CHRISTOPHER RUSH
Publisher
KATHRYN B. BROWN
Owner
ANDREW CUTLER
Editor
WYATT HAUPT JR.
News Editor
JADE McDOWELL
Hermiston Editor
TUESDAY, MAY 19, 2020
A4
Founded October 16, 1875
OUR VIEW
No time
to waste
T
here is a growing probability that
Gov. Kate Brown will call a spe-
cial session of the Oregon Legis-
lature within the next few weeks to deal
with expected budget shortfalls created by
the COVID-19 virus outbreak.
Brown should call the special session
and shouldn’t wait very long to do so.
That’s because the state is beginning to
stagger after weeks of closed businesses
and high unemployment. Already, Brown
has asked state agencies to create a plan
to slash their budgets by 17%. We will
all find out more May 20 when the latest
report from the Office of Economic Anal-
ysis is revealed, but not even the most
optimistic pundit should expect anything
other than very bad news.
Oregon faces another challenge — the
state constitution demands a balanced
budget.
Unlike the federal government, Oregon
can’t put everything on a virtual credit
card and let the future take care of itself.
That creates steep challenges for law-
makers and their jobs during the special
session will be crucial. What simply can-
not happen is a divergence away from
the budget woes and how to deal with
COVID-19 into yet another series of leg-
islative battles over issues tied to party
dogma.
We don’t have the time now to watch
the special session descend into chaos
because a group of lawmakers suddenly
decide to resurrect some flashpoint issue
from the past. The only goal must be to
face the budget shortfall and balance the
budget, and then get back to dealing with
the virus outbreak.
Anything less will be a betrayal of vot-
ers. Party leaders and the governor need
to meet before the special session and
craft an agreement that narrowly defines
what the special session will tackle. That
agreement must be clear and precise and
include provisions that there will be no
deviation from the pressing matter — the
state budget — at hand. Oregon lawmak-
ers no longer have the privilege of wasting
away days on the legislative time clock
fighting over pie-in-the-sky, New Age
political initiatives. Lawmakers can do
that later. Policy issues that are not related
to the state budget and the COVID-19 out-
break should be jettisoned.
As is always the case, elected leaders
from both parties will have an opportu-
nity to do some good work if a special
session is called. They will be presented
with an opportunity to face a serious set
of problems, work on them together and
solve them.
Wasting time in any other fashion is
simply that — wasting time. Time the
state does not have.
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The debate over constitutional
originalism just got ugly
CASS
SUNSTEIN
OTHER VIEWS
A
re most members of the
Supreme Court violating their
oath of office?
Might Chief Justice John Rob-
erts and Justices Stephen Breyer, Ruth
Bader Ginsburg, Sonia Sotomayor and
Elena Kagan be committing impeach-
able offenses?
Did some of history’s most cel-
ebrated justices — Oliver Wendell
Holmes, Louis Brandeis, Robert Jack-
son, Earl Warren, Thurgood Marshall,
William Rehnquist and Sandra Day
O’Connor — also act inconsistently
with their oath of office?
Some prominent law professors at
distinguished institutions are making
precisely that argument. It’s unpleasant
stuff, the academic equivalent of “lock
her up!” But like that howl of rage, the
new argument is resonating in influen-
tial circles. Before long, it will probably
enter into public debates.
To understand what’s afoot, we need
to explore a much-disputed question:
How should the Supreme Court inter-
pret the U.S. Constitution?
Many justices think that the found-
ing document contains what Justice
Felix Frankfurter called “majestic gen-
eralities,” phrases like freedom of
speech, equal protection, unreasonable
searches and seizures, due process of
law.
In their view, the text of the Con-
stitution is binding, but its meaning
is not frozen in time. Sex discrimina-
tion might violate the Constitution now,
even if it was constitutional in 1791
(when the Bill of Rights was ratified)
or in 1868 (when the 14th Amendment
was ratified). Racial segregation might
be unconstitutional now even if those
who ratified the equal protection clause
had no problem with it.
By contrast, some justices, includ-
ing Clarence Thomas and the late
Antonin Scalia, are “originalists.” They
believe that the Constitution must be
interpreted to fit with its “original pub-
lic meaning” — that is, the meaning
that members of the public would have
given to it at the time of ratification.
The debates between originalists and
their adversaries have become sophisti-
cated and elaborate.
Both sides deserve respect and a
civilized hearing. Recently, however,
things have taken a new turn. Some
originalists are arguing that judges who
disagree with them are violating their
oath of office.
