Constitutional Reform in Alabama
The League of Women Voters of Alabama has strongly supported reform of the Alabama Constitution since 1967.
A HISTORY OF ATTEMPTS TO REFORM THE 1901 ALABAMA CONSTITUTION (as of September 3, 2002)
A NEW CONSTITUTION FOR
ALABAMA: HOW SHOULD WE DO IT?
by Charlotte Ward (February 10, 2000)
by Anne Findley-Shores (1983)
Anne Findley-Shores (April, 1976)
Other Constitutional Reform Information:
A NEW CONSTITUTION FOR ALABAMA: HOW SHOULD WE DO IT?
The Constitution of 1901 permits only two methods for reform: an article by article reform by the Legislature or a rewrite of the whole document by a convention of elected delegates. The focus of this year's study is which method will the League of Women Voters of Alabama support.
WHICH METHOD OF CONSTITUTIONAL REFORM SHOULD THE LWVAL SUPPORT:
(1) THE LEGISLATIVE APPROACH OF SUBMITTING TO THE VOTERS ONE OR SEVERAL AMENDMENTS, WRITTEN BY THE LEGISLATURE (BUT NOT AN ENTIRE CONSTITUTION), AT A TIME; OR
(2) THE CALLING OF A CONVENTION TO WRITE A NEW CONSTITUTION TO BE SUBMITTED AS A WHOLE TO THE VOTERS?
REWRITING THE CONSTITUTION BY THE LEGISLATURE, ONE ARTICLE AT A TIME
ARGUMENTS IN FAVOR:
1. The legislature is a representative body duly elected by the people. The members are known to their constituents and can be held responsible to them.
2. Legislators have worked with the current document and are aware of its good and bad points, therefore, ought to have special insight into what needs fixing.
3. Because they have been elected, perhaps several times, they should know better than a one-time-elected set of convention delegates what is actually possible to get accepted by the voters.
4. Because the legislative method of reform will take a long time, it allows for due consideration of proposals, rather than precipitous action.
1. Alabamians have a profound suspicion of their state government. They simply do not trust the Legislature to write a document in their best interests.
2. The Legislature is perceived to be unduly influenced by "special interests" - wealthy and powerful groups perceived as financial backers of various influential legislators who are therefore more indebted to these backers than to their constituents.
3. Previous experience has shown that because the process of adoption of new provisions article by article takes a long time, the reform movement is likely to bog down before the job is completed. In Alabama's case this leaves us with a document even more cumbersome that the one we are trying to replace.
4. One of the main features of the 1901 Constitution is that it centers almost all power over towns and counties in the Legislature, i.e., it allows for almost no home rule. People are inclined to ask if it is likely that legislature will write a constitution that would strip them much of their power.
REWRITING THE ENTIRE CONSTITUTION BY A CONVENTION OF DELEGATES ELECTED FOR THAT PURPOSE
ARGUMENTS IN FAVOR:
1. The document could be produced as a coherent entity, since no account would have to be taken of how new procedures would jibe with old ones to be corrected later.
2. The convention would have a limited lifetime in which to get the job done, and would have no distractions such as the regular, necessary business of the Legislature.
3. People with knowledge and concern for good government who would not be willing to run for " political" office or make a four-year commitment to a legislative term would be willing to run for the short-term position of delegate.
4. Delegates could be chosen so as to represent all interests and population groups in the state.
1. How could voters be assured that people running for convention delegate would be any more independent and free of ties to special interests than the legislators we already have?
2. A convention would be very expensive for a state already without sufficient funds to provide essential services such as education and police protection.
3. Legislators would keep on being responsible for what they had done. Convention delegates would do their work and no longer be in a position to be held responsible.
Although the current study is addressed narrowly to a consideration of the method of constitutional reform, it may be useful for Leaguers to review the LWVAL's current positions on topics relevant to the whole question of constitutional reform. It may also be helpful here to mention some arguments against constitutional reform that are appearing in the state press. Letters to the editors of state papers and quotes from persons and groups opposing constitutional reform contain some statements so outrageous that it would seem better to ignore them, were it not for the fact that many people believe them.
