THE UNIVERSITY OF VOL. 53, NO.4

THE : 1776 AND 1976 By ALBERT L. STURM

The author is University Research Professor THE CONSTITUTION OF 1776 ence; and, like the other revolution­ of Political Science at Virginia Polytechnic ary constitutions, it became effective Institute and State University. When hostilities broke out in 1775, without submission to the voters. This is the last in a series of six articles Virginia, like other colonies, sought The Virginia Declaration of Rights, commemorating the Bicentennialofthe A mer­ guidance from the Continental Con­ which served as the model for the ican Revolution. gress for the formation of a new federal Bill of Rights and similar government. After the collapse of documents in other state constitu­ Comparison of the first Constitu­ royal authority in 1774, Virginia in tions, was a restatement of the basic tion of Virginia drafted in the year of effect had been governed by a series guarantees of fundamental liberties American independence with its fifth of conventions. On May 15, 1776, the successor in effect two centuries found in English charters such asthe Virginia Convention elected in April Magna Carta. In general, its well­ later reveals both similarities and voted unanimously to frame a consti­ differences. Like other state organic known provisions, which have been tution. Unlike similar bodies in seven laws, these Virginia documents re­ repeated in all Virginia constitutions, other colonies, this convention had flect the issues, pressures, and may be classified in three major not been chosen with a specific problems of the times in which they categories: (1) assertions of basic mandate to draft such a document. were written. Variation in length­ political philosophy affirming the There is little doubt, however, that a 1,500 as compared with 18,000 principles of democratic government; substantial majority of the people words-provides a rough indexofthe (2) substantive personal and property approved its action. differences in complexity of the two rights, such as constitutional systems. Both consti­ The Virginia Convention, with two and religion; and (3) the rights of tutions, however, rest upon the same representatives from each , persons accused of crime, including basic theoretical foundation. This included such influential members such familiar guarantees as trial by article summ'arizes the salient fea­ as and Edmund . tures of Virginia's first and sixth Randolph. Principal contestants in Less advanced but still democratic constitutions, with brief attention to writing the constitution were the in tendency was the main body of the major constitutional developments in aristocratic landowners, 1776 Constitution. While following the interim.* represented by Edmund Pendleton, the main lines of colonial govern­ who chaired the convention; and the mental institutions, the constitution democratic, progressive, or Iliberal" clearly reflected the difficulties that

*For summaries of early co"nstitutional developments in group, led by . A large led to the break with England. The Virginia, see Allan Nevins, The American States During and committee chaired by Archibald 1776 document retained property After the Revolution, 1775-1789; Fletcher M. Green, Consti­ Carey was designated to prepare a qualifications for voting, leaving tutional Development in the South Atlantic States, 1"'7"76­ 1860; and A. E. Dick Howard, Commentaries on the Constitu­ draft constitution. colonial provisions un­ ~f Virginia, 2 vols.; and by the same author, '''For the was the main architect of the new changed. was Common Benefit': Constitutional History in Virginia as a Casebook for the Modern Constitution-Maker," 54 Virginia document, writing not only the expressly asserted, but separation Law Review (1968), 816-902. For recent developme~ original draft of the constitution but did not mean equality of power; the The Constitution of Virginia, Report of the Commission on also that of the Declaration of Rights. legislative branch was unquestion­ Constitutional Revision, January 1, 1969; Howard, Commen­ taries; Albert L. Sturm, Thirty Years of State Co~ The entire process of drafting, de­ ably dominant. This characteristic of ~g, 1938-1968; by the same author, "The 1971 Revised bate, and final approval required only legislative supremacy was an ob­ Virginia Constitution and Recent Constitution-Making," State Government, XIV, No. 3 (Summer 1971), 34-50; and"t"he about six weeks, May 15 to June 29, vious expression of the revolt against section on "State Constitutions and Constitutional Revision," 1776. Thus, Virginia's new constitu­ executive authority from which the published biennially in The Book of the States. tion antedated American independ- colonists had experienced abuses

