Oregon History: State Constitutions Invite Political Amendments

We love irony, so how delicious to see the government class end up on the wrong end of the “Don’t Put that in Our Sacred Constitution” argument.

For those not fortunate enough to live in Oregon, supporters of using a huge increase in the state’s cigarette tax to fund expanded health care for children lacked the votes in the 2005 Legislature to pass a statute, but, had the votes to put Measure # 50 – a constitutional amendment – on the 2007 ballot.

That’s ironic because it’s usually the government class using the “Not in the Constitution” argument to defeat constitutional amendments that would cause them grief, usually limiting their power to raise taxes.

“Tax policy is too transitory and political to be set by constitutional amendments which can only be changed by a subsequent vote of the people,” they argue. “Constitutions should be reserved for long-term statements of principle.”

This ignores the fact that Oregonians have amended their Constitution over 200 times since 1902.

Back to Ballot Measure 50, the 2007 measure that would have put the cigarette tax in Oregon’s Constitution.

Like water over Niagra, money poured into the state to defeat the proposal.

Big tobacco spent many millions to defeat the measure. One of their main selling points: Constitutions are sacred documents, and, shouldn’t be soiled with the muck of politics.

This notion that even state Constitutions should be revered and elevated high above the political fray betrays an understandable confusion about state constitutions, in particular, and, the evolution of federalism, in general.

Most important is the fact that the federal Constitution is a grant of power – the federal government can do only what the federal Constitution says it can – while Oregon’s Constitution is a limit on power – the state government can do anything it wants, unless the state constitution says it can’t.

There is little pressure to amend the federal constitution, then. The federal government is always figuring out ways to expand its power.

For those seeking to thwart the state government, however, amending the state constitution is often the most efficient way to achieve a short-term, political objective.

Indeed, the reason the Democrats in the 2005 Legislature couldn’t get enough votes to enact the cigarette tax increase by statute dates back to 1996 and Ballot Measure 25. That initiative, approved by 54 % of the voters, required that three-fifths (3/5) of the legislature approve of any new taxes.

Since it only took a simple majority to refer the constitutional amendment to the ballot, and, since water flows down hill, the tax supporters grabbed at the best option they could see and, hence, the futile attempt to put a specific product tax in Oregon’s Constitution.

This pressure to monkey with Oregon’s Constitution offers no real concern for two (2) reasons:

1) The fact that Ballot Measure 37 – a statutory initiative rewriting Oregon’s hallowed land-use rules – kept the legislature tied up in knots for a number of years should be a clue to the malcontents that the easier task of initiating statutes is sufficient to really mess with the state government; and,

2) America is a federal system. It wasn’t always true, but, because of developments in federal law over the last 100 years, most federal constitutional claims can be brought in state court, and, the federal courts can void most any state law.

So, even though the Oregon Constitution can be easily amended, the basic guarantees of the federal Constitution – most importantly the Bill of Rights – remain available to Oregonians.

Not even changes in the state Constitution can take those away.

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

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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Posted by at 06:50 | Posted in Measure 37 | 4 Comments |Email This Post Email This Post |Print This Post Print This Post
  • CRAWDUDE

    As much as people want to believe big tabacco somehow pulled the wool over the idiot voters eyes, I don’t believe it to be true.

    I personally voted No because it would have insured children from families that could afford their own insurance and this was also the reason the liberals couldn’t get the votes necessary to release M50 as a statute; they have no one to blame but themselves. Basically the liberals were going to use it as an example for leverage to try and push the SCHIP bill through nationally.

    I don’t believe in amending the constitution except under extraordinary conditions………..this wasn’t it!

    We have a health plan in Oregon that covers children of poorer people and they still can’t get them all covered because their parents can’t be bothered to enroll them. Children of parents on welfare and SSI are covered under Medicare and Medicaid………again all their parents have to do is enroll them.

    As for amending the constitution, I don’t agree with it regardless of whether some researcher believes all state constitutions are worthless because we’ve allowed the Feds to over step their boundries. As I’ve noticed the Oregon constitution, especially the initiative process works fine…………….and the only people I’ve seen that seem to thwart the will of the people or change how it works have been the liberal members of the Oregon government and the Oregon Supreme Court. Contrary to Mr. Wassons assertion that the Feds can overturn any state law……………..I have yet to see it in this state, seems its only the before mentioned groups and entities (which I have no doubt he blindly supports).

    No Mr. Wasson, as they say ” a rose by any other name is still as rose” and a steaming pile of manure given a catchy ballot name is still a steaming pile of manure…………….thank goodness the electorate was “intelligent” enough to see through the crocodile tears of the state liberals who submitted the pile.

    I’m also very sorry that after 10 years of study you could only come up with a flawed analysis and an obvious lack of respect for the intelligence of the average Oregon voter.

    This article almost reminds me of the one a U of O professor released stating paying taxes makes people feel good, it also makes about as much sense!

  • DMV

    We agree on this. I voted no for 50 because it was punitive, political and had nothing to do with “the children”.

  • Steve Plunk

    I find this piece somewhat biased and incomplete.

    The idea that “big tobacco”, itself a loaded phrase, fooled us all is just wrong. For the reasons CRAWDUDE makes I too voted no and I expect many other followed suit. W are somewhat educated in politics and know what we are doing.

    The reverence we have for the constitution is because it protects us from the state. If the state legislature initiates a change in the constitution you can bet it is not for the benefit of the people.

    Using ballot measure 37 as a counter to measure 50 ignores that vital point. Measure 37 was initiated by the people of Oregon because our state legislature would not fix the inequities of our broken land use system. There was no groundswell of citizens calling for an increased cigarette tax and a new health program, it was the Dems in the legislature trying to pull a fast one.

    With due respect I think Mr. Wasson should go back and rethink this one without the bias of someone who supports the state government over the people of Oregon. The constitution is sacred to Oregonians and the ability of the people, not the legislature, to amend it is even more sacred.

  • Jerry

    Smart people voted no because all parents should provide for their own children – not strangers who smoke.

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