"Emerging Issues in Oregon Constitutional Law"
Reflections on Constitutionalism and Amendments to Our Charters: The Case of Measure 36
Oregon Law Institute Seminar
by Kelly Clark
December 10, 2004

I note at the outset that the title is "Measure 36 as a Case Study." Of course, the gay marriage case and M 36 could be a case study on any of the issues covered today: interpretation (Art 1, ¤ 20), or mootness and justiciability (Li in the post M 36 context), or even constitutional originalism (DOMC arguments about historical exceptions).

But Lynn Nakamoto and I have decided to think with you about it as a case study on the use of the Initiative on questions of personal liberties, and specifically the sentiment that "we should not put civil liberties up for a vote," or more particularly, that "the Initiative should not be used to amend our Bill of Rights."

My own involvement with the gay marriage case has been fired and fueled by a concern for constitutionalism, about the process by which we as a society consider, propose and define, or redefine, our charter. I have spent a lot of time thinking about this in the last year. A lot of time. I certainly claim no answers, and nothing that even carries the basics of scholarly precision; I neither wear the habit nor claim the vocation of a scholar, and in all humility I recognize that many of you here do. But it may be the case that I have had more opportunity than some to converse with common folks and citizens on such questions - in my days in retail politics a decade ago, before juries over the years, and more recently during this last political season. And I have learned from these encounters and been forced to reconsider views that I long held. So, from all, that I bring you some observations and concerns. Five, if you are counting.

1. I have developed a core conviction that socially significant changes to our constitutions - whether clarifications or expansions, restatements or reversals - must be done a) deliberatively; b) openly; and c) with at least a basic societal consensus on the topic. This is true whether the "amendment" is done by the people formally or by the courts through interpretation. It seems basic but forgotten that constitutional rights must be grounded in a working social consensus _ or at least acquiescence. Failing that, the process is permanently divisive, undermines trust in government and erodes the citizens’ sense of ownership of their constitutions.

At least as important is this: Without such a process and consensus, the result - the constitutional right at issue - will always be very precariously rooted. (As a parenthetical example, if I were a staunch supporter of abortion rights, I think I might very well prefer that the right not be so dependant on who is the next President, and who the next few Justices are, but rather know that the right is firmly rooted in consensus political support. And to continue the parenthetical, I would contrast that example with constitutional questions of racial equality - where we reached such a social consensus, and one which is not dependant on the makeup of the Court. The 13-15th Amendments represent the societal consensus - even if those amendments were a long time in realization. The Constitution was ahead of both the courts and the legislatures. Ahead.)

I cannot overemphasize how important I believe this societal consensus or acquiescence is. It is why I reject as wholly inadmissible the claim by the Multnomah County Commissioners and their supporters that, whatever the shortcomings in process leading to same sex marriage licenses, they were right on the merits. This seems to me to reveal a radical misunderstanding of the nature of constitutional rights. It is why process in the gay marriage case is at least as important as the substantive rights being claimed. Indeed, I have come to believe that in very important ways, when it comes to constitutionalism, process is substance.

2. I said before that the consensus must exist, whether the Constitution is amended by the People or by the Courts. This was a deliberately provocative phrase, so let me see if I can defend it: Whether we call what courts do with some constitutional questions "amendment," or "interpretation," or "expansion," or whatever else, the fact is that the meaning of the Constitution - what it covers - is different before and after the ruling. It is changed; it is amended. And it should remain the right of the People to respond to such judicial amendments.

Now, this notion is unremarkable in one sense; it is no different in concept than judicial interpretation and review of statutes. Legislative bodies retain the inherent right to respond to a judicial ruling: "No, you missed our intent; you were wrong. We will rewrite, clarify, or amend the law to make it clearer." So retain the citizenry in any democratic and constitutional republic the right to take back, clarify, add to or subtract from the meaning of their constitution, as interpreted by the courts or as challenged by litigants.

Which brings me to the core of our topic. What the People did with M 36 was to attempt to settle a constitutional dispute before a final ruling by the courts. And along the way, I heard this intriguing argument - we should not put civil rights up for a vote. I have heard this before, but during the Measure 36 campaign it was more forcefully and persuasively argued. We heard it most artfully in the campaign ad that said: "I don’t know what I think about gay marriage but I don’t want to use the Constitution to take rights away from people…" And I thought a lot about that, too.

As a preliminary matter, I am not totally sure what a personal liberty is. Does the right to private property count? How about gun ownership? Is freedom of the press? How about Article 1¤ 5, that no money should be drawn from the Treasury for the benefit of any religious or theological institution? Is that a personal liberty? An amendment which changes the way or the amount of taxes I pay - does that affect a personal liberty? I am not sure that our phrase is so easily defined.

3. My third observation is also a question. Do we really mean that we should not amend the constitutional provisions concerning personal liberties? Ever? At all? Even to "expand" them? I know I would have disagreed very much if, a year ago, some of my conservative friends had suggested that the gay community should not be able to seek an Initiative to expand Article 1, ¤ 20 to define or provide for gay marriage. I would have deemed it their fundamental political right to take that question to the People.

