BONUS: Full interview with Prof. A. E. Dick Howard

For Episode 43 ("Where did Virginia's state constitution come from?"), producer Katherine Hansen talked at length with UVA Law professor A.E. Dick Howard, who wrote the current Virginia constitution. For the full civics experience, we're offering that full interview here as a bonus episode this week.

ROUGH TRANSCRIPT

Translated by a robot. Apologies for typos and mistakes.

AE Dick Howard 0:01

This is A.E. Dick Howard. I had the privilege of being a professor of law at the University of Virginia. I had been first for some years, also active in public affairs in Virginia, counseling the governor and legislators and others, but my primary places in the classroom on the non professor, teaching Professor as well as of course, writing about the Constitution.

Katherine Hansen 0:27

So, just a brief overview Bold Dominon is a state politics explainer, we're very grateful for you to come speak to us both about the work that you did in the 1971 Constitution and the Virginia constitutions as a whole. If you could start off sort of giving our listeners if if you were to explain Virginia State Constitution to someone who barely knew anything about it, could you give us a brief overview?

AE Dick Howard 0:51

Well, if I you know, if someone asked me about the Virginia constitution, I think I would first say something about state constitutions generally. mean most most folks know a little bit about the US Constitution, they are aware of it at least and but state constitutions are really quite different. They are they preceded the Federal Constitution, the states, at the time of revolution in 1776, were writing state constitutions, years before the framers met Philadelphia to write the Federal Constitution. So they started earlier, they are much more detailed, much more specific, they cover ground that the Federal Constitution didn't talk about. Indeed, I would say, day to day life, in most people's minds would be more nearly affected by state constitutions than by the Federal documents. So it's an important part of American life.

Katherine Hansen 1:46

If you could just provide a quick definition of state constitution and constitutional government.

AE Dick Howard 1:54

Okay. What is a state constitution? It's the document that lays down the fundamental law, rights of the people, structure of government, the fundamental outline of government, in a state is subject, of course, to the Federal Constitution, federal law is supreme. So a state constitution can't do less than the Federal Constitution, it has to accept those limitations. But state constitutions can do more. They are free to go beyond the Federal Constitution, if the state Bill of Rights, for example, enlarges the protection against unlawful search and seizure beyond the First Amendment, the Fourth Amendment, then the state constitution can do that. So it's a fundamental document within which the governor, the legislature, the courts, and government generally operate. So it's a it's a federal system like like ours with the US Constitution at the top, then the next story in that building is the state constitutions.

Katherine Hansen 3:01

And could you define constitutional government and then just briefly explain how our state constitution has affected Virginia's government?

AE Dick Howard 3:09

Well, constitutional government, I think, is something which began to take modern shape in the 18th century. For that you had ruled by monarchs, for example, the English kings or the French kings, you had the powerful place of the church, especially in the Middle Ages. So most of what you're permitted to do allowed to do and day to day life back in those days was either what a monarch had approved, or the church dictated, that began to change in the 18th century, and what we would call constitutional government emerges. And constitutional government really tries to balance to somewhat, not competing interests, but two values that are somewhat in conflict or in tension with each other. One is that we believe in accountable government, government, by the people, that the people should be able to elect officials of government to carry out the will of the people. On the other hand, we put into place a constitution in which the people limit the powers of government. And indeed, if you think of a constitution, while it's in effect, limits what the people can do. So I think the the core value of constitutional government, is it the people or empowering them themselves and their representatives to carry out the function of functions of government. And yet at the same time, they're playing constitutional limits, both on those representatives and on themselves. And I think that's a critical point because it balances on the one hand, majority is doing what they please. And on the other hand, denying majorities what their general will is, it's difficult belters to maintain. I think, in American history, we've done a reasonably good job of doing that. It doesn't always work as civil war, for example was a time it clearly didn't work. But constitutional government reflects enlightenment values. From the mid particular the 18th century in Western Europe, I think, today, in fact, virtually every country in the world has a written constitution. There are only one or two exceptions. So it's, it's assumed that if you are going to have government of any modern code, you will have a constitution. Now, I grant that a lot of those consultations are pieces of paper. I mean, they're not actually enforced. countries that have consultations, I mean, China, for example, has a very attractive constitution, but in China is the will of the party. But the party says goes, What, no matter what the constitutional say. So that's not that's not constitutional government. I think real constitutional government is what we hope is in place in America, namely, accountable government on the one hand, but the people limiting their own power on the other, about the Virginia constitution, specifically of Virginia really started it off, because in May of 1776, the convention that was meeting in Williamsburg instructed their delegates in Philadelphia, to introduce the resolution for independence. And on the same day, they started work on a Declaration of Rights, and a frame of government for Virginia. So Virginia, really written led led the pack in terms of getting state constitutions in place. So from that time to the this, I'd say that it's important to realize that state constitutions are periodically revised, and certainly frequently amended of Virginia, for example, is head depending on how you count them, six or seven constitutions from 1776 to the present time. So the 1971 Constitution, the one we'll be talking about, some this afternoon, really is the latest in a succession of constitutions over the years.

Katherine Hansen 7:18

Also, I just want to briefly apologize, I realized that the way that I have my monitor set up if I'm looking at you on the zoom screen, it looks like I'm not looking at the camera. So I apologize if it looks like I'm staring off into the distance.

AE Dick Howard 7:30

No, we're not on camera for your purposes anyway. People just be hearing us talk.

Katherine Hansen 7:38

So I guess to begin with 1776. What are the founding principles of that state constitution?

AE Dick Howard 7:46

Well, it's a striking document. In fact, there are two documents when the framers in Williamsburg in May of 1776 began work. They actually, first they wrote a Declaration of Rights. Then they wrote a separate document, the frame of government, the actual government of Virginia itself. And the reason are two documents is that it's steeped in what you might call social contract theory, the ideas of john Locke, namely that you are given in, you come into society with inherent rights and ated of all rights, that do not depend on government, that government regulates life in various respects, but it doesn't create rights, those rights are brought in, just because you are who you are. So it's very lucky in that the framers in 76 would, as I say, write two separate documents which finally put together today you look at the Virginia Constitution and the Declaration of Rights is simply Article One of the Constitution. But as far as founding principles go, I think, if you compare the George Mason's 1776 Declaration of Rights, with the Declaration of Independence that was agreed to in Philadelphia, a one realizes the influence that the Virginia document had on the Declaration of Independence on Thomas Jefferson's draft for that for that document. And it begins by talking about that. Society is created for the common benefit by the jet for the liberty of all people. It's a very sweeping kind of declaration. And then it sets out a number of concrete guarantees of rights, procedural rights and criminal cases, for example. And these rights are often drawn from British constitutionalism from Magna Carta from the English petition of rights, the English bill of rights of 1689. So in many ways, the Virginia Declaration of Rights is a sort of a merger of synthesis of traditional rights, which the colonists as English colonists would have understood to be their inheritance, a combination of those traditional rights with more sweeping declarations that really arise in the revolutionary period itself. It's also interesting that early document has aspirational language is not just a set of concrete legal rights. There's a sense of what the values of citizenship are they have what it is a citizen ought to know about founding a free society. And there's interesting language at the end of that document that says that free government depends on a what Mason called a frequent recurrence to fundamental principles, the notion that one should constantly as the years pass, go back and reconsider rethink, reaffirm those rights that are set out in the founding documents. So the first constitution is more than simply a structure of government. It is that of course, it sets out the three branches and what their duties are in the like. But it's a much more sweeping document that, in many ways is a very enlightenment period document. And I have to say that so much of what's said in that founding Declaration of Rights still still obtains today.

