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Reforming Alabama's 1901 Constitution
Rick Garlikov

The Birmingham News, and many other newspapers in Alabama, have persistently argued for a constitutional convention to be called to replace the "outdated" 1901 state of Alabama constitution with one more conducive to solving contemporary problems. They should do more than that, or we will likely end up merely with a different constitution that is equally bad.

First, it is important to understand constitutions should be about the form of government -- how government is supposed to be constituted-- not the content of its "normal" laws. They should be first-order principles for making, administering, and adjudicating what might be called "ordinary" or second-order laws. Constitutions should not include, nor be, the code of ordinary laws that the government creates and administrates. Constitutions should not be established for solving contemporary problems but for addressing the overriding and eternal issue of how a society should best govern itself. They should describe the procedures and protections that are most likely to yield the fairest and most beneficial laws, and they should establish a system for administering and adjudicating those laws in the most beneficial and just ways. They should also include rules for their own amending process. But because they should be about fundamental principles of justice and fairness, constitutions ought to be more permanent, if they are written well, than are ordinary laws which often must take into account temporary circumstances and phenomenon whose emergence and departure are often difficult to anticipate.

The 1901 Alabama constitution is not flawed because it is old; it is flawed because it was bad to begin with. It is flawed because it contained both unfair general procedures and also second-order, ordinary laws in reaction to conditions of the time. Replacing it with a constitution written in reaction to the conditions of our time may provide temporary respite, but not a remedy. It may not even be a fair or just respite. Eliminating only the current symptoms caused by the 1901 constitution will not likely cure the ailment from which it suffers. What we need is a document that establishes the best and fairest form of government, not one that merely addresses some particular issues that now press upon us.

In a representative democracy, the main challenge for a constitution is to protect people from the tyranny of the majority and from the abuses or misapplication of power of governing officials, while facilitating needed legislation and a court system that justly adjudicates disputes, interprets laws where necessary, and decides penalties and remedies when laws have been broken or people treated unfairly and unjustly. Unfortunately, in modern America, we seem to be obsessed instead with "who" gets to makes laws and with a mistaken concept of democracy as being rule by simple majorities that emerge as everyone seeks to satisfy his or her own self-interests. The U.S. Constitution, however, is clearly not set up to provide or promote simplistic majority rule or the mere satisfaction of majority interests because that would make us vulnerable to tyranny by majority, a tyranny we do not today sufficiently contemplate or fear in the way our founding fathers did, though they were successful only in partially preventing it. It would help you appreciate the need for protections against majority tyranny if you are, or imagine yourself to be, a part of a permanent minority, whether by race, class, social philosophy or any other important characteristic. If you are not one already, you may very well someday be. 

We are also mistakenly wedded to the view that each person's trying to secure what is in his or her own individual or group self-interest will redound to the collective benefit of all. Enron executives, HMO's, tobacco companies, Firestone, Ford, A.H. Robins Co. (Dalkon Shield), and Dow's silicone breast implant division, along with hundreds of other companies, should be the poster children to put an end to that idea. Or watch sibling rivals awhile or a basketball team made up of egotistical ball hogs. Or watch politicians at work trying to do whatever is most expedient to get them elected or keep them in office.

If the authors of the U.S. Constitution wanted simple majority rule, they would have established one legislative body, not two chambers of Congress and a President with veto power. There are 100 Senators, 435 Representatives, and 1 President. If majority rule were the guiding principle, we would only need any 269 of these people to pass laws. But what is needed instead is a majority of Senators, a majority of Representatives, and then either the concurrence of the President or even larger majorities of Senators and Representatives. Without going into the details here, that means theoretically that different constituencies must be accommodated in order to secure the right kind of majority. Theoretically there must be broadness of acceptance of legislation, not just a block of votes from one social group that can dominate through sheer numbers.

Unfortunately in practice, some of the techniques among lawmakers that subvert the notion of successful legislation's needing and reflecting the development of a consensus among a wide range of constituencies are logrolling, pork barrels, and other forms of mutual political back scratching, so that representatives will pass legislation that makes them popular and secure in their individual districts while harming the state as a whole. A consensus among lawmakers should reflect a consensus among their constituents, not a consensus among themselves about what is to their own political and personal benefit. That is one of the practices I believe a new constitution should seek to prevent -- practices of political horse trading for projects of narrow, questionable benefit which are unfair to taxpayers as a whole. Citizens need to understand that the individual district benefits they may gain from pork cost them far more than they realize, and that there is no such thing as either a free lunch or free love. Otherwise it will continue to be the case that, as one bumper sticker so aptly puts it: "Taxation with representation is not so hot either." 

I would argue that who makes law, whether we are talking about constitutional law or ordinary law, is only of secondary importance -- what is of primary importance is whether laws are right or wrong, good or bad, reasonable or unreasonable, fair or unfair, just or unjust. It is a mistake to presume that good laws will be promulgated simply by a majority's following its own self-interest. There are three kinds of self-interest and only two of them are good. Those two are self-interest that also complies with the interests of others -- as when people freely trade goods with each other or help each other out in order to do what neither could do alone -- and self-interest that has nothing to do with affecting others either way, as when you have done all your work and can take a well-earned vacation or lie in bed to read a good book. The kind of self-interest which is bad is that which greedily is at the unfair expense of others. 

