The Political Community in Virginia

On May 15, 1776, the Fifth Virginia Convention, meeting in Williamsburg, instructed the colony’s delegates to the Continental Congress in Philadelphia to declare the “United Colonies” to be free and independent states.

On the same day, convention members set to work on a declaration of rights and plan of government for Virginia. From that time on, provisions on voting and representation became recurring themes as lawmakers debated the first Virginia Constitution and its subsequent revisions.

Even as the ink on the initial document was drying, criticism and calls for change had already begun. Power was to be “vested in, and consequently derived from, the people.”

But what people?

In a process that began with the nation’s founding, policies of both inclusion and exclusion have been added to — and discarded from — the Virginia Constitution. In fact, the document has been formally revised six times. The last revision took effect 50 years ago in 1971, after sweeping calls from across the nation for social change in the 1960s.

The authors of Virginia’s first constitution had ready models in British constitutionalism to draw on, including Magna Carta and England’s 1689 Bill of Rights.

The Virginia Declaration of Rights, however, was far more than a restatement of the mother country’s principles. No Englishman could, for example, have maintained that the British constitution was founded on the averment that “all power is vested in, and consequently derived from, the people,” as Virginia’s document did.

Steeped in the traditions of natural law, Virginia’s Declaration of Rights posits that “all men are by nature equally free and independent, and have certain inherent rights.” Emphasizing the welfare of the community, it says that government is instituted “for the common benefit, protection, and security of the people, nation or community.”

The naysaying began almost immediately.

When the Virginia Constitution of 1776 was being adopted in Williamsburg, Thomas Jefferson was in Philadelphia for the meeting of the Continental Congress. Jefferson was aware of the convention’s handicraft, and he was a sharp critic — especially on the constitution’s provisions on suffrage and on apportionment of seats in the General Assembly. His indictment of the franchise provisions was telling: “The majority of the men in the State, who pay and fight for its support, are unrepresented in the legislature.”

His complaint about legislative malapportionment was equally sharp: “Among those who share the representation, the shares are very unequal. Thus the county of Warwick, with only one hundred fighting men, has an equal representation with the county of Loudon, which has 1746.”

Reformers, Jefferson among them, found the road to constitutional change a long and arduous one. Sectional pressures were building. Western regions of the state were growing in population and prosperity while eastern counties were suffering from soil exhaustion and economic decline. From the early years of the 19th century, hardly a session of the General Assembly went by without efforts to call a convention to revise the state’s constitution.

Finally, in 1829, a constitutional convention met in Richmond. Its remarkable assemblage included two former presidents, James Madison and James Monroe, and a future president, John Tyler. Also present were Chief Justice John Marshall, future Supreme Court Justice Philip Barbour, and any number of past, present, and future U.S. senators and representatives. Jefferson scholar Merrill Peterson called the convention “the last of the great constituent assemblies in American history.”

Equitable representation, a wider franchise, and popular election of the governor — these were among the demands of the reformers. John M. Mason of Frederick County declared that other objects desired by those who had called for the convention were “as a feather in the scale” compared to the overriding object “to place the Government where of right it ought to be, in the hands of the majority of the political community.”

What some saw as reform others saw as destructive of ancient values. The unrivaled orator, John Randolph of Roanoke, lashed out against the “lust of innovation.” He wanted no part of popular sovereignty and majority rule: “I would not live under King Numbers. I would not be his steward — nor make him my task-master.”

At first, prospects for reform looked favorable. But as the weeks passed, the momentum for reform weakened. Reformers wanted universal white manhood suffrage or, at the least, the vote for all who paid taxes. Conservatives defended the existing freehold franchise. Benjamin Watkins Leigh, a delegate from Chesterfield County, declared that “in Virginia, the great mass of intelligence and virtue resides in that stout and generous yeomanry, the freeholders of this land.”

