Guest Essayist: Kevin R. C. Gutzman, J.D., Ph.D. Professor and Director of Graduate Studies Department of History, Western Connecticut State University and Author, James Madison and the Making of America

The Virginia Declaration of Rights is one of the key source documents of the U.S. Constitution.  This first American declaration of rights includes multiple provisions later echoed, and even copied, by the authors of the U.S. Constitution.  The Declaration’s chief author, George Mason, and one of the two other main contributors, James Madison, played extremely prominent roles in both the writing and ratification of the Constitution and the movement culminating in the Bill of Rights, so the resemblance is no surprise.

Virginia’s last colonial governor, Lord Dunmore, fled the colony in early 1776, the Council and House of Burgesses resolved themselves into the Convention and ruled in his absence.  On May 15, 1776, it took an epochal step, adopting three resolutions:  one calling for a declaration of rights, a second calling for a republican constitution, and a third calling for federal relations with other colonies and treaty relations with other countries.

Self-consciously following the example of Britain’s Glorious Revolution, in which the Declaration of Right had been the condition of William and Mary’s joint assumption of the English monarchy, the Virginians put their fundamental statement of political principles first, and then adopted the constitution that would implement it.  Virginians thought of their colony as independent from that point.

The Convention appointed a committee chaired by George Mason to draft the declaration and constitution.  The draft declaration it reported back to the Convention stated the philosophical basis of their new government in several articles, and then it laid out some of the chief individual rights on which Virginians could continue to rely.

So, for example, Mason’s draft of Section I said, “That all men are by nature equally free and independent, and have certain inherent rights, of which they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

This seemingly unexceptionable statement of Whig political philosophy drew powerful objection from Robert Carter Nicholas, Virginia’s last colonial treasurer and the highest-ranking royal official to support the Revolution in Virginia.  If we go on record to this effect, Nicholas thundered, we will instantly face a choice between ignoring our stated principles and social convulsion.  After all, Virginia is full of slaves, who become more numerous all the time, and they certainly are not free

In response, the Convention amended Section 1 to say, “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity….”  [emphasis added]  In other words, slaves were not parties to the social compact, and so government would have no responsibility to protect their natural rights.  At the very beginning, Virginia was casting its lot as a slave state.

The declaration’s other notable statements of general political principle included Section 3’s claim that a majority has a right to replace government with which it is discontented, Section 4’s statement that offices should not be hereditary, Section 5’s statement in favor of term limits for all government officials, and Section 6’s statements that holders of sufficient property should be allowed to vote and that only elected officials should have power to tax.

The declaration next turns to what we take to be individual rights.  Section 8 enumerates several important rights of criminal defendants, including the right against self-incrimination, the right to confront one’s accusers and other witnesses, the right to a speedy trial, and the right of trial by jury.  Section 9 echoes the English Bill of Rights in banning excessive bail and cruel and unusual punishments–language that would become the Eighth Amendment to the U.S. Constitution in 1791.  Section 12 holds up freedom of the press as “one of the greatest bulwarks of liberty.”

After Section 13’s pronouncement in favor of militias instead of professional armies, the declaration finally turns to the question of religious freedom in its sixteenth and last section.  Mason’s draft of Section 16 said that Virginians were entitled to the “fullest toleration” in matters of religion.  Madison objected.

Aged 25 and sitting in his first parliamentary body, James Madison was the youngest member of the Virginia Convention.  He here made the most important contribution of all his fabled contributions to the American constitutional tradition.  Toleration, with its implication that government knew better, did not suit him.  Rather, he insisted that Virginians were entitled to the “free exercise” of religion.  Mason supported this formulation as far superior to his own, and the Convention adopted it unanimously.  In time, Madison would make this phrase part of federal law too, when he helped to draft the First Amendment.

The influence of the Virginia Declaration of Rights would be hard to exaggerate.  Many of its provisions were used in other states.  Thomas Jefferson, helping Frenchmen draft their Revolution’s Declaration of the Rights of Man and Citizen, saw to it that some of the Virginia provisions were essentially translated into that document.  From France, their language made its way into the charters of several francophone countries, and eventually into the United Nations’ version.  From there, it would be transplanted into yet more countries’.

George Mason, and to a much lesser extent James Madison, had a powerful effect on legal charters all over the world.  No wonder Thomas Jefferson begged to be relieved of his congressional duties so that he could go home to Virginia and join in writing his state’s Declaration of Rights and Constitution.  He said that this was the ground of the entire struggle with the British.  Dejectedly, he had to settle for writing the Declaration of American Independence instead.

March 13, 2013 – Essay #18 

Read the Virginia Declaration of Rights by George Mason here:

Kevin R. C. Gutzman, J.D., Ph.D. is Professor and Director of Graduate Studies, Department of History, Western Connecticut State University and Author, James Madison and the Making of America

3 replies
  1. Ron
    Ron says:

    It seems that our society has reverted to Mason’s original statement “tolerating” the exercise of religion. It is tolerated so long as it is exercised in private or within the confines of church buildings. It is not tolerated within hospitals, public schools, government meetings, etc. I never hear issues of church and state being argued from the perspective of “free exercise” as opposed to “toleration.” If we don’t focus on the distinction between the two and the original meaning, we Judeo Christians are tolerating and enabling the movement to a “living Constitution” rather than applying the Constitution of 1787. We have much work to do – again.


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