Montgomery
The Economist Print Edition
March 14, 2002
DANTE PICCINI, a Republican from Mobile, Alabama,
stands in the state legislature waving copies of the bible and the
communist manifesto. Our choice, he implies, is between these two
documents. Sandra Lane Smith, the president of the Association for
Judeo-Christian Values, says Alabama must defend “the only thing
that stands before us and tyranny.”
Nonsense, says the Reverend Jerry Burks: “There
is a seething fermentation within the citizens of this state that
cries out for change.” The governor, Don Siegelman, claims the
decisions the politicians must take will define the state for generations.
The immediate question is boringly technical: the rules
committee of the Alabama House of Representatives must decide whether
the full chamber should approve a referendum to decide if a new constitution
should be written by a special convention next year. But the issue
goes deeper. This is the first time the legislature has addressed
the latest, and most widely supported demand to change Alabama's founding
charter. It is also one more struggle in the war between Old South
and New South, and an example of how decisions made 100 years ago
still affect the day-to-day conduct of politics.
Alabama has a reputation as a backward, gun-toting, bible-thumping,
redneck place. This is wrong. Unlike its neighbour, Mississippi, it
is not dirt-poor. Its main city, Birmingham, boasts the largest concentration
of financial institutions in the south after Charlotte, North Carolina,
plus a huge Mercedes-Benz factory.
But the state is peculiar. Alabama has the lightest tax
burden in the South by far. It is the only state never to have had
a modernising “New Southern” governor. George Wallace is
partly to blame: his governorship in the 1960s and 1970s sabotaged
the state's attempt to overcome the legacy of the Old South (as other
states did). But the bigger reason is the constitution of 1901.
John Knox, the planter who chaired the 1901 convention,
made no bones about his aim: “to establish white
supremacy in this state”. Section 102 said “the legislature
shall never pass any law to authorise or legalise any
marriage between any white person and a negro.” This was amended
away only in 2000, though it had been
illegal under the US constitution for decades. Section 256 said “separate
schools shall be provided for white and coloured children.” And
black voters were disenfranchised. In the last decade of the 19th
century, almost 80% of Alabamians, black and white, had registered
to vote. By 1908, only 2% of blacks were eligible, though their voting
rights had in theory been guaranteed by the US constitution.
Alabama was not the only southern state to exclude blacks.
But it took the various tricks pioneered elsewhere to circumvent the
US constitution and used them all: property qualifications, poll taxes
as a condition of voting, a requirement that voters be of “good
character” (as defined by white officials) and a ban on blacks
accused of vagrancy, a charge that could be levied against them at
will. When white South Africans were planning their apartheid constitution,
they supposedly used Alabama as a model.
Racism was not the sole aim of the constitution. In the
1890s, poor white farmers were being ruined by falling cotton prices.
Their man, Reuben Kolb, won the races for governor in 1892 and 1894
on promises to regulate trusts, abolish national banks, protect black
votes and introduce a progressive income tax—only to see the
elections stolen from him by fraud. What one newspaper called the
“Populite-Nigger-Communist Social Equality ticket” terrified
the plantation owners and steel barons even more than black voters
did. These rich “Big Mules” used the cry of “white
supremacy” first to paper over differences with poor whites and
then as a ruse to disenfranchise them. The constitution's devices
also cut white voter rolls, though only by one-third.
More important, it set up a system of government to make
Alabama safe for plantation owners. After the Civil War, local county
governments had run up huge debts to build railways and modernise
the state. To prevent poor whites from using county governments to
do anything like that again, the constitution banned counties from
writing local laws and centralised almost all decision-making and
law enforcement in Montgomery.
The plantation owners underlined their dominance with
a remarkable clause (section 93): “The state shall not engage
in works of internal improvement, nor lend its money or its credit
in aid of such; nor shall the state be interested in any private or
corporate enterprise.” This clause was so insane—it would
prevent the state from building roads or other “works of internal
improvement”—that it was amended rapidly. But it remains
on the books. Change oughta come
The constitution was itself the product of electoral
fraud. The decisive votes that returned a collection of white supremacists
to the convention were cast in areas of the state which were 75% black.
Yet this squalid history is not necessarily a reason for scrapping
the existing constitution.
If it contains racist language, so does the US constitution,
which defines blacks as three-fifths of a person for the purpose of
census-taking. The racist provisions have no legal force, having been
amended away. The clause preventing the state from dealing with private
companies did not prevent Alabama from wooing Mercedes-Benz with copious
subsidies. And many Alabamians like the restrictions the constitution
places on the state's power.
The real argument for rewriting the constitution is practical.
