Virginia and the US Constitution

the drafters of the US Constitution within Independence Hall in Philadelphia in 1787 could take advantage of the 13 state constitutions, starting with Virginia's written in 1776
the drafters of the US Constitution within Independence Hall in Philadelphia in 1787 could take advantage of the 13 state constitutions, starting with Virginia's written in 1776
Source: National Park Service, Independence Hall

Some of the Virginians who prepared the first state constitution in 1776 during the Fifth Revolutionary Convention in Williamsburg were key participants in another convention a decade later. It met 11 years later in Philadelphia to prepare a constitution that would define a new relationship between the states.

The national government was not operating successfully under the Articles of Confederation. Those had been adopted by the Continental Congress in 1777 and finally ratified by the last state (Maryland) on March 1, 1781. Five years later, it was clear that Congress was unable to make the decisions necessary to keep the United States "united enough" to defend itself against European rivals, or to facilitate trade and economic development within the country.

Virginia and Maryland had negotiated a compact in 1785 for free trade across the Potomac River, after George Washington hosted the Mount Vernon Convention. Trade between the other states was constrained by various fees, tariffs, and other barriers. Economic recession in 1785 was followed by Shays' Rebellion in 1786 in Massachusetts, as western farmers resisted state-imposed taxes.

The negotiations at Mount Vernon led to the Annapolis Convention in September, 1786, to which New York, New Jersey, Pennsylvania, Delaware, and Virginia sent representatives. They focused on the commercial disputes between the states, and how to restructure interstate relations. In the end, they called for another convention of all the states, to start in Philadelphia.1

Representatives from 12 of the not-so-united 13 states met in Philadelphia in 1787 to define a new relationship among the states. What is known today as the Constitutional Convention was held to form a "more perfect union." What the delegates prepared was ratified by 11 states in 1788, and then by North Carolina and Rhode Island over the following two years.

The Articles of Declaration, crafted in the early stages of the American Revolution, have largely been forgotten. The Federal Constitution has achieved mythic status now. A shrine has been created at the National Archives for visitors to see the document in an altar-like setting.

That reverence would surprise the men who negotiated it in 1787, or argued for its adoption by the 13 colonies in 1788-90. The US Constitution is a powerfully influential document today, but in 1787 it was just a negotiated agreement between people seeking to re-arrange a failed "first marriage" managed under the Articles of Confederation. The five states who attended the Annapolis Convention in 1786 recognized that they could not overcome interstate trade barriers constraining economic development within the United States. The convention's main result was a call for commissioners from all the states to:2

meet at Philadelphia . . . to take into consideration the situation of the United States, to devise such further provisions . . . to render the constitution of the Federal Government adequate to the exigencies of the Union

The Virginia General Assembly was the first to appoint commissioners to the proposed meeting. Six other states followed that example before the Continental Congress proposed a convention to revise the Articles of Confederation.3

Delegates to the Constitutional Convention in Philadelphia had the advantage of reading 13 previous efforts to define how people were willing to govern themselves through democratic institutions, starting with the first constitution written in Virginia. One "lesson learned" from Virginia's first constitution 11 years earlier was to include a process for amendments, rather than require a new convention to write a new constitution after changing circumstances required revisions.

Crafting the new "marriage agreement" between the colonies required substantial compromises. As the state with the largest population, Virginia's delegates proposed a new government structure, the "Virginia Plan," where representation in two legislative branches would be based on the number of free inhabitants. New Jersey countered with a proposal that each state get a vote in a one-chamber (unicameral) legislature. The Connecticut Compromise created the US Congress in which representation in the House of Representatives is based on population, while each state gets two votes in the Senate.

marginal notes made by George Washington, during debates on a draft of the US Constitution, suggesting a different way of replacing a president
marginal notes made by George Washington during debates on a draft of the US Constitution, suggesting a different way of replacing a president
Source: Library of Congress, George Washington Papers, Series 4, General Correspondence: Constitution, Printed, with Marginal Notes by George Washington, September 12, 1787

George Washington had presided over the discussions while sitting in a chair with a sun symbol on it. Benjamin Franklin commented at the end of the debate:4

I have . . . often in the course of the session . . . looked at that [sun] behind the president without being able to tell whether it was rising or setting: but now at length I have the happiness to know it is a rising sun and not a setting sun.

a replica of the rising sun on George Washington's chair at the 1787 Constitutional Convention
a replica of the "rising" sun on George Washington's chair at the 1787 Constitutional Convention

The document proposed by the convention in Philadelphia granted too much authority to the Federal government, at least as some interpreted it. Debates during the 1788 ratification process in Virginia centered on whether a second constitutional convention would be required to revise the 1787 version. In Virginia, Patrick Henry led the opposition that sought to block ratification of the proposed constitution. He proposed that new amendments be developed and incorporated first, before ratification by Virginia's voters.

