Oregon History: 1913 Supreme Courts Begins Attack on Initiative

As a lawyer in turn-of-last century Oregon, Justice Thomas A. McBride played a central role in the composition of, and agitation for, the initiative and referendum.

McBride served on the Executive Committee of the People’s Power League and understood as well as any, and better than most, what the framers of the Initiative Amendments intended.

In his concurrence in Schubel v. Olcott, Mr. Justice McBride taught that the Popular Legislature — the people acting through the initiative & referendum — is a constitutional institution deserving of the same respect and deference paid to any other constitutional institution.

Justice Geo. H. Burnett, on the other hand, was an enemy of popular government, and, deserves to be ignored.

Burnett, the nephew of the first white governor of California, retired as president of the Oregon Bar Association in 1904 with this warning:

“Order is Heaven’s first law, and, this confessed,

“Some are, and must be, greater than the rest.”

In particular, Burnett scoffed at the notion that U.S. Senators should be elected by the people, rather than appointed by the state legislature.

“The original reasons for election of Senators by the present mode and so preventing sudden changes in the National Senate under stress of popular clamor still hold good.”

Imagine how bothered Burnett and his fellows must have been when, just three years later, the efforts of a gang led by Oregon City lawyer William Simon U’Ren culminated in Oregon becoming the first state in the country to choose its federal senators at the polls.

And, imagine how worried Burnett must have been when U’Ren declared war on the social structure that would soon elevate him, Burnett, to the state’s Supreme Bench, a position he would use to cripple the initiative power.

The Supreme Court established in the original state Constitution proved itself overwhelmed as Oregon grew.

The 1907 Legislature took notice and added two (2) “commissioners” to help the Court catch up.

The lawmakers also referred a plan to the voters to expand the Supreme Court permanently. Sixty-two (62) percent of the electorate said “No.”

The 1909 Legislature added the two justices, anyway, and attached an emergency clause, placing the legislation beyond the reach of the referendum.

When ground was broken for the free-standing Supreme Court Temple sometime soon after, the architects clearly planned for a 5-member Supreme Tribunal. Before the building was completed, though, the 1913 Legislature increased the Court from five (5) to seven (7).

The cynic might argue that this was nothing more than an ultimately-successful attempt to pack the Oregon Supreme Court with a majority that could be trusted to stop U’ren’s (r)evolution, and, put an end to all this populist foolishness.

To compound their miseries, the (r)evolutionaries could find no shelter at the federal courts.

In 1912, the United States Supreme Court, invoking the “Political Question” Doctrine, refused to consider an attack, originating in Oregon, on the initiative and referendum based on the federal Constitution.

This made state supreme courts the true courts of last resort as concerns most initiative questions.

The newly expanded Oregon Supreme Court quickly issued a series of results-driven, politically-motivated initiative decisions that defy harmonization.

These indefensible rulings provided a blue-print for state Supreme Courts across the West.

With the federal courts unwilling to rescue it, the populist conflagration was extinguished much faster than it emerged.

Which would all be of just historical interest, except that the initiative has never completely recovered.

Rather than a century’s worth of well-reasoned judicial doctrines to guide use of the petition process, initiative law across the states is riddled with confusing and contradictory proclamations that ensure misunderstanding and cast state Supreme Courts into a purely political role.

Oregon initiative law is a prime example; but, that’s a story for another day.

Greg Wasson has spent 10 years researching the history of the evolution of popular rule in America. He operates a research service based at the Oregon State Archives. He specializes in researching the Oregon Revised Statutes, as enacted and changed by the Oregon Legislature.

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