In Knopp v Griffin-Valade, 372 Or 1 (2024), the Oregon Supreme Court[1] unanimously found that, as a consequence of the adoption of Ballot Measure 113 in 2022, the Oregon Constitution now prohibits any Legislator from standing for re-election in the election immediately following a legislative session in which that legislator has accrued ten or more absences without permission or excuse.[2]
For the reasons stated herein, I must, respectfully, dissent from the majority’s Opinion.
My Dissent centers on the inarguable fact that the conclusion that the Supreme Court reaches requires it to disregard the plain language of the Constitutional amendment that Oregon’s voters actually adopted in Measure 113. Instead, the majority adopts an interpretation which is almost-inarguably the intent of those who placed the Initiative Petition in question before Oregon voters, as well as aligning with the certified ballot title and the policy preferences of the political Party which has named each of the deciding Justices to the Oregon Supreme Court.[3]
Although my Dissent cannot alter the majority’s Opinion, it is offered in the spirit of robust, public debate which has always constituted our “Oregon System.” Oregon’s tradition of Moderation-in-Manner, Consensus-in-Decision, and Live-and-Let-Live-in-Practice has fallen on somewhat fallow ground in recent years in Oregon public life, and it is incumbent on our Judicial Branch – including the 95% of the Oregon Appellate Judiciary who have been installed on the Bench via political appointment – to discharge its duties in a spirit of respectful collegiality.[4]
My Dissent is offered in that spirit.
Background
Because the Oregon Constitution contains an unusually-high quorum requirement for legislative business to be conducted,[5] the minority has periodically throughout Oregon’s history exercised its prerogative to deny quorum[6] in order to maximize the minority’s negotiating leverage or to forestall legislative acts for which there broad consensus was lacking.[7]
The election results of Ballot Measure 113 – as well as election results since 1985 – show that Oregon Republicans are fairly well-entrenched in their minority status. While partisan politics is difficult to avoid in this hyperpartisan era, the inevitable “tit-for-tat” of our political branches is not relevant to our Constitutional analysis.[8]
In light of the majority’s somewhat-cavalier dismissal of the Petitioners’ central Constitutional argument, I offer this Dissent to ensure that our citizenry and future Courts might profit from a more thorough analysis. I suspect I am not the only Oregonian who is deeply concerned about the “moral hazard” of unmooring Constitutional jurisprudence from the plain language of our Constitution.
My Dissent responds to the majority’s Opinion in four parts:
- What was the actual issue before the Oregon Supreme Court in this controversy?
- Under what reasoning did the Oregon Supreme Court seek to explain its Opinion?
- What risk is there to the Common Good whenever a Supreme Court defies the plain language of its governing Constitution in favor of its preferred outcome?
- What is the purpose of allowing Dissenting opinions in Appellate Practice?
Part 1. What was the actual issue before the
Oregon Supreme Court in this controversy?
In this case, the actual issue confronting the Oregon Supreme Court is simple: What is the duty of the Oregon Supreme Court when the language of a Constitutional Amendment adopted by Oregon voters leads to an outcome which might be inconsistent with the will of Oregon’s voters?[9]
The language inserted into the Oregon Constitution by Oregon voters is not in dispute. Or Const, Article IV, Section 15 once read:
Punishment and expulsion of members. Either house may punish its members for disorderly behavior, and may with the concurrence of two thirds, expel a member; but not a second time for the same cause.
Or Const, Article IV, Section 15 now reads:
Punishment and expulsion of members. Either house may punish its members for disorderly behavior, and may with the concurrence of two thirds, expel a member; but not a second time for the same cause. Failure to attend, without permission or excuse, ten or more legislative floor sessions called to transact business during a regular or special legislative session shall be deemed disorderly behavior and shall disqualify the member from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.
