Constitutions of Virginia

the colonial House of Burgesses stopped meeting in May 1776, and the Virginia Revolutionary Convention declared independence and adopted the first state constitution a month later
the colonial House of Burgesses stopped meeting in May 1776, and the Virginia Revolutionary Convention declared independence and adopted the first state constitution a month later
Source: Library of Virginia, Final Meeting of the House of Burgesses (“Finis” Document), May 6, 1776

Virginia's first state constitution was written in 1776. It established the basis for government so Virginia would not be in a "state of nature," after declaring independence from Great Britain. Virginia's Fifth Revolutionary Convention, elected and meeting separately from the colonial House of Burgesses, was the first in North America to define the shape of an independent state government that owed no allegiance to King George III.

On May 15, the delegates to that convention appointed a committee to draft a new form of government for the colony. The same day, they directed Richard Henry Lee to introduce a resolution in the Continental Congress in Philadelphia, calling for all the colonies to declare they were declaring independence from Parliament and the King of England.

Thomas Jefferson considered framing the new form of government for Virginia to be more important than serving in the Continental Congress. He prepared three drafts of a constitution for Virginia, and even proposed the Virginia delegates to the Continental Congress in Philadelphia return to Williamsburg to participate in the debate and decision process. According to Jefferson, creating a good alternative to the royal form of government was:1

the whole object of the present controversy; for should a bad government be instituted for us in future it had been as well to have accepted at first the bad one offered to us from beyond the water without the risk and expence of contest

The other major contributor to the first Constitution of Virginia was George Mason IV, who is credited with drafting the Virginia Declaration of Rights. Two key policy changes were made to Mason's draft by the convention before the Virginia Declaration of Rights was approved on June 12, 1776 and incorporated into the final draft of the 1776 state constitution on June 29, 1776.

Mason had proposed that "all men are born equally free and independant, and have certain inherent natural Rights." Members of the convention had no intention of declaring that slaves were born equally free and "independant," or creating a new form of government in which slaves would have an equal voice.

The convention adopted Edmund Pendleton's proposal that only men who were in "a state of society" (i.e., had grown past childhood into adult capacity, with the power to reason and authority to make contracts) were intended to have equal rights.2

The final language included at the beginning of the 1776 state constitution excluded slaves, women, and Native Americans from direct participation in the political process:3

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. (emphasis added)

The second substantive revision in the Virginia Declaration of Rights expanded freedom of religion. Mason had proposed that "all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience."

James Madison expanded the fundamental right to read "all men are equally entitled to the free exercise of religion, according to the dictates of conscience."

The change from toleration to entitlement reduced the potential of the new Virginia government, in the future, to withdraw its permission for religious practices based on beliefs not held by the majority. Madison had experienced discrimination against Baptists in particular, and his edits added greater protection for Baptists, Presbyterians, Dunkards, and others who held minority religious views. Mason accepted the changes and the two men became friends.4

George Mason proposed only toleration of religious minorities in his draft of a Declaration of Rights
George Mason proposed only toleration of religious minorities in his draft of a Declaration of Rights
Source: Library of Virginia, The Virginia Declaration of Rights, June 12, 1776

Prior to 1776, there was no written constitution establishing any limits on the power of colonial government. There was no independent judiciary to counter the decisions of the governor, the Governor's Council, the House of Delegates, the county courts, or the vestry of the Anglican parishes.

Ever since Virginia became a royal colony in 1624, instructions had been sent to the governor from London to guide his decisions. Colonial governors did not share those instructions freely with the delegates elected to the House of Burgesses, and the power of the General Assembly was not limited by a written contract that the colonists had ratified.

Limits on the power of the governor in the colony of Virginia were cultural. They were established by the gentry who had negotiated constraints on royal authority since Virginia became a royal colony in 1624. There was no legal document spelling out limits of power.

Bacon's Rebellion in 1676 was triggered in part by excessive taxes and exorbitant fees imposed by Governor Berkeley and the General Assembly. The governor had support from key colonial leaders who had been appointed to various positions, sometimes to multiple offices simultaneously.

