Alabama Needs a New Constitution

   Twenty-eight years ago, North Carolina Governor Terry Sanford described old-style state constitutions as the "drag anchors of state programs, and permanent cloaks for the protection of special interests and points of view."(1) Since then many states have made major revisions to their constitutions to bring them up-to-date and to enable those states to address adequately the many problems and challenges facing them. Unfortunately, Sanford's 28-year-old description of state constitutions still applies in Alabama. The Alabama constitution remains the "drag anchor of state programs" and "a permanent cloak for the protection of special interests."

   I am not the first to make this observation about the Alabama constitution. In 1915, in a message to the Alabama legislature, Alabama Governor Emmet O'Neal said:

Many of the provisions of our present antiquated fundamental law constitute insuperable barriers to most of the important reforms necessary to meet modern conditions and to secure greater economy and efficiency in the administration of every department of state government.(2)

    The defects in our present constitution are so numerous and radical, and so intermingled in the different sections that it would be practically impossible by any manner or series of amendments to remedy the defects.(3)

   The only rational option is to assemble a constitutional convention to take into consideration the entire subject and remodel the entire constitution so that it might make a harmonious whole.(4)

    These words are as true in 1995 as they were in 1915. The people of Alabama deserve a government that is both effective and efficient, a government that enables them to meet their basic needs and ensure a better future for their children.

    The 1901 constitution is a major obstacle to effective, efficient state and local government. It is Alabama's anchor -- preventing the state from moving forward to address the myriad of problems that confront it. The Alabama constitution preserves a flawed tax structure that starves local governments and impoverishes our public schools. It denies self-government to the people of Alabama by denying their local governments the power to deal with local problems. It preserves a system by which the people are no longer sovereign. Tragically, the locus of real power in Alabama is the powerful special interest groups who seek their narrow interests at the expense of what is good for all.

   The 1901 constitution is a vestige of Alabama's past. It is a relic. It is an impediment to this state's growth and progress. The flaws in our constitution are so severe and so fundamental that nothing short of a new constitution will suffice. As we approach a new century, we need a new constitution to guide us into the future.

    As I make a case for a new constitution, I will first highlight some problems associated with the present one.

The Alabama Constitution is Very Long

   The Alabama constitution is the national poster child for outdated, obsolete constitutions. Alabama has the longest constitution in the United States -- probably the longest in the world. While the average state constitution is about 28,000 words, the Alabama constitution has over 175,000 words. It is more than 20 times as long as the U.S. Constitution. It is over 6 times as long as the typical state constitution, and over twice as long as the next longest state constitution -- New York's. In fact, the combined constitutions of our neighbors -- Mississippi, Georgia, Tennessee, and Florida -- equal only about half the length of the Alabama constitution.

    The U.S. Constitution has been amended only 27 times. The average state constitution has about 118 amendments. The Alabama constitution has 571 amendments -- most of which should have been enacted as statutes.

The Alabama Constitution is Very Detailed

   The reason that the Alabama constitution is so extraordinarily long is because it is extraordinarily detailed. The constitution is strangled in specifics. It is antithetical to what a constitution should be -- a statement of fundamental principles. Rather, the Alabama constitution is a very long string of statutory laws. There is nothing wrong with statutes. Every legal code should have them. But when a state's fundamental document is cluttered with things that have no place in a constitution, something is wrong.
   Alabama's foremost constitutional scholar, William Stewart, give's his choice for the worst, most "unconstitutional" provision as Amendment 450, the Alabama trust fund amendment, which says in Section 2 (6): "All corporate securities shall at the time of purchase by the [trust fund] Board carry a rating of "A" or better by Moody's and/or Standard and Poors." A close contender, according to Stewart, is Part I of Amendment 489, authorizing the Alabama Music Hall of Fame Authority to acquire tapes and CDs.(5)

   The ideal state constitution -- short and general -- establishes the basic framework of government, leaving to the legislature the responsibility for filling in the details. Such a constitution gives broad powers to the representatives of the people and holds them responsible through democratic, electoral processes.

   The 1901 constitution was written to make sure little change could take place. Written in specifics, the document is a statement of mistrust of the legislature and must be changed frequently as the environment in which it functions changes. If Alabamians want anything to happen, they have to amend the Constitution. Again and again and again. 571 times and counting.

Consequences of a Failed Constitution

   A defective constitution is not the only problem facing Alabama, but it is a fundamental problem. The constitution is the root of many serious problems that we face today. For example the Alabama constitution: 

• Protects special interests and weakens citizen control;

• Prevents local governments from addressing local problems, inhibiting local innovation and responsiveness;

• Institutionalizes a failed tax structure -- ensuring the inadequate funding of education and preventing the state from addressing its most pressing problems; and

• Impedes state government effectiveness, efficiency and responsiveness.

