The
Fifth
Amendment of the United States Constitution states
that the government may take private property only
for a “public use.” Despite the Constitution’s
plain language, the United States Supreme Court
recently declared in Kelo v. New London that the
Constitution allows local governments to use the
power of eminent domain to take property from one
person to give it to another. Local governments can
now take a person’s property solely for economic
development.
In
other words, government is free to take property and
give it to someone who will use it in a manner local
officials deem more lucrative or desirable. Under
the Supreme Court’s interpretation of the
Constitution, no person’s home, business, or farm
is safe from government officials or well-connected
developers who may covet the property
After
effectively rewriting the Fifth Amendment by
substituting the words “public purpose” for
“public use,” the Supreme Court announced that
states may provide more protection for property
owners than the limited protection the United States
Constitution now provides. Many state
representatives responded by proposing state
legislation and state constitutional amendments.
However, only a constitutional amendment seems a
plausible solution for Virginia.
Legislation
falls short of providing permanent protection for
property owners for three reasons. First, what
the General Assembly gives today, it can easily take
away tomorrow. Second, the Assembly’s prior record
proves it cannot be trusted to protect property
owners. Third, with regard to eminent domain,
Virginia’s Constitution presently allows the
Assembly to define the limits of its own power.
A
constitutional amendment provides enduring
protection because, unlike legislation, which the
Assembly can easily change, the Assembly cannot
change a constitutional amendment without the
people’s consent. Only a majority of the voters
can change protections placed in Virginia’s
Constitution. Moreover, the Assembly’s
previous actions prove the Assembly has not
protected property owners. The General Assembly has
carelessly handed out powers of eminent domain to
countless governmental and non-governmental
entities. The Assembly has even given mosquito
control commissions power to take property.
Equally
disturbing is the breadth of power the Assembly
gives these entities. For example, the Assembly gave
cities the power to take property for the purposes
listed in each city’s charter. The Assembly
specifically approved a charter that allows the City
of Norfolk to take property “for any purposes of
the city.” Norfolk’s Charter even allows the
City to sell or transfer, without restriction,
property it has taken.
By
extensively delegating the power of eminent domain,
the General Assembly successfully rid itself of all
accountability. Even cities have caught on to this
novel concept, as city council members encourage the
creation of new layers of government, such as
redevelopment authorities, that do the unpopular
work of taking people’s property to protect those
in public office who must face elections. The
Assembly’s careless delegations of power and its
broad definition of public use, as discussed below,
subject property owners to the whim of unelected,
unaccountable bureaucrats wielding immense powers of
eminent domain.
The
Assembly’s actions are not surprising considering
that Virginia’s Constitution presently allows the
Assembly to fix the limits of its power of eminent
domain. Article I, § 11 of Virginia’s
Constitution purports to place a restriction on the
Assembly by prohibiting it from taking property for
reasons other than “public uses.” The
Constitution then immediately removes this
restriction by authorizing the Assembly to define
“public uses.” Virginia’s Constitution thus
places no real limits on the scope of the
Assembly’s power of eminent domain. Instead, the
Constitution relies on the Assembly to limit itself.
The
Assembly’s present definition of “public uses”
provides another example why a constitutional
amendment is necessary. The Assembly defines
“public uses” as “all uses which are necessary
for public purposes.” This expansive definition is
similar to the definition the Supreme Court used to
support its decision in Kelo.
“Public
uses” and “public purposes” are not
synonymous. “Public use” means the government
owns or the public has a right to use the property
taken. “Public purpose” means creating a public
benefit, such as increasing jobs or generating more
tax revenue. Under
this standard, government can take property for
public or private uses, such as takings for
corporations or developers, so long as it creates a
perceived public benefit.
A
constitutional amendment provides the only lasting
protection for property owners. Mere legislation
will not sufficiently restrict the Assembly’s
powers. The silver lining in the cloud of the Kelo
decision is that it has raised public awareness of
eminent domain and the threat it poses to all
property owners.
Virginians
must act now to restore and ensure any meaningful
protection of their property rights. In the words of
Virginia’s own Thomas Jefferson, Virginians must
bind the Assembly down “by the chains of the
Constitution.” Until the people demand a
constitutional amendment, the Assembly will be bound
by nothing more than its own conscience and
ambition, two things no Virginian should trust.
--
August 5, 2005
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