A. Creation, organization, and procedures of the Commission on Constitutional Revision.

In his address welcoming the General Assembly of Virginia into session in January 1968, Governor Mills E. Godwin, Jr., called the Assembly's attention to the effects of the "inexorable passage of time" on the Virginia Constitution. Observing that it had been forty years since any thorough study of the Constitution had been undertaken, the Governor called upon the Assembly to authorize him to create a Commission on Constitutional Revision.

Governor Godwin conceived of a small commission able to command "the respect and thoughtful consideration of the General Assembly and the people of Virginia." As to the subjects into which the Commission might inquire, the Governor urged, "Moreover, it should not be restricted in any way as to the scope of its study." Its members, he said, should have free rein in approaching such areas as bond financing, voting requirements, legislative sessions, and local government. (*1)

Promptly responding to the Governor's message, the General Assembly passed a joint resolution creating the Commission on Constitutional Revision. The resolution, citing the need for "extensive advance study" as a prerequisite to any "general revision of the organic law" of the Commonwealth, authorized the Governor to create a Commission of eleven members. The Commission was charged to "study the Constitution of Virginia and propose such revision of the same as in its opinion will be for the best interests of the Commonwealth" and to make a final report to the Governor and the General Assembly. (*2)

In January 1968 Governor Godwin named the membership of the Commission(*3) and designated as its Chairman Albertis S. Harrison, Jr., a Justice of the Supreme Court of Appeals of Virginia and a former Governor of the Commonwealth. After an organizational meeting, the Commission chose as its Executive Director A. E. Dick Howard, Professor of Law and Associate Dean of the University of Virginia School of Law.

Aware of the depth of study and investigation which must precede any recommendations, the Commission divided itself into five subcommittees. The subcommittees were conceived along functional or topical lines, corresponding roughly, but not strictly, to the organization of the Virginia Constitution. Thus, to take one example, the Local Government subcommittee was responsible for studying, not only Articles VII and VIII (the local government articles) , but also any sections in other articles of the Constitution bearing on local government.

The following subcommittees were created:

(1) Bill of Rights, suffrage, apportionment, and education. These parts of the Constitution were assigned to the same subcommittee in view of the fact that these are areas having particular bearing on individual rights. Moreover, it was thought that one subcommittee ought to study these areas in which the impact of federal law, statutory and judicial, is especially evident.

(2) Executive Department and state administration. This subcommittee was to study two main areas : those parts of the Constitution dealing with the office of Governor itself and those relating to state departments and administration generally, including the State Corporation Coμimission.

(3) Legislative and Judicial Departments. This subcommittee had a twin responsibility: studying the Legislative article, including the question of annual sessions, and the Judicial article.

(4) Local government. This subcommittee was charged with studying the forms, functions, and powers of counties, cities, towns, and other units of government in Virginia, including review of the recommendations of the Metropolitan Areas Study Commission.

(5) Taxation and finance. Here two related areas were studied together: taxation, including assessments and exemptions, and finance, especially the question of allowing the Common wealth to incur bonded indebtedness.

Each subcommittee was charged to study the articles and sections of the Constitution assigned to that subcommittee, to consider proposals for amendment emanating from all sources (including the General Assembly, members of the public, or the Commission itself), to consult with such people outside the Commission as the subcommittee might deem advisable, to reduce the subcommittee's thinking on constitutional revision to specific proposals (both the text of such revisions and reasons for proposing the revisions) , and to report back to the full Commission.

To assist each subcommittee, the Commission engaged five Virginia lawyers, one for each subcommittee.(*4) Each counsel was attached to a specific subcommittee and served as that subcommittee's "reporter," in the fashion that a reporter serves a study committee of the American Law Institute or other such group. Counsel's job was to undertake or supervise research into problems being studied by his subcommittee and otherwise to assist the subcommittee in its work.

One of the first orders of business was for the Commission to seek the submission by the citizens of Virginia of their views on constitutional revision. To that end, the Commission, in April 1968, issued a letter, signed by the Chairman and distributed widely to individuals and organizations throughout the Commonwealth, inviting the submission of opinions or proposals touching on any aspect of the Constitution. This letter, along with a news release, was also sent to every newspaper, radio station, and television station in Virginia of which the Commission had any record; as well as some news media in adjoining areas, such as the District of Columbia.

