As Judge Landau points out in his insightful article ('The Unfinished Revolution,' November 2001), there is no reason to believe the framers of the Oregon Constitution would have expected that later generations would consider themselves bound by the framers' intentions. To the extent we behave as though we are so bound, we violate their intentions.
The framers undertook to apply the rule of law to their world, not to ours. They could not possibly have considered what would be the 'right' rule of law as to some specific issue in a world (drastically changed from theirs) in which communication is instantaneous and travel so effortless that both peacekeepers and terrorists can travel around the world in less time than it would have taken a framer to travel from Oregon to Seattle. They created an elastic, flexible document more general than specific in part because of their sense of the inevitability and greatness of change to come.
I believe that as they wrote the Oregon Constitution, the framers would have thought it nonsense to hear that they should have been controlled by the detailed intentions of people who lived 100 or 200 years before they did. No doubt they considered themselves entitled to apply the wisdom that had revealed itself to the world in the preceding century or two.
And so should we. The wisdom of the framers should guide us. It should not fetter us.
Uncovering the Past
I read with great interest Judge Jack L. Landau's excellent article ('The Unfinished Revolution,' November 2001), in which Judge Landau described the difficulties inherent in the Oregon Supreme Court's espousal of an 'original intent' jurisprudence to interpret the Oregon Constitution. I would make one additional observation. Numerous historians and legal scholars have made a cottage industry of discerning the intent of the federal framers. Efforts by historians to uncover the intent of the drafters of the Oregon constitution or the motivations behind ballot measures are virtually nonexistent. I became particularly aware of this as I taught the Oregon Constitutional Law seminar at Lewis & Clark Law School. When I returned to UCLA to obtain my Ph.D. in history five years ago, I studied one of Justice Hans Linde's early cases, City of La Grande v. PERB, in which Justice Linde relied heavily on his reading of the history of the 1906 home rule amendment to the Oregon Constitution. After spending months on the project, I concluded that Justice Linde's exposition of the history of Oregon's home rule movement was incorrect. My article can be found at 76 Or. L.Rev. 909 (1997).
If the Oregon Supreme Court is serious about relying on originalism, lawyers will need to consider hiring historians to develop the evidence that they need to uncover Oregon's largely unexplored past. It will be an extremely time-intensive project.
With deference, I must take mild exception to one sentence in Judge Landau's otherwise excellent article on the revolution in the Oregon Supreme Court's method of constitutional interpretation (November 2001). He says, 'In the beginning - that is to say, before the late 1970s - the Oregon courts routinely assumed that parallel provisions of the state and federal constitutions meant exactly the same things, even if the wording was not identical.'
In 1962, in Dickman v. School District, 232 Or. 238, 366 P.2d 533, cert. den. 371 U.S. 823 (not cited by Judge Landau), the court held that Oregon's statute which required free textbooks to be provided to all students, including those in parochial schools, violated Art. I, Sec. 5 of the Oregon constitution, which prohibits using public funds for the benefit of any religious institution. The school district and intervenors relied largely on federal cases interpreting the First Amendment to the U.S. Constitution, such as Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), which sustained a New Jersey statute providing free bus transportation to students, including those in parochial schools.
In Dickman the court, through Justice O'Connell, recognized that the Oregon provision 'may be regarded as expressing, in more specific terms, the policy of the First Amendment as it has been explained in the Everson case' (232 Or. at 246). Nevertheless, the court held that: 'A decision of the Supreme Court of the United States holding that certain legislation is not in violation of the federal constitution is not an adjudication of the constitutionality of the legislation under a state constitution (Id. at 260).
In dissent, Justice Rossman made the prescient observation that: 'Confusion and controversy are certain to arise when the United States Supreme Court and this court interpret differently a constitutional principle that should have a single meaning.' (Id. at 261).
Granting that the cases on public aid to religious schools have not been models of consistency (see for example, Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed. 2d 660 (2000) overruling other cases); and a state court might have a problem in acrobatics if it tried to adhere closely to the United States Supreme Court decisions in that field, still it can hardly be said that Oregon's refusal to follow federal interpretation of parallel provisions is entirely of recent origin. While I may be nitpicking, it began at least as early as 1962.
Ruth Spetter's excellent letter (Letters, November 2001) concerning the gradual withering away of the former vibrancy of OSB conventions omits another important loss. When we had the 'town hall' format, important issues of the day were discussed, voted upon and reported in the press - often on the front page of the Oregonian. Lawyers were seen as contributing to the public discussion in a positive way. Now the convention is just one big CLE.
Since we have had the House of Delegates format, we have seen the demise of the vibrant convention hall discussion along with the accompanying positive publicity. Now it is only negative news concerning lawyers that appears in newspapers. I do not remember seeing anything in the Oregonian concerning an OSB annual convention since the new format came into being.
I appreciate that 2,020 lawyers out of some 9,346 OSB members voted in favor of the House of Delegates plan when it was submitted to the membership in 1992. But now that we have seen the effect, could it be that those 2,020 lawyers were wrong?
Arthur L. Whinston