Middle Earth, Middle Oregon and Mordor: A Modern Fellowship of the Ring
Middle Earth, Middle Oregon and Mordor: A Modern Fellowship of the Ring
Remarks on the Passage of Measure 37, Oregonians in Action Annual Conference
March 12, 2005
One of my favorite passages from my favorite story, the Lord of the Rings, occurs during a conversation between our hero, Frodo, and the wise wizard, Gandalf the Grey, deep in the Mines of Moria. There Frodo, in a rare moment of despair and loss of courage, cries out to Gandalf: "Oh I wish the ring had never come to me; I wish none of this had ever happened!" To which Gandalf replies: "So do all who live to see such days; but that is not for them to decide. All we are to do is to decide what to do with the time that has been given to us…" I remind you of this scene because I must confess to you that I with Frodo sometimes wish I had been born in a different place and time. As I look around our society and see what I see, I become discouraged. You don’t have to look very far to see it– you can go to the mall on a Saturday afternoon, or tune in on any weeknight to any of a half dozen cable channels, and there you will see misguided youngsters being barraged with materialism and narcissism and sensualism and almost nothing of honor or charity or character. Or follow those kids to our public schools-which were, until recent times, our best hope outside the family for molding the next generation of virtuous citizens- and you will find an education process that is at best hopelessly adrift and at worst actually incompetent. Or follow the school dollar back to Salem, or to Washington DC, and observe the process by which our tax dollars are collected, debated and spent, and then sigh in bewilderment at what our grand experiment in self-government has become.
I look at all that and I, like Frodo, become weary and wish I were elsewhere in another time. [For me, by the way, it would have been Victorian England, where God had his hand-God was a He in Queen Victoria's Realm- God had his hand on everything from Church to Empire, and where anything that seemed otherwise-- some problem with troublesome colonies, let's say-- could be met and overcome with a stout cup of tea.] Ah, but I was not born an Englishman with Burke and Disraeli, or even with AA Milne and Tolkien. I am, we are, 21st Century Americans. And tea-no matter how stout-does not pack the same wallop as it once did. So I suggest we set about figuring out what to do with the time given us. For those of us here today, we believe, apparently, that one of the things we want to do with the time we’ve been given is to engage in serious reflection on and reform of public policy, particularly as it relates to constitutionalism generally and the right of property ownership specifically. So we are here at a kind of Council of Elrond. And since everything in Middle Earth needs a map, let me suggest three signposts for my remarks today. First, I want to comment on the process by which the courts have become the creators, and not simply the enforcers, of our constitutional rights. Second, I want to reflect with you on what I call the Deeper Significance of Measure 37. Third, I will make some predictions on what to expect from the government as the Measure 37 Drama continues to play out. And I will conclude, despite all of that, with some words of hope and encouragement as to why our Fellowship of the Ring will ultimately be successful.
[You know, I was thinking in working on this speech, about why I like Hobbits. I mean, they are kind of short and pudgy, and they have ugly hairy feet, but they really are noble and courageous; so then, I look over at Dave and Ross„and I thought: Hobbits! Frodo and Sam, only with more hair on their feet! And then I thought about Gandalf the Grey, and I looked at Bill Moshofsky! And then Bilbo-celebrating his hundred and eleventieth birthday, and whaddya know, here's Frank Nims! This is really cool! I really am in Middle Earth! From now on I will think of OIA as a merry band of ferocious hobbits fighting to restore peace and justice to Middle Earth...].
I. Meet our Black Robed Riders.
Beginning in the 1950’s with the school desegregation cases, and later with the Warren Court’s rulings on the rights of criminal defendants, the courts began to be the place to go for enforcement of constitutional rights. Now, regardless of what one might think of the merits of any of these rulings, I for one believe that enforcement and delineation of rights expressly set out in the Constitution is a proper thing for courts to do. Where else should African Americans have gone, for example, if they could get no help from local or state governments in enforcing the constitutional rights of equal protection and voting that properly were adopted in the 14th and 15th Amendments? Or where else should a criminal suspect go if he believed his constitutional right against self-incrimination was being trampled by overzealous police officers, or religious person coerced by the government to violate his faith? At least one school of thought present at the framing of our Constitution believed that courts had an important role to play in making sure that constitutional rights were given practical reality; and even today, lots of judicial conservatives still believe that.
