Del. Sal Iaquinto (R-84) penned this editorial that appeared in Sunday’s Virginian-Pilot. Never thought anyone would work video games into the property rights issue, but darn it if Sal didn’t succeed.
As a member of the House of Delegates, I often discuss legislation around my kids. While they generally don’t pay attention, occasionally they ask me to explain matters in terms they can understand.
Take the proposed constitutional amendment on property rights, which is coming up for its final vote in this legislative session. When my oldest asked me to clarify, I offered the following analogy.
“Suppose I take your game system away because I don’t like the types of games you play, and give it to your brother because he’ll use it to play interactive sports games. Just think: Not only will he get fit, but he’ll inspire all of us to get fit! Don’t worry, I’ll come up with a fair price for the system — if you disagree, just show me why I’m wrong. Oh, and, by the way, don’t expect me to pay you for the controllers or the games, you’ll just have to swallow that loss.
“Now, son,” I continued, “if the father in this scenario were the government, and you were a property owner, what would be right?
(A) The government should be able do what it proposed, as it might benefit everyone?
Or (B) The government should limit itself, being careful to not take property willy-nilly.
If you answered (A), then you subscribe to the same reasoning as did the liberal U.S. Supreme Court majority in 2005’s Kelo case, which held that localities could take private land from one owner, hand it over to another, and that this could meet the “public use” rule for eminent domain even though the property wouldn’t be used by the public. Even a child understands the unfairness in this proposition.
If you said (B), then you’re like many local public officials throughout the commonwealth who, very reasonably it may seem, don’t necessarily agree with taking property from one private owner just to hand it to another. They believe that government should restrain itself, take property only for legitimate public use, and keep costs down in the process. They’ll offer fair market value, which is presumed to be correct, but property owners may certainly dispute it. At their own cost, of course.
But if you said, whoa, wait a minute! Where is option (C)? Neither (A) nor (B) is acceptable; in fact, the entire analogy is false. Because government is no parent, property rights shouldn’t be subject to the whims of elected officials. The government’s condemnation power stems entirely from, and is limited by, the people. If that’s your response, you understand, as I do, that the current debate represents competing beliefs about the relationship between citizens and the government they created, and that only a constitutional amendment goes far enough to protect a right that is neither granted by government nor should be easily infringed by it.
Let me explain why the proposed amendment is so important.
It would elevate existing law to the state constitution. Following the Kelo decision, horrified state legislators around the nation passed laws consistent with a more restrictive view of condemnation powers. Virginia was no exception, passing an anti-Kelo statute in 2007. This legislation was necessary, but without constitutional protection, that law is subject to reversal with the election of a new legislative majority or new administration.
It would shift the burden of proof from the citizen to the government. This may sound like a minor matter, but it’s immensely important. Now, courts hearing condemnation cases must presume by law that the government’s facts are correct and that the land being taken is for a legitimate public use. If the property owner cannot provide an effective defense, which usually means hiring an attorney, the government automatically wins. This is fundamentally wrong. Citizens are the source of government power and should retain that advantage in court.
It would allow courts to consider lost profits and lost access to property as compensable damages. Opponents would have you believe that the amendment would require cities to pay businesses every time they were hampered by activities like parades and street cleanings. That’s a misleading argument that ignores the language of the amendment and the way our justice system works. We already trust judges and juries to decide reasonable compensation on all sorts of matters, but we also require the damaged parties to offer evidence of these damages — the amendment does nothing different.
Although my son doesn’t fully understand the proper relationship between citizens and their government, we adults do. It’s up to us to leave for our children an inheritance — not just of property, but more importantly, the rights that secure property ownership.
You have an important role in protecting these rights. First, ask your representatives to support the amendment. Then, after it passes, vote to ratify it in the fall.
