Roll, Tide

by Cliopatria

When the new Congress first meets this coming January, the eleven states of the Old Confederacy plus the politically similar stated of Oklahoma and Kentucky will seat 22 Republican senators and 4 Democrats (Blanche Lincoln, Mary Landrieu, David Pryor, and Bill Nelson). Lest anyone forget the significance of race in this new Southern Republican majority, the Sunday morning Washington Post features an article on the defeat earlier this month of a proposed amendment to the Alabama state constitution, which would have nullified segregation-era wording requiring separate schools for"white and colored children" and removed a passage inserted after the Brown decision holding that Alabama's constitution does not guarantee a right to a public education. This, of course, was the era of massive resistance, when states such as Virginia abolished all public schools to prevent federally mandated desegregation.

The proposed amendment drew strong opposition from the Alabama Christian Coalition, which argued that restoring a guarantee to a public education would allow"rogue" federal judges to force equal funding for the state’s school districts."Activists on the bench know no bounds," the head of the state Christian Coalition remarked."It's a trial lawyer's dream." Though most lawyers in the state ridiculed this argument, the Christian Coalition received backing from former chief justice Roy Moore—of the Ten Commandments monument fame—and prevailed by just over 1800 votes.

Although the amendment received little national attention during the campaign, the defeat was not altogether unexpected: in 2000, 40% of Alabama voters opposed a constitutional amendment to eliminate the section of the state constitution that had barred interracial marriage, even though this provision had been made unenforceable by the 1967 Loving decision.

It turns out that Alabama's constitution, a Jim Crow document initially promulgated in 1901, is the world’s longest constitution. Its 287 sections have been modified by 745 amendments, producing a total of more than 310,000 words. As some of its provisions are known locally as"the loony laws,” I decided to take a look. The nickname is well-deserved.

The document certainly is massive. Twenty-eight amendments deal with phase-outs of county retirement programs; another 28 amend previously passed amendments. Because the constitution severely limits the power to tax, it has been amended 97—that’s not a typo—times to create special taxes (my favorite was amendment 329, which established a special tax for a special school district). Amendments also have been required to raise city and state debt limits; to allow cities and towns to establish and maintain drainage or garbage systems; and to allow cities and counties to impose taxes for fire departments (46 such amendments have been passed). Sixteen amendments allow nonprofit organizations in individual cities or counties to host bingo games, provided that no one under the age of 19 assists in any way with the bingo, and no one under the age of 18 attends the affair. (It wasn’t clear why 18-year-olds could attend but not assist.)

Some of the amendments are simply bizarre: Amendment 460 provides that “any municipality that was not located wholly or in part within the boundaries of St. Clair County [which boasts that it is older than the state of Alabama] prior to January 1, 1985, shall not annex any territory within St. Clair county without the approval of the electorate of St. Clair county expressed in a vote on the issue of said annexation.”

A few more amendments reflect the state’s current political climate: Amendment 509 establishes English as Alabama’s official language and prohibits the legislature from making any law"which diminishes or ignores the role of English as the common language of the state of Alabama," while Amendment 597, the"Sportsperson's Bill of Rights,” holds that “all persons shall have the right to hunt and fish in this state in accordance with law and regulations.”

The body of the Constitution itself has its share of peculiar provisions. Section 192 states that “electors shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at elections, or while going to or returning therefrom,” providing a good defense against an Election Day speeding ticket. Section 191, which remains unamended, deems it “the duty of the legislature to pass adequate laws giving protection against the evils arising from the use of intoxicating liquors at all elections.” And Section 86 requires the legislature to “pass such penal laws as it may deem expedient to suppress the evil practice of dueling.”

The old saying is that bad cases make bad law. Perhaps in Alabama’s case, a bad constitution makes for bad debates over amendments. In any event, proponents of the amendment to eliminate the references to segregated schools promise to be back the next election.

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Carl Patrick Burkart - 11/29/2004

Actually, it's quite difficult to annex areas in Alabama. Witness the failed attempted to enlarge the boundaries of Birmingham in the early 1970s. There was a pretty good article about this topic a couple of years ago in the Journal of Urban History. See C. E. Connerly "One Great City" or Colonial Economy? Explaining Birmingham's Annexation Struggles, 1945-1990," Journal of Urban History, Nov 1999 v26 i1 p44(30).

Richard Henry Morgan - 11/29/2004

Actually, I've long favored equal funding. But I don't think that local control is inconsistent with high or equal funding. An example of the independence of income and wealth from funding is the community of Cold Spring Harbor, which taxes itself for education at a rate much higher than its richer neighbors, mainly, I suppose, because of the presence of highly educated scientists at the national laboratory there.

One of the unfortunate effects of equal funding might very well be the withdrawal of funding from places like Washington, DC, which is near the top of the list in public school funding, at nearly $13,000 per pupil. As for the most recalcitrant of liberals, you'll find that (like many conservatives) they talk one game when the issue won't come to pass, and another when it does. I was in grad school when John Irving was one of those liberals who thought it made sense to tour the campuses of the US and inform students there that anyone who voted for Ronald Reagan was an idiot. When, after the Brigham decision, Vermont passed Act 60, Irving led the charge, calling equal funding communism run amok. Most people don't, in fact, support equality at the starting gate -- in fact they devote much of their labor to guaranteeing an unequal chance for their offspring.

