Constitutions of Virginia

the first state constitution was written in Williamsburg, as the Fifth State Convention met in the Capitol
the first state constitution was written in Williamsburg, as the Fifth State Convention met in the Capitol
Source: Library of Virginia, First Virginia Constitution, June 29, 1776

Prior to 1776, there was no written constitution establishing any limits on the power of colonial government in Virginia. There was no independent judiciary to counter the decisions of the governor, the Governor's Council, the House of Burgesses, the county courts, or the vestry of the Anglican parishes.

The leaders of the Virginia Company, particularly its Treasurer, sent guidance to Jamestown from 1607-1624. After the company's charter was revoked, the king's advisors in London sent royal instructions to the governor in Jamestown and then to Williamsburg to guide the governor's decisions.

Colonial governors did not share those instructions freely with the delegates elected to the House of Burgesses, and the power of the General Assembly was not limited by any written contract that colonists had ratified. Constraints on the power of the governor in the colony of Virginia were cultural and economic, not based on any written delineation of the powers of the office. The gentry, not words on paper, constrained the governor's authority. Rich landowners shipping tobacco to England generated enough tax revenue to have influence in London. The Virginia gentry managed to force several governors out of office, including Edmund Andros, Francis Nicholson, and Alexander Spotswood.

There was no legal document spelling out limits of government power which could be enforced by Virginians through any judicial process. In colonial Virginia, there was no constitution defining the role of the governor and no independent judiciary to invalidate any decisions by officials. The House of Burgesses, Council of State, and royal governor understood the concept of "separation of powers," but those werre flexible. Authority was re-negotiated regularly and informally, as officials with different personalities occupied different positions.

Once, the average citizens reacted against the abuse of authority that was possible for appointed and elected officials. Bacon's Rebellion in 1676 was triggered in part by excessive taxes and exorbitant fees imposed by Governor Berkeley and the General Assembly. The governor had obtained support from key Virginia landowners in part by appointing them to various positions, and sometimes to multiple offices simultaneously. The House of Burgesses then passed tax and trade laws that provided excessive benefits to the governor, members of the Governor's Council, and some burgesses at the expense of all the other colonists.

Governor Berkeley also centralized authority by declining to call elections for a new House of Burgesses for 15 years. He retained what became known as the Long Assembly between 1661-1676. The average colonial farmers were forced to pay burdensome taxes to support the political elite. Without elections, the taxpayers lacked the ability to change government policy peacefully. The alternative was violent change, and the revolt is known as Bacon's Rebellion. It led to intervention by London officials and Governor Berkeley was forced from office, but no legally-enforceable document checked the powers of future governors and General Assemblies.

In the 1760's, royal governors became embroiled in the conflict between Parliament and the colonies. Parliament wanted revenue from America to help defray the costs of the French and Indian War. British troops and the navy won the war, and Parliament thought the colonists who benefitted should help pay for the military's expenses. To minimize future defense costs in North America, George III issued the Royal Proclamation of 1763. It was intended to limit conflict with Native Americans occupying the territory acquired from the French, but the colonists objected to officials in London blocking the profits from speculating in land and westward expansion.

Opposition to the powers of the king and Parliament led to philosophical debates about the social contract and the role of government. The "no taxation without representation" objections to Parliament's actions evolved into a fundamental belief that the structure of government in the colonies was fatally flawed. That discussion led to the American Revolution and the creation of a new form of government, later defined by Abraham Lincoln in the Gettysburg Address as "government of the people, by the people, for the people."1

Virginia started the process by writing the first Declaration of Rights and then the first state constitution, describing how a new form of government would replace colonial authority and eliminate the role of a monarch. Virginia became an independent state when it adopted its first state constitution in 1776. The constitution has been revised several times, but the Bill of Rights has been incorporated in each subsequent version.

The 1776 constitution was replaced in 1830. That document was ratified by the voters, as was its replacement in 1851.

