1870 Constitution of Virginia

black men were active participants in the 1867-68 constitutional convention chaired by Judge John C. Underwood
black men were active participants in the 1867-68 constitutional convention chaired by Judge John C. Underwood
Source: Virginia Memory, "Irrespective Of Race Or Color:" African Americans And The Making Of A New Virginia Constitution (from Leslie's Illustrated Weekly, February 15, 1868)

After the 1866 elections, Republicans gained sufficient control in the US Congress to implement a program of Congressional Reconstruction over the opposition of President Andrew Johnson. Virginia was reclassified as Military District Number One, essentially suspending the 1864 state constitution. Virginia would not be readmitted into the Union until it ratified the 14th Amendment.

In 1867, U.S. General John Schofield called for a constitutional convention. Former Confederate leaders were not allowed to participate, but General Schofield ensured that black men would be allowed to participate during the voting for delegates between October 18-21, 1867. The limits in the 1864 constitution that only "white" males could vote were ignored. Nonetheless, the Colored Monitor Union Club organized in Norfolk in 1865 and some managed to vote in the May 25, 1865 election for new members of the General Assembly.1

The election of the 1867 constitutional convention that met in Richmond was the first time that large numbers of black men were allowed to vote in Virginia, or the first time any were elected to public office. Radical Republicans won a majority of the contests, and 24 black men were elected to serve with 80 white men in the convention. A historian commented 150 years later:2

It's no wonder that backward-looking white people were appalled at how fast things were changing - their property was now writing them a constitution.

according to the 1864 constitution adopted by the Restored Government of Virginia, only white males were eligible to vote
according to the 1864 constitution adopted by the Restored Government of Virginia, only white males were eligible to vote
Source: Hathi Trust, Constitution of the State of Virginia, and the ordinances adopted by the Convention which assembled at Alexandria, on the 13th day of February, 1864

The convention was chaired by Judge John C. Underwood, and lasted from December 3, 1867 to April 17, 1868. The "Underwood Constitution" institutionalized the rights of black men over 21 to vote. Women of any color were still not granted the franchise, matching the decision of the US Congress when drafting the 15th Amendment to the US Constitution. The members of Congress ignored the requests of women suffragists when it expanded suffrage, and authorized only men to vote.

In Article III, Section 7 was eliminated. For the first time since Virginia declared it was an independent state in 1776, members of the clergy were eligible to be elected to the General Assembly.

Virginia was bankrupt after the Civil War. The new state constitution prohibited paying debts incurred to support the rebellionin 1861-65, but the state was still responsible for pre-war bonds sold to finance turnpikes, canals, and railroads. The General Assembly and the Board of Public Works had been overly optimistic in assuming many projects would be able to repay the state's 40-60% contribution to construction costs, and few of he transportation investments were cost-efective.

The proposed new constitution required creating a statewide system of free public schools, a major priority for those who had been enslaved and denied an education. It also changed the process by which voters announced their preference in public ("viva voce") and implemented use of a ballot instead.

The 1870 constitution prohibited the state from going into debt for new transportation initiatives. After the Civil War, Virginia sold its shares in all the railroads and other projects where buyers could be found, except for the Richmond, Fredericksburg and Potomac (RF&P) Railroad. The burden of repaying the pre-war debt became a constraint on funding the public schools and providing other services.

The political strife between Funders (who sought to repay all the debt on schedule) and Readjusters (who sought to postpone or abandon some debt repayment) roiled state politics until 1883. The prohibition on transportation-related debt was later revised three times. Bond sales were permitted in a 1920 revision, banned again in 1928 to establish a "pay as you go" approach to building the road network, and finally authorized again in 1971.

The convention debated altering the Bill of Rights to say that all mankind was, "irrespective of race or color, are by nature equally free." In addition to the white delegates who were unwilling to accept the concept, some of the leading black delegates also opposed the revision. They aspired to a colorblind constitution, and opposed including any mention of race or color.3

It also included Article XII, with a workable mechanism for amendding the state constitution for the first time in Virginia history. The process has been retained in all subsequent constitutions. First, a General Assembly must approve a proposed amendment. After a general election of members for the House of Delegates and the State Senate, if the next General Assembly approved the same language, then the proposed amendment would be submitted to the voters for a final decision. A constitutional convention was no longer required to change the constitution, and only one has been held since 1870.

The new constitution did include a requirement for asking the voters every 20 years, starting in 1888, if a new constitutional convention should be created. That convention would consider proposals to amend or replace the existing constitution.4

At the general election to be held in the year 1888, and in each twentieth year thereafter, and also at such time as the general assembly may by law provide, the question, "Shall there be a convention to revise the constitution and amend the same?" shall be decided by the electors qualified to vote for members of the general assembly

The voters in Virginia ratified their new constitution in 1869 by a vote of 210,585 in favor and only 9,136 opposed. That majority was possible because two controversial proposals were presented for separate votes.

The Underwood convention had debated whether former Confederate officials should be disfranchised permanently, and if they should be banned from holding public office. Most state and local officials who had been in office during 1861-1865 could have been excluded. Because society was stratified at the time, with limited opportunity for people who were not among the elites to hold official positions, few others had the organizational skills or experience to replace the former officials. During the military occupation, Federal officials ended up relying upon many former Confederates to fill local and state offices.

