The Oregon Constitution - New and Improved!

Anne Martens

The U.S. Constitution is a venerable, concise document that has been amended 27 times in over 200 years, generally for very good reasons. The Oregon Constitution is an ugly, lengthy, wide-ranging and ridiculous document that has been amended more times than I can count and shamelessly used to hamstring the legislature, enshrine poor policy, and indict differences of opinion. It's time to throw that baby out.

There is, and ought to be, a difference between a statutory law and a constitutional law. The Constitution should have more weight, inspire more respect, and be less susceptible to the waffling winds of public whimsy. But in Oregon, we've allowed (and occasionally actively conspired) to demean our state Constitution by filling it with pop culture crap.

It's too easy to put anything you want in there. Land use and taxes and home care commissions and the experience required of state printers and seismic retrofitting are all very important subjects that ought to be in law. But they needn't be in the Constitution. Law would allow us to adjust our responses to these subjects with changing times and circumstances, but putting them in the Constitution implies that the response thus consecrated is the be-all end-all. The constitution should be reserved for topics involving the protection of rights, the structure of government, and high ideals that we expect (or aspire) to be inalienable and timeless.

So what do we do? Fixing the thing piecemeal would take too long and just be downright inefficient. There's only one answer. The mother of all ballot measures: Throw out the Oregon Constitution and start over from scratch.

Constitutional convention. That's right. Let's see if Oregonians have the ability to elevate the discussion to one worthy of a well-written constitution. Sure it's scary. Whenever I bring this up in conversation, people tell me that we'd end up with a worse (read: detailed, right-wing, and full of even more crap) constitution that what we've got now (I find that hard to believe). Alaska requires their citizens to decide whether to have a constitutional convention every ten years, surely Oregonians are capable of addressing this once in 147 years. Bring on the bigots and let them parade their prejudices. Then let's have a real, meaningful and deliberate discussion about what's important in government and in life, and let's put those words to paper.

For maximum impact, Joe Baessler and I are posting this notion both here and on the Zephyr - definitely read his piece for more on how and a much funnier why. Then bring it.

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    Rock on Anne!

    Damn straight! You know... with voters so antsy, I wouldn't be surprised if we could find a lot of support. The question is, how would we do it?

    Would we simply throw out all the amendments? I think we'd have to go amendment by amendment (otherwise we might have trouble with the multiple subject problem) If we were able to eject all amendments wholesale, would the legislature have to enact laws to take the place of the amendments that are in place? The logistics are mindboggling, but I think we could do it.

    It'd be interesting to concurrently bring a constitutional amendment making it harder to amend the constitution. It's be nice to turn Oregon back into a representative democracy instead of having the legislators punt every time they come across a "controversial" issue.

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    Couldn't you just have a single-subject amendment that would toss the whole damn thing and organize a process to issue a new one?

    This is a bit metaphysical - but do you have to follow the rules of the old constitution in proposing a new one?

    Lawyers, help me out here...

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    A-ha. Found this...

    Article XVII, Section 1. No convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular general election.

  • Tenskwatawa (unverified)

    Great! A statutory process. That's not an impediment, it's the empowerment to do it.

    Move the referendum, pass it, and start in re-writing. Vested elected interests could resist but not prevent a majority moving it.

    Much talk, many voices are needed. Starting with an announcement of it. Get the word around ...

  • Kurt Granzow (unverified)

    I'm not so sure that we need to throw the Constitution out, but it is WAY too easy to amend. Right now, all you need is over 50% of those voting to pass an amendment. I would like to see some qulifications like requiring that at least 50% of registered voters turn out to vote and that the amendment needs to pass with at least 2/3 voting for it. That would at least make it more likely that the amendment truly reflects the will of the poeple.

    Right now, the conservatives are trying to use the Constitution to debate a disagreement on a social issue - gay marriage. I don't think the Constitution should ever be used to settle social disagreements. It's there to protect people.

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    True, but we shouldn't lock in all the stoopid stuff in the Constitution now by suddenly restricting changes.

    First, clean it up. Then, lock it down. Settle disputes through legislation, not constitution.

  • Jason Evans (unverified)

    If we rewrite the state constitution, how will we address the issue of dualists infiltrating our state offices???

    (from the constitution) Section 9. Penalty for dueling. Every person who shall give, or accept a challenge to fight a duel, or who shall knowingly carry to another person such challenge, or who shall agree to go out of the State to fight a duel, shall be ineligible to any office of trust, or profit.—

  • Gary Blackmer (unverified)

    A Constitutional Convention will re-open every previous battle that was nearly won or nearly lost, as well as incite all those obsessive dreamers who will lobby 23/7 for their pet cause.

