dissenting.
This case concerns the legal structure of a grand jury. The majority holds that a six-person grand jury that hears evidence and returns an indictment satisfies Article VII (Amended), section 5(2), of the Oregon Constitution,1 which requires that “[a] grand jury shall consist of seven jurors.” (Emphasis added.) Because I believe that Article VII (Amended), section 5(2), of the Oregon Constitution means what it says, i.e., that seven jurors must be present when a grand jury hears evidence and returns an indictment, and because the grand jury that indicted defendants consisted of only six jurors, I cannot join in the majority’s holding. I, therefore, respectfully dissent.
Article VII (Amended), section 5(2), of the Oregon Constitution provides:
“A grand jury shall consist of seven jurors chosen by lot from the whole number of jurors in attendance at the court, five of whom shall concur to find an indictment.” (Emphasis added.)
The text of that provision is plain, unambiguous, and straightforward. The word “shall” expresses a duty, obligation, requirement, or condition precedent. In the context of Article VII (Amended), section 5(2), the word “shall” requires that a grand jury consist of seven jurors. If the framers of the Oregon Constitution had intended to say that “a grand jury should consist of seven jurors, except when one grand juror is released from his duties in order to go on vacation,” they could (and, I think, would) have said so. The word “consist” means “to exist in a permanent or fixed state,” “to become composed or made up * * * of.” Webster’s New International Dictionary 484 (3d ed 1993). In the context of Article VII (Amended), section 5(2), the word “consist” means that what follows is what is required to legally constitute a grand jury. What that constitutional provision requires is seven grand jurors. “Seven” means “beingone more than six in number.” Webster’s New International Dictionary 2079 (3d ed 1993).
*504I agree, however, that, in interpreting a provision of the Oregon Constitution, it is appropriate to consider the “historical circumstances” that led to its creation and the case law surrounding the provision. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). The “historical circumstances’ ’ premise by which the majority undertakes to justify its view that Article VII (Amended), section 5(2), of the Oregon Constitution does not require a seven-member grand jury is much too thin to mask the true rationale of the opinion. What I perceive to be the true rationale behind the majority’s decision is that it is not practical or convenient to require the attendance of all seven grand jurors in every case. Although that rationale is never stated expressly by the majority, I believe that it is implicit.
Moreover, I find the majority’s historical analysis weak and unpersuasive. The majority draws the following conclusions from the debates at the constitutional convention:
“First, * * * we may presume that the delegates were aware of the grand jury as used in Oregon at that time. Second, * * * it is apparent that the common-law history of the grand jury was known to the delegates. And finally, * * * it can be inferred that some change in the existing grand jury system was contemplated.” 319 Or at 496.
The majority interprets Article VII (Amended), section 5(2), in light of the first two conclusions, but ignores the third.
The first historical circumstance that the majority identifies is that the participants in the constitutional convention were aware of the practice of the grand jury in Oregon at the time. The majority summarizes the grand jury practice in Oregon in 1857:
“We may assume that the delegates to the 1857 constitutional convention came into the debates armed with the knowledge that Oregon had experimented with traditionally large grand juries (up to 23) and with quorum requirements (up to 16) that differed from the number of grand juries required to find an indictment. We may also assume that there may have been difficulties in getting the required quorum of summoned jurors to appear and participate * * *. From the record of the debates, it may he inferred that some delegates were concerned about the costs of maintaining grand juries.” 319 Or at 498 (citation omitted).
*505Thus, at the time of the constitutional convention, the practice in Oregon consisted of the following: (1) large grand juries; (2) grand jury sizes ranging from a maximum number to a minimum number, with a smaller number required to return an indictment; (3) quorum requirements of fewer than the maximum number of grand jurors that were empaneled. As the majority recognizes, the drafters intended some change in the existing practice. Thus, the proposal adopted provided that the number of grand juries was small, there was no range of grand jurors, only a certain number, and there was no quorum requirement consisting of fewer than the number required to constitute a grand jury. Reading the statutory history of grand juries in Oregon as of 1857, in light of the third principle, I reach the opposite conclusion than does the majority. The history indicates that the drafters intended the grand jury to consist of seven grand jurors, and that seven grand jurors must participate for the grand jury to return an indictment.