During the Civil War, Virginia had two state governments. The Secession Convention met in Richmond in 1861 and drafted a new constitution, eliminating references to the United States of America and adding references to the Confederate States of America. The 1862 election date scheduled for ratification by the voters happened to occur when the Union armies were approaching Richmond in the Penisula Campaign.

Few voters participated in the decision process, and a majority of those who went to the polls rejected the new constitution. The Confederate state government based in Richmond governed Virginia from 1861-65 under the 1830 state constitution that required the governor to be a "native citizen of the United States."2

That classification exposed both Civil War governors, John Letcher and William Smith, to charges of treason for levying war against the United States. Under Article III, Section 3 of the US Constitution, that charge requires the accused person to be a US citizen. A non-citizen can not be convicted of "treason" against the United States.

The former president of the Confederate States of America, Jefferson Davis, was tried for treason in 1868 but the prosecution was not completed. Stopping his trial avoided the risk that a court might rule that secession was legal and thus Davis was not a US citizen when he organized the invasion of Maryland.3

A new constitution was adopted in 1902. It was designed to restrict the opportunity to vote to just white males. The US Supreme Court had made clear that states could evade the Fifteenth Amendment and its requirements for equal suffrage for black voters. The white elite used the new constitution to disfranchise most black voters, and many poor whites as well. The 1901-1902 general convention proclaimed the new constitution to be in effect without a ratification vote.

It was the last time Virginia has held a general constitutional convention. Conventions with limited authority, as approved by the voters, have proclaimed changes in 1945 related to how people in the military could vote and in 1956 on how the state could support private, racially-segregated schools.

Since the 1870 constitution created a process for incremental amendments, voters have modified different state constitutions in large and small ways. In 1928, a major rerite of the constitution reduced the number of words by half and gave the government substantially more authority over the executive branch. That revision was done through the amendment process, rather than via a constitutional convention.

The last wholesale replacement of the state constitution was done in four amendments which were approved by the voters in 1971.

Nearly every General Assembly considers new proposals for additional revisions, but few make it through the process. Constitutional amendments must be approved twice by the General Assembly and an election for the House of Delegates must occur between those two votes, and then voters must approve the change in a statewide referendum. The most recent modification occurred in 2018, when voters approved two amendments to authorize specific property tax exemptions.4

the Constitution of Virginia was amended again in 2018
the Constitution of Virginia was amended again in 2018
Source: Virginia Department of Elections, 2018 November General

Changes proclaimed by a constitutional convention, and amendments to the constitution approved by the voters, are by definition "constitutional." Excepting the US Constitution, the Constitution of Virginia is the highest law of the land within the boundaries of Virginia. Other laws passed by the state legislature or local governments must be consistent with the state and Federal constitutions.

Ultimately, the Virginia Supreme Court determines if a law passed by the General Assembly is consistent with the state constitution. State judges defer to the legislators, and rarely rule that a state law is void because it violates the state constitution. In contrast to the US Constitution which granted limited authority in 1788 to a new Federal government, the Virginia Constitution since 1776 has imposed limited restrictions on the broad general authority of the state government.

The State Corporation Commission once noted in a case:5

The Supreme Court of Virginia has ruled repeatedly that the single most compelling presumption in Virginia law is the presumption in favor of the constitutionality of statutes enacted by the General Assembly.

The Court has described the Commonwealth's presumption in favor of constitutionality as so strong that it requires a challenger to show that the alleged unconstitutionality is "'so plain as to leave no doubt on the subject. To doubt is to affirm [the statute's] constitutionality. There is no such thing as a doubtful constitutional statute. Every presumption is in its favor, and there is no stronger presumption known to the law.'"

Furthermore, the unconstitutionality of a statute must be "clear and palpable," and, thus, the "Court must resolve any reasonable doubt regarding a statute's constitutionality in favor of its validity." As the Supreme Court has repeatedly made clear, any reasonable doubts - any close calls, in the vernacular - must be resolved in favor of a statute's constitutionality.

