Seventeen years ago when we made Alabama home, I
was unprepared for the powerful cynicism I found among ordinary citizens
about state government. Alabamians did not highly regard their own
state! People joked about not expecting much of state and local government
as they looked down upon their own state and wondered why people in
other states did, also.
I confess that I have come to care deeply about this
state, which has been good to my family and to me, a state that has
given me the opportunity to enjoy a high quality of life, with dear
friends and great colleagues, and work that I find immensely satisfying,
if always challenging. I have lived in five states, but in Alabama
longer than any other. Now that we have five grandchildren, all of
whom live in Alabama, we seem to have set up permanent camp.
This state has some very serious problems -- but it also
has such great capacity, so many positive attributes. Yet, sadly,
so often it ends up on the bottom when it could be on top. And that
happens with such frequency that even our best and brightest, overcome
by a subtle resignation, simply shrug at our poor standing. Perhaps
that is why it does not bother us when highly-respected Governing
Magazine, says in print for a national audience (of people choosing
colleges, plant location sites, etc.): "...Alabama is nobody’s
model of an efficiently run state." (Governing, February, 1999, p.
24)
That conclusion was derived from the report of the Maxwell
School of Citizenship and Public Affairs at Syracuse University. Supported
by funds from the Pew Charitable Trusts, that study graded Alabama
as the worst state government of all, based upon financial management,
information technology, performance-based operations, etc. When I
first read that, I suspected it was rooted in geographic prejudice
and I set out to prove it wrong. Not able to do so, I wondered how
long are we willing to be captives of a system that makes us cellar-dwellers
among the 50 states? How long, Alabama?
We cannot blame people — because our plight was
not caused by the governor, nor the legislature, nor state employees.
The fault rests with the Alabama Constitution, the fundamental document
that gives shape to state government. It is estimated to be 220,000
words, about two and a half times as long as any other State’s
constitution. We have 661 amendments, more than any other state, and
the amendments now total far more pages than the original document.
(At the rate we are going it will not be long before we have 1,000
amendments!) The result is now a Constitution that is bloated with
excess specificity -- a legislative manual, more than a grand design
for state operations.
For almost 100 years, it has been acknowledged that our
state constitution was poorly conceived, poorly written, composed
largely with Reconstruction in mind. If we have another Civil War
followed by Reconstruction, our state may be ahead of the pack. But
if we think it more likely that the world of the future will be dominated
by computers, microchips, and satellites, we need a constitution that
looks forward, instead of backward. Truth be told, the aim of our
present Constitution was never efficiency or justice. The president
of the Constitutional Convention in 1901 openly stated that the Convention
had met to establish "white supremacy by law." It achieved its purpose
remarkably. In 1900, 100,000 African-Americans were enrolled as voters.
By 1910, after the Constitution, all but 3,752 had been "cleansed"
from voter rosters. (Virginia Van der Veer Hamilton, Alabama: A History,
1977, p. 96). Writers of the Constitution of 1901 worked from wrong
motives that led them to wrong conclusions and we have been paying
a price ever since. Knowing potential is a terrible thing to waste,
a hundred years later, we ask: How long will Alabama be willing to
settle for a state government that is 50th out of 50?
Living with a poor Constitution, policymakers and local
governments have worn themselves out crafting amendments to get around
its excessive prohibitions. It sounds just as ridiculous as it is,
but the Constitution actually states, "The state shall not engage
in works of internal improvements...." (Article IV, Section 93) What
good would a state government be that made no "internal improvements?"
In 1908, just seven years after the Constitution was adopted, they
wanted to build a road, the age of the automobile coming on. Prevented
from "internal improvements" such as roads, they had to amend the
document and almost 100 years later, we are still amending! For example,
(1) the Constitution restricts local borrowing and prohibits state
debt except in time of war. The limits are still there, but more than
a hundred amendments have been adopted creating exceptions so governments
can borrow. (2) The Constitution sets strict limits on property taxes.
After 99 years, those limits remain in print but over 180 amendments
circumvent those restrictions, authorizing property taxes for city,
county and school purposes. (3) The Constitution constrained the topics
on which local acts could be adopted and the procedures to be used.
While those roadblocks are still on the books, 118 amendments detour
around them. (4) The Constitution prohibits the Legislature and local
governments from involvement with private enterprise. That language
endures, but 47 times amendments have worked around those restrictions
to allow entrepreneurial cooperation in the economic development of
cities and counties. (5) The Constitution does not allow the Legislature
to adopt local acts related to local court costs and the compensation
of elected officials. But today, 62 counties are exempt from those
limitations through local amendments.
Two observations become very clear. (1) While some people
act as though the Constitution has not been changed, and they want
it "left alone," any one can see that, while we were doing nothing,
it has been radically changed and is being changed every year -- by
the Legislature, through amendments. Two years ago there were 44 amendments
in one year alone. (2) Government of cities and counties by state
constitutional amendment is the clumsiest form of government conceivable.
