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Bad Constitution

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Posted by Ashley Cleek on Tue Feb 25 2014

Brenda Ivey grew up on a farm in North Alabama. Her grandparents raised hogs. Brenda ate lots of pork. She didn’t have any problems with farming or pigs.
But everything changed 16 years ago, Ivey says, when a hog farm moved across the street from her.

“8,000 finishing hogs, came in right down in the middle of a community of over two hundred and thirty something families,” Ivey remembered, “in a two mile radius.”

That’s almost nine hogs for every one human. This isn’t sweet Old MacDonald’s farm. It’s more like Animal Farm. Four legs good. Two legs bad. And 8,000 hogs produce a lot of waste. The smell, Brenda says, was torture.

Brenda Ivey at home on her farm in North Alabama. Photo Credit: Ashley Cleek

Brenda Ivey at home on her farm in North Alabama. Photo Credit: Ashley Cleek

“It’s the worst odor that you could ever smell in your life,” Ivey said. “You put skunks together. I don’t even know how to describe it. You put dead rats. You know, what’s the worst thing you can smell? A hog.”

And the smell just got worse. Brenda’s sons stopped playing outside. They stopped inviting people over. Initially, she tried talking to the hogs’ owners about controlling the smell. That’s didn’t work. So she went to the head of the county, the county commissioner, to see if there was way to force the farmers to control the smell.

“Everywhere we would go to try to get some help, ‘We can’t do anything,’ ‘We can’t do anything,’ ‘ We can’t do anything,’ ‘We have no jurisdictional nothin’.”

And the officials weren’t just pushing her aside. There was literally nothing they could do, because of the Alabama Constitution.

The Constitution centers power in the Legislature, so the only way they could do to do something was to pass an amendment. That’s right. In order to do anything, even regulate where a hog farm can be in a tiny town, you have to pass an amendment to the state constitution. About the only way to change the Alabama Constitution has been to amend it, and Alabamians have amended it 885 times. The result is that it’s not just the longest state constitution—it’s the longest constitution in the world.

Alabama’s Constitution

Alabama’s Constitution

So I ordered it. The United States Constitution and the Constitution of Alabama, 1901. The Constitution is as thick as War and Peace. The edition I got was 13 years old and missing 200 amendments. Even so, it still weighed in at three pounds.

So how did it get so long and complicated?

The story starts after the Civil War. The Federal Government has guaranteed the right to vote for all men, regardless of whether they are black, white, wealthy or poor. At the time, Alabama was almost half black, and wealthy white landowners and businessmen worried they could lose control of the state. The state was also in deep debt. County and city governments had issued bonds for railroads and other construction projects. When the projects floundered, the whole state was left with the debt. So in 1901, politicians called a convention to draft a new constitution.

Wayne Flynt, a professor of history at Auburn University explains, “There’s nothing about the founding fathers of modern Alabama that was anyway representative of the population at the time. There were 155 delegates. There were very few farmers, and yet farmers constituted the overwhelming majority of the population of the state of Alabama. [The group] It was disproportionately economically elite, planters, large landowners. There were no women obviously, there were no blacks.”

The men kept notes of everything that was said during the convention. Flynt reads what was said by John Knox, the President of the Convention, “ ‘And what is it that we want to do? Why, it is within the limits imposed by the federal Constitution to establish white supremacy in this state.’ I mean,” Flynt says, “that doesn’t leave you much wiggle room.”

The best way to ensure white supremacy was to make voting extremely difficult. The 1901 Constitution outlines a poll tax, and property and literacy requirements in order to vote. And it worked. After the Constitution passed, voting numbers of African Americans and poor whites plummeted. They took care of the debt issue too. Counties and cities lost the authority to issue bonds, increase taxes or even zone land, like for a hog farm. But they went even farther. The state was forbidden from making internal improvements, meaning no building highways, bridges or harbors.

“The anomaly in Alabama being a state,” Flynt says, “that still to this day, cannot build a road. Cannot build a bridge. Cannot build a waterway. Cannot build a railroad track or anything else at state expense, cannot advertise for businesses, cannot promote industry, cannot float bond issues for purposes of attracting new industry unless there is a separate constitutional amendment that allows that. It’s the wildest thing. People look at it and they say, ‘how can this possibly be?’”

Every time Alabama wants to build something, they have to change the constitution. And the amendments start to pile up immediately. Amendment one allows the government to build and maintain roads and bridges. Amendment twelve adds harbors. Amendment 58, airports.

But there are parts that haven’t been changed, even with an amendment, like the discrimination in the Constitution. Even though federal courts have ruled that segregation and discrimination based on race are unconstitutional, the Alabama Constitution still contains the racist language from 1901. For example, the Education Article still reads, “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.” While another section banned interracial marriages.

Other states like Indiana, Oklahoma, Louisiana, Maryland had similar articles in their constitutions. What’s different about Alabama is that the language is still there.

“But look how embarrassing it is.” Albert Brewer has been a politician in Alabama his whole adult life. He was in the legislature. He was Governor. Now he teaches law at Cumberland Law School in Birmingham. Brewer says the language leaves a deep scar on the state and hurts economic development. He says if he were another state competing with Alabama for a contract to say, build a new car plant, he’d tell the company’s owner, “Have you read their constitution? Do you realize what’s in their constitution? And he says, ‘Well, it’s been amended. The court threw out that provision or whatever.’ Well it shows their mindset, is what they considered to be their fundamental law all these years. Are you going to take a chance with your billion dollar plant on that?’ It’s amazing we’ve gotten around it.”

