The Constitution of 1901: Lesser of Two Evils?

It is widely accepted among many Alabamians who count themselves as progressives, or good Democrats, or whatever similar label you prefer, that one hallmark of membership in their number is support for a convention to replace the Alabama Constitution of 1901. This charter has been controversial since its proclamation of effectiveness by Governor William Dorsey Jelks on Thanksgiving Day, 1901.

The litany of complaints about this instrument is now familiar. One of the more succinct restatements of the principal ones comes from the leading advocacy group for constitutional reform, the Alabama Citizens for Constitutional Reform. They have summarized their beefs as follows:

1. It restricts local democracy.
2. It locks in an unfair tax system.
3. It hinders economic development.
4. It limits budget flexbility [sic].
5. It is the longest known constitution in the world.
6. It has undemocratic origins.

The fifth point is certainly valid. In addition to the moderately detailed, long original text, amendments to the Constitution now number - let’s see, if it’s Friday, there must be 827 Amendments by now. (As compared to 27 for the U.S. Constitution since 1789.) To be fair, our Georgia neighbors seem determined to pass us in the long haul. After revising their constitution in 1983, they have already, through 2008, added 87 amendments. This renders it, at best, difficult to determine the controlling constitutional rule on a given issue, when any section of the original document may be the subject of successive, and contradictory, amendments. The Legislature’s band-aid on this issue, an “Official Recompilation,” is the product of the mind of some Goat Hill staffer with a mail-order diploma, who does not understand that a Legislature may not alter the text of a constitution in derogation of its specified amendatory process.

Likewise, the sixth point is quite true. By far, the most useful resource in studying the 1901 Constitution is the late Malcolm C. McMillan’s Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism (Chapel Hill, University of North Carolina Press 1955)(available in reprint). (As a matter of coincidence, this month marks the centennial of McMillan’s birth.) McMillan meticulously traces the roots of the 1901 Constitution to the successful domination of the Convention that year by Black Belt Bourbon planters, with secondary support from nationally-owned mining and railroad interests. In addition, of course, one key goal of the 1901 Constitution was enshrining segregation and black disenfranchisement. These latter goals were successfully maintained until overturned by Federal courts and civil rights laws in the 1950’s and 1960’s. Much of the racist language of the 1901 Constitution is an embarrassment, even if it is rendered inoperable by Federal law or subsequent amendment.

Of course, the biggest problem with the 1901 Constitution, from the perspective of any Democrat, is its absurd plutocratic shackles on the state’s tax structure. It places such low ceilings on ad valorem and income taxes, that the state is forced to impose sales and other excise taxes, and still remains one of the lowest taxed states in America, if not the lowest taxed. As McMillan put it:

Tax limitations, first written into the Alabama Constitution of 1875 as a safeguard of the re-occurrence of the extravagance and mismanagement of the Reconstruction era, hampered the growth of cities, all kinds of internal improvements, and educational development during the last quarter of the Nineteenth Century. The demand for relief from their “strait-jacket” effects, especially strong in urban areas, was one of the reasons for calling the Convention of 1901. A convention controlled by the non-urban Black Belt, the railroads, and industrialists, who were generally conservative and wished tax protection for themselves, denied any adequate relief. McMillan, p. 329.

These capped taxes are the main forms that can be made progressive, so that their heaviest burden falls on the wealthy, who can afford the expense. Sales and other excise taxes, on which we are now dependent, are by their nature regressive. They also suffer from the fault of lower thresholds of counterproductivity. If you can raise taxes a notch on an acre of International Paper’s forest land in South Alabama, they aren’t able to pick it up and move it to Mississippi - they will pay the tax. At some relatively low level of sales taxation, consumers, especially in border cities like Mobile and Dothan, begin crossing state lines to shop. Thus, this structure keeps Alabama’s overall tax rate too low for it to compete with the package of public goods - schools, roads, public safety, public health - offered by more progressive states.

Truly, this Constitution is a wretched document, and it is going to find few defenders. Yet, the concept of a constitutional convention, completely rewriting the state’s charter, calls to mind the observation of Sir Winston Churchill about democracy: “democracy is the worst form of Government except all those other forms that have been tried from time to time.” Or, to adapt it to the current topic, “the Constitution of 1901 is the worst possible constitution - except what could, and probably would, emerge from a new Convention.”