As the majority Opinion emphasizes, in great detail, the certified ballot title included in the Voter’s Pamphlet by the Secretary of State from a submission by the Attorney General for inclusion[10] was clearly inconsistent with the language of the actual proposal.[11]
The majority’s attempt to correct this error is understandable. Our citizens have a right to expect Oregon government to be functional. But it is also a striking acknowledgement that neither the Secretary of State nor the Attorney General carefully read the proposed Constitutional amendment as they discharged their statutory responsibility to prepare the materials that ended up in the Voter’s Pamphlet.[12]
As even a cursory reading of the added language makes clear, the wording of the end of the amendment (“…for the term following the election after the member’s current term is completed.”) cannot be reconciled to the certified ballot title presented by the Attorney General and approved by the Secretary of State (“…disqualified from holding next term of office,” “…for term following current term of office,” and “…for the term following the end of the legislator’s current term) without our Supreme Court rewriting our Constitution itself.
Which is exactly what the Oregon Supreme Court did.
Part 2. Under what reasoning did the
Oregon Supreme Court seek to explain its Opinion?
In its Opinion, the majority begins by acknowledging the irreconcilability of the actual Constitutional language Oregon voters approved with the certified ballot title in the Voter’s Pamphlet.[13]
The majority then engages in a worldly, sophisticated analysis in order to justify what is, in the end, simply an act of judicial legerdemain.
The majority asserts that the “canons of construction,” that is, the interpretive methodology which guides our Supreme Court in its duties, “are merely guidelines for interpreting text that, in any given case, may give way to contrary evidence of intent [emphasis added].”[14]
In support of the majority’s argument that the Supreme Court of Oregon has the power to interpret the plain language of our Constitution by picking and choosing amongst “mere guidelines,” the majority offers State v. Lane.[15] But Lane is a curious choice for the majority to reference so prominently, given that Lane involves the interpretation of Oregon Administrative Rule 231-012-0040(2)(a) concerning whether a defendant serving multiple terms of probation should be sentenced consecutively or concurrently for a single probation violation. It is truly breathtaking to see the majority repurpose a case about the Supreme Court’s authority to interpret an ambiguous regulation issued by the Secretary of State in support of whether the Supreme Court is allowed to rewrite an unambiguous addition to the Oregon Constitution.
But the heavy lifting is only beginning. The majority then must distinguish State v. Gaines[16], which the Petitioners correctly cited as standing for the proposition that, “[w]hen the text of a statute is truly capable of having only one meaning, no weight can be given to legislative history that suggests—or even confirms—that legislators intended something different.”[17]
The majority’s Opinion then descends into parsing these seemingly conflicting cases—creating dissonance which is unsupported by either case.
What remains is a breathtaking – and inapposite – generalization to the facts of this case. Both Lane and Gaines involved judicial interpretation of legislative intent (i.e., interpretation of the actions of a co-equal Branch of Oregon government, whether it be the Oregon Legislature or the citizens of Oregon acting in the direct law-making capacity they have also asserted).[18]
But the relative flexibility of Lane and Gaines do not, and cannot, apply to the interpretation of the unimpeachable source of all legal authority in Oregon government: the Oregon Constitution. This is so because the citizenry of Oregon has reserved ultimate political power in Oregon to themselves[19] (“The people… have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.”).
Similarly, the citizenry has pre-empted its agents in the Executive, Legislative, and Judicial Branches from unilaterally changing the wording of our Constitution[20]—an authority which the majority purports to exercise in its Opinion.
While it is beyond dispute that the Oregon Supreme Court is endowed with “the judicial power,”[21] and therefore is duty-bound to act as a co-equal Branch of Oregon government when interpreting our Constitution and adjudicating legal disputes, it does not follow that “the judicial power” somehow nullifies the limits that Oregon’s citizenry has placed on the government’s power via Or Const, Article I, Section 1 and Or Const, Article XVII.
