|I have two fears about constitutional reform in Alabama: (1) that there
will not be a new state constitution, and (2) that there will be, but that
it will be one no less expedient and short-sighted than, though in the
opposite direction from, the current constitution, adopted in 1901.
My fear of the second option stems from the constitution that was proposed in 1973 by the 1969 Alabama Constitution Commission. A small portion of what was in it eventually became law, but most of it did not. Still, that proposed constitution contains much of what is likely to be incorporated in a new constitution, given the rationale for creating one, and I would like to comment on those features which I think are more short-sightedly political or expedient than reasonable, and which will cause enduring social and political problems if they are not addressed and remedied.
A statement in the "reasons for revision" section of the 1973 report also sums up the arguments given recently for reform: "... the 1901 document has many inadequacies. The Constitutional Commission proposes a document that is much more appropriate for the times in which we live."
But that is the problem. Times change, and they seem to be changing these days ever faster in many different ways. A state constitution needs to be general enough that it is appropriate not just for the times in which we live, but for all times. This does not mean that amendments to meet totally unanticipated circumstances will never be needed. It means that a form of governance needs to be instituted that can fairly and reasonably deal with all the common kinds of political and communal problems that have arisen for millennia in all societies and that will likely continue to be part of the human social condition. The role of a constitution is not to make particular laws for particular times but to establish as fair and reasonable a form of government and principles of governance as possible with safeguards built in to protect citizens from the potential excesses and follies of government as much as any formal procedures can. Formal rules and procedures are no guarantee of wisdom or decency in government; nor are they an adequate substitute for it. A new state constitution is not going to make our legislature or executives wiser or nobler nor our judges more reasonable. Still, some formal rules and procedures offer more protection from the potential abuses of government and the follies of temporary fashion than others, while still allowing, and even compelling government to address the legitimate needs and concerns of citizens who would otherwise likely be ignored.
And because formal laws and constitutions tend to be abbreviated or terse, an accompanying document needs to spell out as fully and clearly as possible the principles and ideals the laws are intended to mean and to promote. This document should serve as a strong and serious guide to legitimate legislation and judicial interpretation.
There are flaws in the 1973 proposal that need to be guarded against in any new constitution for Alabama. Otherwise we will be changing from one inadequate and unfair constitution to another. Specifically in the current conditions I am afraid we will go from a constitution that makes fair and reasonable taxation too difficult to one that makes unfair and unreasonable taxation too easy. Moreover, there is nothing in the 1973 proposed constitution to foster the hearing and addressing of the needs of political minorities (which may or may not coincide with ethnic, racial, gender, socio-economic, or other kinds of minorities), even when their needs and desires are totally legitimate and worthy of consideration and accommodation.
The common misunderstanding of democracy in America is that the majority rules. But that is not accurate. The Constitution of the United States painstakingly tries to avoid rule by simple majorities. The year 2000 Presidential election, for example, was a vivid reminder that it is not the popular vote that determines the President, but an electoral college vote. The reason for that, whether it works or not, is to prevent more populated areas such as big cities or large states, from dominating the process. A candidate must win not only enough individual votes, but enough different states to be elected. The idea is that there must be broad support, not just narrow, deep support.
Without some sort of distribution safeguards built into any election or voting system, one runs a high risk of always getting the kind of election or voting results a local middle school did in its student elections one year. In a new middle school, the seventh grade outnumbered the sixth grade by a substantial margin. When student council officer elections were held, in the late spring for the following year, seventh graders voted for "their own" and elected all the officers, who would then be eighth graders. So there were no seventh grader officers in student council the following year and seventh graders then were effectively shut out of the process.
A second example is the making of laws. If simple majorities were what were intended to rule, we would need only single-chambered legislatures, and governors and Presidents would not need to sign the bills they passed. But because representatives and senators represent different constituencies, and because the executive represents an even different constituency, their combined acceptance of any legislation always needs greater consensus than what a simple majority might decide. That makes passing laws more difficult but it means that laws which are passed are more likely to be more widely acceptable. That is a stabilizing social factor.
Much, though not enough, of what is in the Constitution of the United States is meant to insure broad support for laws, not the tyranny of a simple majority. The object in creating a new state constitution should be to write one that is at least as good and enduring as the U.S. Constitution, if not better.
There are flaws in many legislative processes, flaws which it would
be good to prevent in any new constitution, if feasible. The essential
features are to create a process that allows political minorities to have
a voice that is effectively heard and heeded, and that also requires a
reasonable amount of broad consensus and support to pass laws (so that
51% of the public cannot tyrannize the other 49% on any or every issue),
but that is not so restrictive that just a few people can block all change
or any law from being passed. Constitutions need to set up a form
of government that gives the government (at all levels) power to do
One of the easiest ways to judge whether a constitution is fair and
just, and not just effective is to think of how it might effect you if
you were, as Jesus said, one of "the least of these" -- though I do not
mean it in the economic or social sense, but in a political sense.
Suppose that you were either a philosophical, ethnic, racial, or political
minority, as you might well be some day if you are not already. Is
whatever constitution that is under consideration one which you would then
feel comfortable and protected from the majority who "run" the government.
To formalize this principle a constitution or legislature might have rules
that require at least 25% of the representatives of the groups most disadvantaged
by a law to vote for it, as well as its also
But it is not enough to have a constitution that makes it more difficult to pass bad or unfair laws. There also needs to be a formal procedure that attempt to insure that the needs and actual (not just initially expressed) desires of the representatives of small proportions of the citizenry will be adequately addressed and reasonably accommodated. If, say, 20% of people in the state have a problem, it will be addressed sincerely and honestly instead of just being ignored. In some cases even the needs of individual citizens with peculiar circumstances need to have an avenue for accommodation.
