I have been asked to talk with you about our state constitution and the issue of constitutional revision. There’s an old joke about academics and people like me who study issues such as this. It says that if you line us all up, one right behind the other, it would be a very long line, but it would never reach a conclusion. Well, I don’t want to break the stereotype, but I do have some conclusions about the constitution. I hope, though, that I can give you a basis for making up your own mind about the issues involved, rather than just telling you what my conclusions are.

What I would like to do briefly is to look at what the role of the U.S. constitution is, and what the role of our state constitution is, and how they fit together. Then I want to look at how our state constitution does the job that it was created to do. And finally, a little bit about options for improving it.

Let’s start with this document – the U. S. Constitution. It contains fewer than 8,000 words, which is about 32 pages if you assume 250 words per page. It has been amended 27 times in its 214-year history, which is an average of less than 2 amendments per decade. I don’t really know anyone who doesn’t think that it is pretty much a masterpiece. What it does is to delegate certain enumerated powers to the federal government. Its first 10 amendments, the "bill of rights," were put into the Constitution right at the beginning; they take certain powers away from government altogether and give all the rest of the power of government to each state, or to the people of that state if they choose not to give it up. Maybe the greatest thing about the U.S. Constitution is the system of checks and balances it created to force government to control itself, which James Madison rightly saw as the big issue.

What you see here is that there are two issues about a constitution. One is what powers it puts "in the box," that is, gives to government; and what powers it puts "outside the box," or off limits to government. The second issue is how well the constitution provides for carrying out the powers of government. So we decide what the government will be able to do, and then how it will go about doing those things. The U.S. Constitution does both things very well.

It is left up to us to define the powers of government effectively within the state of Alabama. Whereas the federal government was given limited powers, the states were given all of the remaining powers except those denied to them by their state constitutions. This is why the Alabama constitution is so important. A state constitution is at the heart of our federal system of government.

How good is our state constitution? Well, you have to answer the two questions I just mentioned. One is, does it put the appropriate powers in the box, and keep the appropriate powers outside the box? There are going to be varying opinions on this question, because we have different values. How far should the constitution go in granting personal freedoms, for example? Take gambling: Some people might say our constitution is good because it prohibits lotteries; others might say the opposite.

I’m not going to focus on these kinds of issues today, although they may be the most important factors to some people. That is, to some people the possibility of changing provisions like section 65, which prohibits lotteries, is the key reason to oppose opening the constitution up for revision. For others, making changes in provisions like section 65 may be the very reason to be for constitutional change. All of us have to decide how we stand on these "value" questions.

But there are a number of areas that are considered "in the box" by all of the states. These include such things as public safety, education, roads and bridges, economic development, and so on. These are standard functions in 21^st century state and local government, and the important constitutional issue becomes how well they are provided for. That’s where I want to focus.

In other words, once we decide what functions are "inside the box," our state constitution is the foundation on which state and local government are built. If we want good government – good public schools and community colleges, for example -- and if we want to get a dollar’s worth of those services for every dollar we invest, then that foundation has to be sound. Think about state and local government as if it were your home. Let’s say that it is a two-story home, with state government services provided out of the rooms on the second floor, and local government services provided out of the rooms on the first floor. Underneath both, supporting them, is the constitutional foundation.

Now, in your home, if the foundation is slipping, it is likely to cause cracks in the walls of the rooms on the first and second floors, isn’t it? But you’re not going to eliminate those cracks by caulking over them; the cracks will just reappear, as I have found out in my own home. Those cracks are the symptoms of the problem, which is down in the foundation. And it’s the same when we think of the house of government. The chances are that "cracks" in education services – or any other kind of services – go right down to the constitutional foundation.

The Constitution of Alabama contains more than 310,000 words, which is about 1,240 pages if you assume 250 words per page. It has been amended more than 700 times. It is by far the longest and most-amended state constitution in the U.S. We have averaged over 70 amendments per decade of its existence. The problem with this is not the length of the document, but rather the underlying "engines" that are driving the need for constant change. In other words, even when we "apply some caulk" by passing an amendment, the instability built into the constitutional foundation will create another crack somewhere else.

The primary source of these foundational problems is the stance that the constitution takes toward government itself. The people who wrote it drew the box too small, trying to put a straightjacket on state and local government, and on the people themselves. They were looking back at the excesses that occurred during Reconstruction, not forward to the twentieth century and beyond. They evidently thought that if they took virtually every power away from state and local government, it wouldn’t be able to do bad things anymore. But in the real world, people realized very quickly that this approach simply wouldn’t work. What the framers actually did, by trying to prevent government from doing them any harm, was to create a structure that guarantees a certain amount of inefficiency and ineffectiveness.

Let me give you three examples of the governmental foundation that was laid down in 1901.

First, the constitution said that our state government could not be involved in "internal improvements," and that the state and local governments could not be involved in economic development efforts that create relationships with private corporations. Internal improvements include such things as roads and bridges; economic development efforts include the Mercedes project, for example. Our constitution told the state and local governments not to participate in such efforts. Today there is no question about economic development being "inside the box." It is well accepted that our state and local governments will be involved in such efforts, which is at odds with the constitutional foundation.