The General Assembly passed laws governing trade that benefited the members of the Governor's Council and the House of Burgesses, at the expense of the other colonists. Those colonists lacked the ability to change government policy through elections between 1661-1676, because Governor Berkeley declined to call elections for a new House of Burgesses. He retained what became known as the Long Assembly.

The Fifth Revolutionary Convention meeting in 1776 knew that it wanted a weaker chief executive and a stronger legislature, but there was no model to imitate. Writing that first constitution to create a brand new government structure required creative thinking. Virginia wrote the first state constitution, and other colonies got to react to what Virginia did.

The new political mechanisms in the 1776 constitution included a State Senate, with 24 districts for electing members to that new body. The Governor's Council (previously appointed by the colonial governor or by London officials) was replaced by a Privy Council, or Council of State. It members were elected by the State Senate and House of Delegates. They were not appointed by the governor, because the convention intended to create a new form of government that would limite executive power.5

the first state constitution created the State Senate and defined the legislature as the General Assembly
the first state constitution created the State Senate and defined the legislature as the General Assembly
Source: Library of Virginia, First Virginia Constitution, June 29, 1776

The franchise - those authorized to vote in elections for government officials - was left unchanged in 1776 from the requirements in the colonial era. Only "freeholders" who owned a certain amount of property could participate in elections. The property requirement was ownership of:6

fifty acres of land, if no settlement be made upon it, or twenty-five acres with a plantation and house thereon at least twelve feet square... and every person possessed of a lot in any city or town, established by act of Assembly, with a house thereon at least twelve feet square

No amendments were made to that first constitution. Virginia's 1776 state constitution included no amendment process, an ommission that was corrected for the US Constitution when it was drafted in 1787.

As the population grew west of the Blue Ridge but political representation stayed unchanged for the State Senate, western counties exerted pressure for revising the 1776 constitution. As it became clear that the 1830 census would reveal the continuing population shift to the west, eastern leaders finally agreed to a constitutional convention in 1829.

Since there was no authority to amend the 1776 document, the 1829 convention wrote a new constitution. The second Virginia constitution was adopted in 1830. It too provided for no amendment process, and that limited the potential for westerners to alter the unbalanced representation which gave Tidewater counties excessive political power.

Another convention held in 1849 wrote Virginia's third constitution. The 1850 constitution included a requirement for the General Assembly to reapportion how its members would be elected, temporarily resolving the heated controversy regarding how voters in eastern Virginia had a greater share of elected representatives compared to voters in western Virginia. If the General Assembly could not reach a reapportionment deal in 1865 and every ten years afterwards, the 1850 constitution required to governor to organize an election so voters could resolve the apportionment issue directly.

The 1850 constitution was ratified by the voters on October 24, 1850. It went into effect the following year, so at times it is described as the 1851 constitution.

The 1850 constitution protected slaveowners in Tidewater and the Piedmont from the threat of confiscatory taxation. All property had to be taxed at the same rate. If the General Assembly increased the tax rate to raise more revenue from slave property, then the tax rate would increase just as much on land owned by farmers without slaves. The constitution also defined a $300 cap on the value of adult slaves and prohibiting any tax on slaves less than 12 years old:7

Sec. 22. Taxation shall be equal and uniform throughout the commonwealth, and all property other than slaves shall be taxed in proportion to its value, which shall be ascertained in such manner as may be prescribed by law.
Sec. 23. Every slave who has attained the age of twelve years shall be assessed with a tax equal to and not exceeding that assessed on land of the value of three hundred dollars. Slaves under that age shall not be subject to taxation...

Those provisions ended up subsidizing slaveowners, as the value of their "property" grew far beyond those caps throughout the 1850's.

