Alabama's constitution over the years:

How we got to where we are and where do we go from here

By Dr. Hardy Jackson
JSU Professor of History

Reprinted from the Sept. 24, 2000 Anniston Star

The time has come for us to give credit where credit is due, for us to acknowledge a group of visionaries who marked the path for us to follow. So let us raise a toast to our Founding Fathers, the authors of Alabama's constitution. They made us what we are today. A notch or two above Mississippi.

It all began back in 1901, when a group of propertied, politically powerful men met in Montgomery to design a government under which blacks and poor whites would be excluded for the political process and all important decisions would be made at the state level - their distrust of local government being second only to their distrust of popular democracy. They planned to set the system so that they, the authors (or people like them), would make those decisions, the most important of which would involve keeping taxes low and social services (including education) minimal.

They succeeded beyond anyone's wildest expectations. It took the Civil Rights movement and a host of Supreme Court cases to undo most of the restrictions that kept minorities and the poor out of politics. As for the creators' other accomplishments, even today they remain largely intact.

Now it is not like some citizens of this state haven't tried to change things, they have. But Alabama's Founding Fathers were clever enough to require a constitutional amendment for even the most insignificant innovations, minor matters that most states accomplish through legislation. And since our legislature has always included a large block of conservatives who think our constitution is just fine as it is, amendments that fundamentally alter the way we are governed have not come easily.

Still, some folks have tried.

Almost as soon as the Constitution was ratified, some Alabamians realized the straight jacket into which the document had put the state and demanded changes. In less than a decade constitutional restrictions on use of state money for public roads were eased, limitations on funding for schools were modified, and Alabama got its first "local" amendment - which allowed Jefferson County to regulate its own court costs. (Today, nearly 300 of our 664 amendments are "local" and of these, over 100 regulate court costs.)

Despite these alterations, the principle provisions of the document - white supremacy, low taxes, minimal social services, and centralized government - remained firmly in place.

But why shouldn't they. With most of the opposition disenfranchised and the establishment solidly behind the system, dissenters were little more than a nuisance, and not much of one at that. North Alabama industrial interests and Black Belt planters ran the state and kept their constitution intact. During its first two decades it was amended only nine times.

But change was in the wind. During the second decade of the century a group of progressive politicians began to make their presence known. Stung by critics of the South in general, and Alabama in particular, they began looking for ways to improve the image of a state whose principle characteristics seem to include provincialism and pellagra.

It was one of our early "business governors," Charles Henderson, who nudged Alabama toward its first 20th century reform initiative. In 1917 he requested that the Russell Sage Foundation of New York conduct a survey of the state and offer suggestions for improvement. What came back was a report that detailed "a grim landscape of neglect and inequity," a dismal record in education and health care, and a penal system that was downright medieval. All of this was made possible, the report noted, by an inadequate and unfair tax structure, which did not provide the resources necessary to improve the quality of life for the poor and the powerless.

But recall please that neglect and inequity, inadequacy and unfairness, were just what the Constitution of 1901 was all about. So in a way the Sage Report actually confirmed the competence of our constitution's creators and underscored how successfully the torch had been passed to the next generation.

What is significant, however, is that in the years that followed, two Alabama Governors, Thomas Kilby and Bibb Graves, set out to address the issues raised by the report, and did a remarkable job of it.

Under these governors Alabama's tax base was broadened, somewhat; funding for social services was increased, a little; and penal reform was pushed through the legislature, finally. Looking back, some pundits have suggested that it was during this era, 1920 to 1929, that Alabama got its first and last "New South" governors.

But the Kilby and Graves didn't mess with the constitution unless they had to. Instead they worked with and through the legislature to get things done, which is why they accomplished no more than they did. Under the constitution the legislature could do only so much, and conservatives in the House and Senate were determined it would do even less. So it should come as no surprise that during the '20s only thirteen amendments were added. Nor should one be shocked to discover that seven of the thirteen dealt with funding road construction, since roads were a priority with conservative businessmen.

Then the bottom fell out of the economy, and Alabama found itself mired in the Great Depression. Unfortunately, the constitution prevented a swift response to the crisis, and for a while it seemed the state was heading for bankruptcy. A conservative opposed amendment allowing an income tax was finally approved, which eased the burden on the state treasury. But other "progressive" amendments failed. What did pass dealt with local issues -- like malaria control in Limestone County. The Founding Fathers must have been happy.

