The Need for Change
The state’s existing constitution had been written in 1901–1902 and promulgated without a ratification referendum for the explicitly stated purpose of disenfranchising as many Black voters as possible. The complex poll tax and registration procedures also disenfranchised nearly half the state’s white voters. Revised in detail in 1928, the 1902 constitution was long and restrictive and prevented the state from adapting to changed conditions and popular demands for additional government services.
The Virginia of the 1960s scarcely resembled the Virginia of 1902. Two world wars and the Great Depression of the 1930s had redistributed the state’s population and center of political gravity. Between 1900 and 1970, Virginia’s population increased by about 250 percent, from approximately 1.85 million to 4.65 million. Just as important, the increase was not uniform across the state. According to the U.S. Census Bureau, the 1950s was the first time more Virginians resided in urban and suburban areas than in rural regions and small towns. Rapid growth in the number of people who resided in three densely concentrated clusters that formed a large arc from the northern suburbs of the District of Columbia through Virginia’s capital region, with Richmond at its center, to the naval and shipbuilding centers in Hampton Roads created a new distribution of the state’s population.
Changes in people’s relationships to and requirements of their governments accompanied these demographic changes. Twentieth-century Virginians, like other Americans, required state and local governments to provide good public education, fire and police protection, public health facilities and hospitals, water and sewer services, good public roads and airports, and in some places public meeting halls or large-scale venues for sporting and other entertainment events. People’s expectations pulled even the slow-moving government of Virginia away from the “pay as you go” limited-government philosophy of the dominant political organization headed by Harry Flood Byrd, which had long stymied change. Federal aid to schools, public libraries, roadways, and other state and local government projects complicated relations between the state and federal governments and required the creation of state administrative agencies to oversee the grants, making people more reliant than ever before on government at all levels.
As a result, the rudimentary local governmental institutions that the Constitution of 1902 provided for became increasingly inadequate. To meet expectations for new public services, cities and towns annexed densely populated portions of neighboring counties sixty-five times during the 1960s, affecting more than 160,000 people. Some cities merged with neighboring counties or towns to solve other problems: the City of Hampton merged with or absorbed Elizabeth City County and the town of Phoebus in 1952; the City of Newport News merged with Warwick County in 1958; and in 1963 the City of South Norfolk and Norfolk County merged to form the new City of Chesapeake, while the City of Virginia Beach absorbed Princess Anne County. In other instances, the General Assembly granted charters to counties to enable their governments to function more like city governments.
Between 1942 and 1970, the General Assembly also authorized the creation of more than 300 independent or semi-independent public authorities to provide specific public services in certain regions. In many instances, those authorities had jurisdiction in more than one county or in a county and an adjacent city. This significantly complicated the local administration of government, required tax increases, and created complex, interconnected webs of elected and appointed units of government, many of them beyond the control or influence of voters.
Moreover, although the General Assembly of Virginia did not ratify the Twenty-Fourth Amendment to the U.S. Constitution, enough other states did so that the amendment went into effect in 1964, prohibiting the imposition of a poll tax as a prerequisite to vote in elections for the U.S. presidency and members of the U.S. Congress. Two years later, the U.S. Supreme Court’s decision in Harper v. Virginia State Board of Elections, which combined two challenges to the constitutionality of the poll tax in Virginia, declared the tax an unconstitutional burden on citizens in any election, thereby invalidating the requirements in Article II of the Constitution of 1902 that made payment of the poll tax a prerequisite for voting and that had made it almost impossible for Black and poor Virginians to vote.
Poll Tax and Voting Rights
In addition, a series of landmark U.S. Supreme Court rulings—Baker v. Carr (1962), Gray v. Saunders (1963), and Reynolds v. Sims (1964)—declared that all elections and electoral districts in the United States had to provide for equality of representation based on the principle of one person, one vote. Inasmuch as the General Assembly of Virginia had repeatedly devised legislative districts that awarded seats on a discriminatory basis, these rulings seriously undermined the Byrd Organization’s ability to retain the malapportionment that provided its power base in the rural and southeastern parts of the state. At the same time, the federal Voting Rights Act of 1965 instituted federal supervision of all voting laws and practices in states and parts of states with histories of discrimination against racial minorities, including all of Virginia. In those regions, no new laws or changes to old laws, including electoral district boundaries, could take effect without the approval of the U.S. Department of Justice or the U.S. District Court for the District of Columbia. This left the government of Virginia without the legal ability to enforce or revise old laws or to enact new ones to bolster the authority of the Byrd Organization or extend the life of Jim Crow segregation.
