The Constitution of 1901 permits only two methods for reform: an article by article reform by the Legislature or a rewrite of the whole document by a convention of elected delegates. The focus of this year's study is which method will the League of Women Voters of Alabama support.

CONSENSUS QUESTION

WHICH METHOD OF CONSTITUTIONAL REFORM SHOULD THE LWVAL SUPPORT:

(1) THE LEGISLATIVE APPROACH OF SUBMITTING TO THE VOTERS ONE OR SEVERAL AMENDMENTS, WRITTEN BY THE LEGISLATURE (BUT NOT AN ENTIRE CONSTITUTION), AT A TIME; OR

(2) THE CALLING OF A CONVENTION TO WRITE A NEW CONSTITUTION TO BE SUBMITTED AS A WHOLE TO THE VOTERS?

REWRITING THE CONSTITUTION BY THE LEGISLATURE, ONE ARTICLE AT A TIME

ARGUMENTS IN FAVOR:

1. The legislature is a representative body duly elected by the people. The members are known to their constituents and can be held responsible to them.

2. Legislators have worked with the current document and are aware of its good and bad points, therefore, ought to have special insight into what needs fixing.

3. Because they have been elected, perhaps several times, they should know better than a one-time-elected set of convention delegates what is actually possible to get accepted by the voters.

4. Because the legislative method of reform will take a long time, it allows for due consideration of proposals, rather than precipitous action.

ARGUMENTS AGAINST:

1. Alabamians have a profound suspicion of their state government. They simply do not trust the Legislature to write a document in their best interests.

2. The Legislature is perceived to be unduly influenced by "special interests" - wealthy and powerful groups perceived as financial backers of various influential legislators who are therefore more indebted to these backers than to their constituents.

3. Previous experience has shown that because the process of adoption of new provisions article by article takes a long time, the reform movement is likely to bog down before the job is completed. In Alabama's case this leaves us with a document even more cumbersome that the one we are trying to replace.

4. One of the main features of the 1901 Constitution is that it centers almost all power over towns and counties in the Legislature, i.e., it allows for almost no home rule. People are inclined to ask if it is likely that legislature will write a constitution that would strip them much of their power.

REWRITING THE ENTIRE CONSTITUTION BY A CONVENTION OF DELEGATES ELECTED FOR THAT PURPOSE

ARGUMENTS IN FAVOR:

1. The document could be produced as a coherent entity, since no account would have to be taken of how new procedures would jibe with old ones to be corrected later.

2. The convention would have a limited lifetime in which to get the job done, and would have no distractions such as the regular, necessary business of the Legislature.

3. People with knowledge and concern for good government who would not be willing to run for " political" office or make a four-year commitment to a legislative term would be willing to run for the short-term position of delegate.

4. Delegates could be chosen so as to represent all interests and population groups in the state.

ARGUMENTS AGAINST:

1. How could voters be assured that people running for convention delegate would be any more independent and free of ties to special interests than the legislators we already have?

2. A convention would be very expensive for a state already without sufficient funds to provide essential services such as education and police protection.

3. Legislators would keep on being responsible for what they had done. Convention delegates would do their work and no longer be in a position to be held responsible.

OTHER CONSIDERATIONS

Although the current study is addressed narrowly to a consideration of the method of constitutional reform, it may be useful for Leaguers to review the LWVAL's current positions on topics relevant to the whole question of constitutional reform. It may also be helpful here to mention some arguments against constitutional reform that are appearing in the state press. Letters to the editors of state papers and quotes from persons and groups opposing constitutional reform contain some statements so outrageous that it would seem better to ignore them, were it not for the fact that many people believe them.

There is a way to allay the fears that values and principles perceived to be embodied in the 1901 Constitution will be lost: that is by limiting ahead of time what may not be put on the table for reform. If, for instance, the Preamble, which invokes God's favor, were deemed nonnegotiable, the call for reform could specify that the current preamble be kept as it is. In addition to the claim that God would be left out of the new constitution - are statements that (1) state boundaries would be abolished, (2) gambling would be permitted, (3) gun ownership would be prohibited, and (4) taxes would be raised. Let us look briefly at each these:

(1) The boundaries of the state as stated in the 1901 Constitution are no longer quite accurate because rivers change their courses. If it were deemed necessary to specify the boundaries in the constitution, it could be done so as to take account of naturally occurring changes without requiring periodic amendments.

