West Virginia has had two constitutions, one ratified in 1863 and a second in 1872. The 1863 constitution was drafted at a convention held in Wheeling between November 26, 1861, and February 18, 1862.
The writing of a constitution was an essential step toward the creation of the new state. Voters in Western Virginia had authorized the convention and elected the delegates following Virginia’s decision to secede from the United States. The delegates relied heavily on the Virginia constitution of 1851, but made several significant reforms to address inequities that had long provoked Western Virginians. The new constitution provided for equal apportionment based on population; included no property qualifications for voting; required that all property be taxed equally at face value; required the legislature to establish a system of public schools ‘‘as soon as practicable;’’ and barred the state and local governments from borrowing money. The framers also adopted the New England township concept for local governments, thus eliminating the county court system that many had found to be so corrupt and inefficient under Virginia.
Voters approved the convention’s draft, which was then submitted to Congress along with the petition for statehood. After some debate, Congress assented to the petition on the condition that a provision on slaves and ‘‘person[s] of color’’ in the proposed constitution be changed. A referendum on March 26, 1863, accepted the condition, thus enabling West Virginia to become the 35th state later that year.
After the Civil War ended in April 1865, the West Virginia legislature adopted an array of ‘‘loyalty’’ requirements and other provisions severely limiting the ability of former Confederates to vote, hold office, and use the courts. These measures created widespread and bitter dissent and quickly led to the demise of the 1863 constitution. In 1871, the voters approved both a constitutional amendment eliminating the loyalty requirement for voting and a call for a new constitutional convention. That convention began in Charleston in January 1872, amid much rhetoric from former Confederates. Despite the swagger, the delegates did not really change all that much. They scrapped the township system. The new constitution also had express bans on the use of political or religious test oaths and on boards or courts of voter registration. (The latter ban was effectively reversed by a 1902 amendment.) It continued to require equal apportionment, equal taxation, and public education.
Since then, West Virginians have passed more than 50 substantive amendments to the 1872 constitution. The pace of amendments has accelerated over time, there being only three in the 19th century. There have been periodic pushes for a new constitution. In 1964, the legislature enacted a law that authorized the election of delegates to a constitutional convention. The movement stalled, however, after the state Supreme Court invalidated the law because it improperly apportioned delegate selection and after major amendments in the late ’60s and early ’70s significantly modernized state government. Most notable among them were the Modern Budget Amendment of 1968, the Legislative Improvement Amendment in 1970, and the Judicial Reorganization Amendment in 1974.
The West Virginia constitution has 14 articles. The first two include general provisions about the state and its relation to the federal government. Article III, the state’s bill of rights, includes the basic freedoms of speech, press, religion, petition, and assembly; guarantees to due process and (by implication) equal protection of the law; and an array of procedures designed to ensure fair treatment of the criminally accused.
Articles IV through VIII describe the relationship between, and the powers of, each of the three branches of the state government. Article IV defines the qualifications of voters and officers and sets forth the means and grounds for removal of the latter. Article V provides for separation of the branches of government. Article VI creates a legislature that consists of a Senate and a House of Delegates. Either house may initiate bills; the Senate has the power to advise and consent on gubernatorial appointments; the House has the power to impeach and the Senate the power to convict. Article VI also prescribes that the legislature shall meet for 60 days near the beginning of each year, although extended and special sessions may also be held.
Article VII lists the constitutional executives: governor, attorney general, secretary of state, treasurer, auditor, and commissioner of agriculture. Each is elected by the people and serves a four-year term. The governor has the powers to (among other things) make appointments, remove officers, and veto legislation. A veto, except of the budget, can be overridden by a simple majority of the legislature.
Article VI, Section 51 describes the budget process in detail. The governor submits his budget at the start of the legislative session; that budget must include the unaltered totals submitted to the governor by the legislative and judicial branches for the operations of their respective branches, meaning that each branch independently sets its own operating budget. Although the legislature may alter the governor’s figures, it must use the form of the executive budget. To the extent that it seeks to create its own fiscal policies, the legislature must use the supplementary appropriations process. It cannot create a deficit. After the legislature passes the budget bill, it is submitted to the governor, who may approve or veto it in whole or in part. That is, the governor has a line-item veto power. No budget veto may be overridden except by a two-thirds vote of each house.
The judiciary created by Article VIII consists of the Supreme Court of Appeals, circuit courts, and small claims and misdemeanor ‘‘magistrate courts.’’ The legislature also has the as-yet-unexercised power to create an intermediate court of appeals. The Supreme Court consists of five justices elected to 12-year terms, and they decide the rules for selection of a chief justice. Article VIII also provides for the election of circuit court clerks, who serve six-year terms.
Article IX establishes the offices and the form of government at the local level. Counties are governed by a county commission of three members, each from a different area of the county, who are elected to staggered six-year terms. (Counties may, however, alter the form of their government if they follow specified procedures.) The county commission exercises legislative and executive powers within the county as authorized by the legislature. They also retain very limited judicial powers including probating wills. Other county offices created by Article IX include prosecuting attorney, sheriff, county clerk, assessor, and surveyor, each of whom is elected and serves a four-year term.
Article X, Section 1 imposes low ceilings on the level of taxation that can be applied to various classes of property. The legislature may raise the ceilings by 50 percent for a period of three years but only if 60 percent of the voters approve. Simple majorities may also approve extra local levies for up to twice the ceiling and up to five years. Taxes within each class of property must be equal and uniform. Sections 4 and 6 prohibit, respectively, the state and local governments from incurring an indebtedness, except in narrow circumstances.
The requirement in Article XII, Section 1 that the legislature shall provide for a ‘‘thorough and efficient system of free schools’’ has been interpreted to mean that children in West Virginia have a fundamental right to attend a public school free of charge. Thus, the legislature has an obligation to equalize, as much as practicable, educational opportunities across the state. By virtue of Section 2, the educational system is supervised by a state board of education and a state superintendent of schools, who is appointed by the board. Article XII also provides for boards of education to be elected at the local level and authorizes the legislature to create county superintendent positions.
Article XIII, now largely repealed, deals with land titles.
Article XIV establishes two methods for amending the constitution. The first uses a constitutional convention; it has not been invoked since 1872, except in the aborted 1964 effort. Under the frequently engaged second method, amendments must pass each house of the legislature by at least a two-thirds vote and must then be approved by a vote of the people. The Article sets forth additional procedures for both methods.
This Article was written by Robert M. Bastress
Last Revised on October 25, 2010
Rice, Otis K. & Stephen W. Brown. West Virginia: A History. Lexington: University Press of Kentucky, 1993.
Bastress, Robert M. The West Virginia State Constitution. Westport, CT: Greenwood Press, 1995.
Debates and Proceedings of the First Constitutional Convention of West Virginia. Huntington: Gentry Brothers, 1939.