Andrew Allard '25
Staff Editor
Pictured: Professor Bertrall Ross
Pictured: Professor A. E. Dick Howard
This past Thursday, September 15, the American Constitution Society held a discussion on Virginia’s Constitution and current legal issues, including Supreme Court reform and the independent state legislature doctrine. Held in recognition of Constitution Day, the event was led by UVA Law Professors A. E. Dick Howard and Bertrall Ross.
While Constitution Day commemorates the signing of the federal Constitution, Professors Howard and Ross emphasized the importance of state constitutions in legal activism. “Progressives have ignored state constitutions for far too long,” said Professor Ross. Pointing to the rights-forward provisions of Virginia’s state Constitution, Professor Ross emphasized that the federal Constitution does not set the ceiling for rights protections. He acknowledged, however, the difficulties of the piecemeal approach that is inherent to a state-focused legal strategy.
Professor Howard, who was Executive Director of the 1971 Virginia Commission on Constitutional Revision, similarly advocated for state constitutions as a source of legal rights. Professor Howard noted that state constitutions can set a higher standard for civil rights than the federal Constitution and are more frequently amended and responsive to democratic preferences. Professor Howard suggested that as the Roberts Court continues to lurch toward the right, state constitutions offer an alternative path for civil rights litigation.
Reflecting on his work for the 1971 Commission, Professor Howard noted the importance of respecting foundational values while modernizing and recognizing the values of the current day. However, Professor Howard highlighted one regret: the inadequacy of voting rights for former felons. Currently, Virginia felons remain barred from voting, even after serving their sentences, unless their voting rights are restored by the governor. In recent years, the Virginia General Assembly has sought to amend its Constitution to automatically restore the voting rights of former felons.[1] However, that effort stalled after Republicans took control of the Virginia House in 2021.
Turning to federal law, Professors Ross and Howard spoke critically of the growth in originalist interpretation of the Constitution. Noting that originalism was first introduced to the American public in the 1980s, Professor Howard suggested that the legal theory is in large part a conservative reaction to the legal teachings of the Warren Court. Professor Howard pointed to the complexity of history and lawyers’ propensity for cherry-picking as key flaws in originalist interpretation. Describing the recently decided New York concealed carry case, New York State Rifle & Pistol Ass’n v. Bruen, Professor Howard remarked that, “On both sides, they are talking originalism, and they come to totally different conclusions.”
Professor Ross added that originalism often fails to include recent historical developments in its analysis of the Constitution, particularly where it concerns the rights of communities that were excluded from the decision-making process that led to the adoption of our Constitution. While acknowledging that living constitutionalism “may be a bridge too far,” Professor Ross argued that “we need to be responsive to a more recent version of history, rather than the distant past.” Citing Dobbs v. Jackson Women’s Health Center as an example, Professor Ross noted Justice Alito’s emphasis on English common law and legal developments of the nineteenth century, from which women were fundamentally excluded.
Speaking from “the hope from [his] heart,” Professor Ross supposed that there may be room for movement in the justices’ approach to the Constitution. Professor Ross recalled the concerns about a rightward legal shift during the transition from the Warren Court to the Burger Court. While some of those concerns were realized, Professor Ross remarked that the justices ultimately “loosened up” and recognized a need to be responsive to the public. “It becomes clear with threats to [the Court’s] legitimacy that it has to be responsive to majority values that evolve over time.”
Asked about the need for court reform, Professor Ross acknowledged that the Court was never designed to be democratic but suggested that the Court has been distorted by recent disruptions to the nomination process. Professor Ross suggested adopting an eighteen-year term limit for justices to create greater consistency in the timing of judicial appointments and to promote greater accord between the values of the Court and the public.
Professor Ross also addressed the upcoming Supreme Court case, Moore v. Harper, which will present the case for the independent state legislature doctrine. The case, brought by the North Carolina legislature, contends that the federal Constitution’s Elections Clause (Article I, § 4) prevents state judicial review of election laws. Professor Ross noted that courts have never interpreted this clause to have this meaning and that “taking away judicial review in any area of the law opens the door to abuse.” While Professor Howard suggested that the recently created Virginia Redistricting Commission may survive adoption of the independent state legislature doctrine, he finished by saying, “If you take one thing away from this discussion, do not make cash bets on what the Supreme Court will do.”
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tya2us@virginia.edu
[1]Lavoie, Virginia Governor Restores Voting Rights to 69K Ex-Felons, AP News, March 16, 2021 https://apnews.com/article/legislature-ralph-northam-us-news-constitutions-voting-rights-d6116a65502227c9c7ea222caf62e068