It is not true that the document is unworkable (it might be easier
to change if it were). But it can be made to work only at huge cost.
At well over 300,000 words, it is longer than “Moby Dick”
and 40 times the length of the US constitution. The 1901 document
itself accounts for only about a tenth of this. The rest comes from
some 700 amendments, which are appearing with increasing rapidity
(52 in 2000 alone). Most states in the South have amended their constitutions
fewer than 100 times.
Many of Alabama's changes have nothing to do with the
basic framework of government. Three amendments permit counties to
spray for mosquitoes; two permit poultry growers to levy a tax on
each hen sold in the state; one allows the Alabama Music Hall of Fame
to buy CDs. The constitution is not so much a founding document as
a sort of constitutional preamble to hundreds of pages of rules.
But the real problem is not the length. Rather, it is
incoherent in two areas. The first is the relationship between the
state and local governments. Counties have no power to act on their
own. They lack authority over those two staples of local government,
land use and school financing.
This hits the fastest-growing parts of the state worst.
Hardy McCollum, the chairman of the Tuscaloosa County commission,
quotes Thomas Jefferson's dictum that the body that governs best is
the one closest to the voters. He is continually having to petition
the state government to write a law on his county's behalf.
Sometimes this is done extremely badly. In one case,
the state government amended a local law in Jefferson County in contradictory
ways and then took 30 years to sort it out. Just as often, it is not
done at all. State custom gives a right of veto over county law to
any state representative from that county. Jefferson County has 20
such representatives, all of whom have to agree to any decision.
County officials often have no idea what the law actually
is. Any legal action has to accord with two sets of local laws, both
passed by the state legislature in Montgomery. The first, state law,
is at least codified, so you can look up the relevant legislation.
The second set, applying to individual counties, is published, uncodified,
in separate annual editions. A law could be in any of 200 different
volumes. One county found it was inadvertently collecting a tax for
which its authority had expired years before. Jim Williams of the
Public Affairs Research Council of Alabama says that the constitution
destroys democratic accountability at the local level. This was, of
course, the point.
The second area of incoherence has to do with taxes.
The constitution not only decides what taxes may be
raised, but who gets them. Other states earmark taxes as well, but
Alabama outdoes them all, designating no
less than 89% of its revenues for specific purposes. All the state's
personal income and corporate tax goes to
education. So does 96% of the public utilities tax. The fuel tax is
earmarked for highways. And so the list goes on.
Predictably, this has made fiscal policy far too rigid.
But earmarking has also given recipients of taxes a vested interest
in the status quo, and made them even more influential than they would
be anyway. For example, because so many taxes go to education, the
head of the teachers' union, Paul Hubbert, has a huge influence on
the state legislature. He had to be consulted even over tax relief
for Mercedes-Benz, because the incentives offered to the firm reduced
the corporation tax receipts his members rely upon.
Montgomery's war
The odd thing about this mess is how many defenders it
has. Some beneficiaries are obvious. Large farmers and timber-growers
pay a pittance for tax on their land (if the Alabama land tax were
trebled, it would still be the lowest in the country). But there are
also plenty of interest groups who like bits of it. Teachers, for
instance, hate the fact that Alabama spends so little on schools,
but like earmarked taxes. State legislators dislike spending fully
half their time on local affairs, but they like lording it over the
counties. Of Alabama's power-brokers, only the county commissioners
are clearly hobbled by the system.
In a set-up like this, reform cannot come from the top.
Mr Siegelman is the latest in a long line of governors who have attempted
(so far unsuccessfully) to introduce a new constitution: Emmet O'Neal
complained in 1915 that the document made it impossible to govern
the state. But now, for the first time, there is grass-roots support.
Bailey Thomson, a professor at the University of Alabama, has set
up Alabama Citizens for Constitutional Reform, which has held public
meetings all over the state. Almost all Alabama's newspapers support
change. According to the Capital Survey Research Centre, 56% of Alabamians
say a new constitution is needed to solve the state's problems.
More importantly, not all the interest groups are now
opposed to change. Mr Hubbert's teachers' union wants reform, as do
some of the multinational companies (like Honda, Boeing and Toyota)
who have followed Mercedes into the state. The three leading candidates
for this year's governor's race all back reform, so the issue will
remain on the agenda even if the House of Representatives turns down
a referendum.
At the moment, the opponents of reform in Montgomery
probably hold the edge. But 51% of Alabamians say they would be less
likely to vote for a candidate who opposes a new constitution. If
that is really true, then against all the odds, and after a mere 100
years, Alabama might one day get a constitution that will not need
amending 50 times a year.
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