Opponents of the proposed Federal government, including George Mason, feared the new central government would assume powers that infringed on individual liberty and state's rights. Reflecting his concern that a new national government would expand beyond the limited authorities granted by the constitution drafted in Philadelphia, Patrick Henry said "I smelt a rat."

The Virginia ratification convention met June 2-27, 1788. Delegates assembled on Broad Street in the Richmond Theatre, which was serving as the state capitol at the time. Nine states had ratified. Leaders in New York, North Carolina and Rhode Island were waiting to see if Virginia would endorse the new form of government, or if the product from the Philadelphia convention would be rejected. In that case, the Articles of Confederation would remain the basis for a national government.

Since it was clear the decision process based on the Articles of Confederation had failed, the likely result of a rejection by Virginia was the breakup of the new nation and the formation of separate, regional governments.

The 61-year old George Wythe and 37-year old James Madison prevailed in the Virginia ratification convention. Wythe serves as chair of the Committee of the Whole, which debated the proposal. They agreed the proposed document was not perfect, and Madison had to commit that amendments would be adopted once the First Congress met.

At the start of the Virginia Ratifying Convention debate, delegates were evenly split with 84 in favor and 84 opposed The final decision to approve the US Constitution was by a 89-79 vote. It occurred on June 25, 1788, and a day later the delegates approved amendments they wanted to see added by the first Federal Congress. New York then ratified with a margin of only three votes and Rhode Island by only two.

Madison was true to his word. He managed to overcome Patrick Henry's opposition and got elected to the House of Representatives in the First Congress. There he led the effort to get amendments approved by the Congress and sent to the states for ratification.5

Between June-August 1789, Madison maneuvered 17 amendments through the House of Representatives. Each got the required 2/3 vote for approval. He assumed the wording of the Constitution would be revised, but ultimately all amendments were appended to the original wording.

The decision to add amendments at the end of the original document was one reason his proposed 16th Amendment was rejected by the US Senate. The 16th Amendment would have specified more clearly that the legislative, executive, and judiciary were separate branches of government. The Senate felt it was redundant language. It also addressed the structure of government rather than enumerated rights of the people, and possibly US Senators were reluctant to endorse language that might lead to new restrictions on the powers of the Senate.

The first ten were ratified in 1791 by at least 75% of the states; they are known today as the Bill of Rights. One of the others was finally ratified as the 27th Amendment in 1992.6

Madison ended up the House of Representatives because Patrick Henry kept him from being selected as a US Senator. Henry was an opponent of the stronger Federal government, and arranged for Richard Henry Lee and William Grayson to be chosen instead.7

Virginia was the 10th state, not the first state, to ratify the US Constitution. When the United States Mint issued commemorative quarters in 1999-2008, it followed the order in which the states joined the Union. Virginia's quarter was the tenth in the sequence, because the state was the tenth to ratify the Constitution.8

the Virginia state quarter was issued in 2000, tenth in the sequence to match how the states ratified the US Constitution
the Virginia state quarter was issued in 2000, tenth in the sequence to match how the states ratified the US Constitution
Source: United States Mint, Virginia State Quarter

The US Constitution has been amended 27 times, starting with the first 10 amendments in 1791. The most recent amendment, ratified in 1992, was one of 12 originally moved by James Madison through the First Congress in 1790. That amendment limited the ability of members on Congress to raise their own pay. It was not ratified by three-fourths of the states until 202 years later.