Unequal funding might be one way to guarantee inequality. It hardly follows that equal funding would end inequality. Yet, it seems to me, that if the government compells education, it should (morally) fund it equally. That, as some people fail to realize, is a long way from saying that the various state constitutions require equal funding. And that was my point. Whatever the moral case for equal funding, that is not a legal argument (a fact too many judges and laypeople alike ignore).

Ralph E. Luker - 11/29/2004

Richard, I am sorry to see that you are suspicious of equal funding of public schools. Unequal funding is one way to guarantee inequality at the starting gate. Even the most recalcitrant of American liberals (I use the word in the sense that virtually all Americans are liberals) favor the equality of the starting gate. Given the impoverished support for public schools in Alabama, generally, you really are making the case for wretched conditions in its poorer school districts.

Jeff Vanke - 11/29/2004

Amendment 460 does not so much look bizarre as it offers another example of requiring amendments to revise the power of the rest of the constitution, on a subject better served outside the constitution. I presume that some part of that constitution allows municipalities to annex (and tax) neighboring areas without consent; we have such a provision in North Carolina law. Amendment 460 sounds like a political compromise to thwart one instance of unwanted annexation, without overturning the law statewide.

Russell Arben Fox - 11/29/2004

Robert, thanks for the heads up to Sunday's WP article; I would have missed it otherwise. My take is basically the same as Ralph's; the saddest thing about this vote, as far as I'm concerned, is that it demonstrates once again that, figures like Gov. Riley excepted, the egalitarian language of Christianity has been mostly overwhelmed throughout much of the South (particularly the Deep South) by an almost theocratic, NIMBY libertarianism. As someone who believes and hopes progressivism could gain some electoral strength by drawing upon certain social conservatives perspectives, the rejection of the amendment, and especially the arguments made by many who opposed it, was very depressing.

(You might want to see my post about it, which Crooked Timber linked to.)

Richard Henry Morgan - 11/29/2004

I think you're referring to Amendment 582. The people are less than sanguine about Amendment 582 because the Alabama Supreme Court had let stand a Circuit Court decision (Harper v. Hunt) that ignored Amendment 111, and stitched together a right to equal funding from an Alabama constitutional provision for a liberal system of schools, combined with other provisions stitched together to present a sow's ear version of the equal protection clause. The people of Alabama are obviously and justifiably suspicious of the Alabama's judical system's resort to judicial fiat.

David T. Beito - 11/29/2004

Perhaps....but Alabama voters are quite skitish about any hint of higher taxes. They elected a "no new taxes" governor in 2002 who promptly turned around and tried (but failed) to push through a large tax increase. When it came up for a vote, 70 percent of the voters said no. Drafters of the amendment should have been more conscious of that fact.

Carl Patrick Burkart - 11/29/2004

If I recall correctly, an amendment was passed in the 1990s making it impossible for courts to require taxes to be raised for any purposes. In fact, I think that it was passed in response to a school equity case. Therefor, it seems pretty unlikely, if not constitutionally impossible, for a judge to rule that taxes must be raised to provide poor children in the black belt with a decent education--at least not based on Amendment 2.

Richard Henry Morgan - 11/29/2004

People laugh at Alabama, but the cases of New Jersey and Vermont are instructive. In New Jersey, the State Supreme Court (Mt. Laurel decision) did its usual expansive reading of the state constitution, and found that a guarantee of education by the state entailed equal funding (who knew?). So too in Vermont, with the Brigham decision. The people of Alabama, unfortunately, have a point.

David T. Beito - 11/29/2004

The proponents of the Amendment blew it by failing to limit the scope of the amendment to eliminate the segregationist references. Even the folks for the Christian Coalition stated that no reputable person supports that language anymore. The proponents have no one to blame but themselves. Hopefully, they will do a better drafting job next time and it will pass easily.

Robert KC Johnson - 11/29/2004

Indeed, Riley has proven to be a fascinating governor--his call for revising the tax code from a Christian justification, though unsuccessful, was fascinating. It seems like there is a wing in the AB Republican Party that adopts this approach--another evangelical GOP officeholder in the state was longtime representative John Buchanan (1964-1980. Buchanan, elected as a Goldwater Republican, was also an ordained minister, and supported a variety of anti-poverty programs throughout his tenure in Congress. In 1980, he was ousted in the GOP primary by a challenger who branded him as too liberal, which he was, by that time, for the AB Republican Party. He later became executive director of People for the American Way.

Ralph E. Luker - 11/29/2004

KC, I've blogged about how benighted Alabama is -- it is so bad that I recall having threatened an invasion from Cliopatria/Georgia to seize control of Liberty & Power/Alabama and establish truth and justice in that dark land. I think that what you've said here is correct and it is downright pitiful. One cautionary note, however, Governor Bob Riley is both a Republican and an evangelical. The usual stereotypes to the contrary notwithstanding, however, he has been a force for good in the state. He fought for the amendments to which you refer. He fought for a revision of the tax code. He has lost some battles in righteous causes. The state obviously needs a new, minimalist constitution, but it isn't clear that there are enough reasonable voters over there to guarantee the new document wouldn't be worse than the current one. They really might write a theocratic constitution. One thing you and I should do is to go over to Liberty & Power and straighten out our libertarian friend, David Beito, who should have been more supportive of Governor Riley's program than he has been.