THE UNIVERSITY OF VIRGINIA VOL. 53, NO.4

THE CONSTITUTION OF VIRGINIA: 1776 AND 1976By ALBERT L. STURM

The author is University Research Professor

of Political Science at Virginia Polytechnic

Institute and State University.

This is the last in a series of six articles

commemorating the Bicentennial of the A mer-

ican Revolution.

Comparison of the first Constitu-tion of Virginia drafted in the year ofAmerican independence with its fifthsuccessor in effect two centurieslater reveals both similarities anddifferences. Like other state organiclaws, these Virginia documents re-flect the issues, pressures, andproblems of the times in which theywere written. Variation in length-1,500 as compared with 18,000words-provides a rough indexofthedifferences in complexity of the twoconstitutional systems. Both consti-tutions, however, rest upon the samebasic theoretical foundation. Thisarticle summ'arizes the salient fea-tures of Virginia's first and sixthconstitutions, with brief attention tomajor constitutional developments inthe interim. *

*For summaries of early co"nstitutional developments in

Virginia, see Allan Nevins, The American States During and

After the Revolution, 1775-1789; Fletcher M. Green, Consti-

tutional Development in the South Atlantic States, 1"'7"76-1860; and A. E. Dick Howard, Commentaries on the Constitu-

~f Virginia, 2 vols.; and by the same author, '''For the

Common Benefit': Constitutional History in Virginia as aCasebook for the Modern Constitution-Maker," 54 Virginia

Law Review (1968), 816-902. For recent developme~

The Constitution of Virginia, Report of the Commission on

Constitutional Revision, January 1, 1969; Howard, Commen-

taries; Albert L. Sturm, Thirty Years of State Co~~g, 1938-1968; by the same author, "The 1971 Revised

Virginia Constitution and Recent Constitution-Making," State

Government, XIV, No. 3 (Summer 1971), 34-50; and"t"he

section on "State Constitutions and Constitutional Revision,"

published biennially in The Book of the States.

THE CONSTITUTION OF 1776

When hostilities broke out in 1775,Virginia, like other colonies, soughtguidance from the Continental Con-gress for the formation of a newgovernment. After the collapse ofroyal authority in 1774, Virginia ineffect had been governed by a seriesof conventions. On May 15, 1776, theVirginia Convention elected in Aprilvoted unanimously to frame a consti-tution. Unlike similar bodies in sevenother colonies, this convention hadnot been chosen with a specificmandate to draft such a document.There is little doubt, however, that asubstantial majority of the peopleapproved its action.

The Virginia Convention, with tworepresentatives from each county,included such influential membersas James Madison and EdmundRandolph. Principal contestants inwriting the constitution were thearistocratic Tidewater landowners,represented by Edmund Pendleton,who chaired the convention; and thedemocratic, progressive, or Iliberal"group, led by Patrick Henry. A largecommittee chaired by ArchibaldCarey was designated to prepare adraft constitution. George Masonwas the main architect of the newdocument, writing not only theoriginal draft of the constitution butalso that of the Declaration of Rights.The entire process of drafting, de-bate, and final approval required onlyabout six weeks, May 15 to June 29,1776. Thus, Virginia's new constitu-tion antedated American independ-

ence; and, like the other revolution-ary constitutions, it became effectivewithout submission to the voters.

The Virginia Declaration of Rights,which served as the model for thefederal Bill of Rights and similardocuments in other state constitu-tions, was a restatement of the basicguarantees of fundamental libertiesfound in English charters such astheMagna Carta. In general, its well-known provisions, which have beenrepeated in all Virginia constitutions,may be classified in three majorcategories: (1) assertions of basicpolitical philosophy affirming theprinciples of democratic government;(2) substantive personal and propertyrights, such as freedom of the pressand religion; and (3) the rights ofpersons accused of crime, includingsuch familiar guarantees as trial byjury.

