Oregon State Bar Bulletin JUNE 2002

Parting Thoughts
Living with Our Founders
By Jim Westwood

My friend and colleague Roy Pulvers says that 'The Next Oregon Constitutional Revolution' is dawning (Parting Thoughts, April 2002 OSB Bulletin). He sees a coming day when the Oregon Supreme Court will view our constitution as a 'living, breathing document (maybe rising like Godzilla to devour the State Capitol). The court will untie the constitution from the founders' 19th century view (which apparently was horrid) and will push aside 'the dead hand of history.' In favor of a living hand, presumably, but whose hand?

Edmund Burke observed during the French Revolution that when a man says he will do as he pleases, it is wise to ask him first what he pleases to do (I can't bring myself to bowdlerize Burke's use of masculine form). My point is that a constitution is a foundation. We move; it doesn't. We build structures called laws on it, and we alter it by amendment, not by new interpretations. A constitution is written. Its words have the meaning given by their creators - the drafters and the people who adopt them.

The new revolutionaries will ask me whether the founders foresaw free speech implications of the Internet or thought about the right to own and use automatic weapons. I will point out that the Oregon Supreme Court has dealt successfully with those issues through an originalist approach, faithful to the founders' intent, in State v. Henry (free speech) and State v. Kessler (right to bear arms). I'll ask the new revolutionaries to get off the technology kick and show us how basic human nature is any different today than it was in 1857 or in 1787. We can live with our founders.

Originalism, carefully applied, is the one sure way to have stable and objectively verifiable interpretations of a constitution. Scholars of the United States Constitution looked for so-called 'neutral principles' of interpretation without success 40 years ago, and the search in Oregon would fail too. As much as I respect my brother Pulvers' intellectual powers, I would not willingly abdicate to him (nor to myself) the authority to decide what a 'living, breathing' constitutional provision might mean. My personal baggage is different from his, and without a fixed common point of reference, our constitutional interpretations would rely uselessly on our own predispositions. Modern constitutional interpretation is a polite but firm rejection of the personal judicial psychologies that became constitutional law during the 20th century.

My only doubts about the Oregon Supreme Court's present uses of originalism are the ones already raised by Jack Landau and Jon Hoffman1. A theory of interpretation has to be articulated and then consistently applied, and the court's decisions have to be analytically and historically sound. Otherwise the skeptics' charge, that opinions are rationalized support for preconceived outcomes, undercuts their credibility. If we aren't very careful, unsound constitutional law can arrive even in originalist clothes.

The Next Oregon Constitutional Revolution can't live up to its billing. It isn't new - it's a throwback. It's no revolution, but a devolution instead, to the days before we realized that the alternative to history-based constitutionalism is nondirectional judicial -vanity.

Jim Westwood of Stoel Rives, Portland, concentrates his practice in state and federal appellate courts.

1. Jack L. Landau, Hurrah for Revolution: A Critical Assessment of State Constitutional Interpretation, 79 Or L Rev 793 (2000); Jonathan M. Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers L Jour 1005 (2001).

2002 Jim Westwood

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