In the following pages we will review previous efforts to comprehensively reform the Alabama Constitution of 1901. In the case of more recent efforts, there is fairly ample documentation available. However, not a great deal has been written about early- and mid-twentieth-century initiatives. It will quickly be seen that many of the themes of the reformers are recurring ones.

Governor O'Neal's Appeal

   Governor Emmet O'Neal is usually identified as the first major figure in the state in the twentieth century to call for a new constitution. In two messages as he was about to leave office O'Neal made this appeal.

   In the major message, delivered in writing to the Legislature on January 15, 1915, the Governor indicted the 1901 Constitution, saying that "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." O'Neal was not a progressive from the standpoint of today from the perspective of the place of African-Americans in the Alabama political system. Thus he supported the decisions of the 1901 convention related to black voting. However, he felt that, even though a "wise solution" had been found to suffrage problem, "no real or permanent progress is possible in Alabama, until the present fundamental law is thoroughly revised and adapted to meet present conditions."(1)

   Some of the specific things Governor O'Neal wanted to see in any new constitution were removing "all limitations upon the length of legislative sessions," giving the state the right to engage in internal improvements (especially the building of pike roads), and encouraging more local tax effort in support of public education. He was sure "that no permanently successful system of elementary education [could] be maintained that relies entirely upon state aid and not upon local taxation, initiative, and effort."(2) As far as higher education was concerned, O'Neal observed that:

   In the absence of a proper system of local taxation, such unnecessary burdens are imposed upon the state treasury that the state has been unable to make proper appropriations for the maintenance and support of the State University and other high institutions of learning commensurate with their importance and the wealth, dignity and power of the commonwealth.(3)

   O'Neal's constitution would be much more streamlined. For example, "no other court except the supreme court [would] be specifically provided by the constitution." He wanted "the legislature [to] be free to remodel and re-adjust."(4) The ballot would be short and "the election of so many officers by the people" would be checked.(5)

   The Governor summed up his appeal with the argument that, "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." The only rational option was to assemble a constitutional convention to "take into consideration the entire subject and re-model the entire constitution so that it might make a harmonious whole."(6)

Governor Kilby's Commission Governor

   Thomas E. Kilby also made his plea for constitutional reform as he was about to leave office. The call for a new constitution came at the end of a general message sent to the Legislature on January 9, 1923. Kilby said that his four years in office had shown him "that much progressive legislation, badly needed and greatly desired, has been restrained because of some constitutional limitation or inhibition." Although the adoption of constitutional amendments partially coped with this problem, "[t]he result [was] that we now have much confusion and a great lack of co-ordination in the fundamental law of the State."(7)

   Governor Kilby, while recognizing that the new Legislature was not likely to show great deference to an outgoing chief executive, nonetheless recommended that there be submitted to the vote of the people the question of whether or not to hold a constitutional convention. What was particularly interesting about Kilby's appeal, however, was that he also recommended "the creation of a commission composed of, for example, thirty-five citizens of the State, drawn from the worthy members of such groups of our people as the farmers, the business men, the educators, the bankers, the doctors, the bench and bar, the press and organized labor."(8) The job of this constitutional commission would be to expedite the work of the convention by drafting proposed changes for its consideration. There is no indication that the recommendations of either Governor O'Neal or Governor Kilby were seriously considered by the Legislature or by the public.

The Brookings Report

   On January 30, 1931, at the urging of Governor B. M. Miller, the Legislature passed an act authorizing a comprehensive study of Alabama state government. The five-volume report which emerged from this study was not primarily concerned with the subject of constitutional reform. However, W. F. Willoughby, one of the classic figures in early twentieth century public administration in the United States said that the exhaustive study his colleagues in the Institute for Government Research of the Brookings Institution had made had "show that no adequate reorganization of the government of Alabama is possible without amendment of a considerable number of the provisions of the present Constitution."(9) While Brookings did not say that a brand-new constitution as an absolute necessity, the think tank did note that the constitutional defects they discovered did "touch the fundamental law at so many points as to indicate the necessity of what practically amounts to a revision of the Constitution." Also, Brookings quoted approvingly and at length the statements of Governors O'Neal and Kilby which strongly preferred a constitutional convention to piecemeal amendment. Conditions had been greatly altered in Alabama since 1901. However, Willoughby concluded, "the existence of inflexible and unchangeable provisions, essentially statutory, in the Constitution has made it difficult or impossible for the state government to adjust itself to new needs."(10)