Katherine Hansen 11:32

So I did some research and I read a few articles that you've written along the years about the success of documents and and realize this, but the executive branch was deliberately made weak in the 1776 constitution. Can you explain our explain to our listeners why that was?

AE Dick Howard 11:52

What is quite striking, because today, we assume that at the federal level, the President at the state level, the governor, have pretty extensive powers. And we in Virginia, for example, having just gone through the COVID pandemic, are certainly aware that Governor Northam has used executive orders in a way that probably wouldn't have been unimaginable in the founding period 1776, the revolution was underway. The colonists now about to become members of the United States, declaring independence, have very fresh memories of royal governors, and also royal courts. So in the colonial period, the governor, and the judges were agents of the crown. And the nearest thing to a voice of the people in the colonial period was the was the lower house of the legislature in Virginia, that would have been the House of Burgesses. So I think that sense that legislatures are closer to the people carried over into the 1776 constitution. The framers of the first Virginia constitution deliberately made the legislature the primary branch mean, they had a theory of separation of powers. But I think the fact was legislative supremacy, that the governor, Governor, in fact, was not elected by the people. He was elected by the legislature. It was as if we had a parliamentary system that the governor depended on the legislature. And to weaken him further, there was a council of state that the governor who and the governor had to take the council's advice. So the governor was really something of a cipher. And they the judges had uncertain powers, it wasn't clear how much power they would have. So the action was in the legislature. Now, it didn't take too long before people realize that legislatures could mess about with your rights as well as the judges or governors. So that changed over time. If you look at other state constitutions and 1777, for example, New York wrote his first constitution and in that Constitution, the governor was actually elected by the people. And then as you moved on through the 19th century, the framers of successive Virginia constitutions put more and more limits on legislative power so so even though the Declaration of Rights survive pretty much as it was set out at the beginning, the frame of government changed considerably, with limits being placed on legislative power, and courts and governors getting more power than they would have had at the very beginning.

Katherine Hansen 14:40

So from my understanding, in the 77 1776, constitution, state of Virginia was a portion to certain way so that east of the Blue Ridge, white male voters would have the majority in the General Assembly. Is that correct?

AE Dick Howard 14:55

That's exactly right. The framers didn't didn't really equalize a portion but among different parts of the state, even though the Declaration of Rights was very progressive and forward looking, they have the frame of government, in terms of how you would apportion legislative seats was frankly very backward looking. They left a portion that in the General Assembly of the House of Delegates and set it pretty much as it had been under the in the House of Burgesses in the colonial period. And that meant very much a system in favor of old Virginia, the small, older Tidewater counties as opposed to the Piedmont counties, or the people in in the valley of Virginia, or in the trans mountain regions, all those, those were the areas that were growing in population, the Tidewater area was pretty much static, or even some of them were some of the counties were declining. And so the framers left things as they were, which clearly favor the the old order in Virginia.

Katherine Hansen 16:10

Do we see any remnants today of that original apportionment?

AE Dick Howard 16:15

Well, we certainly saw it up until the 1960s. I mean, I was born and raised in Richmond, and I can remember an era of the Byrd machine when that we had mal apportionment in Virginia, so that rural areas were disproportionately represented as opposed to urban areas that the rural counties had disproportionate representation of the General Assembly that came to an end with the Supreme Court's one person one vote decisions in the 1960s. Baker versus Carr Reynolds versus Sims. And that meant because of federal Supreme Court decisions, Virginia and every other state had reapportioned their legislature so that now we're under the regime of one person, one vote. But it took federal this took the US Supreme Court to finally achieve that otherwise, we might still be living under a regime of mal apportionment.

Katherine Hansen 17:15

Is there anything else that you would like to discuss with 1776? Or would you like to move on to the state constitution of 1830?

AE Dick Howard 17:23

Well, it's one of the thing that strikes me of interest. Thomas Jefferson, our university's founder, you think he would have been in Williamsburg helping to write the first Virginia constitution, but he was in Philadelphia, he was with the Continental Congress, he actually wrote up a draft for a Virginia constitution. But by the time it reached Williamsburg, the convention had done most of the work. So his ideas did not really take root in the first constitution. And for the next 50 years, he complained about it. I mean, he was buried out. I suspect, I can't get inside of Mr. Jefferson skull. But I suspect one reason he didn't like that first constitution was that he wasn't there. And he probably couldn't imagine writing a constitution without Thomas Jefferson, and his say about it. But he said, he didn't like it because the franchise was too limited. I mean, you had to own property. to devote, he thought that was unfair. There were men who had fought for the in the revolution, who they were property less good and vote. He attacked. Now the portion that you and I've just talked about that he built the malla portion, but weighed against the rights of Western Virginia. He was unhappy with legislative supremacy. So that violated the principle of separation of powers. And he also said, the Constitution really wasn't thoroughly legitimate. Because the same body of men who were writing ordinary laws for Virginia, tried to write the Constitution. He said, You can't do that. You have to have a separate convention to write a constitution, a convention elected by the people for the purpose of writing a constitution to put it on a plane superior to ordinary law. So Mr. Jefferson was no fan of that 1776 constitution.

Katherine Hansen 19:25

In the state constitution of 1830, do they relax the property qualification for voting rights?

AE Dick Howard 19:32

That's right. As soon as the 1776 constitution had been adopted, as time passed, in the late 18th, early 19th centuries, reformers Jefferson and many other people said that Virginia needed to call a constitutional convention to revise the first constitution that it needed to be updated. Other franchise needed to be in Lourdes, mela portion that needed to be addressed. and so forth. It took years and years for that to happen. I mean, the petitions were filed with the General Assembly, they came to nothing until finally, in 1829 and 30, a convention was called to rewrite the Constitution, the reformers started off thinking had a pretty good shot at significant reform. But as the convention wore on, that error passed, and by the time that convention had concluded, by the time they had written the Constitution of 1830, the changes they had made were modest. They slightly and enlarge the franchise, they adjusted seats in the General Assembly, the governor still didn't have that much power. So it wasn't that much of a change from the from the outset. So it meant that if reformers wanted to carry the date, they had not yet done it in 1820 to 30.

Katherine Hansen 20:57

So is there anything? I mean, this, the second state constitution came 60 years after the first or roughly So is there anything significant about this first reform of the Constitution?

