Introduction

   The Symposium on the Alabama Constitution is designed to review Alabama's current constitution in order to define, develop, and promote alternatives that will provide better government for all of the citizens of Alabama. This purpose statement assumes:
1) There is a desire for better government
2) the constitution is somehow related to better government
3) the current constitution is inadequate to meet the desire for better government
4) a revised, not amended, constitution is required in order to provide better government and
5) the current constitution can be revised.

   Each of these assumptions can be, has been, and will be challenged. Thus, if the purpose of the symposium is to be achieved, each of these assumptions must be addressed. This paper begins this task by defining how the constitution is the fundamental document for governance in a democratic society. Secondly, this paper provides an analysis of the adequacy of the Alabama constitution to serve as the people's fundamental document for governance, and the very real and practical implications of the inadequacy of the Alabama constitution to serve this role.

   In order to understand the importance of constitutions, and specifically the current Alabama constitution, the basic nature of constitutions and the history of the Alabama constitution must be understood. Alexis de Toqueville visited our new country early in its history in an attempt to understand how this thing called constitutional democracy works. In his celebrated work entitled Democracy In America, he wrote that when "the past has ceased to cast its light upon the present and the future, the mind of man wonders in obscurity." Obscurity is defined as indistinctly heard or perceived, not well known, difficult to understand. Constitutional government in general, and the Alabama constitution in particular, are, at best, obscure factors in the everyday governance of Alabama. In order to chart a course for the future development of the Alabama constitution, the relevance of the constitution must be distinctly perceived, know, and understood.

Constitutional Government

   Throughout the history of the U.S., the basic law of each state has been set forth in a written constitution. While each state constitution is distinguishable in that it reflects specific conditions in each state, all state constitutions are similar. That is, constitutions are established to accomplish two broad objectives. One, the constitution defines and creates the major organs of government -- the executive, legislative, and judicial. Two, the constitution provides for the relationship of these organs to each other and to the people.

   The nature and content of constitutions fall within four broad categories. Principles of Government. In this area all state constitutions are very much alike. They provide for popular sovereignty in which it is recognized that the people are the source of political power and that government exists through popular consent. The principle of limited government is implied, if not stated, in every state constitution. The doctrines of separation of powers and checks and balances have been universally accepted in state constitutions. Likewise, the concept of judicial review is either assumed or stated. And, all state constitutions implicitly accept the framework of U.S. federalism.

   Governmental Organization. While all state constitutions broadly define and describe the principle organs of government, in terms of the specific organization of government, state constitutions vary greatly. Nebraska has a unicameral -- a one-house -- legislature. New Hampshire's legislative body is called the General Court and has over 400 members. State constitutions also describe in varying degrees of detail the organization of local units of government. Some provide for Home Rule and others limit local governments to only that which is specifically authorized in the constitution or in state law.

    Processes and Programs of Government. All state constitutions address how the government relates to the people and how the various units of government relate to each other. In this area state constitutions are widely divergent. Included are electoral processes, taxation structures, systems of education, and a variety of other activities.

    Provision for Change. All state constitutions contain provisions for formal change through a variety of processes of amendment and revision. In New Hampshire, similar to the ancient Hebrew Sabbath Year, every seven years, if a majority of the voters in an election want to revise the constitution, the legislature calls a constitutional convention for that purpose. Perhaps the Year of the Jubilee would also make a sound constitutional provision.

   Broadly viewed, a state constitution is the document that sets forth the rules of governance in a state. It provides either general or specific rules for how we do government. At the time a constitution is written it reflects the ideas and values held by its framers and those who adopt it. If it is written in general terms, the specifics are entrusted to the legislature, and, as is the case with the U.S. Constitution, it may serve a long time with relatively few changes. If 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.

Alabama Constitutional Problems

   A former governor of Alabama wrote the following with respect to the current constitution of Alabama.

   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 the state government.

   At that time (1901) the necessity of reforming the suffrage was the paramount issue which engaged the attention of our people and hence when the constitutional convention of 1901 assembled, little consideration was given to other matters of reform. This is conclusively shown by the fact that the Constitution of 1875, which had been framed to meet conditions which can never again recur, was practically re-adopted. No real or permanent progress is possible in Alabama, until the present fundamental law is thoroughly revised and adapted to meet present conditions. (Proposed Constitution of Alabama. Report of the Constitutional Commission, May 1, 1973, p. vii.) Unfortunately, however wisely, this evaluation of the current Alabama constitution was made by Governor Emmet O'Neal in his farewell address to the Alabama Legislature in 1915.

