By Cathy Donelson
Business Alabama
January 2001
A powerful alliance of Bourbon planters and
mill town industrialists fashioned the 1901 Constitution.
Only a handful of would-be New South governors have dared to challenge
the feudal protectors of this Byzantine document.
Calls for revising the 1901 Constitution
have been sounded by many Alabama governors since 1915, says former
Gov. Albert P. Brewer. But the calls have gone unanswered for a century,
he adds.
Brewer, now a law professor pushing for constitutional
reforms, is a board member of the Alabama Citizens for Constitutional
Reform (ACCR Foundation, Inc.), the new public interest group incorporated
last year to inform Alabamians about their antiquated constitution
and inspire them to create a modern charter.
The document, which has grown into a thick book after
a century of amendments, is holding the state back, according to reformers.
It was so flawed in the beginning, the first amendment was needed
to allow the state to improve roads and bridges.
Alabama went through political and social upheavals that
alarmed the old guard in the years leading up to the new constitution,
so a century ago they crafted a new constitution to prevent another
scare.
A new industrial order was emerging, but the state was
still one of the most backward areas of the country. The planter class
retained its influence and power with thousands of poor whites and
blacks sharecropping small plots on former plantations. Most white
Alabama farmers worked land they didn't own under the tenancy system,
another "peculiar institution" which arose to replace slave labor.
The Populist movement of the 1890s brought together many
farm and factory workers - white and black - to take on the old aristocrats
and Gilded Age capitalism. There were bitterly fought elections over
issues dividing the "haves" and the "have nots" in Alabama.
The election of 1896 was the Populists' last serious
political campaign, marking the beginning of their political decline.
The aftermath provided a system of white supremacy and one-party Democratic
rule, which stabilized the power of the Bourbons and Big Mules.
Alabama's governor exemplified both at the turn of the
century. Joseph Forney Johnston governed the state from 1896 to 1900.
The Civil War veteran was president of the Alabama National Bank,
one of the first banks in the state's mineral district, and also the
first president of the Birmingham-based Sloss Iron and Steel Company.
The steel company had been founded by the colorful investor
J.W. Sloss, who had the attitude of many industrialists of his time.
Sloss was fond of saying, "I like to use money as I use a horse -
to ride!"
A Black Belt planter and urban industrialist coalition
rode to power on the Constitution of 1901 in Alabama, which was beginning
to join a new century in American life while still living with the
myth and memory of the Lost Cause.
Like the rest of the nation, Alabama got caught up in
the Spanish-American War of 1898 in a resurgence of nationalism. Even
old Confederate heroes like Gen. "Fighting" Joe Wheeler of Alabama
joined the "splendid little war" started after the U.S.S. Maine blew
up in the Havana Harbor. Fighting in the U.S. Army, momentarily forgetting
himself in the heat of battle with the Spaniards in retreat, Wheeler
gave a Rebel yell, hollering, "We've got the damn Yankees on the run!"
Yankee carpetbag rule was still a galling memory in Alabama
in 1901 when delegates gathered in the capital city of Montgomery
for a new constitutional convention. The new constitution was passed
mainly to disenfranchise black voters. But it had other flaws as well.
As early as 1914, Gov. Emmett O'Neal called for a modern
constitution, notes Dr. Gerald Johnson, emeritus professor of political
science at Auburn University. O'Neal, son of a governor himself, is
remembered as a progressive with a sense of noblesse oblige, even
though he had been a delegate to the constitutional convention of
1901. He addressed the Legislature in 1915, saying, "No real or permanent
progress is possible in Alabama until the present fundamental law
is thoroughly revised and adapted to meet present conditions. The
provisions of our present antiquated fundamental-plan constitution
form inseparable barriers to the most important reforms necessary
to meet modern conditions."
O'Neal went on to note that the Constitution of 1901
had been written primarily to limit black voting, so "little consideration
was given to other matters." However, O'Neal's proposed reforms were
hamstrung by a Legislature controlled by lobbyists bent on keeping
power.
And 85 years later we have the same document, says Johnson,
director of the Capital Survey Research Center.
"The current constitution now has over 600 amendments,
but I don't call them amendments," he said. "Our constitution has
over 600 defects that have to be addressed. What we have done since
1901 is patch, tape, wire and glue to get around a document which
prohibited internal improvements in the state and took power away
from people."
Only a handful of progressive governors tried to change
Alabama's image of "provincial politics and pellagra," according to
a study by Harvey H. Jackson, Jacksonville State University history
professor and ACCR Foundation, Inc. member.