As public views were submitted to the Commission, the Executive Director had copies of every statement received sent to each member of the Commission. Between April and November, about two hundred statements, ranging from short informal letters to compendious formal studies. were submitted to the Commission; all were distributed to each Commissioner. Moreover, as public views were received, copies went to legal counsel working with the several subcommittees, counsel's attention being invited to proposals or views especially touching the areas assigned to their respective subcommittees.(*5)

In addition to soliciting written statements from the people of Virginia, the Commission scheduled a series of five hearings which it conducted at places about the Commonwealth. Representative speakers appeared at these hearings, which were held as follows:

Norfolk (June 17 in the Student Center at Old Dominion College)

Roanoke (June 21 at the Federal Courthouse)

Abingdon (June 22 at the Federal Courthouse)

Richmond (July 17 in the Auditorium of the Ninth Street Office Building)

Alexandria (July 18 in the Council Chamber of City Hall).

After each public hearing, the Executive Director compiled a summary of the views expressed at that hearing and sent a copy of the summary to each member of the Commission and to each counsel.

Further to supplement views received from the public at large, the Commission authorized its subcommittees to consult with advisors, either on an informal basis or as formal advisory panels. Where formal lists of advisors were named, this was usually with the purpose of having those advisors meet as a group with a particular subcommittee, either to be sounded for their ideas, to review tentative proposals framed oy the subcommittee, or both. How advisors were chosen depended on the nature of the subject matter being studied by a particular subcommittee; some advisors were selected by virtue of the position they held (and thus their experience with given problems), others were selected simply for their own insights and public awareness. Likewise, to what extent advisors were used, and in what manner, depended largely on the areas being studied by a particular subcommittee.(*6)

During the spring and summer of 1968 the subcommittees met more frequently than did the full Commission. Each subcommittee, having been given a general area or areas of responsibility, mapped out the specific problems to be explored by drawing on a number of sources-resolutions which had been pending in the General Assembly at the time the Commission was created, proposals made at public hearings or in written statements submitted to the Commission, items mentioned in the Governor's January message to the Assembly, questions raised by members of the Commission or by its staff, suggestions made by advisors, and others. Then, with the assistance of counsel, each subcommittee explored specific problems and reported its recommendations to the full Commission.

To support the work of the Commission and the subcommittees, a number of individuals were engaged to work during the summer doing research and writing memoranda. During the summer a total of about 150 research memoranda, ranging from a few pages to over a hundred pages, were produced.(*7)

In studying any given problem a subcommittee, and the counsel and research associates working with that subcommittee, were asked to give thought to the language of the present constitutional provisions being studied, related provisions of the Constitution, historical factors (e.g., social, political, legal, and other factors which gave rise to the provisions in question), relevant judicial decisions, relevant federal law, comparative data (what other states do with like problems), general commentary (what authorities and commentators say about the problem), positions taken by interested groups or individuals in the Commonwealth, and statutes which might be affected by a constitutional change. Usually, a subcommittee returned to the full Commission with a specific proposal, supported by reasons; typically the subcommittee would also note alternatives which the Commission might consider if it chose.

By the late summer and early fall, the subcommittees had completed most of their work. As each subcommittee produced its recommendations, these were prepared, reproduced, and mailed to the members of the Commission. The full Commission met frequently to deliberate over the subcommittees' reports, and at each round of meetings the work of every subcommittee was discussed.

By late fall a tentative draft of how the Constitution would look, if revised along the lines proposed by the Commission, emerged. In addition to approving the text of the proposed revisions, the Commission deliberated in detail and approved the highly important commentary explaining to the Governor, the General Assembly, and the people why the Commission is making the proposals and what the effect of those proposals, if adopted, would be.

B. The backdrop to the current study of the Virginia. Constitution.

No state is heir to a greater tradition of constitutionalism than is Virginia. The charter granted to the Virginia Company of London in 1606 embodied many of the most ancient and basic principles of the English Constitution -- including a guarantee to the colonists of the "liberties, franchises, and immunities" of Englishmen -- and served as a model for charters granted to other, later colonies on the American continent. a The New World's first legislative assembly met at Jamestown in 1619. When in 1652 the colony, loyal to the Crown, reluctantly submitted to the Cromwellian Commonwealth, the articles of submission expressly guaranteed to Virginians "such freedoms and privileges as belong to the free borne people of England."(*8)

