Omar Bennett
The Oregon Constitution grants a wide range of rights and protections that often surpass those offered by the US Constitution. Notably, the Oregon Constitution does not explicitly include a Due Process Clause or an Equal Protection Clause. However, Oregon courts have interpreted other provisions in the state constitution as providing similar or even greater protections. For instance, Article I, Section 20 of the Oregon Constitution has been interpreted to offer broader protections than the Equal Protection Clause, and Article I, Section 10 has been found to provide more expansive public hearing rights than the Due Process Clause. The absence of a Due Process Clause in the Oregon Constitution raises questions about the role of state courts and the validity of state laws and executive branch actions.
| Characteristics | Values |
|---|---|
| Need for a due process clause | Not expressly provided for in the Oregon Constitution |
| Article I, Section 20 of the Oregon Constitution | Endorses exacting scrutiny on a broader selection of classes than what is protected by the Equal Protection Clause |
| Article I, Section 8 of the Oregon Constitution | Protects the right to free expression of opinion and the right to speak, write, or print freely |
| Article XVII, Section 1 of the Oregon Constitution | Requires compliance for adding new sections to the Constitution |
| State courts' focus | State due process, equal privileges and immunities, and similar “great ordinances” or more specific state provisions |
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What You'll Learn
- Oregon's constitution grants more rights and protections than the US constitution
- Oregon courts have found greater protections in other guarantees
- Oregon's constitution does not expressly provide for due process rights
- State courts' focus on their own constitutions
- Hans Linde's 1970 article addressed the need for a due process clause
Oregon's constitution grants more rights and protections than the US constitution
The Oregon Constitution grants more rights and protections than the US Constitution. For instance, the Oregon Constitution has a due process clause, which means that state courts can focus on their own constitutions, state due process, equal privileges and immunities, and similar "great ordinances" when determining the validity of state laws and executive branch actions. This is in contrast to the US Constitution, which does not have an explicit due process clause.
The Oregon Constitution also provides specific protections for victims of crimes, which go beyond those granted by the US Constitution. For example, the Oregon Constitution grants victims the right to reasonable protection from the criminal defendant throughout the criminal justice process and to have decisions regarding pretrial release based on the principle of reasonable protection of the victim. The US Constitution, on the other hand, does not explicitly address the rights of victims in criminal proceedings.
Additionally, the Oregon Constitution includes provisions for juvenile court delinquency proceedings, ensuring that the rights of youth offenders are protected and that they are accorded due dignity and respect. Again, this level of detail and specificity is not found in the US Constitution.
Furthermore, the Oregon Constitution outlines foundation principles of criminal law, including protection of society, personal responsibility, accountability for one's actions, and reformation. These principles guide the creation of laws for the punishment of crimes and ensure a fair and just legal system. While the US Constitution also addresses criminal law and due process, it does not include these specific foundation principles.
Overall, the Oregon Constitution's focus on due process, equal privileges, and specific protections for individuals demonstrates how state constitutions can provide greater rights and protections than the US Constitution. This highlights the importance of state constitutions in shaping the legal landscape and ensuring the rights of their citizens are upheld.
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Oregon courts have found greater protections in other guarantees
Oregon's Constitution does not have a due process clause. However, Oregon courts have found similar or even greater protections in other guarantees. Oregon's Constitution grants a wealth of rights and protections that often go beyond what is offered by the United States Constitution.
Oregon courts have developed nuanced case law regarding challenges made on vagueness and overbreadth grounds. For example, in interpreting state constitutional provisions, the court will consider the text, case law construing the provision, and the historical circumstances surrounding the adoption of the provision. The court's goal is to determine the founders' intent in adopting the constitutional provision, in a context unique to Oregon's constitutional history.
One example can be found in Article I, Section 8 of the Oregon Constitution, which states: "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print on any subject whatever, but every person shall be responsible for the abuse of this right." This provision offers greater protection of free speech than the First Amendment to the United States Constitution, as it includes the right to speak, write, or print on any subject, whereas the First Amendment only protects speech on matters of public concern.
Another example is Article I, Section 20 of the Oregon Constitution, which the court has interpreted to provide broader protections than the Equal Protection Clause. Under this provision, Oregon courts have found unmarried homosexual couples to be a suspect class that is subject to exacting scrutiny when determining if certain privileges and immunities have not been made available.
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Oregon's constitution does not expressly provide for due process rights
Due process rights are considered fundamental to the American legal system, and they are enshrined in the Fourteenth Amendment to the US Constitution. These rights include protections for criminal defendants, freedom of speech and religion, and equal protection under the law. While the US Constitution guarantees these rights at the federal level, it is up to individual states to determine how they will protect the rights of their citizens.
Historically, state courts have relied on federal constitutional principles, including the Fourteenth Amendment's Due Process Clause, to decide critical questions about the rights of their citizens. However, this reliance on federal principles may not always be appropriate or effective in protecting the rights of state citizens. State constitutions may have their own unique provisions and principles that better reflect the values and needs of their citizens.