But somewhere between the 1950’s and now, certain segments of society, usually but not always those on the political Left, began to ask the courts to create-not just to enforce, but to create-new constitutional rights, nowhere mentioned or even contemplated by the text of our constitutions. Perhaps the most notorious example of this was in 1973 in the Roe v Wade abortion case-where the US Supreme Court acknowledged that, while there was no specific provision in the Constitution setting out a right of privacy or a right to an abortion, the "pnumbra" of the 1st, 5th and 6th Amendments, taken together, implied such a right. Now, please, hear me on this: I am not here to debate the merits of the right to abortion or privacy and whether it is or is not a good thing as a matter of public policy. I am here to talk about constitutionalism. And the fact is this: Roe did a new thing, or at least did it more expressly than had ever been done before. It recognized a new constitutional right without express authority in the text of the Constitution; it "created" a new constitutional right.
And the idea caught on. The story of American jurisprudence in the last half of the 20th Century is first and foremost the story of how judicial activists, whether the black riders on the bench or the suits and skirts at the bar, pushed and pushed for greater initiative from the courts in setting out, not just what the actual words of our constitutions mean, but what implications can be drawn from those words; in other words the creation of rights not mentioned in the Constitution but inferred, read into, the text.
Now, obviously I am not telling you anything you have not heard before, but I want to underscore it. The same sex marriage debate last year, in which I was heavily involved as lead counsel for those opposed to same sex marriage, was a pristine example of this thinking. The activists, knowing they would not soon achieve their goals through legislative or initiative processes, turned to the courts to find a constitutional right to same sex marriage. Again, I am not here to argue the public policy behind traditional or gay marriage. That’s not my point. My point is that the folks at places like BRO and the ACLU did not hesitate to ask the Oregon courts to recognize a constitutional right not set out in the words of the Constitution. Indeed they did not hesitate to ask far more than that. For I think I am correct in saying this: for the first time a court was being asked to exercise raw judicial power to create a constitutional right not only with no support in the Constitution, but in direct contradiction of legislative statutes, with absolutely no input from the people-and in plain contradiction to the express intentions of the framers of the Constitution regarding that subject. And the truly amazing thing to me was that the folks at the ACLU seemed not even to blanche at that. Their response to the statement I just made was: What?. To them it was just the next natural step in the evolution of American Judicial Rule. I kid you not: after the passage of Measure 36 last November, the lawyers for the ACLU seriously asked the Oregon Supreme Court to order the Legislature to pass a civil unions bill and to order the Governor to sign it. So much for the constitutional separation of powers. But that tells you how the judicial activists think. All they have to do is convince our Black-Robed Rulers to nod their way and it is all over. But of course it is not that simple. As anyone who has thought about the matter for five minutes should see, when it comes to the creation of new constitutional rights, process is substance. In other words, making your case to the People, getting their support for or at least acquiesence in, the creation of new rights or the reinforcement of old ones, is critical. Consent of the governed still matters. Lincoln said this: "Public opinion is everything; without it you cannot succeed; with it you cannot fail." Or, this from Jefferson: "I know of no safe repository of political power but in the hands of the People; and if we think them not wise enough to hold it, the remedy is not to take it from them, but to enlighten them."
And this-making the case to the People-brings me to Measure 37 and Property Rights.
II. The Return of the King and the Deeper Significance of Measure 37. Dave was kind enough to ask me to write a guest article on Measure 37 for the December issue of Looking Forward, and in doing so, something came clear to me that had been running around in my mind for some years in an unrealized way, and that is this: that the problem with having judges create constitutional rights is that no one but litigants gets heard, and the citizens are not consulted. Judges, being human beings and largely unaccountable to the electorate-notwithstanding so-called judicial elections– are likely to recognize as rights those ideas which match their idea of a just society. But since judges are not exactly representative of the common man, their view of justice and rights is often largely at odds with ours. So in Oregon we have developed what I call First Class and Second Class Constitutional Rights. Or to put it another way, some constitutional rights are more equal than others. And, of course, since those bringing the cases are usually those from the Left side of the political spectrum, and since-at least arguably– those on the bench are probably more often than not less politically conservative than the common man, most of the inflation of rights occurs to the liberal side of the fence. I say this without in any way suggesting that judges intentionally insert their own politics into their decisions. I actually think that happens far less often than you may suspect. Maybe I am naive, but I still choose to believe that. But it doesn’t matter, because the result is the same. The squeaky wheel gets the grease and it is usually the judicial activists at the bar that are squeaking. Is there any other explanation for why in Oregon we have the most expansive free speech rights in the nation, for example, and far more protection for criminal defendants than elsewhere? Meanwhile have you noticed that we don’t necessarily have this same kind of aggressive and independant constitutional protection for, say, religious liberty? I guarantee you that the average City Attorney or judge would be far quicker to exclude a preacher from the steps of City Hall than a pornographer. I guarantee it-because free speech is virtually unlimited in Oregon but freedom of religion is not.