   The Alabama Policy Committee Comprehensive constitutional reform remained an issue without sustained support in Alabama for many years. However, beginning in the mid-1930s, a group known as the Alabama Policy Committee began a consistent call for a new constitution. The APC was a component of the Southern Policy Committee. It described itself as a non-partisan organization which had as its reason for being the study of problems confronting Alabama and disseminating information on ways of trying to solve them. The APC began meeting in 1936 and continued to function for about a decade. Participants in these meetings included academics, business leaders, journalists, educators, church activists, and a few elected officials. Given the political climate of 1995, it is unusual to hear the chairman of the APC describe his organization as being "made up of liberals from various fields of activity."(11)

   A subcommittee, headed by George Lemaistre of Tuscaloosa, was appointed to draw up a model constitution for Alabama. The group worked for at least two years before the full APC group approved its Model Constitution for Alabama at its February 10-11, 1939, meeting. As examples of what kinds of constitutional changes the group favored, the model constitution called for a house of representatives composed of one member from each of the 67 counties and a senate with a minimum of two members from each Congressional district. This would have provided at least some reapportionment in the upper house of the Legislature.

   The liberalism of the APC was most apparent in its members beliefs that Alabama had done too much to provide to prevent any black political participation. Thus the new constitution would abolish the poll tax as a prerequisite for voting. Education was proclaimed as "an essential function of state government," and the suggested new Constitution instructed the Legislature not to deny to education "parity with other functions."(12) In this era, highways was typically the number one function of state government.

   The APC continued to consider the subject of constitutional reform at its annual meetings. However, a malapportioned Legislature in which racial conservatism remained very strong was unlikely to take seriously any substantial recommendations from a self-described "liberal" group. The group fought gamely against what it referred to as "reactionary forces," however, before passing from the scene in the mid-1940s.(13)

Folsom's Special Sessions

   The only governor up to the middle of the twentieth century to do much more than simply ask for comprehensive constitutional revision was James E. Folsom, Sr. Governor Folsom fought intensely for a new constitution, although his prospects for success were never any better than his predecessors O'Neal and Kilby.

   Soon after taking office as the result of an election which had shocked the political establishment, Governor Folsom (on March 1, 1947) called for a special session of the Legislature. Folsom wanted the assembly to call a constitutional convention as well as to consider some gubernatorial appointments, particularly to the Auburn board of trustees.

   While the political elites of the day were not about to allow a constitutional convention to be assembled while Folsom was governor, the nature of his appointments to the Auburn board assured that the issue would not even be given serious debate. The men whom Folsom wished to name as Auburn trustees were so opposed by the conservative agricultural establishment that the Farm Bureau filed suit challenging the legality of the appointments. It did no good that the CIO-PAC supported both the convention and the appointments. Like Folsom, union interests were especially desirous of seeing the repeal of the poll tax and the reapportionment of the Legislature. A group called the Committee for a People's Program also supported Folsom's request for a constitutional convention but it had no political clout.

   The linking of the issue of constitutional reform with the controversial Auburn appointments could not have been more ill-timed. The Legislature was extremely hostile to the new governor and, when he spoke to it on the subjects of his call, it was reported that "his face was pale and drawn" and that "he appeared nervous as he read his prepared address."(14)

   Thus Folsom had no honeymoon with the Legislature and the special session quickly adjourned. None of
Folsom's trustee appointments were confirmed and no serious consideration was given to the call for a
constitutional convention.

   Even though Folsom regularly asked legislators to take action to get a new state constitution, he waited until 1950, the last full year of his administration, to make spectacular appeals for a constitutional convention. At this time a generally unfriendly news media interpreted Folsom's actions as not serious efforts at reform but as being designed for use to show voters how hard he had fought for favored causes when he ran again for governor in 1954. Long-time Birmingham News reported Hugh Sparrow said Folsom just wanted "to ballyhoo his own stand for reapportionment for future campaign purposes."(15) More special sessions were called during this mid-century year than in any other in the state's history.

