Writing a New Constitution for Virginia

Virginia voters elected delegates to a constitutional convention in 1901
Virginia voters elected delegates to a constitutional convention in 1901
Source: Virginia Memory, This Day in History: May 03, 1901

The first constitution of Virginia was approved by the Fifth Revolutionary Convention in 1776. Virginia's 1776 constitution was written by a legislative body dealing with many other issues, and had not been elected with the expectation that it would draft a constitution. Virginia was still a colony when the delegates were elected to that convention. After it declared independence, the link to British laws was severed. A constitution was required because, without some form of fundamental law, Virginia would have been in a "state of nature" with no philosophical or legal basis for judges to make decisions.

Massachusetts started a new pattern for writing constitutions in 1779. It invented the concept of a separate constitutional convention, with delegates elected independently from the legislature. John Adams was an advocate for electing a separate assembly for the single purpose of creating a state constitution, with members chosen by the voters. Such a process would establish the fundamental law of the state on the "broadest foundation" of public support.

The concept of a separate constitutional convention in 1779 was based on a 1777 failure. The Massachusetts Provincial Congress had drafted a state constitution in 1777 and submitted it to the voters for ratification, but they rejected it. The version prepared by the independent 1779 constitutional convention was approved, creating an example of success.

The representatives of the 13 states meeting as the Continental Congress did not try to write any document to establish a new relationship between the states. Instead, the states sent delegates to a special convention in Philadelphia in 1787 to write a national constitution.1

Virginia voters have elected delegates to special conventions that drafted five new constitutions in the 1800's plus one in 1902. No general constitutional convention has been held since 1902, but major changes were made through the amendment process in 1928 and 1971. In addition, the General Assembly authorized election of delegates to constitutional conventions with a limited agenda in 1933, 1945, and 1956. Those conventions crafted constitutional changes to address single issues - repealing prohibition, allowing members in the armed services to vote, and allowing the state to fund whites-only private schools.

When electing delegates to the conventions that led to the 1830, 1851, 1864, and 1870 constitutions, voters knew in advance that the intent of the convention was to replace the existing state constitution. In 1861, the convention elected to deal with secession also proposed an unexpected constitutional revision to raise property taxes that slaveowners paid on their enslaved people. Both the secession proposal and the change in the state constitution were approved by the voters in May, 1861.

The same 1861 convention reassembled in December 1861 and drafted a new constitution. The new document was based on Virginia's changed status, after seceding from the Union and joining the Confederate States of America. The 1861 draft was the only proposed Virginia constitution to be rejected by the voters, in a close decision. It failed to gain approval in part because the ratification election occurred during General McClellan's Peninsula Campaign, when the capture of Richmond was imminent.

A separate state constitution was written in 1864. At that time, Virginia had two General Assemblies. The one meeting in Richmond at the State Capitol was loyal to the Confederacy. The General Assembly of the "Restored Government of Virginia" meeting in Alexandria (after West Virginia became a separate state in 1863) was loyal to the Union. In contrast to the state government aligned with the Confederacy, the Restored Government of Virginia managed to get a new state constitution written and adopted in the middle of the Civil War.

In December 1863, the General Assembly in Alexandria called for election of delegates to draft a new state constitution. The Restored Government of Virginia was largely powerless even within the territory occupied by the Union Army, so elections were highly irregular.

The delegates chosen on January 21, 1864 came from just a tiny percentage of the entire state; they did not represent the "broadest foundation" concept of John Adams. The constitutional convention met in February-March 1864, and their proposal was approved by voters in another irregular election.

The next election for a convention to write a new constitution, in 1867, was historic. For the first time, black men could vote and be elected to office in Virginia. The provision in the 1864 state constitution which limited the electorate to white men was simply ignored in an election overseen by US Army officials. 24 black men served in the convention chaired by Judge John C. Underwood.2

The 1869 Underwood Constitution included a requirement for voters to decide every 20 years if a constitutional convention should be called. Voters rejected a convention in 1888, but approved holding one in 1901. That requirement was dropped in the 1902 constitution, but the General Assembly proceeded to ask the voters again in 1922. The proposal was defeated, with the primary objection being the estimated cost of the convention.

The last general constitutional convention in Virginia finished in 1902. In 1922, voters rejected holding another convention to draft a replacement constitution.3

Governor Harry Byrd was elected three years later, and he wanted structural changes to state government that would give the executive branch more authority to create more-efficient operations. The General Assembly then authorized creating a special commission to propose amendments to the 1902 constitution. The governor appointed the seven members of what became known as the Prentis Commission.

The commission rewrote half of the existing state constitution, including creating a "short ballot" by eliminating the election of four statewide offices. The General Assembly revised a few of the commission's proposals and made some of its own, packaged the changes as amendments, and submitted them to the voters for approval.

Three limited conventions were authorized by the General Assembly, and then by the voters, in 1933, 1945, and 1956. Their authority was limited by the voters to deal with individual issues. The 1933 convention did not affect the state constitution. Instead, it ratified the 21st Amendment to the US Constitution, ending national Prohibition.

in 1945, a limited constitutional convention at the end of World War II expanded voting rights for men serving in the armed forces. In 1956, the limited constitutional convention authorized the state to support private schools. That facilitated public funding for segregated education, after the US Supreme Court had issued its Brown vs. Board of Education ruling.

The last major revision of the Constitution of Virginia occurred at the end of the 1960's. US Supreme Court decisions had voided the poll tax, the redistricting process, and segregated schools. Rather than try to revise the 1928 rewrite of the 1902 constitution, political leaders decided to replace the existing state constitution.

In 1968, the General Assembly chartered a commission to propose new constitutional language. The commission engaged in a complete rewrite, rather than an editing/update effort. Using a commission to prepare a draft gave the members of the General Assembly more control over the revision, by avoiding the creation of an independent constitutional convention that might reflect the "broadest foundation."

Governor Godwin appointed the Commission on Constitutional Revision, and it wrote a replacement constitution for the 1902 document that was still in force (though heavily revised). The General Assembly adopted the new constitution as amendments, and voters then approved the new constitution in 1970.4

The 1971 constitution gives the General Assembly the only authority to initiate a constitutional convention. Citizens can not initiate a call on their own for a convention and elect delegates to modify the constitution; the General Assembly is the gatekeeper of that process. Only the legislature has the authority to call for a convention that might propose a general revision or specific amendments to the existing state constitution.5

Constitutions of Virginia

Virginia and the US Constitution



1. "John Adams & the Massachusetts Constitution," Commonwealth of Massachusetts, https://www.mass.gov/guides/john-adams-the-massachusetts-constitution (last checked June 20, 2019)
2. Brent Tartar, The Grandeees of Government: the Origins and Persistence of Undemocratic Politics in Virginia, University of Virginia Press, 2013, p.225
3. John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, p.17, https://books.google.com/books?id=fe9MAgAAQBAJ; James Willard Hurst, The Growth of American Law: The Law Makers, The Lawbook Exchange, 2007, p.213, https://books.google.com/books?id=fT24smXtCKwC (last checked June 23, 2019)
4. "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; (last checked June 19, 2019)
5. A.E. Dick Howard, "Constitutional Revision: Virginia and the Nation," University of Richmond Law Review, Volume 9 Issue 1 (1974), p.45, https://scholarship.richmond.edu/lawreview/vol9/iss1/2; "Article XII, Section 2 - Constitutional Convention," Constitution of Virginia, https://law.lis.virginia.gov/constitution/article12/section2/ (last checked June 22, 2019)

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