It is certainly an honor to have been invited to participate in this Symposium on the Alabama Constitution. Revision of the Alabama Constitution of 1901 is not a new issue in this state. Several commissions have been created over the years to study the feasibility of revising the Alabama Constitution of 1901. Revision of the Alabama Constitution of 1901 is not a new issue for me personally. Immediately upon graduation from the University of Alabama School of Law, I was employed as Staff Attorney for the Alabama League of Municipalities. One of the first meetings I attended on behalf of the League was held in 1974 at the state park facilities at Mt. Cheaha. The meeting provided an opportunity for detailed discussion as to the merits of the Final Report of the Alabama Constitutional Commission chaired by Conrad M. Fowler and presented to the Governor and Alabama Legislature on May 1, 1973.

Three Options Available  

   As is obvious from the title of this part of the symposium, "Reform, Revision or Relax: Options for Change," there are three possible positions that can be taken on the issue of constitutional reform. First, it can be argued that the Alabama Constitution of 1901 and its hundreds of amendments have worked reasonably well for 94 years, and the old saying "If it ain't broke, don't fix it" should prevail. Second, an argument can be made that the document should be "cleaned up" or recompiled. Remove the repealed or out-of-date provisions and recompile the remainder. Third, it can be argued that the Alabama Constitution of 1901 is a total mess and that nothing short of a total revision will bring Alabama into the next century.

   During my 22 years with the League, I have seen three strong efforts at constitutional reform. I have already mentioned the 1973 effort at total revision. Constitutional reform efforts were also made in 1979 and 1982. The 1979 total revision effort failed to pass both houses of the legislature and the 1982 cleanup effort passed the legislature, but it was kept from the voters by a decision of the State Supreme Court. As of this date, only the Judicial Article has been completely revised and approved by the state's voters. During the recently completed 1995 Regular Session, a constitutional amendment proposing a revised suffrage article was enacted. The voters of Alabama will be asked to ratify this proposal in an upcoming statewide election.

   Although good arguments can be made for all three positions on the issue of constitutional reform, the sponsors of this symposium have asked me to take the position advocating status quo. However, I was given the discretion to propose some minor changes short of recompiling the document.

Historical Background Important

   How do you make an argument for the status quo? This was the first question that I had to resolve when I began preparing for this presentation. It is easy to come up with arguments as to why our constitution should be rewritten or recompiled. In fact, volumes have been written on this subject. However, very little has been written advocating the retention of our 1901 Constitution.

   It appears to me that one cannot ignore the history behind our Constitution. Historically, it is important to look at how the 1901 document was prepared and adopted. On December 11, 1900, an act was passed by the State Legislature to provide for the holding of a convention to revise and amend the Alabama Constitution of 1875. The convention submitted its proposed constitution on September 3, 1901. At an election held on November 11, 1901, the proposal was approved by the state's voters by a vote of 108,613 to 81,734. Governor William D. Jelks proclaimed the constitution ratified on November 21, 1901, and it went into effect on November 28, 1901. The entire process -- from convention to ratification -- took less than one year. As we all know, Alabama is still governed by this document and the many amendments that have followed.

   After my initial research, I decided that the best way to present the arguments for status quo is to examine the arguments made by proponents of complete revision and to point out the other side of these arguments.

Should We Scrap the Alabama Constitution of 1901?

   All of us are here today asking ourselves a very important question "Is the ninety-four year old Alabama Constitution outdated, useless, and ready for the garbage dump?" A number of arguments have been made over the years by those persons who advocate the trashing of the 1901 document. The Mobile Press Register printed a Special Section entitled "Sins of Our Fathers" for its edition of December 11, 1994. Stan Tiner, the editor, stated on page 2 the following:

"In 1901, Birmingham's industrial barons and the Black Belt's planters bought themselves a constitution. Electoral fraud gave them a document for the ages. The Alabama Constitution of 1901 artfully protected the interests of the state's ruling class while largely relegating blacks and poor whites to a century of ignorance and perpetual conflict with each other." In another part of the article he stated:

"Consider how many of the griefs that we suffer in Alabama can be traced to the 1901 constitution: Poor schools, unequal taxes, lack of home rule -- the roots of such problems lie deep in the state's tragic past."