    These hapless Conventioneers will spend two years of their life dealing with leghold traps, tax limits, nuclear waste, doctor-assisted suicide, term limits, fluoridation, triple-trailers, helmet laws, pornography, gambling, liquor, crime, drugs.

    Oh, and their proposed constitution is bound to disappoint the majority of voters.

    …and what was the problem again?

  • Chris Woo (unverified)

    It strikes me that other states have overhauled their constitutions at some time in the last century (I'd probably know for sure if I hadn't skipped so many of Jim Moore's classes in college). If that's true, I'd be curious to know the whys and hows of those instances -- scholars, a little help?

    Anyway, I can certainly see where Anne's argument is coming from (BTW, does your boss know you wrote this?), but at least for the time being, I don't think most state politicos could see this as more than a wonderful academic argument. I can't think of more than a couple of people in state government who would want to touch it, even with a 20 foot pole. That said, maybe if the concept can't be made into reality, maybe the reality can be made into concept? Perhaps Oregon could have a scaled-down "mock constitutional convention" involving as many of the same players (or at least their ideological equivalents) and see what might happen if an official re-constitutioning were actually undertaken. Even if it were an awesome and earth-shattering failure, at least it would kick-start broad dialogue on the topic.

    Mr. Blackmer, I am at your mercy.

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    Perhaps Oregon could have a scaled-down "mock constitutional convention" involving as many of the same players (or at least their ideological equivalents) and see what might happen if an official re-constitutioning were actually undertaken.

    Now there's something the Bus Project should sink their teeth into. ;)

    "Engage Oregon 2: Mock Constitutional Convention"

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    I think Chris's suggestion is the kind of thing that's going to have to start happening on other issues, too. The state is so intractably divided that legislators can't even keep cops on the street and drugs in the mouths of the elderly and infirm. Every new fight, no matter how small, is an opportunity to screw the other team. And in the midst of gridlock, everyone's mucking around for issues that will be volatile enough to force action. It's a terrible mess.

    I don't think in this case that we're being particularly ably represented. There's a sense that the intractability comes from the divided state and is merely reflected in the statehouse. I think it's the opposite--the intractability masks a far more cohesive state. Last fall, the Bus Project had a wonderful conference in which ideas were explored and debated. it was essentially a lefty group, so the cohesion was predictable. But from my experience with Oregonians, they tend to listen pretty well. I think it's possible that if you put regular citizens in a room that they'd tear each other apart, but not likely.

    An experiment like Chris suggests would be great. The Constitution is a pretty good test case, too. Constitutions lay out the structure of law, not the letter (anyway, they should). That's a little less hot than the issue of which constituency gets money.

    Good thinkin.

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    This is my post that I wrote in unison with Anne at the Zephyr. She and I have been battling this Idea around for a while. We'll see if the Bus wants to play.:

    The Oregon initiative process has crammed the Oregon Constitutional full of weird crap. The experience required of state printers isn't a consitutional issue, so why is it in there? Here's a crazy, scary, really brilliant idea: let's start from scratch.

    One of my Best Friends in the whole world, (my BFF if you would) Queen Anne, hates Direct Democracy. She HATES ballot initiatives and with this year’s crop who can blame her? You can read about her unbridled hatred on and in the Zephyr. I agree with her general stance. The Initiative system is really screwing up Oregon.

    In the past the initiative system has done great stuff. Giving women the right to vote and…. I don’t know any of the other ones, but I’m sure there had to be some. But most of the neat stuff in Oregon that we talk about as what makes us an example of what a state should be, like open beaches, land use planning, and the bottle bill, was produced by the icky union of a Republicans and Democrats from the Governor’s office and the Legislature. But they’ve have hurt us in recent years far more than they have helped us. Recently the initiative system has been used to try and screw labor unions completely, destroy how we funded public services, and force us to build prisons instead of schools.

    If you only work on candidate campaigns in Oregon, you are only fighting half the battle. We need to jump into the ballot initiative debate, AND COMPLETELY MESS IT UP. To paraphrase to my favorite quote in a Supreme Court opinion from my third favorite Supreme Court Justice the answer to bad speech is not no speech but more speech. So instead of just working against every ballot initiative to make it harder to get signature or requiring more signatures why not push the issue further? Escalate!

    Let’s do the mother of all initiatives and scrap the whole Constitution and start over.

    See, making it harder for us to get a constitutional amendment isn’t going to help us now. It is really easy to get something on the ballot initiative passed in Oregon. It only takes around 72,000 signatures to by-pass the legislature to pass a statutory amendment. It also only takes 100,840 or so to change the Constitution. As a result the Oregon Constitution is stacked with random stuff. Most of it doesn’t belong there.

