Virginia Constitution Research Articles

Felony Disenfranchisement in Virginia: How the Legal Precedent of Virginia's Constitution is Excluding the Formerly Incarcerated

Felony Disenfranchisement in Virginia: How the Legal Precedent of Virginia's Constitution is Excluding the Formerly Incarcerated

Virginia’s Second Amendment Sanctuaries: Do They Have Legal Effect?

In response to draconian gun-ban bills pending in the General Assembly, in 2019-20 nearly all Virginia counties and many cities declared themselves “Second Amendment sanctuaries” or otherwise passed resolutions opposing infringement on the right to keep and bear arms. The Virginia Attorney General opined that this response has “no legal effect” and that any such laws must be enforced and obeyed without question. However, the sanctuary resolutions do constitute exercise of the right to petition. Moreover, local officials have an obligation not to enforce laws of questionable constitutionality that have not been upheld by the courts. This Article argues that the proposed gun bans are unconstitutional infringements on the right to keep and bear arms. That is clear from the constitutional text, the original understanding, and decisions of the U.S. Supreme Court and the Virginia courts. Moreover, local officials have authority to apply scarce resources to combat violent crime and other crimes that have actual victims. Prosecutorial discretion is basic to our criminal justice system. Some Commonwealth’s Attorneys have a policy of not prosecuting marijuana crimes. The Attorney General himself repudiated a provision of the Virginia Constitution with which he disagreed. Enforcement of gun laws is also limited by due process rights and the prohibition on unreasonable searches and seizures. The firearm prohibitions that passed or are still pending in Virginia criminalize previously-lawful conduct rather than focus on violent criminals. In other jurisdictions where firearms have been banned or required to be registered, citizens have responded with low rates of compliance. Enactment of mala prohibita gun crimes makes criminals out of law-abiding citizens while distracting from actual crime.

Lynne Cheney. James Madison: A Life Reconsidered. New York: Viking, 2014. Pp. x+563. $36.00.David O. Stewart. Madison’s Gift: Five Partnerships That Built America. New York: Simon & Schuster, 2015. Pp. vii+419. $28.00.Joseph J. Ellis. The Quartet: Orchestrating the Second American Revolution, 1783–1789. New York: Knopf, 2015. Pp. xx+290. $27.95.

Lynne Cheney. James Madison: A Life Reconsidered. New York: Viking, 2014. Pp. x+563. $36.00.David O. Stewart. Madison’s Gift: Five Partnerships That Built America. New York: Simon & Schuster, 2015. Pp. vii+419. $28.00.Joseph J. Ellis. The Quartet: Orchestrating the Second American Revolution, 1783–1789. New York: Knopf, 2015. Pp. xx+290. $27.95.

James Madison: A Son of Virginia and a Founder of the Nation (review)

James Madison: A Son of Virginia and a Founder of the Nation. By Jeff Broadwater. (Chapel Hill: University of North Carolina Press, 2012. Pp. 266 + xviii. Cloth, $30.00.)Reviewed by Kevin R. C. GutzmanJeff Broadwater, author of a George Mason biography, here turns his attention to Mason's even more august Virginia contemporary. Recognizing that James Madison has been the object of numerous scholars' attention these past several decades, he begins by denying any intention to improve upon their work. Rather, he says he has focused on those aspects of Madison's life that are apt to be of the most enduring interest to the most readers (xv).Madison deserves attention, according to Broadwater, because he was second among the Founders only to George Washington in indispensability. Broadwater seemingly contradicts this evaluation in lamenting that many historians have found Madison's role in writing the U.S. Constitution and The Federalist far more significant than the rest of his life, including his two terms as a supposedly mediocre (xi).Broadwater will not focus, then, on Madison as constitution-writer. What he delivers instead is a brief, introductory biographical survey with particular attention to church-state relations, slavery, the Virginia Dynasty, and Dolley Madison's political role. Nearly one-third of the book's 210 pages are given over to an account of Madison's sixteen-year tenure first as Thomas Jefferson's secretary of state and subsequently as president in his own right.An appraisal of Broadwater's work may thus fairly ask both whether focusing on Madison's role as constitution-writer would be inappropriate and whether Broadwater proves Madison to have been something other than a mediocre president. In regard to the first, it seems that if we are to accept Broadwater's assertion that Madison ranks second to Washington, the reason must be Madison's leading role in convening the Philadelphia Convention, drafting the Constitution, and winning its ratification. One might therefore have wished for greater attention to this portion of Madison's career than Broadwater provides. So little interested is Broadwater in Madison's record as a constitutional draftsman that he says essentially nothing about the writing of the Virginia Constitution of 1776, the first written constitution adopted by the people's representatives in the history of the world, other than to note Madison's presence on the committee that drafted it.An even greater difficulty comes in squaring Broadwater's account of Madison's presidency with his implication that his subject somehow excelled the run of chief executives. Broadwater follows Ralph Ketcham in asserting that Madison's lack of Hamiltonian energy as a wartime president, his tendency to defer to Congress to a fault, amounted to republican (certainly Republican) virtue. True or false, this argument does not strike your reviewer as a case for Madison's excellence. A Jeffersonian appraisal must be that in implementing Congress's rather half-baked war policies without insinuating himself into a policymaking process the Constitution assigned to Congress, Madison acted precisely as a president ought. …

