A constitution should provide only a skeletal framework of government, broadly defining authorities, responsibilities and relationships. In silence thereafter, it maintains a flexibility to meet changing conditions and needs. So well designed, our Federal constitution has been amended only twenty-six times in its 213 year history.
Nineteenth century state constitution writers, generally fearful of the misuse of power, saw the role of state constitutions as restrictors of power. Alabama's 1901 Constitutional Convention was called with the avowed purpose of the disenfranchisement of black people. After imposition of suffrage restrictions, such as literacy tests and property ownership, the remainder of the Constitution was largely lifted from earlier constitutions containing great amounts of restrictive details which require continual amendment. To date, approximately 650 amendments have been added.
Although many egregious features of the state constitution have been corrected through amendments and court actions, most of Alabama's thorniest governmental problems still have their roots in this document. We remain in great need of comprehensive state constitutional revision.
The Alabama Constitution provides two methods whereby it may be revised: 1) by amendment initiated in the legislature or 2) by a convention of elected delegates, also initiated in the legislature. Changes initiated by the people are possible in a few states but are not available in Alabama in the present constitution.
Considering the length and complexity of the constitution, accomplishment of a general revision by single piecemeal amendments would appear to be a practical impossibility. Calling a convention to do the work would certainly be a cumbersome, expensive and lengthy process. Two, possibly three elections would be involved; one for a vote on whether there should be a convention: a second for election of delegates and third, a probable vote by the people on the convention's proposals.
In addition to these factors are those grounded in political reality. A major criticism of comprehensive revision by either legislatively inspired amendments or by convention of elected delegates is the heavy influence of special interest groups over elected officials where campaign finance laws permit, such as in Alabama. And participants would be asked to make many decisions for which most might not be particularly well equipped, making them more susceptible to lobbyists' influences.
A constitutional commission is an auxiliary device for revision, to conduct research, identify issues and educate the public. Nowhere in the country did it have the power to propose constitutional changes directly until Florida voters in the '60s approved it as an alternative method of revision. However, in several states commissions have served as valuable advisory bodies for legislatures considering piecemeal changes as well as for conventions of elected delegates.
In 1969, Gov. Albert Brewer proposed, and the Legislature approved establishment of an Alabama Constitutional Commission. A group of well-qualified and dedicated commissioners, under the chairmanship of then Shelby County Probate Judge Conrad Fowler, worked diligently, often, and with public input for three years.
The interim report in 1971 recommended annual legislative sessions to replace regular biennial sessions. With wholehearted League of Women Voters support, this recommendation was finally approved by the people in 1975.
The Commission's Final Report in 1973, submitted to Gov. George C. Wallace and the Legislature, proposed an entirely new constitution of fourteen articles. Each article was carefully drawn to be completely self-contained so that each could be adopted separately without affecting other articles of the present constitution.
Rather than attempting to gain approval for the whole package at once, the Judicial Article was selected for the initial effort. Perhaps the most urgently needed, this article had the advantage of the political leadership of popular Senator Howell Heflin, then Chief Justice of the Supreme Court. With widespread support, the legislature approved the article with minor changes.
The League's support position conformed to the provisions of the proposed new Article with the single exception of merit selection of judges, so our support was enthusiastically added to that of others.-- The new Judicial Article as ratified by the people in 1973 with implementing legislation in 1975. It has since been said to be a model for the nation.
Still, there are many important issues of constitutional revision remaining.
The Alabama Constitution establishes different classifications of real property for tax purposes, fixes low rates for each and provides for a single tax rate limit of 1i percent (15 mills) of fair market value for combined state, county and city taxing.
Also fixed is a maximum tax of 5 percent on net income, but the 1901 Constitution places no limit on regressive tax forms such as sales taxes.
Thus fixed tax rates not only hamper the state's ability to provide needed services but also perpetuate an already inequitable tax structure.
