When You Vote, Don’t Forget the Constitutional Amendments!FeaturedPolicy

By Senator Mark Obenshain (R-Harrisonburg)

Unless you’ve taken up residency in a cave somewhere, you know all about the candidates on the ballot this November. We’ve come a long way since George H. W. Bush observed that American spent more on pork rinds each year than they did on all federal elections combined.

Besides, as a Bearing Drift reader, I’m confident that you’re unusually well informed.

But while the candidates are getting all the airtime, they’re not alone on the ballot this November. Voters will also get to choose whether or not to ratify two Amendments to the Constitution of Virginia, and frankly, this is a big deal.

And it should be. As conservatives, we talk about our commitment to constitutional principles, and about the importance of constitutional government. So whenever we’re looking at the possibility of amending the constitution – state or federal – we ought to stand up and take notice.

Fortunately, I think that both of the Amendments coming before the voters in November are good ones (in fact, I am the Senate patron for one). Let me explain.

Ballot Issue 1: The Virginia Property Rights Amendment
If you’ve heard of just one Amendment up for ratification, this is it, and with good reason. It is a response to the Kelo v. New London decision by the Supreme Court and to documented abuses of eminent domain here in Virginia. This Amendment would require that any property taken by the state or local government under its eminent domain power constitute a true “public use” and would ensure that property owners whose land is taken receive just compensation.

Really, then, what this Amendment does is restore the original conception of eminent domain. Takings have always had to be for public use – something that traditionally meant roads, schools, and utilities. Over time, many state and local governments began substituting the much more expansive term “public purpose,” which could encompass just about anything the government wanted to do.

This is how local governments wind up taking someone’s property not because it’s needed to build a road, but because they think they have a better use for it: that a row of houses would make a great business park or that your farm could be better used as a large “box store.”

In the past these takings have been defended as being for the “public benefit”: there will be a new owner that will pay more tax. The Constitution, however, allows takings for “public use,” and not because some local governmental body has decided that someone else can put my property – or yours – to a “better” use. And, if you’ll excuse the editorializing, such abusive takings are just plain wrong.

It’s an illegitimate use of the power of eminent domain, and the Virginia Property Rights Amendment will put an end to it.

The Amendment defines “public use,” offering a definition broad enough to encompass legitimate takings but not so broad as to let governments trample on property rights. It also establishes that “just compensation” includes compensation for lost profits and lost access.

This doesn’t mean profits in perpetuity or anything like that, but what it does mean is that if a business has to temporary close its doors while moving to a new location, or if a farmer loses the crop he was just about to harvest, those losses are compensable so long as the owner can prove the loss. Lost access, meanwhile, speaks to cases where what remains of a person’s property after a taking is impaired by a severe reduction of access, which is also to be taken into account in determining what constitutes just compensation.

If we believe that property rights are important, we can’t turn a blind eye to eminent domain abuse. The Virginia Property Rights Amendment will enshrine the right of private property in the Constitution of Virginia – where it belongs.

Ballot Issue 2: Reconvened Session Amendment
Six weeks after the end of every legislative session, the General Assembly briefly reconvenes for a “veto session” for the purpose of taking up amendments offered by the Governor and upholding or rejecting the Governor’s vetoes. So far, so good. But we’ve run into an issue with the calendar.

When the current language of the Constitution of Virginia was adopted, the General Assembly was expected to have thirty-day sessions, but now our sessions alternate between 45 and 60 days, which means that sometimes the reconvened session falls during Passover.

The second ballot issue, then, is a simple fix, an Amendment that would allow the General Assembly to delay the start of the veto session for up to one week to avoid the possibility of scheduling the session over a religious holiday. It’s a wholly uncontroversial Amendment that does nothing to change the nature of the veto session, merely granting the legislature enough flexibility to keep it from convening during Passover.

I believe that both Amendments on the ballot this fall merit ratification, and I hope that you will join me in voting for them in November!

  • http://www.facebook.com/craig.m.kilby Craig M Kilby

    Well written and convincing. I’m still on the fence about Amendment 1 because the Kelo case had nothing to do with current Virginia law….but, I have recently learned of some outrageous cases in which private property was taken for private use. I am concerned, however, how this might affect legitimate redevelopment projects in urban and ring suburbs. That not withstanding, I predict it will pass by a huge margin anyway.

    • Mark Obenshain

      Craig: I think Kelo was a wake-up call. Abuses of the takings power weren’t new, but once the Supreme Court gave them official sanction, we risked the floodgates opening, where eminent domain could be used for just about any purpose so long as a local governing body thought it could be beneficial to the community.

      Back in 2007, then-Senator Ken Cuccinelli and I partnered to enact legislation which restricted such practices here in Virginia, and because of that, we don’t currently run the risk of quite the level of abuses permitted in the Kelo case. Unfortunately, though, we’ve already witnessed several attempts to chip away at that law, and it’s become increasingly clear that we need to take action to ensure that property owners receive truly just compensation as well.

      I firmly believe that property rights are important enough to merit protection in the state constitution, which is why I patroned the Amendment in the Senate, and why I am asking voters to support ratification this November.

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