Practical Reform of the Constitution of Alabama
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By Bill Pryor
Attorney General of Alabama
Symposium of the Alabama Constitution
September 26, 2000
Jacksonville State University
Thank you for inviting me to give "a view from the Attorney General's office" on the current discussion
of constitutional reform in Alabama. This is an important topic and -- it is important to note -- a broad topic.
It is also important to recognize that this discussion is still at an early stage.
Accordingly, the only remarks I can offer today are of necessity tentative and preliminary. I come as a supporter
of constitutional reform. I believe a thorough and systematic review and revision of our organic law is in order.
I would like to share, however, a few recommendations that hopefully could assist this movement in taking some
first steps.
I wish to make four major points. In making the first three points, I wish to raise some questions about the persuasiveness
of some early arguments for reform. In making the last point, I will suggest a way in which greater specificity
on the part of those seeking reform will, I think, advance the debate into a more concrete - and possibly more
productive - stage.
First. Some reformers complain that Alabama's current constitution is a lengthy document. In my judgment, this
argument does not make the case for reform.
State constitutions are fundamentally different from the U.S. Constitution. As Americans, we revere our nation's
Constitution - and with good reason. The original text, written over 200 years ago, is one of the crowning achievements
in the history of mankind.
In some respects, state constitution-writers have clearly taken the U.S. Constitution as a model to be emulated.
Each state government's structure copies the three-branch organization of the Federal Government - the familiar
separation of powers into distinct executive, legislative, and judicial branches. (Indeed, the only departure from
this model is the minor one of Nebraska's one-house state legislature.) All state constitutions copied the Federal
model in that each of them contains some version of the Bill of Rights.
But beyond the separation-of-powers and bill-of-rights similarities, it would be a mistake to take the federal
constitution as a model for state constitution-writing, because state governments are by their nature different
from the national government. Recall that the Framers of the U.S. Constitution intended to create a Federal Government
of limited powers. Congress was to legislate only with respect to the subjects enumerated in Article I, Section
8, and the Tenth Amendment later provided that "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." Although we
have departed too much from the Framers' vision of a national government of limited powers - particularly over
the last 60 years or so - the point remains that the text of the U.S. Constitution specifies the structure and
operation of a national government of enumerated, limited powers. In short, if a power is not expressly granted
to the Federal Government by the U.S. Constitution, the Federal Government does not have that power.
State governments are not limited in this way. In fact, state governments have always been understood to wield
the "police power." The police power is hard to define, but it is unquestionably broad. In one widely
accepted formulation of this power, it is said to enable state governments to regulate private behavior so as to
promote the "public health, safety, welfare, and morals." A broader statement of governmental power is
hard to imagine. State constitutions are, therefore, documents designed to specify the structure and operation
of state governments of extremely open-ended powers. In short, if the state constitution does not deny a governmental
power to the state government, the state government has that power.
This distinction between the federal and the 50 state governments should be kept in mind for purposes of the Alabama
debate. Whatever reforms one wishes for Alabama's constitution, it would be foolhardy to expect that the state
can or will craft a document that resembles the U.S. Constitution in terms of length, or generality.
The experience of all the other states bears me out on this point. In his 1998 book, "Understanding State
Constitutions," Professor Alan Tarr, a political scientist at Rutgers University, explained that "for
those unfamiliar with state constitutions, probably their most striking feature is their length."[1] Although
20th century constitutional reformers tried and to some extent succeeded in pushing through shorter state constitutions,
no state managed to reduce "the state constitution to the dimensions of the federal Constitution."[2]
On average, according to Professor Tarr, "the unamended text of the typical state constitution remains over
three times as long as that of the federal Constitution, and state constitutions on average contain over 120 constitutional
amendments."[3]
Why are state constitutions so lengthy and detailed? Professor Tarr suggests that constitution-writers must use
a lot of ink to specify clearly the limitations on the powers of the legislature they wish to impose.[4] Other
factors include the felt need to specify many details of the organization and operation of the departments of state
government, and of municipal governments.
For all these reasons, reform of the Alabama constitution would result in a shorter document - particularly since
Alabama's is currently the longest constitution in the world - but reform will not produce a short constitution.
Currently Alabama's constitution has 665 amendments --the largest number of amendments in the country. The vast
majority of these amendments, however, deal with narrow matters of local government - the financing of the extension
of a municipal sewer system, for instance - and should not unduly detain a citizen who wishes to discern the overall
design of the document, or find a particular provision in it. (If the problem is the unsightly number of amendments,
this could be "solved" cosmetically by simply rearranging the current local government amendments into
a new numbering system where each county is the subject of a single amendment, with multiple sections corresponding
to particular subjects that are now numbered as separate amendments. Overnight you could drastically "reduce"
the number of local government amendments. Certainly, length alone is not a case for reform.
Second. Some reformers correctly note that the drafters of the 1901 Alabama constitution held racist and other
unenlightened views. Again, that argument, although true, does not conclusively make the case for comprehensive
reform.
From my perspective, reform of racist and other reactionary provisions should be accomplished in the same way as
has occurred on the federal level. The original U.S. Constitution counted black persons in 3/5 increments for the
purposes of the census, but that did not mean that the entire U.S. Constitution should have been discarded.