    The Oregon Constitution regulates the sale of liquor and penalties for murder. These are things that should be in statute. We have our property tax system in there. We are stuck with immovable objects in the stream of our democracy. They form a dam.

    The legislature discusses and adapts to the needs of the present day; the Constitution protects the things that should never change. Constitutions should hold the form of the government, electoral fairness guarantees, and our rights – not multifamily housing for elderly and disabled. The Oregon Constitution is 110 pages long in Word and the U.S. is only18 pages in the same format. (Read Queen Annie’s column in for other examples of stupid crap in the Oregon Constitution)

    So what do we do? How does one go about scrapping the Constitution and writing another one? Well it won’t be easy and it won’t be pretty and it might not work, but as my Grandpa always said if you’re gonna go; go BIG.

    We need a Constitutional Ballot Initiative that would delete the Constitution and set up a process for forming a new Constitution. The last such State do have a Constitutional Convention was Alaska in 1939 (I might be wrong about the year). They actually changed their Constitutional because they were such big fans of our Constitution here in Oregon. That was before the Oregon constitution contained seismic retrofitting rules.. (What the Hell? How did that ever sound like a good idea? If we don’t scrap the Constitution and start over, I want to have standards for all Neil Diamond impersonators in the Constitution. We could just keep adding crazy crap until people believe me that we need to toss the damn thing.)

    Part of the Constitutional Revision Initiative would determine how and where and what amount of time the Convention would have to finish its work. Since it’s a Constitutional amendment we are not regulated to follow the Constitution of Oregon. We could shorten the legislative session in anticipation of the Constitutional Convention. I think this would be imperative because we’ll want to use the State Capital to hold the Convention. We would schedule the thing in the Interim. To do this we would have to extend the Interim as long as possible. However the Legislature still has to get out the budget. So maybe part of the Big Daddy Initiative is to mandate that the Legislature has three months to crap out a budget, and then we can move in to elections for the Convention Delegates.

    The Election of the delegates was thought up by a Genius in the Oregon Secretary of State’s office. I won’t say who because this idea might be hated on by plenty of people and why drag his name into it? The Delegates should be from every geographic area. No Party should get an upper hand. It needs to be a forced bi-partisan effort and I think they should all be non–partisan elections. If the aim is for people to think "big picture" then we need to get more variety than geographical boundaries. So, how about if we elect one-third of delegates from Senate districts (30), one-third from U.S. Congressional districts (6 each), and one-third statewide (30). We pay them a per deim similar to the Sate Legislature but no salary because this is a one time deal. I say hold a crap load of hearings and NO closed caucuses. This has to be open. We have to see what we are losing and what we are gaining with every discussion. I also think if there are no closed caucuses will need police protection for the Delegates. (Brave bastards.)

    I think there also needs to be a time limit built into the Convention: somewhere between 6 months to a year. There should also be deadlines in the Convention. At some point they have to stop drafting new versions and just work with amendments to a document. We need to figure out when to have public hearings and when to end public hearings. I think just important as a strict timeline is to work without a net. The Old Constitution is gone. We can’t go back. Make the delegates have to do the work. We need to burn ours ships on the shores of Troy. NO going back.

    Finally after the Convention is over we need to have the whole darn thing brought back before the people and ratified. This sounds like the most interesting thing to me. Think of the odd bed fellows it would make. We could have a situation like when Thomas Jefferson and James Madison writing the Federalist Papers together to win the hearts and minds of the early Americans even though they fought about almost every freakin’ point in the Constitution. I can foresee a world where Unions work hand in Hand with charter school advocates because they love or hate part of the New Constitution. Jim Edmundson (Chair of the Democrat Party) could walk hand in hand with Kevin Mannix (Chair of the Republican Party) to kill it or save it. Who Knows.

    See it’s that “Who Knows” part that’s freaky. I know this is a scary idea. We would have no control. We would have to make the better argument. We would have to get the most people to think we are right. It would be what politics is supposed to be. I’m scared about doing this, but I don’t see any other options. I don’t want to live in a State where any anti-tax nut with a million dollars can completely screw up my State. I’m sick of it. I want to fight back.

    A friend and I were talking about this idea over a beer and she told me it would make this State a laughing stock. Well guess what we are a laugh stock now. Read Doonesbury in the last year? I don’t think you’re a laughing stock when you step up and take your destiny in your hand and you say “I’ll fix this, are you with me?” Now let’s bring everyone to the table and see what wins and what loses.

