Rewriting a constitution
Help us protect our freedoms from tyrants
by supporting C.R.C.R.
can't be 'business as usual'
By G. ALAN TARR
Special to the Register
Reforming state constitutions is as American as apple pie. We revere the durability of the federal Constitution,
but we do not hesitate to amend our state charters or even replace them when they no longer serve our needs.
Take Alabama, for example. Since 1901, it has averaged about seven amendments per year; and, though none has succeeded,
politicians have frequently proposed revising or rewriting the 1901 document.
Other Southern states, meanwhile, have been particularly active constitution-makers. Among Alabama's neighbors,
Georgia has adopted 10 constitutions, Florida six, Mississippi four, and Tennessee three.
This is not to suggest that constitutional change comes easily. As former Gov. George Busbee of Georgia observed,
"Constitutional revision is not for the faint of heart. It is not a Sunday drive in the mountains. It is an
incredibly difficult, sometimes tedious, sometimes exhilarating, always challenging un dertaking."
Thus, if Alabama decides to embark on constitutional reform, it can benefit from the constitutional experience
of these states and others. What lessons do they teach?
Constitutional reform must be a democratic process.
Successful constitutional reform depends on a truly open process, in which popular participation is welcomed and
encouraged, and in which citizens recognize that their views are heard and acted upon. This is essential because
it confirms our basic values: As the Declaration of Independence proclaims, "it is the right of the people
. . . to institute a new government."
But it is also a practical necessity. The standard mechanism for constitutional revision in the states is the constitutional
convention, and it is hard to imagine a more democratic instrument of constitutional reform.
The convention gives citizens three opportunities to make their views known: They vote on whether a convention
should be called, they elect the delegates to the convention, and they vote on whether to adopt the proposals that
the delegates submit to them.
What can make the effort fail? If constitutional reform is perceived as an attempt by a political elite to foist
something on the citizenry, the convention call will be defeated, as occurred in New York in 1997. And if the convention
delegates stray from the views of those who elected them, their proposals will be defeated, as occurred in Maryland
in «971.
For reform to succeed, citizens must believe that it is their process and that the proposed changes will benefit
them. This requires more than a perfunctory nod to popular sovereignty. Efforts must be made to involve the populace
at every stage of the process.
Before the Constitutional Assembly met in South Africa after the end of apartheid, a major campaign was launched
to alert citizens to the importance of what was occurring and to encourage them to submit their suggestions. Before
the Florida Constitutional Commission proposed amendments in 1998, it conducted hearings throughout the state to
solicit citizens' views. Alabamians might well take their cues from these successful efforts.
Constitutional reform must be a political process.
This does not contradict what I have just said. Popular involvement does not preclude political leadership. In
fact, constitutional reform has succeeded only when governors or other political figures have been willing to take
the lead in overcoming the inertia and entrenched interests that typically block meaningful reform.
Prior to a convention, leadership is necessary to dramatize the problems besetting the state, and to explain to
citizens how constitutional reform can help alleviate those problems.
During the convention, leadership is essential to encourage compromise, prevent partisan polarization, and discourage
proposals that might jeopardize ratification of the constitution.
Following the convention, leadership is necessary to inform the public about the proposed constitution and to rally
support behind it. Even a good constitution may be rejected without a well-organized ratification campaign.
The successful movement for constitutional reform in Virginia in 1970 illustrates what the ratification campaign
entails. Proponents of constitutional reform formed a statewide steering committee led by two former governors,
whose broad membership demonstrated that support for the constitution extended beyond partisan, racial and regional
lines.
This committee created themes for the ratification campaign, distributed brochures, purchased television advertising
time, and otherwise managed statewide operations.
Meanwhile, county and local organizations were formed to handle grass-roots operations, work with civic groups,
canvass voters, and man the polls on Election Day.
A similar effort will be necessary for constitutional reform to succeed in Alabama.
Constitutional reform must be a non-partisan process.
Although constitutional reform is necessarily political, it need not be partisan. In fact, successful constitutional
reform seldom is.
For example, in New Jersey in 1944, voters rejected a proposed constitution because it appeared to be the work
of Republican partisans. Three years later, a second convention was held, this time at a neutral site, presided
over by a non-political university president, with a selection process that ensured fair repre sentation of both
Republicans and Democrats among the delegates.
This effort to avoid the appearance and actuality of undue partisanship paid off. Convention deliberations were
marked by collaboration rather than political posturing.
As one delegate put it, many of his fellow delegates were politicians before they attended the convention and were
politicians after it concluded. But while they were there, they were statesmen.
When the time came to ratify the constitution, Republican and Democratic leaders willingly joined forces to secure
its adoption.
What was true in New Jersey is true more generally. Nothing is more likely to doom constitutional reform than the
perception that it involves a continuation of ordinary politics, with self-interested groups seeking advantages
or benefits at the expense of the general public.
To avoid this perception, from the very outset Alabama reformers must undertake to encourage inclusivity and build
consensus.
Constitutional reform must confront both the needs of the present and the demands of the future. Chief Justice
John Marshall observed of the U.S. Constitution that it was "intended to endure for ages to come and consequently
to be adapted to the various crises of human affairs."
Constitutional reformers must remember that the same holds true for state constitutions. The handiwork of a constitutional
convention can be expected to endure for generations, and thus must be able to respond not just to existing concerns
but to emerging problems as well.
At the very least, it must not handcuff the state government in dealing with new problems as they arise.
Dissatisfaction with current conditions may provide the occasion for constitutional revision, but it cannot fully
define the agenda for reform. In his keynote address to the New Jersey Constitutional Convention of 1947, Gov.
Alfred Driscoll reminded delegates that theirs was "the opportunity of a century."
Reformers in Alabama must not squander their unique opportunity to look beyond the present and address the future.
G. Alan Tarr is distinguished professor of political science and director of the Center for State Constitutional
Studies at Rutgers University in Camden, N.J.
© Mobile Register