Protection of Special Interests

   Party competition and organization are limited in the Alabama legislature. Although usually classified a one-party state, Alabama is better described as a "no party state." Filling the partisan and leadership vacuum are powerful special interest groups. In fact, individual legislators are often as much identified with AEA, Alfa, or the Trial Lawyers Association as with a political party.

   Research shows that the longest constitutions are in those states with the strongest interest groups.(6) A study by David Nice finds that long constitutions are generally found in states with little competition between parties.(7) He suggests that one-party states are characterized by intraparty dissension and unstable political coalitions that produce unpredictable legislative outcomes. These conditions mean that interest groups try to insulate their pet programs and policies from uncertainty by placing protective provisions for them in the constitution.

   Alabama's special interest groups have recognized that if they get a desired policy incorporated into the constitution -- rather than simply in a law passed by the legislature -- it will be much more enduring and more difficult for others to change later. Thus, many detailed constitutional provisions favor or protect special interests, such as timber companies and agricultural interests.

   The 1901 constitution effectively ties the hands of future legislative majorities that may wish to reconsider programs and policies in the light of changing circumstances. Such specific constitutional provisions represent "the dead hand of the past" restraining state and local governments as they grapple with modern problems.(8)

Weakening of Citizen Control

   "Popular sovereignty" is a pillar of democratic society; sovereignty rests neither in the government nor in the rulers but in the people. Everyday political power in Alabama, however, is concentrated largely in the leadership of a set of special interest groups, none of whom is elected or otherwise responsible to the people. The result is the preservation of a system by which the people are no longer truly sovereign. The source of real power in Alabama is the powerful special interest groups who seek their narrow interests at the expense of what is good for the entire community.

Restrictions on Local Government Authority

   Local governments must get explicit permission from the state legislature to provide a new service, tax, or exercise any other authority not specifically granted by the state. Without home rule, those governments closest to problems are prevented from resolving them.

   Instead, local governments are forced to address local issues through constitutional amendments. Today, growing counties often cannot address their citizens' needs without going hat in hand to the legislature, begging for relief because of the distrust of power that is not located in Montgomery. This is a needless waste of time for both local officials and state legislators. But it is an inefficiency that is all too common. About 70 percent of Alabama's 571 amendments apply to a single city or county.

   According to the U.S. Advisory Commission on Intergovernmental Relations, Alabama is one of only two states that deny home rule to their cities and towns. It is one of 13 states that do not allow self-government to counties. Alabama needs a constitution that allows home rule for local governments.

A Flawed Tax Structure

   Alabama is a poor state, but even for a poor state it does not make much of an effort to fund basic state services. Alabama ranks 46th in the nation in state and local tax collections per $1,000 of personal income. It relies heavily on a regressive sales tax, which places disproportionate burden on those citizens less able to pay. Alabama property taxes, on the other hand, are by far the lowest in the nation.

   Property taxes are so low here that if they were raised by a third Alabama would still have the lowest property taxes in the nation. For Alabama property taxes to meet the national average, they would have to be increased by 400%!

   The agricultural and timber interests that controlled the 1901 constitution made sure that Alabama had the lowest possible taxes on property. Since 1901, these same interests have labored to make them even lower. A 1978 constitutional amendment lowered the assessment ratio on most property to 10% of its real value and set a cap on how much could be collected overall. On top of this, "current use" lets property owners have their land assessed without consideration to its real value (supposedly to protect the small farmer from taxes on higher land values caused by urban encroachment). For example, one timber company pays $4.50 an acre per year on the Georgia side of one forest, and then crosses the state line to pay Alabama only 77 cents per acre. It is estimated that the "current use" provision and accompanying laws cost Alabama about $25 to 30 million each year -- money that is desperately needed for education and other services.
  
   Not only does Alabama have a weak tax structure, the constitution allows the governor and state legislature almost no flexibility in deciding how the state can spend the revenues generated. While the typical state earmarks about 23 percent of its revenues, Alabama earmarks nearly 90 percent. The extensive earmarking of Alabama revenue means that it is impossible to match revenues with current state needs. Regardless of changing needs or circumstances, state priorities are set in cement in the Alabama constitution. Excessive earmarking of revenues is a major barrier to effective financial decision-making.