    Everything would be up for discussion. You want a Non-Partsin Legislature, Senator Ringo? I want to have that discussion, bring it. Common Cause, you want to make sure money isn’t considered speech? Bring it.

    You want to destroy land use, Citizens for…(I don’t know, I never pay attention to their stupid names, how about Citizens for a Land Fill in Forest Park?), BRING IT. Hey Bigots, want build work camps for the gays? BRING IT. (I don’t really want to have that discussion but I love letting the bigots try to explain being bigots.)

    Just know that my buddies and I will be throwing down election reform, fair and PROGRESSIVE taxation, Equal rights for ALL. Just think how awesome it would be, screaming and fighting about what we hold most dear and what battles we are willing to lose in order to win the war. I think we should sell the TV. rights to Fox (See I’ll throw the righties a bone).

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    Just think how awesome it would be, screaming and fighting about what we hold most dear and what battles we are willing to lose in order to win the war.

    That's the most compelling part for me, I think. The idea of a Convention necessitating that we have a continued (tho time-limited) and concentrated public discussion on the big things, the over-arching things. Sometimes I think that with all the skirmishes over minutae, we forget that constitutional-level principles are actually in the end quite profoundly personal, and are not merely academic or abstract.

  • PanchoPdx (unverified)

    This is so funny I hope you all try it.

    If you have never tried to amend just one portion of the constitution (and make your amendment amenable to enough people to pass) you have absolutely NO idea what you are talking about.

    When I read Chubby's post I got the funniest mental picture of someone actually speaking out of his *sshole. It was forming words (awkwardly) yet trying to sound authoritative.

    I'll sign your constitional convention petition.

    Bring it on.

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    Frankly sir, I'm a quite adept at talking out of my asshole and do not do so awkwardly. I have been frankly talking out of my asshole for years and will continue to do so after you are long since gone.

    I don't have any delusion that it will be easy. I don't even think it will necessarily be possible. I do hold out hope that people will see the blight on our state that our Constitution has become. I don't have a better solution and it’s only getting worse.

    I'm frankly bored and have about 30 to 40 years to kill before the gin gets me so I might as well plan on wasting my time on this.

    Thanks for the signature that's, super!

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    Length of US Constitution: 8,045 words Length of Oregon Constituion: 54,423 words

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    Dare to dream, people. The fact that it might be hard doesn't make it any less worth doing.

    To ensure that the new Constitution is consensus based, let's require 60 votes (out of 90 delegates) to get anything in. If you can't get 60 votes, go ahead and make a law, but it shouldn't be in the Constitution. Credit for this notion is due to a dream (yes, literally, like in bed at night) by that genius in the SoS office (who is clearly not me).

    So what if old fights are revisited. Are we any less confident in the arguments that won those fights? Or are there old fights that really ought to be revisited, and we've been shirking our civic duties by letting them lie.

    Alaska's last convention was 1954. And, get this, New Jersey had a constitutional convention in 1947. Do you really think that Oregonians are less capable of coping with big issues than people from Alaska or New Jersey?

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    Having looked at all the state Constitutions for my Master's thesis six years ago, and the various attempts to amend them, I can't remember a single successful effort to have a constitutional convention in the past 30 years. Was the 1954 Alaskan effort the last successful one? I don't recall. There were a few unsuccessful attempts, however.

    Anyway, there are lots of legal hurdles. For example, an initiative (or referral) to trash the existing constitution and replace it with something lovely and clean would run counter to the existing single-subject and single-amendment requirements for ballot measures. So first we'd have to strip those out (a daunting task in itself). Then we'd have to run counter to the will of past voters on several issues and repeal what they've passed, just to clean up the constitution.

    There seem to be a lot of different reasons that people are citing for a convention. One of them I would characterize as aesthetic, a belief that the Oregon Constitution should be something sacred and special. Unlike the U.S. Constitution, this simply hasn't been the case with most state Constitutions. There were about six different waves of state Constitution-writing in U.S. history, and the Oregon model happened to be in a wave that believed in longer constitutions (and then, of course, William U'Ren came along and we got initiatives). Anyway, we're far from the worst as far as clutter (some constitutions exceed 200,000 words or guarantee the right to fish).

    Now I WOULD agree with folks that our laws should generally be subject to change by a nice system of representative government that has lots of checks and balances, unlike the initiative and referral system (here I'm separating referrals from referenda, as referenda only deal with statutes). I just don't know how we get there. If we have to be bold and be the first successful constitutional convention since Dick Nixon was President, so be it. But I think a more feasible strategy is to figure out a legal theory or two as to why various amendments should be thrown out. And go from there. Or we could wimp out and just climb Everest instead.

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