Amendments would take obsolete elements out of the Alabama Constitution
by Tim Lockette
Oct 21, 2012 | 4657 views |  0 comments | 17 17 recommendations | email to a friend | print
MONTGOMERY — The Alabama Constitution takes a hard line on telegraph company mergers. It bans railroads from giving free train tickets to legislators. It allows banks to issue their own money — and demands that money be backed by gold or silver.

Rep. Paul DeMarco, R-Homewood, wants to bring that document up to date.

“The way we regulate business has changed a lot in the last hundred years,” he said. “We need to catch up.”

DeMarco is a member of the state’s Constitutional Revision Commission, a panel set up by the Legislature to review and, piece by piece, rewrite Alabama’s 1901 constitution. He’s also the House sponsor of two amendments on the Nov. 6 ballot designed to start the constitutional housecleaning, clearing out some of the state’s longest-standing rules for corporations and banks.

Amendment 9 would make a host of changes to the constitutional article on corporations, removing some references to telegraph companies and dropping sections that ban railroad barons and canal operators from giving freebies or discounts to state officials, among other changes.

Amendment 10 would revise the article that governs banking. Among other things, it would erase a section that allows banks to issue currency and cut out a requirement that banks cease to operate after 20 years if they’re not approved for continued existence by the Legislature.

Many of those provisions have been superseded by federal law, or just ignored and replaced by the state’s own legal code. Supporters of the amendments say it’s time to clean them out.

Supporters of constitutional reform say it’s not exactly what they wanted — but it’s a start.

Baby steps

“Of course, what we’d rather have is a constitutional convention,” Nancy Ekberg said. “But we’ve tried legislation to make that happen for eight or nine years, and we couldn’t get it through.”

Ekberg is the communications director for Alabama Citizens for Constitutional Reform, or ACCR, a group that advocates a complete rewrite of the state’s governing document.

At more than 300,000 words, the Alabama Constitution of 1901 is the longest in the nation. Compared to most states, Alabama offers little home rule to its 67 counties, which means that many local matters wind up as amendments to the constitution.

If a county’s entire legislative delegation votes for an amendment, that amendment will be on the ballot only in the affected county. But if one legislator disagrees, a county rule change will go for a statewide vote. That’s why Calhoun County voters on Nov. 6 will get to vote on the taxation of police jurisdictions in Lawrence County and the fate of Prichard’s sewer board.

“That’s the reason we have more than 800 amendments,” Ekberg said. “County governments don’t have the power to do the things their counties need. They have to go to Montgomery and beg for permission to bury dead animals or spray for bugs.”

While the 1901 constitution has few admirers on Goat Hill, legislators have never been able to agree on a re-do. They came closest, perhaps, with the Judicial Article of 1973, which rewrote the Constitution’s entire article on the judicial system.

When Republicans took over the House and Senate in 2010, they set up the Constitutional Revision Commission and then took the 1973 rewrite as a model for constitutional reform. If a constitutional convention was too much to sell to lawmakers, maybe the document could be revised piece by piece.

“It’s real reform when you’re going back and addressing these things, article by article,” DeMarco said.

DeMarco acknowledged that Amendments 9 and 10 aren’t likely to change the way most businesses and banks function in Alabama. But they still mark a milestone, he said: the first rewrite of an entire article in the constitution in years.

Ekberg said constitutional reform advocates are supporting the amendments because they set the stage for more changes. This year, she said, voters can clean up the banking and corporate articles. Eventually, she said, the committee will have to take up bigger issues — like home rule.

“These are baby steps,” she said.

Unknown implications?

Anniston banker Larry Deason sees no reason to oppose the two amendments. Deason is president of the local branch of Farmers and Merchants Bank, and a member of the Alabama Banking Board, a state governing agency for banks.

He said the amendment keeps provisions that allow the state to examine banks, which was the only wording he was concerned about.

“The section about gold and silver?” he said. “You want that out of there.”

Critics of the amendments don’t mind erasing the rules on telegraphs and the gold standard. They do worry that the rewrite might have unintended consequences down the road.

“You already have laws on the books that are dealing with these things from a lower point of view,” said Sen. Hank Sanders, D-Selma, who opposes the amendments.

“I know what it says, but what does it mean on a practical level? That’s what I’m concerned about,” Sanders said. He said he couldn’t cite specific passages of concern, and said it was the yet-unknown implications that bothered him.

No ‘hue or cry’

Sen. Dick Brewbaker, R-Montgomery, said the amendments could have been explained better, both to lawmakers and the public. Among other things, he said, he’d like to know why the banking rules are being changed first.

“I haven’t heard a hue or cry that the banking code is a terrible code,” he said. He said the Constitutional Revision Commission brought the amendments to the Legislature with relatively little discussion — a contrast to the 1973 judicial article rewrite.

“That process was lengthy and vetted,” he said. And at the time, he said, Alabama’s judicial system was known for inefficiency. Brewbaker said he’s not sure every piece of the constitution needs that kind of review.

“I’m just not sure we need to open up every article,” he said.

Some core articles of the constitution won’t be reviewed, DeMarco said. Among them are the article delineating the boundaries of the state and the article that sets up the state militia. He said the group will review other articles, such as the executive article, which describes the powers of the governor.

Ekberg said a crucial moment will come when the commission looks at the article on the Legislature.

“That’s where they’ll be able to put in some form of home rule for counties,” she said. Ekberg, who isn’t a member of the Constitutional Revision Commission, said she thought the commission would have a new legislative article in front of voters as early as 2014.

DeMarco wasn’t willing to make predictions on a date for home rule.

“My focus right now is on Nov. 6,” he said.

Capitol & statewide correspondent: 256-294-4193. On Twitter @TLockette_Star.
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