Finding that the state neither could nor would do much for the majority of its citizens, desperate Alabamians looked to the Federal government for help. When Washington came through, constitutional revision was no longer a priority. Which suited the constitution's conservative supporters just fine.

So Alabama emerged from Depression and then from World War II with a constitution that had been amended just 51 times - not bad for a document that was over forty years old. But postwar Alabama was a different state from what it had been. Back during the Depression, when the state treasury was empty, people were more concerned with recovery than reform. But postwar prosperity raised expectations, which Alabamians believed state and local government would help them fulfill. If New Deal social and economic programs did nothing else, they showed people that the government could act on behalf of common folk, if common folk would only insist on it. After World War II, Alabamians began insisting. And when they discovered what they wanted was prohibited by the constitution, they did something about it. Judging from the amendments proposed between 1945 and 1960, health care and education, about which the constitution's authors cared little, were now high on Alabamians list of priorities. Forty-six of the 105 amendments ratified during that period dealt with those issues in some way, and each of them required a statewide vote on what was usually a local matter. County and city economic development and changes in local taxation also required interested groups to go through the cumbersome amending process, and they were none too happy about it. Even white supremacist grumbled at what they had to do to amend the document to strengthen its already repressive voter qualifications.

All this considered, it is hardly surprising that during the period some politicians began to talk about changing the constitution, giving more power to local government, and maybe even revising the tax structure to relieve the burden it placed on the poor. Again, conservative interests stood ready to oppose alterations, but they did not have to. In the 1950s civil rights moved to center stage and constitutional revision once again took a back seat.

With reform sidetracked, and amendments came as they always had - locally focused, economically oriented, and (in the eyes of voters) increasingly trivial. The most significant changes in the constitution came without amendments - for as the Supreme Court heard and decided civil rights and voting rights cases, whole sections of Alabama's fundamental law were declared unconstitutional. In the years between 1945 and 1970, over 250 more amendments were tacked on the document, and Alabama was well on its way to the record it holds today.

But understand, few of these amendments significantly altered our system of government or reformed its more inequitable features. Quite to the contrary, in the next decade the constitution was actually amended to enhance inequity and make government even less responsive to the people's needs. In 1978, citizens ratified Amendment 373, which required that property would be assessed and taxed "at current use value and not market value." According to critics, this provision has deprived the state of much needed funds, while allowing agribusiness and other landed interests to pay less than their fair share of the cost of government. To make matters more difficult for budget makers, as the years went by, more and more tax revenue was "earmarked" for specific agencies, which took from the legislature the flexibility to allocate funds where the need is greatest. According to many who have evaluated Alabama's financial situation, these two issues -- current use and earmarking -- are our biggest obstacles to real reform in this state.

Others, however, claim that more than anything else, this state needs to give the legislature more authority to legislate, and local government more authority to govern. Take away amendments that apply to specific towns, cities, and counties, and the size of the document would be reduced by half. Remove those alterations that would not have been needed if our legislature could make laws rather propose amendments and you can reduce the size by roughly half again.

Since 1901, our constitution has demanded that we micro-manage the state. Its restrictions have forced government to squander time and resources. Its limitations have frustrates the good politicians without really hindering the bad. Consider the irony, some would say the hypocrisy of the situation. Here we are, a state whose leaders have historically bemoaned waste and inefficiency, and yet we resolutely refused to change a constitution that make us both.

But there are signs that finally we are getting the message. In the last decade the legislature has actually proposed amendments that allow county commissioners make local decision which, in the past, legislators felt they had to make themselves. More importantly, legislators seem to be tiring of having to propose such amendments in the first place. Why, many are asking, can't we use state time for state matters and let local government handle local affairs. When recently polled, a majority of our legislators felt that constitutional revision was needed. When asked which areas needed attention, allowing more home rule was near the top of the list.

The time has come. Time to write a new constitution for the new century, a constitution that allows those we chose to govern to actually govern us; a constitution that liberates rather than restricts. Too long we have been willing to be a reflection of that state created in 1901. We need a constitution that points us to the future rather than ties us to the past.

It's time to get on with it.