   Is the ninety-four-year-old Alabama Constitution outdated, useless, and ready for the garbage dump? Is it the cause of our state's ills? In my opinion, the answer to both of these questions is an absolute "no." I agree that the document is not perfect. I agree that some minor repairs would improve the document, but, in my opinion, a recompilation or total rewrite of the documentis unnecessary and could prove very costly to the state and its citizens.

The Arguments

   Proponents for constitutional reform argue that the Alabama Constitution of 1901 is ninety-four years old and was drawn up by statesmen who lived in another era. They point out that conditions in the country and state have changed radically since that time. When the document was drafted, there were very few automobiles and the Wright brothers had not made their first flight at Kitty Hawk. Roads across the state were primarily designed for the horse and buggy. It was not the computer age nor was Alabama a part of a global economy. There was no radio or television and telephone and electric service was in its infancy. How can a document written for another society be useful and effective today? Just because a document is old does not make it useless. Look at the Constitution of the United States -- over 200 years old and still going strong. It's over twice as old as the Alabama Constitution of 1901. Would a majority of U.S. citizens advocate a complete rewrite of the U.S. Constitution simply on the basis of age? I don't think so. Rarely do we hear calls for wholesale revision of the U.S. Constitution, although it too was written for another society.

   Proponents of revision argue that the United States Constitution has only been amended 26 times -- the last amendment being ratified by the required number of states in 1971. On the other hand, the Alabama Constitution contains more than 20 times the number of amendments contained in the U.S. Constitution. It is argued that this fact surely illustrates the point that the document does not work, was not written well, and does not adequately serve its purpose. I would respond by asking the question "Why do we have a Constitution in the first place?" What purpose should it serve? I agree that a Constitution should not be expected to provide details for every aspect of government. For a moment, imagine that you are in charge of constructing a building. You first must build a sound foundation and then construct the building on top of that foundation. To me, the Constitution is the foundation of your government. It should merely provide the basic structure of government. The laws regulating the day-to-day operation of government should be the responsibility of the legislature. In other words, the legislative statutes should be placed on top of the foundation.

   Do advocates of reform actually feel that a state constitution can be written well enough to eliminate the necessity for most amendments? I think it is a mistake to compare our Alabama Constitution to the U.S. Constitution when comparing the number of amendments attached to each document. Comparing the two documents is like comparing apples and oranges. The Federal Constitution and the Alabama Constitution were written for two entirely different purposes. We have three primary levels of government in Alabama -- federal, state and local. Of these three levels, which level's governing body has so-called "plenary" or complete and absolute power? Although many would point to the Congress as the body with plenary power, this is incorrect. The 10th Amendment to the U.S. Constitution provides:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

   Municipal and county governing bodies do not have plenary power as they can only exercise those powers granted to them by the legislature. The Constitution of Alabama does not recognize any inherent right of local government. Except as limited by the state and federal Constitutions, the Alabama Legislature has plenary power. As a consequence, the document providing the foundation for our state government must be much more detailed than the document providing for the Federal government. We all live in a changing society. Since there are many more areas to cover at the state level, it should be reasonable to expect more amendments as conditions change. We should not expect the Alabama Constitution to be written so as to eliminate the need for most amendments. This, in my opinion, is wishful thinking.

   Let's look at the argument that the mere fact we have so many amendments proves the Constitution of 1901 is useless. As evidence of this, reform advocates point out that there have been 572 amendments to the document. Sixteen additional proposals were enacted by the 1995 Alabama Legislature and will go before the voters at future elections. The Constitution has roughly 175,000 words and is more than twice as long as any other state constitution. According to these advocates of constitutional reform, we must surely have the longest legal document in the world.

   In an article written by Dewey English and Carol B. McPhail for the December 11, 1994 issue of the Mobile Press Register it was pointed out that of the 555 amendments then in effect, 69% affected only one county, one municipality, or a single county and the municipalities located therein. As many as 125 of these amendments granted a specific community the power to undertake one of four essential tasks -- improve their schools, encourage economic development, build hospitals or build roads. Of the 555 amendments, 331 (59.6%) dealt with single counties or single counties and the municipalities located therein; 54 (9.7%) dealt with single municipalities; and only 170 (30.6%) had a statewide impact. I think most of us would have to agree that the large volume of local amendments is a problem. But I do not agree that the Constitution of 1901 is to blame for the large number of local amendments. In my opinion, the fault lies with the legislature and not with the Constitution. Many of the amendments are almost identical except for the name of the jurisdiction to which they apply. Our legislators could easily have eliminated the necessity for many of the amendments by granting a power to all jurisdictions at once rather than to only one county or municipality at a time.