And, of course, besides religion, the other significant Second Class civil liberty in our State, the one the government is most reluctant to recognize, let alone expand judicially, is the right of private property ownership. It has never been important to the Left-ask the ACLU how many constitutional property cases they have taken! And, since until recently it was only groups like the ACLU who were mobilized in the courtrooms, property ownership became a bastard child. And there, as Hamlet said, there’s the rub! And, as Shakespeare said, Enter Oregonians in Action!
Now I realize that Measure 37 is not a constitutional amendment. But as the son of Measure 7, it in so many ways makes the same kind of statement. What you have done is to begin the process of saying to the Political Establishment: government, courts, the media and the political elite-the so-called chattering classes-you have said to them: we the People, in order to form a more perfect union, want to remind you that private property ownership is a fundamental right, and it will be respected in this State, even if we have to pop some grease into our gridlocked landuse system to do it! What you have done is nothing less than to begin the process of taking your Constitution back from the courts and the chattering classes and reminding them that it belongs to the People. The courts may be its putative guardians, but we, the People, are its owners. And the owners have come home. This is the Return of the King. III. What to Expect.
So, now what? What comes next?
"You must be mad," said Boromir to the Council of Elrond. "One does not simply walk into Mordor. It is guarded by creatures the likes of which you cannot imagine. Not with ten thousand men could you do this."
Well, Boromir must have lived in Oregon, because he understood the idea of counter-attack. And for the most part, the governing elite in Oregon have decided, through some sort of an unspoken conspiracy, that Measure 37 will never take effect. One does not simply pass a ballot measure and walk into Mordor. My partner Mark O’Donnell and I have taken something like 15 or18 M 37 cases all over the state, but I predicted to him early on that these cases would be terribly difficult, that the government at large is simply not going to follow orders. They will not do it. They will engage in their own kind of civil disobedience and they will ignore the law. I have fought all kinds of large institutions-banks and insurance companies and megacorporations and megachurches- and some 85 governmental entities- and I know they are simply not going to do it. It started before M 37 passed and it heated up the day after it passed and it will continue. They will delay; they will obfuscate; they will put up roadblocks and fees and ordinances and Attorney General opinions and they will put up sham settlement offers and government litigators who will start all over again in court a new process of delay and obfuscation and smoke and mirrors.
I could tell you story after story about legal battles I have fought with government agencies and I am no longer surprised and no longer disappointed when they do these things, because I have over the years become a student of human nature-being a trial lawyer will do that to you-and I realize that they are simply doing what human beings do, which is when afraid of change they will protect their turf and hang on to the familiar and make up excuses as they go. So I am neither surprised nor discouraged at their reaction to Measure 37. And neither should you be. Because apart from all that, we hold the trump card. Dave and Ross and the guys who drafted Measure 37 knew one thing. The great equalizer in the law, the one place the government cannot hide and cannot obfuscate and cannot complicate, is before a jury of twelve persons tried and true. And as you know the end result of a Measure 37 case-if you want it to be, if the government does not honor the intent of the law- then the end of that case is that it goes before a jury. Now friends, my brother and sister trial lawyers take a beating quite often in public policy debates, and often for good reason. But I say this. Thank God for the jury system. Because if we ever lose the jury system, let me tell you: the big guys-governments and unions and corporations-the big guys will win.
And by the way, an amazing thing happens the day before a jury trial, or the day after jury selection, or opening statements: institutions, governments or not, usually get reasonable, they discover fairness, they all of a sudden decide to do the Right Thing. It is amazing how that works. It is like they found Jesus. The Power of the One Ring is broken. Conclusion.
So. What we do with the time we have been given? Like Frodo and Sam we just keep on walking. Up the side of Mount Doom, no matter how tired we get, or how discouraged, or how steep the way, or what Gollums we might meet along the way. We just keep going.
Gandalf said to Frodo, at the end of the conversation that I mentioned at the outset: "There are other forces at work besides the evil ones. Bilbo was meant to find the Ring. In which case you were meant to have it. And that really is an encouraging thought."
I agree with Gandalf. Hobbits really are amazing creatures. You can know everything there is to know about them in half an hour, and yet after a hundred years they can still surprise you. So, my fellow Hobbits, here’s to your Fellowship of the Ring.
