The Unfinished Revolution

Interpreting the Oregon Constitution

By Jack L. Landau

The Oregon 'constitutional revolution' is by now a widely recognized feature of the legal landscape of this state. Judges and lawyers alike take for granted the fact that the state constitution has significance apart from what federal courts say about parallel provisions of the federal constitution. What is not so widely appreciated is the fact that the revolution has remained largely unfinished. Although the courts have come routinely to accept the independent significance of the state constitution, they have devoted little attention to articulating a set of principles by which they determine what the state constitution means. As a result, constitutional law in Oregon has become, well, a mess. Different provisions commonly have been interpreted by applying different interpretive rules with no explanation why the rules change from case to case. At least until recently.

In the last year, the Oregon Supreme Court has set about completing the revolution that it started. In a series of important decisions, the court has acknowledged the inconsistency of its prior cases and apparently has identified a solution: Henceforth, the courts of this state will construe the Oregon Constitution to mean what its framers would have understood it to mean in 1857. What is more, the Supreme Court declared that any prior constitutional decisions that were decided without reference to the framers' intentions are fair game for reconsideration and possible reversal.

This is important news that warrants the careful attention of all judges and lawyers in this state. Adopting a jurisprudence of original intent certainly promises to bring a certain amount of order to the chaos that has characterized Oregon constitutional law. But it raises significant questions about why the court adopted that particular theory of interpretation and about whether it in fact is a legitimate, even practicable, method of interpretation. It also has potentially far-reaching practical consequences as to the continuing vitality of existing law that has been developed without regard to the intentions of the framers in 1857.

In the beginning -- that is to say, before 1980 -- the Oregon courts routinely assumed that parallel provisions of the state and federal constitutions meant exactly the same things, even if the wording were not identical. Thus, for example, the Oregon Supreme Court held that Article I, section 20, of the Oregon Constitution and the 14th Amendment to the United States Constitution have identical effect, even though the wording of the two clauses is quite different. Similarly, the court held that the state and federal takings clauses 'are identical in language and meaning,' even though they actually are not. Likewise, the court held that as to the meaning of the state and federal prohibitions against compelled self-incrimination, 'nothing turns upon variations of wording in the constitutional clauses.'

In essentially ignoring the state constitution, the Oregon courts followed the practice of other state courts. Why state courts did that for so long is not entirely clear. Some appear to have assumed that the framers of the state constitutions intended that state provisions have the same meaning as federal counterparts and that textual differences simply did not matter. Others explained that, as a matter of policy, uniformity made sense. It also should not be forgotten that, at least in the area of individual rights, the Warren Court had articulated a federal constitutional jurisprudence that was sufficiently protective as to render resort to state constitutional law unnecessary.

One scholar who, like the proverbial voice crying in the wilderness, complained about that state of affairs was Prof. Hans A. Linde. According to Linde, for reasons of logic and history, state constitutions should be given not just independent significance, but primacy in constitutional analysis. His proposed 'first things first' approach received little attention, however.

Then came the Burger Court, which was widely perceived as openly hostile to the libertarian activism of the Warren Court. Scholars and judges around the country suddenly became advocates of a 'new federalism,' which looked to state constitutions as potential sources of resistance to what they perceived as unacceptably conservative federal court decisions.

Meanwhile, Prof. Linde became Justice Linde, and, the Oregon Supreme Court soon became a leader in the state constitutional revolution. In such cases as State v. Clark, the court spelled out its obligation to consider state constitutional arguments before even addressing arguments concerning parallel provisions of the federal constitution. The revolution took surprisingly little time. Within a brief five years of Clark, one justice could proclaim that 'I should like to think that the Oregon Constitutional Revolution has been accomplished.'

Unfortunately, what was accomplished was only the beginnings of a revolution. Certainly, the court by the mid-1980s had exhibited a commitment to the first-things-first approach to constitutional analysis. But the court never tackled the tougher question of precisely how it intended to engage in that analysis. The court simply started interpreting the state constitution, provision by provision, with no apparent attention to whether the way it did so made any sense.

In consequence, different provisions ended up being interpreted in different ways. For example, the court held that whether a statute violates an individual's right to bear arms, as guaranteed in Article I, section 27, depends on what the framers would have understood the constitution to mean in 1857. Thus, whether a statute prohibiting the possession of a billy club is constitutional depends on whether the framers would have understood the constitution to protect the possession of such a weapon. Similarly, whether a local ordinance prohibiting the possession of assault rifles is constitutional depends on whether the framers would have understood the constitution to protect that 'sort' of weapon.

