Virginia Declaration of Rights

The Virginia Declaration of Rights, which Virginia adopted along with a state constitution in the wake of independence from Great Britain in 1776, is recognized as a model for other state declarations of rights and for the U.S. Bill of Rights. The Virginia Declaration specifically illumines the concerns that the Fourth Amendment later articulated. Nelson B. Lasson suggested that this declaration was “the first American precedent of a constitutional character for the Fourth Amendment” (1937, 79).

The Virginia Declaration was adopted by a constitutional convention in which George Mason, who later opposed adoption of the U.S. Constitution in part because it lacked a bill of rights, had the greatest influence. Working with Thomas Ludwell Lee, Mason proposed twelve articles, which the committee of the whole expanded into eighteen and which the full convention reduced to sixteen (Broadwater 2006, 81). The declaration began with a statement asserting individual equality and human rights that was later mirrored in the Declaration of Independence. Major provisions advocated separation of powers, free elections, freedom of the press, trial by jury, and free exercise of religion (James Madison was primarily responsible for using the language of free exercise rather than Mason's original emphasis on toleration). In contrast to the U.S. Bill of Rights, the Virginia Convention phrased most provisions in terms of “oughts” or “shoulds” rather than as more emphatic commands that courts could enforce.

Section 10 of the Declaration, which served as a template for other states, prefigured the Fourth Amendment to the U.S. Constitution. Section 10 provided “[t]hat general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.” Virginia Governor Edmund Randolph associated Section 10 with the Wilkes case in Britain as well as with American distaste for the British use of general warrants (Broadwater, 2006, 84).