ALLIANCE FOR CITIZENS RIGHTS

THINGS YOU NEED TO KNOW ABOUT OUR ALABAMA CONSTITUTION

Opposition to a new Alabama Constitutional Convention

by John Eidsmoe

At a recent meeting, a person asked whether there are positive features of the Alabama Constitution that we want to preserve. My Answer is yes, there are many.

1. The Preamble invokes "the favor and guidance of Almighty God." To some this is trivial; to others it is wrong; the Framers believed it is an essential prerequisite to good government, and I agree.

    

2. The Declaration of Rights, Section 1, recognizes that men's rights are "endowed by their Creator." Jefferson asked, "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are … the gift of God?"

    

3. The Alabama Declaration of Rights contains a number of provisions that are not secured to use by the U.S. Constitution, among them:

   A. The requirement that the state proceed against criminal felons defendants only by grand jury indictment. In Hutado v. California the U. S. Supreme Court ruled that the 5th Amendment grand jury provision does not apply to the states, so we need the protection that Section 8 of the Alabama Declaration of Rights provides. Various civil liberties groups might share our concern here.

   B. Section 26 of the Alabama Declaration of Rights provides "That every citizen has a right to bear arms in defense of himself and the state." This is vital to the dense of the right to bear arms, because the Second Amendment may not protect us for two reasons: (1) Some argue, with little likelihood of success, that the Second Amendment protects only a collective right of the people to have a militia, no an individual right to bear arms; and (2) Some argue, with greater probability of success, that the Second Amendment restricts only the federal government and is not incorporated and applied to the states. For these reasons, we definitely need this protection in our state constitution. We might use this to alert groups like the National Rifle Association, Gun Owners of America, and various sportsmen's groups to this danger.

   C. With the Smith v. Oregon (1990) and Boerne v. Flores (1997) decisions, the U. S. Supreme Court greatly weakened the right to free exercise of religion as contained in the First Amendment, so that in most instances government agencies can infringe upon religious practices by showing only a reasonable relationship to a legitimate state purpose. To counter this, in 1998 Alabama adopted Amendment 622, the Alabama Religious Freedom Amendment, which provides the same kind of protection the federal courts gave under the First Amendment prior to 1990 -- that government may not infringe upon a religious practice unless it has compelling interest that cannot be achieved by less restrictive means. This means free exercise of religion is much better protected under the Alabama Constitution than under the U. S. Constitution as currently interpreted by the Supreme Court. We don't want to lose this protection. Various church groups should be alerted to this danger.

    

4. The limits on local governments' authority to tax and regulate may be positive or negative features, depending on one's point of view. I sense that the citizens as a whole are less enthusiastic about new taxes than are the editorial writers.

    

5. Section 37 contains a clear definition of Alabama's state boundaries. For reasons, which are unclear to me, there is an effort to remove this from the Constitution. It seems to me it should remain.

    

6. Section 43 contains a clear and strong statement of separation of powers among the three branches of state government. The modern "wisdom" says that separation of powers is inefficient and slows down the workings of government, and that the American system of separation of powers should be replaced or modified in favor of the European parliamentary system in which the branches work more closely together. But the Framers saw the separation of powers and accompanying check and balances as necessary to protect liberty and prevent usurpations and abuses of power. Again, I agree.

    

7. The 1999 vote on the lottery indicates that most Alabamans want to keep the Constitution's prohibition on gambling. At any constitutional convention, we may be sure well-financed interest will be working to have those provisions removed.

Information provided by John Eidsmoe, during a concerned citizen meeting. John Eidsmoe is a retired Air Force Lt. Colonel and a law professor at Faulkner State University. He has written numerous books and articles on the U. S. Constitution and other subjects. NOTE: Article this section entitled "Myths and Facts"

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