Jackson notes Charles Henderson, one of the state's early
"business governors," tried to push Alabama into 20th-century reforms
by asking the Russell Sage Foundation of New York in 1917 to survey
the state and offer suggestions for improvement.
He got a report detailing "a grim landscape of neglect
and inequity," Jackson says, "And that neglect and inequity, inadequacy
and unfairness were just what the Constitution of 1901 was all about."
The voting provisions of the Alabama's '01 constitution
were "the most elaborate...that have ever been in force in the United
States," according to "A History of Suffrage in the United States,"
published in 1918.
At the onset of World War I, Alabamians with their culture
still molded to an extent by the Civil War were cool to the remote
war, in which the British blockade denied access to the continental
cotton market.
By 1917 they joined the call to arms and the war helped
stimulate the Alabama economy with shipbuilding contracts in coastal
Mobile and the establishment of training camps for thousands of soldiers,
such as Camp Sheridan near Montgomery.
F. Scott Fitzgerald, an aspiring writer assigned to Camp
Sheridan in 1918, fell in love with Montgomery belle Zelda Sayre,
18-year-old daughter of an Alabama Supreme Court justice. At war's
end he began a novel "This Side of Paradise," which made him famous
overnight, enabling him to marry Zelda.
"With the war of 1914-1918," observed Allen Tate, "the
South re-entered the world..." But to Baltimore Sun editor H.L. Mencken
the South of 1919 was the "Sahara of the Bozarts" as far as its literary
landscape was concerned.
Describing the South as a region of yokels, Mencken called
its politics "cheap, ignorant, parochial, idiotic."
However, even the crusty, cigar-chewing iconoclast wasn't
immune to southern charm, because he married Montgomery beauty Sara
Haardt. As head of the Alabama branch of the National Women's Party,
she had led the battle to have the Alabama Legislature ratify the
19th Amendment giving women the vote in 1920.
That right wasn't extended to blacks, still denied the
vote under Alabama's constitution, though it had been amended nine
times in the first two decades of the century. The state was still
run by Black Belt planters and North Alabama industrialists.
Along with the rest of the nation, Alabama entered the
Roaring 20s and the Jazz Age epitomized by Scott and Zelda, who was
the quintessential flapper. The intellectual Miss Haardt and the flamboyant
Zelda renewed their girlhood acquaintance while living Up East, while
back in Alabama cotton prices were plummeting and the boll weevil
arrived to devastate crops.
The 20s also gave Alabama two progressive governors:
Thomas Kilby and Bibb Graves. The tax base broadened some and social
services funding increased a little, but white supremacy, low taxes,
minimal social services and centralized government remained.
"Looking back," Jackson writes, "some pundits have suggested
that it was during this era, 1920 to 1929, that Alabama got its first
and last "New South" governors." The constitution was amended only
13 times during the 20s and most of those changes concerned road construction.
In 1923 Kilby called for the Legislature to call a constitutional
convention and a commission to draft a new constitution to submit
to voters. Nothing happened.
Graves, the state's first two-term governor, served from
1927-31 and 1935-39 and was in office during the stock market crash
of '29 and the ensuing Great Depression.
In 1930 Benjamin Meek Miller was elected, campaigning
against the extravagant reforms of the first Graves administration
and the power of the Ku Klux Klan. Inheriting a desperate economic
situation with low revenues and schools about to close, Miller turned
to the Brookings Institution of Washington, D.C. The organization's
scholars and experts studied Alabama government and made several recommendations,
including revising the constitution, but the advice failed to stir
the Legislature to action.
By 1930 tenant farming still held on under the old plantation
economy, with more than half the farms in the South - probably more
in Alabama - operated by sharecroppers and tenants.
Franklin D. Roosevelt, sworn in as the 32nd U.S. President
in 1933, brought in New Deal programs, which provided some relief
to Alabama farmers and oversaw creation of the Tennessee Valley Authority.
Artists and writers also found work. The tenant shacks
would be a kudzu-covered memory in Alabama if a New Deal photography
project under the Farm Security Administration hadn't brought the
nation's leading photographers to the South and Alabama.
Walker Evans left indelible images of the stark poverty
of Alabama farm life during the Depression and Zelda even wrote a
novel.
In "Save Me the Waltz," published in 1932, she referred
to her hometown capital city of Montgomery as Jeffersonville. "So
in Jeffersonville there existed then, and I suppose now, a time and
a quality that appertains to nowhere else," she wrote.
However, Zelda wasn't quite herself, observed a contemporary,
actress Tallulah Bankhead, who also was raised in Montgomery.