Who makes law is only of importance because narrow groups, either through greedy self-interest or through lack of collective wisdom and expertise, tend to make laws that are not the wisest, the fairest, nor in the best individual interests of the members of the community they are meant to govern. But even broad groups do not necessarily make good laws, especially when passions are inflamed over a temporarily fashionable cause. What you want is laws that are wise and fair and that reasonably take into account everyone's interests as much as possible. A well-designed constitution is the formal mechanism for creating such laws. And it must prevent not only majority tyranny at the state level, but majority tyranny at the county and local levels too. What many people are concerned about today is that local districts or governments might be able to increase taxes, for example, by simple majority votes that ignore the needs and interests of citizens unable to afford those taxes or unable to benefit from them. A state constitution ought to be not just about passing state and local laws, but about passing state and local laws in ways that protect the rights and interests of all citizens. While raising adequate funds for education is one of the primary problems of the 1901 constitution, most people do not want to see it replaced by a constitution that makes it easy to ramrod taxes down the throats of 49% of the people. There must be some sort of mechanism that ensures any taxation or other revenue generation is fair in ways other than just fulfilling the desires of a majority. There are ways to raise "voluntary" taxes. And there are ways to raise taxes that are far more fair than many of our current state taxes.

But those who seek a new constitution need to answer the very reasonable charge they want a new constitution in order to raise taxes, because two of the primary reasons given for convening a constitutional convention are to make it possible for local school boards and local governments to have the control they need to increase their funding and provide programs they wish. That most certainly sounds like a call for a constitution that will make tax increases more likely. To answer that charge, some proponents of a new constitution say that new, fairer tax laws could actually decrease the tax of many or most people, by increasing the number of taxpayers or by decreasing or eliminating many tax exemptions and deductions for others. If that is the case, they should be able to show what such laws would be and what the consequences of them would be for various income brackets of people and for the income and finances of the state. They should also point out why a new constitution will make this feasible in a way that simply changing tax laws now will not. But it is disingenuous to argue for a new constitution to more easily allow for schools to raise additional tax revenue and then chide people for fearing a constitutional convention that will make their taxes increase unreasonably and unfairly beyond their means.

As to the tyranny of the majority, let me give one simple example. In the first year of its existence one local middle school had far more eighth graders than seventh graders. During student council officer elections, since each grade level tended to vote for its own, the eighth grade won all the officer positions and the seventh grade was effectively shut out. The seventh graders felt this was unfair, but since they had a flawed notion of democracy as being only simple majority rule, they did not protest as much as they simply grumbled and acquiesced. But I believe their grumbles were justified. There should have been a mechanism in place whereby either some offices had to go to seventh graders, or whereby officers had to have not only a majority of the total vote, but also at least, say, 25% of each of the grade levels voting. The idea would be to have a well-distributed majority, not rule by a narrow, but numerous, clique or block.

So far the Birmingham News, and other influential state newspapers, have argued long and hard for a new Alabama constitution and a constitutional convention so that "the people" will be able to write it. That is not sufficient. These newspapers can and should do something far more important, because otherwise "the people" will not be who write the constitution. It will be a relatively small number of people who are elected as delegates to the convention. And there is no reason to believe these delegates, one elected from each district, will be familiar with the important fundamental principles of justice, fairness, and reasonableness (many known in the 18th century) that need to be built into a governing document, if nothing is done to raise their consciousness or the consciousness of the general public about what constitutes good and fair laws and the kind of mechanism needed to create them while preventing the creation of bad and of unjust laws. The 1973 draft of a constitution by the 1969 Alabama Constitution Commission does not reflect knowledge of such fundamental principles. There is no reason to believe we would fare better today.

The state's newspapers need to conduct a public discussion about what ought to be incorporated in the new constitution, so that if and when a convention is called, delegates will have a mandate from the people what to include -- a mandate forged by considered analysis and our collective wisdom, not just fashioned by our collective delegates, even if they think they have our best interests at heart. Their concern for our best interests should be a complement to their wisdom and knowledge, not a substitute for it.

But that is not going to happen if Alabama newspapers will not, as they have indicated they will not, encourage or allow reasonable debate to be printed in them about what the principles and articles of a new constitution ought to be before a convention is called or convened. As long as they simply argue that the old constitution does not work, they are doing nothing to foster the creation of one that will. They are only fostering the creation of a new replacement that will likely also not work. 

There is a way for newspapers to accomplish this. A prototype was established by newspapers in 1787 and 1788 which should be emulated with some modification, especially increasing the number, without diminishing the quality, of contributing authors, and doing this prior to the writing of a document rather than subsequent to it. The Federalist, commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. The essays were published in various New York state newspapers of the time and reprinted in other newspapers in several cities in other states. The essays explain particular provisions of the Constitution in detail and are often used today to help interpret the intentions of those drafting the Constitution. 

Our newspapers should do no less. They should solicit and print reasonable proposals and their rationales for what ought to be included in a new state constitution, and print responses and rebuttals, as long as is reasonable so that we all have a chance to contribute and to see the value of what is being discussed. In this way, we, the people of the State of Alabama, stand the best opportunity of designing and clearly interpreting and explaining for future judges and generations the best and most acceptable constitution and form of government that can be created by all of us together. And it would demonstrate to the rest of the country and to the world that we are not the unreflective backwater of social and cultural ignorance and insensitivity we are typically depicted to be, though not without ample example from within our midst and that of some of our leadership.

When I first wrote this article, it would have required newspapers to do this in print, which would have been expensive and needed much labor; there were not the mechanisms now in place to easily, inexpensively, and efficiently permit and facilitate Internet discussions.  With the advent of those mechanisms, there is now no reason against newspapers' having, on their websites, the kind of information and public discussions explained above.

This work is available here free, so that those who cannot afford it can still have access to it, and so that no one has to pay before they read something that might not be what they really are seeking.  But if you find it meaningful and helpful and would like to contribute whatever easily affordable amount you feel it is worth, please do do.  I will appreciate it. The button to the right will take you to PayPal where you can make any size donation (of 25 cents or more) you wish, using either your PayPal account or a credit card without a PayPal account.