There is a way to allay the fears that values and principles perceived to be embodied in the 1901 Constitution will be lost: that is by limiting ahead of time what may not be put on the table for reform. If, for instance, the Preamble, which invokes God's favor, were deemed nonnegotiable, the call for reform could specify that the current preamble be kept as it is. In addition to the claim that God would be left out of the new constitution - are statements that (1) state boundaries would be abolished, (2) gambling would be permitted, (3) gun ownership would be prohibited, and (4) taxes would be raised. Let us look briefly at each these:
(1) The boundaries of the state as stated in the 1901 Constitution are no longer quite accurate because rivers change their courses. If it were deemed necessary to specify the boundaries in the constitution, it could be done so as to take account of naturally occurring changes without requiring periodic amendments.
(2) There is no reason to believe that permission for gambling would be written into the constitution of a state that defeated a lottery by popular vote. Moreover, this is a matter for statutory rather than constitutional law.
(3) No part of a state constitution can cancel a provision of the U.S. Constitution, i.e., the Second Amendment. Gun control, however, is a matter for statutory law.
(4) Taxes, too, should be a matter of statutory law, at both the state and local levels. In a fair tax system, a few Alabamians would pay more, but the undue burden that now falls on the poorest citizens would be mitigated.
The question of taxes is undoubtedly the most inflammatory in the whole discussion of constitutional reform. The facts are these: Alabama has the most regressive and unjust tax system of all the fifty states. Because of the limitations in the 1901 Constitution, especially with respect to home rule, counties and cities must depend heavily on sales taxes, which are regressive. That is, they hit the people with the lowest incomes hardest, especially because food purchases are subject to sales tax.
Income taxes in Alabama are even less fair. A family of four earning as little as $4600 per year pays income tax in Alabama. Furthermore, Alabama's income tax is very gently graded, meaning that the highest incomes are taxed at only a slightly higher rate than the lowest.
Property taxes in Alabama are by far the lowest in the nation. Doubling them would not bring us even with Mississippi, #49 on the list. Montgomery reportedly has the lowest property tax rate of any city in the U. S.
A new constitution should probably say less about taxes than the present one does. What it should do is open the way for thorough tax reform and allow for flexibility and change as needs and conditions change, both at the state and local levels, by leaving specific tax law out of the constitution itself.
Alabama has had a low voter turnout in recent elections. Selling a new constitution, or even getting one written, may depend on that "silent majority" being convinced that a new constitution can provide a more responsive government and potentially better conditions for their lives. Consideration of the method of constitutional reform should take this into account.
The founding fathers, which produced the enduring document that is the Constitution of the United States of America, were not working in a vacuum in inexperience. Thirteen states had written constitutions before the Constitutional Convention assembled in Philadelphia in 1786. Some were held up as horrible examples. Others were examined as possible - but different - models.
As Professor Robert Williams of Rutgers University Law School points out, a state constitution is very different in form and purpose from the Federal Constitution. It is always to some extent experimental. It is the supreme law of the state, yet it is always subservient to federal law. Since all powers not specifically defined in the Federal Constitution are reserved to the states, the writers of a state constitution have a great deal of leeway as to what to include.
One complaint about the 1901 Constitution is that it is more like a code of laws than a framework for government. One major decision for whoever writes Alabama's next constitution will be how much law to include. The content of that constitution is beyond the scope of this study, but we must think about what kind of document we want it to be.