Similarly, in the eighteenth century, Virginians became well versed in constitutional arguments. In 1765, on the passage by the British Parliament of the Stamp Act, the Virginia Assembly gave the lead to the other colonies by adopting resolutions proclaiming the colony's right to internal self-government and taxation only by consent.(*10) In 1774, after Parliament had passed legislation to enforce the tea duty by coercing the Port of Boston-the colonists called them the "Coercive" or "Intolerable" Acts -- Virginia again set the pattern for the other colonies when members of the House of Burgesses, meeting after Governor Dunmore had dissolved the Assembly, proclaimed the constitutional rights of the colonists against the government in Britain.(*11) Meetings in the counties resulted in similar resolutions.(*12) It is significant that, up to the eve of actual revolution, the resolutions passed in Virginia, as in most of the other colonies, were primarily constitutional arguments, rather than revolutionary tracts.

Thus when Virginians came to draft the first constitution for Virginia as an independent state, they worked against the backdrop of nearly two centuries of constitutional development. The ablest talent of the colony, save for those leaders sitting with the Congress in Philadelphia, made up the Convention in Williamsburg which produced the Constitution of 1776. The Convention had before it several plans for a constitution, including plans drafted respectively by John Adams, Thomas Jefferson, Carter Braxton, and George Mason. The constitution actually adopted owed more to Mason than to any other man. A brief document, the Constitution of 1776 contained a declaration of rights which, with few changes, survives in the present Constitution of Virginia, and a frame of government which has undergone considerable change in the nearly two hundred years since 1776.

The story of the Virginia Constitution since 1776 marks the path in which the Commission on Constitutional Revision has sought to tread. That story is one of evolution. Through the years one can trace an evolutionary process in which many basic outlines -- for example, the establishment of the three major branches of government and the listing, in the Bill of Rights, of the fundamental liberties of the people -- persist and, at the same time, much of the Constitution evolves in response to changing times and changing problems. To take specific examples, provisions on taxation and finance did not appear in the Constitution until 1851, there was no Education article until 1870, and the Corporations article only appeared in 1902. At the same time, while new problems were giving rise to new provisions, other provisions were deleted as they became unresponsive or unnecessary; for example, the slavery article last appeared in the Constitution of 1851.(*13)

From the adoption of the Constitution of 1776 to the latest general revision, that of 1928, there have been five general revisions(*14) of the Virginia Constitution, either in the form of a new document produced by a constitutional convention (those of 1829 - 30, 1850 - 51, 1867 - 68, and 1901 - 02) or a revision proposed by a study commission, passed by the General Assembly, and approved by the people (as was the case in 1928). Thus from 1776 to 1928 there was, on the average, a constitutional revision every thirty years. Since it has been forty years since the revision of 1928, few would argue that Virginia is being precipitate in currently studying the Constitution for possible revisions.

Not only have forty years passed since the previous revision, they have been forty years unlike any such period in the Commonwealth's history. Since 1928 the Commonwealth's population has doubled,(*15) and in that same period urbanization in Virginia has proceeded to the point where 56% of Virginia's population now live in the Commonwealth's six "metropolitan" areas; 85% of the State's entire growth between 1950 an d 1960 occurred in these six areas.(*16) Industrial growth in Virginia has seen a rise of 146% in non-agricultural employment in the last thirty years.(*17) Since 1929 the number of those employed in manufacturing has risen from 132,000(*18) to 336,000.(*19) This industrialization combined with the population shift has caused the percentage of the labor force in agricultural employment to drop from 32% in 1930 to 5% in 1968.(*20)

Technological changes since 1928 have also had an enormous impact on Virginia. Innovations in transportation and communication, for example, have reshaped the face of Virginia, tying the various parts of the Commonwealth together in a manner unimagined by most people in 1928. State highway mileage, which totaled 7,000 miles in 1928,(*21) is today 50,000 miles,(*22) much of that space-shrinking interstate highways.

The pace of demographic, economic, and technological change has been matched by political and legal developments since 1928. Today's electorate is much enlarged as a result of a number of events, such as the abolition of the poll tax as a prerequisite to voting. Shifts in population have been accompanied by shifts in representation, as the "one man, one vote" principle has been applied. Some changes have come as a result of federal statutes and court decisions, others have come from within the Commonwealth. All have had their effect on the way in which the Commonwealth is governed and therefore on the Constitution of Virginia.

