Virginia’s latest constitution turns 50
Voters replaced ‘racist document’ in 1971
The latest Virginia Constitution went into effect 50 years ago this month, but in today’s world of polarized politics, it feels like it might as well have been 1787.
Virginia’s first constitution was passed in 1776, the year the United States declared independence. The state’s present constitution is the seventh incarnation of the commonwealth’s governing document.
The penultimate state constitution was written in 1902 and entrenched Jim Crow laws that disenfranchised Black people and other non-white citizens, including by restricting voting rights through measures such as poll taxes and literacy tests designed to skirt the U.S. Constitution’s 15th Amendment.
“The existing constitution was antiquated and not suited for the time,” says A.E. Dick Howard, professor of law at the University of Virginia. “Beyond that, it was a racist document, founded on white supremacy. It clearly needed updating and replacing.”
In 1968, Virginia Gov. Mills Godwin called a constitutional commission to rework the document and make it conform with present federal law, particularly around civil rights in education and voting. Commission members included luminaries such as former Gov. Colgate Darden, future U.S. Supreme Court Justice Lewis Powell Jr., civil rights icon Oliver Hill and Hardy Cross Dillard, who would become a judge on the International Court of Justice at the Hague.
“They were the decision makers and I was the facilitator,” says Howard, who was appointed to direct the commission.
Once the group produced a document, it went to the General Assembly, where Howard was made counsel to the legislature. Lawmakers made revisions and put the proposed constitution out for a 1970 voter referendum. By then, Linwood Holton had been elected governor, and he appointed Howard to run an advocacy campaign.
“I decided I would set out to do whatever I would do if I was organizing someone’s campaign for governor or senator,” Howard recalls. He bought bumper stickers and pins, as well as billboards and television advertising, and traveled across Virginia to make speeches, “from Big Stone Gap on one end to Onancock on the other.”
Virginians approved the revised constitution, with 72% of Virginians voting in favor of it. The new constitution took effect on July 1, 1971.
“We didn’t have the kind of opposition you would have today,” Howard says. “We didn’t have to deal with social media; today, misinformation would spread like a prairie fire.”
The 1971 Virginia Constitution addressed racism by stripping language that violated the 1965 Voting Rights Act and the Supreme Court’s 1954 Brown v. Board of Education ruling against school segregation. The new state constitution forbid discrimination on the basis of race, national origin and gender. It also cut the extraneous statutory detail from the previous version so that the 1971 constitution is roughly half the length of the 1902 constitution.
And it left plenty of room for lawmakers to operate atop that legal foundation.
“It didn’t make a difference to me as to how I operated,” says former Virginia Gov. L. Douglas Wilder, who was in his first term as a state senator when the document was passed by legislators and approved by voters. “The constitution says what the purpose of government is and what government can and should do. How that’s done is up to the legislature. That’s what’s so important today.”
The new state constitution is also relatively easy to amend. Doing so requires the General Assembly to pass a potential amendment in back-to-back years separated by a state election. Proposed amendments must be approved by Virginia voters. That keeps a steady stream of proposed amendments flowing as ballot measures, from narrowly focused tax exemptions to broad-ranging, fiercely fought provisions such as a 2006 amendment to ban gay marriage. The latter amendment was overturned by a 2015 U.S. Supreme Court ruling.
Last year, Virginia voters approved an amendment to make sweeping changes about how legislative districts are drawn after each decennial U.S. census.
“Virginia is one of the first states in our history where sitting legislators have effectively voted twice to take redistricting power out of their own hands,” says Rebecca Green, professor of practice at the William & Mary Law School. “Because we don’t have a direct democracy to amend the constitution with a popular vote, you couldn’t have a sweeping change as in other states where voters directly took power away from state legislators. Here, legislators had to be part of the solution.”
The process of amending the Virginia Constitution is always ongoing. Wilder, for example, would like to see it changed to allow state funding for private, historically Black colleges and universities — specifically Hampton University and Virginia Union University.
Howard argues that never-ending amendments are a crucial element of why the 1971 state constitution remains relevant even today.
“It’s a useful safety valve,” Howard says. “If something needs fixing, you can fix it without a general overhaul. You can argue, ‘It’s been 50 years, isn’t it time to rewrite?’ I think given the polarized state of Virginia, it would be a disaster, chaos. I think it wouldn’t work.”