During its term that begins January 11, Virginia’s General Assembly will consider for the second time a constitutional amendment designed to protect the rights of private property owners against the abuse of eminent domain authority by state or local governments.
The legislation is being carried in the state Senate by Senator Mark Obenshain (R-Harrisonburg) and in the House of Delegates by Delegate Rob Bell (R-Albemarle County), who are rivals for the 2013 GOP nomination for state Attorney General.
The constitutional amendment reaffirms a statute passed in 2007, partly in reaction to the Supreme Court’s decision in Kelo v. City of New London (2005), which stated that governments could use eminent domain to take property from one private owner and give it to another private owner, if the transfer of property results in a “public purpose” such as more jobs or more tax revenues.
Dissent by Thomas
In a scathing dissent in that case, Justice Clarence Thomas memorably wrote:
“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”
Fourteen years earlier, there had been a striking moment in then-Judge Thomas’s confirmation hearings when then-Senator Joseph Biden held up a book called Takings: Private Property and the Power of Eminent Domain, by Richard Epstein, and asked Thomas, essentially, if he believed what was in it.
That dramatic scene thrust Richard Epstein, now a law professor at New York University, into the public consciousness as the pre-eminent legal advocate for protecting private property against the intrusions of government. That is why the Charlottesville Libertarian Examiner sought him out for his opinion about the legal environment in the post-Kelo years and the affect that might have on Virginia’s legislative attempts to protect against eminent domain abuse.
Can’t get no satisfaction
“No one is satisfied,” Epstein said in an interview, with how the reactions to Kelo have played out over the past six years.
“This is the basic breakdown,” he explained. “There are a few states which have fairly severe changes, some of them judicially, some otherwise. Michigan and Ohio, for example, are two.”
In addition, “many states have cosmetic changes, which require administrators to think more deeply before they do terrible things,” he pointed out, “and some states have relatively nominal requirements.”
Among these various regimes, he explained further, “the real difference turns out not to be in the law, it turns out to be in the practice.”
Higher political cost
The reason is, he said, is that “once the Kelo situation came down, it raised the political cost to anybody who now wants to engage in taking of private property, particularly if it turns out to be a residential home.”
Epstein recalled a 1984 Supreme Court decision, Hawaii Housing Authority v. Midkiff, with a majority opinion written by Justice Sandra Day O’Connor, who also wrote the principal dissent in Kelo.
Midkiff, Epstein explained, “was hugely capacious, but it didn’t raise any hackles, because what was being condemned was a non-possessory interest.” It involved a “landlord’s interest in property” rented to tenants “and people, frankly, didn’t care [because] ‘these guys are landlords; they’re interested in money; we’ll give them a different stream of money.’”
Unlike Midkiff, he noted, “Kelo threw people off their property. And it threw them off their property for no reason at all.”
‘Dubious end, crazy means’
A person doesn’t “have to be a genius,” Professor Epstein said, “to figure out that when somebody’s thrown out of their house, which is ripped down by a pitchfork, you’d better have a very powerful justification for doing that.”
In Kelo, the justification was “real estate development, which is a sort of a bad end anyhow, but worse than that,” he continued, “there was no real estate development that required the use of that land.”
Consequently, Kelo “was an exercise in a dubious end and a crazy set of means. The two of those things together turned out to be really explosive and so now, both on the ends chosen and the means used to achieve it, there’s more scrutiny, which takes place as sort of an automatic administrative matter.”
Whether this sort of political scrutiny of local administrators is a sufficient brake on eminent domain abuse and a substitute for statutory or constitutional guarantees is a question that the Virginia General Assembly will be asking during its 2012 session.
The second-reference resolution to amend the Virginia Constitution is designated as SJ3 in the Senate and as HJ3 in the House of Delegates.
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