|“I WAS EXCEPTIONALLY FORTUNATE to have the chance to work at all three major stages of making a constitution.”|
Virginia's Constitutional Experience
Touches the World
How did the American Constitution become the wellspring of a constitutional movement that enveloped the world?
• Cullen Couch
Virginia has long been known as the intellectual home of the founding of the nation. The Commonwealth’s political philosophers continue to be exhaustively documented and analyzed in the nation’s history books. What is less discussed is how the American Constitution, the world’s first written document of its kind—and one to which the collective intellects of some very remarkable Virginians made a central contribution—became the wellspring of a constitutional movement that enveloped the world in the late twentieth century.
An interesting turn of events in 1968 put A.E. Dick Howard ’61, the White Burkett Miller Professor of Law and Public Affairs at the Law School, in a front row seat on many of these developments. In that year, Howard was asked to serve as Executive Director of a commission Virginia Governor Mills Godwin ’38 had called to rewrite the state’s constitution. As a young constitutional law professor, Howard had, of course, studied the U.S. Constitution in depth and had written scholarly analyses of it. Now, with his new appointment, he would put that expertise to practical effect and, in the process, establish himself as an expert in the tactics and strategies of creating a modern, working constitutional document. It was the beginning of a scholarly ride that would put another Virginian in a new century’s transitional moment of world history.
Revising a Racist Document
|THE ’60s BEGAN WITH THE LAST GASP of the old order, of massive resistance, and closed with the harbingers of a new age, a really wonderful moment in Virginia history|
Virginia ’s 1902 constitution had been written at the height of a white supremacy movement that followed the Civil War. It was an ultra-populist, racist document that had constricted the better natures of the Commonwealth since its inception. It was also long and unnecessarily detailed, burdening the state’s ability to do its job in even the most mundane matters.
Governor Godwin, the only man to have served two gubernatorial terms in the Commonwealth, asserted his leadership and called for constitutional revision. He picked a commission of forward-thinking citizens who would drive the effort: Law School Dean Hardy Cross Dillard ’27, former governors Albertis Harrison and Colgate Darden, civil rights lawyer Oliver Hill (noteworthy for his work with Thurgood Marshall on the Brown decision), Richmond attorney Lewis F. Powell, Jr. (later to join the United States Supreme Court), and Ted Dalton, Virginia ’s original “Mr. Republican.” As Executive Director of the commission, Howard would work closely with these men as they grappled with the legal and cultural issues of an American society in deep flux.
“The ’60s began with the last gasp of the old order, of massive resistance, and closed with the harbingers of a new age, a really wonderful moment in Virginia history,” said Howard. “One of the reasons the commission worked so well is that they sensed that Virginians had an opportunity to do something historic, to chart a course for the future of the Commonwealth notwithstanding all the social unrest going on throughout the country as fires burned in many cities. They had the perspective to see these problems as the very time to think about our future.”
Draftsmanship and Salesmanship
Howard is an unfailingly gracious man whose good humor and enthusiastic intellectualism made him well-suited for his new role. As Executive Director, he had to be at times workhorse, tactician, and diplomat as he put into draft form the principles that the Commission had agreed upon.
“My job was to lay things on the table,” said Howard. “They were the policymakers and I was the draftsman, like the architect of a house who knows what you want the house to look like and then works up a plan that does that. I saw it as my job to put on the table issues that they ought to think about; drafting choices, different language for various paths. They had the political sense—they knew the legislature and the legislators—to intuit the points at which you might push the legislature too far.”
After working with the Commission to draft the initial document, Howard served as Counsel to the General Assembly in its special session to approve the new constitution. Governor Linwood Holton (who had succeeded Godwin as governor) then asked Howard to run the referendum campaign to get it approved by voters statewide. The campaign was wildly successful (72 percent voted for it).
“I was exceptionally fortunate to have the chance to work at all three major stages of making a constitution: the drafting stage with the commission, the legislative approval stage with the General Assembly, and then finally the pure politics of selling the constitution at referendum,” said Howard.
Sharing the Virginia Experience Internationally
The success of the Virginia constitutional effort raised Howard’s profile in other states and, eventually, in the countries of Central Europe and other countries seeking to write new constitutions. For Howard, it was a matter of a constitutional scholar being in the right place at the right time.
“A couple of tracks began to develop,” said Howard. “First, I was asked by revisors in other states to advise them on constitutional revision. Then, a little further down the pike, I began to work with other countries. The Virginia experience was quite helpful. The countries with which I worked needed advice, not only on how to do the drafting, but also on how to get it through the political process.
“The marvelous thing to me was to find out how useful the Virginia experience was in other countries. You would expect to be able to go to other states and use that experience. But it would not have occurred to me that what I had learned in Virginia would prove so helpful to me working abroad.”
The countries in the Soviet bloc had no tradition of free choice. Their communist constitutions “looked good,” according to Howard, “but they were Potemkin villages: facades without reality. However bright and well-informed the drafters, until the collapse of communism, they simply had not been involved in the direct process of writing an authentic constitution.”
Howard would engage drafters in thinking about the basics of good constitution making: brevity, clarity, organization, and a sense of purpose, while ensuring that the document reflects the distinctive culture and traditions of the country. He encouraged the revisers to mull their own traditions, and then what other countries might do, to come up with a proper blend.
“I invited them to think about why different systems are the way they are,” he recalls. “For example, if you want to choose between a U.S. Supreme Court and a German constitutional court model, why are those two courts the way they are? What are the relative advantages and disadvantages? I wanted to push their sense of having to make choices and then the implications of those choices. The operative element was their own culture, their own people, their own aspirations.”
In working with so many different cultures and political systems, Howard believes that all constitutional drafters need to think about and incorporate into their document some version of the major principles of the U.S. Constitution—federalism, separation of powers, checks and balances, and an independent judiciary.
“Federalism is perhaps the most original American contribution to constitutionalism. Judicial review is probably the most powerful,” says Howard. “The guiding principle in Marbury is an idea that has spread around the world. At the same time, structural arrangements are as important in defending liberty as rights in the judicial sense. That’s what Madison thought; federalism and separation of powers were going to be the body of the constitution, and the distribution of power would be a bulwark for liberty.”
Howard also found that federalism means one thing in countries where the political units are geographical as in the United States, Canada, and Australia. It means something entirely different in a country with important national, ethnic, religious, or linguistic minorities and the dynamics that arise from them, such as in the countries of Central Europe.
Howard cites the former Czechoslovakia as a case in point. It proved relatively straightforward for the drafters to shape a bill of rights, but working out the division of authority between the central government and the two republics proved to “be the fatal impediment,” said Howard. “They simply couldn’t agree on that. The Slovaks considered themselves a sovereign nation, as though they were engaged in treaty-making rather than constitution making.”
The World’s American Ancestor
Howard sees the American constitutional experience to be at once profound in breadth but unique in application.
“Working around the world has made me aware of the wonderfully rich diversity of constitutional arrangements. Although the American Constitution is but one of many, it lies at the heart of this international experience. Certainly the American example, as admired as it is in many parts of the world, is not an immediate model that others can take and copy. No one thinks that. But our Constitution was the first modern, written constitution among the nations of the world and the ultimate ancestor of all present day constitutions.”