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State of Oregon Law Library Legal Research Blog

Oregon's Constitution and Constitutional Convention

by Georgia Armitage on 2020-09-22T12:11:00-07:00 in Historical Collection, Oregon History | 0 Comments

 

Last week we celebrated Constitution Day and Citizenship Day, the day the United States Constitution was signed. In addition to the United States Constitution, every state also has its own constitution. Let's look at Oregon's Constitution – its importance, history, and how to research it.

Historic importance of early state constitutions

Most liberties the federal bill of rights guarantees only applied to the federal government until the 20th century. If your state constitution did not grant you the right to say, freedom of religion, your state could discriminate against you based on your religion. In 1826, Delaware outlawed blasphemy. Other states used public funds to support churches.

Eventually, the Supreme Court began applying amendments in the Bill of Rights to state law – a process called incorporation. The 14th Amendment made incorporation possible:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Despite this, the Supreme Court did not apply the 14th Amendment to states until the 20th century. 


State constitutions can expand civil liberties

Today, state constitutions can protect rights in ways that the United States Constitution does not. For example, in Oregon, our free speech rights are greater at the state level than at the federal level. Similarly, other state constitutions guarantee workers' rights or a clean environment.

But lawyers neglected state constitutions until relatively recently. Until the 1970s, lawyers turned to the federal bill of rights without consulting state constitutions. A former Oregon Supreme Court Justice, Justice Hans Linde, advocated for lawyers to look to state constitutions, pointing to situations where state constitutions better protect individual rights. This approach is called new judicial federalism. Take Tanner v. Lloyd Corp., Ltd. A mall stopped protestors from handing out anti-war materials. The protestors took their case to federal court and lost. The United States Supreme Court determined that this did not violate the 1st Amendment – free speech. Under the Oregon Constitution, the protesters likely would have won. [1]


Interpreting the Oregon Constitution

When the Oregon Supreme Court interprets the Oregon Constitution, they often look to historical sources to understand what the framers and the people who ratified it intended. [2] Among other resources, they look to dictionaries available in that period, newspaper accounts, and Oregon Constitutional Convention materials. [3]

The court also looks to other states' materials. [4] State constitutions either stand on the shoulders of giants or plagiarize (depending on your current state of frustration at the framers’ inability to cite sources). Most state constitutions borrow from other states and the United States Constitution. 

The framers based most of the Oregon Constitution on the 1851 Indiana Constitution. As an Oregon delegate proclaimed, “if [I] was sent here to form a new Bible, [I] would copy the old one, and if [I] was employed To make a new hymn book, [I] would report an old one—they are better than any [I] could make.” But the framers also used materials from a number of different states – especially Midwestern states, unsurprising since many Oregon pioneers were originally from the Midwest.

Indiana 1851 Constitution materials

History of the Oregon Constitutional Convention

In 1849, at the Oregon Territorial Legislature’s first session, a representative proposed statehood. The bill failed. [5] After 3 more proposals and almost 10 years, the Oregon territory decided to hold a constitutional convention in 1857. [6]

Slavery drove the change. [6] Before 1857, Oregon’s Whig party minority wanted to avoid statehood, fearing that the Democratic party would gain power. [7] But in 1854, the Kansas-Nebraska Act passed. It allowed territories to determine whether they would be free or slave states. Previously under the Missouri Compromise, new free states were allowed above the northern Missouri border and new slave states below. The Kansas-Nebraska Act threw this into question, and pro-slavery and anti-slavery groups fought each other in Kansas. 

Oregon's Whigs and Democrats alike found national politics troubling. Whigs and Republicans worried that the federal government might impose slavery in Oregon. Democrats disliked the notion that the federal government could control their policies. [8] As a result, both groups decided that Oregon should become a state, holding a constitutional convention 1857. 

Unfortunately, we know relatively little about the debates surrounding the Oregon Constitution – what we have comes mostly from newspapers favoring specific parties and a few materials from the convention that Professor Claudia Burton discovered. The delegates refused to pay for a court reporter, foreshadowing the penny-pinching that characterized the convention.