In Constitutional interpretation, the Oregon Supreme Court must necessarily be bound by the Oregon Constitution, an authority which exists above, not below, the Oregon Supreme Court.[22]
In its Opinion, the majority cites to Couey v. Atkins[23] in an attempt to anchor its revisionism within the context of historical interpretation of the Oregon Constitution. In Couey, the majority describes the traditional method by which Constitutional analysis has been conducted in Oregon: “We interpret the Oregon Constitution by ‘examin[ing] the text, in its historical context and in light of relevant case law, to determine the meaning of the provision at issue most likely understood by those who adopted it, with the ultimate objective of identifying relevant underlying principles that may inform our application of the constitutional text to modern circumstances’.”[24]
How are we to understand: “We interpret the Oregon Constitution by ‘examin[ing] the text”? The only reason to expand the search into “its historical context and in light of relevant case law” is so that the Court can faithfully apply the understanding of the voters as they voted on the plain language of the proposed Constitutional amendment, not so that the Oregon Supreme Court can rationalize substituting its preferred outcome for something that it doesn’t prefer.
That’s the only way any Supreme Court can interpret Constitutional language: By examining what possible interpretation can be assigned to a series of words…and then faithfully applying the words if they are not hopelessly ambiguous. Since it is utterly impossible to determine how many, if any, Oregonians actually read the Voter’s Pamphlet entry regarding Ballot Measure 113, relying upon it to justify substitution is simply usurpation.
Interestingly, Couey also contains an extended discussion about how the Oregon Supreme Court is supposed to understand the meaning of the (undefined) “judicial power” delegated to the Judicial Branch by our Constitution. Specifically, Couey states, “Because the text of Article VII (Amended), section 1, offers little help in discerning what its framers understood ‘judicial power’ to mean, we must examine the historical context of its adoption for possible evidence of a settled understanding of the term [emphasis added].”[25] The Couey Court is acknowledging that if the Constitution has offered a plain meaning to “judicial power,” that would have been the end of the analysis.
In its analysis, the majority also offers Lipscomb v. State Bd. of Higher Ed.,[26] which was a Constitutional-interpretation case in which the wording of the Amendment was internally ambiguous, which is a fundamentally different fact pattern than in the instant case in which the plain language of the Amendment is utterly unambiguous.
This is the direct issue that Petitioners brought to the attention of the Oregon Supreme Court when they cited Northwest Natural Gas Co. v. Frank.[27] In Northwest Natural Gas, the Oregon Supreme Court decided exactly opposite of the majority here—explicitly declining to “read into” the intention of the Parties because, like here, “[t]here is no reliable record of what the voters intended beyond the language of the amendment itself. [emphasuis added].[28]
The majority misinterprets the reticence of the Supreme Court in Northwest Natural Gas (“we are slow to go beyond the face of the enacted language into materials not presented to the public at large [emphasis added]”) and ignores what the Supreme Court actually did in that case.
To understand the Oregon Supreme Court’s reasoning in Northwest Natural Gas, which is directly on point yet not overruled by the Oregon Supreme Court in the instant Opinion, we need to provide a fuller context:
The requirement that we give effect to the words of an enactment is doubly applicable when the law in question is a constitutional amendment adopted by the voters. There is no reliable record of what the voters intended beyond the language of the amendment itself. There are no official committees, no minutes, no formal debates. Given the fact that it is the electorate, the ultimate sovereign, which has adopted the amendment to our Constitution, we are slow to go beyond the face of the enacted language into materials not presented to the public at large.[29]
As is made clear by the fuller context, the Supreme Court of Oregon in Northwest Natural Gas is not claiming that materials “presented to the public at large” can somehow magically turn a “shall not” into a “shall.” Rather, the Supreme Court of Oregon in Northwest Natural Gas was exercising the prudent judicial virtue of explaining what that instant Opinion was not deciding—because they had not been asked to decide what to do when the wording of the Voter’s Pamphlet directly contradicts the language of a Constitutional amendment.
It is the job of an Appellate Court to decide ambiguities and reconcile different provisions at the same level of authority which have been placed by our Framers in deliberate tension.[30] But, just as in the outcome of Northwest Natural Gas, there can be no tension between two legal provisions which are contained in different legal hierarchies.[31]
In this instance, there is an irreconcilable disconnect between the Oregon Constitution and the Voter’s Pamphlet Statement regarding Ballot Measure 113. The majority’s decision nullifies the plain language of the Oregon Constitution in favor of what was said in the Voter’s Pamphlet.