"I was there in a flower shop in the South of France
when Zelda, poor darling, went off her head," Tallulah said. "She
had gone into a flower shop and suddenly for her all the flowers had
faces."
In the American south in Alabama, however, times were
hard and Roosevelt depended on a powerful coalition of southern congressmen
to hold his New Deal coalition together, particularly Tallulah's daddy,
U.S. Rep. William B. Bankhead, who was Speaker of the House from 1936
to his death in 1940.
Others were Tallulah's uncle, U.S. Sen. John H. Bankhead
Jr., who co-sponsored the Jones-Bankhead Act to help tenant farmers
acquire their own land, and U.S. Sen. Hugo L. Black, appointed to
the Supreme Court in 1937.
Progressive Gov. Graves also became an ardent "New Dealer"
in his second term, creating the Alabama Department of Labor and the
Department of Human Welfare in 1935 and trying to get the state's
corporate interests and utilities to bear a bigger share of the tax
burden.
He was in office when Roosevelt's 1938 National Emergency
Council report was released, calling the South "the Nation's #1 economic
problem."
The report outlined three main causes: population; assessed
value of taxable property averaging only a third as much as northeastern
states; and the inability to adequately educate children. The South
was trying to educate a third of the nation's students on 17 percent
of the country's school revenues.
During the 30s and 40s the Alabama Policy Commission,
a citizens' group, pushed for constitutional revision, but nothing
came of it.
The popularity of the Depression-fighting programs began
to wane in Alabama as they began to threaten white supremacy and other
policies cemented in the Constitution of '01, and the state began
a slow defection to more conservative politics.
The year 1938 saw the election of Frank M. Dixon, a patrician
and grandson of the author of "The Klansman," the book the film "Birth
of a Nation" was based on.
Dixon, who served 1939-1943, won a reputation as a leader
in state reorganization and internal improvements. Dixon didn't take
on any major constitutional reforms other than pushing for redistricting
the Legislature as mandated by the constitution every 10 years, but
his bill failed. He also supported modifying the cumulative poll tax
instituted to disenfranchise blacks after a state policy report said
it kept more whites than blacks from the polls.
His successor in the war years was Chauncey M. Sparks
(1943-1947), a conservative called the "Bourbon from Barbour." Sparks,
a bachelor, hailed from rural Barbour County, called the "county of
governors." Representing the anti-New Deal wing of the Democrats,
he defeated a young upstate candidate named James Elisha Folsom by
just over 6,000 votes in what had been predicted to be a landslide
election for him in 1942.
Sparks is not remembered for progress, but he had little
leeway. The power brokers were afraid of the Populist Folsom, who
was for repealing the poll tax and gearing up for another run at the
capital.
State Democratic Party chairman Gessner McCorvey of Mobile
was concerned that there would be more registration of whites "even
though they are of a type which has no business voting."
According to the book "Democrats and Dixiecrats" by Professor
William D. Bernard, McCorvey thought the cumulative poll tax was a
"lawful and legitimate method of getting rid of a very large number
of people who would not have cast an intelligent ballot even if they
were given the right to vote."
In 1945 McCorvey went to Alabama legislators, urging
them to ensure the sacrosanct 1901 constitution was just updated to
keep a restricted electorate. He wrote: "I did not think that we have
the right to undo the work of that great group of Alabama leaders,
who...had only in mind love of their state and the determination that
no radical and irresponsible group could take charge of our State
Government or of any of our County Governments, especially in the
Black Belt."
Rural Black Belt politicians still ruled the Alabama
Legislature, which hadn't been reapportioned by population, even though
the constitution mandated redistricting after every federal census.
Nicknamed "Big Jim" because of his height, Folsom was
back in 1946, taking his campaign on the roads of Alabama with his
Strawberry Pickers county band, hoisting the mop and suds bucket he
said would use to clean up state government.
Folsom was the first - and last - Alabama gubernatorial
candidate to stump the state calling for constitutional revision.
The old Constitution of '01, a barrier to progress, he told crowds,
"was written by reactionaries on behalf of corporations."
Former governor Dixon stepped into the fray, warning
a constitutional convention would be "dangerous at this time, particularly
in view of the temper of the people."
Folsom, nonetheless, rode into office championing the
"little man" and on a Populist platform of redistricting the planter-dominated
Legislature and eliminating class hatred and the poll tax.
After the election, Dixon worried publicly that blacks
would be registered to vote, but his fears were groundless. Folsom,
unable to work with a conservative legislature, wasn't able to extend
voting rights to blacks or poor whites.
