Virginia was one of
several states that enacted a strong eminent domain reform law after the
Supreme Court ruled in Kelo v. City of
New London that it was permissible for government to take private property
and transfer it to other private individuals in order to promote economic
development. Supporters of the Virginia
law are now trying to incorporate it into the state Constitution. But, as
the Washington Times reports, they are beginning to encounter
resistance from local governments, which have a vested interest in keeping
their eminent domain authority as broad as possible [HT: VC reader James
Taylor]:
A state constitutional amendment to
expand Virginia’s eminent domain laws is
meeting local resistance, with the city of Alexandria agreeing to contribute as much as
$5,000 for a lobbying firm to help fight the legislation.
The amendment, sponsored for the 2012
General Assembly session by Delegate Rob Bell, Albemarle Republican, attempts
to change the Virginia Constitution by updating a law enacted in 2007 that says
private property can be taken only when the public interest dominates the
private gain, among other conditions.
“The goal is to put [the amendment]
into the constitution so that it can’t be tinkered with,” Mr.
Bell said....
The amendment passed with wide
support during the 2011 General Assembly session, with help from Mr. Bell. It
cleared the House by a vote of 83–15 and the Senate by a vote of 35–5.
But to amend the state constitution,
the measure must pass again in the assembly before going to the public as a
voter referendum on the 2012 ballot.
Despite the broad support, Mr. Bell
said, amendment supporters are girding a fight.
“We are not taking anything for
granted,” he said....
Mr. Bell said,
the impetus was to protect property owners.
“The local governments were certainly
opposed to the original statute and claimed it would bring along the end of the
world,” he said. “Of course, it hasn’t.
When it comes to property rights, Virginia’s present
constitution is one of the least protective in the country. Article I,
Section 11 gives the state legislature virtually unconstrained authority to
“define” what qualifies as a “public use” that justifies taking property by
eminent domain. Essentially, the legislature can license the condemnation of
property for virtually any reason it wants. Few if any other state
constitutional rights are left so completely to the mercy of the very state
officials they are supposed to protect us against. It would be as if the
legislature had total discretion to determine what kind of speech can be
censored or when police are authorized to search your home.
In the short term, it doesn’t matter
much whether eminent domain in Virginia
is constrained only by strong statutory restrictions or by a constitutional
amendment. But in the long run, a constitutional amendment would be a vital
safeguard against the gradual erosion of property rights. Effective post–Kelo reforms like that in enacted in Virginia are the product
of an unusual upsurge in public attention focused on eminent domain issues.
Most of the time, the vast majority of “rationally
ignorant” voters pay little or no attention to the subject. Even in the
immediate aftermath of Kelo, many states
enacted ineffective laws in part
because voter ignorance makes it difficult for the electorate to tell the
difference between genuine reforms and those that only pretend to constrain
economic development takings.
As Kelo
recedes into the past, public attention will understandably focus on other
matters, and influential interest groups can lobby state legislators to
gradually roll back post–Kelo reforms. The
public might not even notice what is happening, just as most of them were
unaware of the prevalence of Kelo–style
takings in many states before the Supreme Court focused a national spotlight on
the issue in 2005. A state constitutional amendment can help forestall this
kind of gradual erosion of property rights. Unlike some other state
constitutions, the Virginia
Constitution is relatively difficult to amend. Thus, it will be much harder to
roll back a constitutional reform than a purely statutory one.
UPDATE: Richmond
Times-Dispatch columnist A. Barton Hinkle has a good column about the
proposed Virginia
amendment here.
http://volokh.com/2011/11/26/the-political-battle-over-eminent-domain-reform-in-virginia/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+volokh%2Fmainfeed+(The+Volokh+Conspiracy)