As Judge Deady – one of the delegates – put it, “every question which came up here was first discussed on the ground of its expense, as though a government could be devised without expense." [9] The size of juries hinged on the cost. [10] Government salaries were so low that one delegate remarked in frustration: 

“In the opinion of this convention, twelve dollars and fifty-cents is an ample salary for the governor; provided, that after the good old school master fashion, he boards around and that the committee of the whole be instructed so to report.”

Racism

Racism defined Oregon's new constitution: “172 of its 185 sections were copied from other constitutions, and the thirteen original ones consisted almost entirely of various racial exclusions and measures limiting state expenditures.” [11]

Slavery remained a contested topic, and convention considered passing a resolution not to debate it. The Democrats were split regarding slavery and feared that discussing it would break the party’s united majority. Thus, the question of whether slavery would be allowed, and whether African Americans could live in Oregon at all, went to a public vote. In the end, Oregon choose to be a free state, but to exclude African Americans from living there.

Furthermore, the convention went to some efforts to ensure that only whites could vote. As they debated the text of the suffrage sections, the delegates focused largely on whether the wording could be construed in any way that might allow non-whites to vote. One delegate worried that “quarter-blood negroes” would be able to vote. Another suggested that the wording should read, “pure white.” One argued that “chinaman” should be added the phrase “no negro or mulatto should have the right of suffrage.” The delegates added the last.  

The final phrasing (repealed in 1927) read: “No Negro, Chinaman, or Mulatto shall have the right of suffrage.”

Oregon Statehood

Congress found Oregon’s stance on minorities polarizing. On the one hand, Southerners did not want another free state. One the other, Republicans disliked Oregon’s discriminatory policies. The bill for Oregon statehood passed the Senate, but it remained contested in the House. 

The Oregon History Project's excerpt of the Senate debate gives a sense of the national politics surrounding Oregon statehood. In it, Missouri Senator John B. Clarke argues that Oregon should be admitted despite the South’s reservations, because “whenever we surrender the right to determine who shall vote in the States, we do not know how soon we will be deprived of that right ourselves.” Furthermore, he argues that those concerned about Oregon’s discriminatory voting policies are hypocrites because they limit voting to the wealthy.

Eventually, a few House Republicans determined that Oregon should receive statehood because Oregon had followed the correct procedures – they held a convention and a ratification vote. This tipped the scales, and Oregon became a state on February 14th, 1859. 


Our State Constitutional Materials

Ready to research?

The State of Oregon Law Library maintains a list of all of our state and tribal constitutions and constitutional research materials. You can also search our catalog to see what materials we have available. Although the library building is currently closed to the public due to COVID-19, you can email us your research questions. We’re happy to help you find electronic versions of materials or scan physical ones.

Primary Resources:

     Here is a short list of the state constitutions Oregon’s used (or likely used) [12]:

  • Connecticut 1818
  • Indiana 1851
  • Iowa 1846
  • Iowa 1857
  • Illinois 1818
  • Maine 1819
  • Massachusetts 1780
  • Michigan 1850
  • Ohio 1851
  • Wisconsin 1848
  • Texas 1845

Secondary Sources:

Happy researching! Stay safe!

Works Cited

[1] Hans A. Linde, "First Things First: Rediscovering the States' Bills of Rights," University of Baltimore Law Review 9, no. 3 (1980): 389, HeinOnline.

[2] Jack L. Landau, "An Introduction to Oregon Constitutional Interpretation," Willamette Law Review 55, no. 2 (2019): 269, 293, HeinOnline.

[3] Ibid., 276, 293-294.

[4] Ibid., 297-300.

[5] David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74, no. 2 (1995): 613-615, HeinOnline.

[6] Ibid., 615.

[7] Ibid., 614.

[8] Ibid., 617.

[9] Oregon, The Oregon constitution and proceedings and debates of the Constitutional Convention of 1857, ed. Charles Henry Carey, 369-370, quoted in David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74, no. 2 (1995): 623, HeinOnline.

[10] Schuman 622.

[11] Ibid., 611.

[12] Palmer, W.C.. "The Sources of the Oregon Constitution." Oregon Law Review 5, no. 3 (1926): 200-215, HeinOnline.


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