Fifty years ago, Virginians voted to revise the state’s Jim Crow-era constitution, a colossal effort led by University of Virginia law professor A.E. Dick Howard.
As executive director of the Commission on Constitutional Revision, Howard led the successful referendum campaign for the new constitution’s ultimate ratification in 1971.
A UVa faculty member since 1964, Howard also spent two years as a law clerk for Justice Hugo L. Black, a giant of the U.S. Supreme Court, and was “at his elbow” when he wrote the opinion in the Prince Edward County case that held it was illegal for the county’s school board to resist the integration of public schools.
Given his law experience, he said it was a natural transition into teaching constitutional law and then into directing the constitutional revisions.
“The Commission on Constitutional Revision needed an executive director to help them turn their policy decisions into constitutional language and to write commentary on proposed changes,” Howard said. “When they approached me about taking on the job, I accepted without hesitation.”
Much of the commission’s work was done in Charlottesville due to the UVa law school’s library and staffing, according to Howard. Several members of the commission also had UVa connections, including the law school’s dean, Harry C. Dillard, who later sat on the World Court at the Hague; and Colgate Darden, a former Virginia governor and president of UVa.
By the 1960s, change was in the air. Howard said many wanted to update the existing constitution, which was steeped in white supremacy.
“Virginia in the 1960s was vastly changed from the way things had been in 1902. The Byrd Machine was losing its grip,” he said. “Virginia had become a two-party state. It was becoming obvious that the 1902 Constitution had to be revised.”
The convention that met in 1901-1902 to draft the previous constitution set out to turn back the clock on Reconstruction, Howard said, and, to that end, the delegates agreed on devices such as the poll tax and complicated voter registration procedures, all designed to eliminate as many Black Virginians as possible from the rolls. Black voter registration plummeted, many poor white voters were disenfranchised and segregated schools were mandated, he said.
However, he said that by the 1960s a series of important decisions had come down from the U.S. Supreme Court — mandating one person-one vote in legislative reapportionment and declaring the poll tax unconstitutional. These decisions, paired with changes in federal legislation, such as the Voting Rights Act of 1965, created a political environment ripe for change.
The Commission on Constitutional Revision included among its members some of Virginia’s top talent, Howard said. In addition to Dillard and Darden, members included Lewis F. Powell Jr., who was soon thereafter appointed to the U.S. Supreme Court; and Oliver Hill, Virginia’s preeminent civil rights lawyer.
Given a tight deadline to work on, the commission divided into five subcommittees, each with two members, Howard said. Each subcommittee had counsel, some of them from various law school faculties in Virginia.
The goal was simple: The revisers sought to create a modern constitution, one responsive to evolving needs, Howard said.
“I was impressed with how seriously the members of the revision commission took their assigned task. They debated with care and commitment,” Howard said. “One of my jobs, as I saw it, was to help the commissioners think not only about specific issues, but also about constitutional design more generally — the purposes and principles that should animate a constitution.”
A key goal of the revision, what would be the document’s sixth, was to try to root out the racism of 1902 and the later taint of Massive Resistance, Howard said, thus, the new constitution placed a mandate on the General Assembly to provide for a public school system for every school-age Virginian.
The revised constitution mandated localities to provide their share of school funding, and for the first time the constitution included an anti-discrimination clause.
After serving as the commission’s executive director, Howard was appointed by the General Assembly as counsel to give lawmakers a hand as they reviewed and acted on the commission’s recommendations.
Despite having no particular experience in politics, Howard was asked by then-Gov. Linwood Holton to organize an approval campaign. Funded entirely with private contributions and working out of a borrowed office in Richmond, Howard said he did what he imagined someone running a campaign for statewide office would do.
A statewide steering committee was created, campaign committees were organized at the local level, leaflets were printed explaining the proposed constitution and all kinds of campaign paraphernalia was created.
“I took leave of absence from the law school and traveled the length and breadth of Virginia, giving talks to Rotary clubs, Black churches, civic associations — to anyone who wanted to know about the new constitution,” Howard said.
The climate in 1970 was uncertain, he said, and a three-way Senate race and early versions of conspiracy theories complicated the campaign.
“In Southside Virginia, opponents of the proposed constitution put out the word that the constitution would bring school busing — a hot issue in the wake of Brown v. Board of Education. Some opponents said that the constitution would bring an era of big government generally,” Howard said. “At one meeting in Colonial Heights, one gentleman insisted that the proposed constitution could not have been written in Virginia, that it must have been crafted in Beijing or Moscow.”
However, none of these arguments held much sway and when the votes were counted, the new constitution was approved with 72% in favor. According to Howard, in some places, such as Fairfax County and Lexington, the “yes” votes were as high as 85%, and only a few localities, all of them on the North Carolina line, voted “no.”
Now, 50 years after the vote, Howard said he does see some parallels between the political climate of 1970 and that of 2020, including efforts to remove Confederate monuments, most of which were erected in the same era that produced the 1902 constitution.
“The revisers who produced the 1971 constitution were taking the first steps — hardly the final steps — toward a more just and equitable society,” he said. “That is why they put so much emphasis on equity and quality in public education. That is why they banned government discrimination on the basis of race, color, national origin, or sex.”
Progress on racial issues requires, of course, many actions from the government and citizens, Howard said.
“Virginia’s constitution cannot, by any means, be the full answer,” he said. “But it sets the tone and furnishes the foundation for a better future.”
As Virginia nears the start of the 2021 General Assembly session, the state constitution has been making headlines.
In November, voters approved an amendment to the constitution that will create the Virginia Redistricting Commission, a 16-member board tasked with proposing plans for redrawing districts for the U.S. House of Representatives and the Virginia House of Delegates and Senate.
Per the state constitution, the odd-numbered 2021 session will be shorter, lasting 30 days, as opposed to the 60-day session in even-numbered years. Though extended to 45 days in every session since 1971, in recent weeks Republican legislators have expressed an unwillingness to vote for an extension.