   If local amendments are the biggest problem with the 1901 Constitution, then the legislature should simply take the following steps:

I. Examine those amendments to the Constitution and determine which ones are repetitive or most likely to be needed for additional jurisdictions. Upon examination they would most likely determine that those amendments relate to the following subject areas:

1. Empowering counties to engage in activities directed towards economic development;

2. Authorizing the levy and collection of local ad valorem taxes;

3. Authorizing the levy and collection of ad valorem school taxes;

4. Salaries, fees, charges and court costs;

5. County and municipal debt limits;

6. Bingo games;

7. Special districts such as water districts, fire districts, etc.; and

8. Consolidation of county offices like tax assessor and tax collector.

II. Propose general amendments which apply statewide to cover these subject areas.

III. Include language within the amendments ratifying those amendments previously adopted on such subjects.

   Many make the argument that the writers of the 1901 Constitution designed it to prevent government from doing anything. I again say that the problem is not the document but with the State Legislature that has the responsibility of enacting our laws. The legislature has the authority under the 1901 Constitution to correct many of the problems referred to by reform advocates. As proof of this point, I ask you to look at the Municipal Code of 1907, a set of laws that were enacted by a legislature most likely composed of many of the same people that drafted the 1901 Constitution. The Municipal Code of 1907 was a brilliantly written document that, for the most part, continues to govern Alabama's cities and towns. Most provisions adopted in this 1907 code continue to work well today. These laws, now found in Title 11 of the Code of Alabama, give our municipalities more local authority than most of their counterparts across the country, including those with so-called home rule powers. As far as local taxing authority, Alabama's cities and towns have greater taxing powers than many municipalities in the country. With the exception of ad valorem taxes, all other taxes can be adopted by a simple vote of the governing body with no referendum required.

   Reform advocates state that the Alabama Constitution of 1901 is anti-home rule. The 1907 Municipal Code is a good example of why this is untrue. When we discuss the term "home rule" we must first decide what the term means. "Home Rule" means different things to different people. The term has been applied to municipalities and counties. To place a discussion of home rule in its proper perspective, one must first understand the basic differences between municipalities and counties in Alabama. Counties historically were created by the legislature as subdivisions of the state for the purpose of carrying out various state functions at regional levels. The 1901 Constitution ratified the boundaries of existing counties and provided the procedure by which the legislature could alter these boundaries. Municipalities, on the other hand, are government corporations voluntarily created by the citizens living therein for the purpose of providing additional services for the residents of the city or town such as police protection, fire protection, and utility services. Although the 1901 Constitution authorizes the legislature to enact legislation providing a procedure to be used to incorporate a new municipality, it specifically prohibits the legislature from creating new municipalities itself.

   Alabama's municipalities and counties are governed by the Dillon Rule, an old court decision which stands for the principle that counties and municipalities can only exercise those powers expressly given to them by the state legislature or those powers which can be implied from the express powers granted to them by the legislature. Simply put, a city or county can only act if there is a law on the books authorizing them to so act or unless there is a law on the books from which such authority to act can be implied.

   As mentioned earlier, the legislature has granted municipalities a broad array of power to handle their affairs at the local level. They have, for the most part, for whatever reason, refused to give county governments similar powers. This situation arose not because of the 1901 Constitution, but because the legislature did not see fit to act. If the legislature wants to avoid the multitude of local laws currently required to deal with county authority and county officials, they can correct much of the problem by enacting general legislation applying to all counties in the state similar to the laws enacted in 1907 for municipalities. The legislature could enact legislation providing several optional structures of county government which could be approved by individual counties. These laws could grant various administrative and lawmaking powers to county governing bodies. You could eliminate the need for local laws relating to salaries and benefits of county officials and employees by merely providing that these subjects can be handled by the local governing bodies in a manner similar to the way state law allows cities and towns to handle such matters.

   Those that advocate "home rule" as a way of removing the legislature from local affairs have not looked at the situation in other states. In most areas, when you reverse the Dillon Rule and state that cities and counties can exercise all powers not inconsistent with the State Constitution, the legislature then spends its time trying to restrict powers in various localities. You still have all the local bills -- just for another purpose.

