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.