AE Dick Howard 21:12

Well, I think the significance of the convention of 1829 and 30, is that it was a reminder that the Constitution is not static, that it is open to amendment to change to evolution over the years. So it's setting in motion, an ongoing process, so that from time to time, since 1830, we have seen further revisions, it was only 20 years before, yet another convention was called and 18 5051. And by that time, they the reformers really did have more wind in the sails, they were able to achieve achieve something like a white male, universal suffrage. Obviously, slaves clearly were not in the in the picture at that point, women didn't yet have the vote. But among the flight, male population, it was pretty nearly universal suffrage. And that convention also, finally, 75 years after the revolution, that convention agreed that the governor should be elected by the people. So it took a long time for Virginia to reach that point. But they finally said, Well, yes, the people ought to have the right to get elected governor, they also began to trim the legislature sales somewhat, they began to put limits on legislative power. And that's important because whereas the Federal Constitution is a grant of power, which is to say it grants the president, the Congress, the court certain powers, they're broad powers, but they still have to be traced to the Constitution. The theory of a state constitution, including Virginia's is that the legislature has all powers, plenary powers, if other than those that are denied to it by either the US or the state constitution. So it's important as you look through the 19th century to realize that people began to worry more and more about whether the legislature was really getting out of bounds. And they started putting more limits on its, for example, His power to to raise but issue bonds. In the 19th century, Virginia was investing in Turnpike's and railroads and that sort of thing. And a lot of his investments, frankly, were not very sound ones. So people were concerned about that. So once again, you have a convention, which reminds us of the organic, unfolding evolutionary nature of the Virginia constitution.

Katherine Hansen 23:47

So looking at my notes, not only did they outline in this constitution, that you can now elect most public officials, including governor but they also established circuit and appellate courts. Is that correct?

AE Dick Howard 24:00

Yes, that's right. The the court system has evolved. It's interesting that when the courts first started out, after 1776, it was unclear what the power of the courts would be just what they would sort of disputes they would be allowed to settle. In the 1790s. Some judges on the Virginia Supreme Court began to say in dictum, that if the legislature enacted some statute, in conflict with the Constitution, and the judges would be obliged to strike it down. Now, that was a power that john Marshall didn't declare for the US Supreme Court until 1803. So it's interesting that even before Marbury vs. Madison, that famous case was decided by Marshall, the Virginia course already begun to say that they had the power of judicial review. So by the 19th century, the power of the courts was being enlarged. And of course, Aside from constitutional questions, there was a lot more private law to be settled because Virginia, By the mid 19th century was becoming economically more diversity. So we're now railroads were now, industries of various kinds. We were not simply an agrarian society anymore. There was more commerce and trade. Richmond, for example, is becoming an important commercial city. So as a result, it was thought necessary to in to sort of stretch out to sketch out the courts that we would have in Virginia as they did in the 1851 constitution.

Katherine Hansen 25:39

So does the state constitution of 1851 carry a certain significance to it that the state constitution of 1830 didn't?

AE Dick Howard 25:50

Well, I think it's the principle achievement was enlarging the franchise, Id by 1851. The franchise was more nearly what Thomas Jefferson, in 1776 had hoped it would be it took a long time to get there. But I think one of the interesting thing, the themes that we ought to be talking about today is to consider how the constitution defines what I would call the political community, which is to say, who gets to vote and who doesn't, who counts and who doesn't count. At the beginning, it was people that own property. Clearly, that was very limited franchise, the majority of Virginians, even among white males, had no voice in the government of their state. That began to change in the 19th century, after the age of Jefferson and the age of Jackson, the whole country was becoming more democratic that it had been at the outset. In the early the founders generation, there was still more an era of aristocratic privilege, by the age of Jackson that had begun to change. So a number of states revised their constitutions in the 1820s, New York, Pennsylvania, Massachusetts, some others. Virginia had that convention at 1829 and 30. But it didn't really achieve as much reform as founding came about in 1850, and 51. So by the by mid century, the political community was being defined in much more generous terms than it had been in previous years.

Katherine Hansen 27:33

So I know that right now we're approaching the Civil War. Can you talk about what's going on in Virginia during this time?

AE Dick Howard 27:40

In constitutional terms, of course, the increasingly, the debate was about slavery. slave owners, starting in the 1820s, and 30s, were increasingly concerned about the rise of abolitionist sentiment in the north. northern states were not all that progressive, but they did have more, Bolton freedmen, black freedmen were a rarity in the south, but they were becoming more common in the north, abolitionists were making much more noise about wanting to restrict slavery. So throughout the mid 19th century, from the 1820s onwards, as new states in the union were added, there tended to be compromises that for each non slaves, each free state that was brought in, there'd be one new slave state. So it kept a kind of balance in the US Senate, which actually was more pro Southern pro slavery than it would have been if they if Congress had been based simply on population. But since each state has two senators, regardless of the stage population, through the mid the decades, in the mid 19th century, there was this kind of balance being achieved to sort of satisfy the southern states need even so slaveholders in Virginia and in the south, generally, were increasingly worried that the abolitionists might actually be able to achieve their aim. So slavery becomes the central issue that period. And of course, it leads up finally, after various saber rattling to 1861 the firing on Fort Sumter, Abraham Lincoln's calling up of troops, and then finally succession conventions being being held. And I know over the years, as I mentioned, I was born and raised in Richmond and I, when I went to law school days, it was still in the era of this sort of age of the lost cause the kind of moonlight and magnolias do Southern history of slavery wasn't much talked about. There was kind of a notion that well, maybe slaves were not that badly off on Southern plantations. And you still hear the argument that some people make that the Civil War was about states rights. Well, in a secondary sense, that was true, but you only have to read the succession ordinances, specifically Virginia's ordinance of succession in which slavery is put front and center, I mean that the threat to slavery is the reason given for Virginia's c seating. Now, obviously Lincoln's calling up troops had something to do with that. But as we all know, I think we know that that general history pretty well. What it meant at the state level, of course, was a state constitution had to be called into play, there was a curious document in 1864, Virginia constitution, but it wasn't really adopted by or voted on by people in the larger part of Virginia. There were bits and pieces of Virginia Alexandria, for example, some territory on the eastern shore, that's where they were occupied by Union troops. And so you had a constitute a loyal government in effect in base in Alexandria, and then a rebel government based in Richmond. So in effect, competing factions both both, like holding themselves forward as the legitimate government of Virginia. So the loyalists government passed in 1864 Constitution, which provided for equality, it was based on what later became the 13th and 14th amendments, but that that historians and lawyers have debated over the years, whether that really counts as a Virginia constitution, since it was adopted by such a small percentage of the population. And it is unclear. It seems that was some kind of referendum, but the record doesn't make it clear exactly how that took place. So, in a sense, the 1864 constitution is really a sidebar to the principal story.

Katherine Hansen 32:08

We reach 1869. And this seems like a constitution that deliberately enfranchised black men specifically. Would you like to talk more about this version of the Constitution?

AE Dick Howard 32:21

Oh, that's a fascinating constitution. When the Civil War was over after appa Matic, so the final the final end of the rebellion, the price of readmission to the Union for southern state, former Confederate States was, first they had to ratify the 14th Amendment, which they did unwillingly. But then they had to adopt new progressive state constitutions. And the traditional conservative pro Confederate legal order in Virginia was not in place the they were not the ones in the saddle. So the convention that was held in Richmond in 1867 68, was a convention at a reformed convention, it had roughly 100 members, about 25 of whom were black. That never happened in Virginia's first time African Americans had ever said in a Virginia constitutional convention. So that convention set out to be to put into place for example, a the first statewide public education system in Virginia, and never been one before they've been spotty here and there school has been nothing on a statewide basis. And that convention achieve they are ratified the enfranchisement of African Americans, blacks would have an equal vote, equally access to the ballot as as plights in Virginia. So, as of 1870, when that post Civil War of that reconstruction constitution was in place, they returned to our theme of inclusiveness and, and defining the community, the 1870 constitution to find that more broadly than any constitution had done before that time.

