Comparisons With Other State Constitutions
The framers of Oregon's constitution, practical and frugal men, cribbed extensively from the Indiana Constitution and borrowed liberally from other state constitutions. These men were mostly from the states around Indiana so it is to be expected that its constitution would reflect their beliefs about the proper role of government. Other states also borrowed from those that had followed the path to statehood before them. In fact, many commonalities surface while taking a broader look at how states have created and maintained their constitutions. But many contrasts are apparent as well—for example, while Oregon has held only one convention, New Hampshire has seen 17 spanning from 1776 to 1984.
The 50 states held a total of 233 constitutional conventions between 1776 and 2005. Oregon is in the minority in holding only one convention, sharing that distinction with nine other states including several western states such as Idaho, Alaska, Arizona, and Wyoming (Washington and California each held two). New Hampshire has company at the other end of the spectrum, with Georgia and Louisiana holding 12 each and Vermont holding 11. Some of this frequency can be attributed to significant constitutional activity in the years following both the American Revolution and the Civil War.(1)
But the numbers also point to how difficult some states have made it to amend the constitution via the legislature or through direct legislation, leaving conventions as the only realistic avenue for change. Tennessee, for example, held five conventions over a 23 year period ending in 1977 and New Hampshire permitted no legislative amendments before 1964. Louisiana is unique in that its more malleable civil law system is inherited from France rather than England, causing observers to quip that constitutional revision there "has been sufficiently continuous to justify including it with Mardi Gras, football, and corruption as one of the premier components of state culture."(2)
Conventions also waxed and waned through eras of conservatism and reform and as new states were added to the union. Thus, an initial round of states held conventions in the late 1700s, followed by a relative decline in the first decades of the 1800s. A growing movement to democratize state governments and limit public debt during the reform-minded Jacksonian Era led to another burst of activity as new states drafted inaugural constitutions while others made significant changes to their original charters.(3)
The Civil War was at the root of states holding more conventions in the 1860s than in any other decade in history. Nearly all of the southern states held conventions to secede from the United States and join the Confederacy. As the war was winding down, most of these states held conventions to organize provisional governments. Finally, another round of conventions were aimed at rejoining the union, declaring the rights of freedmen, and acknowledging federal supremacy. The late 1800s saw conventions related to the admission of a number of western states and the Progressive Era triggered more revisions designed to make direct legislation a reality in many states. The 1960s marked the last significant period in which conventions were held, often targeting inequitable legislative apportionment plans. Most changes after the 1960s have come through the legislative or initiative process.(4)
Convention organization and process
Oregon followed the most common means of selecting convention participants, holding an election specifically for choosing delegates. But other routes have been taken as well. In the late 1700s, several legislatures resolved themselves into conventions to draft constitutions. Two states in the modern era also used this method. A 1974 Texas convention composed of legislators was held after voters previously approved the arrangement. In contrast, Louisiana legislators dispensed with any public vote and simply made their own decision to resolve into a convention. That 1992 convention has been noted for its "questionable pedigree" and was "regarded by Louisianans as a special legislative session in disguise." While some conventions have been organized on a nonpartisan basis, others have fallen into sharp divisions. Minnesota's only convention, held in 1857, was the most extreme example. Its delegates were so split that they assembled separately in Democratic and Republican conventions. Each convention kept its own record of proceedings and the disputes between them were finally resolved in a conference committee.(5)
Just as in Oregon, once a convention had started, delegates needed to settle on a model for their state constitution, especially when drafting an inaugural charter. Occasionally, members argued that the federal constitution should be used as the guide, following each article and amending it to state circumstances. Thus, Lansford W. Hastings extolled the virtues of the federal constitution during the 1849 convention in California, saying that delegates "were not without a guide; there was one book to which they had access, containing the Constitution adopted by the wisdom of the age in which the framers lived—sanctioned by long experience—pronounced superior to any ever adopted in the known world." But while delegates often drew generally from the U.S. Constitution, they were far more likely to borrow from a state that shared their political culture or had crafted a particularly admired document. Thus, southern states often looked to the Virginia Constitution while northern states emulated the New York Constitution, both widely considered to be well-written. In the end, however, most states chose provisions a la carte from several constitutions.(6)
Other common convention process questions also shared similarities with those raised at the Oregon Constitutional Convention. For example, delegates in other states often had conflicting views about whether or not to record convention debates. Many argued against recording the proceedings of the conventions. Thomas Laine contended in the California Convention of 1878-1879: “Now, it has been my fortune to wade through a number of constitutional debates, and I have found them, in the main, trashy and worthless…. In my judgment, there is not one man, woman, or child out of every ten thousand that would ever read it.” Those in favor of recording countered that they should let the voters see the delegates’ “motives and influences.” Others noted that the record would serve as a guide for courts in the future in interpreting the constitution and that it would make delegates more careful and weigh their words because they would be preserved for history. Another twist on the debate came from the South where frank discussions about the rights of blacks led to opposition. Thus, J. Thomas Heflin revealed during the Alabama Convention of 1901 that “there will be things done and said in this convention that we do not want the Northern papers to have.”(7)
Amending state constitutions
Before arriving at a method for amending their constitutions, framers typically argued about the relative benefits of rigid or flexible approaches. Those in favor of a more rigid process—similar to the one used with the U.S. Constitution—pointed out that frequent change could threaten government stability and, as James Madison worried, reduce the reverence that citizens had for their government. John Clayton lauded the U.S. Constitution as a model when he told the 1831 Delaware Convention that "nothing was further from the thoughts of the framers of the United States constitution than that the work which the[y] had done, should be altered at every popular election. They said that what they had done should not be changed by popular excitement, and the consequence was that our primary institutions were growing stronger as they became more venerable in the eyes of the people." Put another way, Andrew Gray cautioned his fellow delegates in the Delaware Convention of 1852-1853 that
“a constitution is an instrument which is not to be put on and put off as we would our coats….”