As to the Specifics of the 1973 Proposal:
2) Section 3.02 elects senators and representatives at the same time for terms of the same duration. That makes it more likely for temporary fashionable issues or passions to control the legislature. It would be better for at least some senators to have terms either of different duration or to be elected at different times from representatives.
3) Section 4.01 fixes the number of senators and the number of representatives,
regardless of the size and distribution of the population of the state.
If the size of districts is too large, it diminishes potential minority
representation. For example, if there are 5000 members of a political
group, then in a district up to the size of 9,999 gives them the likely
opportunity to elect a representative, but if districts are much larger
than 10,000 citizens, then the 5000 members of this community will not
likely have any representation. This essentially silences those whose
views will always be in a minority in their district, even if they are
a substantial proportion of people in the state. This is not just
about race, gender, or ethnicity, but involves any political or
Once representatives from such political minorities are elected, then there needs to be a mechanism, and the good will, in the legislature to foster the serious consideration of the needs and desires of the people they represent. But before that problem can be faced, it is imperative that there be such representatives in the legislature to begin with.
4) Section 5.06c allows a simple majority in both houses to override
a governor's veto. Hence, the governor's veto of any bill does not
have much power, since it only took a simple majority in each chamber to
send the bill to the governor in the first place. This effectively
reduces or eliminates the governor's constituency, which is theoretically
the population of the state as a whole (district), from power, since the
governor (and lieutenant governor) positions are the only ones elected
at large in the state. If a two-thirds majority were required in
each house to override a gubernatorial veto, it would mean that a greater
consensus is required to pass a bill that the governor, as representative
of everyone collectively, thinks is unfair or
Taxation Safeguards Against Exploitation by Simple Majorities
6) Section 8.07 puts a specific limitation on state ad valorem taxes that can be levied in one year. It seems rather specific, instead of being principle-based. I would think some sort of principle would be better than specifying a fixed amount in the state constitution would be better. I do not know how this number was chosen or whether it is a reasonable choice. It just seems arbitrary though.
7) Section 8.08 classifies property into three categories for which a rationale or guiding principle is not apparent. It is likely that the guiding principle has to do with the current likelihood of the property's generating income revenue for the owners, but if so, the principle should be spelled out in detail, and that principle should serve as the basis for classification. Obviously the principle should be reasonable and fair, not just convenient or expedient.
While property taxes tend to be a fairly stable form of revenue for a government, they are sometimes onerous for specific property owners who may fall on hard times or who may not have sufficient income at some point in their life to be able to keep property though they have already paid for that property. Property taxes and estate or death taxes are forms of "double taxation" in that they are charged on values that have already been previously taxed in those cases where income tax was paid on earnings and sales or licensing taxes were paid on products or services, when they were initially acquired. In the case of property taxes, there may be a rationale under certain circumstances that justifies levying an annual tax on owned property, but just owning property in itself should not automatically be a reason for having to pay tax on it every year. There need to be fair and reasonable principles, limitations, and safeguards governing the levying of property and estate taxes, so that governments will not put an unfair and unreasonable burden on people who may have been able to afford property when they purchased it, but who may not be able to afford the increased taxes on it long after their purchase -- especially when the property is not income-producing.
8) Section 8.09 There should be a more guiding general principle for exemption from ad valorem property tax than just specifically designating "property devoted exclusively to religious, educational or charitable purposes". I presume the guiding principle will be some sort of non-profit organizations that promote the public good in some way. That needs to be spelled out in the constitution, and explained and justified outside of it in an accompanying document.
9) Section 8.10 on taxation provides insufficient safeguards against taxation imposed by a simple majority. Suppose 40% of a community were relatively much more affluent than the rest. The 60% could easily pass a tax law that would be unfair to them. Taxation has become in America something that a majority imposes on a citizenry, rather than what a citizenry voluntarily decides to pay for government services. One way to reverse that would be to require some minimal acceptance by those most impacted by a law so that, say 25% of those most effected or disadvantageously impacted by a law (or 25% of their representatives) had to vote for the law, as well as a majority of 50+% overall voting for it. (This is one of the reasons it would be important to have as fair and reasonable district representation for everyone as possible.)
Another, or additional, way to provide fairer taxation would be to make a distinction between necessities, conveniences, and luxuries, and put different restrictions on amounts or proportions of taxes that may be levied on each category.
There are a number of potential ways to make tax legislation have to be more fair, reasonable, and acceptable to pass. These are all things that need to be explored if a new constitution is likely to be adopted and to endure.
Other important separate problems with the proposed 1973 constitution:
11) Section 7.02 would disqualify the right to vote based on convicted of a felony involving "moral turpitude". It is not clear why moral turpitude is singled out for this additional punishment. It needs to be shown (though not in the constitution itself) that there is good reason for disenfranchising those, and only those, felons who have convicted of crimes of moral turpitude.
Miscellaneous problems, or potentially flawed wording in the parts
12) Section 1.01 should be about all "people", not just all "men".
13) Section 1.09 says "... no person shall be convicted of treason, except on the testimony of two witnesses... or his own confession in open court" and I would presume that means "without" the testimony of two witnesses, since one should not be convicted solely on the testimony of two witnesses.
14) 3.11f is misstated. It says "no change in salary, expense allowance or other compensation shall apply to any legislator during the term for which he was elected" but it means, I presume, "during the term in which the change is made."