The purpose of a state constitution
Published 12:00 am Saturday, February 16, 2002
One key issue that seems to be misunderstood in the debate over reforming Alabama's constitution is the function and purpose of a state constitution.
Some supporters of a new constitution believe that a legitimate function of a constitution is to define or express the hopes and aspirations of the people of Alabama. While proponents of a new state constitution may have good intentions and believe that the existing constitution is a hindrance that is keeping Alabamians from reaching their full potential, realistically, no document can force people to be any better than they want to be.
The constitution is not the proper venue for defining or expressing the hopes and aspirations of Alabamians. Such a proposition is fundamentally misguided, because it places too much responsibility for daily living in the hands of government. It also raises the question of who will determine what citizens' hopes and aspirations ought to be. Politicians and idealists can not and should not try to define them for the people of Alabama.
To fully understand the problem with this argument, a question must be answered: What is the legitimate purpose of a state constitution? In a nutshell, a constitution protects the rights of the people by limiting the authority and power of government and by reserving the power over the government to the people. This knowledge is fundamental to the debate surrounding Alabama's Constitution reform.
Another issue that appears to be misunderstood is the problem of the length of Alabama's Constitution. State constitutions are necessarily long. With 492 of its 706 amendments dealing with local issues, Alabama's Constitution is obviously too cumbersome. But this problem can be solved without rewriting the entire Constitution and by expanding home rule authority to local governments on a limited basis.
Those who have the mistaken notion that a new state constitution could be as short and concise as our federal Constitution fail to understand the fundamental differences between state constitutions and the U.S. Constitution. The U.S. Constitution is short and concise because the federal government is a creation of the states and has only limited, enumerated powers. Many people forget that the states as sovereign entities came together to form the United States. In doing so, they established a constitution that gave the new federal government limited powers, with all other powers reserved to the states and to the people. While the federal government's powers are limited, the state's powers are not. Thus state constitutions are by necessity, longer and more detailed than the federal Constitution.
For example, among the powers of the states is the power over local governments that the federal government does not have. In his book "Understanding State Constitutions," Professor Alan Tarr of Rutgers University, explains that local governments are not sovereign entities like the states, they are sub-entities of the state created and/or authorized by the state, "whose powers are derived from and subject to the sovereign state legislature."
State constitutions are much longer because they define the powers of local government. State constitutions also define the scope of a state's powers and the distribution of those powers among the various branches of state government. That is why, as Professor Tarr points out, the average state constitution contains 120 amendments.
Alabama citizens must not be misled into believing that a new constitution will magically solve the major problems that confront our state. Nor should they conclude that because our Constitution is long, rewriting the entire state constitution to make it shorter or more concise is the answer. There are several problems with our existing constitution and we need to exercise due diligence over the effort to correct them. But the people of Alabama need to focus on the fundamental purpose of the constitution, which is to protect their rights from an intrusive government. Without legislative reform, constitutional reform will prove to be a wasted effort.
Gary Palmer is president of the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.