I
find it hard to imagine that Del. Terrie Suit, R-Va.
Beach, ever read the decision of the U.S. Supreme
Court in Kelo v. City of New London, which caused
such an uproar when it was published last year. Had
she done so, she certainly would not have allowed
legislation she introduced at this session of the
General Assembly to be portrayed as a measure
designed to counter that decision.
In
Kelo, the Supreme Court ruled that a city could take
private homes that were not in a blighted area and
turn the property over to a private company for the
purpose of economic development. This offended the
principle announced by Justice Samuel Chase in a
1798 Supreme Court case that “a law that takes
property from A and gives it to B . . . is against
all reason and justice.”
Justice
John Paul Stevens, who wrote the majority opinion in
Kelo, later said he regretted the decision, but
pointed to language in his opinion that the states
can place further restrictions on the exercise of
the takings power to prevent the Kelo outcome.
Congress also is considering legislation to restrict
the Kelo decision. The three Republicans running for
statewide office in Virginia last year issued a
joint statement declaring their support for
legislation to prohibit the taking of private
property for the purpose of tax revenue enhancement
or economic development. House Speaker William J.
Howell, R-Stafford, followed with a statement of his
own pledging to introduce and pass legislation to
restrict the exercise of eminent domain power to
prevent the Kelo outcome in Virginia.
What
Howell had to say last year is worth noting:
“Citizens need to know that the majority they’ve
elected to lead the House of Delegates not only
shares their concerns and opposes the Court’s 5 to
4 ruling, but that we will do what is necessary to
ensure that property rights in Virginia are
protected from the effects of this misguided change
in public policy.”
The
legislation introduced by Suit did not meet that
objective. Nor did the amendments to Suit’s bill
that were approved by the GOP-dominated Committee on
Courts of Justice. As the legislation reached the
House floor, it explicitly allowed private property
to be taken and then transferred to other private
persons so long as the initial take was not
primarily intended to enhance tax revenues. The bill
did nothing to prohibit the transfer of private
property from one owner to another in non-blighted
areas for economic development, job enhancement or
any other nominally public purpose.
It
took a Democrat, Del. Johnny Joannou, D-Portsmouth,
to expose this defect in Suit’s bill. Suit
vigorously opposed Joannou’s floor amendment,
which contained the strictly limited definition that
Republican leaders said they supported last year.
But a majority of delegates, including most
Republicans, voted to adopt Joannou’s amendment to
Suit’s bill.
The
Senate, meanwhile, has passed legislation much like
the Suit bill as reported by the House Courts of
Justice Committee. Undoubtedly, there will be
another fight over eminent domain at this
legislative session.
The
Senate-passed bill would not prevent many of the
abuses identified by the dissenting justices in the
Kelo case. If the Senate-passed bill is enacted,
government would arguably have legislative approval
to transfer property from one private owner to
another so long as it was taken for any reason other
than to enhance the tax base or to create employment
opportunities.
Those
who understand the importance of private property in
preserving liberty should be very vigilant until
this session adjourns.
--
February 27, 2006
|