Alabama Constitution of 2022 removes repealed laws, racist language

 

1901 Constitution

Alabama’s 1901 Constitution was aimed at keeping blacks and poor whites from voting and achieved the framers’ intent.

Alabama voters will have a chance to ratify a recompiled state constitution when they go to the polls for the general election on Nov. 8.

The Alabama Constitution of 2022 is a reorganized version of the current constitution, which has been the state’s foundational law since it was ratified in 1901.

The 1901 Constitution has grown to be almost indecipherable after more than a century of piling on amendments. Original sections that were changed and repealed remain in the document. Amendments that were changed by later amendments remain. More than 700 amendments apply to only one county but are mixed with the statewide amendments.

Overall, the Constitution of 1901 has 977 amendments to the original 18 articles that are intended to spell out the basics of state government, such as the authorities of the legislative, executive, and judicial branches.

The Constitution of 2022 is the product of an effort to arrange the massive document in a coherent format. It folds the amendments into the main articles. It organizes the local amendments by county, municipality, and topic.

Three sections are revised or deleted because they are leftovers from the era of racial segregation. Other defunct laws, including some from the segregation era, are eliminated through the process of recompilation.

The vote in November will be the culmination of a project that started a few years ago and was built on decades of reform efforts.

Legislative Services Agency Director Othni Lathram, who has overseen the drafting of the Constitution of 2022 with help from an advisory committee and the LSA staff, said the main goal is to make Alabama’s foundational law understandable.

“I think at its core the most important thing about this is that we’ve reached the point where the average person probably has no idea what our constitution is or what’s in it,” Lathram said. “You’ve got to read the original 290 or so sections, and then wade your way through all of those amendments in order to know what the core governing law of the state even is. And that’s confusing under the best of circumstances for people who are really well informed and know what we have done over the years. And it’s virtually impossible for just the average citizen.”

 

Voter-approved process

While the project came in response to the glut of amendments, it took an amendment to make it possible.

In 2019, state lawmakers passed a bill by Rep. Merika Coleman, D-Pleasant Grove, proposing a recompilation of the 1901 Constitution. The bill limited changes to four categories: Remove racist language; delete duplicative and repealed sections; consolidate economic development provisions; and arrange local amendments by county.

In 2020, voters, by a 2-to-1 margin, approved Coleman’s bill as Amendment 951. The amendment directs the head of the Legislative Services Agency, which drafts bills for lawmakers, to develop the draft of the recompiled Constitution.

In 2021, lawmakers passed a bill to create a 10-member committee to assist the LSA and to receive ideas from the public. Six lawmakers and four others served on the committee, which Coleman chaired. They held a series of public meetings starting in July 2021.

Lathram said the LSA and the committee relied on a key resource, a recompilation authorized by legislation that passed in 2003. That project was never intended to be ratified by voters and did not include all the components of the 2022 recompilation. But Lathram said it was an important interim step and the committee adopted it as the baseline for their work.

The final product, the Alabama Constitution of 2022, went to the Legislature during this year’s regular session. Legislators approved it without a dissenting vote, a step required to put it on the ballot in November.

“We spent two years working on these drafts in a very public process,” Lathram said. “There were numerous public meetings, opportunity for the public to engage and participate. When we were done with that process it had to pass both legislative bodies again by a three-fifths vote. They were debated, talked about during the legislative process. Then, of course, it’s got to be ratified in November.

“So, we’re not talking about a quick or simple process. It really was a process with multiple, pretty significant hurdles that had to be checked through the representative government process.”

You can see the proposed Alabama Constitution of 2022 and documents explaining the committee’s work under the Legislative Service Agency’s tab on the Legislature’s website.

Taxes, home rule, and gambling

For decades, advocates for reforming Alabama’s Constitution of 1901 have cited the need to change limits on property taxes that limit school funding and for giving county governments more authority, or home rule.

The Alabama Constitution of 2022 is not that version of reform.

“This doesn’t address any of that,” Lathram said. “It maintains the status quo on all tax issues. It maintains the status quo on all local governance issues.”

The prohibition on gambling in the Constitution of 1901 is unchanged. That means the Legislature cannot create a lottery unless voters approve a constitutional amendment. The Constitution of 2022 does not change the Legislature’s powers in any area, Lathram said.

“It does not take away or give any authority, even on the provisions where theoretically authority is coming out, like on segregated schools or poll taxes, those are authorities that have been taken away under federal case law for over a generation now anyway.

“We are not taking out anything that’s operative. We’re taking out vestiges of a prior time.”

Even though the recompilation does not address some issues that have long been cited as the reasons for overhauling the constitution, longtime supporters of reform say it is an important step.

Kristi Thomson is a retired teacher and principal who chairs Alabama Citizens for Constitutional Reform, which has spearheaded efforts for more than two decades. Thomson said her husband, journalist and educator Bailey Thomson, who died in 2003, would have endorsed the work, including the removal of racist language. Thomson was a founder of ACCR in 2000.

“My husband started his research way back in 1998 and realized that the constitution was just keeping Alabama back,” Thomson said. “And Bailey was an Alabama boy. He grew up in Aliceville. His dream was that over time we could get a new constitution. But we realized that if that was not in the cards could we get reform. And when I say we, I mean the people who support the ACCR mission.”

Thomson said she sat attended the advisory committee meetings.

“I was very impressed with all the research that had gone on and the considerations, the concerns,” Thomson said. “They were so careful in planning how everything would be worded and how it would affect the state.”

Removing racist provisions

An example of how the recompilation works is the treatment of the ban on interracial marriage that is part of the 1901 Constitution.

