Oregon State Bar Bulletin — JUNE 2009


Examinations of constitutional foundings commonly focus on lofty matters of ideology and political philosophy, describing the founders’ conceptions of popular sovereignty, liberty, equality, property, the common good and the like. Such matters are important, to be sure. But focusing on them can give an incomplete picture of the driving forces behind the creation of a constitution. Sometimes, matters far more mundane helped to shape a state’s constitutional structure.

That certainly is the case with the founding of the Oregon Constitution, the adoption of which 150 years ago we commemorate this year. Our constitution was shaped by a number of different considerations, both lofty and worldly. And few had more significance than money or, perhaps more precisely, an aversion to spending it. Our founders, in fact, were remarkably concerned — it is tempting to say obsessed — with figuring out how to craft a government without spending a single penny more than was absolutely necessary.

The story actually begins before the adoption of the state constitution. Oregon’s first government dates from 1843, when a group of settlers met in Champoeg — known at the time as “Cham-poo-ick,” or the slightly easier to pronounce “place of sand” — to create a provisional government for the territory and appoint a committee to come up with a code of laws for the territory. The push for statehood followed almost immediately. In the following 10 years, however, calls for a constitutional convention were rejected nine times by the territorial legislature and four times by popular vote. The concern? Money.

The 1854 popular election illustrates the point. In the hotly contested campaign, the state’s largest newspaper, the Portland Oregonian, opposed statehood on the ground of expense. The paper complained that statehood would mean the loss of federally funded territorial government appropriations, the acquisition of an obligation of upwards of $60,000 per year to pay for the machinery of a new state government, and the assumption of a share of a large war debt (from the recently concluded war with Mexico). The inevitable increase in taxation, the paper argued, would drive immigration south to California. The Oregonian’s view prevailed, at least for the moment.

By 1856, slavery politics altered the political landscape. The Oregonian withdrew its opposition to statehood and the people resoundingly voted in favor of a constitutional convention. Concerns about the burden of public expense did not disappear, however. To the contrary, they were to animate practically every debate about the shape that the Oregon Constitution was to take.

One need look no further than the very first day of proceedings, on Aug. 17, 1857. The first order of business was to select officers. James Kelly of Clackamas offered a resolution that the convention should elect a president, secretary, assistant secretary, doorkeeper, sergeant-at-arms and a reporter of debates. There was an immediate objection that the list was too long. Why? Concerns about money. George H. Williams, then chief justice of the territory (and later U.S. attorney general and mayor of Portland), moved to amend the list by striking two of the positions — doorkeeper and reporter — entirely. He reasoned that, because “(t)here is no immediate prospect of having the expense of this convention paid(,) … I deem it advisable that we should create no more expense than is absolutely necessary.”1 The doorkeeper’s work, Williams argued, could be done by the sergeant-at-arms. As for the reporter, Williams was not certain that the job was even necessary.

There followed a vigorous discussion over the next several days about the necessity of having the convention debates taken down by a reporter. Some spoke emphatically in favor of hiring a reporter, estimated to require the whopping sum of $300 (figured at $10 a day for a 30-day convention). One member offered to “contribute my mite out of my own pocket to pay him, if he is paid no other way.” Polk County delegate Frederick Waymire, known as “Uncle Fred,” disagreed, suggesting instead that each speaker should be required to pay the cost of transcribing his own speech, adding that he “would not give $10 for all that had been made so far.” David Logan offered a formal resolution to that effect, designed to accomplish both payment for reporting and an incentive for windy speakers to be brief, an odd suggestion from one who was regarded as the “greatest jury lawyer of his time.” Kelly argued passionately in opposition to the motion, urging that “our constituents have a right to know and it is our duty to submit to them the reasons that influence us in our action here.” According to Kelly:

[O]ur proceedings may be quite as interesting to those coming after us as it is now to us to know what influenced the men who debated and gave birth to the federal constitution. Everybody knows how eagerly the colonial records of every state have been reclaimed from the dust and that they are all published now to the world as matters of historical inquiry. Men may say what is the use of transmitting these things to a distant generation? That is not the proper view to take of this matter. It is our duty to leave something upon the record. It is as useful now, in this day and generation, as it was in times gone by. Why gather up every fragment of the history of such bodies that have gone before us, if it be not to instruct future generations? It is our duty to transmit those things to posterity which take place at the birth of a state, to those who may come after us, for their guidance and for the government.

