Oregon State Bar Bulletin APRIL 2002

Parting Thoughts
The Next Oregon Constitutional Revolution
By Roy Pulvers

It seems like only yesterday that we arrived here in Oregon (in 1983), with the First Oregon Constitutional Revolution in full bloom. Each week (or so it seems in retrospect), the Oregon appellate courts would fire yet another broadside shot across the bow of conventional thinking. Some of those decisions have survived and some already have been consigned to the dustbins of legal history.

I write now because our regiment is being called up again, this time for what could become the Next Oregon Constitutional Revolution. Judge Jack Landau sounded the alarm with an exceptional piece in the November 2001 OSB Bulletin ('The Unfinished Revolution: Interpreting The Oregon Constitution').

A little bit of background will set the stage. Despite the courts' vigorous embrace of new constitutional ideas beginning in the 1970s, the Oregon Supreme Court thereafter limited its own role both in interpreting statutes and in making new common law. At a time of heightened constitutional awareness and power, I suspect that the court wanted to convey its deference to the legislature and the people with respect to statutory interpretation, and its adherence to limits on its policy-making role - even in the court's own traditional province of the common law.

The concern now is that the court also has given up its traditional role as constitutional decision-maker, without even a shot having been fired. The court, it is said, has embraced the 'framers' intent' back in 1857 to the virtual exclusion of all else, including the accretions of nearly 150 years of the court's own decisions and the changing demands of a complex modern society that bears little resemblance to the Oregon of two centuries ago.

Has the court really abandoned the field of constitutional decision-making to a ghostly brigade of fictional (but hearty, see State v. Henry) pioneers whose minds we now must read even as we somehow assume that they used precious space in their wagons to haul yellowed copies of Indiana case law with them across the Oregon trail? My own view is that we have not yet entered a new or revolutionary era in Oregon constitutional interpretation. But the court's most recent decisions certainly should be sparking a lively debate about where we might be headed.

The Oregon Supreme Court has never said that only history or the framers' intent matters or that it matters most. I would further contend that the court, to its enduring credit, has resisted the 'modern' temptation to cede control in its decision-making to the dead hand of history. The only notable exception - and it is a major one - is when the court concluded in the Lakin and Smothers decisions that the jury trial and remedies provisions of the Oregon Constitution, by virtue of their express terms and their history, were intended to protect certain express or absolute rights that were recognized in 1857. It then became of paramount importance in the court's view to ascertain just what those rights were and to enforce them.

Nonetheless, some recent decisions have seemed to focus unduly on history. And in the eyes of many veterans of the first revolution, the court has seemed to retreat from its age-old authority and role to act as a modern arbiter of the rights and responsibilities of citizens and the government under the constitution.
In the present climate of uncertainty, the Oregon Supreme Court in an opinion, or its members in an article or other presentation, could do worse than to take an opportunity to address the questions about constitutional interpretation that Judge Landau's article has voiced. Indeed, as Justice Scalia's recent visit to Oregon reminded us, the public and the bar can derive a real benefit from public discourse concerning a judge's own or a court's positions regarding the process of constitutional interpretation.

In the course of that discourse, it will be worth remembering that the most famous and important case of the 19th century, certainly known to the Oregon founders, was Marbury v. Madison. The Oregon pioneers presumably carried with them the lesson not only that the courts possessed the absolute authority to interpret the constitution (which Chief Justice Marshall also had called a living, breathing document), but that the exercise of that authority had been carried on by courts for over half a century with little if any express reference, much less binding adherence, to the recent proceedings or history of the state and federal founders' constitutional conventions and ratification processes.

Perhaps even more fundamentally, we have no basis to assume that the Oregon founders envisioned a court that would be forever tied to discerning and implementing the founders' own 19th century view of the world. Indeed, if the Oregon pioneers in 1857 believed in any one thing at their core, they believed in the promise of the future, a future that would be connected but certainly not tied to the past.

ABOUT THE AUTHOR
Roy Pulvers is a partner at Lindsay, Hart, Neil & Weigler in Portland and is chair of the OSB Constitutional Law Section.

2002 Roy Pulvers

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