To take one concrete example in Alabama, there is an amendment on the ballot this November that would repeal a
section of the state constitution that purports to limit the state legislature's power to recognize interracial
marriages. I - like all of you - am appalled by this provision in our current constitution, and I have publicly
urged voters to cast their vote in favor of the amendment to repeal it. I renew my position on this issue here
today, and urge everyone here to go out and vote in favor of Amendment No. 2 on Election Day.
It is this sort of specific action, directed at specific provisions in the Constitution reflecting racially biased
beliefs and attitudes, that is needed, rather than a generalized condemnation of the "sins of the fathers"
and rejection of the whole of their work.
Third. Some reformers say we need to remove politics from the process. From my perspective, it would be naïve
to expect that "politics" will be absent from the process of state constitutional revision.
Recognition of this fact is the first step toward developing an appropriately humble attitude toward this subject.
I understand the concern about politics. It has to do again with Americans' reverential attitude toward the Framers
of the U.S. Constitution. Madison, Hamilton, Jay, Washington, and Franklin - they rose above politics, didn't they?
Why shouldn't we expect our local "Framers" to do the same?
Well, "politics" was clearly involved in the debates over the drafting and adoption of the U.S. Constitution,
and "politics" was clearly involved in the debates over every amendment to the Constitution proposed
since 1789.[5] And "politics" will clearly intrude on any attempt to reform all or any significant part
of the Alabama constitution. Changes in the status quo will excite some and infuriate others. Those who can organize
politically will. It is a simple matter to imagine some flashpoints in a large-scale constitutional re-write.
Consider the right to a jury trial, which was the basis for the state supreme court's striking down of tort reform
legislation a few years back. Imagine the fight that would break out over a proposal to change the right to jury
trial. Regardless of the direction of the change - whether in the direction favored by the plaintiffs' bar or that
favored by businesses - both sides would surely organize and get into the fight. The same is true for any suggestion
that we either continue or stop electing state judges in partisan races. Ditto any suggestion that a new constitution
adopt a position about competition and choice in elementary and secondary education.
You can doubtless add to this list of political conflicts that would come to the fore in a wide-ranging constitutional
revision. My point here is that this would be part of the price we would pay for such a revision. You must take
this price into account.
Fourth. We reformers must level with the public about our goals, and we must make specific, concrete proposals
for the public to consider.
Constitutional reform and tax reform are often mentioned together, almost in the same breath.
I am for tax reform in concept, but I would oppose a tax "reform" that was a disguised tax increase.
And I think most Alabama voters would, too.
For this reason, constitutional reformers must be candid with the public about the relation, if any, between our
proposals and the taxes Alabamians pay. These taxes are low, but not as low as some suggest. A recent survey of
state tax rates shows Alabama near the bottom, yes, at Number 45, but our state and local tax burden of 9% is only
slightly below the national average of 10.4%.[6] I believe that low taxes are needed to aid our economic growth.
We should not lose sight of the fact that Alabama has recently enjoyed significant improvements in the earning
power of our citizens. From 1990 to 1998, the Census Bureau reports, household income in Alabama rose from $29,129
to $36,266 (in constant, inflation-adjusted dollars), moving the state from 45th to 33rd nationally![7]
In these circumstances, I think that a pitch for tax reform that includes a tax increase for large numbers of Alabamians
will and should fail. Tax reform must be about making our taxes flatter and simpler while keeping them low.
Another area where change may be debated is in the area of local self-government, also known as "home rule."
Currently, Alabama's local governments - cities and counties - must seek the approval of the legislature before
they can take action on a wide range of issues. Most states do not have such a highly-centralized approach to local
government. Instead, they grant much more in the way of "home rule" to city and county governments.
I am intrigued by this possibility. Much work is necessary, however, before a concrete constitutional reform proposal
can be made. There is a good deal of variation in "home rule" among the states that have adopted this
idea. A good reform proposal would be based on a study of the alternative forms of home rule and how they have
fared in practice.
We should also refrain from overselling our case. Constitutional reform, like any action by government, will not
create utopia or some form of heaven on earth. In the 1970s, for example, Louisiana adopted a new state constitution.
Although I have lived there, like to visit there, and have loved ones there, I prefer to live in Alabama and even
prefer Alabama politics to Louisiana any day.
In closing, let me say that the Alabama constitution should be improved - not because it is currently too long,
nor because the creators of the 1901 constitution held some repugnant views, nor because we imagine that constitutional
revision could take place in a high-minded, apolitical vacuum - but because there are specific areas in which most
of us can agree that change would benefit the state and its people. This conference is an important opportunity
to begin that discussion. We need to identify those areas, debate them, and educate the public about them. Only
then can reform have a chance.
Thank you.
[1] G. Alan Tarr, Understanding State Constitutions 9 (Princeton U Press, 1998)
[2] Id.
[3] Id. at 10.
[4] Id. at 10, 16-17.
[5] The reader who finds this assertion troubling might profitably read Andrew Rutten, The Neglected Politics of
the American Founding, The Independent Review, Spring 1998, pp. 579-595.
[6] This data comes from the Tax Foundation's analysis of year 2000 total tax burdens, as reported in Bill Ahern,
Low-Tax State? Think Again, Intellectual Ammunition 12 (The Heartland Institute, July/August 2000).
[7] A table showing the states ranked by household income in 1990 and 1998 is available on the U.S. Census website,
http://www.census.gov/statab/ranks/rank18.txt