   It has been argued that the League of Municipalities and its member cities and town oppose county home rule. This is not the case. The League opposes giving counties local taxing authority without qualifications. Counties currently levy several taxes. In most instances, these taxes are levied throughout the county including areas of the county located within incorporated municipalities. In fact, in most counties, a large percentage of county tax revenue is generated within the boundaries of the cities and towns located in the county. This would not be such a problem if a significant amount of the revenues collected were expended to provide services to those municipal residents from which the taxes were collected. However, in many counties, most of the revenues are expended in areas located outside the boundaries of incorporated municipalities. The city taxpayer should not be required to pay for services given to residents of the county residing outside of the city. City residents already pay city taxes for these services. This "double taxation" of the urban citizen should not be allowed to continue or to be expanded.

   The League would not oppose giving county governments taxing authority provided (1) such taxes could only be levied in areas located outside the corporate limits of a municipality or (2) in the event county taxes could be levied throughout the county, including inside municipalities, that the money derived from such taxes from within a city could only be spent to provide services to residents of the city. Again, the situation can be addressed by the legislature without rewriting the Constitution.

   Advocates of reform argue that the 1901 Constitution is not citizen friendly, both because of its length and because it fails to allow citizen participation through ballot initiative and recall of elected officials. In my opinion, recall should not be allowed. We already have recall in this state. It is called the election process. If an official does not do his or her job satisfactorily, the voters will remove them from office at the next election. Why do I oppose having a recall law? First, recall laws require additional elections which cost taxpayers tons of money. Second, recall laws can easily be used by those candidates who lost an election to get back at those who defeated them at the polls. Third, change takes time. Recall efforts can be used to remove candidates from office before they are given enough time to implement their programs.

   Let's talk briefly about initiative and referendum. Initiative is a process by which citizens propose legislation by petition and vote on it at state or local elections. The referendum is a process which allow the citizens to defeat laws adopted by state and local governing bodies through the ballot box. Colorado has had full home rule for local governments as well as the initiative and referendum since 1902, but it has not brought happiness to all concerned. In 1992, the voters of Colorado decreed that local governments could no longer raise taxes without giving their taxpayers a chance to vote on approval or disapproval. Colorado citizens also voted to limit revenue growth for local governments. Despite full home rule powers, these restrictions have severely crippled the ability of local officials in Colorado to perform their tasks. Today, they have far less authority than their Alabama counterparts. The business of government is complex and it is hard for the average citizen to stay well enough informed. It is very easy for special interests to persuade uninformed voters to vote their way on ballot issues. Further, these elections also cost a tremendous amount of money. For these reasons, I feel the initiative and referendum is not for Alabama.

   Many blame the 1901 Constitution for the low property taxes in Alabama. This may be true to some extent, but the most restrictive provisions relating to property taxes came in 1978 -- not 1901. The "current use" provision was part of Amendment 373, the so-called "Lid Law."

   A new constitution could be proposed article by article by the legislature or by a constitutional convention. Many reform advocates call for a constitutional convention composed of citizens to prepare and submit a new constitution for ratification by the state's voters. I feel that my arguments against initiative and referendum would also apply to the constitutional convention process. The drafting of such a document would be a complex task and quite an undertaking for uninformed delegates. Many oppose such an effort simply from a fear of the unknown. They argue, with some logic, that the legislative approach places the task in the hands of those who have been in a position to become better informed on the issues.

Conclusion

   There is one final argument that can be made against a substantial rewrite or recompilation of the Alabama Constitution. I believe that a substantially rewritten constitution would be extremely costly to the taxpayers of Alabama. Alabama is a very litigious state. Lawsuits on a variety of issues are filed daily. Many cases get dismissed at early stages due to the fact that courts have previously ruled on similar circumstances involving the same laws. If we substantially alter our constitution, we run a very real risk that many issues previously decided by an Alabama court since 1901 will have to be relitigated due to the fact that the constitutional provision upon which the case was decided has been changed. This situation, in my opinion, would be disastrous.

   The Alabama Constitution of 1901 provides a strong, solid foundation for our state and local government. Yes, we may have some minor cracks in this foundation, but these can be repaired through enactment and ratification of a handful of amendments. The legislature and people of this state should enact and ratify general statewide amendments to eliminate the need for a multitude of local amendments on the same subject. But, we must think long and hard before we completely rewrite a document that has served us well for 94 years.