   At the first special session, in June, 1950, Folsom proposed a 67-senator "reapportionment" amendment but the Legislature declined to approve it nor a repeated call for a constitutional convention. In early July he
called a second session. This time it was reported that, "There were numerous empty seats in the House and
Senate when the Legislature went to work."(16) Folsom called a third session in late July. This time the
Senate voted for sine die adjournment on the opening day of the session. The one-day, July 27, 1950, session
was followed by a call the very next day for another session to assemble on July 31. When the Senate did not
even give a second reading to constitutional convention resolutions, Governor Folsom called a fifth and final
special session for 1950 to begin on August 9.

   Folsom was no longer nervous when he spoke to the Legislature. In issuing his latest called he threatened that "if the legislature continues to adjourn before the Constitution is properly complied with [particularly with respect to reapportionment], I expect to use whatever power [is] in my command to keep the legislature in session until the woods have been properly and brilliantly persimmoned." For the benefit of those unfamiliar with the fruit-bearing habits of persimmon trees, the writer pointed out that, "Persimmons usually don't ripen until after the first big frost in the Fall."(17) However, the Legislature retained the upper hand and remained theoretically "in session" until late October, although during no part of this time was a constitutional convention seriously considered. During a formal nine-week break a twelve-member House-Senate committee did consider the question of reapportionment. No action was taken and constitutional reform did not emerge as a salient issue until Governor Folsom's second term.

   Only a few months after taking office for a second time following a landslide victory in the spring Democratic primary in 1954, Governor Folsom summoned a special legislative session to begin on April 13, 1955. However, even though the Legislature seemed more susceptible to gubernatorial influence in other areas, it was no more sympathetic to Folsom's calls for a constitutional convention than it had been in the previous decade. On the first day of the April special session, for example, the House, "apparently in a rebellious mood," recessed before it had even received the Folsom constitutional convention bill.(18)
 
   In the post-Brown v. Board of Education environment, the racial climate was even more hostile to such ideas as abolishing the poll tax and otherwise liberalizing race relations provisions than it had been during Folsom's first term. Well aware of Folsom's racially moderate views, it was reported that some from the Black Belt in particular wondered "if a constitutional convention could do away with Alabama's segregation laws." The industrial "big mules" were worried about taxes and labor relations. Albert Boutwell, then a conservative state Senator from Birmingham, speculated that, "if a constitutional convention were called to change [the] organic laws of our state, industrial development might be greatly slowed down."(19)

   Folsom tried to be somewhat more politically pragmatic by promising to limit the constitutional convention to the consideration of just legislative reapportionment. However, during a long recess taken by a still very unsympathetic Legislature, the Supreme Court of Alabama ruled that it would not be permissible to assemble a limited constitutional convention.(20)

   The Supreme Court also made it difficult for reformists by advising at the same time that it would be unconstitutional to set up board of reapportionment to perform the reshuffling function since this would amount to an impermissible delegation of a legislative power to an administrative agency.(21)

   The next year Governor Folsom again challenged the Legislature to submit the question of calling a constitutional convention to the people. And, once more he tried to calm legislative fears by re-emphasizing that he was preoccupied with legislative reapportionment and no other issue. "I am not trying to cram a personalized version of the Constitution down the throats of our people," Folsom stressed.(22) Support from academics, particularly Dr. Malcolm McMillan of Auburn and Dr. York Wilbern of the University of Alabama, did not win many converts. When the Legislature adjourned on February 14, 1956, this was the last time in more than a decade that serious consideration would be given to constitutional reform at the highest levels of state government.

Revived Interest in Constitutional Reform

   Interest in general or specific aspects of constitutional reform began to be more noticeable in the mid-1960s. Thus, for example, in 1966 the president of the Alabama League of Municipalities called for a new Constitution. Judicial reform specifically received a boost the same year when the first Citizens Conference on Alabama State Courts convened in December.