Section 102 of the 1901 Constitution says: “The legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.”

Alabama’s ban, like those in other states, was nullified in 1967 when the U.S. Supreme Court ruled those laws were unconstitutional.

In 2000, Alabama voters approved Amendment 667 to formally repeal the inoperative ban by a vote of 59 percent to 41 percent.

The Alabama Constitution of 2022 does not have the original ban in Section 102 or the amendment that repealed it. Sections that voters have repealed, along with the amendments that repealed those sections, are not part of the recompiled constitution.

The LSA and advisory committee identified three sections with racist connotations that would not be eliminated by recompilation. Those are removed or revised.

Section 32

Section 32 is the prohibition against slavery in the 1901 Constitution: “That no form of slavery shall exist in this state; and there shall not be any involuntary servitude, otherwise than for the punishment of crime, of which the party shall have been duly convicted.”

In the late 19th century and early 20th century, Alabama abused the practice of involuntary servitude. The notorious convict-lease system targeted former slaves and their descendants for dangerous work in coal mines and other places until the 1920s.

The Constitution of 2022 deletes the last portion of Section 32 and reads: “That no form of slavery shall exist in this state; and there shall not be any involuntary servitude.”

Section 256

Section 256 in the Constitution of 1901 required “separate schools for white and colored children.”

After the U.S. Supreme Court’s Brown v. Board of Education ruling outlawed segregated schools in 1954, Alabama amended Section 256 (Amendment 111 in 1956) but tried to keep the door open for segregation. The amended version of Section 256 says, in part, “The legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end.”

The Constitution of 2022 deletes that portion of Section 256 as well as the original section that mandated segregated schools. Also deleted was a provision from the 1956 amendment that said the Legislature could “require or impose conditions or procedures deemed necessary to the preservation of peace and order.”

Section 259

The poll tax was used for decades to keep poor people, white and Black, from voting. Alabama was one of five states that still had a poll tax when Congress passed a law to ban poll taxes in 1962. That law was ratified as the 24th Amendment to the U.S. Constitution in 1964.

Most of the references to the poll tax in the Alabama Constitution of 1901 are in Article VIII on suffrage and elections. Article VIII was repealed and replaced in 1996, one of several article-by-article reform efforts.

Section 259 is part of Article XIV on education and is the surviving reference to the poll tax. It says: “All poll taxes collected in this state shall be applied to the support and furtherance of education in the respective counties where collected.”

That is deleted from the Constitution of 2022.

Local amendments

The Constitution of 1901 limited the authority of county governments, forcing them to seek approval from state legislators and voters on mundane matters and basic operations. That is why about three-fourths of the 977 amendments affect just one county.

Here’s a few of the hundreds of examples: Amendment 710 imposes fees in drug cases in Escambia County to help fund the canine unit for the sheriff’s office; Amendment 934 authorizes the Madison County Commission to enact noise ordinances; Amendment 938 concerns the use of golf carts on public roads in Marengo County; and Amendment 974 prohibits the use of septic tank discharges as fertilizer in Talladega County.

All amendments, local and statewide, are listed in chronological order in the Constitution of 1901. The Constitution of 2022 moves all the county amendments into a separate volume organized by county and topic.

“This goes a long way toward hopefully that ease of use for voters to allow them to know what laws are in the constitution for their county that don’t exist for the rest of the state,” Lathram said. “I think it’s a very significant portion of the effort.”

History of reform efforts

Governors, legislators, and citizen groups have pushed for constitutional reform for decades.

Gov. Albert Brewer advocated for reform, as did Gov. Fob James during his first term from 1979-1983.

The Legislature passed a new constitution in 1983 sending it to the voters for ratification. But the Alabama Supreme Court removed it from the ballot, ruling that a wholesale rewrite of the constitution required a constitutional convention.

Reformers then tried a different approach, overhauling the constitution article-by-article. One such effort predated the Supreme Court ruling. In 1973, voters ratified Amendment 328, a rewrite of Article VI, the judicial article, authored by then-Alabama Supreme Court Chief Justice Howell Heflin.

In 1996, voters ratified a new Article VIII, suffrage and elections. That was an effort spearheaded by Rep. Jack Venable of Tallassee.

Brewer chaired a constitutional revision commission created by the Legislature in 2011. It rewrote the articles on the distribution of powers, impeachment, corporations, and banking. All were ratified from 2014 to 2016.

Also in 2016, voters approved an amendment that was a step toward more home rule for counties. It allowed county commissions to adopt policies on county personnel, litter control, public transportation, traffic safety and emergency assistance without approval of the Legislature.

Another amendment approved in 2016 changed the procedure for determining whether constitutional amendments affecting only one county go on the ballot statewide or only in the affected county, an effort to confine more of those votes to the affected county.

Stayed within guidelines

Sen. Sam Givhan, R-Huntsville, a lawyer who served on the advisory committee for the Constitution of 2022, said the panel was careful to limit changes to the four categories authorized by voters two years ago. He said that should give voters confidence in the finished product.

“I would just remind them that they did vote to authorize this before,” Givhan said. “And they gave us very confined parameters with which we could operate to reorganize the constitution and to remove the racist language. And lots of different groups were represented with varied interests to keep an eye out if you will to make sure that we stayed within those parameters.

“There was really no controversy in how we handled it because there were some clear-cut areas that were overt racist language that were removed. There were some that had deep racist connotations that were removed. But there’s nothing in terms of how our government works, how our tax system, nothing like that was changed. We didn’t have the authority to change it.”

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