By Woody Sanderson
Attorney in Madison
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
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
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 doesnt
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, isnt
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
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
nations 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-1970s. 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 persons 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
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
So let us take up this challenge today and prove the
truth in Thomas Jeffersons 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.
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