Katherine Hansen 34:20

So I know that in the Constitution of 1864, which you earlier said is contested whether or not it's a legitimate state constitution, that voting by ballot was introduced. But then so in the Constitution of 1870, is that firmly introduced as a provision is this now a part of the Constitution?

AE Dick Howard 34:41

Well, it's interesting that, you know, if you go back to early constitution, say the first part of the 19th century, voting was by voice there, you'd go to the polling place and your neighbors and friends or maybe you're not so friends, never you voted well. And then there came into being what I think of the some political side is called the Australian ballot. Apparently they were the first ones to introduce the, the written or secret ballot, so that your how you voted would not be known. And this obviously became a flashpoint in debates over the years. Because if everybody knows how you voted, then there's the opportunity for pressure being put on voters or the various inducements to vote one way or the other. So that's been something of this is a flashpoint in 19th century debate.

Katherine Hansen 35:41

Can you talk about the significance of the state constitution providing a method of amendment?

AE Dick Howard 35:48

I'm sorry, producing What?

Katherine Hansen 35:50

providing a method of amendment or the method of

AE Dick Howard 35:53

amendment? You know, that's, that's very interesting. The 1776 constitution, said nothing at all about amendments. I think the framers of that constitution assumed that if Tom came to rewrite the Constitution, that Virginia would just simply have a convention and do it. So tell us no provision from what we find that sort of fantastical we just take for granted that there will be a plot an amendment clause in the Constitution. And interestingly, at the 1829 30 convention, the motion was made on the floor to have to add an amendment clause but the conservatives, john Randolph of Roanoke, for example, who is the famous speaker, that generation opposed to having an amendment clause he said, this constitution is, is a bad way he hated reform. He said, this constitution we're adopting is bad enough. If you put an amending clause in there, people make it even worse. So and also argument carried the day, it was not until 1851, that the Virginia constitution had a provision for amending. So increasingly, amendments have become very common. I mean, you go to the polling place in Virginia, chances are you'll have not only candidates for office, but you'll have proposed amendments, some of which you will never have heard of, because they're often fairly technical amendments, or things that haven't been given a lot of notice. But it is very easy to propose and adopt amendments today, compared to the old days.

Katherine Hansen 37:34

So I know that the state constitution also established a statewide system of free public schools, and introduced voting by ballot and extended suffrage to black men. Would you like to talk any more about the significance of what the state constitution did for Virginians?

AE Dick Howard 37:51

Well, I think, to sort of sum up, what was happening after the Civil War was that the traditional white conservative leadership had was pushed aside and did not have a direct hand in the right there were conservatives at the convention in 1867 68, but they were the minority. So until at least our time, I'd say progressive forces had more influence in that reconstruction constitution that they had thereafter, which I'm sure we'll get to talking about 1901 1902, which is really a very different story.

Katherine Hansen 38:30

Yeah, I think this is a great segue point. So how did it go from 1869 1870 30 years later, and you have 1902 that's just completely marked with white supremacy.

AE Dick Howard 38:43

You can imagine the distaste that conservative Virginians, after the Civil War had for the 1870 constitution. They they called it the Underwood constitution, because a federal judge named Underwood presided over the convention. He was also the same judge that presided over the treason trial of Jefferson Davis. So that was a way of sticking a thumb in the eye of conservative Virginia's at that time. So as time moved along, reconstruction came to an end in 1877. When the last federal troops were withdrawn from the south, that was a disputed presidential election. went a little bit about that today. But there was a dispute in 1876 as to which candidate the Republican or Democrat, tilled her hay is which one had one and they finally had a when they finally compromise that one aspect of the compromise was ending federal troops in the cell. So once reconstruction was at an end, then the backsliding began, southern states started passing laws that restricted the rights of African Americans. They couldn't openly take the vote away because they could they couldn't reinstitute slavery the 13th of may That took care of that. So even though they couldn't put blacks back into slavery, again, they, the rights of African Americans were increasingly restricted, for example, by so called Jim Crow laws that really made it difficult for, for black agricultural laborers to leave the land. And these former Confederate States, the southern states started rewriting their reconstruction constitutions. The first one happened in Mississippi in 1890. Other southern states followed suit. And then finally a convention was gold in Richmond in 1901 1902. The delegates who were elected to that convention, this is the post reconstruction constitution. The delegates who went to that convention, were openly pledged to white supremacy. They made it clear that they were there to represent the interest of white Virginians, and get African Americans out of the polls and off the ballot so that they simply would not be a part of the of those who enjoyed the franchise in post reconstruction of Virginia.

Katherine Hansen 41:13

It looks like at every state constitution, there is there's amendments, there's progress, we're moving forward, and the 1902 state constitution just feels like a major backslide and all the progress that had been made. Where do you what do you have to say about the 1902 constitution in the grand scheme of all of Virginia's seven constitutions?

AE Dick Howard 41:33

You're absolutely right, the sweep of the 19th century, through the 1870 constitution was more and more inclusive of white male. universal suffrage as of 1851. African Americans added to the roles in 1870. Women, of course, were not yet added that didn't happen until the early night and early 20th century, but otherwise, the the direction was towards inclusivity. Well, that changed dramatically in 1901 1902, because that convention, they couldn't reinstitute slavery, but they were determined to move the clock as far back as they could. And they had they had a template at hand they Mississippi in 1890, in rewriting its constitution had used the poll tax, that use uncivil understanding clauses that require that you be able to interpret the state constitution. Confederate Veterans and their sons were automatically in franchise property owners were typically in franchise. So the target, the crosshairs, were on black voters, and the delegates in Richmond in 1901 1902, made no secret of their intentions. The debates of that convention are interesting. They're readily available. We aren't really surprised when we read those debates of what they actually did, and how the delegates behave is shocking. All the same hell today, I suppose if you had white supremacy on your mind, did you want to undermine the right to vote of black citizens? You wouldn't say that, I mean, you'd be much more delicate or indirect, you might talk about the integrity of the election or safeguarding the ballot, you dress it up in nice language, but they didn't do that in 1901 1902. When you read those debates, one of the delegates said for example, he was it was to be understood he was there to protect the interests of play people is white man looking for white people. And the delegates talked about the inherent right of, of the Anglo Saxons to rule that that's the way things were and that blacks were going to be second class citizens, and they all ought to accept that. And indeed, when the question was raised in the debates in 19 119, oh two, as to Well, we know what places that for African Americans in Virginia, and one of the delegates said, well, that's easy enough. They belong on the land. They belong in the cotton fields, and they tobacco barns and they're meant to be agricultural laborers. That's the place and they simply have to have to accept that fascinating argument, dramatic arguments that delegates induced deuced history and theology. They said, you can look at the 1000s of years of civilization and black people have contributed nothing to it. They've had no advancements in art. They aren't sort of though the sciences. They've been white country contributions. theology was brought into play a Mandela said it's God's plan. God created the white race as the superior race and therefore We have to write a constitution that reflects that. So a number of arguments were made. The delegates said, education would be wasted on on black, black prevail, maybe you might teach them the rudiments of, of arithmetic or reading. But if you told them to read, they wouldn't read something good. Like the Bible, they would go off and read something like Uncle Tom's Cabin, and get some of the ideas and not remember their place, at least of all, could you imagine, said these delegates or blacks exercise in the professions of the unimaginable that a black would practice law practice medicine? So there was this notion that the African Americans of Virginia very distinctly subordinate class in every sense, socially, legally, and politically,

Katherine Hansen 45:55

what was the public's response to this constitution?