It is as simple as that.
Part 3. What risk is there when a Supreme Court disregards the plain language of its governing Constitution in favor of its preferred outcome?
The path that the majority chooses to follow in its Opinion is to assume – or perhaps the better word is “usurp” – the right to “clean up” an amendment to the Oregon Constitution which is, in the Opinion of the majority, “defective.”
Unfortunately, the apparent negligence on the part of the Executive Branch in preparing the statutorily-required “certified ballot title”[32] created a problem which the Oregon Supreme Court is not empowered to “correct” because doing so requires a usurpation of the power to form and define our State Constitution—a right which our people have reserved to themselves alone. This, and this alone, is the central holding of Northwest Natural Gas. [33]
“Giving effect” to what was probably the understanding of a significant percentage of Oregon voters who considered Ballot Measure 113 is merely another way of saying: “Usurping power that Oregon voters have reserved to themselves.”
Usurpation in the name of good intentions and/or expedience cannot change the fact that it is still usurpation; and, like all acts of juridical usurpation, it necessarily contains within it a long-term cost to our tradition of Constitutional governance under the Rule of Law.
A moment’s reflection of the new precedent the Oregon Supreme Court has set can help us understand why this new precedent is so alarming.
What incentive is there at this point for the Attorney General of Oregon – a partisan political official – to not “rewrite” every certified ballot title to reflect her partisan political interest? What residual limits which might have existed up to this point have been swept away by this precedent. The majority’s ruling will only drag the Oregon Supreme Court further into what has already become a partisan and demoralizingly partisan process of Ballot Titling.
But because the Supreme Court “fixed” what was appears to have been an obvious screw-up on the part of the Executive Branch, no one in power in Oregon government currently has any incentive whatsoever to even determine why the statutory process of determining a certified ballot title is malfunctioning.
Part 4. What is the purpose of allowing
Dissenting opinions in Appellate Practice?
As a preliminary matter, it is critically important to first explain what a Dissent isn’t.
A Dissent is not a vehicle to engage in politics,[34] and the result that any Appellate Court comes to should be carefully reasoned so that the identity of the litigants and the Appellate Judges’ personal opinions are irrelevant to the final outcome.
Rather, the purpose of our Appellate Courts is to focus themselves on the technical process by which the ordered system within which factional competition occurs is subjected to balanced limitation.
It is only in this sense that the capacity of a single Justice to Dissent from his or her colleagues’ Opinion takes on any meaning for the Common Good.
Any valid Dissent at the Appellate level simply seeks – in a collaborative manner – to discharge the responsibility of Appellate Courts to capture, as vigorously as possible, the best reasoning supporting the desired outcome of the non-prevailing Parties in a disputed issue.[35]
This is not to advocate for an interpretive methodology which is – unchanging and unchangeable – “trapped in amber.” The central purpose of Oregon government – To maximize Individual Autonomy in a manner not inconsistent with the Common Good – is unattainable without change.
Because of the essential balancing nature of the Judiciary in our “Common Law System,” our Framers enshrined almost no technical guidance concerning the interpretive methodology[36] by which our Appellate Courts go about the work of Constitutional interpretation. Each generation of jurists must reason their way through “that search, among shadows and images,” for the Constitutional Truth “which is unknown yet near.”[37]
As I tried to make clear at the beginning of this Dissent,[38] I do not consider my duty to be a cheerleader for any faction in our political Branches. I am a career soldier-lawyer who has dedicated his life to the impartial, apolitical, nonpartisan delivery of legal services to our people. The taxpayers paid my way through the 23rd grade, and I will spend the rest of my life repaying a debt to our people which can never be repaid.