The Constitution places restrictions on the state to incur indebtedness. It prohibits engaging in "works of internal improvement" and imposes a totally unrealistic debt ceiling of $300,000.00. Thus when capital improvements are needed, the state cannot issue general obligation bonds pledging the full faith and credit of the state except by constitutional amendment. To circumvent the legislative tendency has been to approve revenue bonds which are issued in the name of some agency of the state. These usually carry higher interest rates than do general obligation bonds and also contribute to the accumulation of political power in the governor since he is usually very influential in appointment of members of the agency in whose name the bonds are issued.
The debt of revenue bonds is usually serviced by dedicated revenues (earmarked taxes). In fact, approximately ninety percent of Alabama's revenues are now earmarked for special purposes.
Earmarkings severely limit the flexibility of the legislature and the executive in formulating budgets to most effectively use revenues to meet the financial obligations and needs of the state.
The LWVAL support position, reached in 1969 and still relative, states: "At each regular session the governor should submit to the legislature a budget along with appropriation and revenue bills. There should be no constitutionally fixed tax rates. No specific monetary debt ceiling should be stated in the constitution. However, we would favor a constitutionally specified debt limit which is a percentage of a reasonable measure of the state's wealth. For sound fiscal planning there should be less earmarking of taxes. However, the constitution should neither provide for nor prohibit earmarked taxes."
The present constitution has no local government article per se.
The lack of local authority derives from the fact that counties and cities, being creatures of the state, have no power of their own except that which is specifically delegated. to them by the state.
States created the political subdivisions of counties to serve as agents of the state in the conduct of civil matters and the administration of justice. Therefore county boundaries were established by the state. The constitution provided for a number of county officials under state departments, e. g., sheriffs and probate judges. Counties generally continue in a very limited role.
Municipalities, initiated by the people, are incorporated under state laws. Their corporate charters grant general powers of government to meet the specific needs for which they were created. However, these grants of authority are usually inadequate to meet the problems of changing needs and conditions.
Resulting from lack of local authority and from other specific constitutional restrictions, many local problems cannot be solved at the local level but must be carried to the local legislative delegation for solution. A large number of the constitutional amendments are of local application only.
Urbanization brings a proliferation of municipalities within counties and the creation of special districts to meet specific needs. In Alabama there are over 750 different local governing units of counties, municipalities, separate school systems and other special districts.
Most public problems have common themes throughout the country, e. g., housing, schools, traffic and transit systems, crime, pollution, land use etc. In heavily populated area an inevitable unit overlapping of geography, responsibilities and revenue sources impose a local inadequacy to solve complex problems, either community or areawide.
If local self-government is to survive in urban areas, a restructuring of local units will be required in most cases for a revitalization of adequacy to meet urgent present and potential needs.
The basic challenge in establishing constitutional home rule is to define state-local relationships wherein a legal division of powers will at once permit optimum local control of organization while maintaining state responsibility for organizational adequacy.
The LWVAL support position, reached in 1970, states: "The state constitution should provide a broad grant of authority to local governing units to enable them to attempt to meet their own local problems independently of the state legislature and/or of the state electorate. It should provide guarantees that the choice of form of local government should be determined by the local electorate and it should promote maximum inter-governmental cooperation in seeking solutions to problems that cross the boundaries of political subdivisions."
Alabama Constitution of 1901 (Including Amendments Ratified in 1966. Charlottesville, Virginia: The Michie Company, 1967.
Brewer, Albert P., and Howard P. Walthall. "Forging Ahead: Alabama can learn from other states the pattern for new constitution." The Birmingham News, 15 October 2000, p. C1 and 6C.
League of Women Voters of Alabama. "Constitutional Revision Update." April 1976.
National Municipal League. Model State Constitution. 6th ed. (revised). New York: Carl H. Pforzheimer Bldg., 1968.
National Municipal League. Salient Issues of Constitutional Revision. Ed. John P. Wheeler, Jr. New York: Carl H. Pforzheimer Bldg., 1961.
Report of the Constitutional Commission. Proposed Constitution of Alabama. 1 May 1973.
Stewart, Jr., William H. The Alabama Constitutional Commission. University, Alabama: The University of Alabama Press: 1975.