In response to these challenges and opportunities, Governor Mills Edwin Godwin Jr. proposed in January 1968 that the General Assembly revise the state’s constitution and submit a new document to the voters for ratification. After a very successful set of reforms that the assembly had adopted in 1966 to improve public education and other government services, Godwin lamented that city and county governments as well as the state government lacked constitutional authority to raise the money needed to fund those improvements or to do more. “In these last few turbulent years of growth and change,” he began his proposal for constitutional revision, “Virginia’s new dimensions have many times extended to the Constitution itself. … Now, the time has come, in my judgment, for a studied and impartial analysis of its provisions in the light of today.”
Commission on Constitutional Revision
Governor Godwin proposed that the legislators revise the constitution rather than summon a constitutional convention to write a new document. The governor requested that the assembly authorize him to appoint a select Commission on Constitutional Revision to be composed of “impartial and eminently qualified citizens, whose stature is commensurate with the task to be performed, and whose recommendations would command the respect and thoughtful consideration of the General Assembly and the people of Virginia.” Such nonpartisan or bipartisan commissions of experts and representatives of the public had precedent. Several other states during the twentieth century had employed constitutional revision commissions to prepare drafts or suggestions for a convention or legislature. The General Assembly of Virginia had done precisely that when it revised the Constitution of 1902 in the 1920s and placed a question on the ballot asking voters whether to delete the entire old constitution and replace it with the new one. Virginia’s Supreme Court of Appeals had ruled in Staples v. Gilmer in 1945 that the General Assembly had the authority to submit a new or revised constitution to the voters in that form.
Proceeding by this “thorough and deliberate means” rather than by summoning a potentially expensive and uncontrollable convention, Godwin planned for the General Assembly to hold a special session in 1969 to act on the commission’s recommendations and then at the regular session in 1970 to formally submit a new constitution to a ratification referendum to be held the following autumn. Godwin’s proposal appealed to the Democratic Party majority in both houses of the assembly because the legislators would retain full control of what the proposed new constitution would and would not contain.
Godwin appointed a bipartisan eleven-member commission that included men from all regions of the state—but no women. Its chair was former Democratic governor Albertis Harrison, from the Southside county of Brunswick, who had recently become a justice of the Virginia Supreme Court of Appeals. The other members were Lewis F. Powell of Richmond, a former president of the American Bar Association and a future justice of the U.S. Supreme Court; Davis Y. Paschall, a former superintendent of public instruction then serving as president of the College of William and Mary; J. Sloan Kuykendall, a Winchester attorney and a former president of the Virginia Bar Association; Richmond civil rights attorney Oliver W. Hill, the only Black man on the commission and the first to have a formal role in preparing a Virginia constitution since the two dozen African American men who served in the Convention of 1867–1868; Alexander M. Harman Jr., a Democratic circuit court judge from the southwestern county of Pulaski who became a justice of the Supreme Court of Appeals in 1969; Hardy Cross Dillard, dean of the law school at the University of Virginia; Colgate W. Darden of Norfolk, another former Democratic governor as well as a former president of the University of Virginia; Theodore Roosevelt Dalton, a two-time Republican candidate for governor from the southwestern city of Radford, a former member of the Senate of Virginia, and a federal judge; George M. Cochran, a Democrat from Staunton who had previously served in the Senate of Virginia, and later became a justice on the state Supreme Court; and Albert V. Bryan Jr., the son and namesake of a federal judge who would soon receive his own federal judgeship. Commission members appointed University of Virginia law professor A. E. Dick Howard, author of the 1968 book The Road from Runnymede: Magna Carta and Constitutionalism in America, to serve as the executive director.
The commission widely circulated a request for public comment and conducted five public hearings across the state. Howard and the commission’s five committees coordinated a massive research project in the summer of 1968 in which attorneys and law students prepared almost 150 memoranda on different aspects of the state’s constitution and laws and on constitutional innovations in other states during the middle decades of the twentieth century. In January 1969, the commission delivered its 542-page report to the governor and General Assembly. The introduction clearly explained the philosophy of the proposed revision, stressing that the constitution should consist for the most part of general provisions and not include, as had the Constitution of 1902 and its 1928 revision, detail of the kind that ought to be left to the General Assembly to determine by law as circumstances changed. The report also included the text of the old constitution as it existed as of 1969 and the proposed revision in parallel columns that allowed legislators, journalists, and others to easily see commission members’ proposed changes.