Several years ago, I was asked by the Korean War Veterans’ Association to deliver a Memorial Day Speech in Wilsonville at our Korean War Memorial. In my speech, I shared with those assembled there a simple sentiment:
People often ask me why young soldiers go off to war. And the only answer I’ve ever been able to offer is that young soldiers go off to war to ensure there is something worth coming home to…even if they do not. This opinion will, no doubt, elicit scorn from some for whom partisanship is more important than rigor.[39] But the public nature of our duty makes criticism indispensable. It is my sincerest hope that my Dissent serves to blaze a trail back to a less-partisan, less-politicized, more-effective approach to the amendment of our magnificent Constitution. It has served us too well
[1] FLYNN, Chief Justice, and DUNCAN, GARRETT, DeHOOG, BUSHONG, and JAMES, Justices, and WALTERS, Senior Judge
[2] The specific holding of the Court was: that the phrase “‘the term following the election after the member’s current term is completed’ refers to the term immediately following the term in which a legislator accrued 10 or more unexcused absences during a legislative session.
[3] This is unsurprising given the fact that the policy preferences of those two groups are largely indistinguishable.
[4] At its best, our Oregon Appellate Judiciary has always exemplified the core maxim of lawyerly practice: “It is possible to disagree without being disagreeable.”
[5] Or Const, Article IV, §12 holds that “Two thirds of each house shall constitute a quorum to do business.” Among the other States, the Indiana Constitution (at Article 4, §11), the Tennessee Constitution (at Art. II, §11), and the Texas Constitution (Article 3, Section §10) also require two-thirds of Legislators be present to constitute a quorum; the Massachusetts Constitution (Part the Second, Chapter I, Section II, Article IX (for the Senate) and Section III, Article IX (for the House)) requires two-fifths in its Senate and three-eighths in its House; and the remaining forty-five States require a simple majority. See, also, James Wallner, “A Brief History of Legislative Quorums,” Legislative Procedure, June 9, 2020.
[6] Oregon Progressives under the leadership of William Simon U’ren conducted what became known as the “Holdup of 1897,” in which the Oregon House of Representatives refused to meet for an entire year in order to deny Oregon U.S. Senator John H. Mitchell (born “John M. Hipple” in 1835 in Pennsylvania and everywhere a polyamorous bigamist) re-election.
Oregon Progressivism of that era – intended as counterweight against political corruption and the concentration of capital – rallied in favor of “Direct Democracy,” which led Oregon voters to alter Oregon’s political economy in favor of the Direct Primary, the opposition of corruption in the elections process, and the Recall of corrupt officeholders. Perhaps reflecting a less hasty, less partisan era, however, our strict quorum rules were left untouched.
[7] In a recent example of the bipartisan nature of partisan political competition, Democratic Texas State Legislators fled Texas during the 2021 Texas Legislative Sessions in order to, as reported by the Texas Tribune, “again deny Republicans the quorum needed to pass new voting restrictions with 26 days left in a special legislative session called largely for that purpose.”
[8] Like Great Britain (which has used the system since the Middle Ages), America generally uses to so-called “First-Past-the-Post” (FPTP) system to select legislators. (This is contrasted with the “Proportional Representation” system generally in use in countries outside of the Anglo-American tradition.)
One of the most common characteristics of the FPTP system is the relative malleability of the factions which are colloquially known as our “Political Parties.” Political Parties are nowhere contemplated in structure of American Constitutional Government, but they are an almost-inevitable byproduct of that system. See, e.g., Pruitt, Sarah. “The Founding Fathers Feared Political Factions Would Tear the Nation Apart.” History.com. Accessed February 3, 2024.
[9] The fact that this is an implied assumption of the part of the majority illustrates why actual diversity – that is, diversity of perspective – is a critically-important characteristic in any functional appellate system.
[10] The ballot title caption provided:
“Amends Constitution: Legislators with ten unexcused absences from floor sessions disqualified from holding next term of office.”
(Emphasis added.) The result statements provided:
“Result of ‘Yes’ Vote: ‘Yes’ vote disqualifies legislators with ten unexcused absences from legislative floor sessions from holding office as legislator for term following current term of office.