Inadequately and Unevenly Funded Education

   In an age where education is becoming increasingly important to one's future economic prospects, Alabama consistently underinvests -- partly because it is a poor state and partly because powerful timber and agricultural interests seek to maintain a low property tax, which is the mainstay of local school support. Alabama ranks 49th in the nation in average spending per pupil -- just 74 percent of the Southeastern average and only 65 percent of the national average. However, those who seek educational reform are stymied by the 1901 Alabama constitution, which ensures that increasing local property taxes will require not only a local popular vote, but also a favorable vote of the entire state legislature.

   While some wealthy suburban school districts are able to keep up somewhat -- due to higher property values and a greater willingness to tax themselves to maintain quality schools -- rural and city schools are clearly substandard. Textbooks are old and outdated. Facilities are literally falling down. Science labs, computer labs, higher mathematics are just a dream for many Alabama school children.

   The recent legislative response to underfunding for elementary and secondary education is to take money away from Alabama's colleges and universities. This is a short-sighted policy and a recipe for economic stagnation. We choose to ignore the model of states where the engine of economic vitality is a strong system of higher education -- North Carolina's research triangle, for example.

   In its 1983 report, A Nation at Risk, The National Commission on Excellence in Education warned of "a rising tide of mediocrity that threatens our very future." "If an unfriendly foreign power had attempted to impose on America the mediocre educational performance that exists today, we might have viewed it as an act of war . . . We have, in effect, been committing an act of unthinking, unilateral educational disarmament."(9)

   If this is true for America, it is even more true for Alabama. There is no state in the nation in which a strong commitment to education is more urgent. Education is the key to economic development and an improved quality of life for Alabama citizens. Sadly, education has never been highly valued in this state. In order for Alabama to live up to the promise of its potential, strong leadership with a commitment to excellence in education -- elementary, secondary, and post-secondary -- is essential. This investment in Alabama's future will pay huge dividends if only we have the vision and courage to make the necessary commitment. The Alabama constitution with its antiquated and unfair tax structure stands as a major obstacle to this kind of progress.

Obstacles to Efficiency and Effectiveness in State Government

   The structure and powers of the three branches of government, as outlined in the Alabama constitution, also need reform. Changes in the constitution's legislative, executive, and judicial articles could greatly improve the administration of government in this state.

Legislative Branch: Distracted by Local Concerns and Controlled by Special Interests

   Much of the Alabama legislature's time is consumed with local legislation. In fact, about 40 percent of the bills considered have only local impact. With limited time available in a legislative session, it makes little sense to devote such attention to matters better dealt with at the local level. If state legislators were freed from the responsibility for running local affairs, perhaps they would have more time to address the myriad of problems that burden our state. Perhaps they would even have the time to pass stricter campaign finance laws to weaken the stranglehold of special interests in Montgomery.

Weak Executive Branch

   Alabama has the long ballot, meaning that many executive branch cabinet members are elected. Elected executive branch officials are not beholden to the governor for their jobs, and so the governor has little or no formal influence on their decisions or activities. The result is a loss of accountability, efficiency, effectiveness, and responsiveness. If the governor is to be held accountable for the actions of state government, then the governor should be able to designate the person or persons responsible for policy recommendations and policy implementation.

   A suggested reform is to reduce the number of popularly elected heads of executive departments (e.g., secretary of state, attorney general, treasurer, agriculture commissioner). Instead the governor should be able to appoint persons to these positions with senate approval. In addition, various boards and commissions (education, public service commission) should be replaced with department heads appointed by the governor subject to senate confirmation.

Elected Judiciary Tainted by Special Interests

   The most modern of the articles in the Alabama constitution is the judicial article, revised in 1973. Despite major improvements -- a unified judiciary, standardized rules and procedures, improved record-keeping -- the judicial article still needs reform. The state currently has a Judiciary where judges are forced to become politicians -- campaigning and running for office in partisan elections. Almost one year after the 1994 judicial elections, we still do not know the identity of the Chief Justice of the Alabama Supreme Court. The public is rightly disgusted with a judicial selection process where a prerequisite to becoming a state judge is the ability to solicit large campaign contributions -- often from special interests who will come before the court.

The Challenge of Change

   Alabama is a state of great resources and potential, but with a fundamental problem -- a state constitution that has been rightly described as "ugly, evil, and outdated." Alabama needs something more akin to the U.S. Constitution -- a short, simple document that provides a framework for government.

   Major change is needed. Of course, there is a natural reluctance to change from existing ways of doing things, even when progress is expected from that change. For interest groups that have a vital stake in the status quo, there is open hostility to change.

   The challenge is great. Many people say "We need a new constitution; it would be good for the state -- but it is not possible. The forces opposed to change are too strong. Why bother?"