For example, the state courts, including the Supreme Court of Virginia, have declined to rule that the legislature's decisions on redistricting were unconstitutional.

In 2017 and 2018, state courts upheld the boundaries of five House of Delegates districts and six State Senate districts that had been redrawn in 2011 after the 2010 Census. Plaintiffs had argued that the boundaries violated the requirement in Article II, Section 6 of the Constitution of Virginia that districts be "composed of contiguous and compact territory."

At the same time, Federal courts were more willing to intervene. They forced revisions of the boundaries for legislative districts, after plaintiffs argued those boundaries violated separate Federal requirements.6

If Virginia Supreme Court invalidates a law, the General Assembly can accept the decision, revise the legislation so it will be consistent with the court's interpretation, or start the process to amend the constitution.

If a Federal court determines a state law violated the US Constitution, the General Assembly does not have the option to revise the state constitution in order to restore the law's impact. As a result of Federal primacy, the 2006 "marriage amendment" to the state constitution, which limited marriage to just between men and women, is now void because the US Supreme Court ruled such limitations to be violations of the US Constitution. The marriage amemdment will remain a part of the state constitution until a future amendment or wholesale revision of the documnt, but no state or Federal court can enforce the prohibition.

1776 Constitution of Virginia

1830 Constitution of Virginia

1851 Constitution of Virginia

1861 Constitution of Virginia (Rejected)

1864 Constitution of Virginia

1870 Constitution of Virginia

1902 Constitution of Virginia

1928 Constitution of Virginia Amendments

1945 Constitution of Virginia Amendments

1956 Constitution of Virginia Amendments

1971 Constitution of Virginia

Governor's Veto and Amendment Authority

Ratifying Constitutions - Or Not

Virginia and the Confederate Constitution

Virginia and the US Constitution

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

Writing a New Constitution for Virginia

Links

References

1. "Gettysburg Address," Library of Congress, https://www.loc.gov/exhibits/gettysburg-address/ (last checked May 10, 2019)
2. "Virginia Constitution, 1830," for Virginians: Government Matters, http://vagovernmentmatters.org/primary-sources/518 (last checked May 11, 2019)
3. Daniel James Flook, "Jefferson Davis's Imprisonment," Encyclopedia Virginia, Virginia Foundation for the Humanities, May 14, 2015, https://www.encyclopediavirginia.org/jefferson_davis_s_imprisonment; "Was Secession Legal?," University of Virginia School of Law, October 16, 2017, https://www.law.virginia.edu/news/201710/was-secession-legal (last checked May 11, 2019)
4. "Voters back two proposed Virginia constitutional amendments," Prince William Times, November 8, 2018, https://www.princewilliamtimes.com/news/voters-back-two-proposed-virginia-constitutional-amendments/article_7b6ac05c-e384-11e8-96b2-2321300261ad.html (last checked May 12, 2019)
5. Hullihen W. Moore, "In Aid of Public Education: An Analysis of the Education Article of the Virginia Constitution of 1971 ," University of Richmond Law Review, Volume 5, Issue 2 (1971), p.263, https://scholarship.richmond.edu/lawreview/vol5/iss2/7/?utm_source=scholarship.richmond.edu%2Flawreview%2Fvol5%2Fiss2%2F7&utm_medium=PDF&utm_campaign=PDFCoverPages; "Petition of the Old Dominion Committee For Fair Utility Rates v. Appalachian Power Company," Virginia State Corporation Commission, Case No. PUE-2016-00010, July 1, 2016, pp.4-5, http://www.scc.virginia.gov/docketsearch/DOCS/39_r01!.PDF (last checked January 17, 2017)
6. Vesilind v. Virginia State Board of Elections, Record No. 170697, Virginia Supreme Court, May 31, 2018, http://www.courts.state.va.us/opinions/opnscvwp/1170697.pdf; "House District in Va. Ordered Redrawn," Washington Post, February 8, 1997, http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/redraw27.htm (last checked May 11, 2019)


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