Virginia’s Constitution: An Influential and Resurgent Declaration of Rights

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

Virginia adopted one of the earliest state constitutions, in June 1776, part of an initial wave of state constitution-making that preceded even the Declaration of Independence. It also adopted one of the more recent state constitutions, which took effect in July 1971, near the end of a wave of constitutional revisions in the 1960s and 1970s. 

Virginia’s constitution has undergone regular revision during the nearly two centuries between adoption of the original and current constitution. Conventions were held to draft new constitutions or make extensive changes in 1829–30, 1850–51, 1861, 1864, 1867–68, and 1901–02. Limited conventions were held in 1945 and 1956 to adopt specific changes. Commissions played a key role in crafting constitutional changes that took effect in 1928 and in framing the 1971 constitution.

Bill of Rights

Virginia was the first state to adopt a Declaration of Rights in the Revolutionary era. Primarily drafted by George Mason, with input from James Madison and other convention delegates, Virginia’s Declaration of Rights, and especially a May 27, 1776 committee draft that circulated widely in other states, served as a model for a number of state bills of rights. This influence is evident as well in the Declaration of Independence and federal Bill of Rights.

Most provisions in Virginia’s 1776 Declaration of Rights have survived relatively intact. This includes several hortatory provisions that proclaim foundational principles of republican government and encourage the public and public officials to sustain them. A number of these provisions in Virginia’s inaugural Declaration of Rights became standard features in other states, including provisions recognizing natural rights and the right of the people to reform, alter, or abolish governments failing to act in the public interest.

Most notably, the opening section of Virginia’s Declaration of Rights declares: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” 

The next section proclaims: “That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them.” The following section states: “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community,” and when “any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.” 

Another section, which has been amended through the years, declares: “That no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue; by frequent recurrence to fundamental principles; and by the recognition by all citizens that they have duties as well as rights, and that such rights cannot be enjoyed save in a society where law is respected and due process is observed.” Interestingly, frugality was removed from this list of virtues in 1870, and then restored in 1902, while the closing references to duties as well as rights and respect for law were added in 1971.

Virginia courts have not had frequent occasion to rely on these various declaratory provisions in deciding cases. However, groups and individuals have frequently appealed to these principles in advocating for various political reforms, whether in Virginia or in other states that have adopted similar provisions.

Virginia’s original Declaration of Rights also contained guarantees regarding religious liberty, freedom of the press, search and seizure, criminal prosecution, cruel and unusual punishment, and other liberties that quickly became standard features of other state bills of rights and the U.S. Bill of Rights.

Other rights provisions have been added through the years, generally as part of nationwide movements. The framers of Virginia’s 1971 constitution added a provision barring sex discrimination at a time when equal rights amendments were also added to several state constitutions. Virginia voters in 1996 approved a provision protecting crime victims’ rights when voters in two-thirds of the states were adopting similar guarantees. Four years later, Virginia voters approved an amendment guaranteeing the right to fish, hunt, and harvest game, as part of a nationwide movement that resulted in similar guarantees being adopted in nearly half the states. In 2012, Virginia joined a dozen other states in strengthening constitutional provisions protecting against taking or damaging private property in response to the U.S. Supreme Court’s 2005 Kelo v. New London decision that interpreted the federal takings clause in a narrow fashion.

Governing Institutions

The General Assembly is required by Virginia’s constitution to be a part-time legislature with stringent limits on the length of time it can meet. Regular legislative sessions in even-numbered years can last no more than 60 days and in odd-numbered years no more than 30 days. 

Virginia’s constitution provides for only three popularly elected executive officials: governor, lieutenant governor, and attorney general. Many states prevent governors from serving more than two terms, similar to the limit for U.S. presidents. Virginia, however, is now the only state that prevents a governor from serving a second consecutive term. Since Virginia lengthened gubernatorial terms to four years in its 1851 constitution, Mills Godwin is the only governor to serve non-consecutive terms, from 1966 to 1970 as a Democrat and then from 1974 to 1978 as a Republican.

Virginia’s constitution is highly unusual in calling for the legislature to appoint judges at all levels of the court system. States vary in their judicial selection and retention systems, with most requiring judges to be popularly elected, whether in competitive or retention elections. Other states provide for gubernatorial appointment. Virginia and South Carolina are the only states that call for judges to be selected by legislators. Judges on the state supreme court are chosen by a majority vote of both houses of the General Assembly and serve 12-year terms. Judges on other Virginia courts are chosen in a similar fashion and serve 8-year terms.

The state’s constitution also establishes a corporation commission that possesses wide-ranging authority to regulate railroad, telephone, gas, and electric companies. The commission’s three members are appointed by the General Assembly and serve six-year terms.

Amending Virginia’s Constitution

Virginia’s constitution can be changed in two ways, via legislature-crafted amendments and legislature-called conventions. In requiring legislators to take the lead in adopting constitutional changes, Virginia differs from some other states that permit voters to initiate constitutional changes in one or more ways. Seventeen states allow voters to initiate amendments. Four states allow voters to initiate conventions. In 14 states, the question of whether to call a convention is automatically submitted to voters on a periodic basis. Additionally, Florida’s constitution stipulates that every 20 years a revision commission must be convened and empowered to submit changes directly to voters.