CONSTITUTIONAL REFORM: WHERE WE STAND NOW
LEAGUE OF WOMEN VOTERS OF ALABAMA, STATE COUNCIL,
The Alabama Constitution of 1901 is recognized as an anti-democratic document written for the purpose of concentrating virtually all power in the state in the hands of the legislature which could be controlled by white landowners and industrialists. The more egregious discriminatory provisions have been annulled by amendments to the United States Constitution and by Federal laws assuring voting and other civil rights to all citizens. Largely because the 1901 document limited the powers of counties and municipalities so severely, it has accumulated to date more than 660 amendments, most of them required to allow towns and counties to tax themselves for needed local services or otherwise tend to their own affairs. From the start, it was less a framework for government than a restrictive code of law. This year, many other groups, notably local governmental agencies and chambers of commerce, are joining the LWVAL in a call for a new constitution.
The LWVAL studied Constitutional Reform from 1966 to 1970, and was active in its support of reform efforts in the legislature through the early 1970s. Below are summarized the positions adopted in those years. This Council will consider a proposal to reopen this study item for update and to provide a basis for action when the time comes.
CONSENSUS POSITIONS ADOPTED IN 1967
The LWVAL emphatically favors a new Constitution for the State of Alabama. The many objections to the present document may be summed up by:
1. The multitude of amendments with accompanying expense for special elections to approve same;
2. Emphasis on statutory rather than fundamental law;
3. Obsolete unconstitutional aspects.
The majority of Leagues would favor a commission - convention combination for the purpose of reform but would not oppose any vehicle that would truly attempt constitutional reform. (This was not formally adopted position; hence the need to take a position now - 2001.)
The LWVAL feels that the following areas are most critical:
1. Lack of home rule
2. Tax structure (source of revenue, debt limitations, and earmarked funds)
3. Election laws
5. Restrictive provisions in education article
6. Judiciary reform
7. Elected officials and agencies
CONSENSUS POSITIONS ADOPTED IN 1969
The following positions on finance and taxation were adopted, but insufficient information was received from local leagues to warrant the adoption of positions on local government.
1. At each regular session, the governor should submit to the legislature a budget along with appropriation and revenue bills.
2. There should be no constitutionally fixed tax rates.
3. 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.
4. For sound fiscal planning there should be less earmarking of taxes. However, the constitution should neither provide for nor prohibit earmarked taxes.
CONSENSUS POSITIONS ADOPTED IN 1970
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 intergovernmental cooperation in seeking solutions to problems that cross the boundaries of political subdivisions.
LEGISLATIVE AND EXECUTIVE FUNCTIONS
The LWVAL supports the strengthening of the Legislature so that it may more effectively function within the traditional framework of checks and balances among three co-equal branches of government. We recommend that the Legislature meet annually and that the legislators receive an adequate annual salary. We believe that a constitutional mandate for the legislature to select its own leadership is necessary to insure greater independence of the legislative branch and that there should be constitutional guarantees of adequate representation for all citizens.
We support the reorganization of the executive branch to facilitate the administrative duties of the governor and to achieve maximum efficiency and economy. This should include formulation of a comprehensive budget by the executive, subject to legislative approval.
(Note that the positions on legislative and executive functions and a few of what are listed as "critical areas" have been accomplished to a substantial degree.)
RECENT EFFORTS TO PRODUCE A NEW CONSTITUTION
In 1979, Governor Fob James appointed a 16-member "working party" composed of civic leaders (Nina Miglionico, long-time Birmingham councilwoman and League member, was chosen for her expertise on home rule) and former legislators to prepare a draft of a new constitution for passage by the legislature. The procedure was essentially the use of a commission of presumably independent experts to write a constitution for the Legislature to adopt and present to the voters as an "amendment", although it would have replaced the old constitution in its entirety. Although it was passed by the legislature in 1983, it never came to a vote of the people, since at the last minute the Alabama Supreme Court ruled, in a narrow interpretation of the 1901 document, that the entire constitution could not presented as a single amendment. While that reform did correct some flaws of the 1901 constitution, it had numerous flaws of its own. The matter was simply allowed to die.
An earlier commission had written what many considered a greatly improved document in the early 1970s. It was to be considered by the Legislature section by section, as the 1901 Constitution provided. The Judicial article, prepared and promoted largely by Supreme Court Justice (later Senator) Howell Heflin, represented a great improvement in the structure and operation of the state judiciary system, although it stopped short of the League's position supporting merit selection of Judges by appointment. This amendment was passed by vote of the people in 1973. After that, the constitutional reform movement bogged down. The rest of the proposals were never considered.
