The Convention met from December 3, 1867 - April 17, 1868, at Richmond in the Capitol Building (with a holiday break during most of December). By a vote of 63 to 36, delegates elected federal Judge John Curtiss Underwood its presiding officer.[Richard L. Hume, The Membership of the Virginia Constitutional Convention of 1867-1868: A study of the Beginnings of Congressional Reconstruction in the Upper South, 86 Virginia Magazine of History and Biography 461, 463 (1978)] A Republican who had been living in Virginia since the 1840s, Underwood had become known for his speeches against slavery and later against Confederates, as well as for allowing expropriation of Confederate plantation lands (many later reversed on appeal) and initially refusing to grant Jefferson Davis bail when he was charged with treason after the war (the charges later quietly dropped).[Heinemann 2007, p. 247-248] Delegates included enfranchised Unionists (many ex-Whigs) as well as freedmen and ex-Confederates, but was dominated by Radical Republicans.[Wallenstein 2007, p. 221-222]
File:John Schofield.jpg|Gen. John M. Schofield
Commander, Military District One (Virginia)
File:ChristopherYThomas.jpg|Christopher Y. Thomas
Republican delegate from Henry County
After the Convention resumed from a recess over the Christmas holidays, Radical delegates caused a stir by allowing Union General Benjamin F. Butler (whom many Confederates considered a "beast" for his actions during the military occupation of New Orleans) to speak on January 14.[by a vote of 45 to 35, including 28 southern white delegates, four outside whites, two blacks and one unclassified white, according to Hume p. 464]
Virginia's Constitution has begun with its Declaration of Rights since 1776. A radical proposed inclusive language to read, "All mankind, irrespective of race or color, are by nature equally free and independent and have certain inherent rights." But black floor leader Thomas Bayne of Norfolk had promised his voters that the Constitution would not have "the word black or the word white anywhere in it", that their children reading it in fifteen years would "not see slavery, even as a shadow, remaining in it…" and the measure was defeated by a coalition of black Republicans and Conservatives. Conservatives also objected to the Radical assertion that the right to vote was a natural right because they saw it as a social privilege meant to be restricted to the few. That provision was also defeated.[Dinan 2006, p. 13]
The Convention concerned itself with federal-state relations, with the Convention's Committee on the Preamble and Bill of Rights initially stating that "the General Government of the United States is paramount to that of an individual state, except as to rights guaranteed to each State by the Constitution of the United States." But ex-Confederate Jacob N. Liggett of Rockingham County voiced the ex-Confederate doctrine that "the Federal Government is the creature of the acts of the States." Christopher Y. Thomas of Henry County proposed a compromise, to simply assert Article VI. of the U.S. Constitution for Virginia's Bill of Rights, Section 2, that "the Constitution of the United States, and the laws of Congress passed in pursuance thereof, constitute the supreme law of the land, to which paramount allegiance and obedience are due from every citizen…"
That was not enough for the Radical majority, Linus M. Nickerson of Alexandria and Fairfax County who had served as chaplain of a New York infantry regiment, as well as taught under the Freedmen's Bureau, successfully added that, "this State shall ever remain a member of the United States of America…and that all attempts from whatever source, or upon whatever pretext, to dissolve said Union… are unauthorized, and ought to be resisted with the whole power of the State."[Dinan 2006, p. 14]
One of the Convention's two major innovations was providing for public education, which was common in New England which Thomas Jefferson had originally advocated but had been opposed by the planter class elite. However, the Radicals failed in their efforts to secure a Constitutional mandate for racial integration of the schools. Some delegates believed that allowing segregated schools would end the objections to public schooling which had been resisted in the General Assembly since Jefferson's proposals in the 1700s. However, like Bayne, but delegate Peter G. Morgan of Petersburg did not want any mention of race in the document, and succeeded. Black delegates at the Convention were divided nearly equally between supporting mandatory integration and leaving the issue for the General Assembly.[Lowe 1991, p. 138]
The Constitution's other innovation was allowing the governor to veto laws passed by the legislature. That proved problematic in the following decades, since the first legislature after adoption of the Constitution adopted measures reaffirming Virginia's prewar debt, at those interest rates (much higher than postwar) and other favorable terms. Moreover, Virginia was much poorer after the war, and tax revenues were insufficient to fund that debt. Legislation refinancing that debt would be vetoed by conservative governors several times in the next decade.
General Schofield addressed the Convention in April 1868, notifying members that by continuing to meet through March, they had exceeded their budget, and that he would not authorize expenditures after April 6. He also thought little of the Convention's Radicals, particularly two measures to disenfranchise the white ex-Confederate majority in the state, and urged members to rescind them before presenting their work to voters.[Richard G. Lowe, Virginia's reconstruction convention: General Schofield rates the delegates, Virginia Magazineof History and Biography, Vol.80, no. 3 (July 1972) pp. 341-360][Robert Selph Henry, The Story of Reconstruction (New York: Grosset & Dunlap, 1938) pp. 283-284] The two "obnoxious clauses" as they became called, sought to guarantee only Union men would thenceforth hold office, and went beyond federal requirements (as well as the conditions of surrender at Appomatox Court House. One required an "iron-clad oath" testifying that a prospective officeholder had never "voluntarily borne arms against the United States" and another denied the vote to any person who had joined or aided the rebellion after having previously sworn an oath as a federal or state officeholder.[Dabney (1971) 1989, p. 368]
When delegate Hine had proposed denying former Confederates future governmental positions, J. Henry Williams of Amherst County strongly protested they exceeded the Convention's authority. Delegate Liggett followed up in a hostile tone on March 7, which caused his expulsion by a vote of 56 to 15. However, Hine's proposal initially failed on March 13 by an unrecorded vote, and on March 26 passed by a vote of 56 to 32. In the interim, Hine had secured approval of an alternate measure, requiring an additional "test oath" of future public office holders by a vote of 40 to 32. General Schofield believed those two measures too restrictive and addressed the convention on April 17, requesting their repeal, but instead the delegates voted to endorse the entire document as written by a vote of 51 to 26.[Hume at pp. 466-469]
