Virginians Protect Property Rights

John Kramer
John Kramer · November 7, 2012

Arlington—Yesterday, by a 3-to-1 margin, voters in the Commonwealth of Virginia approved Question 1, a constitutional amendment that protects property owners from eminent domain abuse by the government. Thus ends a more than seven-year saga spurred by the U.S. Supreme Court’s widely reviled decision in Kelo v. City of New London, which allowed local authorities under the federal Constitution to forcibly take homes and small businesses and give them to someone else on the mere promise of increased jobs or tax revenue.

Question 1, amending Section 11 of the Virginia Constitution’s Bill of Rights, makes several substantive changes to current law. It declares the right to property to be fundamental and fixes an odd quirk that allowed the General Assembly to redefine public use based on politics rather than sound policy. The new language gives property owners the possibility of recovering compensation for lost profits or access while preserving the use of eminent domain for traditional uses like roads, courthouses and utilities. Finally, Question 1 explicitly disclaims the Kelo decision’s rationale and requires condemning authorities to prove their use of eminent domain is legitimate.

“This is a triumphant result for property owners around Virginia,” said Steven Anderson, chief financial officer at the Institute for Justice, which litigated Kelo before the Supreme Court. “Now every home, small business, church and farm will have constitutional protection against eminent domain abuse.” IJ worked closely with the Virginia affiliates of the National Federation of Independent Business and the Farm Bureau to advance the amendment across the state.

Following the Kelo decision in 2005, IJ immediately launched its “Hands Off My Home” campaign, a strategic effort to combat the effects of the case at the state level. All told, 44 states have since changed their laws to make it harder for governments to acquire property by eminent domain. These reforms have been supported by people from across the political spectrum. Virginia becomes the 12th state to restrict eminent domain by constitutional amendment. In addition to the amendment, statutory changes contingent on the vote that define certain constitutional terms become effective on January 1.

“Thankfully, our federal system allows states to provide greater protections for its citizens through their state constitutions than the federal Constitution provides; the U.S. Constitution provides a baseline off of which each state can then offer heightened protection for individual rights,” Anderson said. “In an era of severe partisanship and divisive campaigns, it is unmistakable that all Virginians believe a man’s home is his castle. Question 1’s passage is a fitting exclamation point on a bipartisan struggle to ensure everyone keeps what they’ve worked so hard to own.”