Since Corts’ address, the impetus to revise the constitution has gathered grassroots support. Civic groups have become involved, holding rallies throughout the state; Alabama Citizens for Constitutional Reform has been formed to spearhead the revision initiative; and Samford University's law school has established a state constitutional law project, funded in large part by the Unus Foundation, to research the constitutions of other states and serve as a resource to the revision effort. The media, too, particularly the print media, have become involved, informing and educating people regarding the issues. In fact, the number of participants in the initiative grows daily, with a recent public opinion survey indicating that a substantial majority of the respondents favored a new constitution.
Why, one might ask, is the issue so important and what is the negative impact of our present constitution on the state?
In May of 1901, when 155 delegates assembled in convention in Montgomery to write a new constitution, Alabama was an agricultural society. The state was still feeling the economic ravages of Reconstruction. State debt was overwhelming. In fact, the state was insolvent. Former slaves had been granted the right to vote, but their votes were being manipulated and even stolen by agents of an entrenched power structure that consisted primarily of industrial and planter interests, much of it centered in the cotton-growing Black Belt. The enemies of this coalition referred to the power structure as the Bourbons because of their resemblance w the Bourbon kings of France who had learned nothing from the revolutions that had rocked their societies.
The interests of the Bourbons had been threatened by a populist rebellion in the 1890s, when poor white farmers and laborers, particularly in north Alabama and the Wiregrass, came close to defeating the Bourbon candidate for governor with populist candidate Reuben F. Kolb in 1892 and 1894. These voters resented Black Belt domination of the state and generally supported the disfranchisement of black voters, whose votes, fraudulently used, had become the instruments of Black Belt power. Election fraud eventually became so widespread that even Black Belt leaders called for a convention to revise suffrage provisions in the constitution. "We of the Black Belt are in earnest when we say we want this fraud in elections stopped," said delegate Thomas Hill Watts of Montgomery. "It has been a necessity in the past. Let it not be so in the future." Unfortunately, the focus of the ensuing convention was the state's recently franchised former slaves, and the result was a dark chapter in Alabama's history.
When one looks at all the prohibitions and distrust reflected in the 1901 constitution, is it any wonder that this document has been amended 706 times, and that our state government is ranked the least effective in the United States?
And what is it we want to do?...[I]t is within the…limits imposed by the federal Constitution, to establish white supremacy in this state.
Meeting in the capitol in Montgomery, the Convention dealt with the "problem" by incorporating in the new constitution disfranchising provisions, including provisions requiring voters to own property, meet educational and residency requirements, pay poll taxes, and be free of convictions of certain enumerated crimes. The poll tax and property requirements not only disfranchised former slaves but also thousands of white people, particularly in north Alabama. Appeased by "grandfather clauses" granting lifetime exemptions from property and educational requirements for war veterans and their descendants, poor whites accepted the new voting requirements.
The convention, however, was far from unanimous on this matter. Former Governor William C. Oates and Frank S. White, later US Senator, objected w the suffrage article, stating: "We are of the opinion that [this provision] on its face violates the federal Constitution. The clause…does not erect a standard of qualifications applicable to both races, but establishes an arbitrary standard."
In addition to the suffrage provision, a raft of other blatantly racist provisions was inserted, as were numerous restrictions on public expenditures and debt. For example, in the name of economy, delegates brought forward Section 93 from the 1875 Constitution prohibiting the state from engaging in "works of internal improvement" or "lend[ing] its credit in aid of such." Nor could the state "be interested in any private or corporate enterprise, or lend money or its credit to any individual, association or corporation." These same restrictions were placed on local governments.
Similar restrictions prohibited the state from incurring debt and placed ceilings on the ad valorem taxes that state and local governments could levy. By Amendment 25, ratified in 1933, limitations were also placed on income tax rates. These restrictions meant that the constitution had to be amended in order for the state to engage in internal improvements (such as building the state docks at Mobile or building and maintaining public roads).
Election fraud eventually became so widespread that even Black Belt leaders called for a convention to revise suffrage provisions in the constitution.
The framers of the 1901 Constitution, however, had a basic distrust for government and deliberately denied local officials the authority to deal with local issues. This attitude is best illustrated by a comment made during the convention by a delegate from Tallapoosa County, who spoke in opposition to home rule: "No gentleman on this floor will contend that his [county commission] at home is more capable of legislating for the people of his county than the [legislature], composed of one hundred select men."
The need for constitutional revision was recognized as early as 1915, when Emmett O'Neal, then governor, urged the legislature to rewrite the constitution. His experiences in office, O'Neal told the legislature, had convinced him that the state's "antiquated" constitution presented "insuperable barriers" to the running of an efficient and effective state government. Under the current constitution, he said, the state was "denied the right of engaging in internal improvements, of building a single mile of [paved] road…or providing sufficient revenue to maintain its larger cities and towns." The state's municipalities were also denied the "power to assess and collect sufficient revenues to properly maintain the schools, an adequate system of street improvement and other public utilities," and to run city government.
