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By Sam Hodges
For reform-minded Alabama politicians, the 1901 state
constitution remains the big one that got away.
Jim Folsom Sr. fought for a new constitution as governor
in the 1940s and ‘50s. So did Albert Brewer when he held that job
from 1968 to 1971.
Fob James, Bill Baxley, Ryan deGraffenried Jr. - all belong
to the fraternity of politicians who tried and failed to give the state
a shorter, clearer and fairer fundamental law.
Special interests have prevailed over the general interest
in constitutional matters, as in so much of Alabama governance. Bad
timing, bad luck and a controversial court decision have played parts,
too.
It’s a sad sack history, all in all, but one pertinent
to any discussion of current or future reform efforts. Here, in sum,
is how the widely derided 1901 constitution has not been rewritten these
past 93 years.
Big Jim’s efforts
Gov. Emmet O’Neal called for a new constitution as
he left office in 1915. Gov. Thomas Kilby did the same eight years later.
In 1932, the Brookings Institution wrote an exhaustive report on Alabama
government. It recommended that the 1901 constitution be thoroughly
rewritten.
Despite these pronouncements, Big Jim Folsom’s election
as governor in 1946 represents the beginning of the first major effort
to do something about the document.
To Folsom, a populist, the key to progress for Alabama
was a new constitution that would reapportion the Legislature, giving
the urban areas the representatives they deserved. He also wanted to
eliminate the poll tax and other voting barriers that the 1901 constitution
had erected for blacks and poor whites.
With a broadened electorate choosing a reapportioned Legislature,
Folsom felt he could address Alabama’s longstanding problems in
health, education and infrastructure. He could also thwart his political
opponents, the Black Belt legislators and Birmingham industrialists
whom he called "Big Mules."
"He didn’t care about home rule or anything like that,"
said Carl Grafton, a political science professor at Auburn University
at Montgomery and coauthor of a biography of Folsom. "He was interested
in everybody getting the vote, including blacks."
But Folsom was inept and fractious in dealing with the
Legislature during that first term. His calls for a constitutional convention
went nowhere. When elected again, in 1954, he was more experienced and
had more influence, but he had to deal with Southern reaction to Brown
vs. Board of Education, the Supreme Court’s ban on segregated schools.
In that environment, Alabama politicians, especially those
from the powerful Black Belt, were disinclined to alter a document that
severely limited black voting rights.
In the House, "Folsom’s floor leader tried in 1956
to get a resolution calling for a referendum on whether there should
be a constitutional convention," recalled Brewer, who was a young House
member at the time. "It never got out of the Legislature."
In 1959, Folsom left office for the second and final time,
still clamoring for a constitutional convention.
Carrying the torch
Between the governorships of Folsom and Brewer, the constitutional
reform issue was kept alive by true believers such as Woodrow Albea
of Anniston.
Albea served in the House from 1954 to 1966 and in
the Senate from 1966 to 1970. During a recent interview at his Anniston
home, the 77 year-old Albea turned the pages of a dusty scrapbook full
of yellowed newspaper clippings describing his efforts on behalf of
constitutional reform.
He’d introduce legislation "just about every year,
real often," he recalled. "It’d get bottled up in committee, or
maybe we’d get it out of committee but it’d never come up
for a vote."
Albea, whose main concern was increasing home rule, said
the first real movement on constitutional reform came after a U.S. Supreme
Court decision, Baker vs. Carr, forced reapportionment of the House
in 1962 and the Senate in 1966. Then in 1968, Gov. Lurleen Wallace died
of cancer. The lieutenant governor who took her place was Brewer.
Brewer had favored constitutional reform since entering
the Legislature, and with a reapportioned Legislature he felt he could
make it happen. He pressed for a bill creating a constitutional commission.
"Just to set up the commission to study and make recommendations
was a war," recalled the former governor, now a professor of law at
Samford University’s Cumberland School of Law.
The commission consisted of 21 members, 14 appointed by the governor
and the rest appointed by legislative officers.
"We’d meet on Friday evenings, work late, sometimes
close to midnight, then have breakfast the next morning early and get
started again," said Albea, a commission member. "It was a bunch of
people who didn’t mind working."
The commission divided into committees that studied different
aspects of the constitution, held hearings for citizen and interest
group input, and by 1973 had recommended a new constitution that would
be far shorter and simpler than the 1901 document and would greatly
increase home rule.
But though yellow-backed copies of the proposed constitution
made their way around the state, Brewer was no longer in a position
to push for its approval. He had narrowly lost to George Wallace in
the 1970 gubernatorial race.
Brewer had planned to call legislators into special session
to deal with the new constitution and to stump for it. Wallace, by contrast,
had little interest in constitutional reform. Without a governor behind
it, the proposed constitution never came up for a vote in the Legislature.
"There was just no support from the governor’s office,"
said Conrad Fowler, a Columbiana probate judge who chaired the commission.