   The next year, 1967, the legislature was asked by several legislators to consider several plans for modernizing the state Constitution. Governor Lurleen Wallace did not take an active role in this area. Her husband, George C. Wallace, had never been interested in constitutional reform. However, majorities in the House and Senate did agree to set up a joint Constitutional Revision Committee on April 14, 1967.(23) When this committee, chaired by Senator Woodrow Albea of Anniston, reported, it recommended "a relatively small constitutional convention [as] the best means for an effective general revision of the Alabama Constitution." What was more significant, however, was its support for "a small representative Constitutional Revision Commission," the initially contemplated function of which would be to serve in an advisory role for the contemplated convention.(24)

   The most significant executive-legislative cooperation looking to some sort of constitutional reform began in 1968, when Albert P. Brewer assumed the governorship upon the death of Governor Lurleen Wallace. The same year he became governor Brewer said that "at the proper time" he would recommend an analysis the end result of which might be a substantial revision of the 1901 Constitution.(25)

   In 1969 Governor Brewer announced his support for a constitutional commission to propose revisions to the 1901 Constitution. This was the first time a constitutional commission had been seriously proposed apart from its anticipated role in conjunction with a constitutional convention. After considerable wrangling between the House and Senate, and with no noticeable enthusiasm for any kind of massive constitutional change, both houses approved a conference committee report calling for a 21-member commission, including 14 appointees of the governor, the Speaker of the House, three designees of the Speaker, and two designees of the Senate president.

   The Alabama constitutional commission held its first meeting on January 28, 1970. Shelby County Probate Judge Conrad M. (Bulley) Fowler was chosen chairman of the commission. The commission functioned mostly through the use of working subgroups and the holding of public hearings when specific ideas for constitutional revision were ready for a wider reaction. Some appointees to or ex-officio members of the commission were more interested in its work than others. Thus attendance at commission meetings was never full. Work was slow, and no subgroup had reported to the full commission by the fall of 1970.

   The fate of the commission's handiwork was probably determined early on, however. In one of the bitterest Democratic primaries in Alabama history, former Governor George Wallace defeated incumbent Governor Albert Brewer in a Democratic primary runoff in May, 1970. The electoral fortunes of Governor Brewer also determined what would happen to any new constitution which the commission might propose. As previously noted, George Wallace never expressed any dissatisfaction with the general character of the Alabama Constitution, although he did support numerous amendments to it, especially in the form of bond issues.

   Although its inspiration, Albert Brewer, left office in January, 1971, the commission continued to do the work it was mandated to do under the law establishing it. The commission was supposed to be finished with its tasks in 1971. However, given inadequate staff, indifference on the part of some committee members, and, most importantly, the herculean task of trying to propose rational solutions for the problems of a Constitution grown so unwieldy as the Alabama Constitution of 1901, the commission was unable to meet this target. However, there was sufficient legislative support to give the commission a two-year lease on life. The price for this extension, however, was an increase from seven to 11 legislators on the commission, mostly reflective of general legislative suspicion of the work of the commission.

   In an interim report in May, 1971, the commission proposed changes in five areas, including constitutional amendment procedures, voting and elections, local taxation and debt limits, and legislative operations.(26) Of these, the issue which was given more attention than all of the others combined was that of annual sessions of the legislature. The legislature had met biennially (except for special sessions) since 1939. On the last day of the regular session of 1971 the Legislature approved for submission to the voters in the general election of 1972 of an amendment to the Constitution providing both for annual legislative sessions and annual salaries to be paid to legislators.

   There was little organized support for the annual sessions amendment. Much more vocal was an ad hoc group known as the Taxpayers Against Annual Sessions (funded by some of the state's most influential interest groups, including the Farm Bureau, the Associated Industries of Alabama, the State Chamber of Commerce, and numerous trade associations). The amendment had the support of another key group, however, the Alabama Education Association. At the same time President Nixon was carrying Alabama in his re-election campaign, voters rejected annual sessions for the state legislature by a margin of 56 percent against to 44 percent in favor.