There was no process for revising the 1850 constitution other than the vote scheduled in 1865, but in 1861 a special convention approved the ordinance of secession withdrawing Virginia from the United States. To attract votes for secession from western delegates, that same convention proposed a constitutional amendment to revise Section 23 in the 1850 constitution, which limited the tax on slaves to a maximum of $300. Voters approved the amendment and agreed to tax slaves at market value (ad valorem) on May 23, 1861 at the same time they approved secession.

Western landowners had complained that their property was subject to ad valorem taxes, with no maximum tax as land value increased. Failure to tax slave "property" the same way provided an unfair benefit to the slaveowners who were concentrated east of the Blue Ridge. Amending the 1851 state constitution to change the way slaves were taxed was proposed in order to appease western voters, most of whom did not rely upon slave labor, and to increase western support for secession.

The 1861 special convention that approved secession chose to stay in existence and write a completely new state constitution later that year. At a minimum, joining the Confederacy required purging references in the state constitution to the United States. The secession convention reconvened in December 1861, and drafted a new state constitution that incorporated the already-approved amendment on taxing slaves the same as taxing land:8

Taxation shall be equal and uniform throughout the Commonwealth, and all property shall be taxed in proportion to its value

The 1851 constitution had eliminated the requirement of voters to own a certain amount of property. All white males over 21 years of age were eligible to participate in the ratification vote for the new constitution on March 13, 1862, and on a separate proposal to limit future voting in Virginia to taxpayers.

The vote coincided with the Peninsula Campaign of the Union Army under General George McClellan. In that crisis, Governor Letcher directed the militia in all counties/cities to "without waiting for further orders [m]ove at once to the places designated." The few Virginians who managed to vote rejected the proposed new constitution and also rejected the limitation of the franchise. Throughout the Civil War, the Virginia constitution included references to the United States and no references to the Confederacy.9

The Restored Government of Virginia, which stayed allied with the Union, also tried to revise the state constitution. The General Assembly meeting in Alexandria organized a vote on January 21, 1864 to elect delegates to a constitutional convention.

The convention met in Alexandria (under control of the Restored Government of Virginia) between February 13-April 11, 1864 and wrote a new Virginia constitution. It realigned voting districts to reflect the loss of counties to West Virginia (but retained Virginia's claim to Berkeley and Jefferson counties), replaced "viva voce" voting with the written ballot, and granted the right to vote to white men who had lived in Virginia for only one year.

The Emancipation Proclamation did not ban slavery in that portion of Virginia under Federal control, so the 1864 constitution also abolished slavery within Virginia. Article IV, Section 19 said:10

Slavery and involuntary servitude (except for crime) is hereby abolished and prohibited in the state forever.

The convention did not submit the new constitution to a popular vote for ratification. Most of Virginia did not accept the authority of the Restored government, and those areas under the control of the Union military (such as Hampton Roads) were governed by officers who did not cooperate well with the civilian government under Gov. Francis Pierpont.

The 1864 Alexandria convention, like the 1776 convention, simply declared the new constitution to be in effect. Union victory at the end of the Civil War meant that 1864 constitution applied to all of Virginia - minus Berkeley and Jefferson counties, which the US supreme Court determined in 1866 were part of West Virginia.11

voters trying to elect representatives to conventions or ratify new Virginia constitutions during the Civil War faced unique challenges...
voters trying to elect representatives to conventions or ratify new Virginia constitutions during the Civil War faced unique challenges...
Source: Harper's Weekly, How Virginia Was Voted Out Of The Union

In 1867 during Reconstruction, the US Congress declared Virginia was no longer a state but instead Military District Number One. To re-enter the Union, Virginia was forced to revise its constitution again.

After Virginia was reclassified as Military District Number One, Union Army officials determined that a new constitution would be adopted - and blacks would be allowed to participate in the process. Existing limits in 1851 constitution on who could vote were ignored; the election of the 1867 constitutional convention that met in Richmond was the first time black men were allowed to vote in Virginia. Over 20 black men served in the convention chaired by Judge John C. Underwood.12

The "Underwood Constitution" institutionalized the rights of black men over 21 to vote. (Women of any color were still not granted the franchise.) The voters in Virginia ratified their new constitution in 1869. In the same election, Virginians rejected the proposal that former Confederates should be banned from voting or serving in office. Congress still allowed Virginia to renter the Union and to send members to vote again in the US House of Representatives and US Senate, starting in 1870.