Benjamin Harrison Smith, Land Titles, and the West Virginia Constitution

Perhaps no single person in West Virginia’s history has been as influen tial in the creation of a legal framework to provide clear titles for land transfers as Benjamin Harrison Smith. This history of quieting land titles shows the primary role played by Smith, and provides a new interpretation of the impact of the 1862 and 1872 West Virginia Constitutional Conventions as they relate to waste and unappropriated land, delinquent land, and forfeited land. 1 The quieting of land titles refers to the process of settling ownership conflicts. It provides for clear and marketable title to land. Clear title to lands in western Virginia had been an ongoing problem since the eighteenthcentury land grants to large land companies such as the Ohio Company, the Greenbrier Company, and the Loyal Company. 2 This history of quieting land titles in West Virginia adds a new dimen sion to the established historical narrative of absentee landowner exploitation and the victimization of smaller local landowners. Who held title to the land was just as important to local businesses and farmers as it was to industrialists. The point for the current discussion is not the ills of absentee landowner exploitation, but rather to explain how the legal infrastructure was put in place that allowed land to be owned and developed without fear of a clouded title by some land patentee in Virginia, Maryland, or New York. However, the quieting of claims on land titles did become one of the foundations for local and regional economic development as West Virginia moved into the period of dramatic growth between the 1880s and the 1920s. The state’s economic development, especially its natural resources, has been largely predicated on the basis of property law as defined, interpreted, liti gated, and implemented by Smith, his contemporaries, and the major West Virginia law firms which followed. 3 Benjamin Harrison Smith was a central player in clarifying and reaffirming landowners’ rights in a time of westward expansion and poorly defined landownership laws. He was one of the first to formally address the

Dominion of Memories: Jefferson, Madison, and the Decline of Virginia , and: Mr. Jefferson’s Women (review)

Dominion of Memories: Jefferson, Madison, and Decline of Virginia. By Susan Dunn. (New York: Basic Books, 2007. Pp. 310. Cloth, $27.50.)Mr. Jefferson's Women. By Jon Kukla. (New York: Alfred A. Knopf, 2007. Pp. 304. Cloth, $26.95.)Reviewed by Leonard J. SadoskyDuring summer of 1816, Frederick County innkeeper and writer Samuel Kercheval solicited assistance of his fellow Virginian, former president Thomas Jefferson, in on-again, off-again project of attempting to revise Virginia's now forty-year-old state constitution. Among other things, Kercheval and his neighbors in Shenandoah Valley hoped to alter rules by which Virginia allotted seats in state legislature. Apportionment had not kept up with population growth, and Valley counties as well as counties to west found themselves severely underrepresented. Virginia's most dynamic localities thus found their voices muffled in all manner of discussions about future of their Commonwealth.Jefferson was sympathetic to western Virginians' plight, as unequal representation in any legislature was deeply antithetical to republican principles that he had held dear since eve of American Revolution. But errors in Virginia's constitution went deeper. Jefferson took opportunity of his correspondence with Kercheval to opine on several problems he saw in Commonwealth's constitutional system. In forty years since Americans had declared their independence and Virginians drafted their revolutionary constitution, understandings of republicanism had grown more sophisticated. In 1776, Jefferson noted, the abuses of monarchy had so much filled space of political contemplation, that we imagined everything republican which was not monarchical. In intervening decades, Jefferson and others had come to understand that unequal representation in legislature, as well as an executive and judiciary that were not responsible to people, would render a polity republican in name, but something less than republican in practice. Where then is our republicanism to be found? he asked Kercheval rhetorically. Not in our Constitution certainly, but merely in spirit of our people. Through their powers of election, petition, and protest, Virginia's citizens alone had kept Commonwealth relatively free from corruption.1Virginians had thus been lucky, in that they had a populace innately committed to principles of republicanism. But luck could run out. Thus Jefferson could support, albeit privately and passively, attempts to reform Virginia's constitution. In minds of western Virginians like Kercheval, luck had run out; they were not on equal footing with Commonwealth's eastern counties. As Susan Dunn recounts in Dominion of Memories, Kercheval's lobbying and Jefferson's commentary in 1816 were two of many mileposts on path between Virginia's revolutionary constitution of 1776 and constitutional convention of 18291830. Jefferson and his friend and ally James Madison spent their political careers attempting to reform political structure of Virginia both called for a new state constitutional convention at various times from late 1770s onward, and both put forward or supported legislation (such as those laws granting religious freedom or proposing publicly funded education) that sought to soften revolutionary order's rough edges and make promise of republicanism open to all. But all these reforms had been piecemeal at best, and call for constitutional reform went unheeded until three years after Jefferson's death, with calling of a constitutional convention in 1829. Although Jefferson had passed, Dunn tells her readers, ideas he had put forward drove program of reformers such as Philip Doddridge and William Campbell as they argued passionately and vociferously for a new apportionment of legislature and an expansion of franchise. …