Virginia has ratified 24 of the 27 amendments. Those not ratified were the ones which authorized the income tax, popular election of US Senators, and granting the District of Columbia three votes in the Electoral College for presidential elections:9
First Amendment: December 15, 1791
Second Amendment: December 15, 1791
Third Amendment: December 15, 1791
Fourth Amendment: December 15, 1791
Fifth Amendment: December 15, 1791
Sixth Amendment: December 15, 1791
Seventh Amendment: December 15, 1791
Eighth Amendment: December 15, 1791
Ninth Amendment: December 15, 1791
Tenth Amendment: December 15, 1791
Eleventh Amendment: November 18, 1794
Twelfth Amendment: between December 20, 1803 and February 3, 1804
Thirteenth Amendment: February 9, 1865
Fourteenth Amendment: October 8, 1869
Fifteenth Amendment: October 8, 1869
Sixteenth Amendment: never ratified
Seventeenth Amendment: never ratified
Eighteenth Amendment: January 11, 1918
Nineteenth Amendment: February 21, 1952 (rejected February 12, 1920)
Twentieth Amendment: March 4, 1932
Twentyfirst Amendment: October 25, 1933
Twentysecond Amendment: January 28, 1948
Twentythird Amendment: never ratified
Twenthyfourth Amendment: February 1, 1963
Twentyfifth Amendment: March 8, 1966
Twentysixth Amendment: July 8, 1971
Twentyseventh Amendment: December 15, 1791 (went into effect May 18, 1992)

Other amendments have been proposed to the states, but have not been ratified by a sufficient number of states to be added to the US Constitution. A notable example is the proposed Equal Rights Amendment.

In 2019, proponents sought to get the General Assembly to make Virginia the 38th state to ratify that amendment. Some lawyers interpreted the exercise as political theater, but others claimed Virginia's vote could make the difference and get the amendment into the Constitution. The State Senate approved the amendment and Governor Northam promised to sign it, but in the House of Delegates the bill was killed in a subcommittee. A parliamentary procedure to force a full vote in the House of Delegates failed in a 50-50 tie, ending the effort to get ratification by Virginia in 2019.

In the November, 2019 elections, Democrats won a majority in both the House of Delegates and the State Senate. The legislature quickly ratified the Equal Rights Amendment in January, 2020. Because the deadline 38 states to ratify had expired in 1982, the action was symbolic and the amendment did not go into effect.10

Only one constitutional convention has generated wording for the US Constitution; all other changes have occurred through the amendment process. There has never been a second convention to replace the version of the US Constitution, as drafted in 1787 and amended since ratification. Political conservatives led by the American Legislative Exchange Council have advocated for a second convention, which could be called either by Congress or by two-thirds (34) of the states.

By 1983, 32 states had passed resolutions calling for a new convention, though 16 had rescinded their call by 2010. The primary focus of convention supporters was to create a constitutional requirement for a balanced budget. However, a convention could propose replacing any part of the existing US Constitution, including equal allocation of two senators for each state or elimination of the Second Amendment in the Bill of Rights.

A mock constitutional convention was held in Williamsburg in 2016. It demonstrated how delegates could draft a new document to replace the existing US Constitution, just as delegates in 1787 proposed a complete replacement for the Articles of Confederation.

To date, the Virginia General Assembly has not joined that movement. The legislature has not called for a new national convention to replace the US Constitution. In contrast, in addition to the amendment process, multiple conventions have replaced or revised the Virginia state constitution.11

Both the US Constitution and the Virginia state constitution ultimately derive their authority from the people who are governed, but there is a significant difference in the approach. When Virginia published an updated version of the state constitution in 1950, a footnote to Section 63 included:12

A State constitution is a restraining instrument; the Federal Constitution is a granting instrument. The legislative body of a State has all the powers not prohibited to it by the State or Federal Constitution; Congress has only such powers as are conferred upon or granted to it by the Federal Constitution. A State constitution is the measure of what the legislative body of the State may not do; the Federal Constitution is the measure of what the Congress may do.

It is inaccurate to say that our State Constitution grants power to the General Assembly. It does not grant power in a single instance; it takes away power in many instances.

Constitutions of Virginia

Links

the original Virginia Plan was submitted on May 29, then debated and altered to create this version on June 13, 1787
the original Virginia Plan was submitted on May 29, then debated and altered to create this version on June 13, 1787
Source: National Archives, Virginia Plan (6/13/1787)