Logan would have none of that, insisting that “as little expense should be incurred in the making of this constitution and submitting it to the people as is possible.” In Logan’s view, “(t)he making of a constitution now is not such an interesting proceeding as it may have been heretofore.” In the end, Logan withdrew his resolution, but his views about the unnecessary expense of a reporter ultimately prevailed; the convention never did agree to pay for a reporter. To this day, our records of the convention largely consist of newspaper accounts of two newspaper reporters who were in attendance, compiled by lawyer and historian Charles Carey some 60 years later.

That was just the beginning. Considerations of cost influenced the structure of the government that the convention created. It was suggested that the convention should create a supreme court consisting of members separate from the circuit judges who would try the state’s cases, but the suggestion was immediately abandoned “on account of the expense.” Instead, the thrifty founders decided to create a supreme court (the final, handwritten original of the constitution actually spells it “Suprume Court”) consisting of circuit judges who were required to perform double duty; that is, they would ride circuit and try cases around the state and then meet as occasion required to review appeals of those very cases.

Most of the discussion in the convention about the judiciary, in fact, concerned the issue of expense. Should the supreme court consist of five judges? Four? Three? Considerations of money drove the debate. (The convention settled on four.) Should grand juries consist of 12 members? Seven? Five? (The convention eventually settled on seven.)

At times, the talk of money was too much for some of the convention delegates to bear. A debate on the proposal of the especially thrifty Logan to do away with grand juries entirely, for example, prompted the president of the convention, Matthew Deady, to complain that “every question which came up here was first discussed on the ground of its expense, as though a government could be devised without expense.” According to Deady, “(w)e had met here to make a government and we could have none without expense.” (Logan acerbically replied that he was sticking to his proposal, as its only opponents were lawyers and judges.) Similarly, a discussion about the size and compensation of the Supreme Court prompted Thomas J. Dryer, founder of the Oregonian, to object that some had discussed the matters “as though Oregonians were a penurious clock-peddling set of Yankees, who looked upon a six-pence like a full moon in Indian summer. They were not so,” he urged.2 “They were a liberal, generous people.” On the whole, however, such generosity represented a minority view.

Considerations of economy affected other branches of government than just the judicial. The convention did not include in the original constitution the office of attorney general. Nor did it provide for a lieutenant governor. To the contrary, the talk during the convention repeatedly steered in the direction of combining various offices. County judges were given judicial duties, but they were required to serve as county commissioners, as well. County clerks were required also to serve as county recorders of conveyances. The state secretary of state was given the duties of the state auditor.

At one point during the convention, Uncle Fred Waymire moved to strike the office of state treasurer from the provisions concerning the administration of government. According to Waymire, the governor should have plenty of time to transact the business of the state treasury (and, he noted, perhaps pick up some extra spending money through the charging of treasurer’s fees). Kelly complained that the combination of offices would constitute a “union of purse and sword.” Waymire insisted that there would be “a great saving” in combining the two offices, for it would be necessary to pay the treasurer alone (at a salary, he noted, substantially less than that of governor), “and we would get the governor for nothing.” Washington County delegate Erasmus Shattuck opposed the combination of the two offices, which he characterized as “a regular tin-peddler arrangement.”3 He also noted that, if anything happened to the governor, the secretary of state would step into the office and thereby acquire the powers of three executive branch officials. In the end, the convention decided against combining those two offices, deciding instead to combine the offices of governor and superintendent of public instruction (subject to the proviso that, at a later date, the legislature had the option of creating a separate superintendent position, which it did in 1872).