In fact, said O'Neal, "the defects in our present constitution are so numerous and radical, and so intermingled in the different sections that it would be practically impossible by any manner or series of amendments to remedy the defects." Only one remedy was possible: a convention that would remodel the constitution "so that it might make a harmonious whole." Any other remedy, he said, "would only make the present fundamental law a patchwork without harmony or symmetry."
The legislature declined to act on the issue.
The next governor to take up the cause was Thomas E. Kilby, who, in 1923, called for a constitutional convention. "Much progressive legislation, badly needed and greatly desired, has been restrained because of some constitutional limitation or inhibition," he said. The current constitution, with its amendments, was a "patch work" that had led to "much confusion and a great lack of coordination in the fundamental law of the state."
Kilby recommended that the legislature allow the people of Alabama to vote on whether or not they wanted a constitutional convention. He also suggested the creation of a commission composed of " thirty-five citizens of the state…whose duty it would be to study…in detail the provisions of the present constitution in light of modern thought and conditions, in order to secure for the people most conducive to their welfare."
Again the legislature declined to act.
Gov. James E. "Big Jim" Folsom became the third governor to champion the cause of constitutional revision. In 1956 he called a special session of the legislature to address the matter. "I have made two races for Congress," he reminded the legislature, "and three races for Governor. I have called seven special sessions of the Legislature. In all of these, and in the opening of three regular sessions, I have given special emphasis to the need for reapportionment and a constitutional convention."
The constitution, he said, was "outmoded" and "cumbersome," but it did provide a way "whereby the people themselves [could] re-examine it, that means being through a constitutional convention."
You have been called here to vote "Yes" or "No" on whether or not you are willing for the citizenry of this state to go to the polls and decide by their own vote as to whether or not they want a constitutional convention. …Your job then is a clear-cut and simple one. It is merely to vote on allowing the people the privilege of expressing themselves as to the needs for a constitutional convention.
The legislature voted "no."
Limitations on taxation have resulted in Alabama’s having the most regressive tax system in the country.
What effect has the 1901 Constitution had on the state of Alabama? To answer that question, one must first consider what constitutions do--or should do.
When we think of constitutions we generally think of the federal Constitution and its evolution over the life of our nation, but there are significant differences between federal and state constitutions. The federal Constitution deals with the powers of the legislative, judicial, and executive branches of government. While state constitutions also deal with these issues, they consider specific subjects to which the federal Constitution pays no attention, among them education, public improvements, and finance. But the most important role of a state constitution is to define a people's fundamental values. Professor A. E. Dick Howard of the University of Virginia School of Law said it best:
A state constitution is a fit place for the people of a state to record their moral values, their definition of justice, and their hopes for the common good. A state constitution defines a way of life.
What does the 1901 Constitution say about the people of Alabama? Consider a few examples:
- Limitations on taxation have resulted in Alabama's having the most regressive tax system in the country. With the constitutional limitations on ad valorem taxes and income taxes, requiring the people to approve any significant change in those taxes, governments are left with only one other form of taxation, the sales tax, a tax that has its greatest impact on those least able to pay.
- Restrictions on state spending mean that the constitution has to be amended in order for the state to engage in internal improvements, such as building the state dock at Mobile or building and maintaining roads, which was the subject of the first amendment to the constitution. Subsequently, more than one hundred amendments have been adopted permitting state and local government to engage in public works.
- Restrictions on home rule impede all efforts at efficient and effectively run local government. Not only does the constitution earmark revenues for specific purposes, denying elected representatives the right to allocate funds where they are most needed, it deliberately denies local officials the authority to deal with local issues. The entire state has to amend the constitution to permit Mobile County to engage in a mosquito control program, to authorize Limestone County to dispose of dead farm animals, to ban prostitution in unincorporated areas of Jefferson County, to permit Morgan County to build a jail, and the list goes on and on. Over 180 amendments have been adopted to authorize property taxes for local schools, libraries, hospitals, public utilities, and economic development projects.
As a result of constitutional restrictions, county commissioners must be supplicants to their local legislative delegation, a fact that was vividly demonstrated last year when the Jefferson County legislative delegation agreed to cure possible legal defects in the county occupational tax but insisted on its right to determine how the proceeds of that tax would be spent--a decision one expects to be made by the local governing body, the Jefferson County Commission.
