“What effect reform?”

Forum on Constitutional Reform Huntsville, Alabama May 16, 2000


By Woody Sanderson
Attorney in Madison County

   I am privileged and excited to be with you today to participate in this grass roots discussion of what could become the most significant change in the government of Alabama of the last 100 years. The issues we are discussing today could shape the way our state is governed throughout the new century.
   So it is with some trepidation that I, a humble city lawyer, with deep country roots, stand before you today to discuss issues related to constitutional reform in the State of Alabama.

   The program says I am to discuss the question, "What Effect Reform?" While I do want to speak to that issue I want to reserve some of our time today to address briefly other questions such as why, how and in what manner constitutional reform should be pursued for Alabama.

   But first I need to give you a disclaimer. I regret doing so because I once read that any society that needs disclaimers has too many lawyers. However, lest there be any misunderstanding, you should know that the opinions I express here are my own. I am here representing no particular client and I am not here as a representative of the Chamber or its Leadership Program. For these purposes I declare myself free from the constraints of political correctness that often causes city attorneys in particular to choose their words so carefully.

   With that said, WHAT EFFECT REFORM?

   You know, the issue of the effect of proposed reform is difficult to address because of the many different directions a reform movement could take. You have to understand that lawyers are trained to see four sides of a triangle. So the lawyer in me is inclined to answer the question: "What Effect Reform?" with a simple two-word response that could save all of us some time. That answer would be "It depends."

   Some of my clients would not be surprised to hear that answer because they have heard it from me before. It is an answer given at times to afford an opportunity for necessary reflection on the issue at hand. The cynics in the room might speculate, perhaps with a degree of accuracy, that such an answer from a lawyer simply represents a way for him to get paid for telling you he doesn’t know the answer to the question.

   Here, though, it really does depend. It depends on what we, the people want reform to do for us. It depends on whether we can be successful in making reform about real change in the way Alabamians govern themselves and not about special interests finding another way to overcome common sense approaches to governance. It depends on the nature of the debate, the parties who step forward to debate the issues and the forum in which they are debated.

   This much is certain, however. If the people of this state come forward and speak their will about the issues that concern them, from education, to taxes, to the environment, to home rule, to finally having a government that works and which makes sense, then real fundamental change is possible.

   Because of my interest in politics and in how things work politically, I have always wondered why it is so difficult to accomplish real progress in Alabama. The restrictive and prohibitive current constitution, I have resolved, provides most of the answer to that question. I, like probably each of you, cringe each time I am faced at the ballot booth with 10-15 new amendments to such an already incomprehensible document. Like Chairman Gillespie [chairman of the Madison County Commission], in my capacity as a municipal attorney, I daily experience the manner in which the Constitution of 1901 hamstrings the efforts of local public officials to serve the people who elect them. Why does this document, which is supposed to be the fundamental law of our land, need constant tinkering by the legislature... and approval of that tinkering by us?

   It needs such constant revision because it does not allow government to do the things we expect it to do. Let me be clear. We are not talking here about some liberal, expansive view of big government that is prohibited by this constitution. The type of government expenditures prohibited by the original language of the Constitution of 1901 includes all manner of services fundamental to even the most conservative view of the role of government.

   Is there anyone here who would argue that government is not expected to provide roads, bridges, state parks, prisons, docks, mental health facilities and other hospitals? Is there anyone here who does not expect government to be involved in the provision of water and sewer facilities, fire stations and schools? Yet incurring indebtedness for construction of such facilities was beyond the reach of the state legislature, much less local governments, under the Constitution of 1901. Dozens upon dozens of amendments to our fundamental law have been necessary to provide these basic services of government.??

   The Constitutions of 1875 and 1901 were written at a time when large agricultural and timber interests dominated politics in Alabama. They wanted to be sure that the powers of taxation and other matters of interest to them could be concentrated in as few people as possible. It was also a time in Alabama when efforts to disenfranchise and control the post civil-war minority population was of paramount importance to white power brokers.

   Limiting the authority of state government was only part of the solution devised to preserve the interests of those who dominated the political affairs of the day. Obviously, it would do these special interests little good if they bottled up the state officials but allowed local officials unfettered powered to enact regulations and approve taxes contrary to the interests of the power brokers. So they assured that local governments were given very limited authority as well. As a result, our cities and counties have struggled for 100 years to find ways to meet the ever-increasing demands of their citizens, with virtually no authority to do so under the Constitution.

   So the result has been amendments, lots and lots of amendments. Now with almost 700 amendments, we have the longest constitution in the world, by a huge margin. Of those amendments, by my count, at least 531 were necessary because of the limitations on local authority contained in the constitution. The rate of increase in the number of amendments is alarming also. The constitution was "only" amended 98 times in its first 50 years. In the next forty-nine years it has been amended almost 600 times more, with over 300 of those ratified in the last 20 years. More than 180 have been ratified in the past ten. At the current rate, our 6th state constitution will be amended more than 1000 times before our state reaches its 200th birthday.