Despite the rejection of one of its principal recommendations, the commission continued to meet regularly. The final commission report was submitted on schedule on May 1, 1973. This report contained the commission's judgment that "the 1901 constitution, with its [then] 327 amendments, is obsolete and should be replaced by a constitution that is more adequate, for the citizens of the state and for their government, both state and local."(27)

   The commission had developed a brief Constitution which would have served the state extremely well had it been adopted just as it was proposed. It was not, of course, and no commission member was naive enough to believe that it would be. This would probably not have been possible even if Albert Brewer had remained in office. It was certainly out of the question given Governor Wallace's indifference. Wallace was in the third year of his second term in 1973 and would win a third term the next year with little serious opposition.

   Nevertheless, the entire commission Constitution was introduced for legislative consideration. It was referred to the House Constitution and Elections Committee where it still reposed when the legislature adjourned sine die, almost four months later.

Judicial Reform

As noted earlier, the need for judicial reform had been receiving increasing support since 1966. Judicial structures and procedures are matters of low salience as far as many people are concerned and proposals for comprehensive change do not arouse the instantaneous opposition that recommendations for change in other areas do. Thus it was a wise move when proponents of constitutional change in Alabama selected judicial reform as the one area they would push following the making of the constitutional commission's final report.

   Despite the fact that judicial reform was more practical to achieve than reform in other areas, it still was not easy and required much political skill on the part of its proponents, particularly Chief Justice Howell Heflin of the Alabama Supreme Court. Throughout the 1973 regular session, Heflin and others worked tirelessly to win legislative support for judicial reform, recognizing the need to compromise, but not wanting to sacrifice any more in their quest for a modern, unified judicial system staffed with the best qualified and appropriately compensated judges than they absolutely had to. They recognized that to recommend a pure Missouri Plan would doom judicial reform so they simply recommended the use of nominating commissions to fill judicial vacancies. (These were eliminated for the state as a whole during legislative consideration, however.) Compromises were necessary, however, particularly to give the maximum possible protection to incumbent judges and to preserve the separate municipal courts in those cities which desired to keep them.

   Chief Justice Heflin worked as effectively in the campaign to get the new judicial article ratified by the voters once it had cleared the legislature as he had to win legislative approval. For example, he made a shrewd alliance with pork producers, who had a promotion amendment voted on the same day, that brought support for both. The campaign for the amendment also benefited from the fact that it was voted on in a special referendum rather than in the general election when the first annual sessions amendment had been voted on. The general election brought out many voters who were uninformed about constitutional matters and who were more likely to oppose constitutional change.

   Typically in Alabama, a smaller turnout has been more beneficial for proponents of constitutional change and this proved to be the case when the judicial article was approved on December 18, 1973, by a margin of 63 percent in favor and only 37 percent opposed. The annual legislative sessions proposal was put up again in a special referendum held in June, 1975, and this time, with a low-key campaign and small turnout, the measure was approved.

Governor James and Constitutional Reform

   Forrest (Fob) James succeeded George Wallace at the end of Wallace's second term in January, 1979. Shortly after he was elected, Mr. James had appointed a committee to consider constitutional reform and make recommendations for revising the Alabama Constitution of 1901. He was particularly opposed to the constitutional requirement that even local amendments, a major source of clutter in the Constitution, had to be voted on statewide. What the new governor's "working group" recommended was basically a somewhat revised version of the constitution proposed by the constitutional commission six years earlier. However, the proposed constitution emphasized especially strongly subjects in which Governor James was and continues to be interested in--especially popular Democracy (as through the initiative and the recall) and low (especially property) taxes.

   For the first time ever a proposed new Constitution passed one House of the legislature. The James Constitution won approval in the Senate but expired in the House of Representatives. Post-mortem analyses of the fate of the Constitution focused most attention on controversial provisions as related to the recall, the unearmarking of taxes, and home rule.(28) Also, many interests were apparently apprehensive about the quantity of case law developed under the old 1901 Constitution that could now be invalidated.

