Ratifying Constitutions - Or Not

the Fifth Revolutionary Convention proclaimed Virginia's first constitution on June 29, 1776
the Fifth Revolutionary Convention proclaimed Virginia's first constitution on June 29, 1776
Source: Library of Virginia, First Virginia Constitution, June 29, 1776

The 1776 constitution was never submitted to the voters for ratification. It was proclaimed to be in effect by the same people who wrote it at the Fifth Revolutionary Convention. Proclaiming the document to be in effect was logistically simpler than holding another election. Proclaiming a new organic law, not based on the authorities of Parliament and the king, minimized the time Virginia was in a "state of nature" without a legal basis for its existence.

If the new constitution had been sent to the voters for approval, they would have been required to say out loud in front of all the spectators at each county courthouse whether they supported/opposed the constitution. Virginia held viva voce elections at that time, and anyone voting against the constitution would have exposed Loyalist sentiment.

The rebel leaders of the Fifth Revolutionary Convention might have wanted to expose Loyalists and get affirmation from the voters of the new constitution, but there was no previous example to follow for adopting a state constitution. Virginia was the first to go through the independence process, and had no model to follow.

Proclaiming the constitution also eliminated any risk of the worst-case scenario, a rejection if advocates of independence had not turned out in adequate numbers to support the new form of government.

Thomas Jefferson criticized the claim that the Fifth Revolutionary Convention had the power to proclaim a constitution that later legislatures would not have the authority to modify. When delegates had been elected to that convention, voters had not anticipated it would write a constitution which future legislatures could not revise. In Notes on Virginia written in 1781, he advocated holding a special ratification vote to ensure the voters endorsed the new fundamental law because:1

The other states in the union have been of opinion, that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments.

The next constitution considered by Virginia voters was a document approved in the 1787 Constitutional Convention, held in Philadelphia, to replace the Articles of Confederation. The US Constitution also was ratified by a special convention in Virginia. Voters elected representatives in a special election to make the ratification decision. Those Virginians who had the right to vote in 1788 did not approve the US Constitution directly, but instead through delegates they selected to make the decision.

Starting in 1830, the pattern changed. Virginians voted directly on the adoption of new state constitutions that went into effect in 1830, 1851, 1864, 1870, and 1971. Not every ratification vote went as expected. One proposed new state constitution was rejected in 1862.

Even in 1864, after a convention organized by Governor Pierpont and the Restored Government of Virginia wrote a new state constitution, the document was approved by 500 voters. However, that election in the middle of the Civil War was basically window dressing. No opposing votes were recorded, and the tiny number of "yes" votes came from just a small slice of territory under the control of the Union-supported version of a state government. The Clerk of the Virginia House of Delegates discounts the validity of the 1864 constitution, noting that it was drafted under wartime conditions and its legal status was never certain.2

Just once since 1776 did a convention proclaim a new constitution to be in force without approval by the voters. The 1902 Virginia constitution was declared to be in effect by the constitutional convention which wrote it. As in 1776, there was no ratification vote. The Virginia Supreme Court of Appeals ruled in Taulor v. Commonwealth (1903) that the process of proclaiming the new constitution was sufficient, and it had gone into effect on July 10, 1902.3

The 1870 constitution created a process for amendments, requiring that they be submitted to the voters for approval. In 1926, Governor Harry F. Byrd created a new mechanism to revise the 1902 constitution. He had the General Assembly create a "Commission to Suggest Amendments to the Constitution."

That approach gave the Executive Branch more control over revising the constitution, rather than have the voters elect a special convention or have the legislators generate proposals through committees in the General Assembly. Governor Byrd fed his desires to a small commission filled with his supporters, and the General Assembly followed the commission's recommendations when it approved proposed amendments. Voters then approved the amendments, a validation process comparable to ratifying a new constitution created by a constitutional convention.

In 1945 and again in 1956, the voters authorized limited constitutional conventions to address one issue. In 1946, the issue was voting rights for people serving in the armed forces. in 1956, the issue was maintaining publicly-funded segregated schools. In both cases, the convention adopted revisions to the state constitution and proclaimed them to be in effect, without any ratification vote. Both revisions were politically popular, and proclaiming them to be in effect made the changes effective without delay.

In the 1960's, Governor Godwin mimicked the approach used by Governor Harry Byrd to maximize the influence of the Executive Branch in amending the state constitution. Godwin appointed the members of a Commission on Constitutional Revision, which was chaired by former Governor Albertis S. Harrison, Jr. The commission submitted recommendations to the General Assembly, and the legislature created six proposed amendments. Four of those were approved by a subsequent session of the General Assembly in 1970 and voters then approved all four.

The amendment process reduced the state constitution from 35,000 to 18,000 words. One major policy change was elimination of the pay-as-you-go limits on issuing state debt, which Byrd had incorporated in the amendments he orchestrated in 1926-28.4

The revisions to the state constitution which went into effect in 1971 eliminated the requirement that voters must approve calling a constitutional convention, and granted that power to the General Assembly. The amendments which went into effect in 1971 also established a new requirement that all future constitutions or amendments had to be submitted to the voters for approval. The amendments eliminated the potential, as demonstrated in 1776 and 1902, that a convention could totally rewrite/replace the state constitution without any public endorsement.

A convention, with limited or full authority, can no longer proclaim that the Virginia constitution has been changed. As desired from the beginning by Thomas Jefferson, ratification by the voters is now required. Jefferson wrote to James Madison in 1789, long before constitutions were venerated as vestiges of "founding fathers" and institutionalized as hard-to-revise documents, that each generation was entitled to choose how it should be governed. In Jefferson's words:5

... no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation... Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right.

Constitutions of Virginia

Virginia and the US Constitution

Links

References

1. Notes on the State of Virginia, Thomas Jefferson, Prichard and Hall (Philadelphia), 1788, https://docsouth.unc.edu/southlit/jefferson/jefferson.html (last checked August 24, 2019)
2. "The Virginia Constitution: A Documentary Analysis," William & Mary Law Review, Volume 10, Issue 2 (1968), p.514, https://scholarship.law.wm.edu/wmlr/vol10/iss2/20; "Constitution of Virgnia," Clerk's Office, The House of Delegates, January 2013, p.III (Footnote 1), http://hodcap.state.va.us/publications/Constitution-01-13.pdf (last checked June 19, 2019)
3. John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, p.18, https://books.google.com/books?id=fe9MAgAAQBAJ (last checked June 23, 2019)
4. Albert L. Sturm, "Constitution Of Virginia: 1776 and 1976," University of Virginia Newsletter, p.15, https://newsletter.coopercenter.org/sites/newsletter/files/Virginia_News_Letter_1976_Vol._53_No._4.pdf (last checked June 13, 2021)
5. John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, pp.21-23, https://books.google.com/books?id=fe9MAgAAQBAJ; "To James Madison from Thomas Jefferson, 6 September 1789," Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-12-02-0248 (last checked June 12, 2021)


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