It is increasingly difficult even to know the status of the law in
a particular county, because the Constitution may say one thing, and
then that entire section can be abrogated for one county by some obscure
local amendment.
It is always a source of amazement to a first time voter
in Alabama that he or she may be voting on amendments to the State
Constitution, thought the amendment impacts only a single county,
300 miles away. But since counties have so little authority, legislators
end up making county and city decisions, which have to be ratified
by voters statewide. Measures that should take only a few minutes
on a county commission agenda end up on a statewide ballot. People
hardly believe you when you tell them Alabama Constitutional amendments
deal with allowing a Morgan County Sheriff’s posse (502), mosquito
and rodent control in Mobile County (351), the right to dispose of
dead farm animals in Lauderdale County (482), promotion of the catfish
industry (492), etc. A model is the U. S. Constitution which is brief
and powerful, and has been amended only 27 times in 200-plus years.
A state constitution is about governmental powers and peoples’
rights — yet here in Alabama we are dealing with mosquitoes,
rodents and catfish!
How long, Alabama? Since 1915, governors have been pleading
for constitutional reform, recognizing the uselessness of our present
document. In 1915, Governor Emmet O’Neal said: "No real or permanent
progress is possible in Alabama, until the present fundamental law
is thoroughly revised and adapted to meet present conditions." That
was in 1915! How long, Alabama?
In 1920, Governor Kilby asked for a constitutional convention,
declaring "much progressive legislation, earnestly desired, has been
restrained because of some constitutional limitation or inhibition."
Later, he asked in vain for a study commission to review the matter.
Finally, in his last message as he left office, he called the constitution
a "patchwork." "It should be changed, remodeled and rewritten and
made a harmonious whole." That was 1920! How long, Alabama?
In the 1930's, the Brookings Institution, under Governor
Benjamin Miller, did a major study of Alabama government, suggesting
a reorganization that was later supported by Governor Frank Dixon.
But change did not come. In 1937, the Alabama Policy Committee even
developed a model constitution for the state. It urged back then all
the streamlining still needed today — streamlining that has never
yet been accomplished, leaving people wondering: How long, Alabama?
When Governor Jim Folsom came to office, he constantly
urged constitutional reform and reapportionment to no avail, though
in his last year of office, he called five special sessions of the
legislature attempting to meet the issue. In the years that followed,
the U. S. Courts mandated reapportionment, and various provisions
of the Alabama Constitution were struck down by U.S. Courts, creating
gaps and embarrassing leftovers in our Constitution. But it did not
happen then, even though they asked: How long, Alabama?
It was a great day when Governor Albert Brewer energized
the effort in 1969. A 21-member constitutional revision commission
went to work, proposed a revised constitution and submitted it to
the Legislature in 1973. Portions were implemented, but the best of
the work is still on the shelf almost 25 years later... waiting for
who-knows-how-long, Alabama?
I would only say this only within Alabama but, if I worked
in economic development in one of our neighboring states and found
myself in competition with Alabama, I would simply show the site-hunter
the Constitution and I think Alabama would be eliminated. Anyone perusing
the Constitution would find it difficult to believe Alabama is serious
about doing business in the modern world.
The time has come. The Constitution dictates that the
Legislature has to call a constitutional convention. We can demonstrate
the powerful self-correction that is the strength of democracy by
convincing the Legislature: just as you let citizens decide on the
lottery, let the citizens choose, in a statewide referendum whether
they want a constitutional convention. That is risky. But as Dr. King
once said: "It is better to fail in a cause destined to succeed than
to succeed in a cause destined to fail." If delegates were elected
to a constitutional convention, as has been the tradition, many in
this room would be willing to serve. And with the entire process in
the open, covered by the press, we might restore a measure of confidence
lost to the cynics.
I am pleased to announce that today, thanks to the influence
of one of our Rotarians, Stephen Chazen, and the Unus Foundation,
we have established at the Cumberland School of Law at Samford the
State Constitutional Law Project. We have realized there is a much
neglected area in state government and our folks are going to work,
studying state constitutions, building a data base, hiring outside
experts, and focusing on issues that must be considered by states.
WHEN (it is not a matter of "if") our Constitution is renewed, this
Project should be a great help. Ours is not an effort to draft a model,
but a systematic attempt to identify the issues, gather up the best
practices already utilized in other states, the best thinking world-wide,
and offer it to a constitutional convention when it comes together,
and to other states, as well.
Our stewardship of this great state demands that WE take
up the challenge. "...All political power is inherent in the people...."
We can take the Constitution that has repressed and restricted our
progress, kept us in the bottom rankings, and start anew — the
first state to ratify a new constitution in the new century, the new
millennium. When we are 50th out of 50, we don’t have much to
lose.
How long, Alabama, O how long?
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