In contrast, whether a statute violated an individual's rights to freedom of expression, as guaranteed in Article I, section 8, depends on an entirely different method of analysis that is, somewhat ironically, based on a law review article concerning the proper interpretation of the First Amendment to the federal Constitution. That method of analysis, first articulated in State v. Robertson, was adopted by the Oregon Supreme Court without any reference to whether it was what the framers would have intended. Similarly, in determining what constitutes a 'search' within the meaning of Article I, section 9, of the Oregon Constitution, Oregon courts employ a method of analysis first proposed in a law review article concerning the Fourth Amendment, without consideration of whether that method of analysis comports with what the framers of the Oregon Constitution would have intended.

In some cases, the Oregon Supreme Court simply made constitutional law in accordance with what it perceived as good policy. The prime example of that approach to constitutional 'interpretation' is Lloyd Corporation v. Whiffen, in which the court held that private citizens have a constitutional right to gather initiative petition signatures on private shopping center property. The court acknowledged that nothing in the state constitution said anything about such a right. It simply declared that, because of the importance of the initiative right, it seemed appropriate to imply the right to collect signatures on private property. There was no reference to what the framers of the constitutional provisions reserving the initiative right in the first place intended.

Meanwhile, notwithstanding the supposed success of the state constitutional revolution, the Oregon courts continue to rely on federal court constitutional decisions to a surprising degree. Sometimes, the courts merely refer to federal authorities as 'persuasive.' But in other cases, the courts assume the identity of parallel state and federal constitutional provisions, because the parties have not suggested any distinct interpretation of the state provision. On the surface, that seems harmless enough. Yet it is difficult to reconcile with earlier decisions that emphasize the obligation of the courts to address state constitutional arguments first, even when the parties do not make them. Finally, in some cases, the courts still conclude--without any pretense of declaring that federal law is merely persuasive--that state and federal constitutional provisions are in effect interchangeable.

Then there are cases that involve the interpretation of provisions that were enacted by initiative. In some cases, the courts treat those provisions as they ordinarily treat statutes, applying the sequential, three-step analysis of PGE v. Bureau of Labor and Industries. The courts do not do so consistently, however. In other cases, the courts construe provisions adopted by initiative as if they had been ratified as part of the original constitution.

Pretty clearly, this is a confusing state of affairs. Why is the interpretation of some provisions controlled by the framers' intentions, but not others? Why in some cases does the text of the constitution limit its construction, but not in others? Why in some cases are the courts constrained by the arguments that the parties make, but not in others? The courts have yet to explain.

In 1992, the Supreme Court hinted that it was aware of those problems and that it intended to do something about them. In Priest v. Pearce, it began to characterize its constitutional construction analysis in terms of a three-part analysis. The court declared that the meaning of the Oregon Constitution should be determined by reference to the text of the constitutional provision at issue, its enactment history, and the relevant case law. The court appeared to suggest that its objective was the ascertainment of the meaning of the provision intended by its framers, although it did not say so explicitly. The court also appeared to suggest that the Priest analysis would apply to all provisions of the Oregon Constitution, perhaps signaling an intention to approach constitutional construction in a more coherent fashion.

The courts, however, applied Priest only sporadically. Whiffen, it should be recalled, was decided after Priest. Free speech cases continued to be decided by application of the Robertson analysis. Search and seizure cases continued to be decided without reference to the intentions of the framers. Takings cases continued to be decided on the assumption that state and federal takings clauses mean the same thing.

All that changed last year with the Supreme Court's decision in Stranahan v. Fred Meyer. In that case, the court openly embraced a jurisprudence of original intent. In fact, striking a slightly revisionist note, the court proclaimed that such had always been the proper method of constitutional analysis in this state. Moreover, the court announced that it was willing 'to reconsider a previous ruling under the Oregon Constitution whenever a party presents to us a principled argument suggesting that, in an earlier decision, this court wrongly considered or wrongly decided the issue in question.' The court declared that it would give particular attention to arguments that prior case law demonstrated a failure to follow its 'usual paradigm' for ascertaining the intended meaning of a constitutional provision. And, true to its declaration, that is precisely what the court did.

