As you may know, several states, including Texas, Virginia and Mississippi, are in the midst of seeking to amend their Constitutions to curb eminent domain abuses. But typically, proposed state constitutional changes enacted in the wake of the Kelo case focus on limiting the right to take — often an idle effort because judges tend to interpret these laws in favor of the government, so that in practice anything turns out to be “public use.” But Virginia is different. Its proposed, currently pending constitutional amendment also adresses compensation and provides inter alia:
” Just compensation shall be no less than the value of the property taken or damaged, business goodwill, relocation expenses, loss of access and other economic loss proximately caused by the taking or damaging.”
Wow! A “just compensation” clause that is actually just, that provides for full compensation for demonstrable economic losses that eminent domain takings inflict on condemnees. What’ll they think of next?
We like that approach because we believe that making would-be condemnors confront the true cost of their projects up front is a good thing. As Justice Kourlis of the Colorado Supreme Court put it recently (alas, in a dissenting opinion) condemnors should have to assess the true cost of their projects realistically, before initiating them, and refrain from arguing in court after the project is on its way that the courts should ride to their rescue by limiting compensation. The added virtue of this approach is that presents the government with the true cost of public projects, and best of all, it is self-enforcing.
Of course, being an old, pessimistic curmudgeon, your faithful and obedient servant is conscious of the old saw that there’s many a slip between the cup and the lip, so that well intentioned reforms often don’t make it out of legislatures. So we will just have to wait and see what happens on that one. But hey, if you don’t try you can’t win. So we commend those Virginians for trying, and now that the Virginia Attorney General has endorsed this legislation there is real hope.