So if we have a disagreement about how a certain changing social question should be constitutionally treated, do we really want to say that the Initiative is out? That seems to be the attitude that got the Colorado voters in trouble in Romer v Evans, where they decided that gays and lesbians could not petition the government as a class for anti-discrimination legislation. So Romer really shows the problem with arguing that certain topics are off-limits to those who would like to raise them. This also brings me to the point Justice Linde tries to make in the article that I included in the materials. He makes a brilliant, but in my view ultimately unsuccessful, attempt to find a legal hook to hang this hat on. He is trying to find authority for this notion of limiting the use of the Initiative. But Justice Linde’s Madisonian concern with faction, and his attempts to find grounding in the Guaranty Clause of the US Constitution for the limitation, seem to me both unconvincing and unworkable. I note, for example, in the citation history to his law review article that his idea has generated much discussion in the academic world but virtually none in the caselaw.

So it just seems a very odd and arbitrary idea, that certain topics are off-limits for the Initiative. Let’s say the courts get it way wrong on some important question of freedom of association or the rights of criminal defendants. Do we really want to say that there should be no ability to go to the People to clarify or expand the right?

4. The fourth point I want to make follows from the third, for perhaps you mean that the proposition should only apply to attempts to restrict liberties, but that we should remain free to apply to our citizens to expand them. Ah, yes, the inevitable progress of history rolls on, and there is no real doubt about the direction of our enlightenment, as we add verse after verse to the happy folk song of civil rights.

But, apart from the questionable philosophical and historical biases built in to such an attitude, there are again some real practical problems. I am not so sure that it is always so easy to say whether a proposal expands or restricts civil liberty. Let’s say that some measure purports to clarify the question of certain public expressions of religious sentiment. Perhaps a constitutional amendment saying that reciting the Pledge of Allegiance in the public schools - including the phrase "Under God" - is constitutionally permissible in our state, that it does not violate Art 1, ¤ 2, 3 and 5. Does that expand rights or take them away? Well, it certainly expands my right - if I am a person who wants to declare my allegiance under God. Perhaps it takes rights away if I am person who does not want to do so. One can easily imagine other examples. But the point is, sources as diverse as the twin religion clauses of the federal First Amendment, or the writings of the English statesman Edmund Burke, both recognize the truth that there cannot be an infinity to which civil liberties can be expanded. Rights do not exist in a void, but rather in a society. More often than not, my personal liberties are in a tension, or at least a harmony and balance, with others’ liberties, at least as long as there are more than one of us in society at any given time. This is why we have stoplights. So I suspect the idea that the Initiative may only be used to expand civil rights but not to restrict them is as unworkable as Justice Linde’s Guaranty Clause argument.

5. Which brings me to my last observation. I wonder whether it troubles anyone else that there is a strong assumption underlying the argument to restrict the use of the Initiative. The unspoken thought, the Elephant in the room, is the notion that the People are not smart enough, fair enough, or wise enough to weigh in on such topics. What else but this subtle elitism could possibly have driven the Multnomah County Commissioners to spring gay marriage on the community without even the basic processes of notice and hearings? And to the extent that we as lawyers share in the view that it is best to get these matters into court and away from the People or the People’s branch of the Legislature, what does this say about our grand experiment in self-government?

Now before my old political philosophy professors Holton and Balmer come wandering in to flunk my remarks, let me say that I understand and believe in the argument from the founders, especially the Federalist Papers, that our constitutional structures were designed to protect against the tyranny of the majority, that our Republic has built in checks to mitigate the influence of political passion and faction. Yes, the whole idea of a Bill of Rights is that the body politic puts certain fundamental rights out of reach of temporary passionate majorities. Admitted, agreed and adopted. But that begs the question: What are those fundamental rights, and who articulates them? Who buys off on them? Who decides?

Let us not forget that the original bills of rights, federal or state, surely hammered out in a deliberative representative body, were nonetheless ratified, approved, validated by the People or at least the People’s elected representatives. If we believe that our founding citizens were wise enough and noble enough to decide such profound matters, why do we think now that our citizens are not so capable?

Even granting the manifest differences in process between a deliberative convention sending out a bill of rights to citizens, and an Initiative generated during times of political passion, the fact is we have only a few options for the question of who decides what fundamental rights we recognize. Either it is done by the citizens, alone or through their deliberative representatives, in which case it can be said that social and constitutional consensus has been reached, or it is done by the judiciary, in which that might or might not be true. Now, as a proud lawyer, I hold the Judicial Branch in awe - especially the Judicial Branch in Oregon, which I consider to hold some of the brightest, most hardworking and capable lawyers in the nation. So I mean no disrespect when I say that it is a mistake of the first magnitude for us to ask the Judicial Branch of government to decide such questions in the absence of constitutional guidance from the People or the People’s Branch. It is a task for which the Judiciary is ill-equipped by constitutional function, by temperament, and by institutional competence. And the cost of such requests and of the courts accepting them is the continuing erosion of public trust in our public institutions.

I will close with this thought. Let’s imagine for a moment that a year ago, instead of secret meetings in backrooms of the county building and then a request to the courts to impose gay marriage on a society manifestly unprepared for it, if instead of that, the leaders of the gay marriage movement had framed a modest bill of rights of their own, a bill of benefits, if you will - the top 20 benefits of marriage that should be expanded to gay couples - and they had taken that to Oregonians in a ballot measure, or package of measures, and asked the People to show their inherent prudence and fairness by passing it. What if they had done that? Would they have started to build the social consensus I described? Would they be better off? Would we as a community be better off? I am not certain of the answer, but I ponder the question. And I believe this much. It could hardly be worse. In terms of the chaos, the lost trust in government institutions, the constitutional divisiveness, and the wear and tear on the body politic - it couldn’t possibly have been any worse for us all than what has actually transpired.