   Alabama has had six constitutions. Following Territorial status, statehood was granted to Alabama in 1819. In a convention in Huntsville, a rather liberal constitution for its time was adopted. It provided universal white manhood suffrage, a strong legislature with annual sessions and elections, an executive elected for two year terms, and a judiciary elected for life. The 1819 Constitution was not submitted to the people for ratification.


   The second constitution, 1861, allowed for secession from the Union.

   The third constitution, 1865, provided for Presidential Reconstruction and the fourth, 1868, was designed to accommodate Congressional Reconstruction. The New York Times reported that the 1868 Convention was composed of 18 Negroes, 30 Carpetbaggers, one Conservative, and 51 Scalawags. The 1868 Constitution provided for the popular election of new officers, used the whole population as the base for representation, created the new office of Lt. Governor, and established a Board of Education with legislative powers. The 1868 Constitution was the first Alabama constitution to be ratified by the people.

   The fifth constitution, 1875, was adopted at the end of the Reconstruction era. It was a very conservative document. It abolished the Board of Education and many offices. Local or special legislation was prohibited and segregated schools were established. In general, the 1875 Constitution provided for a minimum of government, protected vested interest by placing many legislative acts in the constitution, and secured the status quo.

   The current constitution was adopted in 1901 and is essentially the 1875 document plus the most restrictive set of suffrage requirements ever incorporated in any state constitution. The 1901 Constitution was outmoded when it was adopted and thus, has been formally amended hundreds of times and changed substantially by federal law and court decisions. With the notable exception of the adoption of the 1973 revision of Article Six concerning the judiciary, the 1901 Constitution, fundamentally the 1875 Constitution, is the constitution today.

   What are the fundamental problems of the current Alabama constitution? How well does it conform to the model of what a constitution is designed to do and provide in order that governance can be productively, efficiently, and fairly executed?

   The 1901 Constitution meets the two broad objectives of any constitution -- it defines the major organs of government and generally describes how they relate to each other and to the people. However, in multiple ways these definitions and descriptions are inadequate and violative of the principles of good government. The 1901 Constitution contains so much more than general constitutional provisions that, even if the general principles were adequate, they would be strangled in the specifics of the volume of statutory type provisions included in the constitution. The desire to place statutory provisions in the constitution reflects a profound, justified or not, mistrust of the Alabama legislative process, and to considerable extent, a mistrust of the people.

   For example, the 1901 Constitution, relative to other state constitutions, provides very limited power to the people. Only indirectly does the constitution recognize the people as the source of political power and that government exists through popular consent. While there is more talk in the south about grass roots government than is the case in most other regions of the country, the south, and specifically Alabama has none of the constitutional provisions that provide for the people to act as the major source of political power, including the referendum, the initiative, the recall, or home rule. The result is that every day political power is concentrated largely in the leadership of a set of special interest groups, none of whom are elected or are otherwise responsible to the people.

   The principles of federalism, while implicit in the Alabama constitution, have been likewise ignored, challenged, and sometimes nullified in practice. From standing in school house doors to addressing most reluctantly the basic rights of segments of our population for equal access to housing, mental health services, employment, fairly apportioned representation, adequate and equitable education, and related areas, the principles of national federalism have been and continue to be severely tested. Local federalism has fared no better. The absence of Home Rule in the constitution assures that court house and city hall politics takes place as much at the state level as it does in local communities, to the detriment of both, primarily the state.

   Thus, a case can be made that even the basic principles of the 1901 Constitution need to be reviewed and revised in order to meet the current needs of the people and of Alabama state and local governments.  

   A second problem area of the current constitution is in the provisions for governmental organization. At the national level of government, we elect one officer, the President of the United States. All other officers are appointed by the President -- some of these appointments are confirmed by the U. S. Senate. An argument can be made that this model fits both the framework of effective, productive, and accountable management and government. In this model the people know who is responsible for the administration of government. The situation at the state level is quite different and varies greatly among the states. The Alabama constitution provides for several state administrative offices to be filled through popular election -- Commissioner of Agriculture and State Auditor. Other state offices are filled through an indirect electoral process -- State Superintendent of Education. The constitutional provisions that structure the organization of government at the state level warrant further review.

