50 Years After Leading Constitution’s Revision, Professor Reflects on Changes

When Virginia lawmakers wanted to overhaul its Jim Crow-era constitution 50 years ago, Professor A. E. Dick Howard ’61 of the University of Virginia School of Law answered the call.

He served as executive director of the Commission on Constitutional Revision and directed the successful referendum campaign for the new constitution’s ratification, which took effect in 1971.

Howard has been counsel to the General Assembly of Virginia and a consultant to state and federal bodies, including the U.S. Senate Judiciary Committee. From 1982-86, he served as counselor to the governor of Virginia, and he chaired Virginia’s Commission on the Bicentennial of the United States Constitution.

In 2013, the University recognized Howard with its Thomas Jefferson Award — the highest honor given to faculty members at the University. In 2007, the Richmond Times-Dispatch and the Library of Virginia included Howard on their list of the “greatest Virginians” of the 20th century.

Howard talked to UVA Law about how the 1971 constitution took shape and outlined constitutional questions Virginians face in the future.

Why did Virginia’s leaders decide that the constitution should be revised?

The need for revision had its roots in the Civil War and Reconstruction period. After the Civil War, each former Confederate state, to be readmitted to the Union, had to write a new state constitution. Virginia’s 1870 constitution was a progressive document but one which conservative Virginians resented as having been imposed on them. When Reconstruction ended, each of the Southern states, including Virginia, set out to scrap the postwar constitutions.

Virginia’s post-Reconstruction convention met in 1901-02. The delegates at that convention acted to make white supremacy the core object of Virginia’s constitution. To that end, they set out to disenfranchise as many Black Virginians as they possibly could. They employed such devices as the poll tax and complicated registration requirements. The result was excising most Black voters (and many poor white voters as well) from the rolls.

Fast forward to the 1960s. That turbulent decade saw the assassination of John F. Kennedy, Robert F. Kennedy and Martin Luther King Jr. It saw protests and destruction in major American cities. Moreover, major legal changes were afoot. The Supreme Court decreed one person, one vote in the drawing of legislative districts. Congress enacted the Voting Rights Act of 1965, coverage of which included Virginia.

Virginia itself was changing. Largely rural in 1902, Virginia was fast urbanizing. Long in the grip of the Byrd Machine [the rural political machine led by former governor and U.S. Senator Harry F. Byrd, a conservative Democrat], Virginia was becoming a two-party state. The poll tax had been declared unconstitutional. Massive resistance to school desegregation had brought a Supreme Court decision ordering Prince Edward County to reopen its schools. The constitutional shoe cobbled in 1902 clearly no longer fit the Commonwealth.

Commission on Constitutional Revision members (seated) Alexander M. Harman Jr., Colgate W. Darden, Albertis S. Harrison, Davis Y. Paschall, Ted Dalton, Oliver W. Hill; and (standing) J. Sloan Kuykendall, Albert V. Bryan Jr., Lewis F. Powell Jr., Hardy C. Dillard, George M. Cochran and A. E. Dick Howard. UVA Law Special Collections

How did Virginia go about revising the constitution?

In 1968, Governor Mills E. Godwin, Jr., called on the General Assembly to provide for the creation of a Commission on Constitutional Revision. That commission included some remarkable members. Among them were Lewis F. Powell Jr., later to sit on the U.S. Supreme Court; Virginia’s leading civil rights attorney, Oliver Hill; former Governor Colgate Darden; and the Law School’s dean, Hardy C. Dillard. They called on me to serve as their executive director, to assist in the drafting process.

The commission presented its report to the General Assembly in January 1969. I served as counsel to the General Assembly during the special session in 1969 and at the regular session in 1970. After the legislators had made further revisions to the commission’s draft, the proposed constitution went on the ballot in November 1970. Governor Linwood Holton asked me to direct the referendum campaign. Democrats, Republicans and Byrd independents aided in the campaign. The new constitution was adopted by a vote of 72%.

What were the new constitution’s goals? What are some of its achievements?

The members of the revision commission set out to repudiate the racist assumptions that tainted the 1902 constitution. Looking to the future, the revisers were especially concerned to place public education on a sound and progressive footing. The new constitution mandates the General Assembly to provide for a public school system for every school-age Virginian. Localities are under a constitutional mandate to provide their share of school funding under a formula to be crafted by the General Assembly — no more Prince Edward counties. The Board of Education is tasked with devising Standards of Quality, with the General Assembly having final authority. Drawing on Thomas Jefferson’s Bill for the More General Diffusion of Knowledge, the revisers put education in Virginia’s Bill of Rights, alongside familiar rights such as freedom of religion and of expression.

Other important provisions include the right to be free from government discrimination on the basis of race, color, national origin or sex. The constitution has an article on environmental quality, a subject not addressed in the 1902 constitution. The General Assembly now meets in annual sessions; the previous constitution had called for biennial meetings.

More generally, the 1971 constitution is more responsive to the needs of modern society than was its predecessor. Not only was the 1902 constitution hobbled by its racist origins, it was drafted during a time when state constitutions tended to excessive length and detail. Many of their provisions belonged in the statute books, not in a constitution. Virginia’s 1971 constitution is about half the length of that drafted in 1902.

What are today’s problems? If you could make changes in the constitution, what would you change?

Anchoring democratic government should be a core purpose of any constitution. Our state constitution, as interpreted by the Supreme Court of Virginia, makes it too difficult to restore the voting rights of former felons. Once a felon has been restored to civil society, he or she should be on the road to being a full-fledged citizen, in particular enjoying the right to vote.

Another stain on democracy is partisan gerrymandering. The drafters of the 1971 constitution provided that legislative districts must be compact and contiguous. Unfortunately, in reviewing challenges to redistricting plans, Virginia’s high court has been excessively deferential to the legislature. One understands courts’ reluctance to intervene in a process which is so political, but the constitutional command of compactness and contiguity has not been sufficiently enforced. This problem has been addressed to some extent by the amendment, approved in November’s election, that created a redistricting commission made up of citizens and legislators. We shall have to wait and see whether this remedy proves adequate to the need.

Other questions invite our attention. Virginia is unique among the 50 states in not allowing the governor to seek a consecutive term. Has the time come to abandon this limitation? Virginia still adheres to Dillon’s rule, which requires that counties and cities only wield powers explicitly authorized to them by the state. Would a Jeffersonian belief in government at the grassroots call for being rid of Dillon’s rule? The constitution’s article on environmental quality, clearly laying down public policy for the Commonwealth, has become, through judicial interpretation, more nearly advice to government officials. Can teeth be put into the constitutional language?

Thomas Jefferson famously called for each generation to consider the extent to which a constitution serves the needs of its own time. That imperative needs to be measured against the importance of guarding against importune and unreflective constitutional change. I consider Virginia to have been well served by the likes of Lewis Powell and Oliver Hill. Like the framers of 1787, they have handed us a good constitution. Mulling its achievements and shortcomings offers an opportunity for an exercise in self-government by a free people.