At issue in Stranahan was whether a private citizen had the right to collect initiative petition signatures at a Fred Meyer department store. Of course, in Whiffen, the court already had decided that citizens have the right to collect initiative petition signatures at shopping malls. The court, however, concluded that Whiffen had been wrongly decided. Why? Because the case departed from the court's 'established methodology for ascertaining the intended meaning of a constitutional provision.' According to the court, nothing in either the text or the enactment history of the constitutional provisions concerning the rights of initiative and referendum suggests that the people intended to create a right to collect petition signatures on private property. Whiffen was overruled and the controversial right to collect signatures on private property eliminated, at least insofar as it had been based on the initiative and referendum provisions of the state constitution.

Stranahan was no aberration. In Smothers v. Gresham Transfer, Inc., the court reaffirmed its commitment to a jurisprudence of original intent as well as its intention to reexamine and reject whole lines of case law that cannot be reconciled with that method of analysis.

In Smothers, the court addressed the constitutionality of an exclusive remedy provision of the state's workers' compensation statutes. The plaintiff had been injured at work, but his workers' compensation claim was denied on the ground that he had failed to demonstrate that his work was the major contributing cause of his condition. When he filed a negligence claim against his employer, the trial court dismissed it on the ground that the claim was subject to the exclusive remedy provision of ORS 656.018, which provides that the exclusive remedy for any work-related injury is the workers' compensation system, even if the claim has been found to be noncompensable. The plaintiff appealed, arguing that the exclusive-remedy statute violated his rights under Article I, section 10, of the state constitution, which guarantees that 'every man shall have remedy by due course of law for injury done him in his person, property, or reputation.'

The Supreme Court agreed. It began by reiterating its adherence to a jurisprudence of original intent. The goal, the court said, is 'to understand the wording [of the constitution] in the light of the way that wording would have been understood and used by those who created the provision.' What did the framers mean when they guaranteed every man a remedy by due course of law? To answer that question, the court exhaustively examined the historical sources of Article I, section 10, from the Magna Carta, through the commentaries of Lord Edward Coke and William Blackstone, to the remedies clauses of late eighteenth- and early nineteenth-century state constitutions.

In a nutshell, the court held that the framers intended the remedies clause to provide substantive protection for certain kinds of rights--'absolute' rights, those relating to injury to person, property, or reputation--that existed at the time of the ratification of the constitution in 1857. They did not intend necessarily to freeze in place all rights that existed as of 1857, the court held. The legislature may abolish claims that existed at the time of ratification. But if it does so, it must provide a substitute remedy for the same injury.

Applying that analysis to the facts of the case, the Smothers court concluded that the exclusive remedy provision of the workers' compensation statutes in fact did violate the remedies guarantee. The court reasoned: (1) As of 1857, employees had a right to sue their employers for unsafe work conditions, and they had to prove those claims by satisfying only a 'contributing cause' standard; (2) as of 1995, when ORS 656.018 was enacted, workers who could not satisfy a tougher 'major contributing cause' standard had no remedial process available to them for their work-related injuries; (3) therefore, as to those workers, the exclusive-remedies provision violates the remedies clause.

The court acknowledged that, in the previous 65 years, it had spelled out the meaning of the remedies clause in very different terms. Then, as in Stranahan, it overruled those cases that could not be reconciled with what it had determined to be the intended meaning of the constitution.

Most recently, in State v. Fugate, the Supreme Court again employed an originalist approach to constitutional interpretation. Fugate was a criminal case in which the defendant challenged, on ex post facto grounds, the constitutionality of the retroactive application of a statute that provided that merely because evidence may have been seized in violation of a statute did not necessarily mean that the evidence must be suppressed. The court examined the history of the state ex post facto clause to determine what its framers would have intended. The court noted that the clause was taken from the Indiana Constitution of 1851, which, in turn, had been taken from the Indiana Constitution of 1816. In 1822, the Indiana Supreme Court interpreted the ex post facto clause of the 1816 constitution and, in so doing, also cited Calder v. Bull, a 1798 United States Supreme Court decision that held that statutes that alter the rules of evidence in ways that make criminal convictions easier are prohibited by the federal ex post facto clause. The Oregon Supreme Court reasoned that, because both the Indiana and United States Supreme Court decisions were 'available' to the framers, it is likely that the framers would have understood those decisions to describe the effect of Oregon's ex post facto clause, as well. The state objected that the federal courts have since abandoned that portion of Calder. The court dismissed the objection, commenting that, whatever the merits of the state's characterization of current federal law, the determinative question is what the framers would have understood the law to be in 1857.