Second, the 1901 constitution simply omitted any specific charter for local government, giving all lawmaking power to the state legislature; and it laid down limit after limit on what the legislature could do, particularly when it comes to legislating for a particular county. So there was no mention of a local governmental process, and tight limits on what the state could do for localities. But we have cities and counties; we just haven’t settled their relationship to the state government in a stable way. Again, the constitutional foundation doesn’t provide a basis for our current practice.

Third, the 1901 constitution allowed local communities to levy a maximum of 1 mill of local property tax for their public schools – and even this had to be approved by a 60-percent majority at the polls. But we have local school systems, and we are for local control of education. However, the restrictions under which they operate create a lot of state control, because they have to seek exceptions.

It was immediately clear that these kinds of limitations were so severe that they made it impossible to have workable state and local government, and so people in the legislature and elsewhere immediately set out to undo the things that made their jobs impossible. Here’s the problem: for a century, we’ve been caulking the cracks in the walls, dealing with the symptoms of these constitutional limitations one at a time, without ever really attacking the root causes that are built into the constitutional foundation itself.

The original provisions that put a straightjacket on economic development, home rule, local school taxes, and other areas, are still in the document. They haven’t been removed. The amendments have just been tacked on, one after another, as specific problems arose. Two-thirds of them are local, meaning that they apply only in a particular city or county. And so today the original constitutional provisions apply fully in some counties, partially in other counties, and not at all in still other counties. As a result, it is virtually impossible for the average public official to know for certain what the law is in his jurisdiction.

The bottom-line question that you and I face is this: Do we want a government that works? You need to think hard about that question. If the answer is Yes, we want our government to work, then we have to focus on the constitutional foundation on which it is built. That is where the problems originate.

Now, some will hesitate to answer yes to that question, because they are afraid that state and local government might get out of control if we allow it to work more efficiently. They will say, "What we really need is accountability." And they are exactly right about the need for accountability. Without better accountability, we won’t get better results from our investments of state and local tax dollars. Do you know where the accountability structure originates? In the constitution.

I said earlier that the Alabama constitution set out to severely limit governmental powers, but it didn’t eliminate them entirely. Laws can be enacted, within restrictive limits. But the constitution gave exclusive control of lawmaking power to the state legislature. In economics they call such an arrangement a monopoly.

Imagine how much profit Mercedes-Benz would make in Alabama if its board of directors had to decide how to fix each automobile that came off the line in Vance with a defect. Imagine how one of Alabama’s large banks would prosper if its corporate board had to make operating decisions for every branch office, from Florence to Dothan, individually. Nobody would set up his business in that way, would he? Yet that is exactly how our constitution provides for governance of the state and its many localities. The result is that our legislature spends too much time on local matters, our local officials are powerless to accomplish many of the things we elect them to get done, and we as citizens are denied meaningful access unless we are organized and present in Montgomery all the time. Education agencies are often blamed because they have lobbyists in Montgomery, but the fact is that this is necessary for survival under the foundation we have built. You and I often can’t figure out who to blame for ineffiencies because state and local officials point fingers at each other. This is the opposite of accountability.

In summary, it doesn’t matter what label you wear: whether you are a liberal or a conservative -- a person who places highest priority on having a government that works, or one who focuses on holding government accountable. From either perspective, we need both high performance and accountability, and the constitutional foundation has to provide the basis for that. We have a lot of work to do to create the kind of foundation that we need. But again, this issue is independent of the values issue, which inevitably has to be addressed also.

How might the deficiencies of the constitution be fixed? Broadly speaking, there are three options.

The first is to tackle one issue at a time with individual amendments. One approach that is advocated by some is to revise one article of the constitution at a time. The constitution has a number of sections that are divided into articles. There is an article for the judicial system, and it was revised in the 1970s. There is an article for the election system, and it was revised in the 1990s. Those are the big successes for this approach, but not much progress has been made on the other parts of the constitution.

A second method of revising the Constitution would be to call a constitutional convention. Some feel that this is the right method because it would involve the people in creating a new charter for government in our state. They feel that the voters would not look favorably on a constitution written by the Legislature. The Legislature would of course have to call a convention, and provide for selecting delegates, and provide a process that would lead to adoption of a new constitution that this convention would create. This would have to be done under the authority of Section 286 of the current constitution, and there are a lot of uncertainties about what is allowed and not allowed under that provision. Just yesterday Representative Ken Guin was quoted in the paper as being in favor of amending this section to be sure that the Legislature can follow it. Others feel that a convention might put inappropriate things into the constitution, or be controlled by special interests.

A third method of revision would be for the Legislature to write a complete constitution and submit it to the people. This is not allowed currently; the state supreme court has ruled that the constitution prohibits amendments that go beyond one article. So some legislators are proposing to amend the constitution to allow the Legislature to submit an entire constitution. The arguments for and against the Legislature writing a new constitution are the opposite of those for a convention with elected delegates. Some people feel that the Legislature would be subject to special interest influence, while others feel they are better prepared to write such a document than citizen delegates would be.

There is a citizens’ group called Alabama Citizens for Constitutional Reform that is promoting constitutional revision. Its official position is that does not prefer one method of revision over the others. The governor has come out in favor of constitutional revision, as has the secretary of state. I believe both of them are in favor of a constitutional convention. The speaker of the house has promoted the article-by-article approach to revision. The lieutenant governor I believe has come out in favor of revision by a convention. There also is a group that plans to have rallies in each county in support of the current constitution.