Alabama’s Six Constitutions

One, two, three, four, five, six. Count ’em — six Constitutions for the State of Alabama. It may not be a record, but…

Then again Alabama has had a long and convoluted governmental history, so maybe it’s not so surprising.

So as The Legal Genealogist continues the occasional series on primary law around the United States, let’s start with the fact that border disputes were the name of the game in what became Alabama starting way back in colonial days.

In terms of European governance, the southernmost areas of what became Alabama were claimed by Spain as early as the 1520s, with the British making noises about what they thought they should have claim to. Part of what is now northern Alabama was contested between England and France all the way up to the 1763 Treaty of Paris that ended the French and Indian War.¹

What is now Alabama below the 31st parallel was part of West Florida, and the boundary was extended north in 1767. Britain ceded West Florida to Spain in 1783 while simultaneously ceding everything north of the 31st parallel to the United States. The overlap wasn’t settled until 1795 when Spain ceded the disputed border area to the United States.²

But that didn’t end the border disputes. Many of the early American states claimed sovereignty from the Atlantic Ocean clear west to the Mississippi River. South Carolina claimed one very narrow strip all the way west to the Mississippi and didn’t give up that claim until 1787, when it ceded part to Georgia and part to the federal government.³

From 1790 to 1796, there was some disagreement as to whether part of the land should be considered to be in the Southwest Territory. In 1798, the Mississippi Territory was organized from from 31° N latitude to 32°28′ North — part of what is now southern Mississippi and southern Alabama.⁴ But Georgia continued to press its claim to land north of the 31st parallel west to the Mississippi until 1802, when it gave up its claim to the federal government.⁵ In 1804, the Mississippi Territory was officially expanded northward to include the ceded Georgia lands.⁶

But that didn’t end the border issues, either. Spain continued to claim all of West Florida, although the United States said the Mobile District of West Florida had been included in the Louisiana Purchase. The United States simply annexed the area in 1812, sending in a military force to occupy it. And Orleans Territory claimed part of what ended up as southern Alabama until 1812 as well.⁷

The Mississippi Territory was then divided in 1817, with the western portion becoming the new State of Mississippi⁸ and the eastern portion the Alabama Territory.⁹

So at least in theory, one part or another of Alabama might have had some legal influence from the Proprietary Charters of Carolina of l663 and 1665; the Fundamental Constitution of Carolina, 1669; the Proprietary Charter of Georgia, 1732; the Constitutions of South Carolina of 1776 and 1778; the Constitutions of Georgia of 1777 and 1789; the creation of the Territory South of Ohio River in 1790; and the creation of the Territorial Governments of Mississippi in 1798, 1800 and 1808. Not to mention the Proclamation respecting Occupation of Territory of 1810.¹⁰

All this before Congress even passed the enabling act setting the stage for Alabama to be admitted to the union.¹¹ That enabling act, in turn, resulted in the first Alabama Constitution and facilitated its admission as the 22nd state on 14 December 1819.¹²

Constitution of 1819

The 1819 Constitution, then, was the first of the six that Alabama has had over the years. It was written in the summer of 1819 and adopted 2 August by the Constitutional Convention that wrote it; no ratification vote was taken. It was strongly tilted towards legislative power — only the Governor, county sheriffs and court clerks were popularly elected officials.¹³

Among its more interesting provisions:

It contained a significant Declaration of Rights,¹⁴ including:

     • Religious freedom and rights of conscience;
     • Freedom of speech;
     • Right to trial by jury, protections against double jeopardy, and right to indictment and bail in criminal cases; and
     • Right of assembly.¹⁵

The right to vote was extended to “every white male person of the age of twenty-one years, or upwards, who shall be a citizen of the United States, and shall have resided in this State one year next preceding an election, and the last three months within the county, city, or town, in which he offers to vote”¹⁶

And it provided for a right of conscientious objection to militia service: “Any person who conscientiously scruples to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service.”¹⁷

Constitution of 1861

Along came 1861 and the prospect of the shattering of the Union. And between 7 January and 21 March, 1861, Alabama’s Secession Convention met, framed and ratified the Constitution of 1861 — a Constitutional Convention called in 1860 but not to take place unless Alabama’s worst fears were recognized and Abraham Lincoln was elected President. Like its predecessor, this Constitution took effect on ratification by the Convention; no popular vote was taken.¹⁸

In many ways, the Constutution was liberalizing. It continued the Declaration of Rights without change, and reined in the power of the legislature by, among other things, barring special laws for any person or corporation “in cases which are provided for by a general law, or where the relief sought, can be given by any court of this State.”¹⁹

But it also expressly declared secession — the preamble began “We the People of the State of Alabama, having separated ourselves from the Government known as the United States of America”²⁰ — and prohibited emancipation of any slave (“No slave in this State shall be emancipated by any act done to take effect in this State, or any other country”).²¹