Virginia does not provide for any of these mechanisms. A provision in Virginia’s 1870 constitution required a referendum on holding a convention to be submitted to voters every 20 years. But this requirement was eliminated in Virginia’s 1902 constitution and has not been reinstated, leaving the legislature as the gatekeeper for all constitutional changes.

Amendments must be approved by a majority of elected members in the house and senate in two consecutive sessions and then ratified by a majority of voters. Virginia is one of 11 states to require legislative approval of amendments by a majority of members in two sessions. Ten states set out an easier path for amendments to appear on the ballot, by allowing legislative approval by a majority of members in a single session. Another 29 states require approval by a supermajority of legislators, generally in a single session but in some cases in two sessions.

In the half century since adoption of Virginia’s 1971 constitution, the General Assembly has approved 63 amendments for placement on the ballot and voters have ratified 54 of them. In addition to those mentioned above that guarantee individual rights in ways that track nationwide movements, like the amendment protecting victims’ rights, a number of amendments deal with fiscal policy. Many of those also track activity in other states, such as requiring a balanced budget, creating a rainy-day fund, and authorizing exceptions to the state’s tax uniformity provision by granting property-tax exemptions for disabled veterans as well as spouses of armed-forces members and first responders killed in the line of duty. 

The most consequential amendment adopted in recent years established a redistricting commission to draw congressional and state legislative districts. Most state redistricting commissions have been adopted via voter-initiated amendments; but in Virginia, which lacks a constitutional initiative process, legislators were willing to craft such an amendment and voters approved it in 2020.

Constitutional conventions can be called by a two-thirds vote in both houses of the General Assembly. Virginia is unusual in allowing members of the General Assembly to call a convention without first gaining voter approval; only five other states allow conventions to be called this way. However, in another respect, Virginia’s constitution now follows standard practice in requiring conventions to submit their work to voters for ratification. Although conventions held in Virginia in the 19th century routinely submitted their work for voter ratification, conventions held in the 20th century did not. Virginia’s 1901–02 convention was one of a handful of turn-of-the-20th century southern state constitutional conventions that sought to disenfranchise Black voters, along with a number of white voters, and chose not to submit these changes for voter approval. Meanwhile, Virginia conventions held in 1945 and 1956 were called to enact specific and limited changes and were not expected to submit their work to voters. Virginia’s 1971 constitution, however, makes clear that future conventions must submit proposed changes for approval by a majority of voters. 

Although Virginia’s constitution does not have an explicit provision for constitutional revision commissions, the General Assembly can establish commissions and charge them with recommending constitutional changes that legislators can consider and, as appropriate, submit for voter ratification. Commissions played key roles in crafting constitutional revisions that took effect in 1928 and, most recently, in 1971, when Virginia’s constitution emerged from the work of a Commission on Constitutional Revision featuring former Governor Albertis S. Harrison Jr. as chair and University of Virginia law professor A.E. Dick Howard as executive director.

Judicial Interpretation

Until recently, the Supreme Court of Virginia did not interpret Virginia’s constitution as providing greater rights protection than the U.S. Constitution. In a number of rulings during the last four decades especially, the state supreme court concluded that provisions in Virginia’s constitution are coextensive with those in the U.S. Constitution. Certainly, Virginia’s supreme court had occasion to independently interpret structural provisions in Virginia’s constitution, such as regarding the governor’s clemency power. However, it declined for many years to independently interpret rights guaranteed in Virginia’s constitution. 

But in a 2023 case, Vlaming v. West Point School Board, the state supreme court took the significant step of declaring that the religious liberty guarantee in Virginia’s constitution should be interpreted independently of the comparable guarantee in the U.S. Constitution’s First Amendment. At issue was whether a public high school teacher’s religious freedom was violated when he was fired by a local school board for failing to use masculine pronouns when referring to a transgender student.

The majority opinion in Vlaming noted that the prevailing interpretation of the religious free-exercise guarantee in the U.S. Constitution was set out in a 1990 case, Employment Division v. Smith, which held, as the Vlaming court interpreted it, that “government has no obligation to accommodate sincerely held religious beliefs if it is enforcing a law, or policy that passes the neutrality and general-applicability tests.” But the Virginia Supreme Court undertook an extensive analysis of the origin and development of Virginia’s religious liberty guarantee and determined that it offers broader protection for free exercise of religion and requires Virginia judges to adopt a different framework than the one adopted by the U.S. Supreme Court. In particular, public officials have a duty to accommodate individuals’ free exercise of religion unless they undertake “overt acts against peace and good order.” The court concluded that the teacher “alleged a legally viable claim” against the school board under Virginia’s religious liberty provision. 

Although concurring and dissenting justices in Vlaming disagreed with the majority’s interpretation of Virginia’s religious liberty provision and would have adopted alternative frameworks, the justices all agreed on the importance of interpreting this state constitutional provision independently of the U.S. Constitution and U.S. Supreme Court. Vlaming can therefore be seen as heralding a new era of independent interpretation of Virginia’s Bill of Rights.

John Dinan is professor of politics and international affairs at Wake Forest University.

Suggested Citation: John Dinan, Virginia’s Constitution: An Influential and Resurgent Declaration of Rights, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jun. 3, 2025), https://statecourtreport.org/our-work/analysis-opinion/virginias-constitution-influential-and-resurgent-declaration-rights