Less advanced but still democraticin tendency was the main body of the1776 Constitution. While followingthe main lines of colonial govern-mental institutions, the constitutionclearly reflected the difficulties thatled to the break with England. The1776 document retained propertyqualifications for voting, leavingcolonial suffrage provisions un-changed. Separation of powers wasexpressly asserted, but separationdid not mean equality of power; thelegislative branch was unquestion-ably dominant. This characteristic oflegislative supremacy was an ob-vious expression of the revolt againstexecutive authority from which thecolonists had experienced abuses

INSTITUTE OF GOVERNMENT / UNIVERSITY OF VIRGIl\TIA / CHARLOTTESVILLE / DECEMBER 1976

under the British Crown. Constitu-tional declaration of the separation ofpowers into three compartments,even though imperfectly achieved,was a significant departure from theBritish system.

The constitution provided for abicameral legislature, the GeneralAssembly, elected by the voters.Members of the House of Delegateswere elected annually, two from eachcounty and one from each city andborough; while the upper houseconsisted of twenty-four senators,each elected from a senatorial districtfor a four-year term. Both senatorsand delegates were required to befreeholders and residents of thedistricts from which elected. TheHouse of Delegates originated alllaws, which could be amended by theSenate with the consent of the lowerhouse, except for money bills, whichthe Senate had to accept or rejectwithout change.

The governor was elected annuallyby joint vote of the two houses andwas limited to three successive one-year terms. The governor was autho-rized to exercise the executive pow-ers of government "with the advice ofa Council of State," which substan-tially limited his discretionary author-ity in most matters. With few excep-tions, the governor had little power toact independently, and he had nolegislative veto. The Council of State,which consisted of eight members,was also elected by joint vote of thetwo houses from their own membersor the people at large. From itsmembers the Council elected annu-ally a president who acted as lieuten-ant governor in case of the death,inability, or absence of the governor.Other officers chosen by the GeneralAssembly included the treasurer, thesecretary, and the attorney general.

Unlike later constitutions, the1776 Constitution contained fewprovisions on the judiciary, specify-ing only the broad outlines andleaving the details to legislativedetermination. The document didexpressly provide for selection by theGeneral Assembly of judges of theSupreme Court of Appeals and of theGeneral Court, judges in Chancery,and judges of Admiralty. Justices ofthe peace were appointed by thegovernor with advice of the Council.Other salient features of the newconstitution included provision forimpeachment of executive and judi-

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cial officers; annual election by theGeneral Assembly of delegates to theContinental Congress; exclusion ofministers of the gospel from mem-bership in the Assembly and on theCouncil; prohibition against privatepurchase of land from the Indians;and confirmation of the boundaries ofVirginia with neighboring states.

CONSTITUTIONAL WEAKNESSES ANDPRESSURES FOR REFORM

Although the 1776 Constitutionrepresented substantial democraticprogress and lasted fifty-four years, itwas subject to increasing criticismfrom the time of its inception. Somepoliticial leaders, particularly Jeffer-son, considered the constitution tohave been established by usurpedauthority. Futhermore, the 1776Convention, while unanimously ap-proving the liberal principles ex-pressed in the Declaration of Rights,failed to apply them consistently inthe main body of the constitution.Although the Declaration assertedindividualequality, the ruling minori-ty rejected political equality.

One of the document's principalweaknesses was the concentrationof powers in the hands of thelegislative branch, which Jeffersoncharacterized as being "precisely thedefinition of despotic government."Another major defect was the in-equitable apportionment of repre-sentation, which gave the aristocrat-ic, propertied planter class of easternVirginia control of the Assembly andthe government. Narrow limitationson the suffrage and office holdingdispleased many citizens who hadfought and paid for support of thegovernment. Additional weaknessesidentified by Jefferson included thefact that there was too much ho-mogeneity in the composition of thetwo legislative houses, chosen by thesame electors, at the same time, andfrom the same eligible group. Also,not only could the General Assemblydetermine a quorum for conductingthe business of the Commonwealth,but also it could alter the constitutionat any time.