   The local level of government in Alabama, particularly the county, suffers even more severely by inadequate and antiquated organizational structures. In addition to having too many counties, almost all county level offices are filled by popular vote, creating a posture of elected equals with no one in charge. How does one defend the popular election of the Tax Assessor or the County Coroner, both highly technical and professional functions? In the current context of scarce resources and increased demands for public goods and services, how can one defend the relative absence of an accountable and efficient organization for the conduct of government at the increasingly important level of county government?

   The processes through which Alabama conducts government pose a third problem area in the present constitution. In the electoral arena, the rules are so inadequate that almost two years after the last general election, the state still does not know who holds major offices of the state, including the important office of Chief Justice. In recent elections the most pressing task has been to determine in which election a citizen could or could not vote. In the legislative arena, the process for handling local legislation constitutes a frontal assault on the principle that government exists through popular consent.

   An additional problem area with the Alabama constitution is in the methods provided for constitutional change. The only avenue to constitutional change in Alabama passes through the legislature. The people are involved only indirectly or after the fact through a referendum. It is clearly in the interest of a few to maintain a concentration of power in the legislative processes in which they exert substantial influence. The status quo is thereby maintained.

   The preceding list of constitutional problems pose complex issues for a constitutional democracy. They are not new. These same issues constituted the major agenda items debated in the development and adoption of our national constitution. To whom should power be distributed? Who governs? For some, the problems listed in the preceding are not even problems. Rather, for some, they constitute protections against unbridled and unchecked democracy. There are valid questions of how much power is best placed directly in the people as contrasted with a republican form of government, that is representative government. There are valid questions about how much authority is best located in one branch of the government or another. Should the governor have broad appointive powers or it is best for the people to elect all officers of government, including the county coroner? There are valid questions of the level of government -- national, state, or local -- at which various functions of government can best be performed.

   The question can quickly become, and perhaps is, one of in whom trust is best placed. The people? The governor? The legislature? The judiciary? The state? The city? The county? Perhaps, however, there is a more productive way to approach these issues. That is, perhaps these are not the right questions? Perhaps we need to ask some different questions? For example, what are the consequences of how Alabama government is now organized? What is it that government in Alabama should achieve? How can that best be achieved? Who can best do it?

   If the conclusion is that the consequences of how Alabama government is now done are unacceptable and, if the conclusion is that the only reason we do it this way is history, tradition, and maintenance of the status quo, then. these areas may be subject to change. This may well be the case for many provisions of the current constitution. If so, we need a new constitution because the consequences of how government is now done in Alabama are unacceptable.

Consequences of the 1901 Constitution

   There are other factors than the constitution that influence and shape the quality of life and well being, of the citizens of Alabama.The quality of leadership, the vitality of the economy, the strength of the business and industrial arena, the presence or absence of natural resources, the attitudes and behaviors of individual citizens, the role of volunteer organizations, the productivity of the educational systems, and a myriad of other areas are all related in Alabama society and interact with government to determine how we live our lives, govern ourselves, and conduct our relationships with each other and with the larger community.

   However, at the core of any society, institution, or body, including government, there is a structure that holds all of the pieces together. The popular current parlance for this is infrastructure. In the human body the infrastructure is the skeleton. In a political body it is the constitution. In either case, if the infrastructure is weak, the whole body is weak and must accommodate to the weakness in the infrastructure in order to function successfully or at all. The accommodations required to overcome a weak and flawed infrastructure may become so burdensome that the body itself becomes dependent or dysfunctional. This, to some extent, is the case for the current constitutional infrastructure of Alabama.

   Because of the weaknesses of the 1901 Constitution, throughout modern history we have had to make our governmental and political processes work, to the extent that they do, in spite of a flawed infrastructure. The cost of doing government this way has been high. The major example of this has been a default of self-governance to the judiciary. With the exception of the Judicial Article, the major changes that have taken place in the Alabama constitution, and in Alabama government, have been the result of judicial action. The substantial and sometimes wrenching changes, however right and needed, that Alabama has gone through in civil rights, integration, apportionment, prison and mental health reform, special education, employment practices, and now public education, are all the result of judicial action. While addressing and achieving needed and correct objectives, this record has inflicted insidious damage to the principle of a healthy, self-governing, constitutional democracy. The people of Alabama routinely, even institutionally, lose by forfeiture the right of self-government.

