Chapter § 1.3

• Jurisdiction: Oregon

§ 1.3 FIRST THINGS FIRST

To say that a state remains free to interpret its constitution to confer on its citizens more rights than the minimum guaranteed by the United States Constitution is not to say that all states do so. Some states have decided categorically to interpret state constitutional provisions in "lockstep" with analogous federal provisions. Robert F. Williams, State Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or Prospective Lockstepping?, 46 William & Mary L Rev 1499, 1502 (2005). Others, such as Washington, have developed a list of factors to be considered in deciding whether to vary from federal constitutional interpretations. State v. Gunwall, 106 Wash 2d 54, 720 P2d 808, 811 (1986). Still others use what has been described as an "interstitial model," under which state courts rely on the federal doctrine by default and invoke the state constitution only if it "offers a means of supplementing or amplifying federal rights." Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Tex L Rev 1025, 1028 (1985).

This volume is for Oregon attorneys, however, and as the state's public relations sloganeers like to say, "Things are different here." As Justice Hans Linde explained in Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981),

[t]he proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law.

In other words, individual claims grounded in the Bill of Rights do not apply against the states by their own force; the First Amendment, for example, directs that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." US Const, Amend I (emphasis added). The Fourteenth Amendment, however, states that "No State shall . . . deprive any person of life, liberty, or property, without due process of law." US Const, Amend XIV, § 1 (emphasis added). In a series of cases beginning with Palko v. Connecticut, 302 US...