AE Dick Howard 46:00

Well, it depends on what public you mean. It's the you know, the the racial aspect was front and center. I mean, Carter glass was the delegate at the convention. And he, someone asked whether these franchise provisions would discriminate. He said discriminate, what do you think we're here for? We're here to discriminate, just as far as the Federal Constitution will allow us and the US Supreme Court in a test case 1898 that had upheld the Mississippi constitution, there was a challenge to that constitution. And that challenge was rebuffed. The Supreme Court said that constitution was okay. So the convention in in Richmond, 1901 1902, use a number of techniques, they use the poll tax. So dollar, half a year, which doesn't sound like a lot of money, but in 1902, it was a lot of money to a working man. They exempted Confederate Veterans and their their sons, property owners were okay. Otherwise, you had if you went to register, you had to go to the registrar. And he could open the Constitution of Virginia to any page and ask you to interpret it. Well, I mean, there are provisions that Virginia constitution I'm not sure I could interpret properly, but certainly thought clearly to the registrar, and I'm the wrong color. I'm a person of color. Nothing I say is gonna satisfy him. My explanation will not suffice. So I get turned away. Well, what's interesting there when you ask about public reaction is that though the African Americans were the principal target, the disenfranchisement of blacks carry with it, the disenfranchisement of a number of poor whites who also lost the vote. So the number poor white people were ousted from the ballot justice right alongside blacks. Now, you would think that the public would see hear about this new constitution and say, wait a minute, you know, many of us are going to be disenfranchised. And you think they'd vote voted down. The 1971 constitution was approved by overwhelming majority, you'd expect the 1902 proposal to be defeated that people would vote no. Well, the framers delegates of that 1901 1902 convention, thought of obviously thought about it, they would they were morally pledged when they read for election to the convention, they had promised to submit the new constitution to referendum to be voted on by the people. Well, they got to thinking about it. And I suspect, they said, you know, a lot of people who have been disenfranchised by this proposal may vote against that sort of logical assumption. So the convention simply promulgated the Constitution. Instead of having a referendum, they simply announced to the people of Virginia, guess what you've got now have a new constitution? Well, seems it certainly wasn't consistent with their promises when they were elected. So there was a challenge to that constitution. And the Supreme Court of Virginia 1904 said it was okay. to promulgate the constitution they they upheld it. So public, the flight, conservative public, no doubt approved of what was being done and white supremacy was a fairly generally held idea those days, but black Virginian certainly wouldn't have liked it. And I think poor Virginians to the extent they thought about it wouldn't wouldn't have either, but sadly enough, they've white supremacy, flavor of the 1902 constitution is consistent with the general era. That era, not only in the south, but in the north as well. The anti black sentiment of Virginia would have been paralleled by anti immigrant notions in the north. As Italians and Eastern Europeans and others were coming to America in great numbers. There was a southern tradition, a sort of white Protestant Americans of that time, were as disturbed in the north by the immigrants as white Southerners in the south were by the by the notion that blacks might be part of the political calculus. So America was not a very, there may have been progress in some respect, but not not an ethnic or racial terms. Indeed, that was also the period of imperialism. The Spanish American War had just just been fought. In 1898, we had acquired the Philippines and Puerto Rico. And we joined the

galaxy of imperial powers, with the kind of notion of sort of a missionary instinct that America was to export its advantages as its place in the sun to other people's to the Filipinos, for example. So I have to say that the 1902 constitution not only reflects racism and white supremacy in Virginia itself, but actually partook of a sort of a more general notion of what America was really about. You think, for example of the rise of the Ku Klux Klan, not strictly a southern phenomenon, the state in the 1920s, the state that had the most members of the Klan was Indiana, not a southern state. So 1902 in our Constitution is unhappily a metaphor, not only for the state of Virginia society and politics, but also a lot of what was happening in the country generally.

Katherine Hansen 52:00

So I think, from here, I would like to segue into the second part of our interview. Um, why didn't it take over 60 years for Virginia to decide to reform the state constitution of 1902?

AE Dick Howard 52:19

That's an awfully good question. Um, after the 1902 constitution went into effect, blacks were virtually wiped out as part of the electorate. In 1867, after the Civil War, blacks made up about half the voting population of Virginia. In the first general election after the adoption of the 1902 constitution, they represent less than 5%. So they were virtually excluded from the from the polls. Moreover, they restricted franchise Generally, the fact that the poor whites were often excluded was the basis for what became the bird machine in Virginia, Harry Byrd, who was governor in 1928. us senator for many years after that, how to measure very efficient machine it was sort of a gentlemen's club in a way in a way it didn't have to use violence in the light to be in tower was a very genteel machine, but it was a machine and it rule Virginia, by way of the rings in the various courthouses in Virginia. Based on the very restricted franchise, Virginia, compared to other states had a very low percentage of people actually voting in election. So that was a state of affairs right on into the 1950s. And things began to change after brown versus board in 1954, when the Supreme Court ordered desegregation of public schools, and then it really would get changed in the 1960s. So what do you think about the time span between 1902 and the 1971 constitution over almost 70 years time? The 1960s are the fulcrum that's that's the turning point because the 1960s were in their ways, a terrible decade, you've had assassinations of Martin Luther King, john F. Kennedy, Robert Robert Kennedy. arson and looting and riots and cities, at Vietnam protests, a number of things going on in the country. More to the point in thinking about why the Virginia constitution, finally under was seen to need change was a change in federal law. The Supreme Court in the early 60s, decreed one person one vote in legislative apportionment. Both Congress and the states congressman passed the Voting Rights Act of 1965. And that Virginia and the other southern states were under the jurisdiction of that act which required the data Any changes you've made of any kind at a voting law at the local or state level in those states would have to be approved by the district court in DC or by the Justice Department. So federal law was clamped on voting practices generally. The Supreme Court struck down the poll tax declared it to be unconstitutional. So there were a whole range of changes in federal constitutional and statutory law, which basic which really up the have lit a fire in effect under Virginia to change the constitution. They're also changes in Virginia itself, demographically, socially, that there was more move to the cities, the urban corridor from Northern Virginia to Hampton Roads was emerging. There was the beginnings of a two party system in Virginia, the Republican Party, which had been sort of relegated to minority status for many decades, was was appearing. Linwood Holton, the first Republican governor since reconstruction was was elected. So change was in the air. And I think it's fascinating that the person who initiated that change was governor Mills Godwin, because Godwin is a state senator had moved up through the machine, the burden machine, he'd been a conservative. He'd supported massive resistance. You would not have thought of Mills. Godwin is a reformer. But it was God when he was governor asked the General Assembly for authority to appoint a conditional constitutional revision, which which he did in 1968.