The Baxley-DeGraffenried Initiative

   During his successful 1982 campaign for Lieutenant-Governor, Bill Baxley had raised the issue of the need for constitutional reform and, once in office, he moved to make good on his pledge to work for it.(29) George Wallace, now in office for his fourth and final term, remained uninterested. However, Baxley found an effective ally in State Senator Ryan deGraffenried of Tuscaloosa.

   Baxley named a special committee to draft a new Constitution. While this might seem presumptuous, actually it wasn't. It was realized that no new Constitution with major controversial proposals would be approved. So, the Baxley initiative focused on "cleaning up" the very messy 1901 Constitution by eliminating obsolete and duplicative provisions, the end result of which would be a shorter, more understandable fundamental law. The length of the current Constitution was reduced a full two-thirds. Even this constitutional document proved objectionable to some, especially provisions related to public debt. Nevertheless, for the first time, a "new" Constitution did pass the legislature in 1983.

   These efforts came to nought when, only a little more than a week before the scheduled referendum on the constitution, the Alabama Supreme Court ruled 6-3, in response to a suit brought by Senator Richard Manley of Demopolis, that the Constitution of 1901 did not permit the legislature to put before the voters a new Constitution in the guise of a single amendment to it.(30)

Recent Actions

   Constitutional reform is an issue that (fortunately) will not die completely. In the regular legislative session of 1995, for example, an amendment was approved which modernizes Article VIII of the Constitution dealing with Suffrage and Elections. It is expected that this amendment will go before state voters in the November, 1996, general election. Three paragraphs will replace 20 sections in the present article, only about half of which probably have any current legal validity. A news report at the end of the 1995 session indicated that Representative Jack Venable of Tallassee hoped to see the entire Constitution cleaned up using a piecemeal procedure over a period of years.(31) However, rewrites of other articles, even if designed only for "clean up" purposes, may be considerably more controversial.


Notes

1. Journal of the House of Representatives of Alabama (1915), Vol. I, p. 310.

2. Ibid., p. 318.

3. Ibid., p. 323.

4. Ibid., p. 320.

5. Ibid., p. 321.

6. Ibid., p. 324.

7. Ibid. (1923), Vol. I, pp. 135-36.

8. Ibid., p. 136.

9. Brookings Institution, Institute for Government Research, Organization and Administration of the State Government of Alabama, Vol. I (Montgomery: By the Institution, 1932), p. 51.

10. Ibid.

11. Birmingham Age-Herald, July 16, 1938, p. 10.

12. Ibid., February 10, 1939, p. 00.

13. Bulletin of the Alabama Policy Committee: Democracy and the Constitution (No. 14), April 14, 1945, p. 33.

14. Birmingham Age-Herald, March 4, 1947, p. 2.

15. Birmingham News, July 28, 1950, p. 1.

16. Birmingham News, July 5, 1950, p. 1.

17. Birmingham News, August 4, 1950, p. 16.

18. Birmingham News, April 13, 1955, p. 1.

19. Birmingham News, April 14, 1955, p. 64.

20. See Opinion of the Justices, 81 So. 2d 678 (1955).

21. See Opinion of the Justices, 81 So. 2d. 697 (1955).

22. Birmingham News, January 3, 1956, p. 26.

23. Alabama Legislature, House Journal, First Special Session 1967, p. 548.

24. Quoted in William H. Stewart, Jr., The Alabama Constitutional Commission (Tuscaloosa: University of Alabama Press, 1975), p. 6. Most of the material relating to the work of the Alabama Constitutional Commission which appears in the following pages is drawn from this work of the author two decades ago.

25. Ibid., p. 8.

26. Alabama Constitutional Commission, Interim Report (Montgomery: By the Commission, 1971).

27. Alabama Constitutional Commission, Proposed Constitution of Alabama: Report of the Constitutional Commission (Montgomery: By the Commission, 1973), p. iii.

28. This discussion relies mainly on James D. Thomas and William H. Stewart, Alabama Government and Politics (Lincoln: University of Nebraska Press, 1988), pp. 47-48.

29. Ibid., pp. 48-49.

30. State v. Manley, 441 So. 2d 864 (1983).

31. Birmingham Post-Herald, July 31, 1995.