(2) There is no reason to believe that permission for gambling would be written into the constitution of a state that defeated a lottery by popular vote. Moreover, this is a matter for statutory rather than constitutional law.

(3) No part of a state constitution can cancel a provision of the U.S. Constitution, i.e., the Second Amendment. Gun control, however, is a matter for statutory law.

(4) Taxes, too, should be a matter of statutory law, at both the state and local levels. In a fair tax system, a few Alabamians would pay more, but the undue burden that now falls on the poorest citizens would be mitigated.

The question of taxes is undoubtedly the most inflammatory in the whole discussion of constitutional reform. The facts are these: Alabama has the most regressive and unjust tax system of all the fifty states. Because of the limitations in the 1901 Constitution, especially with respect to home rule, counties and cities must depend heavily on sales taxes, which are regressive. That is, they hit the people with the lowest incomes hardest, especially because food purchases are subject to sales tax.

Income taxes in Alabama are even less fair. A family of four earning as little as $4600 per year pays income tax in Alabama. Furthermore, Alabama's income tax is very gently graded, meaning that the highest incomes are taxed at only a slightly higher rate than the lowest.

Property taxes in Alabama are by far the lowest in the nation. Doubling them would not bring us even with Mississippi, #49 on the list. Montgomery reportedly has the lowest property tax rate of any city in the U. S.

A new constitution should probably say less about taxes than the present one does. What it should do is open the way for thorough tax reform and allow for flexibility and change as needs and conditions change, both at the state and local levels, by leaving specific tax law out of the constitution itself.

Alabama has had a low voter turnout in recent elections. Selling a new constitution, or even getting one written, may depend on that "silent majority" being convinced that a new constitution can provide a more responsive government and potentially better conditions for their lives. Consideration of the method of constitutional reform should take this into account.

CONCLUSION

The founding fathers, which produced the enduring document that is the Constitution of the United States of America, were not working in a vacuum in inexperience. Thirteen states had written constitutions before the Constitutional Convention assembled in Philadelphia in 1786. Some were held up as horrible examples. Others were examined as possible - but different - models.

As Professor Robert Williams of Rutgers University Law School points out, a state constitution is very different in form and purpose from the Federal Constitution. It is always to some extent experimental. It is the supreme law of the state, yet it is always subservient to federal law. Since all powers not specifically defined in the Federal Constitution are reserved to the states, the writers of a state constitution have a great deal of leeway as to what to include.

One complaint about the 1901 Constitution is that it is more like a code of laws than a framework for government. One major decision for whoever writes Alabama's next constitution will be how much law to include. The content of that constitution is beyond the scope of this study, but we must think about what kind of document we want it to be.

CONSTITUTIONAL REFORM: WHERE WE STAND NOW

LEAGUE OF WOMEN VOTERS OF ALABAMA, STATE COUNCIL,

APRIL 29,2000

BACKGROUND

The Alabama Constitution of 1901 is recognized as an anti-democratic document written for the purpose of concentrating virtually all power in the state in the hands of the legislature which could be controlled by white landowners and industrialists. The more egregious discriminatory provisions have been annulled by amendments to the United States Constitution and by Federal laws assuring voting and other civil rights to all citizens. Largely because the 1901 document limited the powers of counties and municipalities so severely, it has accumulated to date more than 660 amendments, most of them required to allow towns and counties to tax themselves for needed local services or otherwise tend to their own affairs. From the start, it was less a framework for government than a restrictive code of law. This year, many other groups, notably local governmental agencies and chambers of commerce, are joining the LWVAL in a call for a new constitution.

The LWVAL studied Constitutional Reform from 1966 to 1970, and was active in its support of reform efforts in the legislature through the early 1970s. Below are summarized the positions adopted in those years. This Council will consider a proposal to reopen this study item for update and to provide a basis for action when the time comes.

CONSENSUS POSITIONS ADOPTED IN 1967

The LWVAL emphatically favors a new Constitution for the State of Alabama. The many objections to the present document may be summed up by:

1. The multitude of amendments with accompanying expense for special elections to approve same;

2. Emphasis on statutory rather than fundamental law;

3. Obsolete unconstitutional aspects.

The majority of Leagues would favor a commission - convention combination for the purpose of reform but would not oppose any vehicle that would truly attempt constitutional reform. (This was not formally adopted position; hence the need to take a position now - 2001.)

