One of the common refrains I hear is that Kelo really wasn't that big of a deal, because citizens can simply act through their state legislatures or amend their state constitutions to regulate takings and just compensation. This assumes, of course, that citizens and legislatures can actually make their views known and enact them into law.
Well, apparently not in Oregon. Tom Blumer at Bizzyblog notes that an Oregon Judge has overturned Measure 37, which although not an anti-Kelo measure, had expanded the circumstances under which a landowner to require compensation when a land-use regulation reduce the value of an individual's property. The measure passed by a statewide 61%-39% vote.
On Friday, a judge overturned the measure as unconstitutional under Oregon's state constitution. Tom quotes one of the lawyers who brought the action to overturn the law:
I will put a couple of enlightened attorneys up against a million Oregonians any day, since the masses do not make right in this Republic, no matter how many you stack up against the wall!!
The state has said it will appeal.
It is not clear to me what kind of similar hurdles may be raised in states with respect to efforts to reverse Kelo via legislative activity, but this case suggests that hurdles indeed will be raised. It also suggests that the mere possibility that a particular decision by the Supreme Court might possibility be reversed by later legislative action may not provide a compelling argument for refusing to enforce a specific constitutional provision in the first place.
A reader sends in a useful comment:
I was upset at the opinion at first and almost blogged about it, but then I saw that the measure created two classes of land, a grandfathered class that got expanded property rights for compensation from regulation (including retroactively), and a non-grandfathered class that was ineligible for the expanded compensation. That may or may not be problematic, but the question appears to be more complex than one of property rights or no property rights.
I think the comment may be aimed more at the piece that I linked to then my riff on it. My simple observation is that the ability of states to craft a legislative fix for Kelo may turn out to be more difficult than assumed, even leaving aside the standard public choice problems that might prevent majority opinion from prevailing.