Washington Law Review Online

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During a legislative hearing last year, an Oregon state senator asked, “Does Oregon’s Constitution need a due process clause?” That question raises fundamental issues of constitutional law and of the relationship between the federal and state constitutions. Can and should state courts rely primarily on federal constitutional principles, made applicable to the states through the Fourteenth Amendment’s Due Process Clause, in deciding critical questions about the rights of criminal defendants, freedom of speech and religion, and equal protection? Or should state courts focus on their own constitutions—state due process, equal privileges and immunities, and similar “great ordinances” or more specific state provisions—in determining whether state laws and executive branch actions are valid? Would that focus still allow state courts to reach the “right” result in cases where no specific constitutional provision provides a clear basis for decision? Professor (and later Oregon Supreme Court Justice) Hans Linde’s path-breaking 1970 article, Without “Due Process”: Unconstitutional Law in Oregon,1 addressed some of those questions and contributed to the state constitutional revolution of the succeeding decades. That revolution, with its emphasis on examining the text and meaning of state constitutional provisions, has had the positive effect of requiring courts (and litigants) to articulate the specific interests at stake in light of those provisions, rather than engaging in an open-ended inquiry into whether a state’s economic regulatory scheme was arbitrary or unreasonable and thus potentially unconstitutional under the Federal Due Process Clause or whether a state law impermissibly interfered with some fundamental right. But it has its shortcomings as well, and, at times, has been susceptible to the same kind of result-oriented decisions for which substantive due-process-driven analysis has long been criticized. In this Essay, I briefly examine several aspects of state court reliance on “due process” provisions—both state and federal—in an effort to see what is lost and what is gained by relying instead on other state constitutional provisions. In doing so, we can see some of the changes in state constitutional interpretation forty-five years after Linde’s article and begin to seek an answer to our legislator’s question.