The structure of the legislature, too, was influenced by considerations of cost. The original proposal was for the legislature to meet annually, in 60-day sessions. Waymire moved to limit the regular sessions to 45 days. Deady recommended 40 days. Kelly complained that the “gentlemen were seized with a sudden fit of economy” and recommended no less than 60-day sessions. The eloquent (and notoriously long-winded) Delazon Smith responded that “40 days would furnish ample time.” He believed that “all the healthy, honest legislation of past sessions could have been transacted in 20 days.” In the end, the convention compromised, requiring the legislature to meet biennially, with no specific limits on the duration of individual regular sessions. Instead, it simply imposed a limit on the amount that legislators could be paid — three dollars a day up to a maximum of $120, that is, payment for 40 days — regardless of the number of days that they actually remained in session.

The convention delegates proved sensitive about the authority of the legislature and local governments to borrow and spend money. Their constitution prohibited the legislature assembly from lending the credit of the state or in any other manner incurring debt in excess of $50,000, except in times of war or insurrection. They prohibited the state from assuming the debt of any county, town or corporation. Counties, towns and municipal corporations, meanwhile, were prohibited from creating debts or liabilities in excess of $5,000, except, again, to suppress insurrection or repel invasion.

The convention delegates proved oddly touchy about expenses associated with public printing and the preparation of state stationery. The idea originally was to leave the matter to the legislature, which was to be authorized to contract public printing to the lowest bidder. Deady proposed that there be a constitutional provision on the subject “and that the matter ought not be left to the legislature.” Logan openly declared a lack of confidence in, “if not the honesty, the prudence of the legislature” and supported “leaving this matter in such a shape that the state could have done it in the cheapest and best manner.” Dryer objected that the proposal was “an insult to the honesty and intelligence of the legislature.” In the end, Deady prevailed and the delegates adopted not one, but two, provisions: one creating an office of state printer and the other providing that any stationery provided to the state must be furnished by the “lowest responsible bidder.”

The issue of public official compensation prompted perhaps the most passionate exchanges about concerns for economy. Convention delegates practically stumbled over one another in an effort to prove the most stingy by proposing the lowest possible salaries. There was at one point a motion to pay the governor an annual salary of $2,500. Another moved to pay him $2,000. Another, $1,500. Still another, $500. Dryer complained that “there was a disposition here to ride the hobby of economy. He thought this doctrine of low salaries was poor economy for the state.” William Humphrey Farrar replied that he “had said nothing about economy, but he was still in favor” of paying the governor no more than $500, which he regarded as “ample remuneration for the services required” of him.

Debates over judicial salaries proved even more animated. Kelly proposed paying them $2,000 (federal judges at the time were paid $2,500). Farrar insisted that “he was for $1,200 for judges — that was enough.” Kelly insisted that, if the convention recommended less than $1,500, “you could not get a good lawyer to take it … You would get a pettifogger on your bench, who could not make anything at his profession. And such a man,” he decried, “you would empower to pass upon your lives, person and property.” Even Uncle Fred Waymire could take no more talk of such penny-pinching. Although he “had been called the bulldog of the (territorial) legislature and was the advocate of low salaries,” he said, the convention was proposing pay rates “so low that he was ashamed to look at the figures.” What sort of judge could be obtained for $1,200, he asked rhetorically. “You might get ‘weeping Jeremiah,’ ” he answered, but “who would not be ashamed to go into such a court.” The convention relented and approved $2,000, but it was a rare victory over those delegates more interested in governing on the cheap.

Clearly, the founders of the Oregon Constitution had more than lofty ideals in mind when they framed the state’s original constitution. Their thoughts were also of a temporal and practical nature, focusing repeatedly on the subject of money and ways to avoid spending it. This is perhaps not surprising when it is recalled that the Panic of 1837 and the five-year depression that followed it, were still a vivid memory to many delegates. These were, after all, largely agrarian folk who distrusted bankers, corporations and others associated with the business of money and making money by means other than hard, honest labor. As Carey later described the delegates, “none … was wealthy and many had known the pinch of hard times and had suffered from scarcity of the comforts of life.”

