Originalism in State Constitutional Interpretation

Portland Lawyers Chapter

In perhaps the most oft-quoted phrase from a Supreme Court confirmation hearing in modern times, Justice Elena Kagan pronounced nine years ago this month that “we are all originalists.”  By that, she explained, she meant that federal judges apply what the Framers and ratifiers of the Constitution “meant to do” with the “specific rules” and “broad principles” laid out in that document.  Is that what Oregon’s courts do—or should do—in interpreting the Oregon Constitution?  Or is it even possible to do in the face of dramatic evolutions in technology and society?

In a series of publications, including a forthcoming article in the Willamette Law Review, Justice Landau has urged a “new” originalism, which abandons any deference to how the framers of a constitutional provision would have applied it in favor of a search for general underlying principles that judges should apply with contemporary sensibilities.  Mr. Westwood, in contrast, argues in a forthcoming article in the Oregon Appellate Almanac that only a historically anchored application of constitutional constraints on democratic action can preserve judicial legitimacy and a proper separation of powers.

Speakers: 

  • Justice Jack Landau, Oregon Supreme Court from 2011 through 2017
  • Jim Westwood, Retired partner, Stoel Rives LLP & éminence grise, Oregon appellate bar

Please RSVP to fed.soc.pdx@gmail.com if you plan to attend.  We look forward to seeing you then!