When Alabama emerged from World War II, its constitution
had only 51 amendments, and Nation magazine called Alabama "the most
liberal state in the South."
But the next year the States' Rights Party, also called
"Dixiecrats," arose at a national convention in Birmingham, splitting
from the national Democratic party.
Led by Dixon, McCorvey and former South Carolina governor
Strom Thurmond, the Dixiecrats bolted in 1948 when President Harry
S Truman proposed eliminating the poll tax and other reforms. Thurmond,
born in 1902, is one of the most enduring politicians of the 20th
Century. Now a long-time U.S. senator, he carried four states as the
States' Rights presidential candidate.
Truman was elected and once proclaimed the 1952 autobiography
of the Bourbon-loving Alabama actress Tallulah was the best book he
had read since coming to the White House.
Folsom was re-elected in 1954, but never succeeded in
passing his proposed voting reforms or constitutional revision. It
took the U.S. Supreme Court to make the most significant changes,
with decisions in civil and voting rights cases over the years rendering
whole sections of Alabama's constitution unconstitutional.
The Voting Rights Act passed by Congress in 1965 dismantled
barriers to voting, like the ones built into Alabama's constitution.
It suspended literacy tests and outlawed the poll tax as a state suffrage
requirement.
Rural politicians with status quo attitudes ignored constitutionally-required
redistricting until federal court-ordered legislative reapportionment
finally took place in 1962, after lawsuits were filed.
In 1965 the Legislature passed a redistricting package
that ended rural Bourbon domination but still ensured white supremacy,
but the courts struck down the House plan and drew one up in the absence
of legislative action.
To date all the state's legislative redistricting plans
have been drawn under state or federal court order, following challenges.
And since 1901 no major constitutional reforms have been passed. Except
one.
"Most people don't realize there was a significant revision
in the constitution in the 1970s with the Judicial Article," says
Thomas Corts, ACCR Foundation, Inc. chairman and president of Samford
University.
Almost unnoticed by a majority of Alabamians, the Judicial
Article, one of the most sweeping changes in the state's court system
since it was set up, was quietly ratified the week before Christmas
in 1973, due to the efforts of Howell Heflin, then chief justice of
the Alabama Supreme Court.
In just one term Heflin, who went on to become U.S. senator
from Alabama, changed the judiciary from one of the least efficient
to a model for the nation. He built coalitions with judges he promised
to include in the state retirement system and special interest groups,
particularly the Alabama Farmers Federation, which was pushing an
amendment to benefit pork producers.
"Vote for Hogs and Judges" was the slogan for the little
noticed amendments which passed with only a 7 percent turnout.
In Heflin's words the judiciary amendment "...laid to
rest a system that served well in the 18th and 19th centuries, but
which was strained by the economic, political and social conditions
of the 20th Century."
The Judicial Article was the only survivor of a proposed
new constitution drafted by a commission the Legislature created at
the request of former Gov. Brewer, who served from 1968-1971.
Former Gov. Fob James, elected in 1978, also tried to
get the constitution revised early in his first administration as
soon as he realized its constrictions. By then it had been amended
380 times and 60 times in the prior 15 years.
James' proposal for wholesale rewriting brought out every
special interest group in the state seeking to keep the amendments
to their advantage. His constitutional proposals got as far as legislative
public hearings, but in the end there was too much opposition from
lawmakers bent on keeping power.
The irony of Alabama's constitution is it restricts the
Legislature from authorizing basic government functions without a
constitutional amendment. Only the Legislature can change it by legislative
amendment or through a constitutional convention. The governor's approval
isn't even required.
Since 1935 at least 25 bills and resolutions have been
introduced in the Alabama Legislature calling for a constitutional
convention, but not one passed. In 1992 a joint legislative resolution
proposed a constitutional convention, but it wasn't enacted.
Two decades have passed since an Alabama governor has
seriously attempted to change the outmoded constitution. The document
is observing its 100th birthday this year in a state living the legacy
of the planter class that established the Constitution of '01.
There's only a 1.5 percent farm population now, but a
fifth of the people live below the poverty level, and a third of Alabama's
adults didn't graduate from high school.
No centennial celebrations have been announced in the
Capitol or State House this year for the constitution which has given
Alabama its destiny.
Note: The author credits and recommends, for further
information, Albert Brewer's "Constitutional Revision in Alabama,"
an Alabama Law Review article, which can be located at www.law.ua.edu/lawreview/brewfull.htm.
Reprinted with Permission from Business Alabama.
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