People do not claim rights against selfincrimination, they "take the fifth" and expect "Miranda warnings." Unlawful searches are equated with fourth amendment violations. Journalists do not invoke freedom of the press, they demand their first amendment rights. All claims of unequal treatment are phrased as denials of equal protection of the laws.4 Why has all of this happened? Former Justice Charles G. Douglas of the New Hampshire Supreme Court gives this explanation: The fact that law clerks working for state judges have only been taught or are familiar with federal cases brings a federal bias to the various states as they fan out after graduation from "federally" oriented law schools. The lack of treatises [or] textbooks developing the rich diversity of state constitutional law developments could be viewed as an attempt to "nationalize" the law and denigrate the state bench.5 Despite the burgeoning developments in state constitutional law, only about a dozen law schools have courses in state constitutional jurisprudence. Some commentators have noted that this oversight stems from the fact that many law school deans are former clerks to Justices of the United States Supreme Court or other members of the federal judiciary. To paraphrase Jefferson, we might as well require a man to wear still the coat which fitted him as a boy as to educate a law student in this time of the postWarren counter-revolution as if there had been no resurrection of federalism and state judicial independence. It is small wonder that lawyers are confused or baffled when they decide to engage in independent interpretation of the Vermont Constitution. This generation of Vermont lawyers has an unparalleled opportunity to aid in the formulation of a state constitutional jurisprudence that will protect the rights and liberties of our people, however the philosophy of the United States Supreme Court may ebb and flow. In his correspondence with George Wythe, John Adams summed up this kind of historic time: "You and I, dear friend, have been sent into life 4Linde, E Pluribus-Constitutional Theory and State Courts, in Developments in State Constitutional Law 279 (B. McGraw ed. 1985). 5Douglas, State Judicial Activism-The New Role for State Bills of Rights, 12 Suffolk U.L. Rev. 1123, 1147 (1978). at a time when the greatest lawgivers of antiquity would have wished to live."6 Thus, it is important that the attorney consider the various approaches that can be taken to state constitutional argument. We will outline some of them in the paragraphs that follow. The advocate in appellate argument may wish to combine several of these approaches, having in mind that any collegial tribunal contains members with varying legal backgrounds and philosophies. What is appealing to one justice may be unpersuasive to another. Therefore, wise counsel will use every tool available in his or her efforts to convince. One approach to constitutional argument involves the use of fundamentally historical materials. Mr. Justice Holmes has said that "historic continuity with the past is not a duty it is only a necessity....' In Gompers v. United States, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115 (1914), Holmes was speaking of the United States Constitution, but his remarks would be equally applicable to the Vermont Constitution. He said: ...the provisions of the Constitution are not Id. at 610, 34 S.Ct. at 695. Historical argument may also touch upon the legislative history of a particular provision, "or on the social and political setting in which it originated, or on the fate of the [provision] in subsequent constitutions."11 The textual approach to state constitutional argument needs little explanation. A state constitutional clause may confer rights not bestowed by the United States Constitution or contain language that differs from parallel provisions in the National Charter so that the former invites interpretation on independent grounds. Justice Joseph Story draws this distinction between historical and textual arguments: Mr. Jefferson has laid down [what he deems a perfect canon] for the interpretation of the Constitution.... On every ques 6J. Adams, Thoughts on Government IV, 200 (1850). 10 Holmes, Learning and Science in Collected Legal Papers 139 (1920). 11Linde, supra, note 4, at 285. tion of construction [we should] carry ourselves back to the time, when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed.... Now who does not see the utter...incoherence of this cannon.... Is the sense of the Constitution to be ascertained... by conjecture from scattered documents, from private papers, from the table talk of some statesmen. . . ? It is obvious, that there can be no security to the people in any constitution of government if they are not to judge of it by the fair meaning of the words of the text.12 Both the self-incrimination and search and seizure provisions of the Vermont Constitution contain wording substantially different from the parallel clauses in the Federal Charter. Thus, it is possible that these clauses could be construed differently from somewhat similar provisions in the Federal Constitution or they may be given the same interpretation even though the language differs. The advocate may also use a sibling state approach in state constitutional argument. This involves seeing what other states with identical or similar constitutional clauses have done. Mr. Justice Charles Douglas points out that in Heath v. Sears, Roebuck & Co., 123 N.H. 512, 526, 464 A.2d 288, 296 (1983), the legal remedy clause of the New Hampshire Constitution was examined in terms of the analysis by several other state courts of identically worded provisions.13 He went on to note that the Rhode Island Supreme Court adopted Heath when considering the same language in the Rhode Island Constitution. See Kennedy v. Cumberland Engineering Co.,___R.I. 195, 200-01 (1984). ,471 A.2d Another approach involves the use of economic and sociological materials in constitutional litigation. The classic example of this was in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908), which upheld a state law limiting the hours of labor for women. Then attorney Louis D. Brandeis filed a brief in which he assembled a list of similar state and foreign statutes, "extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labor 12P. Bobbitt, Constitutional Fate-Theory of the Constitution 25 (1982) (quoting J. Story, 1 Commentaries on the Constitution of the United States sec. 407, at 390 n. 1 (1st ed. 1833)). 