The General Assembly
The special session of the General Assembly met from February 26 through April 25, 1969. Members of each house worked through the commission’s proposals and then sent their drafts to the other house, which accepted, rejected, or reached compromises on the differences.
During the 1969 special session, the Virginia House of Delegates included a single Black member, William Ferguson Reid, a Henrico County dentist who became the first African American since 1867–1868 to participate in writing a new Virginia constitution. He also served in the 1970 regular session that submitted the new constitution to the voters for ratification or rejection. William P. Robinson, a professor of political science at Norfolk State University, the second African American elected to the House of Delegates in the twentieth century, served in the 1970 session that approved the constitutional revision. L. Douglas Wilder, the first African American to win election to the Senate of Virginia in the twentieth century and later the state’s first African American governor, represented the city of Richmond and Henrico County in the 1970 session. The first three women to participate in writing an entirely new Virginia constitution were Eleanor P. Sheppard of the city of Richmond, who served in the House of Delegates during both sessions, and Mary A. Marshall of Arlington County and Dorothy S. McDiarmid of Fairfax County, who were members of the House of Delegates in the 1969 session.
The House of Delegates approved the main body of the constitution by a vote of 89 to 3 on April 25, 1969, and the Senate approved it by a vote of 34 to 0 on the same day. Both houses also approved several propositions to be voted on separately at the time of the ratification referendum to reduce the chance that opposition to those potentially controversial sections would jeopardize acceptance of the entire document. During the 1970 regular session, the House of Delegates voted 96 to 0 and the Senate voted 38 to 0 to submit the constitution to the voters for ratification or rejection.
On November 3, 1970, voters ratified the new constitution by a vote of 576,776 to 226,219 (71.8 percent approval). A prohibition on lotteries that had been in the state’s constitutions since 1851 was removed by a vote of 491,124 to 290,168 (62.9 percent). By a 504,315 to 261,220 vote (65.9 percent), voters ratified Article X, Section 9-B to permit the General Assembly to issue general-obligation bonds if approved in a popular referendum, and Virginians voted 484,274 to 265,784 (64.6 percent) in favor of Article X, Section 9-C, permitting the General Assembly to issue revenue bonds for capital projects.
The Constitution of 1971
At about 18,430 words, the Constitution of 1971, even with substantial additions to several sections, was less than two-thirds the length of the Constitution of 1902. The new constitution omitted many provisions that were legislative in character, leaving such matters to the discretion of the General Assembly, and omitted obsolete provisions, such as requirements for payment of a poll tax as a prerequisite to voting and for racial segregation in public schools. The constitution that the legislators submitted to the voters was one of the most modern in the country. It conformed the state’s fundamental law to federal laws and court decisions resulting from the civil rights movement and the expansion of voting rights.
Among the many important new provisions was an enlarged Section 11 of the Bill of Rights, which reads: “That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term ‘public uses’ to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination.” The commission had suggested most of the last clause, but Delegate Dorothy McDiarmid persuaded the relevant committees of both houses to add the prohibition on sexual discrimination.
The article on suffrage and representation required approximate equality of population in all legislative and congressional districts, and the article on local government required the same for county and city electoral districts. Since the 1870s, the legislature had met biennially; the new constitution restored annual legislative sessions but limited their length. It preserved the governor’s authority to recommend amendments to bills after they passed the General Assembly but, as with vetoes, required the assembly to accept or reject the proposals. That, together with the governor’s role in proposing the budget and ability to speak for the whole executive branch, had already made Virginia’s chief executive one of the most powerful in the country.
The constitution renamed the Supreme Court of Appeals the Supreme Court of Virginia and empowered the court and the chief justice to oversee operations of all the state’s courts and judges. It also explicitly authorized the General Assembly to create or abolish courts as it deemed necessary, thereby expanding the assembly’s capacity to reform the judicial system. The new constitution guaranteed all children in the state the right to a high-quality public education, which in effect prevented any jurisdiction from abolishing its public schools for any purpose, as Prince Edward County had done between 1959 and 1964 to prevent racial desegregation.