Thus, there can be little question that the Supreme Court is now committed to an originalist agenda. Why the court has chosen to do so, is another matter. Certainly, the court has not attempted to justify its interpretive choice on the basis of the framers' intentions. That is to say, the court has yet to establish that originalism is the method that the framers in 1857 would have wished the courts to employ. In fact, some scholars suggest that prevailing practices of statutory and constitutional interpretation in the eighteenth and nineteenth centuries make it unlikely that the framers would have understood that their intentions would control future judicial decisions. Nor can precedent alone justify the court's choice, for, as we have seen, the Oregon courts have employed a wide variety of interpretive approaches over the years.

This is not a matter of idle, academic curiosity. Originalism is not the only possible way of approaching the interpretation of a constitutional text, and methods of interpretation can directly affect case outcomes. In fact, originalism has come in for a fairly widespread lambasting by constitutional scholars in the last century. Thus, it would seem appropriate at this early juncture for the bench and bar to entertain some questions about the Oregon Supreme Court's approach to constitutional interpretation. Several questions easily come to mind concerning its legitimacy and its practical application.

First, whose intentions are to be consulted? In theory, if anyone's intentions should be controlling, it should be the people's. After all, it is the people, not the attendees of the Constitutional Convention of 1857, who ratified the constitution. The problem, of course, is that it is very difficult to reconstruct what 'the people' probably had in mind in 1857. We do have some documentary sources from the Convention that shed light on what the framers were up to. So the courts are inclined to fudge a bit and use that evidence as sort of surrogate evidence for what the people had in mind. In some early cases, the Oregon Supreme Court acknowledged the problem, commenting that evidence of what went on at the convention is interesting, but not necessarily conclusive evidence of what the people intended. Later decisions, however, tend not to be quite so fastidious.

Second, can we accurately reconstruct the framers' intentions? History, particularly the history of ideas, is a notoriously difficult endeavor. Answers involve sifting through sketchy, usually circumstantial, evidence and require the exercise of informed judgment. Even then, trained historians frequently disagree about the proper interpretation of the evidence. A brief examination of the current debate about the intended meaning of the Second Amendment to the federal constitution bears out the point. Experts have disagreed--sometimes quite acrimoniously--about what the framers intended that provision of the federal constitution to mean, while new evidence and explanations emerge almost constantly. Closer to home is the Supreme Court's opinion concerning the intended meaning of the remedies clause in Smothers. While it certainly relies on a thorough analysis of the historical sources, the fact remains that others have carefully examined the same sources and have come to very different conclusions about what the framers intended.

A subsidiary concern is whether--even assuming that it is theoretically possible to reconstruct the past with any reliability--there is actually a shared, collective intention for us to reconstruct. Some scholars suggest that the notion of a shared understanding is simply another fiction, that, in fact, the framers actually had a variety of different and sometimes inconsistent understandings of what they accomplished in drafting the constitution. The Oregon case law apparently takes the existence of such a shared understanding for granted, when the point is at least fairly debatable.

Third, do we describe what the framers actually intended or what they could have intended? Smothers, for example, relies on an elegantly crafted analysis of historical sources from the Magna Carta to the present. Is the court saying that the pioneer framers actually were aware of that history? Or is the court employing a fiction as to what a law-trained person in possession of all relevant sources, in theory, would have understood at the time? Similarly, in Fugate, the court referred to an 1822 Indiana Supreme Court decision that was 'available to the framers of the Oregon Constitution.' Do we know whether that is true? Does it matter? Or, again, is it just that theoretically the decision was 'available' to the framers at the time?

Fourth, there is the very difficult problem of how to describe the significance of the historical evidence that we find. This is the problem that scholars identify as the problem of 'levels of generality.' Any historical moment or idea can be described at a variety of different levels of generalization. The 39th Congress, for example, drafted the Fourteenth Amendment to the federal constitution in response to the southern 'black codes' that deprived blacks of certain political rights. Some scholars have argued that that evidence shows that the framers were concerned only with protecting blacks from being deprived of a narrow set of political rights. Others suggest that the evidence constitutes only an example of a larger concern with the protection of civil rights generally.

The Oregon Court of Appeals encountered a similar same problem in attempting to determine whether the right to bear arms provision of Article I, section 27, includes a right to possess assault rifles. The historical evidence showed that, by 1857, some repeating Winchester rifles had made their way to the Oregon Territory. What is the significance of that historical fact? The majority said that a Winchester simply is not the same 'sort' of weapon as a modern-day assault rifle. The dissent said that, as a repeating rifle, it was indeed the same 'sort' of weapon that the framers intended to protect. History provided no 'correct' answer. It rarely does.

