Chapter § 1.4

• Jurisdiction: Oregon

§ 1.4 INTERPRETATION

This chapter has explained that the state remains free to interpret its constitution to confer on its citizens more rights than the minimum guaranteed by the federal constitution. See § 1.3 (first things first). The question remains: How do we interpret the Oregon Constitution? Unfortunately, the answer is not simple. The Oregon Supreme Court tends to interpret the state constitution by applying any of several different interpretive approaches, depending on the particular constitutional provision at issue. The reasons for the different interpretive approaches have never been explained; most likely, the different approaches are simply a product of case-by-case historical development before the court became more concerned with interpretive method in the early 1990s. The fact remains, however, that the differences exist.

In § 1.4-1 to § 1.4-4, we identify four categories of state constitutional provisions and briefly summarize the interpretive rules that apply to each category. Only a summary is provided here. Readers seeking additional detail should consult Jack L. Landau, An Introduction to Oregon Constitutional Interpretation, 55 Willamette L Rev 261 (2019), and Interpreting Oregon Law chapter 7 (OSB Legal Pubs 2009). In addition, at the end of this chapter, we have provided an appendix consisting of an annotated bibliography of sources that the Oregon Supreme Court most frequently consults in interpreting the state constitution. See Appendix 1A.

§ 1.4-1 The Original 1857 Constitution

In Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), the Oregon Supreme Court adopted a three-step method of analysis that applies to the interpretation of provisions of the original state constitution: (1) examine the wording of the provision, (2) examine the historical circumstances of its adoption, and (3) examine any prior case law interpreting the provision. The purpose of the Priest analysis is "to understand the wording in the light of the way that wording would have been understood and used by those who created the provision." Vannatta v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997), overruled in part by In re Validation Proceeding to Determine Regularity & Legality of Multnomah County Home Rule Charter Section 11.60, 366 Or 295, 462 P3d 706 (2020).

Sometimes this approach sounds distinctly originalist. See, e.g., Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000) ("it has long been the practice of this court 'to ascertain and give effect to the intent of the framers'" (quoting Jones v. Hoss, 132 Or 175, 178, 285 P 205 (1930)). And, in a number of cases, the court has construed the constitution strictly in terms of what the framers would have intended. See, e.g., Lakin v. Senco Products., Inc., 329 Or 62, 69, 987 P2d 463, clarified, 329 Or 369, 987 P2d 476 (1999), overruled by Horton v. Oregon Health & Science University, 359 Or 168, 208-16, 376 P3d 998 (2016) ("whatever the right to a jury trial in a civil case meant in 1857, it has the same meaning today"); State v. Delgado, 298 Or 395, 401, 692 P2d 610 (1984) (whether the state constitution guarantees a right to possess a switchblade knife depends on "whether the drafters would have intended the word 'arms' to include the switch-blade knife"). More recently, however, the court's occasional originalism has been called into question. State v. Hemenway, 353 Or 129, 156, 295 P3d 617, vac'd, 353 Or 498, 302 P3d 413 (2013) (Landau, J., concurring) ("the idea that the original state constitution means no more than what it meant to its framers in 1857 is untenable"). In fact, in more recent cases, the court has qualified its reliance on history with a statement that the object is to identify general principles that may be applied to modern circumstances. See, e.g., Couey v. Atkins, 357 Or 460, 490, 355 P3d 866 (2015) ("our purpose is not to freeze the meaning of the state constitution to the time of its adoption, but is instead 'to identify, in light of the meaning understood by the framers, relevant underlying principles that may inform our application of the constitutional text to modern circumstances'") (quoting State v. Davis, 350 Or 440, 446, 256 P3d 1075 (2011)); State v. Hirsch, 338 Or 622, 631, 114 P3d 1104 (2005), overruled in part by State v. Christian, 354 Or 22, 307 P3d 429 (2013) (after ascertaining the intended meaning of a given provision, the courts seek to "'apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise'" (quoting State v. Rogers, 330 Or 282, 297, 4 P3d 1261 (2000)).

In any event, the method involves three steps, which are followed in no particular order. See State v. Norris, 188 Or App 318, 331, 72 P3d 103, rev den, 336 Or 126 (2003) (the Oregon Supreme Court examines the three steps in a variety of orders). See § 1.4-1(a) to § 1.4-1(c).

§ 1.4-1(a) Wording of the Constitutional Provision

The first step in interpreting an original constitutional provision is to examine the wording of the constitutional provision. See § 1.4-1 (the original 1857 constitution). That wording is often referred to as the "best evidence" of the provision's intended meaning. State v....