Katherine Hansen 56:41

How is the Commission on constitutional revision chosen and how were you chosen to be the executive director of this commission?

AE Dick Howard 56:48

Well, when that process got underway, and Godwin appointed a remarkable set of entity commissioners. Among their ranks for it was lewis powell, who letters later set on the US Supreme Court. Hardy Dillard, later a member of the world court of the Hague, Oliver Hill, who was the leading civil rights attorney of that era, he'd been involved in the brown versus board cases, and waited including Colgate Darden, former UVA governor, former president of the University of Virginia, an absolutely first class remarkable group of people. So they had a lot of a lot of people. They were the ones who went to work in the Commissioner of constitutional revision that were 11 commissioners all together. Albertus Harris and a former governor was was chairman. And they said work in drafted replacing the 1902 constitution with a modern document. I came into the picture at that point, they they needed a kind of an architect or draftsman, someone to be their executive director and they came to me, I just joined the Law Faculty, I was just a kid on the block. But I had the confidence of professors there that, hey, you want to write a constitution? No problem I can I can do that. Well,

what I thought that maybe I was thinking was like writing a will or a deed, you just go to the forum book and copy out the provisions? Well, a lot more that I did I at that point, when I accepted the job. I was dimly aware of the old Virginia constitution, but I'd never read the document, never sat down and read that read through it. Of course, I did that as soon as I was appointed. And when I did, I was amazed at what I found not only the discriminates discrimination that we've we've talked about, but it read like a statute book, it had all sorts of detail about the state Corporation Commission, the hours of the day, it would be open and all kinds of things that belong in the code of Virginia, not in the Constitution. There was even a provision that said if you fought a duel in Virginia, or second in a duel, you lost your right to vote. Well, we decided maybe duel was not dueling was not a burning social issue in Virginia in the 1960s and 70s. So we've talked that out. So if you've noticed dueling has come back, you have to blame the commercial gas station, Executive Director for that. Well, I signed on the job and I had lawyers to help me they we divided the commission into five subcommittees, and each subcommittee had a lawyer helping them out use a law professor, or some other lawyer. And we worked through the spring and summer in fall of 1968. We were rather tight for a short fuse. We were able to do the entire job in about a half a year. So we were working on a short fuse in 1968. Through the spring, the summer in the fall, we reported to the governor and general assembly and on January the first 1969 The Commission's recommendations will of course, the next step in the process was then the receiving and reviewing the report of the commission by the General Assembly. The legislators could do what they pleased with the commission's report. I was very well, I was really impressed with the commission itself. I mean, working with people like Oliver Hill and Lewis Bell was just an amazing experience for me. But I was also impressed with the General Assembly when they received the report. I frankly, I went to Richmond, I was asked to be counseled to the General Assembly, to be their advisor, to explain the Commission's work and help them help them with with their job in Richmond. And I was, I was concerned that the legislators would succumb to special interest, they would mess up the Commission's draft that they would put in bad provisions and take out good ones. And I have to say, I was impressed with the way they legislators rose to the occasion that they really took the job seriously. They had a sense of the of the common good, there was no partisanship. There was no real ideology that legislators simply tried to do to do a good job. So they approved most of what the Commission had done, they obviously made some adjustments, mostly mostly for the better. So finally, after the end of the 1969 session, technically, the new constitution that became the 1971 constitution, technically, it was an amendment to the old constitution. So because in that sense, it required because it was a replacement, but still technically a one big amendment. So that meant it had to be approved by two sessions of the legislature with an election of the House of Delegates intervening. So what the 1969 session did had to be reaffirmed by the 1970. session, you couldn't change a word of it all had to be word for word what was approved in 69. So this is 1977 did that. And then it had to go to the people. The final step, of course, was popular referendum.

Katherine Hansen 1:02:21

Can you tell me more about the referendum campaign?

AE Dick Howard 1:02:24

Yes. Again, I was directly involved. Linwood Holton was governor by that time. And he asked me if I would direct would organize and direct the referendum campaign. Well, now that was a real challenge. Because I mean, during the drafting part, even the legislative adoption port was closer to my expertise as a constitutional lawyer. But the referendum campaign was politics, taking it to the people. I'd never worked in politics and ever worked in a campaign. I've made a bet a poll worker when I was a kid working, handing out ads, sample ballots or something. But I was not one who'd been involved in large campaigning, so I agreed to do it. And I decided I should do whatever one would do. If you were running a campaign for statewide office. may remember we we didn't have a flesh and blood candidate, we were trying to sell a piece of paper, which is a bit abstract and remote. And my principal concern was that people just wouldn't understand it would admit, misunderstand it, maybe not know enough about it. And if so, would simply vote no. But came so I took leave of absence from the law school, and went all over Virginia making talks to groups from Big Stone gap in the far west, and then koco in eastern shore, and everything in between. I think I've visited just about every county and city in Virginia. And then in addition to my making talks, we had a speaker's bureau so that the local Rotary Club wanted to speak around the Constitution, we could furnish one. We had billboards and television advertising and bumper stickers and lapel pins, all the paraphernalia of the campaign, all paid for by private money. There was no state money involved at all. We raised laughable about about $100,000. Today. You could hardly get started a campaign with $100,000. But it was suffice at that time. We had a lot of volunteer help a lot of people pitched in. And what we did was at the state and local level was to be sure we involved Republicans, Democrats, independents. We wanted a campaign that was a campaign across the board to show that there was no ideological basis for the Constitution. We we had some opposition was my first encounter with conspiracy theory. theories. The conspiracy theory was that this proposed Virginia constitution could not have been written in Virginia, because it was too radical. It just wasn't Virginia wasn't traditional Virginia, it must have been written, I don't know where Beijing or Moscow or worse yet, maybe in New York or Chicago, but somewhere other than Virginia. And of course, I had to laugh at that. Because if it was a conspiracy, it was a conspiracy that included Colgate Darden, lewis powell, Oliver Hill, and 140 members of the Virginia legislature, it had to be history's largest conspiracy. So on the extreme right, there were people who complained, they were not very effective, the sort of conservative leadership of Virginia was on board, we had those folks as well. We had the resolutions passed by major statewide groups in support of the Constitution, the Chamber of Commerce, the labor unions, the Crusade for voters, a black group in Richmond, and so forth. So we really had a very broad based campaign. So when the time came, when election day came, we got 72% of the vote, which if you were running for office, you'd be thrilled with that, that would be a landslide. We'd lost a few counties on the North Carolina border, Charlotte, Mecklenburg, Prince Edward, the few of those counties, because down there, the charge was made that the new constitution would bring about school busing. And the early 70s School busing was a big issue just it just was being implemented by Federal District Courts around the country. And the opponents of the proposed Constitution said they're gonna centralize the education system and make school busing newer or the day well, we, luckily, that charge didn't really take hold statewide. So we, we put it into effect, and it became effective on July 1 1971.

Katherine Hansen 1:07:08

So having worked on this referendum campaign, and specifically, I'm referring to the conspiracy theories, do you have any sort of comments to make on the current state of dissemination of information and news?