Finally, there is the question how far the Supreme Court intends to go with its reexamination of Oregon constitutional case law. Substantial areas of existing constitutional law are not based on a jurisprudence of original intent. And shifting to such a method of analysis could mean big changes in state constitutional law as we currently know it.

Take the law of free expression. Currently, it is based on State v. Robertson, which employs a libertarian approach to free expression that is perhaps among the most protective in the nation. Shifting to a jurisprudence of original intent could change all that. It is widely--although certainly not universally--believed that the framers of free expression guarantees in the eighteenth and nineteenth centuries intended to prohibit only prior restraint, that is, before-the-fact censorship, not after-the-fact punishment of speech. Indeed, several years before it handed down the Robertson decision, the Oregon Supreme Court itself examined the historical record and suggested that that was what the framers probably intended the Oregon Constitution to mean. Will the courts revert to that interpretation of the constitution?

In a similar vein, part of the same Bill of Rights in the 1857 constitution that includes the privileges and immunities clause of Article I, section 20, was a provision that prohibited any 'free negro or mulatto' from taking up residence, holding any real estate, entering into contracts, or maintaining any suit in this state. If that is so, is it likely that the framers would have understood Article I, section 20, to prohibit discrimination on the basis of race?

Still another example: Current takings law is largely based on twentieth- century Fifth Amendment case law, which has never examined the intended meaning of the federal takings clause. Will current land use restrictions pass state constitutional muster if the test is framed in terms of nineteenth century conceptions of property rights?

Clearly, the Oregon Supreme Court's new--or perhaps renewed--commitment to a jurisprudence of original intent has significant implications. While it signals a welcome desire to apply a consistent, coherent approach to constitutional interpretation, it also raises a number of questions about the legitimacy of the particular approach that the court apparently has selected. In addition, it raises the possibility that a substantial body well-established law could be up for grabs, depending on how the courts choose to describe the intentions of the framers. Judges and lawyers--indeed, all Oregonians--should watch very carefully the new course that the unfinished constitutional revolution has taken.