A significant feature of both these past attempts at constitutional reform was the use of a commission of independent experts to prepare a constitution. In both cases, the commissions reported to the Legislature, which tweaked and adjusted their work before presenting it for a popular vote. There is nothing to prevent a commission from reporting to a convention, if that alternative were chosen. The most important argument for using a commission is that it can be a group of experts who are as much as humanly possible beyond the influence of pressure groups and who can take whatever time is needed to produce a well-though-out document.
Florida in 1978 wrote a unique provision into their new constitution. It required that a commission be appointed every twenty years to review the constitution. It also gave the commission the right to present its recommendations directly to the voters for ratification. The first application of this provision came in 1997. The voters rejected most of the items proposed, but the system worked in that the required review was done.
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.
The following is an open letter written by then-LWVAL President, Dr. Charlotte Ward to Gov. Don Siegelman regarding the "critical need for revision of the Constitution of the State of Alabama." The letter was dated approximately Feb. 10, 2000.
Dear Governor Siegelman,
Alabama students have shown some improvement in their standardized test scores in recent years, but the state government consistently ranks at the bottom in nearly every measure of efficiency of operation and responsiveness to the needs of Alabama citizens. Alabamians didn't have to see those surveys to know that their government is a mess. Their apathy in voting and their unwillingness to take proposals such as the lottery at face value show clearly their distrust of state government. Yet citizens often respect their own legislators as men and women truly committed to doing a good job. It isn't the people, it's the system. And the cornerstone of the system is the Constitution of 1901.
We have known this in Alabama for a long time. The League of Women Voters of Alabama and its eight constituent local leagues have been studying and supporting constitutional revision since the 1960s. We cheered the adoption of the Judicial Article. But then the process came to a halt. Now, more than thirty years later, it is clear that Alabama's progress in every aspect is hindered by the 1901 Constitution.
Our constitution is not merely outdated. It was wrong to begin with. As any historian knows, it was written for the purpose of keeping power out of the hands of the blacks and poor whites and in the hands of the well-to-do white plantation aristocracy, and subsequently the wealthy businessmen and industrialists. All power was (and is) centered in Montgomery; towns and counties have so little home rule that a constitutional amendment is required to allow a community to vote to tax itself to build a new school or sewer system.
The lack of home rule means that legislators in Montgomery must spend a great deal of their time dealing with local matters that should be in the hands of the County Commission or the City Council, rather than on matters of statewide concern that are ostensibly their primary responsibility. This can have the effect of leaving them open to undue influence from well-financed statewide lobbying groups with their own agendas for the taxes, schools, and courts that affect every citizen.
The other glaring fault in Alabama government is its grossly unfair and unwieldy tax system. Again, much of the fault lies with the constitution, which "legislates" some taxes and allows local governments to enact only the most regressive of all taxes, the sales tax, without a constitutional amendment. And in Alabama, we pay sales tax on necessities such as food at the grocery store.
We are sure that you, as an elected official of the State of Alabama, know all that we have said. More and more citizens are recognizing these truths, too. Whether it is done by a convention called for the purpose or by legislative revision, article by article, a more effective constitution is essential to progress in Alabama. We urge you to begin immediately to institute the processes that will give Alabama a new and workable constitution in the foreseeable future.
Alabama citizens in growing numbers and in great diversity--from a Chamber of Commerce to the Business Council of Alabama, to your own appointees to the Alabama Commerce Commision to ordinary citizens who are tired of being last in everything--want a better state government and recognize that the key to it is a democratic and workable consitution. A step that can move Alabamains beyond their frustrations with state government and their cynical distrust of all politicians toward the conviction that our state can solve its long-neglected problems is not quixotic. It is an act of enlightened leadership.
Charlotte R. Ward