The second historical circumstance on which the majority relies is the drafters’ familiarity with the common law of grand juries.2 The majority, after reviewing some cases from other jurisdictions based on statutory provisions, summarizes the common law as follows:
“Thus, it would appear that, although the number of grand jurors required to concur in finding an indictment was not treated flexibly at common law or under the statutes of the various states as of 1857, the greater number of grand jurors to be summoned or empaneled was often treated flexibly and, with the exception of [Norris’ House v. State, *5063 Green 513 (Iowa 1852),][3] was not treated as a quorum requirement to find an indictment, in the absence of specific statutory provisions to that effect.” 319 Or at 501.
Thus, the common law indicates the following practice: (1) the number of grand jurors required to return an indictment was not flexible; (2) the maximum number of grand jurors was flexible (i.e., a grand jury could consist of a range of jurors); and (3) the maximum number of jurors was not required to be present for the grand jury to return an indictment. The majority fails to interpret that history in light of its conclusion that “some change in the existing grand jury system was contemplated.” 319 Or at 496. Article VII (Amended), section 5(2), represents a change in the common law — rather than provide a range of grand jurors required to constitute a grand jury (with a minimum and maximum number of jurors), the drafters set an established number of grand jurors. Unlike the provisions at issue in the common law cases discussed by the majority, which generally provided that a grand jury would consist of “up to” a maximum number of jurors, the drafters adopted a set number to be both a maximum and a minimum that must be present when a grand jury hears evidence and returns an indictment. This suggests that the common law history of grand juries supports a conclusion that seven grand jurors are required to participate in order to return a valid indictment. The majority’s conclusion that the drafters intended to adopt the majority position at common law is, therefore, at odds with its conclusion that the drafters intended to change the common law.4
*507The majority also relies on Article IV, section 12, of the Oregon Constitution, which provides an explicit quorum requirement for the legislature. The majority concludes that because the drafters knew how to write an express quorum requirement in one part of the constitution, the exclusion of an express quorum requirement for grand juries indicates an intent not to impose a quorum requirement. That argument is unpersuasive. Article IV of the Oregon Constitution is an entire article devoted to the legislature. It initially consisted of thirty-one sections. On the other hand, only one portion of one section of Article VII (Amended) covers grand juries. The inclusion of an express quorum requirement in Article IV, which is much more detailed than Article VII (Amended), section 5(2), should not be read to mean that the drafters intended to permit a quorum of less than seven under Article VII (Amended), section 5(2). Indeed, Article IV, section 12, can be read to support the conclusion that all seven grand jurors be present to return a valid indictment because the drafters, when they intended to provide that a deliberative body could proceed with fewer than all of its members, expressly provided so in the constitution. With regard to grand juries, no such express provision exists.
In sum, the historical circumstances that led to the creation of Article VII (Amended), section 5(2), are ambiguous, at best. The text of Article VII (Amended), section 5(2) — couched in straightforward, unambiguous, and mandatory words of common usage — supports the conclusion that seven grand jurors must be present when a grand jury hears evidence and returns an indictment.
Because the text and the historical circumstances do not provide a sound basis for the majority’s conclusion, there must be some other rationale. As stated previously, what I perceive to be the true reasoning behind the majority’s decision is that it is not practical or convenient to require the attendance of all seven grand jurors in every case.
I do not share what I perceive to be the majority’s view that the meaning of the constitution is to be determined *508by what is practical or convenient.5 Rather than focusing on what is practical or convenient, I would focus on the purpose and nature of the grand jury. Although the origin and development of the grand jury is varied and somewhat obscure, it is clear that at the time of the American Revolution the grand jury was considered an important protection of civil liberty. The grand jury is a deliberative group of citizens that serves as a “protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor.” United States v. Dionisio, 410 US 1, 17, 93 S Ct 764, 35 L Ed 2d 67 (1973). See State v. Gortmaker, 295 Or 505, 512, 668 P2d 354 (1983) (describing origins of the grand jury). In this regard, the grand jury provides similar citizen involvement and protection as that afforded by a petit jury. The Court of Appeals, in deciding that seven grand jurors must be present to return an indictment, recognized that similarity. The court stated:
“The express language of Article VII (Amended), section 5(2), requires that a grand jury consist of seven persons, but permits five of them to find an indictment. The genesis and purpose of that nonunanimity requirement is uncertain. However, it appears to have a basis like the requirement that 10 of 12 petit jurors return a verdict in a criminal trial. Or Const, Art I, § 11. That is intended to permit the expression and consideration of minority viewpoints but, through the nonunanimity requirement, precludes a minority from thwarting an otherwise justifiable indictment.
