VIRGINIA DECLARATION OF RIGHTS AND CONSTITUTION OF 1776 (June 12 and 29, 1776)

Virginia, the oldest, largest, and most prestigious of the original states, adopted a Declaration of Rights on June 12, 1776, and two weeks later its "Constitution or Form of Government." Each document was the first of its kind and considerably influenced constitution-making in the other states. The primary draftsman of both documents was george mason, although the self-styled "convention" that adopted them included many luminaries, among them james madison. The convention was actually an extralegal or provisional legislature similar in membership to the last House of Burgesses under the royal charter before the Revolution. The same convention enacted ordinary legislation and elected a governor under the new constitution.

thomas jefferson in his Notes on Virginia, written in 1781, observed that "capital defects" marred the work of the constitution-makers of 1776 who were acting without precedent. Property qualifications on the right to vote disfranchised about half the men of the state who served in the militia or paid taxes, and gross malapportionment, which benefited the old tidewater counties, diminished the representative character of the new government. The governor was little more than a ceremonial figurehead. The assembly elected him and his councillors as well as the state judges, and the governor had no veto power. Jefferson believed that concentrating the powers of government in the legislature, notwithstanding recognition of the principle of separation of powers, "is precisely the definition of despotic government.… An elective despotism was not the government we fought for." In fact, however, legislative supremacy characterized all the new state governments, excepting those of Massachusetts and New York.

The gravest deficiency of the Virginia system, according to Jefferson, was that the legislature, having framed the constitution and declaration of rights without having provided that they be perpetual and unalterable, could change them by ordinary legislation. That was true in theory, although the constitution lasted over half a century and rarely did the legislature enact measures inconsistent with it. In practice it was regarded a fundamental law, especially the declaration of rights.

That declaration was the most significant achievement of the convention. As the first such American document, it contained many constitutional "firsts," such as the statements that "all men" are equally free and have inherent rights which cannot be divested even by compact; that among these rights are the enjoyment of life, liberty, property, and the pursuit of happiness; and that all power derives from the people who retain a right to change the government if it fails to secure the people's objectives. The declaration recognized "the free exercise of religion and freedom of the press, and included clauses that were precursors, sometimes in rudimentary form, of the fourth through the Eighth amendments of the Constitution of the United States. Inexplicably the convention voted down a ban on bills of attainder and on ex post facto laws and omitted the freedoms of speech, assembly, and petition, the right to the writ of habeas corpus, grand jury, proceedings, the right to compulsory process to secure evidence in one's own behalf, the right to counsel, and freedom from double jeopardy. Although religious liberty was guaranteed, the ban on an establishment of religion awaited enactment of the virginia statute of religious freedom in 1786. Madison's familiarity with his own state's bill of rights strongly influenced his draft of the amendments that became the bill of rights of the Constitution.

Leonard W. Levy
(1986)

Bibliography

Lingley, Charles R. 1910 The Transition of Virginia from Colony to Commonwealth. New York: Columbia University Press.