The Bill of Rights and the Emerging Democracies

I INTRODUCTION The modern bill of rights bears little resemblance to the original American renditions, either in their genesis in the Virginia Constitution of 1776 or their promulgation in the first Ten Amendments to the United States Constitution in 1791. There is universal concurrence that the concept of human rights evolved during the subsequent two centuries. There is also universal agreement that America's Founding Fathers erred in omitting the guarantee of such rights from the 1787 Philadelphia Constitution. (1) This statement directs our attention to the longstanding phenomenon of the globalization of rights. Albert Blaustein observes that, of the two constitutions that soon followed the adoption of the United States Constitution of 1787, one--the Polish Constitution of May 3, 1791--followed the American model and contained no bill of rights, (2) while the other--the French Constitution of September 3, 1791--contained a bill of rights, incorporating the Declaration of the Rights of Man and Citizen of August 26, 1789. (3) By adopting the Declaration of Rights as part of their constitution, the French followed in the footsteps of Virginia (which had adopted the Virginia Declaration of Rights of July 12, 1776, more than a fortnight before the Virginia Constitution of 1776 was adopted), while the Bill of Rights was added to the United States Constitution as its first ten amendments on December 15, 1791, after the French had incorporated the Declaration of Rights into their constitution. Although the delegates to the federal convention did not think that the creation of a bill of rights was a necessary part of their work, several of the thirteen original American states already had formulated declarations of rights, and James Madison was able to prepare a draft bill of rights in short order during the First Congress. (4) Significantly, Madison understood the need for individuals to be protected against the excesses of a local majority, and unsuccessfully sought to include the following provision in the bill of rights: No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases. (5) Many years would pass before the substance of this provision would become part of American jurisprudence as a result of the adoption of the Civil War Amendments and twentieth century judicial decisions. (6) However, many other aspects of the federal constitution, as initially adopted, reflect both the framers' distrust of unfettered democracy and thei r preference for constitutionalism. Walter Murphy, in an important essay on the relationship of constitutionalism and democracy, has noted that [c]onstitutionalists tend to be more pessimistic about human nature, fearing that people are sufficiently clever to oppress without hurting themselves. (7) By the end of the eighteenth century, model bills of rights were being circulated throughout the globe; that phenomenon continues today, when the rights contained in these eighteenth century statements of rights have been codified, amplified, and multiplied, both in domestic constitutions and in regional and international declarations and covenants. Today, the influence of the American Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, (8) the German Basic Law, (9) the post-war French constitutions, (10) and the European Convention on Human Rights. (11) These documents, perhaps even more than the American Bill of Rights itself, have influenced recent developments in the emerging democracies of eastern and central Europe, which were under the communist regime from 1918, in the case of eastern Europe, or 1945, in the case of central Europe, until the regime began to break down in 1989. (12) In the twentieth century, the idea of basic fights became so widely accepted, at least in theory or rhetoric, and was subject to so many different usages, that it is difficult to locate a clear and consistent understanding of the concept. …

Revolution to Secession: Constitution Making in the Old Dominion.

Traces the development of Virginia's Constitution and looks at the forces shaping its change.