Constitution of 1865

On the defeat of the Confederacy, Alabama was left without a functioning government. A general proclamation of amnesty in May 1865 restored some rights to many former Confederates²² and, in June of 1865, President Andrew Johnson appointed Lewis E. Parsons as provisional governor of Alabama with directions “to prescribe such rules and regulations as may be necessary and proper for convening a convention composed of delegates to be chosen by that portion of the people of said State who are loyal to the United States, and no others, for the purpose of altering and amending the Constitution thereof.”²³ Parsons’ proclamation, calling for a Constitutional Convention in September, was issued 21 July 1965.²⁴

All of the rights declared in the earlier Constitutions were continued, and key additional rights guaranteed, including:

     • That hereafter there shall be in this State neither slavery, nor involuntary servitude, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.²⁵

     • That the right of suffrage shall be protected by laws regulating elections, and prohibiting, under adequate penalties, all undue influence from power, briber, tumult, or other improper conduct.²⁶

Constitution of 1868

The First and Second Reconstruction Acts required constitutional conventions in all former rebel states, to follow the 1867 registration of all male citizens over age 21.²⁷

Alabama’s Constitutional Convention met from 5 November to 6 December 1867, and the proposed Constitution submitted to voters in February 1868. But white voters boycotted the ratification vote and the vote failed to meet the majority of registered voters level required by the Second Reconstruction Act. Congress responded by repealing the majority requirement and made the repeal retroactive, re-admitting Alabama and approving the 1868 Constitution anyway.²⁸

Constitution of 1875

The reforms of Reconstruction were short-lived. By 1875, yet another Constitutional Convention came about with a declaration of the General Assembly that “an experience of more than six years has shown that the present constitution of Alabama is grievously defective, and operates to the injury of the good people of this State, and imposes burthens oppressive to their industry, and in restraint of the prosperity which they might obtain under the influence of a better devised constitution.”²⁹

The convention met from 6 September through 2 October 1875, and the resulting proposed Constitution became the first submitted to the voters. It passed by a vote of 85,662 to 29,217, and took effect 6 December 1875.³⁰

This post-Reconstruction document was considered a victory for “planters and merchants who dominated the Black Belt economy and government and who expected to maintain that domination (along with their influence on the state level) by controlling the black vote in their region.”³¹ Those falling in this group “achieved their primary goals of lowering taxes and reducing government spending in the 1875 Constitution. They also forbade the state and municipalities from lending money for internal improvements, eliminated the state board of education that had been created in 1868, segregated the state’s public schools, and reduced spending for education.”³²

Constitution of 1901

The Alabama Constitution of 1901 resulted from a process best described by the Alabama Department of Archives and History:

As the 20th century dawned in Alabama, demands to redraw the basic framework of state government grew. The “Redeemer Constitution” of 1875 had effectively wrested political control from the coalition of Republican “scalawags” (native Republicans), “carpetbaggers” (Northern opportunists), and newly freed blacks who had briefly held power during Reconstruction. However, its limits on state support for commercial development through river improvement and railroad construction, and its low tax ceilings which kept schools poor increasingly drew criticism from reform-minded Alabamians.

Of greater importance to the politically powerful was the need to better control who voted in the state, a legacy of the tumultuous 1890s when the conservative Democrats were challenged by the Farmers’ Alliance/Populist movement. The entrenched “Bourbons” had maintained control during that period through a combination of intimidating African Americans, raising the specter of “black rule” to keep whites within the party, and fraudulently counting votes for conservative candidates when all else failed. Uncomfortable with the turmoil and subterfuge of these campaigns, many leaders of the conservative Democrats embraced calls for a new constitution as a way to ensure “honest elections” — by legally taking the vote away from blacks so that they would not have to be stolen.

Closely contested elections saw a convention assembled and a new Constitution adopted in 1901. Generally supported by the conservative “Bourbon” planters of the Black Belt counties and their allies in the rapidly industrializing Birmingham area, both the convention and the proposed Constitution had significant opposition from poor farmers and African Americans afraid of losing their already tenuous political identities. The resulting 1901 Constitution fulfilled their fears as a host of stringent suffrage restrictions effectively denied great numbers of both classes the right to vote.

Accurately described by present-day historians as “designed to freeze change in desirable channels,” the 1901 Constitution not only restricted suffrage but also did little to make government more responsive to the challenges of a new century. The 1901 Constitution was more a code of laws than a framework for government, as the Legislature retained near complete control over local affairs, making necessary hundreds of amendments over the succeeding decades.³³

There have been, to today’s date, 827 amendments to the 1901 Constitution.

The texts of the Constitutions

All six of Alabama’s Constitutions have been placed online by the Alabama Legislature and can be found here:

     • Constitution of 1819

     • Constitution of 1861

     • Constitution of 1865

     • Constitution of 1868

     • Constitution of 1875

     • Constitution of 1901 (current) – click on the link for Constitution in the far left, then on View to display the provisions.

 
SOURCES

Image: Public domain, via Wikimedia Commons.