“If a grand or petit jury proceeds with fewer than the requisite number of members, the balanced view that the deliberative process promotes may not he achieved. A person omitted from a panel may have been able to express a viewpoint that would have persuaded the other members of the jury to a particular position or to evaluate a critical part of a case with more scrutiny. We cannot say that a grand jury panel of five or six jurors would always reach the same conclusion as if there had been seven members in attendance.
*509“By requiring that 12 petit jurors hear all of the evidence, Article I, section 11, promotes a deliberative process that permits expression and consideration of minority viewpoints, thereby insulating an accused from biased or overzealous prosecution. That right is a significant right that a defendant must affirmatively waive. Because Article VII (amended), section 5(2), promotes the same deliberative process at the grand jury level, it is also a significant right. Consequently, we conclude that it mandates that seven grand jurors hear and consider all of the evidence presented before a valid indictment can be found.” Goodwin v. State of Oregon, 116 Or App 279, 282-83, 840 P2d 1372 (1992) (footnote and citations omitted).
I find that analysis persuasive.
In sum, the text of Article VII (Amended), section 5(2), the history of that provision, the purpose intended to be served by the grand jury, and the deliberative nature of the grand jury all lead me to the conclusion that the Oregon Constitution requires that all seven grand jurors participate in order to return a valid indictment. I respectfully dissent.
Fadeley, J., joins in this dissenting opinion.The parties stipulated that the grand jury that heard the evidence and returned the indictment against defendants consisted of only six grand jurors. One of the grand jurors was released from his duties in order to go on a vacation in Arizona.
The majority’s historical analysis, particularly its reliance on specific cases from other jurisdictions regarding the legal structure of a grand jury to demonstrate the drafters’ intent, is questionable for at least two reasons. First, the comments of Mr. Logan at the constitutional convention on which the majority relies, 319 Or at 495, were general in nature. Those comments dealt with the history and purpose of the grand jury and were made in the context of a proposal to abolish the grand jury entirely. Mr. Logan’s comments can hardly be construed to indicate that the members of the constitutional convention were familiar with the number of grand jurors required in various states. Second, the majority relies on cases decided by other jurisdictions that were decided as late as 1855 and 1856. 319 Or at 498-501. The majority has not demonstrated that members of the constitutional convention had access to or were familiar with decisions of other jurisdictions that were decided shortly before the constitutional convention. Indeed, considering the state of the technology of travel and communications that existed in 1857, the degree of access to such decisions is uncertain.
The majority curiously attempts to minimize the decision in Norris ’ House v. State, 3 Green 513 (Iowa 1852), by stating that in State v. Ostrander, 18 Iowa 435 (1865), “[t]he Iowa Supreme Court later retreated from [the position taken in Norris’ House] and held * * * that 15 grand jurors need not be present at all times.” 319 Or at 500 n 9. The Ostrander case, which was decided in 1865, is irrelevant in determining the intent of the drafters in 1857.
A comparison of the grand jury with the petit jury demonstrates that the drafters intended a change from the common law. At common law, the petit jury consisted of twelve jurors. See Thompson & Merriam, A Treatise on the Organization, Custody and Conduct of Juries, Including Grand Juries 5, § 5 (1882) (“it is clear that the petit jury, according to the common law, consists of neither more nor less than twelve men”). The original Oregon Constitution contained no provision for the number of petit jurors required to constitute a petit jury, presumably because the drafters intended to continue with the established common law practice.
By contrast, the Oregon Constitution does provide for a specific number of grand jurors, different from that required at common law. Thus, it is apparent that the drafters intended to change the legal structure of the grand jury from that at *507common law. The majority’s reliance on the common law of grand juries is, therefore, unpersuasive.
Nor do I agree that it is, in fact, impractical to proceed with seven grand jurors. Since Goodwin v. State of Oregon, 116 Or App 279, 840 P2d 1372 (1992), the law of this state has been that all seven grand jurors must be present to return a valid indictment. The grand jury system has not been impossibly overburdened or come grinding to a halt under the pressure of requiring seven grand jurors to be present in furtherance of the mandate of Article VII (Amended), section 5(2), of the Oregon Constitution.