The Development of American State Constitutions

Americans have probably had more experience in constitution making and revision than the people of all other nations combined at least until the accession of new countries to nationhood during the past two decades.' This article is intended to summarize, necessarily in broad strokes, how the contents of the states' basic laws, as well as the procedures involved in their drafting and revision, have been adapted to the changing needs and circumstances of a rapidly growing nation. The first part provides a brief general overview of the amount of constitution making in the states. In the second section salient developments, both substantive and procedural, are summarized by major time periods in the states' political development. Special attention is given in the third part to present constitutions-their general features, methods of change, and substantive trends, with particular emphasis on developments since 1965. The final section provides some assessments and perspectives. Since 1776, the fifty states have operated under no fewer than 145 constitutions, as shown in table 1. Forty-nine of the 145 constitutions were promulgated by the constitution-making bodies and became effective without submission to the voters. It is noteworthy that twenty-three of the promulgated documents, or almost half, antedate 1800 and include most of the constitutions of the original states. Promulgation of constitutions without a popular referendum continued into the nineteenth century. Significantly, however, only seven documents that became operative after the Civil War were not submitted to the electorate, and only three of these since 1900-two in Louisiana (1913 and 1921) and the 1902 Virginia Constitution.

Commentaries on the Constitution of Virginia. 2 Volumes. By A. E. Dick Howard. (Charlottesville: The University Press of Virginia, 1974. Vol. I: Pp. xxviii, 1–558; Vol. II: Pp. xvi, 559–1208. $25.00, set.)

Commentaries on the Constitution of Virginia. 2 Volumes. By A. E. Dick Howard. (Charlottesville: The University Press of Virginia, 1974. Vol. I: Pp. xxviii, 1–558; Vol. II: Pp. xvi, 559–1208. $25.00, set.)

Commentaries on the Constitution of Virginia

Commentaries on the Constitution of Virginia

The Fires of Jubilee: Nat Turner's Fierce Rebellion (review)

book reviews359 letters to Democratic party figures whose own papers are scattered . Included here also are convenient pieces of the Congressional Globe with Davis's speeches on Oregon settlers, Texas debts, and war measures, and citizens' complaints about land claims in numbers that suggest something of the socio-legal confusion of early Mississippi. There are unexpected items of interest in the volume— a few newspaper accounts of Democratic meetings are clever enough to qualify as southwestern humor; the several biting exchanges in the House between Davis and Andrew Johnson, which no doubt Davis later regretted, are witty and revealing of class differences in the Old South. Researchers in Mississippi political history will find the well indexed volume, of special value for the hundreds of secondary personalities identified in it, and for the several editorial notes that help clarify state issues. Mcintosh and his staff have produced what is for the most part a model of exceedingly thorough work. Yet such exceeding thoroughness makes us a bit impatient. The first document in this volume—a brief business message that Davis sent his brother from a steamboat—receives, for example, four pages of somewhat tedious annotation. Elsewhere there are disgressions on lacunae, unnecessarily exhaustive histories of crossroads communities , a blow-by-blow description of a streetlight (p. 252), and abundant information of most value to steamboat buffs. Abbreviated notes in these and similar cases would have satisfied most historians and helped to keep the cost of the volume within bounds. Over three years in preparation, uncovering nothing that will call for a reconsideration of Davis and containing much material that is already published, this volume simply takes too long to do what it does. While these years of first political successes and remarriage are certainly important ones, the best is yet to come. Should it take proportionate scholarly effort to bring us the papers of Davis's later, far more eventful years in public life, historians are in for a long wait. Davis would find the second volume of his collected papers altogether pleasing. But then he was a vain man, who stayed up until two and three at night fussing over details. Robert J. Brugger University of Virginia The Fires of Jubilee: Nat Turner's Fierce Rebellion. By Stephen B. Oates. (New York: Harper & Row, 1975. Pp. xiii, 189. $7.95.) In 1900 William S. Drewry published the first scholarly account of Nat Turner's rebellion and declared that the abolitionist movement was the chief cause of that tragedy. Drewry relatively ne- 360CIVIL WAR HISTORY glected the other factor stressed by Virginians in 1831: wild, emotional, religious enthusiasm. Today it is a commonplace, as it was not in Drewry's time, that slave rebellions are a characteristic of slavery itself. Negro uprisings punctuated colonial history, before the anti-slavery movement existed. What is unusual about the antebellum period in the United States is that slave rebellions were so scarce; what is especially unusual about Nat Turner is not that he acted on his conviction that slavery was wrong, but that he reduced his already slender chances of success by systematically butchering the families in his immediate neighborhood. Today this might be interpreted as an extreme example of "expressive violence " or "black rage." But Nat Turner's killings were too purposeful and thorough to be an outburst of pathological feelings: he clearly saw himself as an agent of God's wrath, an instrument of Divine Vengeance. Either he was right, or he was one of the most powerful and original religious fanatics in American history. Oates' new book, like those of Drewry and Herbert Aptheker before him, fails adequately to represent the religious, or spiritual dimensions of Nat Turner and his times. Otherwise Oates deserves all praise. His book is accurate, lucid, restrained, sympathetic, and imaginative. Especially useful is his attention to the aftermath of the rebellion: the slaughter of innocent blacks by roving white mobs, the Jeffersonian (but not Jefferson-like) insistence of Governor John Floyd on acting within the strict letter of the laws and constitution of Virginia , the simultaneous passions of white Virginians to find a way out of slavery and to make slavery perfectly secure, their contradictory desires to...