In 1877, Federal troops were withdrawn from southern states as part of the compromises that resolved the disputed presidential election between Rutherford B. Hayes and Samuel J. Tilden. Without pressure from the Federal government, Virginia increasingly restricted the voting rights of black men and institutionalized segregation via "Jim Crow" laws.

Another constitutional convention met in 1901, after the Supreme Court had legalized separate-but-equal treatment of blacks in the 1896 Plessy v. Ferguson decision. The new state constitution adopted by voters in 1902 created stricter voting requirements, substantially reducing the number of potential voters.

Local and state officials then blocked many blacks (and poor whites) from registering to vote, but the political machine of Governor/Senator Harry Byrd ensure the poll tax of supporters was paid so they could vote. By the 1940's, Virginia's political process was considered to be so unrepresentative that the state was described as a "museum of democracy."13

a primary objective of the 1902 state constitution was to limit the ability of black men to vote
a primary objective of the 1902 state constitution was to limit the ability of black men to vote
Source: Broadside 1901.N68, Special Collections Department, University of Virginia, 1901 Flyer--"No White Man to Lose His Vote"

Since the 1869 constitution created a process for incremental amendments, voters have modified different state constitutions in large and small ways. A new constitution was adopted in 1902, and the last wholesale replacement of the state constitution was approved by the voters in 1971. "Massive resistance" had failed, the General Assembly had abandoned the "pay as you go" fiscal constraints, and replacement was more appropriate than amendments in 1971.

Nearly every General Assembly considers new proposals for additional revisions, but few make it through the process. Constitutional amendments must be approved twice by the General Assembly (an election for the House of Delegates must occur between those two votes), and then voters must approve the change in a statewide referendum.

The Virginia Supreme Court determines if a law passed by the General Assembly is constitutional, and seeks to minimize the number of times the court blocks a law. The State Corporation Commission noted in a case:14

The Supreme Court of Virginia has ruled repeatedly that the single most compelling presumption in Virginia law is the presumption in favor of the constitutionality of statutes enacted by the General Assembly.

The Court has described the Commonwealth's presumption in favor of constitutionality as so strong that it requires a challenger to show that the alleged unconstitutionality is "'so plain as to leave no doubt on the subject. To doubt is to affirm [the statute's] constitutionality.There is no such thing as a doubtful constitutional statute. Every presumption is in its favor, and there is no stronger presumption known to the law.'"

Furthermore, the unconstitutionality of a statute must be "clear and palpable," and, thus, the "Court must resolve any reasonable doubt regarding a statute's constitutionality in favor of its validity." As the Supreme Court has repeatedly made clear, any reasonable doubts - any close calls, in the vernacular - must be resolved in favor of a statute's constitutionality.

What Is the Significance of Virginia Being a "Commonwealth"?

Richard Henry Lee proposed to the Second Continental Congress on June 7, 1776 that these colonies are, and of right ought to be, free and independent states (Thomas Jefferson is wearing red vest)
Richard Henry Lee proposed to the Second Continental Congress on June 7, 1776 that "these colonies are, and of right ought to be, free and independent states" (Thomas Jefferson is wearing red vest)
Source: Architect of the Capitol, Declaration of Independence (painted by John Trumbull)

Links

Philip Barbour chaired the 1830 convention that revised Virginia's constitution for the first time
Philip Barbour chaired the 1830 convention that revised Virginia's constitution for the first time
Source: U.S. House of Representatives, Philip Pendleton Barbour