13 Douglas, State v. Ball: The Need To Put Last Things Last, IV [N.H.] Trial Bar News 13-15 (March/April, 1984). are dangerous for women,” and “extracts from similar reports discussing the general benefits of short hours from an economic aspect of the question," all supporting the contention that the statute at issue bore a reasonable relationship to the public health and safety, concededly legitimate exercises of the police power. Id. at 419-20 n. 1, 28 S.Ct. at 325-26 n. 1. Philip Bobbitt discusses six types of constitutional argument in his very excellent volume. 14 These types are the historical, the textual, the doctrinal, the prudential, the structural, and the ethical. A study of this volume would be of great help to the advocate who approaches for the first time the task of briefing a state constitutional question. We have not meant to suggest here that all of the types of constitutional argument have been mentioned in this opinion or in Mr. Bobbitt's work. The imaginative lawyer is still the fountainhead of our finest jurisprudence. No attorney briefing or arguing a state constitutional question before the Vermont Supreme Court should undertake his or her task without first reviewing Michigan v. Long. 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In that case the United States Supreme Court said: [W]hen... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. (emphasis supplied) Id. at 1040-41, 103 S.Ct. at 3475-76. When briefing state constitutional questions, counsel should heed this warning of Mr. Justice Carson of the Oregon Supreme Court: [B]eware of using federal cases and saying 14 Bobbitt, supra, note 12. by the federal Constitution, and if we follow To protect his or her client, it is the duty of the advocate to raise state constitutional issues, where appropriate, at the trial level and to diligently develop and plausibly maintain them on appeal. It is the corresponding obligation of the Vermont Supreme Court, when state constitutional questions of possible merit have been raised, to address them or order that they be rebriefed when the briefs do not pass muster. If we breach this duty, "we fail to live up to our oath to defend our constitution and we help to destroy the federalism that must be so carefully safeguarded by our people." State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). 15Carson, "Last Things Last": A Methodological Approach to Legal Argument in State Courts, (Appendix prepared by Ronald K.L. Collins), 19 Willamette L.Rev. 641, 651 (1983). Discussion Notes 1. What is the Vermont Supreme Court seeking to accomplish with this opinion? During the American Constitutional Convention when the last members were signing the fundamental Charter, Benjamin Franklin looked toward the chair of General Washington at the back of which a sun had been painted. He observed ... to a few members near him, that painters had found it difficult to distinguish in their art a rising from a setting sun. "I have," said he, "often and often in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting sun." "16 We have an opportunity to develop a sound jurisprudence of state constitutional law that will serve not only this generation of Vermonters but those who will come after us in the decades yet to be. If we meet this challenge we too will see the dawn of a great new day such as Franklin spoke of so many years ago. 16C. Bowen, Miracle at Philadelphia 263 (1966) (quoting James Madison in a letter to Thomas Jefferson). 2. Would an opinion like this be likely in an area of state constitutional interpretation which did not have to do with rights? C. The "Plain Meaning" of State Constitutional Provisions The "plain meaning rule" of statutory interpretation has been on the decline since the 1940s. See Harry Wilmer Jones, "The Plain Meaning Rule and Extrinsic Aids in the Interpretation of Federal Statutes," Washington University Law Quarterly 25 (December 1939): 2; Arthur Murphy, "Old Maxims Never Die: The Plain Meaning Rule," Columbia Law Review 75 (November 1975): 1299. Should this trend be applied to constitutional interpretation, particularly state constitutional interpretation? In Vreeland v. Byrne, 72 N.J. 92, 370 A.2d 825 (1977), the Supreme Court of New Jersey made the following observations about state constitutional construction: The pertinent constitutional provision with which we are here concerned, Art. 4, sec. 5, para. 1, which is quoted above, is not in our view in any sense ambiguous. To us it is devoid of any trace of uncertainty. It limits the eligibility of a member of the Legislature as candidate for "any State civil office or position, of profit," "during the term for which he shall have been elected." The limitation is of a dual nature. The legislator, during the proscribed period, shall neither be "nominated, elected or appointed" to any "civil office or position" which shall either (1) "have been created by law," or (2) "the emoluments whereof shall have been increased by law" during the term for which he shall have been elected. He remains eligible, during his legislative term, as a candidate for any office or position that does not fall within either of the two forbidden categories. He regains his eligibility with respect to the two proscribed categories of office upon the expiration of the legislative term for which he shall have been elected. It is a familiar rule of construction that where phraseology is precise and unambiguous there is no room for judicial interpretation or for resort to extrin sic materials. The language speaks for itself, and where found in our State Constitution the language is the voice of the people. As this Court said some twenty