Seal of Virginia

Citizens of the Commonwealth of Virginia will be voting on two state constitutional amendments in this year’s general election. These amendments would each add, remove, or change text in the Constitution of the Commonwealth of Virginia.

Question #1: Restoring Property Rights

Article 1, Section 11 of the Virginia Constitution, a part of the Virginia Bill of Rights that is similar to the Fifth Amendment to the U.S. Constitution, provides that no person shall be deprived of life, liberty, or property without due process of law. It goes on to say that the General Assembly may not pass “any law whereby private property shall be taken or damaged for public uses, without just compensation, the term ‘public uses’ to be defined by the General Assembly. . . . “

Unfortunately, our Fifth Amendment property protections have been utterly eviscerated by the U.S. Supreme Court’s ruling in the 2005 case Kelo v. New London. In that case, a narrow 5-4 majority of the justices found that governments may seize private property and turn it over to private businesses in the name of vaguely-defined ‘economic development.’ Since the wording in the Virginia Bill of Rights is very similar to that in the U.S. Bill of Rights, the Kelo ruling likely abrogates our state-level property rights as well. In fact, the Virginia version is probably in worse shape, since it explicitly leaves it to the General Assembly to define what constitutes ‘public use.’

The constitutional amendment (PDF link) being presented to voters as question number one would amend Article 1, Section 11 to more clearly describe property rights as a fundamental civil right, explicitly prohibit the taking of private property for non-public uses, expand and clarify what ‘just compensation’ means, and establish that the government has the burden to prove that the property is being taken for a valid public use. Many of these provisions were added to the Code of Virginia following the treasonous Kelo ruling, but a formal amendment would make them part of the Virginia Constitution, which can only be changed through state-wide referendum (or, apparently, idiotic U.S. Supreme Court rulings).

If approved by the voters, the following text would become the new property rights portion of Section 11 of the Virginia Bill of Rights:

That no person shall be deprived of his life, liberty, or property without due process of law. . . .

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if 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 condemnor bears the burden of proving that the use is public, without a presumption that it is.

The new text is not perfect. It leaves the definition of the ‘value of the property taken’ too open-ended, considering that the undervaluation of property is a common method of eminent domain abuse. It still grants too much authority to semi-public businesses in the ‘utility, common carrier, or railroad services’ areas. It also allows governments to seize property to eliminate a ‘public nuisance’ . . . well, what’s to stop them from claiming that a tacky lawn ornament or a loud lawnmower constitutes a ‘public nuisance?’

It is unfortunate that the General Assembly left obvious avenues for abuse in-place, but there is no doubt that this amendment would be a big step in the right direction. The recognition of property rights as a fundamental civil liberty is long overdue, and protections against private-use seizures are essential in the aftermath of the treasonous Kelo ruling. The strengthened definition of ‘just compensation’ and clear statement of where the burden of proof lies are icing on the cake. In a perfect world the protections would be even stronger, perhaps prohibiting the taking of property except by the assent of a two-thirds jury ruling, but progress is progress. I strongly endorse a YES vote on ballot question number one.

Question #2: Legislative Veto Sessions

Article IV, Section 6 of the Virginia Constitution requires that the General Assembly convene in a veto session on the sixth Wednesday following the end of each legislative session. During this veto session, delegates and senators can consider bills that have been passed by the assembly but were vetoed by the governor. The General Assembly is prohibited from considering any other bills during this session, and the session length is limited to three days unless extended by majority vote up to seven additional days.

The constitutional amendment (PDF link) being presented to the voters as question number two would amend Article IV, Section 6 to allow the General Assembly, by majority vote on a joint resolution, to delay the beginning of the veto session up to one week. It would still be required to convene no later than the seventh Wednesday following adjournment, and there would be no other changes to the veto session procedures.

The reason for the proposed amendment is to allow the General Assembly some limited flexibility to avoid convening veto sessions at inconvenient times, such as during major civil or religious holidays. They would still be required to convene within one week of the ‘default’ time, which would remain the sixth Wednesday following the adjournment of a legislative session. This amendment is harmless. I endorse a YES vote on ballot question number two.

Editor’s Note, October 12, 2012: This post originally had the order of the amendments reversed, based on the ordering on the Loudoun County election web site. Unfortunately, Loudoun’s information is incorrect. According to the Virginia State Board of Elections brochure (PDF link), the property rights amendment is question number one and the legislative veto sessions amendment is question number two. I have corrected the order, and apologize for any confusion. Thanks to reader Daniel for bringing this error to my attention in the comments.

Scott Bradford has been building web sites and using them to say what he thinks since 1995, which tended to get him in trouble with power-tripping assistant principals at the time. He holds a bachelor’s degree in Public Administration from George Mason University, but has spent most of his career (so far) working on public- and private-sector web sites. He is not a member of any political party, and brands himself an ‘independent constitutional conservative.’ In addition to holding down a day job and blogging about challenging subjects like politics, religion, and technology, Scott is also a devout Catholic, gun-owner, bike rider, and music lover with a wife, two cats, and a dog.