It’s a serious charge. It’s also
unfounded.
Here’s what the Constitution has to
say:
“The Senators and Representatives
before mentioned, and the Members of
the several State Legislatures, and all
executive and judicial Officers, both
of the United States and of the several
States, shall be bound by Oath or Affir-
mation, to support this Constitution.”
Originalists who think that their pre-
ferred approach is mandatory point
to two words: “this Constitution.” If
judges do not follow the original pub-
lic meaning, their argument goes, they
are supporting no constitution, or some
other constitution, rather than “this”
one.
But that doesn’t follow at all. The
Constitution does not tell judges to be
originalists. It does not contain a provi-
sion saying, “The meaning of this Con-
stitution shall be settled by reference to
the original understanding.”
To buttress the argument, those who
believe that the oath of office requires
originalism contend that in the late 18th
century, most people believed in origi-
nalism. In their account, it constituted
the “interpretive convention” at the
time.
As a matter of history, it’s far from
clear that’s the case; it was not the con-
ventional view in 1800, or 1810, or
1820 that justices who did not practice
originalism were violating their oath
of office. But suppose that original-
ists are right to say that in the found-
ing period, most people accepted orig-
inalism. Would we then conclude that
the oath of office requires judges to be
originalists?
No. You cannot say that the origi-
nal understanding is binding because
the original understanding was that the
original understanding is binding. That
would be circular; it would assume the
conclusion.
Everyone should agree that the text
of the Constitution is binding. It is “this
Constitution.” Some originalists act as
if the text of the Constitution and the
original understanding of that text are
the same thing. They aren’t. The equal
protection clause is part of the Consti-
tution. The original understanding of
the clause is not.
Like any theory of interpretation,
originalism has to be defended on its
merits, as the best theory of interpre-
tation — maybe because it limits the
discretion of unelected judges, maybe
because it preserves the separation of
powers, maybe because it promotes
clarity and predictability.
But even if the arguments for origi-
nalism are convincing, it doesn’t follow
that judges who reject them are violat-
ing their oath of office. It doesn’t follow
that Holmes and Brandeis, or Roberts
and Kagan, are refusing “to support
this Constitution.”
Because originalism is wildly incon-
sistent with current constitutional law,
you might be inclined to say that it is
the originalist judges like Thomas who
are violating their oath of office. That’s
more plausible than accusing judges
who reject originalism of doing that —
but still, it’s wrong and ugly and a hor-
rible thing to say.
There’s a larger point here. We live
in an era in which political disagree-
ments are increasingly turned into
accusations of disloyalty, of heresy, of
criminality. It’s reasonable to argue
about constitutional method and to con-
tend that originalism is terrific or ter-
rible. But it’s not reasonable — in fact
it is shameful — to allege that justices
who embrace it or reject it are violating
their oath of office.
———
Cass Sunstein is a columnist for
Bloomberg and the Robert Walmsley
University Professor at Harvard Law
School.
book about the Civil War, my favor-
ite topic. Although the history is fas-
cinating, it was a good reminder that
there was at least one time in our past
that conditions were far worse than
today. In 1856, a southern Demo-
crat representative, Preston Brooks,
attacked a northern Republican sen-
ator, Charles Sumner, on the Sen-
ate floor, beating him horribly and
only quitting when his cane finally
broke. Events soon get worse than
that. Within five years, Americans
were at war with each other, kill-
ing as many as have died in all other
wars combined. It was the saddest
period in America’s history. During
that time, many vilified President Lin-
coln, referring to him as an ape or
other nasty things, insulting him and
criticizing him in many ways. Today,
however, we recognize Lincoln as one
of the greatest presidents who perse-
vered in preserving our nation.
How President Trump will be
remembered in history remains to be
seen but, in the meantime, I encour-
age everyone to be more considerate.
We may have our political differences
but we’re all in this together. We
should learn from our past in how we
treat each other and the president.
James Carnahan
Baker City
YOUR VIEWS
Criticism of president
doesn’t have to be uncivil
President Trump is an odd person
and extremely egocentric. I’ll grant
to anyone that he has those charac-
teristics. But calling him a sociopath
projects incivility that is unwarranted
and adds to the rancor that we see too
much in current political discussion.
We certainly have political differ-
ences in our community, and nation,
but I believe our manner and style of
disagreement should be cordial and
we should all work toward that.
Maybe perspective would help.
I recently finished reading another