Oregon Free Speech III
Bill Long 9/30/05
Finishing Up (Really)
Here is the "burden" on the state if it wants the Supreme Court to overturn a precedent.
"It follows from the foregoing that the state, in order to prevail in this case, must persuade us, first that the constitututional rule that it attacks was not formulated either by means of the appropriate paradigm or by some suitable substitute."
Now, this is only part 1 of a three-part rule. Let's see if I can understand it. The court is trying to lay down a rule as to when they will overturn their past precedents (i.e., whether they should overturn Robertson here). Fair enough. What do they say here? In order to overturn a precedent, the state must first show that the "constitutional rule" it attacks was not formulated by means of the "appropriate paradigm." Let's just stop there a moment. What is the "constitutional rule" that the state is attacking here? What is the "paradigm?" I presume the rule is the Robertson framework, mentioned above and in an earlier essay. Ok. But I think the "paradigm" is the Priest methdology, the threefold way of trying to decide on the meaning of an Oregon constitutional provision. This is the word used by the court in the Nyssa decision to describe the Priest methodology. Thus, if I am wrong, let me know.
So what might it mean that the rule in Robertson was not formulated by the "appropriate" paradigm in Priest? I confess, I am baffled. How can a rule articulated in 1983 be formulated according to a paradigm that didn't come out of the chute until 1992? But then, to add insult to my sense of injury, the court adds "or by some suitable substitute." Huh? How do you formulate a constitutional rule that might be appropriate to a suitable substitute to a paradigm? Does the court want to give us a list of criteria for what constitutes a suitable substitute for a paradigm? I guess I am just in completely over my head. But we have only reached the first part of the test. Ready for part two?
The court then says:
"If the state accomplishes this task, then it still has before it the more difficult task of persuading this court that application of the appropriate paradigm establishes that the challenged constitututional rule is incorrect."
Of course, my discussion so far is meant to show that you really can't understand the first task, much less perform it. But this second sentence will set us on an even more difficult task. I feel as if I am being initiated into the ancient mysteries of Mithras and need now to plunge myself under the bull to catch the drops of blood that will lead to my empowerment. What does the state have to do? Somehow it has to "apply" the paradigm, again the three-fold Priest test, to what? I know how to apply paint to a wall, but how is it that the application of a paradigm establishes the incorrectness of a constitutional rule? I am floating now in mid-space, hoping for a breath of air.
But still we aren't to the end.
"Finally, and assuming that it is able to convince us of the incorrectness of the challenged rule, the state must persuade us, that, when the passage of time and the precedential use of the challenged rule is factored in, overturning the rule will not unduly cloud or complicate the law."
I confess that I burst out laughing here but was glad that I did so in private so as not to offend anyone. The concern here is that the court have a consistent jurisprudence. That is what stare decisis is all about. But, the burden of lots of my writing over the past several years, supplemented by that of other commentators, is the court has anything but a limpid jurisprudence on free speech. Don't you find it a tad bit ironic that the instruction not to complicate the court's jurisprudence is couched in such opaque language? And that the assumption behind the question is that the state is the one who really wants to make the waters murky?
I know it is the case with student papers that if they articulate their thesis in an unclear way, they will certainly not successfully complete the paper. And so it is here. But I will leave off my criticism at this point. More could be said about the nature of the court's historical argument (the differentiation between Blackstone and the "natural law" authors, when all you have to do is read ch.2 of vol. 1 of Blackstone's Commentaries to realize that Blackstone is the king of natural law interpreters, even though his focus will be on what he calls "municipal law") and even the tone of the opinion, but I have said enough at this point.
What Can People Do?
I know there are many people in Oregon who are distressed by the broad sweep of the court's free speech jurisprudence, especially as it relates to having adult businesses in their neighborhoods or near their local schools. Under Oregon law, it seems that there is nothing that can be done to prevent this. But, that is not really the case. The formulator of the Robertson framework, Justice Hans Linde, often said (and repeated his advice in City of Portland v. Tidyman), that citizens can do something about restricting these forms of expression. He suggested that in order to pass constitutional measure, you had to design statutes and ordinances that legislated against the effects sought to be avoided rather than simply the expression that was protected. That is, if findings were made about negative effects and if the wording of the ordinance reflected this, then such an ordinance would pass muster.
Only problem as I see it, is that I never understood exactly what Justice Linde meant when he told me this, or when I read it in Tidyman. Seems like my problem today is that I just don't understand people. When I get this feeling, I have to leave Oregon law and go into other things. So, back to assisted suicide, which I will continue to study, rather than perform.
Copyright © 2004-2008 William R. Long