Panel hones in on racist sections in Alabama Constitution

By Mike Cason | [email protected]

An advisory panel for a voter-approved effort to make changes to the 120-year-old Alabama Constitution is studying three sections that had racist language or racist intent.

The Committee on the Recompilation of the Constitution held a public hearing at the State House this morning. The committee did not make recommendations because it is still receiving public comments.

Voters approved a constitutional amendment authorizing the recompilation project by a 2-to-1 margin in November 2020. In May, the Legislature passed a resolution setting up the 10-member recompilation committee.

The legislation calls for the director of the Legislative Services Agency, Othni Lathram, to draft a revised constitution that could propose changes in four categories:

- Remove all racist language
- Delete duplicative and repealed provisions
- Consolidate provisions regarding economic development
- Arrange all local amendments by county of application.

The recompilation committee, which includes six lawmakers and four others, will advise Lathram, whose draft will go to the Legislature next year. If approved by three-fifths of representatives and senators, it would go on the ballot for voters in November 2022.

This morning, Lathram made a presentation to the committee and distributed a memo about sections of the constitution that have been called into question as racist or potentially racist.

The framers of the 1901 Constitution made clear their intent was to keep Blacks from voting and preserve white supremacy. “The new constitution eliminates the ignorant negro vote, and places the control of our government where God Almighty intended it should be – with the Anglo-Saxon race,” John Knox, president of the constitutional convention, said in a speech urging voters to ratify the document.

Although federal laws and court rulings have nullified the provisions intended to preserve segregation and disenfranchise and deny full citizenship to Black voters, some remain in the document.

Today, the panel discussed Section 32, which outlawed slavery: “That no form of slavery shall exist in this state; and there shall not be any involuntary servitude, otherwise than for the punishment of crime, of which the party shall have been duly convicted.”

The authorization of involuntary servitude for punishment of a crime could qualify as a racist provision because it was used to force many Blacks back into labor, including the seasonal agricultural work for which slaves were no longer available, Lathram said.

African Americans made up more than 90% of convicts forced to work at farms, lumber yards and coal mines under Alabama’s convict-lease system, according to the Encyclopedia of Alabama.

Lathram said about 19 other states had similar language on involuntary servitude in their constitutions. He said voters in Colorado, Nebraska, and Utah voted to repeal the language during the last three years, and voters in Tennessee will consider that next year.

Removal of the involuntary servitude phrase from Section 32 would have no effect on Alabama’s policies for incarceration and work programs for prisoners, Lathram said, because those are governed by other sections of state law.

Lathram noted that almost identical language allowing involuntary servitude as a punishment for crime is included in the 13th Amendment to the U.S. Constitution, which abolished slavery.

The committee planned to vote on whether to recommend removal of the involuntary servitude clause and other sections discussed today. But the panelists decided to delay voting until their next meeting because they are still accepting public comments about the project. The last day to send comments is Tuesday.

Submit comments.

Lathram said fewer than two dozen comments have come in so far, mostly by email. He said they would be posted on the Legislative Service Agency’s website.

Some of the commenters questioned the value of the recompilation project, Lathram said, suggesting that it was a waste of time to revisit outdated, nullified laws. Lathram said he did not agree with that.

Rep. Merika Coleman, D-Pleasant Grove, who sponsored the constitutional amendment starting the process and who chairs the recompilation committee, said the recompilation project is important.

“One hundred percent there’s value in what we’re doing, because that constitution sets up who we are as a state,” Coleman said. “It sends a message out about who we are. It is important for us to let folks know we are a 21st century Alabama, that we’re not the same Alabama of 1901 that didn’t want Black and white folks to get married, that didn’t think that Black and white children should go to school together.

“On the economic development side, we also want folks to know we’re open for business. We want people to come to the state of Alabama, spend your tax dollars, and that we again are a state that is this 21st century state, all kinds of different people, all kinds of different cultures, and we do not reflect what was in that 1901 constitution.”

Rep. Danny Garrett, R-Trussville, a recompilation committee member, said it’s important that the constitution does not stand at odds with how Alabama is today.

“I think words matter,” Garrett said. “And I think we need to just clean the constitution up, make it a document that is relevant today. We have a history that we’re trying to address. And we’re trying to move from the past to the future. And I think this is an obstacle in many ways.

“I think it’s important that as a state with our history that we acknowledge where we want to go. And where we want to go is not where we’ve been necessarily.”

The other two sections of the constitution discussed today were Section 256 and Section 259.

Section 259 says revenue from poll taxes goes to support public schools in counties where they are collected. The section is inoperative because Alabama no longer imposes poll taxes, which effectively disenfranchised many Blacks and poor white voters.

Lathram said Section 259 is the last remnant of poll taxes in the Alabama Constitution. Others were repealed in the 1990s.

Sen. Sam Givhan, R-Huntsville, a committee member, made a motion today for the committee to vote to recommend removal of Section 259. But the committee decided to postpone voting on any recommendations because public comments are still coming in.

Section 256 is more complicated. Section 256 says, in part, “Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.”

That segregation requirement became unconstitutional after the Brown v. Board of Education ruling by the U.S. Supreme Court in 1954.

But two previous efforts to strip it from the Alabama Constitution faltered when the issue became entangled with another part of Section 256.

In 1956, in response to the Brown v. Board ruling that would require integrated public schools, Alabama voters ratified Amendment 111, which amended Section 256, saying, “Nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense.”

That became an issue in 2004, when a proposed amendment would have repealed the segregated schools requirement and poll tax language, as well as the part of Amendment 111 saying there was no right to a publicly funded education.

Opponents of the 2004 amendment, , including former Supreme Court Chief Justice Roy Moore, said taking out the language that there was no right to a publicly funded education could open the door for a court to order tax increases for education. Proponents disputed that because the state Supreme Court had ruled in 2002 that only the Legislature could increase taxes. But the opponents prevailed in a close vote, rejecting the amendment by a margin of less than 1 percentage point.

In 2012, a similar amendment would have repealed the school segregation and poll tax language but would not have touched the language from Amendment 111 that there was no right to a publicly funded education. That drew opposition from the Alabama Education Association and others who argued for stripping the language on no right to a publicly funded education. Voters rejected the amendment by about a 60-40 percent margin, again allowing the invalidated segregation clause to remain in the constitution.

Coleman has credited the organization Alabama Citizens for Constitutional Reform, a nonprofit group started in 2000, with helping to spearhead the legislation that led to the recompilation project.