“Result of ‘No’ Vote: ‘No’ vote retains existing law. Absent legislators may be punished by legislative chamber (potentially expelled by supermajority); present legislators have legal authority to compel attendance.”
(Emphasis added.) And the summary provided, in relevant part:
“Measure specifies that ‘disorderly behavior’ includes legislator’s failure to attend ten or more legislative floor sessions during a regular or special legislative session without permission or excuse. Under measure, legislator who engages in ‘disorderly behavior’ through unexcused absences is disqualified from serving as a Senator or Representative for the term following the end of the legislator’s current term.”
(Emphasis added.)
[11] “…for the term following the election after the member’s current term is completed.”
[12] As the majority correctly notes,
Measure 113 originated as an initiative petition, for which the Attorney General must prepare a draft ballot title and then, following a comment period, a certified ballot title. ORS 250.065 – 250.067. The ballot title for a state measure consists of three parts: (1) a caption of not more than 15 words that reasonably identifies the measure’s subject matter; (2) simple and understandable statements of 25 words or less that describe the results of a “yes” vote and a “no” vote; and (3) a concise and impartial statement of not more than 125 words that summarizes the measure and its major effect. ORS 250.035(2).
[13] Id. 4-7.
[14] Id., at 629.
[15] 357 Or 619, 355 P3d 914 (2015)
[16] 346 Or 160, 206 P3d 1042 (2009)
[17] Id., at 23.
[18] The interpretative methodology of statutory authority is not always inappropriate to the interpretation of citizen-made decisions. Oregon’s system of Direct Democracy allows the people to directly pass laws and to amend the Oregon Constitution. In other words, the citizenry of Oregon has reserved to itself both sovereign authority (via its pre-emption of all Constitutional law-making through Article I, Section 1 of our Constitution) and authority to act as a co-equal Branch of Oregon government (via the citizenry’s delegation to itself of statutory law-making power via the so-called “Oregon System”).
[19] Or Const, Article I, §1: Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper [emphasis added].”
[20] Or Const, Article XVII (Amendments and Revisions) (Oregon’s citizenry explicitly reserves to itself the authority to approve Amendments (Section 1) and Revisions (Section 2) to the Oregon Constitution).
[21] Or Const, Article VII (Judicial Branch), Section 1: “The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law.
[22] By way of metaphor, Constitutions are to Supreme Courts what the Bible is to theologians. In either case, “filling in the blanks” invariably leads to catastrophe; and, in both cases, no word can be considered “surplusage” which can simply be disregarded.
[23] 357 Or 460, 355 P3d 866 (2015)
[24] Id., at 12, citing Couey v. Atkins, 357 Ore. 460, 490-91, 355 P3d 866 (2015).
[25] Couey, at 492-493.
[26] 305 Ore. 472, 753 P2d 939 (1988)
[27] 293 Or 374, 648 P2d 1284 (1982)
[28] Id., at 26, citing Northwest Natural Gas Co. v. Frank, 293 Ore. 374, 381, P2d 1284 (1982)
[29] Id., 380-382.
[30] See, e.g., U.S. Constitution, Article VI, Clause 2 and U.S. Constitution, Tenth Amendment.
[31] That is, a local city council ordinance forbidding the United States from declaring War is not – and cannot be – “in tension” with Article I, Section 8, Clause 11 of the U.S. Constitution (delegating to Congress the power “To declare War.”
[32] In light of the glaring inconsistency between the language provided by the Attorney General and the plain language of Ballot Measure 113 which the majority takes upon itself to paper over, it is noteworthy that the majority did not avail itself of its right as a co-equal branch of Oregon government to summon the Attorney General and Secretary of State before it. That oversight is unfortunate for at least three reasons:
- The majority has denied the Executive Branch an opportunity to fully and transparently provide what might be a reasonable explanation as to why the Executive Branch appears to have fallen short of its statutory responsibilities under ORS 250.005, et seq.
- The majority has denied the Legislative Branch an opportunity to fully and transparently examine whether delegating the ballot titling process under ORS 250.065, et seq, to partisan political authorities in the Executive Branch is prudent.