INSTITUTE OF GOVERNMENT / UNIVERSITY OF VIRGIl\TIA / CHARLOTTESVILLE / DECEMBER 1976 14

under the British Crown. Constitu­ cial officers; annual election by the 1829-30 Constitutional Convention. tional declaration of the separation of General Assembly of delegates to the Notwithstanding the exceptionally powers into three compartments, Continental Congress; exclusion of able membership of this body, its even though imperfectly achieved, ministers of the gospel from mem­ product, Virginia's second constitu­ was a significant departure from the bership in the Assembly and on the tion, offered no lasting remedies for British system. Council; prohibition against private constitutional ills. Consequently, the The constitution provided for a purchase of land from the Indians; burgeoning western counties and bicameral , the General and confirmation of the boundaries of growing urban centers continued to Assembly, elected by the voters. Virginia with neighboring states. press their demands for reform. Members of the House of Delegates CONSTITUTIONAL WEAKNESSES AND Although Jeffersonian and Jackson­ were elected annually, two from each PRESSURES FOR REFORM ian democratic tendencies influ­ county and one from each and enced the reform movement, popular borough; while the upper house Although the 1776 Constitution demands focused primarily on cor­ consisted of twenty-four senators, represented substantial democratic rection of particular abuses. Section­ each elected from a senatorial district progress and lasted fifty-four years, it al conflict in ideals and int~rests, for a four-year term. Both senators was subject to increasing criticism including the issue of , were and delegates were required to be from the time of its inception. Some also of major importance. freeholders and residents of the politicial leaders, particularly Jeffer­ The Constitutional Convention of districts from which elected. The son, considered the constitution to 1850-51 met most of the demands of House of Delegates originated all have been established by usurped the democratic element that had laws, which could be amended by the authority. Futhermore, the 1776 been rejected by the 1829-30 body. Senate with the consent of the lower Convention, while unanimously ap­ Virginia's third Constitution of 1851 house, except for money bills, which proving the liberal principles ex­ extended the suffrage, leaving white the Senate had to accept or reject pressed in the Declaration of Rights, male citizenship, age, and residence without change. failed to apply them consistently in as the only voting requirements; The was elected annually the main body of the constitution. reorganized the General Assembly, by joint vote of the two houses and Although the Declaration asserted with more attention to population as was limited to three successive one­ individualequality, the ruling minori­ a basis for representation and in­ year terms. The governor was autho­ ty rejected political equality. creased restrictions on legislative rized to exercise the executive pow­ One of the document's principal powers, including biennial sessions ers of government "with the advice of weaknesses was the concentration limited to ninety days; provided for a Council of State," which substan­ of powers in the hands of the popular election of the governor and tially limited his discretionary author­ legislative branch, which Jefferson other officers; removed property ity in most matters. With few excep­ characterized as being "precisely the qualifications for office holding; tions, the governor had little power to definition of despotic government." abolished the Council of State and act independently, and he had no Another major defect was the in­ created the office of lieutenant legislative . The Council of State, equitable apportionment of repre­ governor; reduced the life tenure of which consisted of eight members, sentation, which gave the aristocrat­ judges and provided for their removal was also elected by joint vote of the ic, propertied of eastern by concurrent vote of both legislative two houses from their own members Virginia control of the Assembly and houses; and otherwise responded to or the people at large. From its the government. Narrow limitations growing democratic pressures. members the Council elected annu­ on the suffrage and office holding Constitutional changes during the ally a president who acted as lieuten­ displeased many citizens who had next two decades resulted mainly ant governor in case of the death, fought and paid for support of the from the controversy revolving inability, or absence of the governor. government. Additional weaknesses around the slavery issue and the Other officers chosen by the General identified by Jefferson included the subsequent problems of the Recon­ Assembly included the treasurer, the fact that there was too much ho­ struction era. The Constitutional secretary, and the attorney general. mogeneity in the composition of the Convention of 1867-68, called to Unlike later constitutions, the two legislative houses, chosen by the address the issues of Reconstruction, 1776 Constitution contained few same electors, at the same time, and produced a number of notable inno­ provisions on the , specify­ from the same eligible group. Also, vations in Virginia's fourth constitu­ ing only the broad outlines and not only could the General Assembly tion. Significant provisions included leaving the details to legislative determine a quorum for conducting universal male suffrage for those determination. The document did the business of the Commonwealth, over twenty-one years of age (except expressly provide for selection by the but also it could alter the constitution for ex-Confederates who would have General Assembly of judges of the at any time. been barred from voting if Congress Supreme Court of Appeals and of the Efforts by Jefferson, Madison, and had approved provisions for their General Court, judges in Chancery, other critics to achieve constitutional ); use of townships; and judges of Admiralty. Justices of reform in these and other areas were establishment of a tax-supported the peace were appointed by the unsuccessful during the next few statewide system of public educa­ governor with advice of the Council. decades. However, continued pres­ tion; and, for the first time, a method Other salient features of the new sures for reform and the growing of amending the constitution. constitution included provision for strength of the western counties Election frauds and abuses during of executive and judi- eventually led to the calling of the the 1880s and 1890s, attributable 15 largely to efforts to maintain white Two limited constitutional conven­ the reform package, proposed a supremacy, led to the Constitutional tions were called in 1945 and 1956­ general revision; another dealt with Convention of 1901-02. The result­ the first such bodies in Virginia to be lotteries, the other two with bonding ing constitution, Virginia's fifth, limited in power. The 1945 body procedure and debt limitations. Fol­ effectively achieved disfranchise­ ordained in effect a new article lowing a vigorous, bipartisan ratifica­ ment of Negroes through its restric­ dealing with absentee voting by tion campaign, the voters at the 1970 tive suffrage provisions. This docu­ members of the armed forces. The general election approved all four ment also created the State 1956 Convention was called after the proposals by a margin of approxi­ Corporation Commission. The consti­ Virginia Supreme Court of Appeals, mately two to one. The Assembly tutions of 1776 and 1902 were the following the school desegregation convened in January 1971 to enact only ones proclaimed in effect with­ decisions of the U.S. Supreme Court, legislation necessary to implement out submission to the voters. declared unconstitutional a legisla­ the new Constitution, Virginia's tive effort to give tuition grants to sixth, which became effective July 1, children attending private schools. 1971. TWENTIETH-CENTURY The Convention proclaimed an The Commission's guiding princi­ CONSTITUTIONAL DEVELOPMENTS amendment authorizing public aid to ple in formulating its recommenda­ children in private nonsectarian tions for the new constitution, wh.ch The maior forces and influences schools. In the sixty-nine years of its the General Assembly accepted with that shaped constitutional change effective operation, the 1902 Consti­ few substantive changes, was to during the 1880s and 1890s con­ tution was altered by ninety-five maintain a balance between tradition tinued into the twentieth century. amendments. and change while incorporating Especially significant were popula­ During the two decades after mid­ appropriate revisions to render the tion growth and urbanization; tech­ century, more than four-fifths of the instrument "more responsive to nological developments; industriali­ states, including Virginia, took offi­ contemporary pressures and proba­ zation; extension of the suffrage; and, cial action to modernize their organic ble future needs." The Commission of primary importance, the changing laws so they might better fulfill assumed that the people of Virginia conception of government's proper current and future needs. These desired no fundamental changes in role in society. Protective, regulatory, documents had become bloated with the basic governmental structure; and service functions of the Com­ minutiae, obsolete provisions, and that nonfundamental matters should monwealth were reflected increas­ excessive restrictions on the func­ be left to statute; that the document ingly in the provisions of the 1902 tioning of government. The "reappor­ should be readable, coherent, con­ Constitution which, unlike the 1776 tionment revolution" of the mid­ sistent, and logically organized; that Constitution's statements of funda­ 1960s also provided an important the constitution might appropriately mental principles, contained much stimulant for state constitutional include language expressing trad-i­ material basically statutory in nature. modernization. tionaI values and _aspirations; and In 1926 Governor Harry F. Byrd that no attempt should be made to with legislative authorization ap­ construct an "ideal" new constitu­ THE CONSTITUTION OF 1971 pointed a Commission to Suggest tion. Application of these guidelines Amendments to the Constitution­ Responding to a request by Gover­ resulted in deletion of obsolete the first time a commission was used nor Mills E. Godwin, Jr., in January sections and elimination of much to propose general constitutional 1968 the General Assembly autho­ statutory detail. Deletion, consolida­ revisions. The Commission in 1927 rized the creation of an eleven­ tion, and reorganization reduced the submitted a report to the General member Commission on Constitu­ number of articles from seventeen to Assembly that proposed "material" tional Revision. Named chairman of twelve, and the number of words changes in 50 of the 197 sections in the blue-ribbon body was former from approximately 35,000 to the 1902 Constitution. Those pro­ governor Albertis S. Harrison, Jr., a 18,000. posed changes that were approved justice of the Supreme Court of Article I, the Bill of Rights, retains twice by the Assembly (as required by Appeals. In January 1969 the Com­ largely in the original language the the constitution) were referred to the mission submitted to the General traditional guarantees of the 1776 electorate in the form of five amend­ Assembly its 542-page report, which Declaration. Significant additions ments, all of which were approved at recommended revisions affecting include statements of the duties of the November 1928 election. One every area of the constitutional sys­ citizenship, express recognition of omnibus amendment included most tem. the importance of an effective system of the changes, many of which were During an extraordinary session of public education to free govern­ of a housekeeping nature; another convened in