   The need for constitutional reform, however, isn’t based on the length of the document, as ridiculous as that is. The need for reform is found in the inability of our governments, state, county and municipal, to function in a manner that meets the needs and expectations of our citizens in the 21st Century. We live in an age which would have been incomprehensible to the framers of our state constitution. Unfortunately, the document they drafted, even with its many amendments, has neither the flexibility nor the resilience to meet the demands of a time such as this.

   So, what should we expect constitutional reform to accomplish? At a minimum, we should expect a fundamental law for our state capable of expressing our principles without repressing our rights. A new constitution must be flexible enough to stand the test of time but have relevance to where we are today. It must be the repository of all that we know to be true and the guidepost for all we know to be right. We must have a constitution which is not subject to domination by the interests of the few, but is protective of the rights of the many. Our people deserve no less and our government can ask for no more.

   As I say this, I find myself thinking, as each of you probably are now, how idealistic can you get? That is impossible. The only time of which I am aware that such a document has been written was in 1787, when the forefathers of this nation framed the Constitution of these United States.

   Can we repeat such a miraculous feat? Can we have a constitution for our state with the same relevance and resilience found in our nation’s magnificent constitution? Perhaps not. But no one should leave here today thinking that our state government should aim any lower than that lofty standard.

   How are such goals to be reached? My personal opinion is that the effort must concentrate on approval of legislation, at the earliest possible date, calling for a constitutional convention to draft a new fundamental law for this state.

   While it is my firmly held view that our legislature is not the proper body to which to look for fundamental constitutional reform, that opinion is not intended to attribute ill motives to its members. Quite frankly, the legislature simply is not equipped for the job for a number of reasons. First, it cannot in my judgment, legally adopt a new constitution in toto. The existing constitution makes it clear that while the legislature may propose and adopt any number of single-subject amendments, the broader task of writing a new constitution lies with a legally convened constitutional convention.

   Second, while the legislature perhaps could adopt a new constitution article by article in the form of still further amendments to the existing constitution, it is impractical to expect it to do so. The only occasion on which a new article has ever been adopted in the past 100 years, was the adoption of the Judicial Article championed by then-Chief Justice Heflin in the late-1970’s. If we allow 20-year increments for adoption of each of the remaining 17 articles the legislature should get the job done in about 340 years.

   Finally, it is just too much to expect of part-time legislators who are burdened with all of the mundane tasks of responding to constituents and sorting through claims, demands and requests of dozens of lobbyists. Their investment in the existing power structure is too great to expect them in significant numbers to be greatly interested in a new and different way of doing things.?

   So how can we expect them to do what is necessary; to vote to call a constitutional convention? The answer is in what you are doing today. There is power in public opinion. Thomas Jefferson recognized it and perhaps stated it best. He wrote, "The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to." "Public opinion is the lord of the universe."

   A movement such as this is perhaps the most effective way that public opinion can be galvanized. It can do wonders to reverse the "business as usual" mindset of the system and open the minds of our legislators to a new reality.

   But it has been said that, "A new idea is delicate. It can be killed by a sneer or a yawn; it can be stabbed to death by a joke or worried to death by a frown on the right person’s brow." While the idea of constitutional reform is not new, this movement is and it can surely be killed. Rest assured there are powerful interests out there who would love to kill it too.

   To succeed where others have failed, we must do as Gandhi suggested; "We must become the change we want to see." To achieve constitutional reform which will make a difference in our lives, we must reform our expectations of government and let our officials know about it.

   If we are to expect brave political acts of self-sacrifice from our legislators we must be prepared to show some political bravery of our own and challenge them to do the right thing for our future even if that means reconfiguring the balance of power, to their personal detriment.

   So let us take up this challenge today and prove the truth in Thomas Jefferson’s words when he said, "whenever our affairs go obviously wrong, the good sense of the people will interpose and set them to rights."

   Our constitution has obviously outlived its purpose yet it haunts us still. It is time to put it to rest.

   While it will be suggested that the more temperate course is to entrust the task on a piecemeal basis to our legislators true constitutional reform is outside the realm of reasonable expectations of them. A constitutional convention, in this age when special interest dollars impact every election, is not without risk. But it represents the better opportunity for true reform, in our lifetime.

   The task ahead is daunting but do-able. Emerson advised us to "Always do what your are afraid to do." We will accomplish meaningful constitutional reform only when we are willing to heed that advice, or when the more fearful thing is to do nothing.

   Thank You.

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