On Question 1

Although The Virginian-Pilot editorial board announced that they would be weighing in this ballot amendment, I chose not to include it in my predictions. (I also didn’t predict anything on the Virginia Beach light rail referendum. More on that in another post.) It has been clear, to anyone who reads the pages, that the board supports this amendment, and today’s endorsement is just reaffirms that.

Most expect the amendment will pass – and with an overwhelming margin. Support for it in the General Assembly was on a bipartisan basis, which makes the effort by some to make this a partisan issue quite ridiculous. The State Central Committee of the Democratic Party of Virginia adopted a resolution (pdf) opposing it, putting it in direct opposition to many of its elected representatives. A rather dumb move, if you ask me.

That’s not to say that I support the amendment. Truth be told, after spending hours upon hours researching it and talking to people on both sides, I still haven’t made up my mind. My own hesitation stems not from the idea that property rights shouldn’t be protected, but that this mechanism – amending the constitution – is not the right vehicle.

Instinctively, I am against amendments to the Virginia constitution. Yes, ours looks more like a Christmas tree, with all the ornaments hanging on it, especially when compared to the original. It seems we have constitutional amendments on the ballot quite often; compare that to the U.S. Constitution, which has been amended only 27 times.

Amendments, proponents argue, are necessary to avoid the whims of the legislature.

Unlike the statute approved in 2007, a constitutional amendment cannot be changed by legislators one year and reversed the next. This amendment has been approved by the General Assembly in consecutive sessions, separated by an election, and it must be ratified by the people. Any change would have to follow the same process.

The process is designed to be difficult to achieve and difficult to overturn. Which is why serious consideration should be given before we enshrine something into it.

But there is one argument of proponents that gives me serious heartburn, and it was made in the same editorial:

The constitution outlines the commonwealth’s overarching principles and Virginians’ rights

Ah, but if that were only true.

Virginian’s amended the constitution in 2006 to take away rights.

The exact same arguments that were made in favor of the 2006 Marshall-Newman amendment are being made here.

To be fair – and this is why I remain undecided – many of those who were against the 2006 amendment are in favor of this one. But I also hear from proponents of both amendments – and they use the same words.

And it makes my stomach turn.

Property owners, particularly in the wake of the Kelo decision, deserve protection.

But so do I.


16 thoughts on “On Question 1

  1. Actually, if you recall, same-sex marriages and civil unions were prohibited by statute in 2004. The Marshall-Newman Amendment (passed two years later) only reinforced the preexisting ban by putting it in the Constitution. In reality, then, it didn’t really take away any rights, because there was no right to same-sex marriage in Virginia when the amendment was passed.

    In any event, that seems like a pretty weak argument against approving Question 1. If people are concerned about undoing the effects of the Marshall-Newman amendment, then they should start moving to get it repealed. That, however, really has nothing to do with insuring better protection of property rights.

    The most important part of the editorial is right at the end and it’s an issue that opponents of the amendment really have yet to address in any meaningful way:

    “Confiscation of property shouldn’t be cheap or easy for government, because private property belongs to the individual. A government created by people, run by people and designed for people should not have authority to strip people of a fundamental right without due process, or without providing just compensation.”

    All the talk of increased costs leaves aside this basic fact: “private property belongs to the individual.” Until opponents of the amendment start acknowledging that premise (one of the founding premises of the United States, in fact) I find it difficult to take their arguments seriously.

    1. As I tell my students, reading is fundamental. The argument, in my mind, is whether we should be amending the constitution so frequently.

      And to use your logic: the law already bans the taking of property, by statute. So in reality, we’re not creating any rights that have not already been given.

      1. Whether the Virginia Constitution has been amended too many times is not an argument against any particular amendment. For instance, if the amendment on the ballot this year were one to repeal the Marshall-Newman amendment and allow same-sex marriage, you would NOT be arguing that that amendment shouldn’t pass because the Constitution has been amended too many times, would you? On the contrary, I think you would most likely argue (rightly, I think) that the amendment should be considered on its own merits. If someone said “We should think twice about repealing the ban on same sex marriage because the Constitution has been amended so much already” what would you say to them?

        I can’t figure out why those who either oppose or “hesitate” on Question 1 seem unwilling to consider it on its own merits. Instead, you and others resort to arguments that you wouldn’t bring up if the subject of the amendment were something more to your political preferences. Why is that?

        1. I notice that you are changing your argument and have failed to address my point; namely, that the rights are already provided under the existing law.

          You may not consider amending too many times to be an argument, but that is part of the argument that I made against the M-N Amendment. It was unnecessary. And by that logic, so is this one.

          Repealing an amendment simply puts things back the way they were; it is not adding to it. When the U.S. Constitution was amended to prohibit alcohol consumption, the subsequent repeal simply put things back to the way they were before.

          Again, I say reading is fundamental, because I was quite clear that folks on all sides of the political spectrum are in favor – or against – this amendment. So I don’t know where you’re getting the “political preferences” argument.