References

1. "Editorial Note: The Virginia Constitution," in Jefferson Papers, Founders Online, National Archives and Records Administration, http://founders.archives.gov/documents/Jefferson/01-01-02-0161-0001 (last checked November 24, 2017)
2. "The Virginia Declaration of Rights, June 12, 1776," Virginia Memory, Library of Virginia, http://www.virginiamemory.com/online_classroom/shaping_the_constitution/doc/declaration_rights; Jeff Broadwater, "George Mason (1725–1792)," Encyclopedia Virginia, March 6 2014, http://www.encyclopediavirginia.org/Mason_George_1725-1792; Kevin Gutzman, Virginia's American Revolution: From Dominion to Republic, 1776-1840, Lexington Books, 2007, p.28, https://books.google.com/books?id=w9xvrrB6LckC (last checked February 24, 2015)
3. Constitution of Virginia, June 29, 1776, posted online by National Humanities Institute, http://www.nhinet.org/ccs/docs/va-1776.htm; John Kukla, "'When they enter into a state of society' - applied to women, too," VA-HIST listserver, April 30, 2008, http://listlva.lib.va.us/scripts/wa.exe?A2=VA-HIST%3b832a6856%2e0804&X=0D758622252660122F (last checked December 4, 2015)
4. "The Virginia Declaration of Rights," (Mason's initial draft), Gunston Hall, http://www.gunstonhall.org/georgemason/human_rights/vdr_first_draft.html; Constitution of Virginia, June 29, 1776, posted online by National Humanities Institute, http://www.nhinet.org/ccs/docs/va-1776.htm; Robert A. Rutland, James Madison: The Founding Father, MacMillan, 1987, p.11, https://books.google.com/books?id=iHpfjCoA1_wC (last checked December 4, 2015)
5. Brent Tartar, The Grandeees of Government: the Origins and Persistence of Undemocratic Politics in Virginia, University of Virginia Press, 2013, p.76 (last checked December 4, 2015)
6. Julius F. Prufer, "The Franchise in Virginia from Jefferson through the Convention of 1829," The William and Mary Quarterly, Volume 7, Number 4 (October, 1927), p.255, http://www.jstor.org/stable/1921255 (last checked December 4, 2015)
7. Virginia General Assembly, "Virginia Constitution, 1851," in Virginia Civics, Item #519, http://vagovernmentmatters.org/primary-sources/519 (last checked December 27, 2017)
8. Section 22, Constitution of 1861, http://confinder.richmond.edu/admin/docs/va1861.pdf (last checked February 24, 2015)
9. Brent Tartar, The Grandeees of Government: the Origins and Persistence of Undemocratic Politics in Virginia, University of Virginia Press, 2013, pp.223-225; Gov. John Letcher, "By the Governor of Virginia. a Proclamation," Richmond Times Dispatch, March 13, 1862, http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A2006.05.0422%3Aarticle%3Dpos%3D45 (last checked February 24, 2015)
10. Article IV, Section 19, "Constitution of the State of Virginia, and the ordinances adopted by the Convention which assembled at Alexandria, on the 13th day of February, 1864," https://archive.org/details/ConstitutionOfTheStateOfVirginiaAndTheOrdinancesAdoptedByThe; "Virginia Constitutional Convention Resolved to Abolish Slavery, March 10, 1864," Virginia Memory, Library of Virginia, http://edu.lva.virginia.gov/online_classroom/shaping_the_constitution/doc/convention (last checked December 4, 2015)
11. Sara B. Bearss, "Virginia Constitutional Convention (1864)," Encyclopedia Virginia, December 11, 2013, http://www.encyclopediavirginia.org/Virginia_Convention_of_1864 (last checked February 24, 2015)
12. Brent Tartar, The Grandeees of Government: the Origins and Persistence of Undemocratic Politics in Virginia, University of Virginia Press, 2013, p.225
13. Key, V. O., Southern Politics in State and Nation, Knopf, New York, 1949
14. "Petition of the Old Dominion Committee For Fair Utility Rates v. Appalachian Power Company," Virginia State Corporation Commission, Case No. PUE-2016-00010, July 1, 2016, pp.4-5, http://www.scc.virginia.gov/docketsearch/DOCS/39_r01!.PDF (last checked January 17, 2017)


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