The absence of an explicit due process clause in Oregon's constitution does not mean that the state does not recognize or protect due process rights. In fact, Oregon has contributed significantly to the state constitutional revolution, which emphasizes examining the text and meaning of state constitutional provisions. This revolution has had the positive effect of requiring courts and litigants to articulate the specific interests at stake in light of state constitutional provisions. By focusing on the specific language and intent of its own constitution, Oregon has been able to better protect the rights and interests of its citizens.
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State courts' focus on their own constitutions
State courts can focus on their own constitutions, such as Oregon's, which grants a wealth of rights and protections that often surpass those offered by the United States Constitution. For instance, under Article I, Section 20 of the Oregon Constitution, the court has endorsed a broader selection of classes than what is protected by the Equal Protection Clause. Additionally, the public hearing rights protected by Article I, Section 10, are more extensive than those safeguarded by the Due Process Clause. The Oregon Supreme Court has asserted that open hearings are a right that belongs to the public under the Oregon Constitution.
The Oregon Constitution does not explicitly mention equal protection or due process rights. Nevertheless, Oregon courts have discovered comparable or even more robust protections in other guarantees. For example, in State v. Stoneman, the Oregon Supreme Court emphasised the breadth of the state's constitutional guarantee of free expression compared to the First Amendment right. The court explicitly refused to adopt the balancing approach commonly used in First Amendment analysis.
Professor and subsequent Oregon Supreme Court Justice Hans Linde's groundbreaking 1970 article, "Without 'Due Process': Unconstitutional Law in Oregon," addressed the question of whether state courts should focus on their own constitutions. Linde's work sparked a state constitutional revolution in the following decades. His article explored whether state laws and executive branch actions could be deemed valid by examining state-specific provisions such as due process, equal privileges and immunities, and other "great ordinances."
The focus on state constitutions raises the question of whether state courts can still reach the "right" result in cases without a specific constitutional provision to rely on. While some states, like Oregon, have constitutions that offer more extensive rights and protections than the US Constitution, the absence of an explicit due process clause in Oregon's Constitution may prompt discussions about the need for one.
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Hans Linde's 1970 article addressed the need for a due process clause
In 1970, Professor (and later Oregon Supreme Court Justice) Hans Linde published the path-breaking article, "Without 'Due Process': Unconstitutional Law in Oregon". This article addressed the need for a due process clause in Oregon's constitution and contributed to the state constitutional revolution of the succeeding decades.
Linde's article argued that state judges should look to state law first when rendering decisions, with federal law being a secondary consideration. He believed that individuals should first seek protection for their civil liberties in state courts, as state constitutions often provide broader protection for these rights. This concept, sometimes referred to as the new judicial federalism, was a significant departure from the prevailing practice of the time, where lawyers and judges primarily relied on the US Constitution as their first line of defence in civil rights and liberties cases.
In his article, Linde advanced the theory that fundamental civil liberties could be grounded not only in the federal constitution but also in state constitutions. This theory was based on his understanding that state constitutions could offer wider protection for civil liberties than their federal counterpart. Linde's work as a legal scholar and jurist was characterised by his original thinking and intellectual contributions to both administrative and tort law.
The 1970 article by Linde also examined the role of state courts in determining the validity of state laws and executive branch actions. It explored whether state courts should focus on their own constitutions, considering state-specific provisions such as due process, equal privileges, and immunities. Linde's work raised important questions about the role of state courts and the potential conflict between state and federal law, influencing the direction of legal thinking in the decades that followed.
In addition to his influential article, Linde had a distinguished career in law and academia. He served as a justice of the Oregon Supreme Court from 1977 to 1990 and was a professor of law at the University of Oregon School of Law, influencing a generation of lawyers and judges with his ideas about civil rights and liberties. Linde's contributions to legal scholarship and judicial opinion were recognised during his lifetime, with awards including the E. B. MacNaughton Award from the American Civil Liberties Union in 1990 and the Foster-Scholz Award in 1997.
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Frequently asked questions
Oregon's Constitution does not explicitly include a Due Process Clause, but Oregon courts have found similar or even greater protections in other guarantees.
Article I, Section 10 of the Oregon Constitution protects public hearing rights, which have been interpreted as more expansive than what is protected by the Due Process Clause.
Article I, Section 8 of the Oregon Constitution guarantees freedom of expression, which the Oregon Supreme Court has interpreted as broader than the First Amendment's guarantee.
Professor and later Oregon Supreme Court Justice Hans Linde's 1970 article, "Without 'Due Process': Unconstitutional Law in Oregon," addressed the validity of state laws and executive branch actions without a specific constitutional provision.
While Oregon's Constitution does not expressly provide for Due Process rights, it grants a wealth of rights and protections beyond what is offered by the United States Constitution.
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