years ago, [T]he Constitution derives its force, not from the Convention which framed it, but from the people who ratified it: and the intent to be arrived at is that of the people. The Constitution was written "to be understood by the voters: its words and phrases were used in their normal and ordinary as distinguished from technical meaning"; and "where the intention is clear there is no room for construction and no excuse for interpolation or addition." United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L. Ed. 640 (1931) [Gangemi v. Berry, 25 N. J. 1, 16 (1957)]. In considering the meaning of this Article, an important principle of constitutional interpretation should not be overlooked. Not all constitutional provisions are of equal majesty. Justice Holmes once referred to the "great ordinances of the Constitution."4 Within this category would be included the due process clause, the equal protection clause, the free speech clause, all or most of the other sections of the Bill of Rights, as well as certain other provisions. The task of interpreting most if not all of these "great ordinances" is an evolving and on-going process. The history of the Federal Constitution clearly teaches that what may, for instance, be due process in one decade or in one generation will fail to meet this test 4Springer v. Philippine Islands, 277 U.S. 189, 209, 48 S. Ct. 480, 72 L. Ed. 845, 852 (1928). in the next. And this is as it should be. The "great ordinances" are flexible pronouncements constantly evolving responsively to the felt needs of the times. But there are other articles in the Constitution of a different and less exalted quality. Such provisions generally set forth rather simply those details of governmental administration as are deemed worthy of a place in the organic document. Examples from our own Constitution might be the clause in Art. 4, sec. 4 para. 6 that requires bills and joint resolutions to be read three times in each house before final passage; or the provision in Art. 4, sec. 5, para. 3 declaring that upon a member of the Legislature becoming a member of Congress, his seat in the Legislature shall thereupon become vacant; or the requirement set forth in Art. 5. sec. 1, para. 2 that the Governor shall be not less than thirty years of age. Such constitutional provisions as these, and others like them, important as they doubtless may be, are Discussion Notes 1. Can the "meaning" of words realistically be viewed in this way? See generally, Zechariah Chafee Jr., "The Disorderly Conduct of Words," Columbia Law Review 41 (March 1941): 381; Reed Dickerson, "The Diseases of Legislative Language," Harvard Journal on Legislation 1 (January 1964): 5. 2. The court in Vreeland says that state con Lipscomb v. State of Oregon 305 Or. 472, 753 P.2d 939 (1988) LINDE, J. In 1921, the Governor's veto power under the Oregon Constitution was amended to include, besides single items in appropriation bills, "any provision in new bills declaring an emergency, without thereby affecting any other provision of such bill.” The present dispute concerns whether the quoted words empower the Governor to veto only an emergency clause or any provision of a bill if the bill contains such a clause. In 1983, the Legislative Assembly passed Senate Bill 137, which made certain changes in the Public Employees' Retirement System (PERS). One section amended an existing provision (ORS 237.003(8)) so as to exclude some types of earnings of college teachers from the definitions of "salary" or "other advantages" for purposes of determining employment retirement credits and employer contributions. 1983 SB 137, sec. 1, codified as ORS 237.003(1) through (12). The bill contained a provi entirely set apart from the “great ordinances" mentioned above, and as matter of constitutional interpretation should receive entirely different treatment. Where in the one case the underlying spirit, intent and purpose of the Article must be sought and applied as it may have relevance to the problems of the day, in the other a literal adherence to the words of the clause is the only way that the expressed will of the people can be assured fulfillment. We submit that the ineligibility clause quite definitely and clearly falls into this latter category. It announces no principle of government: rather it touches upon the mechanics and administration of government, much as in the examples set forth above. Provisions such as this should be read literally. No process of "interpretation" is necessary or appropriate. Only in this way can the plainly-expressed will of the people be carried out. stitutional language "is the voice of the people." What does this mean? 3. With respect to the different types of state constitutional provisions, and the extent to which judicial interpretation can reduce their uncertainty, see Walter F. Dodd, "The Problem of State Constitutional Construction," Columbia Law Review 20 (June 1920): 635. sion declaring an "emergency." The Governor signed Senate Bill 137, including the emergency clause, but his message to the Legislative Assembly stated that he disapproved of and therefore vetoed three provisions of the amending bill. On advice of Legislative Counsel, the legislative leadership at a subsequent special session treated the vetoes as legally ineffective and did not take them up for reconsideration and enactment over the veto. Legislative Counsel published the provisions in the session laws, Oregon Laws 1983, chapter 830, section 1, and in the Oregon Revised Statutes, ORS 237.003(8) (c) (E), (F) and (H) (1983 Replacement Part), but the executive branch treated the provisions as vetoed and continued to make contributions to PERS on the employee earnings that the bill sought to exclude. Origins of Article V, section 15a. When a constitutional amendment sets out to change the allocation of power between the political departments of government, it is necessary to understand the political background that motivated the amendment. Some amendments may be designed to correct or clarify a text that has proved difficult to administer or in the |