A motion to give the vote to free white male taxpaying citizens failed by a tie vote. The convention’s final action — adding householders to the franchise — fell well short of being universal suffrage. Similarly, debate over the proper basis for representation in the General Assembly resulted in a compromise that shifted some seats to the western parts of the state but left the east in the majority in both houses.

Two decades later, much of what the reformers at the 1829–1830 convention sought was achieved when another convention met. In the Virginia Constitution of 1851, representation was brought more nearly in line with population. The suffrage was extended to free white males over 21 years of age with two years’ residence in the state. And, 75 years after the Revolution, the people were to be trusted to elect the governor.

Democracy was, of course, still incomplete. Blacks, whether in the bonds of slavery or not, could not vote. Nor could women. After the Civil War ended in 1865, Reconstruction brought the franchise to persons of color. No longer would Virginia or any other state be free to decide, without hindrance, who would get the ballot. The 15th Amendment to the U.S. Constitution made that clear. The right to vote was not to be denied or abridged on account of “race, color, or previous condition of servitude.”

Reconstruction brought another revision to Virginia’s constitution. As a condition of readmission to the Union, the former Confederate states were obliged to ratify the 14th Amendment, which granted citizenship to anyone born or naturalized in the United States. They also were required to adopt a new, progressive constitution. In Virginia, that was the constitution of 1870, which included provisions prohibiting slavery and granting certain property rights to children of enslaved parents who had been forbidden to marry.

Reconstruction ended with the withdrawal of the last federal troops from the South in 1877. Conservative Democrats, labeled Bourbon Democrats by critics for their old-fashioned views, took over the reins of power in state after state, rolling back programs that Republican state governments had initiated. Soon they turned their attention to the franchise.

Starting with Mississippi in 1890, Southern state constitutions were rewritten to achieve massive disenfranchisement of Blacks. Devices included the poll tax, literacy tests, grandfather clauses (giving a free pass to descendants of Confederate veterans), and provisions allowing officials to refuse registration to an applicant who could not interpret a randomly chosen provision of the state constitution.

Virginia joined the parade when delegates gathered for a constitutional convention in Richmond in 1901. From the outset, they made clear that they were determined to rid Virginia of the progressive 1870 constitution, denounced by one delegate as having been adopted “under the very shadow of a bayonet.” Its drafters, added another delegate, were composed of “aliens to the Commonwealth and newly emancipated slaves.”

The delegates were equally caustic about the 15th Amendment. In his opening remarks to the convention, the body’s president, John Goode Jr., called it “a crime against civilization and Christianity” that forced the people of the South “to submit to universal negro suffrage.” Another delegate saw the amendment as an act of revenge against the South: “The ballot was given to the negro in hot and vengeful haste, not to uplift and protect him, but to degrade and humiliate us.”

The delegates in Richmond had no doubt that the reins of government belonged in the hands of white men. “The Anglo-Saxon,” said one delegate, “represents the very aristocracy of the races.” Another delegate declared, to great applause, that he “would be recreant to [his] sense of duty” if he failed “to secure the means of white supremacy in the conduct of the affairs of this government and of every city and county in the Commonwealth.”

Theology and history were invoked as justification. In his opening speech, Goode declared that Blacks had no education or experience with the duties of citizenship. “The all powerful Creator, for some wise purpose, had made him inferior to the white man, and ever since the dawn of history...he had occupied a position of inferiority,” he said.

The path to white supremacy was clear: Remove Black voters from Virginia politics. Indeed, no one at the convention doubted that its core purpose was black disenfranchisement. A Southwestern Virginia politician made that clear in a letter to delegate Allen Caperton Braxton: “Thousands of people in the State would never have voted for the Convention had they not believed that, by doing so, the negro would be eliminated as an element in our state politics.”