In the same election where the new state constitution was approved, Virginians rejected a proposal to disfranchise those who had served at any time in military or civilian office but had "engaged in insurrection". Voters also rejected a second proposed requirement for a test oath that would block former Confederate leaders from serving in office. The "ironclad oath" would have required swearing that they had never voluntarily borne arms against the United States and had never provided assistance to those who had done so.

Congress and President Grant authorized the separate votes on those two provisions in order to facilitate getting the new constitution approved, and did not require either provision to be included. The test oath lost by 83,458-124,715. The effort to limit former officials from voting was defeated by 84,410-124,360. The Underwood constitution was approved 210,585-9,136.

Congress approved the new state constitution, as required under the Reconstruction program, on January 26, 1870. That allowed Virginia to re-enter the Union and to send members to vote in the US House of Representatives and US Senate.5

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.

The 1870 constitution created a process for incremental amendments for the first time, and six amendments were approved before a completely new constitution was adopted in 1902.

The 1870 constitution also required the voters get a chance to call for a new constitutional convention every 20 years. In the 1888 vote, Virginians decided against holding another convention. The Democrats did not support a convention because they feared the Readjuster Party might be able to shape a revised constitution. Virginia Republicans did not support a convention in 1888 because they were marginalized after the 1883 election. Republicans saw little opportunity to elect enough delegates to a convention so it would reflect their concerns and improve upon the 1870 state constitution.

Voters again rejected the proposal to call for a new constitutional convention in 1897. Democratic leaders had not defined what specific changes they would propose, and were not advocating for a "yes" vote because they feared populists might manage to get some of their ideas adopted.

The US Supreme Court authorized legal voting discrimination with its 1898 decision in Williams v. Mississippi. The court affirmed laws written so the language was race-neutral, even if the impact was designed to be biased heavily against blacks. Virginia's Democratic leaders then determined their priority was for a new state constitution to marginalize black voters even more completely. Voters approved calling a new convention in 1900, in part because the election process was designed to ensure that result:6

To insure that the vote on the convention received the most favorable consideration, the General Assembly had provided that ballots be printed with only the words "For Constitutional Convention." All unmarked ballots were to be counted as a vote for the convention.

The voter who favored the convention was therefore supplied with a ready-made ballot which he had only to deposit in the ballot box while those who opposed the convention were required to receive a ballot, enter a voting booth. and mark through it and then emerge to deposit the ballot in the presence of Democratic election officials, their friends and associates.

Constitutions of Virginia

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

in Goochland County, the pattern of voting clearly reflected racial differences
in Goochland County, the pattern of voting clearly reflected racial differences
Source: Virginia Chronicle, Daily Dispatch (July 10, 1869)



1. Brent Tarter, "African Americans and Politics in Virginia (1865-1902)," Encyclopedia Virginia, Virginia Foundation for the Humanities, October 21, 2015, https://www.encyclopediavirginia.org/african_americans_and_politics_in_virginia_1865-1902; John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, p.12, https://books.google.com/books?id=fe9MAgAAQBAJ (last checked June 23, 2019)
2. Brent Tartar, The Grandeees of Government: the Origins and Persistence of Undemocratic Politics in Virginia, University of Virginia Press, 2013, p.225; "African American Legislators (1867-1899)." Dictionary of Virginia Biography and Encyclopedia Virginia, Encyclopedia Virginia, Virginia Foundation for the Humanities, July 18, 2018, https://www.encyclopediavirginia.org/African_American_Legislators_in_Virginia_1867-1899; "'A powerful story': How freed slaves helped shape Virginia after the Civil War," Washington Post, March 26, 2018, https://www.washingtonpost.com/news/retropolis/wp/2018/03/26/powerful-and-forgotten-how-freed-slaves-helped-shape-virginia-after-the-civil-war/ (last checked June 21, 2019)
3. John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, p.13, https://books.google.com/books?id=fe9MAgAAQBAJ (last checked June 23, 2019)
4. "Virginia Constitution, 1870," for Virginians: Government Matters, Virginia Department of Education, https://vagovernmentmatters.org/primary-sources/516.html (last checked November 7, 2022)
5. "The Virginia Constitution: A Documentary Analysis," William and Mary Law Review, Volume 10, Number 2 (Winter 1968), p.514 (Table I), https://scholarship.law.wm.edu/wmlr/vol10/iss2/20/; "Constitutional Convention," Remaking Virginia: Transformation Through Emancipation, Virginia Memory, http://www.virginiamemory.com/online-exhibitions/exhibits/show/remaking-virginia/voting/constitutional-convention; John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, pp.14-15, https://books.google.com/books?id=fe9MAgAAQBAJ (last checked June 21, 2019)
6. "The Virginia Constitution: A Documentary Analysis," William and Mary Law Review, Volume 10, Number 2 (Winter 1968), p.514 (Table I), https://scholarship.law.wm.edu/wmlr/vol10/iss2/20/; John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, p.15, https://books.google.com/books?id=fe9MAgAAQBAJ; Conley L. Edwards, "A political history of the poll tax in Virginia, 1900-1950," Masters thesis, University of Richmond, 1973, pp.17-18, p.26, https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1466&context=masters-theses (last checked April 7, 2021)

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