   As much as special interests, apathy and ignorance are obstacles to reform. The average Alabamian neither knows nor cares much about the state constitution. Alabamians must be educated about the need for reform. It will require the work of all of us, especially those in positions of leadership -- in government, business, the media, education, and civic organizations. The process will likely be slow and difficult. But change requires that those who want a better Alabama be committed to work for it.

   We have the benefit of the efforts of those who have attempted reform in years past, with as yet, little and limited success. But they have done much that can be learned from and built upon. I am reminded of one of my favorite quotes about perseverance and not giving up.

   When nothing seems to help, I go and look at the stonecutter hammering away at his rock perhaps a hundred times without as much as a crack showing in it. Yet at the hundred and first blow, it will split in two. And know that it was not that blow that did it, but all that had gone on before.(10)

   Let there be no illusions. Constitutional reform will be difficult, maybe impossible. But the consequences of failure are too high. Success will require both bold leadership and public support. The goal -- a better Alabama -- is worth the effort.

A Vision for Alabama

   I was born in Alabama; I've lived all but 5 of my 39 years in Alabama. There is nowhere I would rather live. I love this state. It is my home. But Alabama is a state with many problems. Alabamians earn less than 80 percent of the national average income. We rank 48th in state per capita income. One in 5 Alabamians lives in poverty. We rank at or near the bottom of states in educational performance. We rank among the lowest in the nation in public health.

   As we begin this discussion of constitutional reform, we begin with a clear understanding of where we are now. We have major problems, but also great potential for successfully addressing those problems and building a foundation for future progress. I suggest we begin to focus, not on where we are, but on where we want to be and what kind of state we want to become. In Isaiah, the scripture says "without vision, the people perish." I believe that. We need a vision for Alabama -- a vision of the kind of state we desire for ourselves and for our children and for our children's children.

   What is vision? Vision is a picture of the ideal Alabama; it is a visual picture of Alabama at its very best.

   My vision for Alabama is quality schools and strong universities, an educational system that is the envy of other states. I envision a tax structure that is adequate and fair. I see state and local government elected and appointed officials committed to excellencein government service. I see economic vitality, with economic development and job growth in all parts of the state. I see vital city and county governments aggressively dealing with local problems and working to ensure a better quality of life for their citizens. I see a citizenry that takes pride in their state and communities and is actively involved in their own governance. I see an Alabama where narrow special interests are subordinate to the interests of the whole community. My guess is that most of us share this vision.

   The poet Carl Sandburg said "Nothing happens unless first a dream." Let us allow ourselves to dream of what this state can be. Then let us make something happen. To begin to make our vision, our dream, a reality, we need to take action now.

   If we do nothing, if we do not change, we will continue to rank near the bottom of every income, education, and quality of life index, and the people of Alabama will continue to be denied the quality of government, and quality of life that they deserve. We can do better. Let us commit ourselves to making Alabama a better place to live for those who follow us.

   Recently, my desire for reform has been given new urgency. My wife is five months pregnant with my first child. My thoughts naturally turn from the present to the future. I want to see this child grow up in a different Alabama than I did. I want my child to see Alabama become the state that we dream about; I want my child to see my vision, our vision, become reality. I believe that we can make a difference -- for our children and for the future of this state.

   The name "Alabama" is a Choctaw word that means "clearers of the thicket." It's time for us to live up to our name and to allow a constitutional convention to take an ax to the thicket of 1901.(11)

Notes

1. Terry Sanford, Storm Over the States (New York: McGraw-Hill, 1967), p. 189.

2. Journal of the House of Representatives of Alabama, January 15, 1915, Vol. I, p. 310.

3. Ibid., p. 323.

4. Ibid., p. 324.

5. William Stewart, The Alabama State Constitution: A Reference Guide (Greenwood Press: Westport, Conn., 1994), p. 17.

6. Lewis A. Froman, Jr., "Some Effects of Interest Group Strength in State Politics," American Political Science Review, 60 (December 1966), p. 956.

7. Davis C. Nice, "Interest Groups and State Constitutions: Another Look," State and Local Government Review, 20 (Winter 1988), pp. 21-27.

8. James N. Miller, "Dead Hand of the Past," National Civic Review, LVII, (April, 1968), pp. 183-188.

9. The National Commission on Excellence in Education, A Nation at Risk: The Imperative for Educational Reform (Washington, D.C.: U.S. printing Office, 1983), p. 5.

10. Jacob Rits, quoted in Ken Blanchard's Situational Leadership, Blanchard Training and Development, Inc., 1991, p. 7.

11. The Birmingham News, 12/15/94.