1. See, e.g., State v. Pirkey, 203 Or 697, 703, 281 P2d 698, 701 (1955); Plummer v. Donald Drake, 212 Or 430, 437, 320 P2d 245, 248 (1958).
2. Cereghino v. State Highway Comm'n, 230 Or 439, 444-45, 370 P2d 694, 697 (1962).
3. State v. Cram, 176 Or 577, 580, 160 P2d 283, 284 (1945).
4. See, e.g., Hans A. Linde, First Things First: Rediscovering the States' Bill of Rights, 9 U Balt L Rev 379 (1980); Hans A. Linde, Without 'Due Process': Unconstitutional Law in Oregon, 49 Or L Rev 125 (1970).
5. See, e.g., William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 (1977).
6. 291 Or 231, 630 P2d 810 (1981).
7. State v. Owens, 302 Or 196, 208, 729 P2d 524, 531 (1986) (Gillette, J., concurring).
8. State v. Kessler, 289 Or 359, 614 P2d 94 (1980).
9. Oregon State Shooting Ass'n v. Multnomah County, 122 Or App 540, 858 P2d 1315 (1993).
10. Hans A. Linde, 'Clear and Present Danger' Reexamined: Dissonance in the Brandenburg Concerto, 22 Stan L Rev 1163 (1970).
11. 293 Or 402, 649 P2d 569 (1982).
12. State v. Campbell, 306 Or 157, 759 P2d 1040 (1988) (adopting Fourth Amendment analysis proposed in Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349 (1974)).
13. 315 Or 500, 849 P2d 446 (1993).
14. Id. at 512, 849 P2d at 452-53.
15. See, e.g., Billings v. Gates, 323 Or 167, 169-70, 916 P2d 291, 294 (1996).
16. See, e.g., GTE Northwest, Inc. v. Public Utility Commission, 321 Or 450, 468 n 6, 900 P2d 495, 501 n 6 (1995).
17. See, e.g., State v. Kennedy, 295 Or 260, 266-67, 666 P2d 1316, 1320-21 (1983) ('an Oregon court should not readily let parties, simply by their choice of issues, force the court into a position to decide that the state's government has fallen below a nationwide constitutional standard').
18. See, e.g., State v. Mai, 294 Or 269, 272, 656 P2d 315, 317 (1982).
19. See, e.g., Ecumenical Ministries of Oregon v. Oregon State Lottery Commission, 318 Or 551, 560, 871 P2d 106, 111 (1994).
20. 317 Or 606, 610-12, 859 P2d 1143, 1145-46 (1993).
21. See, e.g., State v. Baker, 328 Or 355, 359, 976 P2d 1132, 1135 (1999).
22. 314 Or 411, 415-16, 840 P2d 65, 67 (1992).
23. 331 Or 38, 11 P3d 228 (2000).
24. Id. at 54, 11 P3d at 237 (quoting Jones v. Hoss, 132 Or 175, 178, 285 P 205, 206 (1930)).
25. Id. at 54, 11 P3d at 237.
26. Id.
27. Id. at 56, 11 P3d at 238. The court explained that, because the initiative and referendum provisions were adopted by initiative, the three-step analysis of Ecumenical Ministries of Oregon applied. Id. at 56-57, 11 P3d at 238-39. The court emphasized, however, that the goal is still 'the intent of the enactors of the provision at issue.' Id. at 57 n 12, 11 P3d at 239 n 12.
28. 332 Or 83, 23 P3d 333 (2001).
29. Id. at 90-91, 23 P3d at 338.
30. Id. at 123-24, 23 P3d at 356-57.
31. Id. at 135, 23 P3d at 362.
32. Id. at 119, 23 P3d at 353.
33. 332 Or 195, 26 P3d 802 (2001).
34. Strong v. The State, 1 Blackf 193, 196 (1822).
35. 3 US (3 Dall) 386, 1 L Ed 648 (1798).
36. Fugate, 332 Or at 213-14, 26 P3d at 813.
37. See, e.g., H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv L Rev 885 (1985); Paul Brest, The Misconceived Quest for the Original Understanding, 60 BU L Rev 204 (1980).
38. For an introduction to the originalism debate, see Daniel A Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St LJ 1085 (1989). See also Michael J. Klarman, Antifidelity, 70 S Cal L Rev 381 (1997); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv L Rev 781 (1983). Originalism has its defenders. See, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent and Judicial Review (1999); Edwin Meese III, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S Tex L Rev 455 (1986). Generally, its defenders argue that any departure from the intention of the framers is anti-democratic. As Robert Bork, explains--if in somewhat question-begging fashion: 'If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. ... There is no other sense in which the Constitution can be what article VI proclaims it to be: 'Law.'' Robert H. Bork, The Tempting of America: The Political Seduction of the Law 145 (1990).
39. See, e.g., Charles A. Lofgren, The Original Understanding of Original Intent?, 5 Const Comment 77, 79 (1988).
40. See, e.g., Monaghan v. School District No. 1, 211 Or 360, 367, 315 P2d 797, 801 (1957).
41. See generally Symposium on the Second Amendment: Fresh Looks, 76 Chicago-Kent L Rev 1 (2000).
42. See, e.g., Michael A. Bellesiles, Arming America: The Origins of a National Gun Culture (2000) (arguing that the image of the armed colonial militiaman is a myth and that widespread gun ownership in America did not develop until industrialization)
43. See, e.g., Jonathan Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1279 (1995); David Schuman, Oregon's Remedies Guarantee: Article I, Section 10, of the Oregon Constitution, 65 Or L Rev 35 (1986).
44. See, e.g., Joseph M. Lynch, Negotiating the Constitution: The Earliest Debates over Original Intent (1999); Brest, The Misconceived Quest for the Original Understanding, 60 BU L Rev at 214-17.
45. See, e.g., Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U Chi L Rev 1057 (1990).
46. See, e.g., Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977).
47. For a history of how the courts--in particular, the United States Supreme Court--variously have characterized the history of the Fourteenth Amendment, see Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (1999).
48. Oregon State Shooting Ass'n, 122 Or App at 544, 858 P2d at 1318.
49. Id. at 557, 858 P2d at 1326 (Edmonds, J., dissenting).
50. Legal historian Leonard Levy is generally credited with this thesis. See generally Leonard W. Levy, Legacy of Suppression (1960). He updated and qualified that work in Leonard W. Levy, The Emergence of a Free Press (1985). Levy is not without his critics, however. See, e.g., David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan L Rev 795 (1985).
51. State v. Jackson, 224 Or 337, 346-47, 356 P2d at 499-500 (1960).
52. That provision, originally Article I, section 35, was repealed by a vote of the people in 1926.
53. For an overview of the evidence concerning the intended meaning of the federal takings clause, see Treanor, The Origins and Original Significance of the Fifth Amendment, 94 Yale LJ 694 (1985).


Jack Landau is a judge on the Oregon Court of Appeals and an adjunct professor of law at Willamette University College of Law.

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