          1. If they are redundant, why do you really care whether they are in the Constitution or merely in Virginia Code? The only differences are that Virginia judges cannot then say the statute violates the VA Constitution, and that they are harder to overturn legislatively.

          2. First of all, thanks for having this discussion. I appreciate that at least some people are able to have lively discussions about important issues like this while remaining civil and giving the benefit of the doubt to those on the other side. I’m sure you have an idea of how rare that can be these days.

            The idea that “the rights are already provided under the existing law” has been amply addressed in multiple editorials over the past several weeks. Property rights are fundamental rights and ought to have more protection than is afforded by statutes. As noted in the Pilot editorial, current law puts the burden of proving that a taking is not for public use on the property owner, not the government. In a country founded on the idea of government of the people and for the people, that’s a gross perversion of the right to private property. The burden should be on the government and this amendment will change that. Do you disagree that, as the Pilot put it, “Fundamental rights demand constitutional protection.”?

            In contrast to the Constitution, statutes can be changed much more easily by members of the General Assembly who are not for full protection of property rights. The legislative process as opposed to the constitutional amendment process is significantly more open to influence by special interest groups which have no qualms about using the power of the state to snap up property they want at bargain prices.

            If you made the “amending too many times” argument on the M-N amendment, that’s at least consistent, I suppose. That doesn’t make it any less of a wrong, in my opinion. If a right needs to be protected and getting that protection requires amending the Constitution, then whatever else might have been unnecessarily done to the Constitution shouldn’t make a difference. I guess we’ll just have to agree to disagree on that point.

            But allow me to ask you to consider another question. Suppose there were an effort to amend the Constitution to make clear that corporations do not enjoy the same constitutional rights as people. Would you argue against that amendment because the Constitution has been amended too much? Or would you, rather, argue that regardless of the previous number of amendments, people ought to consider the amendment on its own merits?

            Political preferences show through pretty clearly if you read the resolution that was passed by the State Central Committee to which you refer. That an amendment was supported by a Republican Attorney General (as the resolution points out) is no reason to oppose any particular amendment. That fact has nothing to do with the substance of the amendment (and it’s especially misleading given that the chief patron of the bill in the House of Delegates was Johnny S. Joannou, a Democrat who represents Portsmouth). Perhaps you haven’t made arguments against the amendment based on your political preferences (and I could have been more clear about that), but I think it’s pretty clear that political preferences have entered the equation for some of the amendment’s opponents.

  2. My undertanding of the amendment, and correct me if I am wrong, could impose draconian hardship on localities because it requires property owners to be compensated for future profits. We should be questioning how are these future profits going to be established. In my mind “future profits” are purely speculative but I can see localities having to pay substantial sums of money to businesses for future profits under the amendment. We should also investigate what constitutes a “taking”. Does it have to be a permanent taking or will a temporary taking trigger a potential payout to anyone. For example, the President comes into town and the police block off all of Warwick Boulevard for six hours. Do businesses along the Warwick corrider have a claim for the taking of their property for that six hour period and should they be able to make a claim for loss of profits for that time period? You could use roadwork as another example. What is the real motivation behind this amendment?

    1. The “future profits” part is an issue, but only because it is, I believe, the first of its kind in the nation. The actual definition will be left up to the same legislature who can’t be trusted to protect property rights. Go figure.

      1. I’m not sure you’re looking at the correct bill. I don’t see the phrase “future profits” anywhere.

        In any event, no, what amount of “lost profits” are to be awarded is not up to the legislature, it’s up to the court system (and in appropriate cases, a jury of regular folks from the locality in which the property in question is located). Just take a look at the rest of Title 25.1 and you’ll get a better idea of the procedures followed.

  3. Political preferences show through pretty clearly if you read the resolution that was passed by the State Central Committee to which you refer.

    And which you conveniently fail to notice that I called “a rather dumb move.”

    And perhaps you also missed my statement, “Property owners, particularly in the wake of the Kelo decision, deserve protection.”

    I have no idea who you are, Joseph. But I can tell you that I have people whose opinions I respect on both sides of this issue, part of my struggle with determining how I’m going to vote. I also am quite aware that my vote will not matter – and that this amendment will pass overwhelmingly.

    What I don’t get is why proponents can’t step back and look at a bigger picture, and see a pattern of jumping to a constitutional amendment for everything.

    Heck, look at the second one! If the constitution didn’t have so much junk in it, we wouldn’t be amending it for that, either.

    1. I didn’t fail to notice that you called it out as a dumb move. That, however, doesn’t change the fact that, at least for some, it’s clear that political preferences are part of the equation. Good for you for being able to keep partisanship out of it, but it’s obvious not everyone is capable of doing the same.

      Also, no, I did not miss your statement about property rights deserving protection. My point is not that opponents of the amendment don’t think property rights are deserving of any protection, but rather that they don’t think they are deserving of greater protection. Do you see the distinction?

