person” does not really guarantee that right against legislative infringement, because, again, some foreign jurisdictions were limiting some civil remedies (although not in that same way) when Oregonians were putting that guarantee into our constitution. See Lawson v. Hoke.

Does this make any sense? How do we know that the drafters of the prohibition and the right and the guarantee were aware of these contrary laws? (Did the men – and they were all men – who gathered in Salem in 1857 have access to the wealth of early American and English legal history on prodigious display in, for example, Hirsch/Friend?) And if they were aware of those contrary laws, how do we know they approved? If they approved, why did they draft the provisions as they did? Why didn’t they write into the provisions the exceptions that our courts are now reading there? Doesn’t the absence of an exception – the use of absolute language (such as “[n]o law shall be passed”) rather than qualified language and provisos – suggest, if anything, disapproval of contrary legislation elsewhere?

I presume that, in the mid-1800s, no less than today, people said what they meant and meant what they said, especially when drafting a document of such obvious importance as a constitution. When they said, for instance, “[n]o law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinion,” see Art I, § 3, they probably meant exactly that: no law shall control the free exercise of religion. Period. End of case. They didn’t mean: no law except . . . . But what if some dogged historian discovers that some other state, in the early 19th century, passed some law or another restricting religious freedom. Wouldn’t that put this provision in doubt, ala Ciancanelli, Hirsch, and Lawson? What more could the drafters have done in anticipation of modern judges with modern research tools, such as Westlaw and the Internet, and Oregon’s views on constitutional interpretation? What could they have said besides “no law shall be passed.” Maybe something like: “And we really mean it. We don’t know whether legislatures in other places have passed laws to the contrary, but, if so, we don’t want that to happen here, which is why were putting this provision in our constitution.”

Just wondering.

Greg Chaimov

Erin recommended commenting on Tom's comment, so here's mine: Amen.

Charlie Hinkle

But Tom, isn't the problem you identify at least as old as Robertson? The Court there said (with no analysis, and no citation of precedent, and not even a passing glance at what the framers might have intended), that Art. I, sec. 8 bars laws aimed at expression "unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.'

If that is the test, then isn't the court required to look for those "historical exceptions"?

Of course, the Court in Robertson did not explain why one should look for "exceptions" to unambiguous language. And the Robertson statement is certainly in tension with the court's recognition in Deiz and O'Leary that you can't tell much about the framers' intent by looking at contemporaneous legislative enactments. If an action by the Oregon legislature in (say) 1861 should not be given much weight in determining the "framers' intent" in 1857, why should an action by (say) the Massachusetts legislature in 1802 carry so much weight?

When the language of the constitution is plain and unambiguous, it is unnecessary and improper to inquire into the "historical circumstances" or "framers intent" or any other forumula for constitutional interpretation. In construing statutes, the Court in PGE said that the text "is the best evidence of the legislature's intent" -- why doesn't that rule hold for the constitution?

As for Art. I, sec. 8, there is no indication in the surviving records that the delegates in 1857 discussed the meaning of "any subject whatever." But it doesn't matter whether or not they discussed it. The phrase could not be plainer, or less ambiguous. Judges might ask themselves, What part of "any subject whatever" don't you understand?

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