The Oregon Supreme Court Gets It Right: Measure 37

In a unanimous ruling released today the Oregon State Supreme Court reversed a Marion County court decision that property rights Measure 37 was unconstitutional.

In a post written October 18 "Politicizing (and Trivializing) the Oregon Constitution", I pointed out that the lower court ruling was another slap at Oregon voters and another step toward politicizing and trivializing the Oregon constitution.

The 2006 Oregon Supreme Court took a step back from the dangers courted by Marion County Judge Mary James. Chief Justice Paul J. De Muniz writing for the Court rejected James' ruling finding that her "conclusions under the state and federal constitutions were erroneous and must be reversed."

Chief Justice Muniz's opinion was careful and specific in refuting the Marion County Court ruling, but the most important "finding" related to the basis of Oregon's government.

In our view, the trial court misunderstood the nature of the plenary legislative power. In Oregon, the Legislative Assembly and the people, acting through the initiative or referendum processes, share in exercising legislative power. See Or Const, Art IV, §§ 1(1), (2)(a), (3)(a) (vesting in both bodies the power to propose, enact, and reject laws).

Judge James got it wrong because she did not understand the political and constitutional philosophy behind the "Oregon System" (initiative, referendum and recall). Simply stated it is that political authority, including legislative authority, comes through the people.

This political philosophy is clearly stated in Article I, Section 1 of the Oregon State Constitution:

Section 1. Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.–

It is just at this point that the courts have gone astray. Judge James' opinion was only one in a string of judicial rulings that have forgotten that there is a legislature behind the state legislature--the people of Oregon. The state legislature does not have power that springs out of itself--or even out of the state constitution.

The power of the constitution comes from the people. That's why the people can amend it or even replace it at will.

Similarly the power of the legislature comes from the people. Normally the people exercise that power by electing government officials to represent them. But, when the people speak through initiative petition or referendum, the source of the state legislature's authority has spoken.

In this decision the Oregon State Supreme Court has taken a real step towards understanding "the nature of the plenary legislative power" in Oregon.

Respecting the authority of the people in the initiative process is essential both to faithful implementation of Oregon's political system and to saving the state constitution from being the primary field of play for political decisions.