University of Virginia Library

8839. VIRGINIA CONSTITUTION, Repealability of.—

If the present Assembly
pass an act, and declare it shall be irrevocable
by subsequent assemblies, the declaration
is merely void, and the act repealable, as other
acts are. So far, and no farther authorized,
they [the first Virginia convention] organized
the government by the ordinance entitled
a Constitution or form of government.
It pretends to no higher authority than the
other ordinances of the same session; it does
not say that it shall be perpetual; that it
shall be unalterable by other legislatures; that
it shall be transcendent above the powers of
those who they knew would have equal power
with themselves. Not only the silence of the
instrument is a proof they thought it would
be alterable, but their own practice also; for
this very convention, meeting as a House of
Delegates in General Assembly with the Senate
in the autumn of that year, passed acts of
assembly in contradiction to their ordinance
of government; and every assembly from that
time to this has done the same. I am safe,
therefore, in the position that the Constitution
itself is alterable by the ordinary legislature.
Though this opinion seems founded on the
first elements of common sense, yet is the
contrary maintained by some persons. First,
because, say they, the conventions were vested
with every power necessary to make effectual
opposition to Great Britain. But to complete
this argument, they must go on, and say
further, that effectual opposition could not
be made to Great Britain without establishing
a form of government perpetual and unalterable
by the Legislature; which is not
true. An opposition which at some time or
other was to come to an end, could not need
a perpetual constitution to carry it on; and a
government amendable as its defects should
be discovered, was as likely to make effectual
resistance, as one that should be unalterably
wrong. Besides, the assemblies were as much
vested with all powers requisite for resistance
as the Conventions were. If, therefore, these
powers included that of modelling the form
of government in the one case, they did so
in the other. The assemblies then as well as
the conventions may model the government;
that is, they may alter the ordinance of government.
Second, they urge, that if the convention
had meant that this instrument should

be alterable, as their other ordinances were,
they would have called it an ordinance; but
they have called it a constitution, which,
ex vi termini, means “an act above the power
of the ordinary legislature.” I answer that
constitutio, constitutum, statutum, lex, are
convertible terms. * * * Thirdly. But, say
they, the people have acquiesced, and this
has given it an authority superior to the laws.
It is true that the people did not rebel against
it; and was that a time for the people to rise
in rebellion? Should a prudent acquiescence,
at a critical time, be construed into a confirmation
of every illegal thing done during
that period? Besides, why should they rebel?
At an annual election they had chosen delegates
for the year, to exercise the ordinary
powers of legislation, and to manage the
great contest in which they were engaged.
These delegates thought the contest would be
best managed by an organized government.
They, therefore, among others, passed an ordinance
of government. They did not presume
to call it perpetual and unalterable.
They well knew they had no power to make
it so; that our choice of them had been for
no such purpose, and at a time when we could
have no such purpose in contemplation. Had
an unalterable form of government been meditated,
perhaps we should have chosen a different
set of people. There was no cause,
then, for the people to rise in rebellion. But
to what dangerous lengths will this argument
lead? Did the acquiescence of the Colonies
under the various acts of power exercised
by Great Britain in our infant state, confirm
these acts, and so far invest them with the
authority of the people as to render them unalterable,
and our present resistance wrong?
On every unauthoritative exercise of power
by the legislature must the people rise in rebellion,
or their silence be construed into a
surrender of that power to them? If so,
how many rebellions should we have had
already? One certainly for every session of
assembly. The other States in the Union have
been of opinion that to render a form of government
unalterable by ordinary acts of Assembly,
the people must delegate persons with
special powers. They have accordingly
chosen special conventions to form and fix
their governments. The individuals then who
maintain the contrary opinion in this country,
should have the modesty to suppose it
possible that they may be wrong, and the rest
of America right. But if there be only a
possibility of their being wrong, if only a
plausible doubt remains of the validity of the
ordinance of government, is it not better to
remove that doubt by placing it on a bottom
which none will dispute? If they be right we
shall only have the unnecessary trouble of
meeting once in convention. If they be wrong,
they expose us to the hazard of having no
fundamental rights at all. True it is, this is
no time for deliberating on forms of government.
While an enemy is within our bowels,
the first object is to expel him. But when
this shall be done, when peace shall be established,
and leisure given us for intrenching
within good forms the rights for which we
have bled, let no man be found indolent
enough to decline a little more trouble for
placing them beyond the reach of question.—
Notes on Virginia. Washington ed. viii, 364. Ford ed., iii, 226.
(1782)

See Virginia, Conventions.