Opponents of Virginia's Eminent Domain Initiative Made the Best Case for It

Making life easier for government is not a good reason to infringe individual rights.


The closing days of the election gave Virginia voters a rare treat: multiple voices warning them not to protect their own constitutional rights too much.

Oh, you see attacks on constitutional rights all the time. During the Bush years conservatives denounced the Supreme Court for recognizing the habeas corpus rights of alleged enemy combatants. Liberals routinely demand tougher gun control. But in those cases the real argument is that certain people—terrorists, gun owners—are claiming rights they do not actually have.

In Virginia, the argument against ballot Question 1—a measure amending the state constitution to restrict government takings of private property—was considerably different. Those opposing it universally agreed individuals have a right to property. They just didn't like the amendment protecting that right.

One of the most common complaints held that existing law renders the amendment redundant. Like many other state legislatures horrified by the Supreme Court's infamous Kelo ruling in 2005, Virginia's General Assembly passed a measure restricting government's taking of private property for economic-development purposes. The amendment was designed to enshrine that protection in the state constitution. Opponents insisted the statute is good enough.

Thus, Del. Scott Surovell and state Sen. Linda "Toddy" Puller called the amendment "unnecessary" because eminent-domain restrictions are "already the law of the land." The Hampton Roads Daily Press said amendments should not be "wasted on pick-and-choose duplications of laws that already protect citizens." The state Democratic Party called the amendment "duplicative," and so on.

Imagine making that argument about other rights that come under frequent fire, such as the right to vote or the right to abortion. It's particularly rich coming from progressives, who frequently (and justifiably) warn about conservative state lawmakers trying to undermine reproductive freedom even within the constraints of Roe v. Wade. Progressives would be aghast at stripping away constitutional protections for abortion. They would never argue that we should leave a woman's right to control her most personal property—her body—up to the mercy of state lawmakers. Yet many seem to think this is just what we should do with her other property rights.

The second principal argument against the amendment was that it would make life harder for government.

Virginia's Democratic Party said the amendment would "add to the complexity and expense" of the eminent-domain process. The Charlottesville Daily Progress worried the measure would "tie the hands of government in accomplishing reasonable public-policy goals." The Washington Post hyperventilated that the measure would "cost state and local governments and taxpayers tens of millions of dollars annually."

A Portsmouth official fretted that the amendment would make it "nearly impossible to reach the critical mass needed" for big redevelopment projects. Her counterpart in Suffolk agreed that "adding more layers to the process will only serve to slow it down more, and make it more expensive." (Red tape slows things down? Who knew?)

Three points.

First, governments are established to protect your rights and property—not to take them. By strengthening the guarantee of property rights, the amendment improves government's performance of its primary duty. Del. Rob Bell, who sponsored the amendment in the assembly, summarized the issue perfectly when he said, "You should not have to give up your property because the city likes someone else's idea for your land better."

Second, the amendment does not impose extra costs on government and taxpayers. Rather, it requires government and the public to bear the true cost of public projects, instead of shifting a portion onto private individuals and businesses.

Finally, making life easier for government is not a good reason to infringe individual rights. The Fourth Amendment's guarantee against unreasonable search and seizure incommodes law enforcement all the time, after all—and rightly so. The First Amendment's guarantee of a free press is also a pain in government's neck. Too bad. We don't confine rights to the zone defined by government's convenience; we confine government action to a zone where it doesn't trample individual rights.

Granted, the amendment isn't perfect. As George Mason University law professor Ilya Somin has written on "The Volokh Conspiracy," a popular legal blog, it includes language that could give local governments a pretext to commit further Kelo-like offenses. For instance, it prevents government takings when the "primary" use is for private gain or private benefit. That leaves a lot of wiggle room. And in rare cases it may have the potential to impede justifiable projects that are public under anybody's definition. Yet it still represents a marked improvement over the status quo.

While the official count is not in at this writing, polls suggest the amendment is cruising to an easy win. Let's hope so—because its opponents' arguments make a strong case for why it should.

Editor's Note: Question 1 passed with over 74 percent of Virginians voting yes.