Thoughts on the Virginia Eminent Domain Reform Referendum Question

Various people have asked me what I think of Virginia Question 1, the eminent domain reform referendum question that will be on the ballot in November. Question 1 is one of many eminent domain reform referendum questions developed as part of the political backlash against the Supreme Court’s decision in Kelo v. City of New London (2005), which ruled that the Constitution allows government to take property from one private owner to another on the grounds that doing so might promote “economic development.”

Virginia is one of 44 states that have enacted eminent domain reform legislation since Kelo. The most recent is Mississippi, where voters passed Measure 31 last year. Restrictions on eminent domain were long overdue because economic development and blight takings often victimize property owners for the benefit of powerful interest groups, and actually destroy more economic value than they create.

My bottom-line take on Question 1 is that it is a clear improvement over the status quo, but still has some flaws. As I discussed here, Virginia’s present Constitution is one of the worst in the country when it comes to property rights. Article 1, Section 11 allows government to condemn property for virtually any reason authorized by the legislature. If the voters pass Question 1, that will change.

Unlike many states that have enacted post-Kelo “reform” legislation that doesn’t really constrain eminent domain, Virginia’s state legislature has already enacted a fairly strong reform law through the legislative process, which I briefly described in my article surveying post-Kelo reform in all the states. But a constitutional amendment constraining eminent domain is still valuable because statutory reforms could easily be eroded over time as public attention shifts to other issues, and powerful interest groups lobby the legislature to allow takings that benefit them.

Unfortunately, there are some potential flaws in the proposed Amendment’s wording that make it less effective than it could be. Question 1 would change the state Constitution to forbid takings “the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property.” The amendment also has some valuable provisions forbidding the condemnation of more property than is necessary for the “public use” justifying the taking, increasing compensation for owners of condemned property, and specifying that the right to private property is “fundamental” (which usually triggers a higher degree of judicial protection when the right is threatened).

This is a clear improvement over the status quo. But it leaves the door open for “blight” condemnations enacted under a broad definition of “blight.” In many states, post-Kelo reform has been undermined by blight condemnation laws that define blight so broadly that almost any area can be declared blighted and condemned. It is not clear whether Question 1’s ban on takings takings for “private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development” covers blight condemnations adopted under an extremely broad definition of “blight.” If the legislature ever broadens Virginia’s relatively narrow post-Kelo blight law, the courts will have to decide whether that is compatible with Question 1. I think there would be plausible arguments on both sides.

Moreover, even takings enacted under a narrow definition of “blight” are often problematic, because they tend to victimize poor and politically weak communities for the benefit of influential interest groups. There are better ways to improve blighted areas than condemning the neighborhood in order to save it. Indeed, stronger protection for property rights might well promote economic development in poor areas rather than hinder it.

Finally, the fact that Question 1 only bans takings whose “primary” use is “private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development,” could potentially allow local governments to slip such takings in through the back door by arguing that economic development is tied to some other goal. Much may depend on how the courts interpret the meaning of “primary.”

Like most other post-Kelo referendum measures, Question 1 will probably pass easily. The vast majority of the public hates the Kelo decision and economic development takings. The only post-Kelo referendum initiatives that have ever failed were three that tied bans on economic development takings to other, less popular proposals, such as abolishing rent control. By contrast, over a dozen relatively “clean” post-Kelo reform initiatives have passed easily.

Question 1 will probably pass as well. Because it is a clear improvement over the status quo, I’m going to vote for it myself. The best should not be the enemy of the good. But Virginians should not imagine that passing this amendment will create an iron-clad safeguard against abusive takings in this state.