Efforts by Jefferson, Madison, andother critics to achieve constitutionalreform in these and other areas wereunsuccessful during the next fewdecades. However, continued pres-sures for reform and the growingstrength of the western countieseventually led to the calling of the

1829-30 Constitutional Convention.Notwithstanding the exceptionallyable membership of this body, itsproduct, Virginia's second constitu-tion, offered no lasting remedies forconstitutional ills. Consequently, theburgeoning western counties andgrowing urban centers continued topress their demands for reform.Although Jeffersonian and Jackson-ian democratic tendencies influ-enced the reform movement, populardemands focused primarily on cor-rection of particular abuses. Section-al conflict in ideals and int~rests,including the issue of slavery, werealso of major importance.

The Constitutional Convention of1850-51 met most of the demands ofthe democratic element that hadbeen rejected by the 1829-30 body.Virginia's third Constitution of 1851extended the suffrage, leaving whitemale citizenship, age, and residenceas the only voting requirements;reorganized the General Assembly,with more attention to population asa basis for representation and in-creased restrictions on legislativepowers, including biennial sessionslimited to ninety days; provided forpopular election of the governor andother officers; removed propertyqualifications for office holding;abolished the Council of State andcreated the office of lieutenantgovernor; reduced the life tenure ofjudges and provided for their removalby concurrent vote of both legislativehouses; and otherwise responded togrowing democratic pressures.

Constitutional changes during thenext two decades resulted mainlyfrom the controversy revolvingaround the slavery issue and thesubsequent problems of the Recon-struction era. The ConstitutionalConvention of 1867-68, called toaddress the issues of Reconstruction,produced a number of notable inno-vations in Virginia's fourth constitu-tion. Significant provisions includeduniversal male suffrage for thoseover twenty-one years of age (exceptfor ex-Confederates who would havebeen barred from voting if Congresshad approved provisions for theirdisfranchisement); use of townships;establishment of a tax-supportedstatewide system of public educa-tion; and, for the first time, a methodof amending the constitution.

Election frauds and abuses duringthe 1880s and 1890s, attributable

largely to efforts to maintain whitesupremacy, led to the ConstitutionalConvention of 1901-02. The result-ing constitution, Virginia's fifth,effectively achieved disfranchise-ment of Negroes through its restric-tive suffrage provisions. This docu-ment also created the StateCorporation Commission. The consti-tutions of 1776 and 1902 were theonly ones proclaimed in effect with-out submission to the voters.

TWENTIETH-CENTURYCONSTITUTIONAL DEVELOPMENTS

The maior forces and influencesthat shaped constitutional changeduring the 1880s and 1890s con-tinued into the twentieth century.Especially significant were popula-tion growth and urbanization; tech-nological developments; industriali-zation; extension of the suffrage; and,of primary importance, the changingconception of government's properrole in society. Protective, regulatory,and service functions of the Com-monwealth were reflected increas-ingly in the provisions of the 1902Constitution which, unlike the 1776Constitution's statements of funda-mental principles, contained muchmaterial basically statutory in nature.

In 1926 Governor Harry F. Byrdwith legislative authorization ap-pointed a Commission to SuggestAmendments to the Constitution-the first time a commission was usedto propose general constitutionalrevisions. The Commission in 1927submitted a report to the GeneralAssembly that proposed "material"changes in 50 of the 197 sections inthe 1902 Constitution. Those pro-posed changes that were approvedtwice by the Assembly (as required bythe constitution) were referred to theelectorate in the form of five amend-ments, all of which were approved atthe November 1928 election. Oneomnibus amendment included mostof the changes, many of which wereof a housekeeping nature; anotherrelated to incurring state debt; andthe three remaining, known as "shortballot" amendments, left to generallaw the method of selecting thesuperintendent of public instruction,the state treasurer, and the commis-sioner of agriculture and immigra-tion, all of whom had been elected bythe people.