AE Dick Howard 1:07:23

Well, you know, 1971, in many ways was a different era. I hesitate to call it the golden age of Virginia politics. But it was a time when the leaders to left and right, Republicans and Democrats of whatever stripe, understood common ground, they could come together in the Commission and the legislature and in the referendum campaign, they could come together to achieve the common good. And they were able, I think they were sensible enough to write a document which while reform minded wasn't too radical, it did put behind us the unhappy legacy of white supremacy and racism we now have in the constitution and anti discrimination clause, no governmental discrimination on the basis of race or color or national origin. Or by the way sex, even though Virginia did not at that time, ratified the national era, and how to literally alrea in the state constitution. education reform was achieved. It was the safe progressive document. I think it would be, frankly, difficult, perhaps impossible to do the same job today. I think we can amend the constitution as we do from time to time. But the notion of calling a convention or having a wholesale rewrite of the Constitution, would I think, right up on the shoulders of not only partisanship and ideology, but conspiracy theories, I think the conspiracy theorists would come out of the woodwork, they'd be and and then single interest people would be heard from it wouldn't whatever the single interest was, whether it's abortion or guns, or you name the issue on either side, people who have that persuasion, if they didn't get what they wanted in the Constitution, they'd be against the whole thing. I think it'd be very difficult to write a new constitution, and even more difficult to get it to get it ratified by the people. That being so amended. We live in such an unhappy stage of partisanship and division and the like. And the politics of the nation has filtered down to Virginia. Virginia's politics used to be more isolated from these national trends. That's not true anymore. So I think in the in the state of affairs, I mean, it's democracy in some ways is being threatened by what's going on And now me that the the notion that the 2020 election was illegitimate that the President was not legally the election was a fraud. I mean, that's such a fiction, but unfortunately bought into by lots of people. And unfortunately, it is taken the charges, it's taken hold in certain quarters. That being so mean. So I remain an optimist about American, the American system. And I think a healthy part of it is in Virginia, at least, to us. The 50th anniversary of the Virginia constitution as an occasion to think about the fundamentals, I think it's a it's a good constitution, but it's not perfect. No doubt you can think of changes ought to be made amendments that might be brought about some that I would support that I would be in favor of. But I think if you look at the document, and think of it as a way that the people of Virginia express their aspirations, about how a free people govern themselves, and in modern society, the state constitution is not a bad textbook. The Federal Constitution is pretty remote. As we've agreed, it's very hard to amend very rarely amended, but if you think change is needed in the way Virginians govern their own affairs, the state constitution is there to be to be adapted to that time. I'm reminded once again of what I quoted earlier named George Mason's language, that free government depends on the frequent recurrence to fundamental principles. And I think constitutional government depends in so many ways, not just don't having good people in office. But it depends on a constitutional culture. And by that I mean, that there's certain assumptions you make about government that people should buy into. It requires civic education, not only education of schoolchildren, but civic education of the general general populace. And, as I say, I think going back to thinking about examining critiquing the present Virginia constitution offers an opportunity to for that exercise in civic responsibility.

Katherine Hansen 1:12:25

So to circle back to this document, what are the fundamental principles and the provisions of the 1971? constitution?

AE Dick Howard 1:12:34

Well, I think maybe the central features of that constitution were as follows First, the repudiation of white supremacy and, and discrimination, that the one of the foundational stones of the present constitution is equality, the anti discrimination principle, the access of all, all right, all qualified voters, to the valid place without without limits, unnecessary limits being placed upon that I think the notion of fair and just society is one of the cornerstones of the Virginia constitution. Secondly, I think, education, that it's not enough to have access to the ballot, you want to an educated populace, so they can act upon they can internalize the teachings of free government. And that I think the education article is important. The framers of the 1971 constitution actually included education of the Bill of Rights in the alongside the traditional rights such as free speech and free exercise of religion. The Bill of Rights in Virginia puts education as a as a fundamental value. The framers actually draw drew on Thomas Jefferson's bill for the more general fusion of knowledge, a 1777 document, drew some of its language and put it into the present bill. Right. So I think the central focus on education as a fundamental value, not simply as so as a function of government, but something more basic than that. I think that's one of the fundamentals as well. Thirdly, I think, as a functioning government that works readily, and accountable government that people can look to, to carry out the people's wishes. They all instrument of governance was fairly clunky. There were problems and implementation. The President constitution is much cleaner and it it really enables Accountable Government during the campaign as I was traveling around Virginia. I said, I think one of the features of this proposed Constitution is that it brings government Look closer to the people. It is it creates Accountable Government. I think that's one of the premises. So I think in every respect the Virginia constitution, I should not say in every respect, there are ways in which it's still imperfect. But it is based on fundamental principle. It reflects the kinds of teachings that frager carried abroad, I had the privilege of working with constitution makers in some foreign countries, especially after the collapse of communism. After the Berlin Wall came down, I spent a fair amount of time in places like Prague and Warsaw and Budapest, comparing those with framers of post communist constitutions, and I didn't try to I didn't hold out the US Constitution as a model. It's clearly not you couldn't simply copy it. But I did say we I think the lessons of America's constitution, constitutional history, are that there are certain fundamentals which you need to have in play, to have constitutional government, for example, the fundamental proposition that if you have an election, you lose the election, you step aside, you let the other side get on with the process of governing, and you become the loyal opposition of you. You wait and fight out the next election hoping that you'll win that win. I mean, these simple things, which, of course, are ignored in so many parts of the world, we sadly have a trend to authoritarianism in so many places, obviously, China and Russia, but also places like turkey or Hungary, or a number of other countries. So hope I wouldn't seem chauvinistic. If I suggested to people embarking on the writing of a constitution in some other part of the world that they actually could look at the experience in writing American state constitutions, including Virginia, because they are periodic exercises, they require framers, legislators, the general public, to think about the foundational principles that that animate free government.

Katherine Hansen 1:17:17

What has worked from the 1971 constitution? And if you'd like to segue into this while you're talking, what has or not what hasn't worked, but what do you think should be amended?

AE Dick Howard 1:17:28

Well, that's a fascinating question. I have thought about the 1971 document. Obviously, we're, especially because we are at the 50th anniversary. And I can think of things that we thought had been dealt with, but turned out not to work as well as one would have hoped. In particular, you have to remember that whatever the framers of the Constitution, think they have done, no matter what their intentions are, the courts have the final say, like is the people have the final say, but the courts are the ones who interpret the document, to give you an exact concrete example of something that I thought had been dealt with, but that turned out not to work. We put into the Constitution, in drawing legislative districts, that those districts had to be compact and contiguous. Now, that's not self defining language. But it's, you could look at a map and tell us something is compact or contiguous. Unfortunately, the Supreme Court of Virginia for whom I have great respect,