Some delegates went even further. Claggett B. Jones wanted the ballot restricted to “the respectable element of a community.” He refused “[to turn] my people over to a rabble.” Another delegate agreed that giving the vote to Blacks was not the only problem. “It is the depraved and incompetent men of our own race, who have nothing at stake in government.” Colleague George D. Wise asserted that suffrage was a force for good “when exercised by intelligent citizens,” but it was dangerous “in the hands of the ignorant, the depraved and the vicious.”

As for Blacks, what place did the delegates of 1901 see persons of color having in the “community” conceived in Virginia’s Declaration of Rights? There was “but one spot within the Commonwealth of Virginia where he can make himself useful,” delegate Walter Allen Watson said. “That spot is in the corn field and on the tobacco ground as an agricultural laborer.”

Where the question of public education was concerned, spending money to educate Blacks, many delegates maintained, was both wasteful and harmful. “This man in black,” Watson said, “is absolutely incapable of cultivation or useful advancement.” Brunswick County delegate Robert Turnbull declared the evils of educating Blacks. Education, he said, had made them vagabonds: “We have...unfitted them for what God Almighty intended them to be and...they are too proud to work on the farm and unfit for anything else.”

The convention had little reason to worry that the U.S. Supreme Court would stand in their way. That tribunal had rejected such a challenge to Mississippi’s 1890 constitution. Thus a prominent member of the convention in Richmond, Carter Glass, the owner and editor of the Lynchburg News, declared that his colleagues could move ahead with their “primary purpose” — “to eliminate every negro of whom we could be rid without running counter to the prohibition of the Federal Constitution.”

The poll tax was put in place as one impediment. Another was a formidable registration requirement. Property owners and those who had served in either the U.S. or Confederate army or navy (and their sons) were entitled to register to vote. Otherwise, registration officials could require an applicant to read any section of the constitution (chosen by the registrar) and to give a “reasonable explanation of the same.” Taken together, the obstacles to voting were such that one delegate, with unalloyed confidence, predicted that the barriers “will be too great for the negro.”

Unwilling to take the chance that the existing electorate (many of whom would be excluded from the franchise) might not approve the proposed constitution, the convention simply promulgated it. It took effect without a vote of the people. Its framers’ predictions about the franchise proved accurate. After 1902, fewer than 5% of all registered voters were Black, where in 1867 almost half had been Black. Poor whites, as well, were disqualified in large numbers.

Until 1902, the thrust of constitutional change in Virginia had been to make the political community more inclusive. The 1902 constitution moved dramatically in the opposite direction. In 1920, women won access to the ballot as a result of a federal constitutional amendment. Otherwise, Virginia lived under the shadow of the 1902 constitution for more than half a century.

Major changes came in the 1960s with the Supreme Court’s one-person, one-vote decree, its abolition of the poll tax, and the enactment by Congress of the Voting Rights Act. Virginians soon took their own constitution in a new direction. A commission appointed by Gov. Mills E. Godwin Jr. drafted a revised constitution that, with further adjustments by the General Assembly and the voters’ approval, took effect on July 1, 1971.

The 1971 constitution places Virginia on a markedly different path from that of its predecessor. Governmental discrimination on the basis of race, color, or sex is forbidden. Education as a fundamental right is added to the rights first articulated in the founding era. The General Assembly is mandated to provide public schools for all children of school age in the commonwealth — a move recalling the era of “massive resistance,” when Prince Edward County closed its schools altogether in an attempt to block integration. The mechanisms for quality education are set out in the constitution’s education article.

Both by mandates and aspirations, today’s Virginia Constitution seeks to define the political community in an effort to make fairness, justice, and inclusiveness signposts on the path to achieving government, in the language of 1776, “for the common benefit.” 

A.E. Dick Howard is the Warner-Booker Distinguished Professor of Law at the University of Virginia School of Law, where he has been a faculty member since 1964. A constitutional scholar, he was an architect of the revision of the Virginia Constitution that took effect in 1971, serving as the executive director of the Commission on Constitutional Revision and directing the successful referendum campaign for the revision.