Constitutional restrictions have adversely affected our economic development. One example: When the Mercedes plant was located at Vance in 1993, then-Governor James E. Folsom, Jr., agreed to provide certain industrial development incentives to that industry. When the legislature undertook to adopt legislation to pay for the incentives, a question arose about the constitutionality of the proposals. The justices of the Alabama Supreme Court opined that the proposed funding of incentives was unconstitutional and an alternative package had to be developed--an embarrassing development and one that can be used effectively against Alabama in the industrial recruiting wars.
Also affecting our ability to recruit industry is the constitution itself, with its blatantly racist language. Although these provisions have been held unconstitutional by courts over the years, the text still appears in the constitution and remains a source of embarrassment and discomfort for the state--and is particularly troubling for our industrial recruiters.
When one looks at all the constraints, prohibitions, restrictions, and distrust reflected in the 1901 Constitution, is it any wonder that this document has been amended 706 times, that it is the longest constitution in the world, that it is a constitution of legislative detail rather than a fundamental charter of government, that it burdens our state's ability to compete effectively for new business and industry, that our state government is ranked the least effective in the United States, and that our educational system, from K-12 through our universities, is in the throes of fiscal chaos?
What are our options? Two methods of constitutional revision are available under our current constitution. Both require the people's approval and both must go through the legislature.
Revision by amendment: Section 284 states that the bill or resolution proposing a constitutional amendment must be proposed by the legislature and passed by a three-fifths vote of all members of each house. The bill must fix the date for a public vote upon the amendment; notice of the vote must be published in each county once a week for four successive weeks; then the results of the vote are to be tabulated by the secretary of state, with the governor proclaiming the results.
In 1983 the legislature proposed an amendment that completely revised the constitution and was, in fact, a new constitution. In the case of State v. Manley, the Alabama Supreme Court enjoined the election on the proposed "amendment," ruling that an entirely new constitution must be the product of a convention and could not be accomplished by the amendment process. In the last legislative session an effort was made to circumvent the Manley decision by proposing a constitutional amendment that would allow the legislature to submit an entirely new constitution under the same circumstances as constitutional amendments are submitted presently. This proposal did not pass the legislature but will doubtless be presented again.
The amendment process has advantages. It is simple--people are familiar with it, having exercised this method 706 times--and proposing amendments on an article-by-article basis would allow voters to approve some articles and reject others. Revising the constitution one article at a time, however, would be a slow, tedious process that could result in minimal revision. All that is certain is that the constitution would still be a lengthy and cumbersome document with that many more amendments.
The influence of special interests on the legislature also militates against the amendment process, as does the fact that the legislature would propose the amendments, providing for negligible direct citizen involvement in the process. Another factor here is the public's perception of the legislature. A recent public opinion poll conducted by the Capital Survey Research Center indicated that a substantial majority of Alabama citizens did not trust the legislature and did not want legislators to revise the constitution.
Revision by constitutional convention: In this scenario the legislature must pass a bill or resolution calling an election on the question of whether to have a constitutional convention. If the majority of people vote for a constitutional convention, their delegates--chosen in a subsequent election--must convene at the appointed time, organize the convention, select the convention officers, and proceed with rewriting the constitution. While Section 286 does not require the convention to submit a proposed constitution to the people for approval or rejection, in all probability the people will have an opportunity to vote on it. Indeed, if that opportunity is not spelled out in the initial election process, in all likelihood the people will reject the call for a convention.
Constitutional restrictions have adversely affected the state’s economic development.
Alabama Citizens for Constitutional Reform favors the constitutional convention. Board members have confidence that capable delegates will be selected based on legislative districts, ensuring diversity and fair representation. The convention method also ensures citizen involvement in the process, and, most importantly, it ensures that the constitution proposed by the convention will recognize the economic reality that is Alabama today, reflecting the values and hopes of today's citizens for the future of our state.
The issue of constitutional reform is the most fundamental and compelling issue now facing Alabama. Every citizen is affected by it, and every citizen should be part of rewriting this basic document. Indeed, it is critical that every citizen and every interest be represented in the process, that all have a voice in the convention deliberations, and that the proposed constitution provide a road map and the infrastructure for realizing our opportunities as a state and as a people.
Numerous calls for constitutional reform have been made over the years. In 1915, Governor O’Neal called for revision. In 1923, Governor Kilby did the same; in the 1950s Governor "Big Jim" Folsom advocated a convention in his terms as governor. Other governors and legislators have also tried without success. This time, however, the impetus for reform comes not from the top, from elected officials, but from the "grass roots," from the people. This fact assures the movement's ultimate success.
Albert Preston Brewer (1928-2017) served as governor of Alabama from 1968 to 1971. A graduate of the University of Alabama and the University of Alabama School of Law, Brewer practiced law in Decatur, Alabama, and in 1954 entered the State legislature. He was the only person in Alabama history to serve as speaker of the house, lieutenant governor, and governor.
This feature was previously published in Issue #62, Fall 2001.