   In descriptive terms, the judiciary has acted to make the Alabama political and governance systems work when and where the state failed to address real and pressing issues subject to judicial action. The problem is that, while this default has forced the courts to act in many areas, some issues are not justiciable, that is, subject to judicial action. However, the arena of the courts may continue to expand, if the political arena cannot address key and pressing issues, including such current topics as tax reform and future issues of genetic engineering and related technology developments.

   Why is this political arena failure and court action the norm for Alabama government and politics? In large measure, this failure is a product of a flawed infrastructure--the constitution. As a consequence, the Alabama political system has been forced to make government work in spite of a flawed infrastructure and in other ways than reliance on the judiciary. For example, because of inadequate governmental organization and processes, Alabama government and politics remains Old South. That is, every important decision is based almost exclusively on personal and political relationships rather than on data and analysis, planning, or the general welfare, as contrasted with the specific welfare of special interest groups. Three decades after all other southern states have made progress in this area, Alabama remains mired in the treacherous mud of Old South politics.

   Alabama government and politics has become a product of five factors PIGS, PACS, PARTIES, PREACHERS, and only sometime, the PEOPLE. In Alabama, PIGS (Public Interest Groups) are weak and few. PACS (Political Action Committees) are many and strong. PARTIES are unorganized largely not relevant. PREACHERS are focused on a set of narrow issues. The PEOPLE have opted out of or are essentially excluded from Alabama government and politics. None of these is a sufficient substitute for the fundamental structure of a constitutional democracy.

   The real and practical consequence of this condition, caused in part by an inadequate constitution, can be illustrated with a personal example of the incredible mixture of existing education and tax policies with moral and political positions. Alabama leads the nation in its reliance on sin taxes to fund essential functions of government, including, in part, education. Currently, I am both the President of a local school board and an ordained Baptist deacon. Thus I am confronted with a dilemma. As a deacon, I am charged with the responsibility to reduce sin through the salvation and regeneration of sinners. As President of the school board, I am responsible for securing the resources needed to fund and equitable and adequate educational program. What am I to do? I am cross pressured and conflicted. If all of the sinners are saved, needed education funding would be reduced. The current realities and climate of Alabama politics call for more sinning, if the lottery and casinos constitute such, in order to fund government, especially education. Thus, I am tempted to place a bumper sticker on my car that says "Support Education -- Go and Sin."

   The conclusion is warranted that this is an irrational, unequitable, unproductive, and immoral set of personal, policy, and political positions. The 1901 Constitution cannot provide the infrastructure required to meet the challenges of this and similar issues.

   The infrastructure, the constitution, of Alabama is weak and this is reflected in our inadequate organization and processes of government. As a consequence, Alabama government and politics suffers from the Second Law of Thermodynamics -- entropy. Entropy is a process in which power or energy in a system is so dispersed and dissipated that there is no source of power sufficient to produce, move, or cause something to happen. There are sufficient concentrations of power to prevent something from being done, but insufficient concentrations of power to get something done.

   In the distribution of power in a constitutional democracy, the weight of that power must rest with the people. If this assertion is sound, how can this position be reconciled with the observation that the people may be uninformed or misinformed or misguidednarrow by self interest. Thomas Jefferson, the father and most eloquent advocate of the principle of popular sovereignty, was asked this question. What do you do if the people are uninformed or misinformed? Mr. Jefferson replied that the answer to this problem is not to remove power from the people, but to inform -- educate -- the people.

   An adequate constitution can provide the infrastructure to address these issues while, at the same time, providing sufficient safeguards and checks and balances to assure that concentrations of power, including in the people, are not abused. In fact, a sound constitution may be the only way to achieve these specific ends.

   The Alabama constitution is aged, weak, flawed, and dysfunctional. The consequences of such are direct, real, and practical. The current Alabama constitution is not the people's fundamental governing document. If we had Plato's perfect statesman, if we were not fallible humans, if we were inherently persuaded by the public rather than the individual interest, we would not need a constitution. In the absence of these, the constitution defines, secures, and protects the relationships among those who govern, and between the governors and the governed, offering the best possibility of a civil and fair and productive society.