But sometimes there’s no way around the constitution. When the County Commissioner couldn’t do anything, Brenda Ivey filed a case against the hog farms. The court ruled in favor of the farmers.

“And I don’t care what kind of judge you go before in this old world,” Brenda says, “you’re going go before the judge one day and you’re going to give an account of everything that you do wrong and the Bible says to love your neighbor as yourself, that didn’t happen here. Greed took over.”

After about six years of fighting the hog farms, Brenda says she stopped. She prayed about it. Eventually she learned to live with the smell.
And counties all over the state have found a way to live with the Constitution, by passing amendment after amendment.

- Amendment 34: Tax for Malaria Control in Limestone County: The governing body of Limestone County must levy and collect tax for use in the control of malaria,

- Amendment 351: Special Property Tax for Control of Mosquitoes, Rodents and Other Vectors of Public Health and Welfare; Significance in Mobile County.

- Amendment 492 promotes the Catfish Industry: The legislature may hereafter, by general law, provide for the promotion of the production, distribution, improvement, marketing, use and sale of catfish.

- Amendment 449 denounces the boll weevil: Notwithstanding any other provision of this Constitution, the legislature may hereafter, by general law, provide for the eradication or control of the boll weevil in cotton.

- Amendment 497 Prohibition of Overgrowth of Weeds and Storage and Accumulation of Certain Junk, Motor Vehicles and Litter in Jefferson County.

- Amendment 520: Excavating Human Graves in Madison County: The Madison County Commission is hereby authorized with or without charge to provide for the excavating of human graves.

It’s unwieldy. Imagine you make a terrible soup, but instead of throwing it out you decide to fix it, by adding to it–more salt, some garlic, Tabasco, pepper…and then you make your family eat the soup for weeks. Alabama has been doing this for 113 years.

Let’s say Etowah County wants to prohibit, bingo. First the Legislators from that county would have to propose an amendment, saying, “Bingo will be forbidden in Etowah County…” Then the whole Legislature votes. If the amendment passes, it goes to the voters. Then, everyone across the state has to vote on whether the people of Etowah County should be allowed to play bingo. On the back of every ballot is a list of amendments specific to counties all over the state. If that county is 300 miles away it can be hard for voters to know the issues. Or care how—or if—they vote. Even though how they vote can dramatically change life in that county.

For example, back in 2004 the city of Trussville proposed an amendment that would have allowed the city to raise property taxes to build more schools. The Legislature passed the amendment, but when it went to a statewide vote, voters axed it.

Some Alabamians argue this is the way government should be. “That is representative democracy and that’s the way we have been doing it,” said Eunice Smith. Smith heads Alabama Eagle Forum, a conservative advocacy group in Birmingham. Smith argues that the process allows all Alabamians to have a voice in how their state runs, and to keep track of which counties are passing what laws. “There ought to be some accountability beyond the county level on some issues and right now voters can decide that and they’re deciding it by constitutional amendments. And that’s not a bad thing at all.”

Advertisement attempting to change Alabama’s Constitution.

Advertisement attempting to change Alabama’s Constitution.

But it leads to a lot of amendments. And while several attempts have been made to scrap the whole Constitution, it’s really hard to do. A majority of the legislature would have to pass a bill calling for a new constitutional convention. Then, it would go to a statewide vote. That’s never happened. Partly because many people worry a new constitution could be worse. Also, if you change the constitution, each article and amendment would likely be challenged in court for years. Maybe decades. And it’d be expensive.

Currently, no one is calling for a rewrite. Instead, a group has been appointed to review the Constitution section by section and recommend changes. Right now, the group is working on the education section trying to remove the racist language. But historically, it’s been difficult to rewrite. As recently as 2012 and 2004, voters rejected attempts to amend the wording. They were afraid that changing the wording could change taxes, and how schools are funded.

And this is what many claim is what has kept the constitution from being changed. Taxes. The Constitution sets up the state tax system, and taxes in Alabama are low. Property taxes is the second lowest in the nation. Farm and timber land is not taxed at market value.

But John McMillan, Alabama’s Commissioner of Agriculture and Industries, says it’s not just farm and timber. No one wants taxes to be raised, “When you start talking about doubling for example property taxes, homeowners is not going to be in favor of that.”

Property owners across the state have voted time and again not to change the constitutional article on taxes. So the state goes section by section, rewording some part of the Constitution, leaving others in place. The changes go to a statewide vote every two years, and so, Alabama waits.

Brenda Ivey, Christmas 2014. Photo Credit: Ashley Cleek

Brenda Ivey, Christmas 2014. Photo Credit: Ashley Cleek

Whatever happened with Brenda Ivey and the hogs? It’s been a year since the stink went away. The hog farms stopped production, but Brenda doesn’t know if they’ll come back. What she does know is that this was the first Christmas in 14 years with no hog smell, “I took a breath of that fresh air, and I said, ‘Oh my goodness this is the first Christmas that I don’t have to smell the hogs and enjoy my Christmas.’ So put the decorations up, no hog smell.”

Legally, nothing changed. Brenda just out-waited the hogs. Alabama’s Constitution has been around for 113 years, and people in Alabama have learned to live with it, or at least to ignore it.

Professor Wayne Flynt says, that’s part of the problem, “Most Alabamians they can’t draw the lines where they intersect to understand that the reason that Alabama has so many problems is basically rooted in the 1901 Constitution.”

Whether they understand that or not, or whether they care about the Constitution or not, Alabama voters can be sure that the next election will require them to weigh in on at least one amendment.

Update as of 2/27/13: The hogs are back