      I’m certainly not saying that everything is a proper subject for a constitutional amendment nor am I sure where you might have gotten that idea about me. I’m simply saying that fundamental rights like property rights are deserving of that greater level of protection. You obviously disagree, even though I’m not entirely clear why you disagree. Do you disagree that, as the Pilot put it, “Fundamental rights demand constitutional protection.”? Do you consider property rights fundamental?

      As for Question 2, it’s pretty much in the same vein as the 20th Amendment to the United States Constitution which designates the date on which the President is to be inaugurated. It seems that if you were to apply your own logic to the US Constitution, then the 20th Amendment would be unnecessary and should not be passed.

  4. Joseph, the statute is is not clear on these issues. Take a look at the definition of lost profits.

    “Lost profits” means a loss of business profits, subject to adjustment using generally accepted accounting principles consistently applied, from a business or farm operation for a period not to exceed three years from the date of valuation that is suffered as a result of a taking of the property on which the business or farm operation is located, provided (i) the business is owned by the owner of the property taken, or by a tenant whose leasehold interest grants the tenant exclusive possession of substantially all the property taken, or (ii) the farm operation is operated by the owner of the property taken, or by a tenant using for a farm operation the property taken, to the extent that the loss is determined and proven pursuant to subsection C of � 25.1-230.1. This definition of the term “lost profits” shall not create any new right or remedy or diminish any existing right or remedy other than to allow the body determining just compensation to consider lost profits in awarding just compensation if a person asserts a right to lost profits as an element of damage in a claim for compensation.

    I am not convinced that some businesses will get greater compensation than others for politically motivating purposes. Accounting documents can be manipulated to say whatever a business wants them to reflect. We only have to look at the housing industry to see how such maneuvers can be used.

    The statute also does not unequivocally state that it only applies to permanent takings as I mentioned in my prior post.

    And, let me add, I agree with Vivian that we do not need a constitutional amendment for these purposes. In fact, I believe it is most appropriate for the General Assembly to enact such legislation.

    1. I think you should key in on that phrase “the body determining just compensation.” Do you know what body that would be? Condemnation proceedings go through the courts. That means either a judge or a jury will decide the issue of lost profits and whether closing down a street for the day would be a taking. What you seem to neglect is the possibility that property owners will receive less compensation than they ought to because localities are capable of the same sort of manipulation.

      In fact, there are cases in which almost that exact thing has happened. The most obvious case is the Kelo case itself from the Supreme Court. The city took property from homeowners to give to a mega corporation which later decided that it didn’t want the property after all. Seven years after that travesty of a case the multiple properties (most of which were single family dwellings) are still sitting there unused by anyone.

      Then there are situations like this:

      “[T]he same U.S. Supreme Court which handed down Brown v. Board in 1954 also issued Berman v. Parker, in which the Court allowed the District of Columbia to forcibly expel some 5,000 low-income African-Americans from their homes in order to facilitate ‘urban renewal.’ It was Berman that enabled the massive urban renewal condemnations of later decades, which many critics dubbed ‘Negro removal’ because they too tended to target African-Americans.”

      In 2004, “the city of Alabaster, Ala., used “blight” as a pretext to take 400 acres of rural property, much of it owned by low-income black people, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than fifteen miles away. Several of the landowners, particularly those who lacked political clout and legal aid, ended up selling out at a discount.”


      And here in Virginia:

      “In 1975, Roanoke promised to condemn Walter Claytor’s block of thriving businesses as part of its clearance of the Gainsboro community. Over the next 24 years, Roanoke never followed through, but the threat alone was enough to ruin Claytor. Because the surroundings were leveled, his block became unattractive and the tenants in his apartments and office building moved out. Underwriters refused insurance on the vacated buildings, and they became a target, first of vandals, then an arsonist. Not until 2004 did a Roanoke Circuit Court address the injustice, ordering the city to pay Claytor several hundred thousand dollars in damages. The buildings, still empty, stand as a monument to eminent domain abuse.

      In 1999, the city of Hampton, in partnership with a developer, targeted a neighborhood for a shopping and entertainment district. One homeowner fought back. Frank Ottafaro complained that the city took his house for the developer when it was not needed, and his house was not touched in any way by the plans. When he challenged the condemnation, –>Hampton retaliated, lowered its appraisal, tried to take it for less than the original offer, and fought him vigorously through numerous and expensive court proceedings.<– In the end, it was for naught. He was so traumatized that he protested at every meeting of the city council for 12 years until his death this spring."


      If you're going to argue that the system will be abused, that's fine. But that argument really says nothing about all the abuses of the current system by the government.

  5. I’m voting against it. I am all in favor of codifying protections for property owners against the government’s use of eminent domain for the benefit of a third private entity, but I agree that the constitution is the wrong vehicle for it. Or rather, I would be fine if that was the full extent of the amendment, but also codifying compensation could make it prohibitively expensive to, say, ever build a new school in the Commonwealth of Virginia ever again in a manner almost impossible to adjust.

    I am also sure the amendment will pass, it’s just kind of a shame that we aren’t going to realize how onerous the side consequences are going to be until a decade or so down the line when are schools, roads, jails and other public facilities so over capacity that they’re no longer effective.

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