The delegates who gathered in convention in Richmond in 1901 to rewrite Virginia’s Constitution had no doubt about why they were there. Reconstruction had brought the Fifteenth Amendment to the United States Constitution, forbidding states to deny the right to vote on the basis of race, color, or previous condition of servitude. In his opening speech to the delegates in Richmond, the convention’s president denounced the Fifteenth Amendment as “a crime against civilization and Christianity.” That amendment, he said, had forced Virginia, “under the rule of bayonet, to submit to universal negro suffrage.”
What was needed, most delegates agreed, was to rid Virginia of the black vote. White supremacy was the natural order of things. In the presiding officer’s words: “The all powerful Creator, for some wise purpose, has made the black man inferior to the white man.” To great applause, another delegate made clear his aim: “to secure white supremacy in this government and that of every city and county in the Commonwealth.”
The convention accomplished their purpose with grim efficiency. Devices included the poll tax and burdensome registration requirements. Delegates did not expect registrars to be impartial in their examination of those attempting to registrar. One delegate was candid: white applicants “will find a friendly examination.” Not so black applicants, who should expect a hostile examination; therefore, “they will not apply for registration.”
In 1867, there had been over 100,000 registered black voters in Virginia—almost half of all registered voters in the Commonwealth. After the promulgation of the 1902 Constitution, there were 21,000 – 4.7% of all registered voters. Poor whites, too, were deterred from the polling place. Indeed, the 1902 Constitution’s draconian provisions disenfranchised more whites than blacks. Political upheaval began in the wake of the Supreme Court’s 1954 decision in Brown v. Board of Education. Virginia joined the parade of southern states’ “massive resistance” to the desegregation of public schools. Prince Edward County closed its schools altogether.
The pressure for revising Virginia’s Constitution was mounting. In 1964, the U.S. Supreme Court ruled that legislative reapportionment must adhere to the principle of one person, one vote. The next year, Congress enacted the Voting Rights Act, whose coverage included Virginia. In 1966, the Supreme Court invalidated Virginia’s poll tax.
In 1968, Governor Mills E. Godwin, Jr., appointed the Commission on Constitutional Revision. Its members included Lewis F. Powell, Jr., soon thereafter elevated to the U.S. Supreme Court; two former governors, Albertis Harrison and Colgate Darden, Jr.; Oliver W. Hill, Sr., the leading light of Virginia’s civil rights scene; and law school dean Hardy C. Dillard, later named to the World Court at the Hague.
Reporting to the governor and General Assembly on January 1, 1969, the revision commission articulated its core assumption: “that the people of Virginia want to shape their own destiny” and that “they want a constitution which makes possible a healthy, responsible state government.” The General Assembly adopted the vast majority of the commission’s recommendations. Unlike the 1902 Constitution, which had simply been promulgated, the new constitution went to the people for approval. After an extensive statewide campaign, the people of Virginia said “yes” to the proposed constitution, with 72% voting in favor.
Repudiating the white supremacist taint of 1902, the 1971 Constitution forbids government discrimination on the basis of race, color, national origin, or sex. The Constitution addresses the unhappy history of massive resistance and school closings. Once the General Assembly has devised a formula for state and local funding of public schools, localities have a constitutional mandate to provide their share—an obligation the attorney general can enforce by mandamus.
Education takes its place in the Bill of Rights, alongside traditional rights such as speech, press, and religion. In language drawn from Thomas Jefferson’s Bill for the More General Diffusion of Knowledge, the Bill of Rights recognizes the link between free government and education. Virginians are enjoined to ensure “an effective system of education throughout the Commonwealth.” Putting muscle into state and local support of public education, the education article looks to the expertise of the Board of Education to prescribe standards of quality for Virginia’s school districts, with the General Assembly having ultimate authority.
Aside from race and education, the Constitution addresses other concerns of our age. The 1902 Constitution had nothing to say about the environment. In a new article, the 1971 Constitution makes it the public policy of the Commonwealth to protect its natural resources, public lands, and historical sites and buildings. More generally, the Constitution recognizes the difference between a constitution and general laws. The 1902 Constitution read like a code of law; the 1971 Constitution is half the length of its predecessor.
At the dawn of the age of modern constitutions, Virginia led the way with the adoption of its famous Declaration of Rights of 1776. That document’s influence reached even to being a model for France’s Declaration of Rights of Man and the Citizen (1789). The Virginia document’s principal architect was George Mason, who drew on social compact theory, the legacy of British constitutionalism, and the insights of his own time. The 1776 Declaration admonishes us that “no free government, nor the blessings of liberty, can be preserved to any people, but by ... frequent recurrence to fundamental principles.” Still etched in Virginia’s Bill of Rights, that manifesto calls to us to educate ourselves in the fundamentals by which a free people govern themselves.
This article was written by former Virginia Historical Society trustee, A. E. Dick Howard, the Warner-Booker Distinguished Professor of Law at the University of Virginia. Born and raised in Richmond, Virginia, Professor Howard is a graduate of the University of Richmond and received his law degree from the University of Virginia. Active in public affairs, Professor Howard was executive director of the commission that wrote Virginia’s new Constitution and directed the successful referendum campaign for ratification of that constitution. An authority in constitutional law, Professor Howard is the author of a number of books, articles, and monographs. These include The Road from Runnymede: Magna Carta and Constitutionalism in America and Commentaries on the Constitution of Virginia, which won a Phi Beta Kappa prize. Other works include Democracy’s Dawn and Constitution-making in Eastern Europe. In January 1994, Washingtonian magazine named Professor Howard as “one of the most respected educators in the nation.” In 2007, the Library of Virginia and the Richmond Times-Dispatch included Professor Howard on their list of the “greatest Virginians” of the 20th century. In 2013, the University of Virginia conferred on Professor Howard its Thomas Jefferson Award—the highest honor the University confers upon a member of the faculty.