A Party to Tyranny: The Aftermath of M-49

Brainstorm NW ~ December 2007

By Jim Huffman

Measure 49 will not be the last battle in Oregon’s land use wars. The property rights folks will bring other initiatives to the voters. Perhaps the planning advocates in the Legislature will be emboldened by their 22-point margin of victory to further limit the rights of property owners in service to noble ideas of the public good. And whatever happens in the political arena, there will be plenty of action in the courts as property owners seek to salvage something from the great promise of Measure 37.

But putting aside arguments over the future of agriculture and the importance of urban planning, there is a fundamental lesson to be learned from the dramatic reversal of public opinion represented by the 62 percent approval of Measure 37 in 2004 and the 61 percent victory of Measure 49 less than four years later. It is a lesson taught more than two centuries ago by James Madison who wrote in “Federalist #10”: “[D]emocracies have ever been found incompatible with personal security or the rights of property.”

Since 1976, Oregonians have voted six times on the subject of land use planning and regulation. The statewide land regulation system was enacted in 1972 by the Legislature. In 1976, voters rejected an effort to repeal the system by a vote of 57 percent to 43 percent. Two years later they spurned a second attempt at repeal by an even larger 22-point margin. A third attempt to curtail the ever expanding regulatory regime was voted down 55 percent to 45 percent in 1982.

The land regulation system appeared to be secure against voter repeal. Meanwhile the Oregon courts were consistent in rejecting property owners’ claims that land use regulations violated their constitutional rights. Oregon had become the national model for progressive land use regulation. But then came Measure 7 in 2000. Fifty-three percent of the voters enacted a constitutional requirement for compensation to land owners whose property values were lessened by regulation.

What was one to make of this apparent 180-degree turnabout, albeit it only by a margin of 6 percentage points? Had the aggressive land use regulators finally overplayed their hand? Or was Measure 7 just an aberration in an otherwise consistent history of popular support for vigorous land use regulation? By invalidating Measure 7 on the grounds that it involved multiple subjects (a no-no for voter enacted constitutional amendments), the Oregon Supreme Court created another opportunity for the voters to express their will.

In 2004, by a margin of 24 percentage points, Measure 37 effectively reenacted Measure 7 as statutory law (thus avoiding the multiple subjects problem). Although some of the more than one million votes cast in favor of Measure 37 were no doubt a reaction to the Supreme Court once again invalidating a voter enacted law, the margin of victory suggested that maybe the voters weren’t kidding when they adopted Measure 7. Maybe the voters really meant to protect the private property rights of their fellow citizens.

But as Madison cautioned, we shouldn’t be so naive. Less than four years after approving Measure 37 with more than three-fifths of the vote, the property rights law was largely repealed by Measure 49, with a similar margin of victory. By preserving a few of Measure 37 claimants’ development rights, Dave Hunnicutt of Oregonians in Action, the force behind Measures 7 and 37, argues that the sponsors of Measure 49 effectively acknowledged that land regulation is limited by property rights. Under the circumstances of a crushing defeat at the polls, it is an argument worth making in anticipation of the next political battle. But Hunnicutt knows, because he is experienced in Oregon politics, that Measure 49’s sponsors will suffer little angst in taking back what little they might have given up by acknowledging the legitimacy of a few Measure 37 claims.

That is the really important lesson of Measure 49. To be sure, a significant portion of the roughly 7,500 Measure 37 claimants will be left to suffer their losses under Measure 49, and those whose claims survive will be forced to bear the costs of an entirely new process. These individuals’ rights are not unimportant. But if we fail to grasp the larger message to be learned from this history of six Oregon ballot measures, disappointed Measure 37 claimants will suffer their losses in vain.

In the infamous Kelo vs. City of New London case in which the United States Supreme Court upheld the condemnation of private homes to facilitate other private development, Justice Stevens wrote that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.” In November 2006, Oregon, like many other states, took up Justice Stevens’ invitation by enacting limits on the eminent domain power through Measure 39. But Measure 39, like Measure 37, can be repealed as easily as it was enacted. Even if Measure 39 were a constitutional mandate, it could be repealed by a simple majority of the voters under Oregon’s misguided deference to majoritarian constitutionalism.

Oregon’s brief democratic flirtation with meaningful property rights stands as a warning to property rights advocates still riding the wave of reaction to Kelo. The wave will crest and the tide will turn. The multitude of personal and special interests that can benefit from limiting the property rights of others has not disappeared. To the contrary, if government can be induced to take by regulation or eminent domain what individuals or the state would otherwise have to purchase from willing sellers, property owners have little defense against the majority of voters.

The only reliable protection for property rights, like free speech or any other individual liberty, is the constitution. But the courts, starting at the top, have failed to recognize that economic liberties require the same protection as civil liberties. In the wake of Kelo, property rights advocates willingly took their battle to state legislatures and state voters as Justice Stevens suggested. They have had many successes and some have come to look upon Kelo as a blessing in disguise. But they are bound to be disappointed. Occasional political victories are not the same thing as constitutionally guaranteed liberties. And in many states, including Oregon, constitutions that read like statute books and constitutional provisions that can be amended by a simple majority provide little protection for liberty.

In a democratic government, constitutional liberties do not exist to protect against tyrants and dictators. It is, after all, the people who are meant to rule in a constitutional democracy. Rather constitutional liberties exist to guard against the tyranny of the majority. Time and again through American history, when well-meaning legislators and voters have tread upon the liberties of their fellow citizens, the courts have come to the defense of the individual. But seldom do the courts act when property rights are at risk. Until our state and federal courts come to understand that economic liberties are as critical to both individual and social welfare as are civil and political liberties, property rights will not be secure.

Oregonians who voted for Measure 49 will never accept that they are party to tyranny. They will claim to have acted with only the best interests of the community in mind. Indeed they will take umbrage at the suggestion that they have voted to limit the legitimate rights of their fellow citizens. That is why constitutional guarantee, with active judicial enforcement, of all rights is so important. Without judicial enforcement of constitutional limits, the majority holds all the power in a democracy. A majority might occasionally rise above the realities of day-to-day politics, as with the enactment of Measure 37, but Measure 49 better represents what we can expect in a democracy, just as James Madison warned.

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