Democrats and progressives are, by nature, optimistic. Except in Alabama, where any progressive of a certain age, duration and perception is almost bound to be somewhat pessimistic. ACCR, and other forces pushing for a new convention, tend to be of the brie-and-Chablis form of progressivism, and are invariably of the optimistic variety. They imagine that not only will a convention produce a clean, brief document devoid of racist or religious bigotry, it will contain such enlightened provisions as would emerge from a convention in Vermont or Oregon.

In 1955, a bill was introduced in the Senate to call a constitutional convention, limited to amendments pertaining to legislative apportionment. The Legislature sought an advisory opinion of the Alabama Supreme Court as to whether the convention provisions of the 1901 Constitution allowed such a limit on the authority of a convention. The Supreme Court said no:

The obvious policy of the Constitutional Convention of 1901 was to give a constitutional convention full power to do what it might consider necessary for the purpose of altering, revising or amending the existing constitution. Opinion of the Justices, 263 Ala. 141, 144, 81 So.2d 678, 681 (1955).

In short, once we call a constitutional convention, it can do whatever it wants, and whatever comes out of that convention, upon receiving one more vote than the “no” vote on ratification, that will be our Constitution until we can get another convention called. Which might, as with the current document, be another century or more.

If the NRA types get a complete ban on gun regulation in, so that current laws regarding the insane and felons owning guns are invalid, too bad. If the home schooling movement wins a proviso banning the Legislature from enacting compulsory education, then they don’t even have to pretend little Johnny is studying any more - until, of course, it’s time for him to go football practice under the new constitution’s “Tim Tebow” provision. (Talk about a constitution that “hinders economic development,” beef #3, supra!) And taxation? What if the Tea Partiers are the ones writing that part of the new document? Not only might we find the new state government even more cash-strapped than the current version, a convention holding carte blanche would be free to ban the state from such “invasions of liberty” as, oh, Medicaid, to bring the new regime in with a balanced budget. You can bet your sweet bippy that the Constitution of 2012 is going to define marriage as between a man and a woman, enshrine the “right” to school prayer, and who knows what else? Handing the keys to the Constitution to an electorate that gives Jefferson Beauregard Sessions III a 63.4%-36.6% win in 2008 is like handing the car keys to your cousin Rupert right after his fourth DUI arrest.

Granted, the harm a right-wing-dominated convention could do would be limited by the Bill of Rights, Due Process, and Equal Protection provisions of the U.S. Constitution, and various Federal statutes. But in many areas, those provisions serve as restrictions on what states can do, not as mandates that they act in a humane or sensible manner. Medicaid, as only one example, is purely optional on the part of states.

For all of its many abominable features, the 1901 Constitution has some redeeming qualities - mostly holdover provisions from Alabama’s early Jacksonian democracy - that would be unlikely to survive a convention dominated by the “Big Mules” and their Christian Coalition allies. These include, but are not limited to:

• A due process clause that the Alabama Supreme Court has long held to afford broader, and more comprehensive, protection than its U.S. Constitution counterpart.
• Explicit rights to access to the courts, to a legal remedy, and to a civil jury trial, that are not present in the U.S. Constitution. Loss of these rights, which the Business Council and its allies would doubtless try to remove, would seriously injure consumers injured by recklessly designed products, workers wrongly fired by bosses, and victims of fraud and other wrongdoing.
• A right to privacy, in the form of restrictions on search and seizure, that has at times been held to be greater than that afforded by the Federal Fourth Amendment.

In short, in an environment where the loony right could easily dominate low-turnout special elections to pick a convention, and could likewise control the ratification referendum, there is a substantial danger of Democrats waking up the day after ratification to feel nostalgic for the 1901 Constitution. One of the great lessons of Tocqueville’s Democracy in America was that the institutions of representative democracy sank such deep roots in American soil not because of the intrinsic genius of their designers - though they did get most of it right. Rather, those institutions succeeded because their seed was sown on soil that had been prepared for over a century and a half by slowly emerging democratic institutions, from the Virginia House of Burgesses to the town meetings of New England. Democracy, Tocqueville taught, depends for its success upon an accepted recognition that taxes must be paid, majority rule must be tempered by the recognition of individual rights, civic rent must be rendered, and the right of the community to act collectively recognized. A half-century of an Alabama where the primary objectives of the educational system have been maintaining some semblance of segregation, and the winning of football games, may not be the right atmosphere in which to undertake such fundamental reform. Americans are learning today in Iraq and Afghanistan, as the British and French did in Africa in the 1960’s, that holding an election and striking the colors does not a democracy make. If we want an enlightened Alabama, we may need to work on the foundation before erecting a new frame.