References

1. "Annapolis Convention," Mount Vernon, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/annapolis-convention/; Jason Yonce, "The Annapolis Convention Of 1786: A Call For A Stronger National Government," Journal of the American Revolution, https://allthingsliberty.com/2019/05/the-annapolis-convention-of-1786-a-call-for-a-stronger-national-government/ (last checked May 31, 2019)
2. "Who Called the Constitutional Convention? The Commonwealth of Virginia," Independence Institute, https://i2i.org/who-called-the-constitutional-convention-the-commonwealth-of-virginia/ (last checked May 12, 2019)
3. "Who Called the Constitutional Convention? The Commonwealth of Virginia," Independence Institute, https://i2i.org/who-called-the-constitutional-convention-the-commonwealth-of-virginia/ (last checked May 12, 2019)
4. "A new Nation," Museum of the American Revolution, http://amrevmuseum.org/exhibits/new-nation (last checked June 4, 2019)
5. "Patrick Henry," in "Liberty: The American Revolution," Public Broadcasting System, 2004, http://www.pbs.org/ktca/liberty/popup_henry.html; "Ratification of the Constitution by the State of Virginia; June 26, 1788," Yale Law School - Avalon Project, http://avalon.law.yale.edu/18th_century/ratva.asp; "Introduction to the Virginia Ratifying Convention," Teaching American History, https://teachingamericanhistory.org/resources/ratification/virginia/; "The Idea Of A Second Convention," Center for the Study of the American Constitution, University of Wisconsin, https://csac.history.wisc.edu/document-collections/themes-of-the-ratification-period/idea-of-a-second-convention/; Earl Gregg Swem, "A register of the General Assembly of Virginia, 1776-1918, and of the Constitutional Conventions," Virginia General Assembly, 1918, p.243, https://archive.org/details/registerofgenera00virg/page/382; "Madison's Election to the First Federal Congress, October 1788-February 1789 (Editorial Note)," Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0219; "Suzanne Munson column: On Constitution Day, remembering Virginia's crucial voice," Richmond Times-Dispatch, September 16, 2021, https://richmond.com/opinion/columnists/suzanne-munson-column-on-constitution-day-remembering-virginias-crucial-voice/article_f7a1d963-590e-56e5-8d8d-b1accaeba0d3.html (last checked September 18, 2021)
6. Phoenix Dalto, "An Absent Clause: The Exclusion of Madison’s 16th Amendment," Journal of the American Revolution, January 4, 2022, https://allthingsliberty.com/2022/01/an-absent-clause-the-exclusion-of-madisons-16th-amendment/; "The Twenty-seventh Amendment," US House of Representatives, https://history.house.gov/Historical-Highlights/1700s/The-27th-Amendment/ (last checked January 8, 2022)
7. "Madison's Election to the First Federal Congress, October 1788-February 1789 (Editorial Note)," Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0219 (last checked January 8, 2022)
8. "50 State Quarters Program," United States Mint, https://www.usmint.gov/learn/coin-and-medal-programs/50-state-quarters (last checked May 11, 2019)
9. "U.S. Constitutional Amendments," FindLaw, https://constitution.findlaw.com/amendments.html; "Virginia and the 19th Amendment," National Park Service, https://www.nps.gov/articles/virginia-women-s-history.htm; The U.S. Constitution and Constitutional Law, Britannica Educational Publishing, 2012, p.108, https://www.google.com/books/edition/The_U_S_Constitution_and_Constitutional/qdmbAAAAQBAJ (last checked September 18, 2021)
10. "ERA bill dies for good in GOP-controlled Virginia House of Delegates," Washington Post, February 21, 2019, https://www.washingtonpost.com/local/virginia-politics/virginia-house-kills-era-ratification-bill/2019/02/21/82920204-3560-11e9-854a-7a14d7fec96a_story.html; "Virginia Approves the E.R.A., Becoming the 38th State to Back It," New York Times, January 15, 2020, https://www.nytimes.com/2020/01/15/us/era-virginia-vote.html (last checked April 12, 2021)
11. "Conservative National Groups Battle in the States Over Constitution Redo," Center for Public Integrity, January 25, 2016, https://publicintegrity.org/state-politics/conservative-national-groups-battle-in-the-states-over-constitution-redo/; "How a Mock Convention Is Helping to Fuel a Movement to Change the Constitution," Center for Public Integrity, July 30, 2018, https://publicintegrity.org/state-politics/how-a-mock-convention-is-helping-fuel-a-movement-to-change-the-constitution/ (last checked May 12, 2019)
12. "Constitution of Virginia: as amended June 19, 1928, November 7, 1944, May 3, 1945, November 5, 1946, November 2, 1948 and November 7, 1950," Commonwealth of Virginia, 1950, p.23, https://catalog.hathitrust.org/Record/101718115 (last checked April 12, 2021)

in 1789 the US Senate consolidated Madison's 17 proposed amendments to 12, in part by deleting the 16th Amendment
in 1789 the US Senate consolidated Madison's 17 proposed amendments to 12, in part by deleting the 16th Amendment
Source: National Achives, Bill of Rights


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