Needless to say, beyond the lofty platitudes extolling the founding fathers, those with entrenched interests such as slaveholding or favorable regional voting inequities generally favored the rigid approach.(8)
Others argued in favor of allowing constitutions to evolve to better meet the needs and conditions of the times. Proponents of this approach pointed out that a flexible process allowed more equitable distribution of legislative power geographically. This became increasingly important in areas that had experienced significant population shifts. For example, by the 1830s both Virginia and North Carolina had seen population shifts from eastern tidewater counties to western piedmont and mountain counties. Those in the west argued that a more flexible amendment process would allow for correction of inequities in legislative apportionment plans that were routinely blocked in the legislature. During the Kentucky Constitutional Convention of 1890-1891, H.H. Farmer boiled down the argument to an old truism, reminding delegates that “inflexible constitutions are not necessarily the strongest. The willow will stand the storm when the oak will break.”(9)
Whether using conventions or the initiative process as the vehicle, states eventually moved toward more flexible approaches to amending constitutions. One method favored periodic conventions because they would empower the people to bypass entrenched interests and gain passage of constitutional changes that the legislature would otherwise block. Speaking at the Maine Constitutional Convention of 1819, Nahum Baldwin wanted to force the issue by submitting a convention question to the voters every seven years, thus not allowing the legislature to shirk their duty. He asked the question: "Is it more safe to trust the people with the right of revising, or to give their rulers unlimited power?" And just as in Oregon, during the Progressive Era many other states looked to direct legislation, through initiative and referendum, as a tonic for commercial and industrial interests that were seen as too powerful and too much in control of legislatures and courts.(10)
Both the convention and direct legislation methods are still in operation. While all states now allow legislatures to propose amendments to their constitutions, the details vary widely. Most states empower legislatures to call constitutional conventions, with caveats—usually voters must approve the convention ahead of time and they also must ratify the results. Fourteen states give citizens an opportunity to vote periodically on whether to call a convention.(11)
Twenty-four states currently have the initiative process applying to either the constitution or statutes. Six of these—Alaska, Idaho, Maine, Utah, Washington, and Wyoming—allow initiatives only related to statutes while Florida, Illinois, and Mississippi only allow for initiatives that amend their constitutions. Fourteen states have direct initiative processes in which measures that qualify go directly to the ballot. Several states, including Washington and Nevada, have indirect or or partially indirect initiatives in which some or all measures are submitted to the legislature first. Moreover, some states have waiting periods of three to five years before defeated initiatives can be resubmitted. With all of the variation, however, the clear trend has been toward more flexible constitutions and more democratic access to the legislative process.(12)
1. John J. Dinan, The American State Constitutional Tradition (Lawrence, Kansas: University Press of Kansas, 2006) 7-8, 11.
2. Ibid., 11-12.
3. Ibid., 9.
4. Ibid., 9-10.
5. Ibid., 12.
6. Ibid., 14-16.
7. Ibid., 19-25.
8. Ibid., 37-41.
9. Ibid., 33-37.
10. Ibid., 42-53.
11. Ibid., 31.
12. "2004 Initiative and Referendum Process Background Brief by Marjorie Taylor," Oregon Legislative Committee Services Web Site, viewed August 1, 2007. <http://www.leg.state.or.us/comm/commsrvs/>