- The majority has denied Oregon voters an opportunity to confront whether the current manner in which Constitutional Amendments are made to the Oregon Constitution is consistent with Article I, Section 1 of the Oregon Constitution. See, e.g., FN 16, below.
It is an axiom of warfighting that “No one ever learned anything from winning a war.” As much as our citizens have a right to expect Oregon government to be functional, the majority’s Opinion reflects a superficial understanding of what “functional” means in the context of Constitutional interpretation. The functional of the Judiciary is not to engage in ex post facto “jury rigging” of errors because such behavior both weakens the Rule of Law and denies the appropriate stakeholders the opportunity to learn from previous errors. If the past half-century of public policy formation in Oregon is any indication, the reluctance of government to learn from its mistakes – a reluctance aided and abetted by an overly-agreeable Appellate Judiciary – will continue.
It is the contention of this Dissent that the responsibility of the Judiciary is far more simple: To apply the language of the Constitution rigorously, without prejudice to either side of a dispute. In our system of self-government, if the ultimate sovereign – that is, the citizenry – disagrees with an outcome it has chosen to place into its Constitution, then it is the sole prerogative of the citizenry to fix it. (Amending the Oregon Constitution is not a task with which Oregon voters are unfamiliar, at least as evidenced by the 259 times Oregon voters have amended our Constitution in the past 165 years.) If the citizenry also decides that it has allowed structural defects to creep into the process, then it has absolute authority to also repair those.
It is also worthy of note that this is not the first time the challenges of ballot titling have appeared. In In re Oregon Laws 1967, 247 Ore. 488, 431 P.2d 1 (1967), the Legislature passed a law (1967 Or. Laws ch. 364, §4) which purported to require the Oregon Attorney General to transmit to the Oregon Supreme Court a copy of any measure to be voted on by the people of Oregon for the Supreme Court’s review and approval. “Section 4 states that it is now our duty to ‘review’ the title prepared by the Attorney General and either approve it or write a substitute title and file it with the Secretary of State.” Id., at 491. The Supreme Court found that the Legislature’s tasking of the Oregon Supreme Court to give an “advisory opinion” violated the separation of powers, but the Court’s opinion did not preclude the creation of a separate impartial, apolitical, nonpartisan body which would review Ballot Titling.
[34] That is, any interpretive methodology must be insulated as much as humanly possible from the to-and-fro of “politics,” as defined as “the competition amongst factions within an ordered system wherein each faction seeks to maximize its interests.”
[35] The majority’s Opinion, by definition, explains the best argument in support of the majority’s decision in favor of the Prevailing Party.
[36] The two general theories of Constitutional interpretation are “Textualism” and “the Living Constitution.” Neither are Constitutionally-mandated and neither are Constitutionally-proscribed; but “Textualism” has generally displaced “the Living Constitution” methodology because the latter tends to unmoor appellate judges (and even Justices) from Constitutional restraint.
The matter of the “moral hazard” built into “the Living Constitution” methodology and the triumph of the “Textualism” methodology is best addressed for a broader audience in Antonin Scalia, et al., A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ: Princeton University Press, 2018).
[37] The very concept of allowing Dissenting Opinions evolved (1) to ensure that competing Constitutional priorities can be vigorously analyzed and clearly understood and (2) to demonstrate to remote posterity that we, their forebears, were neither foolish nor undiligent in the discharge of self-government and took seriously our role in what Edmund Burke calls the “Eternal Society.” See, e.g., David Bromwich, The Intellectual Life of Edmund Burke: From the Sublime and Beautiful to American Independence. (Cambridge, MA: Belknap Press of Harvard University Press, 2014).
[38] “The election results of Ballot Measure 113 – as well as election results since 1985 – show that Oregon Republicans are fairly well-entrenched in their minority status.”
[39] It may also elicit passionate disagreement from the majority, but that is something that is to be celebrated. Iron sharpens iron.
Crowe for Justice 
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