are unduly deferential to the legislature. They, understandably are very reluctant to second guess the legislature on reapportionment. So they basically upheld legislative apportionment that I would have thought was not consistent with the constitutional command, compact and contiguous. That was a case, for example, where part of a district was in Portsmouth, and the rest of the district was in Hampton on opposite sides of Hampton Roads, that enormous body of water. And the Supreme Court of Virginia said, well, that's contiguous because the two parts of the district are joined by a body of water. Well, I just can't bind to that kind of reasoning. But I think it's because the courts just don't like to have to tell legislators what to do when they're drawing district lines so that what I thought dealt with things like partisan gerrymandering turned out not to work well. And that's why we have now as as I'm sure most people know, a commission made a part of legislators partly of citizens. That's looking at the redrawing of district boundaries. We'll see how that works. I personally would have preferred having a commission made up entirely of citizens but at least the what we put into place is a step in the right direction to give you another concrete example, The voting rights of felons. I think the commission in drafting article two, the franchise oracle of the 1971 constitution did not loosen up sufficiently, the prospects for restoring voting rights to former felons. Virginia is one of the strictest strictest regimes in the country that if you've been convicted of a felony, you lose your right to vote permanently. Unless and until the governor restores that, right? Well, I think once you've served your time and you're back in society, you've paid your debt. I think restoration of the franchise should be automatic. So that's a change I would make. That probably some others like that. They've contrary that Dillon's rule, for example, the rule is says that localities only have those powers which are specifically given to that locality by the legislature. I would reverse that rule on Jeffers, so sufficiently a Jeffersonian that I believe in local government, I think counties and cities should have all powers, not specifically denied them by state law. That would be it. I think government close to the people is more responsive and don't always get things right. But I think it's just simply a good principle. So I think these are adjustments. I personally, even if I thought we could rewrite the Constitution, I would not overhaul it. I've already said it, I think that would be a dangerous prospect. But I think that it ought to be studied closely by people, they should look at the Constitution. Think about specific concrete issues. Should the governor for example, be allowed to run for a second term? Virginia is the only state in the country where the governor cannot run for a successive term, we have the one term limit? Well, we'll debate whether that's a good idea or not, that would be an important question. What I would not do is loaded up the constitution with a lot of social issues. I mean, there's a temptation. If people care deeply enough about a particular issue, to say, well, we ought to put it in the Constitution. And sometimes that's too easy to do. For example, we now have in the Constitution, an amendment that guarantees the right to hunt and fish. I'm not aware that the right to hunt and fish was ever in any kind of danger in Virginia. But when that was proposed in the legislature, I mean, what legislators going to vote against the right to hunt and fish that, say, put it on the ballot, and people, people adopted it. So we have to be careful not to turn the constitution into a statute book, that they go, that would be part of my advice to the people of Virginia.

Katherine Hansen 1:22:53

This is the 50th anniversary, and I was just wondering if there's anything that you've been reflecting on heavily coming up on this anniversary?

AE Dick Howard 1:23:02

Well, I have indeed, I mean, I'd like to think I'm sufficiently honest with myself, to look at this document and say, does it work? Does it do what Virginians need? Does it respond to the, to the requirements of our generation at time? And as I say, I think it's it's pretty good. I think it has not, they can survive the test of time pretty well, but I've been giving it a lot of thought, oh, there have been events that have taken place. The Library of Virginia had a program on July the first, that the governor had a reception at the Executive Mansion, celebrating the occasion, musing on what we accomplished in 1971. And what has struck me I was not really prepared for this. I had always felt the constitution was a distinct break with 1902. Though reputedly repudiated white supremacy repudiated the ad, the discriminatory flavor of the turn of the 20th century, I didn't realize that the 50th anniversary would come at precisely the moment when the entire nation has have been preoccupied with racial justice, the death of George Floyd, the emergence of Black Lives Matter, any number of ways in which clearly Americans are thinking more than they used to about racial justice in America. And I think that I'm prepared to say that the main stream of what the 1971 constitution accomplish it accomplishes is in line with some of this rethinking that take Confederate monuments for example, they're coming down in Charlottesville, Richmond and a number of other places. Those monuments went up not right after the Civil War, not in the during the reconstruction period, but a generation or two later, they mostly went up in the early 1900s I'm writing in Aberdeen, in Richmond, in the parks in Charlottesville, one of the places that coming down now and I think that change of attitude, what it is we celebrate by is in public spaces in Virginia, on 90 minute Avenue in the Charlottesville parks and so forth, the rethinking of how we want to sort of signify what we care about what we believe in, in public spaces, has an interesting parallel in the Virginia constitution, that just as the 1902 constitution, when it became effective about the time that they leave monument was put up on monument Avenue in Richmond. Similarly, the 50th anniversary of the 1971 constitution is a reminder, in my judgment, at least that the new constitution, it's not Valhalla, and we're not there. Yeah, there's a lot of work to do. But it is an important step in the right direction. That is historic that once again, we've begun to define the political community in inclusive terms, that we're back on the track, that was partly accomplished in the 19th century, from 1776, to 1870. The notion of opening up participation in government to more people not not fewer, interrupted as it was in 1902, that we, as a 1971, were, once again headed in the right direction. And to repeat myself to say the words not all done, there's obviously more to do, I think it's not so much a matter of what's in the Constitution. It's a matter now of acting on the Constitution, in public policy of statutes that are passed, and in general, how the people of Virginia decided to behave. So I think that to me, is one of the very appropriate reasons to be thinking about Virginia's constitution on its 50th anniversary.

Katherine Hansen 1:27:00

We've talked about how none of these documents are concrete, and they continue to evolve. What do you think is the importance of reflecting on Virginia, six or seven iterations of the Constitution and remembering our history?

AE Dick Howard 1:27:15

Well, so easy to ignore history? I mean, it's yesterday, right? Although I think it was William Faulkner said the past never is past, it's still present. And in the south, that's especially true. I mean, I was born and raised in Virginia, and I, very much aware of how we feel in the south, about family, about land, about place about tradition. That's an important part of our heritage. But we tend to be a historical in that we, we often will simply ignore, maybe not even have learned about, but certainly not tend to remember things that happened yesterday. When I was growing up in Richmond, it was very much the wall scholars got a mentality. And the textbooks that I was given in public schools in those days, didn't talk much about the evil side of slavery, the bad side of Southern history. I think it's more addressed in education today. But I think, as one reflects looks back over those several Virginia constitutions started with 1776, running through 1971. And through the pleasant present time, it's a chance to revisit history, it's a chance to think about what happened in and why it's a chance to say what went wrong. What can we repair, as well as a chance to say, Well, what what went right. But I don't think revisiting history should be an exercise in self flagellation, of course, we should recognize the mistakes that we're making and try to put them right. But there's an enormous amount of good, that's very positive, in Virginia's constitutional history. I keep going back to the Declaration of Rights, I think that 1776 document takes its place, along with a handful of the most important constitutional documents in the entire western world is right up there with Magna Carta, the English Bill of Rights and other documents like that. It is it glows with aspirations of what free government can be amazing that the people of that generation, George Mason and his colleagues could write something which is stood the test of time so well, as I think the Virginia declaration is done. So Virginians who were asked to think about their constitution, his predecessors, his general history, should be thinking about the good and the bad. What we would like to retain what we would like to reject what does it all mean? And what does it mean to be a citizen? What does it mean to be part of the Civic enterprise that we like to sell? All right in this country I think those are sort of things that I hope people would be thinking about as we mark the 50th anniversary.