Eminent Domain Reform Is a Bipartisan Opportunity

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A. BARTON HINKLE – If you could use some good news—and these days, who couldn’t?—pay attention to Virginia’s debate on eminent domain. The progress toward a constitutional amendment limiting that power has something to gladden the heart of every political type.

Lawmakers approved the measure for the first time last year. They will have to pass it again a second time before it can go to the voters in a referendum. If the voters approve it, then the language will be added to the state Constitution.


Passage seems likely. The November elections increased the Republican count in both chambers of the General Assembly, which—in the wake of the Kelo ruling by the Supreme Court—approved a 2007 law to constrict eminent-domain authority. Essentially, the constitutional amendment would elevate the statutory protections to constitutional ones. The measure restores the rights that the Supreme Court eviscerated by ensuring that private property can be taken only for truly public uses—not to promote economic development, or to increase the tax base, or to enrich powerful special interests.

It would thereby preclude episodes such as Roanoke’s condemnation of property owned by Jay and Stephanie Burkholder. The city’s redevelopment authority seized their property to hand it over to Carilion Clinic, a regional health-care organization with eight hospitals and 600 doctors. No sooner had Roanoke won than Carilion announced it didn’t want the property after all.

The Amendment also might discourage localities from using the threat of eminent domain as a negotiating ploy—something Alexandria has done in a long-running dispute with the Old Dominion Boat Club that will soon be heard by the Virginia Supreme Court.

Not surprisingly, local governments oppose the amendment. Among other things, they worry about a provision stipulating that property owners should be compensated for the loss of business resulting from government takings. Does this mean they would support the amendment absent that provision? Er, no. The Virginia Municipal League (VML) and the Virginia Association of Counties (VACO) fought 2007’s statutory effort to protect property rights as well. The VML did not want to limit condemnation only “to pure public uses” and felt Kelo produced “the correct outcome.”

Well. Kelo allowed New London, Conn., to bulldoze the blue-collar neighborhood of Fort Trumbull for an economic-development project. The project never happened, and the neighborhood was turned into a dump. Literally: Officials designated the area a dumping ground for debris from Tropical Storm Irene.

Keep that in mind when localities start warning about the Virginia amendment’s “unintended consquences.” In Kelo, the Supreme Court allowed local governments to confiscate property for no stronger reason than their own speculation that handing it over to somebody else might, at some point in the future, bring in more tax revenue. No proof was required, leaving it up to homeowners to prove why their property shouldn’t be taken. Virginia’s proposed constitutional amendment would shift the burden of proof back where it belongs: on the governments that want to seize property in the first place.

Critics of the amendment say existing state protections should suffice. Not really. Ask yourself: Would you feel comfortable knowing other basic rights—such as the right to speech or freedom of worship – were guaranteed only by statute? Rights should be written into constitutions, which are the rules by which we decide how all other rules get written.

This is an easy sell to conservatives, who tend to favor property rights. But liberals have good reasons for supporting the amendment as well. The first is the asymmetrical nature of government takings. Local governments are never going to seize property from rich developers and give it to poor homeowners. The process will always flow in the other direction, which makes eminent domain for economic development purposes repulsive from a social-justice perspective.

Second, as Justice Clarence Thomas pointed out, the courts would never cede their judgment to the other branches of government in a Fourth Amendment question about when authorities should be allowed to search a home. Yet in Kelo they are expected to cede their judgment in the Fifth Amendment question about when authorities can tear one down.

Third, property is “the guardian of every other right.” You can do things in the privacy of your home that you cannot do on public property. Strong safeguards for private property help protect other rights as well.

One final point. Liberals are deeply worried that after November’s elections social conservatives will swing a lot more weight—and will use it to impose restrictions on women’s reproductive rights. And granted, progressives will find pro-life absolutists unresponsive to any argument they make. But they might be able to start a dialogue with less adamant conservatives by pointing out that questions of eminent domain and reproductive rights are not wholly unrelated. No property is more private than your body (if you don’t own it, then who does?) – and no one can truly be said to value property rights if he thinks the government should tell you what to do with it.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch, where this article originally appeared.