Then again, suppose that more enlightened forces prevailed at a convention. Suppose the optimists were right, and we actually got a Constitution that would require out-of-state timber barons, conglomerates, and mining interests to pay their fair share of a modern public infrastructure. I respectfully submit that, until we have improved the political environment in Alabama - the work of a decade, starting now - such a proposed Constitution would be a dead letter at the ratification vote.

Ratification of a positively reformed constitution would not be our first lap around the track. In 2003, Bob Riley proposed his famous “Amendment One” package. This combination of tax measures, scholarship programs, and various financial and educational reforms, would have in fact ameliorated many of the regressive-tax and inadequate tax base shortcomings of the 1901 Constitution. The package was backed by a wide range of odd bedfellows, including AEA and the Business Council. It garnered almost universal support from the editorial pages of all Alabama newspapers, both conservative and progressive. Typical was the election-eve admonition of The Montgomery Advertiser:

Having the lowest tax burden in the nation comes at a cost -- poor schools, low standards of living and low per capita incomes. Other states recognize the linkage. If Alabama is ever going to catch the rest of the South, Alabamians have to see it as well.

Amendment One was as close as we can come to a test run for constitutional reform in Alabama, short of a convention. The result was a disaster. A coalition formed against the Amendment, which was largely financed by ALFA and the Alabama Forestry Association, whose out-of-state corporate bankrollers would have been forced to pay fair taxes under it. The substance of Amendment One - which was actually a package of constitutional amendments regarding taxes, and statutory enactments that only took effect if the constitutional provisions passed - would have provided substantial tax relief to working-class and poor Alabamians. It paid for this by increasing taxes, mostly on the wealthiest Alabamians and absentee corporate interests, but also by a package of nickel-and-dime minor tax increases that would have been more broadly based.

Opponents seized on these relatively minor provisions, which had a minimal aggregate fiscal effect, in a vigorous ad campaign. Such lines as “they’s even gonna tax it when you git your oil changed!” left many Alabamians incorrectly thinking the package would raise their taxes. Despite the fact accounting experts and economists determined that well over two-thirds of Alabamians would have paid overall lower taxes under Amendment One, nearly three quarters of Alabama voters told pollsters they thought the proposal would raise their personal taxes. Although the Business Council and others put money into the “pro” campaign, most of the ads run by it were of the ineffective “Kumbayah” variety - the campaign slogan “Do the Right Thing” being a regular line. No serious effort was made to run negative against opponents, pointing out to voters how little out-of-state landowners pay on their billions of dollars of holdings in Alabama. Predictably, Amendment One failed, by a 67.5%-32.5% margin; the county results are reflected in the map to the right. (The map also shows how poor blacks were better at figuring the proposal out than poor whites.) For myself, not exactly trusting the integrity of either Riley or the Business Council, I have always wondered if Amendment One wasn’t designed to fail. The nickel-and-dime taxes (such as on lubricants, see “oil change,” supra) were sold on the premise that “everyone needs to give up something,” but they seemed designed to hand opponents their bullet points. As it was, the failure let the air out of the tires of serious revenue reform in the Legislature for a decade, if not a generation.

The lesson here for constitutional reformers is that Alabamians have deep seated opinions about taxation, many of which are erroneous. But their error in no way weakens their political effect. We can count on any proposed constitution which effectively remedies the state’s tax inequities drawing the same attacks against the same weakness in electoral information. At a minimum, a proposed new constitution would require clean, easy-to-explain progressive tax provisions. And the out-of-state interests behind them will need to be subjected to the same merciless fire of negative media to which Democratic nominees are subjected every cycle.

First, however, we must decide if the game is worth the candle. Until K-B.S. educational standards are raised in Alabama, any effort at constitutional reform is risky. Even though I have never visited a casino, I support our gubernatorial nominee’s efforts to regulate and tax gaming in Alabama. But I am much less sanguine about rolling the dice on a constitution that may be with us for over a century.