Legal opinion: Don’t clutter the Constitution of Virginia

Bad idea: Constitution of Virginia author Dick Howard advises against amendments, especially for social and economic issues. Photographed here in 2006, when he warned against the now-unconstitutional definition of marriage amendment.
JACK LOONEY Bad idea: Constitution of Virginia author Dick Howard advises against amendments, especially for social and economic issues. Photographed here in 2006, when he warned against the now-unconstitutional definition of marriage amendment. JACK LOONEY

Virginia voters will notice two constitutional amendments on the ballot in November, and given past history, they’ll probably pass them, despite legal experts concerns that such amendments clunk up the state constitution.

The first amendment on the ballot enshrines an existing right-to-work statute that prohibits employers from requiring union membership. The second allows spouses of first responders killed in the line of duty to be exempt from property taxes if their localities agree.

UVA law prof Dick Howard drafted the current constitution, which was approved in 1971. “The constitution embodies fundamental law—the branches of government, local government, the bill of rights and individual rights,” he says. “The more you load the constitution with policy judgments, the more it’s like a code.”

Howard also says it’s a mistake to put social issues into a constitution, and points to Prohibition as exhibit A for bad amendment ideas in the U.S. Constitution. More recently, Virginia’s definition of marriage amendment in 2006 is another example of an issue upon which American public opinion quickly changed and which has been struck down by the U.S. Supreme Court.

While Howard thinks the effect of the property tax amendment is inconsequential, he says, “In principle, that should not be in the constitution. Don’t use the constitution to rewrite the tax code.”

He calls the right-to-work amendment “highly controversial,” and notes there is no constitutional challenge to the statute. “It’s a non-issue,” he says. “Some are arguing the attorney general of Virginia, Mark Herring, is not to be trusted to enforce the statute. I think that’s a chimerical concern.” Some Republicans voiced concerns after Herring refused to defend the state’s same-sex marriage ban, which was being challenged as unconstitutional.

Delegate David Toscano (D-57) says there’s no indication the attorney general will not enforce the statute. “That’s a red herring,” he puns. The amendment “is a clear case of trying to solve a problem that doesn’t exist” for a statute that has never been challenged in a state with few unions. Its main purpose, he says, seems to be “to get people to the polls.”

However, Delegate Rob Bell (R-58), who is running for attorney general next year, says right-to-work is “fundamental” to Virginia’s business competitiveness, and by putting it into the constitution, “it’s less subject to change by subsequent legislatures.”

Bell says he’s “puzzled and concerned” by people who don’t think right-to-work is an issue, and that the constitutional amendment is like seat belts in cars: “We want to have protections in place.”

The property tax break for surviving spouses of first responders has a much smaller impact, says Bell, but without the constitutional amendment, localities can’t offer that break if they choose to do so.

To get an amendment on the ballot, the General Assembly must pass it two consecutive years with a House of Delegates election in between.

Recent amendments have tended to give property tax breaks to veterans or the elderly with disabilities. Bell carried an eminent domain amendment that passed in 2012. As for cleaning up now-unconstitutional amendments like definition of marriage, says Bell, “I’m not on that committee.”

For Howard, amendments typically are “good examples of how people misuse the constitution.” He mentions the right to hunt and fish amendment. “If ever there was a practice in no danger,” he says. “A lot of these are feel-good issues.”

And they almost always pass, he says.