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Two limited constitutional conven-tions were called in 1945 and 1956-the first such bodies in Virginia to belimited in power. The 1945 bodyordained in effect a new articledealing with absentee voting bymembers of the armed forces. The1956 Convention was called after theVirginia Supreme Court of Appeals,following the school desegregationdecisions of the U.S. Supreme Court,declared unconstitutional a legisla-tive effort to give tuition grants tochildren attending private schools.The Convention proclaimed anamendment authorizing public aid tochildren in private nonsectarianschools. In the sixty-nine years of itseffective operation, the 1902 Consti-tution was altered by ninety-fiveamendments.

During the two decades after mid-century, more than four-fifths of thestates, including Virginia, took offi-cial action to modernize their organiclaws so they might better fulfillcurrent and future needs. Thesedocuments had become bloated withminutiae, obsolete provisions, andexcessive restrictions on the func-tioning of government. The "reappor-tionment revolution" of the mid-1960s also provided an importantstimulant for state constitutionalmodernization.

THE CONSTITUTION OF 1971

Responding to a request by Gover-nor Mills E. Godwin, Jr., in January1968 the General Assembly autho-rized the creation of an eleven-member Commission on Constitu-tional Revision. Named chairman ofthe blue-ribbon body was formergovernor Albertis S. Harrison, Jr., ajustice of the Supreme Court ofAppeals. In January 1969 the Com-mission submitted to the GeneralAssembly its 542-page report, whichrecommended revisions affectingevery area of the constitutional sys-tem.

During an extraordinary sessionconvened in February 1969, theGeneral Assembly approved six pro-posed amendments, including mostof the Commission's recommendat-ions but with some significantchanges. Four of the six proposalswere approved for the second time in1970 and cleared for submission tothe voters. One amendment, embod-ying the "Iess controversial" parts of

the reform package, proposed ageneral revision; another dealt withlotteries, the other two with bondingprocedure and debt limitations. Fol-lowing a vigorous, bipartisan ratifica-tion campa ign, the voters at the 1970general election approved all fourproposals by a margin of approxi-mately two to one. The Assemblyconvened in January 1971 to enactlegislation necessary to implementthe new Constitution, Virginia'ssixth, which became effective July 1,1971.

The Commission's guiding princi-ple in formulating its recommenda-tions for the new constitution, wh.chthe General Assembly accepted withfew substantive changes, was tomaintain a balance between traditionand change while incorporatingappropriate revisions to render theinstrument "more responsive tocontemporary pressures and proba-ble future needs." The Commissionassumed that the people of Virginiadesired no fundamental changes inthe basic governmental structure;that nonfundamental matters shouldbe left to statute; that the documentshould be readable, coherent, con-sistent, and logically organized; thatthe constitution might appropriatelyinclude language expressing trad-i-tiona I values and _aspirations; andthat no attempt should be made toconstruct an "ideal" new constitu-tion. Application of these guidelinesresulted in deletion of obsoletesections and elimination of muchstatutory detail. Deletion, consolida-tion, and reorganization reduced thenumber of articles from seventeen totwelve, and the number of wordsfrom approximately 35,000 to18,000.

Article I, the Bill of Rights, retainslargely in the original language thetraditional guarantees of the 1776Declaration. Significant additionsinclude statements of the duties ofcitizenship, express recognition ofthe importance of an effective systemof public education to free govern-ment, and a new antidiscriminationprovision. A few basic guaranteeswere transferred from other sectionsto the Bill of Rights. Article II,Franchise and Officers, specifies therequirements for voting and man-dates a uniform system for perman-ent registration of voters. Decennialreapportionment of legislative andcongressional seats according to

population, beginning in 1971, is alsorequired.