The new constitution included a short Article VII that replaced two long articles on city and county governments. For the most part, the new article treated counties and cities in much the same manner and to some extent blurred the distinctions between the two. It enlarged localities’ capacity to issue bonds to borrow money for schools and other public projects, as Godwin had proposed. The new article preserved the state’s unique system of independent incorporated cities, with no county officer or legal process able to operate in any city, but towns remained parts of the counties in which they were located. The article also specifically legitimized the numerous special districts or regional government bodies that the General Assembly had authorized to meet needs for new or expanded public services.
The General Assembly elected to preserve the essence of the Dillon Rule, which limits the authority of local governments to the powers explicitly granted by the state. The commission believed that strict application of the Dillon Rule thwarted democratic government at the local level and proposed adding a sentence to Article VII, Section 3: “A charter county or a city may exercise any power or perform any function which is not denied to it by this Constitution, by its charter, or by laws enacted by the General Assembly.” Legislators, however, omitted this provision, thereby preserving their ability to have final say on changes to all consequential and many minor local government structures and functions. Preservation of the Dillon Rule could allow the General Assembly to prevent alterations in municipal government boundaries and policies that new African American majorities might seek to adopt.
One of the most important new provisions that the commission suggested and that the assembly approved was a new Article XI on conservation. At an early point in the national environmental movement, the article was unlike anything in any other state constitution at the time, declaring: “To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public lands, waters, and other natural resources, it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings. Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.”
Amendments to the Constitution of 1971
Since the Constitution of 1971 was ratified, the General Assembly has submitted sixty-two amendments to voters, who have ratified fifty-four of them. Some amendments arose from political debates on contentious issues, such as the 1996 insertion into the Bill of Rights of a list of rights of victims of crime, a 2006 prohibition on same-sex marriages in the form of a “marriage protection” clause (later invalidated by a 2014 federal court decision that declared that the provision violated the U.S. Constitution), and in 2012 new restrictions on the exercise of the right of eminent domain. Other amendments made specific changes: the minimum voting age was lowered from twenty-one to eighteen in 1971, and state and local governments have on several occasions been authorized to reduce or eliminate some taxes for veterans, first responders, and some of their survivors.
Other amendments further refined provisions of the constitution or sought to solve new problems, such as an amendment that voters ratified in 1980 to have the assembly reconvene several weeks after each session to consider the governor’s vetoes and proposed amendments; a 1984 amendment to require a balanced budget; a 1992 amendment that created the Revenue Stabilization Fund to provide money for the government during temporary periods of reduced revenue; a 2004 amendment that specified the order of succession to the office of governor in the event that an armed attack made it impossible for a majority of assembly members to meet and select a successor; and a 2020 amendment to create a bipartisan redistricting commission to draw congressional and legislative district lines after every federal census.
The Future of the Virginia Constitution
When the General Assembly revised Virginia’s constitution in 1969, the members could not foresee the effects of the continuing demographic and economic changes that would further transform the state. Those changes brought about important political developments. At the end of the 1960s, Virginia had been a one-party state for more than three-quarters of a century, and that party had been dominated by the conservative Byrd Organization. During the final decades of the twentieth century, Virginia became a competitive two-party state. Voters split their tickets and elected both Democrats and Republicans to statewide offices and to the General Assembly, so that by the turn of the twenty-first century, Republicans had gained control of all statewide offices and for the first time held majorities in both houses of the General Assembly. Thereafter, Democrats and Republicans have alternated and shared control: sometimes one party has held a small majority in both houses, and sometimes one party has held a majority in one house while the other party has done so in the other house. On several such occasions, the resulting stalemates have prevented the General Assembly from filling vacancies on the State Corporation Commission and in the state’s courts, including the Supreme Court of Virginia. The authors of the Constitution of 1971 did not provide a method of solving a problem that they did not anticipate.
Other complications resulting from continuing changes may require further revision to the Constitution of 1971. On the whole, though, the flexibility with which the constitution endowed the General Assembly may allow its members to address these needs without amending the state’s foundational document. As the first half century of government under the Constitution of 1971 has demonstrated, legislators have not hesitated to propose amendments, and voters have often been willing to ratify changes that altered both the structure and the operation of the state government.