"I never talked to (Wallace) about it, but I talked to some of his lieutenants,
and it was quite evident that he had his own ballgame."
Fob James’ turn
In 1978, Fob James campaigned for governor on the need
to eliminate statewide voting on local constitutional amendments.
Soon after his election, he appointed a committee of lawyers
from across the state to draft a whole new constitution. Using the Brewer
Commission’s report as a starting point, the committee had a document
ready for the Legislature’s consideration by the spring of 1979.
James wanted a constitution that didn’t earmark state
revenue, that allowed voters to recall elected officials and that allowed
voters to put their own constitutional initiatives on the ballot after
collecting a sufficient number of signatures.
The committee dutifully included those measures, but special
interests (such as the Alabama Education Association, which insisted
on earmarked education funds) just as dutifully persuaded legislators
to take them out.
Still, Mike Waters - a lawyer James put in charge of the
reform effort - was optimistic that the result would be better than
the 1901 constitution.
"We thought that if we did nothing else but clean up the
constitution, and eliminate the statewide voting problem, and have a
document that was really more of a constitution than a legislative code,
then we would have done a service to the state," he said.
Even that proved impossible. Lobbying remained intense
by interest groups that felt protected by the old constitution. By a
large majority, the Senate approved James’ proposed replacement,
but it died in the House.
"I think if the governor had really pushed it in the House,
he could have gotten it up for a vote, and perhaps could have gotten
it passed," Waters said. "But frankly a lot of people went to him and
kind of frightened him. They said, ‘You’re going to cause
more problems than you’re going to solve by this. You’re going
to be throwing out 80 years of old case law.’ People will say a
lot of strange things when they’re opposing legislation, and unfortunately
he was persuaded by a lot of that."
James "lost interest," Waters said, and didn’t pursue
constitutional reform in the remaining three years of his term.
Aiming low
Bill Baxley campaigned for lieutenant governor in 1982
on a promise to rewrite the 1901 constitution. Once elected, he recruited
Bill Stephens, a lawyer for the Retirement Systems of Alabama, as his
draftsman.
They aimed low.
"It was more of a housecleaning revision," Stephens said. "What we tried
to do was create a modern, streamlined constitution that people could
read and understand. Once people had a constitution that they could
read, we figured it would be easier to make (substantive) changes."
The constitution they proposed was 23,000 words - about
one-eighth the length of the 1901 constitution as amended. It eliminated
obsolete and repetitious language, incorporated some amendments into
the main body of the constitution, moved most others into statutory
law, required that all future amendments apply statewide and allowed
counties a little more home rule.
Baxley and Sen. Ryan deGraffenried Jr. lobbied hard for
the revision’s approval.
"I held the floor of the Senate for 16 legislative days,
going over it, explaining it word for word, with the threat that we’d
kill the budgets and everything else if we didn’t act on this,"
deGraffenried said.
Both houses of the Legislature passed the revised constitution
as a superseding amendment to the old constitution. All that remained,
so it appeared, was for voters to give their approval in a November
1983 election.
But Sen. Richard Manley, D-Demopolis, sued to stop the
effort. He argued that the 1901 constitution allowed only a constitutional
convention - not the Legislature - to make wholesale reform.
While the courts considered the question, the Alabama Bar
Association formed a study committee that found the Baxley and deGraffenried
revision "seriously deficient," especially in its language on local
governments’ bonding authority.
Baxley, deGraffenried and other proponents charged that
the real Bar opposition came from bond lawyers who feared the new constitution
would result in judicial interpretations that might limit local bonding
authority - and the fees lawyers collect for advising in bonding matters.
Bad feelings remain from that dispute, but the Alabama
Supreme Court settled the legal issue. Eight days before a statewide
vote on the proposed constitution, the Supreme Court ruled 63 that Manley
was right: Until amended otherwise, the constitution of 1901 did not
allow the Legislature to pass out a wholesale revision, even if voters
had the final say.
The three outvoted judges penned an angry dissent:
"We mourn the passing at the hand of six of our brothers
of the most fundamental right upon which our government was founded.
... In this, the most important judicial opinion of this Court in this
century, the majority by judicial fiat has repudiated the power of our
people to change the state constitution."
The court’s decision came so soon before the election
that replacement ballots didn’t reach all the precincts. Some people
did end up voting meaninglessly on the constitutional question.
"It passed where it was on the ballot," Stephens said.
"I really believe it would have passed statewide." After the Legislature
approved the revision, Stephens said, he "traveled the state talking
to people, and they seemed to be for it."
Since 1983, individual legislators, such as Mac Parsons,
a former senator from Hueytown, have pushed for a constitutional convention,
but without success.
Return to: The
Legacy of Misplaced Power - Contents
Next: Special
Interests Fear 'Can of Worms'
Reprinted with Permission from the Mobile Register.
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