The 1971 Constitution retains thestatement of division of powersamong the three branches (ArticleIII). The Legislative Article (IV) pro-vides for a bicameral General Assem-bly with annual sessions limited tosixty days in even-numbered andthirty days in odd-numbered years;makes few significant changes inprocedure; and some changes inpowers, including removal of theformer prohibition against lotteries.Most significant modernizing fea-tures of the Executive Article (V) arespecification of the line of successionto the governorship and provision forhand\\ng the problem of gubernator-ial disability. Elected for four yearsare the governor, the lieutenantgovernor, and the attorney general;the governor has extensive appoint-ment and removal power, but isprohibited from serving successiveterms. A simplifed Judiciary Article(VI) provides for a flexible unifiedsystem of courts headed by theSupreme Court, which is vested withextensive rule-making power.Judges are selected by the GeneralAssembly, which also determinesoriginal and appellate jurisdiction,subject to specified limitations. AJudicial Inquiry and Review Commis-sion provides an alternate means fordiscipline and removal.

Article VII, on Local Government,combines previous articles on coun-ties, cities, and towns; recognizes theconcept of regional government, with

THE UNIVERSITY OF VIRGINIA

EWSLETTER

Editor / Clifton McCleskeyAssistant Ed itor / Sandra Wilk inson

Published each month from Septemberthrough August by th~ l.n~titute of Govc:rn-ment University of Vnglnla, Charlottesville,Virginia 22903. The views and opinions ex-pressed herein are those of the authC?r, andare not to be interpreted as representing th~official position of the Institute or the Unl-

ver~i~f~red as second-class matter January 2,1925, at the post office at Charlottesville,Virginia, under the act of August 24, 1912.

© 1976 by The Rector and Visitors ofthe University of Virginia.

Printed by the University Printing Office.

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legislative determination of organiza-tion and powers, subject to referen-dum in affected areas; and mandatesdecennial reapportionment of repre-sentative districts according to popu-lation. The principal modernizingfeature in the area of Taxation andFinance (Article X) is stated inprovisions liberalizing debt limita-tions on issuance of general obliga-tion bonds and authorizing the Gen-eral Assembly to pledge the full faithand credit of the Commonwealth forspecified revenue bonds under statedconditions.

Articles in the 1971 Constitutiondealing with state functions makesignificant advances. Article VIII,Education, greatly strengthens theCommonwealth's commitment topublic education in mandating theGeneral Assembly to provide a state-wide system of free public schools for"all children of school age" and toestablish "an educational program ofhigh quality." Article IX, Corpora-tions, specifies in streamlined formthe organization, powers, and basicprocedure of the State CorporationCommission and formally asserts theCommonwealth's power to regulateforeign and domestic corporations. Anew article on Conservation (XI) givesconstitutional status tothe Common-wealth's policy to conserve anddevelop natural resources.

The final article (XII), on FutureChanges, provides two methods ofinitiating constitutional alterations:legislative proposal, which requiresmajority approval during each of twosessions; and proposal by constitu-

tiona I convention. All proposed con-stitutional changes must be submit-ted to the electorate. Sole power isvested in the General Assembly toinitiate the process of constitutionalchange, and also to control the scopeand manner of submitting conven-tion proposals. Through November1976, the voters had approved eightamendments to the Constitution.

Although the 1971 Constitutionintroduced some new features intoVirginia government, its contents arebasically conservative. Comparedwith a general composite of stateconstitutional modernization, theVirginia document retains a numberof regressive, outmoded featuressuch a e . a ga· ilanguage, the ban against two con-secutive terms for the governor, andtotal legislative control over theinitiation of constitutional change.Certainly, many substantive provi-sions of the 1971 Constitution are asubstantial improvement over thoseof its immediate predecessors, andthe scope of its coverage provides agreat contrast indeed with the limitedprovisions of the 1776 Constitution.Yet, compared with the innovativeimagination and statesmanship oftheir eighteenth-century predeces-sors, modern constitution makerscan claim little if any superiority. Thecomplexity of modern life and institu-tions poses to those who exercise thepower to make and change constitu-tions a continuing challenge inmaintaining an effective constitu-tional foundation for the governmentof the Commonwealth.

Entered as second-class matterCharlottesville, Virginia