Some Thoughts on Revision of the Virginia Constitution

Some Thoughts on Revision of the Virginia Constitution

The Adequacy of the Virginia Constitution of 1902

The Adequacy of the Virginia Constitution of 1902

Bankruptcy. Virginia Exemption Provision Held Valid under Constitution of Virginia and Federal Bankruptcy Act

Bankruptcy. Virginia Exemption Provision Held Valid under Constitution of Virginia and Federal Bankruptcy Act

Madison: On the Separation of Church and State

Ty O0 James Madison, author of the American Bill of Rights, freedom of religion was the fundamental item upon which all other forms of civil liberty depended. Its maintenance would not automatically preserve the entire liberty of the citizen. But without it the other rights were sure to be destroyed. In the area of religion, as Madison saw it, the basic element was freedom of conscience. But in the protection of that freedom, the fundamental requirement was a total separation between government and religion. In the first legislative endeavor of his life, when he was 25 years old, he wrote a guarantee of freedom of conscience into the Virginia Constitution of i776, whence it spread into other state charters. In his second creative action for civil liberty, he wrote separation of church and state into the federal Constitution. Then in his later years, in an Essay on Monopolies, which was lost and unpublished until I9I4, he linked these two defenses to each other and to human rights in general. For the first expression of his belief in separation of church and state one must go back at least to 1774, when 23-year-old Madison wrote to William Bradford:

The Declaration of Independence: The Evolution of the Text as Shown in Facsimiles of Various Drafts by Its Author, Thomas Jefferson

This edition of Declaration of Independence makes available to public brochure printed for Library of Congress on occasion of Library's Bicentennial Exposition celebrating two-hundredth anniversary of Jefferson's birth. In his account of evolution of text of Declaration, Dr. Boyd has solved many of most difficult problems relating to that famous document, problems previously studied by Becker, Hazelton, Fitzpatrick, and others, to all of whom Dr. Boyd pays due tribute. Dr. Boyd first gives a brief account of background of Declaration, which was truly expression of American mind. To Timothy Pickering's charge that Jefferson contributed nothing original or solely Jeffersonian, reply is made that Jefferson harmonizing sentiments of day with concepts of government which had an ancient and diverse lineage, and yet did it in a prose style which stamped product of his pen indubitably and singly Jeffersonian. The greatness of his achievement, declared Dr. Boyd, aside from fact that he created one of outstanding literary documents of world and of all time, was that he identified its sublime purpose with roots of liberal traditions that spread back to England, to Scotland, to Geneva, to Holland, to Germany, to Rome, and to Athens. Under heading, Two Influential Documents, Dr. Boyd asserts that when Jefferson sat down to task of writing Declaration it is scarcely possible that he could have escaped a reliance on his own draft of a proposed constitution for Virginia and on George Mason's bill of rights adopted by convention of Virginia on June 12, 1776. This is evidenced by fact that in his draft of a fundamental law for Virginia, Jefferson catalogued a series of charges against George III similar to his indictment of king in Declaration. sequence of charges in both documents and their parallel phraseology indicate, according to Dr. Boyd, that Jefferson copied from his earlier document in writing Declaration. Of Jefferson's debt to George Mason's Declaration of Rights, Dr. Boyd says that the similarity that exists is a similarity of ideas and expresses doubt that case has been proved that Jefferson was as directly influenced by Mason's Declaration as he was by his own proposed constitution of Virginia. Six texts of Declaration in Jefferson's handwriting, together with copy in handwriting of John Adams, are used to trace evolu-

Constitutional Law. Price Fixing in Milk Industry Contrary to Virginia Constitution

Constitutional Law. Price Fixing in Milk Industry Contrary to Virginia Constitution

Proposed Amendments to the Constitution of Virginia

Proposed Amendments to the Constitution of Virginia

Constitutional Law. Does Section 2503 (a) of the Code Offend Article XIII, Section 168 of the Virginia Constitution?

Constitutional Law. Does Section 2503 (a) of the Code Offend Article XIII, Section 168 of the Virginia Constitution?