The years since 1928 have also seen considerable developments in the operations of the state government itself. New functions have been undertaken by the Commonwealth, evidenced, for example, by the creation of the Virginia Employment Commission, the Virginia Airports Authority, and the Air Pollution Control Board. Developments in government at other levels have seen the appearance of new forms of local government, such as the county manager form of government (first adopted in Arlington in 1932), and in new kinds of authorities and other devices to handle such problems as encouraging new businesses to settle in Virginia and the financing of turnpikes, bridges, and tunnels.

Since 1928, forty-three states have had either constitutional conventions or revision commissions for the purpose of drafting new constitutions or revising existing ones.(*23) The "inexorable passage of time," coupled with events in Virginia and in other states, seems to underscore the wisdom of the Governor's call for, and the Assembly's provision for, a thorough study of the Virginia Constitution to see what revisions would seem to be in the interests of the Commonwealth and her people.
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(*1) Address of Mills E. Godwin, Jr., Governor, to the General Assembly, Wednesday, January 10, 1968 (S.D. No. 1), pp. 10-11.
(*2) H. J, Res. 3, Va. Acts of Assembly (1968), p. 1568.
(*3) The members hip of the Commission is given on page i of this Report.
(*4) The Commission also engaged a general counsel not assigned to any particular subcommittee. Names of the Commission's counsel appear on page ii of this Report.
(*5) A list of the statements received from members of the public appears on pages 485-08 of this Report.
(*6) Lists of advisors are given on pages iii-iv of this Report.
(*7) A list of the research associates appears on page 525 of this Report. A list of the research memoranda produced for the Commission appears on pages 527-32.
(*8) For the text of the charter of 1606, see Three Charters of the Virginia Company of London, ed. Samuel M. Bemiss (Williamsburg, 1957).
(*9) Heming's Statutes at Large, I, 363.
(*10) Journals of the Burgesses of Virginia, 1761 - 1765, ed. John Pendleton Kennedy (Richmond, 1907), p. 360.
(*11) American Archives, 4th ser., ed. Peter Force, I (Washington, D.C., 1837), 350 - 51.
(*12) Perhaps the most explicit discussion of constitutional rights contained in a local resolution is that found in the resolution of the freeholders and inhabitants of Fairfax County. See ibid., I, 597.
(*13) For a bibliography on the history of the Virginia Constitution, see pp. 533 - 42 of this Report.
(*14) This does not count the period 1861-65, in which constitutional developments had an uncertain legal effect. The Convention of 1861, known as the "Secession Convention," passed the Ordinance of Secession and proposed amendments to the Constitution, but the proposed amendments were rejected by the voters by a narrow margin. In 1864 a constitutional convention was held in Alexandria to draft a constitution for the "restored government" of Virginia-those parts of the Commonwealth occupied by federal troops. The draft was ratified by five hundred votes for ratification and no recorded votes against. Although the Constitution of 1864 was in force until 1868, it had little impact on Virginia because federal troops had a veto power over all state action. William J. Van Schreeven, The Conventions and Constitutions of Virginia, 1776 - 1966 (Richmond, 1967), pp. 8-10.
(*15) The population of Virginia in 1930 was 2,421,851. The World Almanac (New York, 1931), p. 191. In 1967 the population had grown to 4,602,091. Report of Bureau of Population and Economic Research, Estimates of Population of Virginia Counties and Cities, July 1, 1967 (Charlottesville, Va., 1967), p. 7.
(*16) Metropolitan Areas Study Commission Report (November 1967), p. 9. The six metropolitan areas are Northern Virginia, Richmond, Roanoke, Lynchburg, and the two sides of the Hampton Roads.
(*17) United States Department of Labor, Bureau of Labor Statistics, Bulletin No. 1370-5, Employment and Earnings Statistics for States and Areas 1939-67 (Washington, D.C., 1968), p. IX.
(*18) United States Bureau of the Census, Census of Manufacturers, Area Statistics (Washington, D.C., 1963), III, p. 47-5.
(*19) United States Bureau of the Census, Annual Survey of Manufacturers, M66 (A.S.)-7.0 (Washington, D.C., 1966), p. 2.
(*20) These figures were compiled by the research department of the Division of Industrial Development from Bureau of the Census reports.
(*21) State Highway Commission, Mileage Tables, State Highway Systems (Richmond, 1967), p. 52.
(*22) Ibid., p. 53.
(*23) Council of State Governments, The Book of the States (Chicago, 1937 - 68), Vols. I-XVII.