A Dubious Attack On Virginia Eminent Domain Reform Referendum Question 1

In Friday’s Washington Post, state legislators Scott Surovell and Linda Puller published an op ed attacking Question 1, the eminent domain reform referendum question that Virginians will vote on in November. Unfortunately, their arguments are off-base, and some are seriously misleading.

Question 1 would amend Virginia’s Constitution to forbid economic development takings of the kind the US Supreme Court allowed in Kelo v. City of New London. Such takings often enable powerful interest groups to use the power of eminent domain to transfer property to themselves at the expense of the politically weak; they also tend to destroy more economic value than they create. If adopted by the voters, Question 1 would provide some important protection against such abuses.

Surovell and Puller’s critique of Question 1 completely ignores the fact that Virginia’s present constitution is one of the worst in the country when it comes to protecting property rights. Article 1 Section 11 states that the “public uses” for which property can be taken by the government are to be “defined by the General Assembly” – the state legislature. This gives the legislators a blank check to authorize the taking of property for any reason they wish, including benefiting powerful interest groups at the expense of the poor and weak.

Surovell and Puller claim that “[t]he language in the Fifth Amendment [of the federal Constitution] is virtually identical to existing language in Article I of the Virginia constitution because James Madison borrowed the concept from George Mason, who had written it into the Declaration of Rights in 1776. It has stood virtually unchanged for 236 years.” They accuse supporters of Question 1 of seeking to “change language in the Virginia constitution that dates to George Mason.”

In reality, neither the Fifth Amendment nor Virginia’s original 1776 Constitution include language giving the legislature unconstrained authority to define what counts as a public use. The state legislature did not get unconstrained power to define “public use” until the Constitution was last rewritten in 1971. That change certainly wasn’t the handiwork of George Mason and James Madison. Madison famously wrote that “Government is instituted to protect property of every sort…that alone is a just government, which impartially secures to every man, whatever is his own.” I doubt he would approve of a constitution that allows the legislature to take property for any reason it wants.

Surovell and Puller correctly point out that Virginia’s 2007 statutory eminent domain reform law already forbids Kelo-style economic development takings. But they ignore the reality that protecting these rights in the state constitution is necessary to prevent future legislatures from backsliding on the issue. Until Kelo thrust the problem of eminent domain abuse into the national spotlight, most voters were unaware of it. As public attention moves on to other issues, developers and other interest groups could successfully lobby for a return to business as usual. Virginia’s permissive pre-Kelo eminent domain law licensed egregious abuse for the benefit of private interests. Question 1 would help ensure that those days don’t return.

Surovell and Puller complain about Question 1’s requirement that businesses whose property is condemned will be entitled to compensation for lost profits and lost access, as well as the value of the land itself. They claim “this is unfair because it gives businesses more rights than people.” Since businesses are in fact owned by people, this is a strange dichotomy.

In any event, it is not just commercial enterprises but all property owners who will be entitled for compensation for lost profits and lost access if their land is condemned. The wording of Question 1 makes no distinction between businesses and other owners. Obviously, business owners are more likely to suffer lost profits in the event of a taking than residential ones. But that fact in no way justifies ignoring these losses.

Compensation for lost access and lost profits is itself a matter of fairness. As the Supreme Court put it in 1960, the whole point of requiring compensation for takings is to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Loss of access and profits is part of the burden that takings impose on property owners, and they deserve compensation for that no less than for the loss of the land as such. If, as Surovell and Puller claim, takings create “broad public benefits,” then the public should compensate the property owners who are forced to sacrifice their rights. If local governments decide that such compensation is too much to pay, that might be a sign that the alleged “public benefits” aren’t really worth their cost.

Surovell and Puller worry that compensation for lost profits result in compensation for individuals even when they lose part of their land for projects that actually increase the profitability of their businesses. If that happens, however, there need be no compensation for lost profits, because no profit will actually have been lost. If the government can prove that landowners’ profits will actually go up after a taking, nothing in Question 1 requires them to pay compensation for losses that don’t actually exist.

It’s also worth noting that Question 1 gives the state legislature the power to define what counts as loss of “profit” and “access” for purposes of compensation. Given the lobbying power of local governments, it’s unlikely that the legislature will define these concepts in a way that imposes excessive burdens on them. If anything, there is a greater danger that the Assembly will shortchange property owners. Owners targeted for condemnation rarely wield great political power; otherwise their land probably would not be condemned in the first place.

In sum, Question 1 is far from perfect. It does not protect property rights as fully as it should. But it’s a major improvement over Virginia’s current constitution.