09/18/16: The ever-changing Virginia Constitution

This op-ed appeared in The Virginian-Pilot on the date shown.

IN ADDITION TO the presidential and congressional contests, Virginia voters will be asked to weigh in on two amendments to the state’s constitution. The first modifies Article I, which is our Bill of Rights. The second modifies Article X, which covers taxation and finance.

Amending the Virginia Constitution is nothing like amending the federal Constitution.

The U.S. Constitution, adopted March 4, 1789, has had 27 amendments to it. The first 10 of them, known as the Bill of Rights, were adopted and ratified at the same time. Three-fourths of the states have to approve an amendment in order for it to become operative – not an easy task. The most recent amendment, ratified on May 7, 1992, was first proposed on Sept. 25, 1789, as a part of the original amendments. It prevents mid-term pay raises for lawmakers. There is one other amendment from the original batch that has never been ratified.

Newer amendments to the U.S. Constitution require ratification within a set time frame. Perhaps the most well-known is the Equal Rights Amendment, which fell short of ratification by three-fourths of the states. Its ratification period, after extension, ended June 30, 1982, although 35 states – three short – had approved it.

By comparison, Virginia’s constitution has had six major revisions since it was adopted on June 29, 1776.

Our current state constitution, approved by the voters, took effect July 1, 1971. Amendments are frequent: according to the database maintained by the Virginia Department of Elections, 38 amendments were put to the voters between 1972 and 2015.

Of that number, 32 were adopted. One lawyer I know refers to the Virginia constitution as like a Christmas tree – and the amendments are the ornaments.

The frequency of amendments appearing on our ballots is a result of the process. The legislature must pass proposed amendments twice, with a general election of the members of the House of Delegates in between.

The amendments we have this year were passed in the 2015 and 2016 legislative sessions; recall that all 140 seats in the legislature were on the ballot last November.

Sometimes, proposed amendments seek to enshrine into the state constitution existing law. The reasoning here is that laws can be changed by the legislature, while the constitution can only be changed by the voters. It is why we had the so-called Marriage Amendment in 2006.

Other times, proposed amendments seek to correct a prior amendment. You may recall another one from 2006 that removed the provision that prohibited the incorporation of churches. This amendment was necessary because the provision was ruled unconstitutional.

The first of the proposed amendments this year falls into the first category. Virginia has long been a right-to-work state. According to the explanation provided by the Department of Elections, “This has been the law and the declared public policy of the Commonwealth since 1947.”

The second proposed amendment falls into the second category. Section 6-A of Article X requires the legislature to exempt from taxation real property of certain veterans or surviving spouses.

This section was last amended just two years ago to include surviving spouses of those killed in action. The proposed amendment would add another section, and permit the legislature to enact a law allowing localities to exempt from taxation the real property of certain emergency service providers.

I am not a fan of Virginia’s constant constitutional amendments. They are a blatant attempt to bind future legislatures with the veneer of voter approval. Voters – preoccupied with other elections – are presented with a favorably worded question and little else, no doubt the reason why the passage rate is so high.

Unfortunately, it is up to us to seek out the information on the proposed amendments. A good place to start is by reviewing the official information on them on the Department of Elections website.