A Party to Tyranny: The Aftermath of M-49
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
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 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.
BrainstormNW - December 2007