February 1969, the ment, and a new antidiscrimination related to incurring state debt; and General Assembly approved six pro­ provision. A few basic guarantees the three remaining, known as "short posed amendments, including most were transferred from other sections ballot" amendments, left to general of the Commission's recommendat­ to the Bill of Rights. Article II, law the method of selecting the ions but with some significant Franchise and Officers, specifies the superintendent of public instruction, changes. Four of the six proposals requirements for voting and man­ the state treasurer, and the commis­ were approved for the second time in dates a uniform system for perman­ sioner of agriculture and immigra­ 1970 and cleared for submission to ent registration of voters. Decennial tion, all of whom had been elected by the voters. One amendment, embod­ reapportionment of legislative and the people. ying the "Iess controversial" parts of congressional seats according to 16 population, beginning in 1971, is also legislative determination of organiza­ tionaI convention. All proposed con­ required. tion and powers, subject to referen­ stitutional changes must be submit­ dum in affected areas; and mandates ted to the electorate. Sole power is The 1971 Constitution retains the decennial reapportionment of repre­ vested in the General Assembly to statement of division of powers sentative districts according to popu­ initiate the process of constitutional among the three branches (Article lation. The principal modernizing change, and also to control the scope III). The Legislative Article (IV) pro­ feature in the area of Taxation and and manner of submitting conven­ vides for a bicameral General Assem­ Finance (Article X) is stated in tion proposals. Through November bly with annual sessions limited to provisions liberalizing debt limita­ 1976, the voters had approved eight sixty days in even-numbered and tions on issuance of general obliga­ amendments to the Constitution. thirty days in odd-numbered years; tion bonds and authorizing the Gen­ Although the 1971 Constitution makes few significant changes in eral Assembly to pledge the full faith introduced some new features into procedure; and some changes in and credit of the Commonwealth for Virginia government, its contents are powers, including removal of the specified revenue bonds under stated basically conservative. Compared former prohibition against lotteries. conditions. with a general composite of state Most significant modernizing fea­ Articles in the 1971 Constitution constitutional modernization, the tures of the Executive Article (V) are dealing with state functions make Virginia document retains a number specification of the line of succession significant advances. Article VIII, of regressive, outmoded features to the governorship and provision for Education, greatly strengthens the such a e . a ga· i hand\\ng the problem of gubernator­ Commonwealth's commitment to language, the ban against two con­ ial disability. Elected for four years public education in mandating the secutive terms for the governor, and are the governor, the lieutenant General Assembly to provide a state­ total legislative control over the governor, and the attorney general; wide system of free public schools for initiation of constitutional change. the governor has extensive appoint­ "all children of school age" and to Certainly, many substantive provi­ ment and removal power, but is establish "an educational program of sions of the 1971 Constitution are a prohibited from serving successive high quality." Article IX, Corpora­ substantial improvement over those terms. A simplifed Judiciary Article tions, specifies in streamlined form of its immediate predecessors, and (VI) provides for a flexible unified the organization, powers, and basic the scope of its coverage provides a system of courts headed by the procedure of the State Corporation great contrast indeed with the limited Supreme Court, which is vested with Commission and formally asserts the provisions of the 1776 Constitution. extensive rule-making power. Commonwealth's power to regulate Yet, compared with the innovative Judges are selected by the General foreign and domestic corporations. A imagination and statesmanship of Assembly, which also determines new article on Conservation (XI) gives their eighteenth-century predeces­ original and appellate jurisdiction, constitutional status tothe Common­ sors, modern constitution makers subject to specified limitations. A wealth's policy to conserve and can claim little if any superiority. The Judicial Inquiry and Review Commis­ develop natural resources. complexity of modern life and institu­ sion provides an alternate means for The final article (XII), on Future tions poses to those who exercise the discipline and removal. Changes, provides two methods of power to make and change constitu­ Article VII, on Local Government, initiating constitutional alterations: tions a continuing challenge in combines previous articles on coun­ legislative proposal, which requires maintaining an effective constitu­ ties, , and ; recognizes the majority approval during each of two tional foundation for the government concept of regional government, with sessions; and proposal by constitu- of the Commonwealth.

THE UNIVERSITY OF VIRGINIA

Entered as second-class matter Charlottesville, Virginia EWS LETTER

Editor / Clifton McCleskey Assistant Editor / Sandra Wilk inson Published each month from September through August by th~ l.n~titute of Govc:rn­ ment University of Vnglnla, Charlottesville, Virginia 22903. The views and opinions ex­ pressed herein are those of the authC?r, and are not to be interpreted as representing th~ official position of the Institute or the Unl- ver~i~f~red as second-class matter January 2, 1925, at the post office at Charlottesville, Virginia, under the act of August 24, 1912. © 1976 by The Rector and Visitors of the University of Virginia. Printed by the University Printing Office.