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50 Years On, Virginia’s Constitution Faces New Tests

Writers of Virginia's 1971 Constitution sit and stand behind a desk
Members of the Commission on Constitutional Revision: (seated, left to right) Alexander M. Harman Jr., Colgate W. Darden, Albertis S. Harrison, Davis Y. Paschall, Ted Dalton, Oliver W. Hill; and (standing, left to right) J. Sloan Kuykendall, Albert V. Bryan Jr., Lewis F. Powell Jr., Hardy C. Dillard, George M. Cochran and A. E. Dick Howard. (Photo: UVA Law Special Collections)

Virginia’s 1971 Constitution moved the commonwealth out of the era of Jim Crow and Massive Resistance. Fifty years after it went into effect on July 1, the constitution faces new and old challenges: the persistence of inequities of past eras, distrust in government, and the survival of democracy itself. 

Still, the legal scholar who oversaw the process believes their work has held up well.

“I think the process today -- if you tried to do the same thing -- would be messy, would be divisive, contentious,” said Dick Howard, a University of Virginia law professor who served as the executive director of the commission that drafted the constitution. “It's a good thing that we wrote the present constitution when we did.”

Former Gov. Mills Godwin, at the time a Democrat, picked a commission in 1968. By then it was clear that the state constitution, most of which was drafted in 1902, needed an overhaul.

The 1902 document was “founded on white supremacy,” Howard said. It instituted a poll tax (but not for Confederate veterans), allowed voting restrictions based on property holdings, and stipulated that “white and colored children shall not be taught in the same school.”

The 1902 constitution was part of an effort across the South to solidify Jim Crow voting restrictions in state constitutions and sidestep the 14th Amendment of the U.S. Constitution, according to University of Richmond law professor Henry Chambers.

“You also have Plessy v Ferguson in the late 1890s, you had the Redeemers, who were supposedly redeeming the southern governments -- all those issues,” Chambers said. “It was an ugly time.”

On the face of it, the commission that redrafted Virginia’s 1971 Constitution didn’t look much different from the people who’d previously revised the document: all men, all but one of them white. The exception was acclaimed civil rights attorney Oliver Hill. Other prominent figures included Lewis Powell, who later served on the U.S. Supreme Court, and Colgate Darden, who’d backed segregation as a Democratic governor in the early 1940s.

The commission suggested sweeping changes. The eventual constitution, which was approved by the General Assembly, eliminated the Jim Crow language (which were already made obsolete by the Civil Rights Act of 1965), banned discrimination based on “religious conviction, race, color, sex, or national origin,” gauranteed free, “ high quality” education to all children, and committed the state to protecting Virginia’s natural resources.

Voters overwhelmingly approved the constitution in 1970. Howard became an advocate for the referendum, which he said was broadly popular aside from conspiracy theorists who believed it must have been drafted in Beijing or Moscow -- that it “couldn't have been written by Virginians.”

The constitution has been amended more than two dozen times since, adding provisions that guarantee the right to “right to hunt, fish, and harvest game” and more recently, creating Virginia’s first redistricting commission. 

Howard spent much of his career consulting and trading notes with colleagues in countries transitioning to democracies. He would tell them that a bedrock of democracy was a peaceful transition of power. The insurrection of Jan. 6 made Howard question the health of U.S. democracy and consider the changes that might be necessary to protect it.

“I think democracy is an ongoing exercise in public reaffirmation of the fundamentals of a free society,” he said. 

Lawmakers continue to suggest changes to the state consitution, from striking the obsolete ban on same-sex marriage to gauranteeing “ equitable educational opportunities for all children.” Howard has his own suggested improvements: allowing former felons to vote (a move that will be under consideration in the General Assembly next year) and removing the so-called Dillon rule that restricts the activities of local government. Howard believes policy debates of the day are best left out of the constitution. Chambers says that remains up for debate.

“The question of what a constitution is, is still up for grabs,” he said.

The Library of Virginia will host Chambers, Howard, and other legal experts in an event commemorating the Constitution on July 1.

Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.
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