And, while it is easy to poke fun at some of the odder ideas that surfaced in the convention debates, it strikes me as important to consider that the parsimonious nature of our founding has some more serious and substantive implications for us in the present. Debates about quite a few matters of current legislative policy are directly affected by the decisions of our fiscally conservative founders. Look no further than perennial arguments about state fiscal challenges, particularly in recessionary economic times, exacerbated by a constitutional inability to incur public debt.

Also of more than passing interest is the fact that arguments about some of the same issues that were debated during the constitutional convention continue to this day and in vocabularies strikingly reminiscent of those declaimed in 1857. Modern arguments about proposals to move to annual legislative sessions and debates about public official compensation, in particular, have taken shape in ways that are eerily similar to arguments over the same issues 150 years ago.

Consider also the possibility that the decisions of our thrifty forebears could have an impact on the interpretation of the constitution that they created. Recall that the framers chose not to spend the money required to provide an official report of the convention itself. I find that a fascinating decision, one that should give pause to any proponent of the sort of rigid originalist constitutional interpretation that the Oregon courts sometimes profess, holding generally that a constitution can mean no more than what its framers intended it to mean.4 Such originalist constitutional interpretation would rest on shaky footing indeed if it could be demonstrated that those very framers themselves would not have understood that their understandings and intentions would have controlling effect. Yet, as James Kelly’s passionate — but unsuccessful — oration in favor of reporting the convention proceedings makes clear, that appears to have been precisely the case. The framers of the Oregon Constitution, in an effort to save $300, rejected outright the argument that a record of their deliberations would be of any interest to later generations.

Endnotes

1. I am not a fan of footnotes. So, unless otherwise indicated, the quotations are from Charles H. Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (1926). In the preparation of this article I also consulted Claudia Burton’s excellent Legislative History of the Oregon Constitution of 1857 — Part II (Frame of Government: Articles III-IV),39 Will. L. Rev. 245 (2003), David Schuman’s informative The Creation of the Oregon Constitution, 74 Or. L. Rev. 611 (1995) and David Alan Johnson’s very interesting take on the founding era, Founding the Far West: California, Oregon and Nevada, 1840-1890 (1992).

2. At the time, to be called a “Yankee clock peddler” was quite the insult. So-called “Yankee peddlers” were something of an institution in the South and the West in the early nineteenth century. They originated in Connecticut, where goods such as “Yankee clocks” were mass produced and sold on commission by wandering peddlers (from the Latin word for “foot,” by the way), often at ridiculously marked up prices. They were not held in high regard. Davey Crockett once quipped that, “I can stand anything but a clock peddler.” Richard M. Dorson, American Folklore 204 (1977). See also J.R. Dolan, Yankee Peddlers in Early America (1964); Joseph T. Rainer, “The ‘Sharper Image’: Yankee Peddlers, Southern Consumers and the Market Revolution,” inCultural Change and the Market Revolution in America, 1789-1860 (Scott C. Martin ed. 2004).

3. Tin peddlers ranked right up there with clock peddlers among the pioneers in the South and West. Among other things, they were known to sell items as “silver” that were actually nothing but coated tin. Susan Strasser, Waste and Want: A Social History of Trash 75-76 (2000).

4. See, e.g., Stranahan v. Fred Meyer, Inc., 331 Or 38, 54 (2000) (“it has long been the practice of this court to ascertain and give effect to the intent of the framers (of the provision at issue) and of the people who adopted it”); Lakin v. Senco Prods., Inc., 329 Or 62, 72 (1999) (“whatever the right to ‘Trial by Jury’ meant in 1857, it means precisely the same thing today”).

ABOUT THE AUTHOR
Jack Landau is judge on the Oregon Court of Appeals and adjunct professor at Willamette University College of Law.

© 2009 Jack Landau


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