Lighting Up The Constitution

[October 3rd, 2007]

In a political battle that pits poor children without health care against the dealers of death at Big Tobacco, it’s not hard to figure out who’s the sympathetic favorite in bleeding-heart Oregon.

The real loser is less clear to all but a few Ivory Tower academics, some of whom might otherwise back the health-care goals of Measure 50. It’s that little, you know, sacred document, yadda yadda, known as the Oregon Constitution.

When ballots are mailed Oct. 19, state voters will be asked to consider Measure 50, a tax initiative that would raise money for an estimated 117,000 uninsured Oregon kids by raising the price of cigarettes in the state by 84.5 cents—to about $2 a pack.

But the new measure, if approved, wouldn’t make what’s typically just a change to the tax code. Instead, the measure would carve out a new constitutional provision. That route means any future changes to Measure 50 would have to go through a lengthy process to once again amend the Constitution.

Big deal, you say? It’s a point of emphasis in the tobacco-funded anti-Measure 50 ad campaign, but it also is a big deal to many who think a constitution, state or federal, should be limited to its three purposes. One is to allocate powers to the three branches of government: the judicial, the legislative and the executive. The second is to set limits on those powers. The third is to guarantee individual citizens’ liberties.

Jim Huffman, the former dean of Lewis&Clark Law School, opposes Measure 50 on the grounds that its details don’t belong in the Constitution. He’s not a smoker, and he doesn’t object to giving more children health care.

“Just because it’s an important thing, that’s not a good enough reason ever to waive constitutional principles,” says Huffman, a registered Republican who’s taught constitutional law at Lewis&Clark. “If you’re willing to do this just because it’s an important thing, why not waive free speech protections or search-and-seizure protections?”

Other constitutional scholars, like Garrett Epps at the University of Oregon School of Law, are keeping their opinions quieter.

“I always prefer people pass these measures as statutes,” Epps says, declining to say how he’ll vote.

But, the self-described Democrat adds the Constitution has already been muddied by other ballot measures such as protecting the tax kicker in 2000. And he says a higher cigarette tax is good public policy.

That’s what Democratic legislators thought. Problem is, they failed to convince enough of their fellow Republicans of the same thing during the last session. The Democrats fell one vote short of the three-fifths majority they needed in the House to pass a tax measure—a requirement that itself was a product of Ballot Measure 25 passed by voters as a constitutional amendment in 1996.

Now the D’s are passing the buck to voters with Measure 50 to save Gov. Ted Kulongoski’s pet program, the Healthy Kids initiative.

And they have celebrity endorsements; Last Friday, Lance Armstrong threw his weight behind Measure 50 in a guest editorial published in the Portland Tribune. Former Democratic Gov. John Kitzhaber, a strong proponent of expanding access to health care, says the well-being of children outweighs the constitutional costs. But Kitzhaber, a former emergency-room doc, says it’s not an easy call.

“I do not believe that the Oregon constitution is the appropriate place to put a tobacco tax increase,” Kitzhaber writes on his blog on wecandobetter.org. “However, it is also not fair that so many of Oregon children lack timely access to needed medical care. We should not penalize them because this was the best the legislature could come up with.”