State Con Law Case of the Week: Oregon Residents
Robert Frost said home “is the place where, when you have to go there, they have to take you in.” That may be true for “home,” but where you are “resident” is a slightly different question. And the Oregon Supreme Court recently addressed what that means, or at least what it meant when the Oregon Constitution was ratified in 1857.
The court’s analysis is interesting in its own right, but also for how state courts address other constitutional questions. As we’ve discussed on this blog before, state courts regularly and uncontroversially interpret the “original meaning” of state constitutions as a matter of course using various tools of historical analysis and constitutional interpretation. And, it’s also an interesting example of how the interpretations of other courts (including the U.S. Supreme Court) of similar constitutional language can be instructive, but should not be determinative of the outcome.
Dictionaries Don’t Define Everything
The case, Kristof v. Fagan, is a dispute over whether a candidate for governor can be on this year’s ballot given that Article V, Section 2 of the Oregon Constitution forbids from becoming governor a person “who shall not have been three years next preceding his election, a resident within this State.” The court ruled against the candidate on his specific facts (it seems he only established residency after November 2019), but the outcome isn’t the interesting part. It’s how the court went about interpreting “resident within this State.”
The primary question is what did “resident within this state” mean in 1857? The court began with the text and the definitions of “resident” from dictionaries of the time. Those were useful, the court said, but not the end of the story. Scholars and practitioners of constitutional law will find interesting what it said about these somewhat varied definitions, quoting an earlier Oregon case: “Dictionary definitions ‘do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.’” A major issue was whether “resident” in Article V, Section 2 meant “domicile,” a more precise term. The court concluded “resident” could mean domicile just based on the dictionaries of the time, but not necessarily. Therefore other sources were necessary.
The first such source was other parts of the state constitution, as it was in 1857, that used similar language. And those pointed in the “domicile” direction, particularly requirements for voters and what determines their residency in the state to allow them to vote. “Domicile” typically is something a person can only have in one place at one time, even if a person travels elsewhere. If you “intend to return” your “domicile” can be the place where you aren’t physically in, even if you leave for an extended period. You might be “resident,” especially in a colloquial sense, however, in both places. But the voting qualifications in 1857 specifically allowed for certain kinds of absences (especially if someone was in the armed forces and stationed elsewhere), which made their use of “resident” (or variations on that word) more like “domicile.”
Other Constitutions Aren’t the Whole Story
The court also engaged in some cross-constitutional analysis, looking at how other state constitutions of the era used these terms, and what the U.S. Constitution itself has to say. State constitutions also seemed to mostly use “resident” as “domicile.” For the U.S. Constitution it quoted Justice Joseph Story’s famous 1833 Commentaries on the Constitution of the United States for the interpretation of the same words, “resident within,” in Article II, Section 1’s 14-year residency requirement for the Presidency. Story argued it is a domicile requirement, although not one of “absolute inhabitancy.” (In other words, if you go to Toronto for a week’s vacation that’s not taken away from your 14 years.) The interesting thing here is that the interpretation of similar language in the U.S. Constitution is taken to be instructive, but not determinative.
Over the years the Oregon Supreme Court has done much better than most state high courts in interpreting its own constitution independently, and other state courts could learn a lot from it. This is especially true in contrast to those that interpret their constitutions in “lockstep” with the U.S. Supreme Court. This includes cases interpreting vitally important provisions such as due process or search and seizure clauses. But this case, where the stakes and passions are much lower (just one person’s attempted candidacy for governor) might be a good “neutral principles” resource to draw upon in future state constitutional litigation where those more weighty issues arise.
Anthony Sanders is the director of IJ’s Center for Judicial Engagement.