The LWVAL feels that the following areas are most critical:

1. Lack of home rule

2. Tax structure (source of revenue, debt limitations, and earmarked funds)

3. Election laws

4. Reapportionment

5. Restrictive provisions in education article

6. Judiciary reform

7. Elected officials and agencies

CONSENSUS POSITIONS ADOPTED IN 1969

The following positions on finance and taxation were adopted, but insufficient information was received from local leagues to warrant the adoption of positions on local government.

1. At each regular session, the governor should submit to the legislature a budget along with appropriation and revenue bills.

2. There should be no constitutionally fixed tax rates.

3. No specific monetary debt ceiling should be stated in the constitution. However, we would favor a constitutionally specified debt limit, which is a percentage of a reasonable measure of the state's wealth.

4. For sound fiscal planning there should be less earmarking of taxes. However, the constitution should neither provide for nor prohibit earmarked taxes.

CONSENSUS POSITIONS ADOPTED IN 1970

LOCAL GOVERNMENT

The state constitution should provide a broad grant of authority to local governing units to enable them to attempt to meet their own local problems independently of the state legislature and/or of the state electorate. It should provide guarantees that the choice of form of local government should be determined by the local electorate and it should promote maximum intergovernmental cooperation in seeking solutions to problems that cross the boundaries of political subdivisions.

LEGISLATIVE AND EXECUTIVE FUNCTIONS

The LWVAL supports the strengthening of the Legislature so that it may more effectively function within the traditional framework of checks and balances among three co-equal branches of government. We recommend that the Legislature meet annually and that the legislators receive an adequate annual salary. We believe that a constitutional mandate for the legislature to select its own leadership is necessary to insure greater independence of the legislative branch and that there should be constitutional guarantees of adequate representation for all citizens.

We support the reorganization of the executive branch to facilitate the administrative duties of the governor and to achieve maximum efficiency and economy. This should include formulation of a comprehensive budget by the executive, subject to legislative approval.

(Note that the positions on legislative and executive functions and a few of what are listed as "critical areas" have been accomplished to a substantial degree.)

In 1979, Governor Fob James appointed a 16-member "working party" composed of civic leaders (Nina Miglionico, long-time Birmingham councilwoman and League member, was chosen for her expertise on home rule) and former legislators to prepare a draft of a new constitution for passage by the legislature. The procedure was essentially the use of a commission of presumably independent experts to write a constitution for the Legislature to adopt and present to the voters as an "amendment", although it would have replaced the old constitution in its entirety. Although it was passed by the legislature in 1983, it never came to a vote of the people, since at the last minute the Alabama Supreme Court ruled, in a narrow interpretation of the 1901 document, that the entire constitution could not presented as a single amendment. While that reform did correct some flaws of the 1901 constitution, it had numerous flaws of its own. The matter was simply allowed to die.

An earlier commission had written what many considered a greatly improved document in the early 1970s. It was to be considered by the Legislature section by section, as the 1901 Constitution provided. The Judicial article, prepared and promoted largely by Supreme Court Justice (later Senator) Howell Heflin, represented a great improvement in the structure and operation of the state judiciary system, although it stopped short of the League's position supporting merit selection of Judges by appointment. This amendment was passed by vote of the people in 1973. After that, the constitutional reform movement bogged down. The rest of the proposals were never considered.

A significant feature of both these past attempts at constitutional reform was the use of a commission of independent experts to prepare a constitution. In both cases, the commissions reported to the Legislature, which tweaked and adjusted their work before presenting it for a popular vote. There is nothing to prevent a commission from reporting to a convention, if that alternative were chosen. The most important argument for using a commission is that it can be a group of experts who are as much as humanly possible beyond the influence of pressure groups and who can take whatever time is needed to produce a well-though-out document.

Florida in 1978 wrote a unique provision into their new constitution. It required that a commission be appointed every twenty years to review the constitution. It also gave the commission the right to present its recommendations directly to the voters for ratification. The first application of this provision came in 1997. The voters rejected most of the items proposed, but the system worked in that the required review was done.