This year marks the 50th anniversary of the 1971 Virginia Constitution, which replaced the Jim Crow constitution of 1902. Last week, the Virginia Journal of Law and Politics hosted the first of two symposium sessions commemorating that anniversary, with papers to be published this academic year.
My contribution (co-authored with Alex Retzloff), excerpted here, considers why the 1971 revision did not include a home rule provision. Hint: it may have something to do with the Commonwealth’s racial politics. (The full article can be found here.)
This is a story about what the 1971 Virginia Constitution does not include.
In 1969, the drafters of the new Virginia Constitution—the Commission on Constitutional Revision (CCR)—included a proposed provision stating that “a charter county or a city may exercise any power or perform any function which is not denied to it by this Constitution, by its charter, or by laws enacted by the General Assembly. . . .”
This proposed “home rule” provision was similar to a number of state constitutional provisions across the country, so to the drafters it likely seemed straightforward and uncontroversial. Indeed, most states had adopted some form of home rule by the 1970s, either in a wave of Progressive Era reform or later at mid-century. It seemed natural that Virginia, in the course of bringing its 1902 Constitution into the modern era, would follow this trend.
The proposed home rule provision, however, was never included in the final draft constitution that was approved by the General Assembly and sent to the voters for ratification in 1970. It was quietly dropped. Virginia continues to adhere to a fairly strict form of Dillon’s Rule, a rule of judicial construction that holds that local governments only enjoy those powers that are explicitly granted to them by the General Assembly. And though there have been repeated discussions of adopting home rule, the absence of a general grant of local authority in a modern, twenty-first century constitution is notable.
The 1971 Constitution should be rightly celebrated for reforming the previous Jim Crow constitution and bringing it into the modern era. But it is also notable what it failed to do. In tracing the genealogy of state-local government relations in the Commonwealth, one discovers a profound resistance to empowering local governments. As a formal matter, and despite reformers’ repeated efforts, Virginia remains skeptical of devolving substantial power to local governments.
This skepticism is somewhat ironic in the home state of Thomas Jefferson, perhaps the most famous proponent of small-scale, yeoman-oriented republicanism. Jefferson had long advocated for a ward system, modeled on the New England township, which he believed would be “the most fundamental measure for securing good government, and for instilling the principles and exercise of self-government into every fibre [sic] of every member of our commonwealth.” But Jefferson’s bid to remake Virginia’s local governments in the wake of independence failed early on. Almost 150 years before the General Assembly jettisoned the home rule language for the 1971 Constitution, Jefferson also failed to convince his fellow Virginians to reform its local government system. His proposal to divide the Commonwealth into wards was rejected by the 1829-30 Convention that was called to revise Virginia’s 1776 Constitution. The 1830 Constitution, and subsequent antebellum constitutions, did little to alter what Dan Farbman has called the “plantation localism” that existed in Virginia, in which the all-powerful county court system, dominated by planter elites, governed slaves and poor whites alike. After the Civil War, Reconstruction-era efforts to introduce a township system to replace planter-based local government also failed once conservative Southern Democrats regained power. The new “Jim Crow localism” (again, thanks to Dan Farbman) of the late nineteenth century looked a lot like the “plantation localism” that had existed before. For much of the twentieth century, this form of localism was reinforced by the Byrd Organization, a political machine that operated through the county system and effectively limited the exercise of power in Virginia to a small cadre of state officials, led by the architect of Massive Resistance, U.S. Senator Harry Byrd.
This history is informative as we reflect on the past and future of home rule in Virginia. The planters are mostly gone and local governments in the Commonwealth have been authorized by statute to exercise many of the conventional powers of local governments. But echoes of the old ways remain. The lack of effective local initiative power means that increasingly populous cities cannot address local problems in the first instance but must wait for legislative approval. And Dillon’s Rule continues to be invoked to stymie local experimentation, entrenching a political culture of local passivity and permitting local officials to deflect responsibility by blaming the legislature for problems they would otherwise be compelled to address.
The failure of home rule reform in 1971 cannot be attributed to the same factors that doomed local government reform in the 1830s and 1870s. Even so, the “Virginia way” exerts a strong pull. In one era, the distrust of local self-government may be driven by a planter aristocracy fearful of losing control of a restive population. In another era, that distrust might be driven by entrenched interests comfortable with a system of legislative supremacy that serves to guard and enhance their influence in the General Assembly.
The dissatisfaction with the absence of local authority continues, however. In the fifty years since the 1971 Constitution was ratified, four commissions have been convened to consider reforms to Virginia’s inter-governmental system. Most recently, in 1992, a Governor’s Advisory Commission recommended discarding the Dillon’s Rule canon of strict construction, but the proposal was never taken up. At the start of the second decade of the twenty-first century, highly salient state-local conflicts have again emerged over Confederate monuments, gun regulation, environmental protection, minimum wages, and anti-discrimination law—to name just a few subject areas of state-local conflict. Yet constitutional reform continues to elude those who, like Jefferson, have sought to endow local governments with more power in Virginia.