Constitutional Reform

I have questioned the “diversity” on the Alabama Constitutional Reform Commission (see here, here and here) before.  An article in the Tuscaloosa Times, with the headline “Alabama Constitutional Revision Commission doesn’t reflect mandated diversity” raises the same issue today:

According to the resolution, commission membership “shall be inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.”

.  .  .The appointees as a group — lawyers, mostly white urban residents, and three women — don’t appear to strictly conform to the resolution’s membership requirement.

Marsh said the diversity language is fairly standard and he had several applicants, including a minority female, whom he appointed.

“I tried to follow the intent of the law,” Marsh said. “I think the intent was to do that, but you can’t maintain that every time.”

Hubbard spokesman Todd Stacey said Speaker Hubbard had “good intentions.” For Sen. Marsh and Speaker Hubbard: “It’s the thought that counts.”

The catch: the resolution used the word “shall.” According to Alabama law (for instance, see Ex Parte Joe Looney, Jr. 797 So.2d 427 Ala. 2001),

The word ‘shall’ has been defined as follows: “ ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always [been given] or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means “must” and is inconsistent with a concept of discretion.’

With only one African-American member out of 16, I doubt any court would find that the diversity mandate has been satisfied. Considering the history of the current Constitution and its racist origins, you would think Hubbard/Marsh would try to avoid even the appearance of impropriety.

But it the make-up of the commission also fails to satisfy the elements of diversity in “gender,” (3 4 out of 16),  “geographic,” (only one north of Birmingham if you count Gov. Brewer), “urban/rural” (only one rural if you count Gov. Brewer again), or “economic.” (no one from the Black Belt.)

Where are the calls for public hearings on appointments of this commission from Republicans as in May?  Where are the inquiries into financial contributions into these appointees? Since Alabama Power has their registered lobbyist on the commission, is it improper to explore how much the company contributed to Hubbard, Marsh, Bentley, and GOP?

Sen. Marsh said he had “several applicants.” Who were these applicants? How were applications submitted? In what manner was the applications solicited? What was the criteria for appointment.  Were interviews even conducted?

Just two months ago, Senator Marsh was so concerned about “process” that he demanded a do-over of the selections by Gov. Bentley of appointees to the Auburn Board of Trustees, Marsh said:

I’m not pleased with the process that got us here, and I’m not alone,” said Marsh, a Republican from Anniston. ‘I think we can do better.’

The problem that I and other senators have is that the process was conducted way too quickly, and it wasn’t as transparent as it could have been,” he said.

Because of a lack of transparency, he threatened to shut the whole the process down in the Senate.

Marsh said his decision to force a do-over was strictly about the process, and that he had no objection to any particular nominees.

“Nothing personal against any of them. In fact, they could all be re-submitted if that is the will of the university,” he said. “But they need to take a more open approach. The consensus for that is strong.”

Senator Marsh, we need a do-over on this Commission as well: a more transparent process, a more open approach, and one which conforms to the requirements of the enabling resolution. We need a process that establishes a commission which is “inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.


In April (see here), I blamed the Democrats for failing to act on Constitutional Reform and losing any voice in the revision of the Alabama Constitution.  I wrote:

After years of having majorities sufficient to pass authentic constitutional reform in Alabama, but failing to address the issue at all, Alabama Democrats are to blame thank for whatever emerges as our new constitution. According to this article, the Alabama Republicans, seeing the strategic importance of constitutional reform, are quickly moving to seize control this issue.

The prospects for rational and deeply-considered revisions looked bleak back then.

Representatives and Senators from Prattville, Mobile, Auburn, Daphne, Homewood, and St.Clair County: now that is diversity of Alabama for you? Where is the black belt’s voice? Where is urban Alabama’s representative? For that matter: where is rural Alabama’s influence? These representatives will produce a constitution ideal for their respective constituents: affluent, white suburbia.

We can only hope that the internal backbiting, purity-tests, and power-jockeying within the Republican Party will cause some opening for reason.  Maybe Gov. Bentley, his puny three appointees, and Rep. DeMarco can, at least, be a temporary roadblock against he juggernaut of the super-majority, 11 appointees from the Riley/Hubbard/Marsh/ Bradley Byrne faction of the Party.

Robert Bentley has now made his appointments. These appointments do not exactly bring balance to the Commission for which I  had hoped. While former Governor Albert Brewer has been a long-time champion for constitutional reform, the other two appointments certainly counter-balance the wisdom he might bring to the commission. The remaining two:

  • “Becky Gerritson of Wetumpka . . . is currently President of the Wetumpka Tea Party.”
  • “Vicki Drummond, of Jasper, is an active member of the Alabama Policy Institute and the Heritage Foundation.”

Bentley said in a statement. “Vicki Drummond and Becky Gerritson have a dedicated passion and vision for exploring the need to reform the Alabama constitution.”

Governor, when have these ladies shown this “dedicated passion and vision” for constitutional reform? In what forum? Usually constitutional reform has not been a high priority of many Tea Party groups.

(UPDATE: according to Jennifer Ardis, a spokeswoman for Bentley, this Tea Party President and the API/Heritage Foundation activist have “an appreciation for what government should and should not do in the daily life of everyday Alabamians.”)

But it gets better.

Senator March named his appointees as well.  He named

  • Carolyn McKinstry, a survivor of the Sixteenth Street Baptist Church bombing in 1963;
  • Matthew Lembke, an attorney at Bradley Arant Boult Cummings. A appellate attorney with impressive credentials yet a member of the Federalist Society and typically represents major corporations. For instance, he “defended textile manufacturer in an environmental action alleging tresspass and nuisance claims relating to discharge of textile wastewater into a public lake.  On appeal from a jury verdict in favor of the plaintiffs, the Alabama Supreme Court reversed the judgment in favor of the plaintiffs and rendered judgment in favor of the defendant textile manufacturer.”
  • Jim Pratt, a Birmingham attorney, president of the Alabama State Bar and past president of the Alabama Association for Justice, a group representing trial lawyers.

Speaker Hubbard appointed:

A registered lobbyist? In the words of Keyshawn Johnson: “C’mon Man!”

Does this list look “inclusive and reflect the racial, gender, economic and geographic diversity of Alabama” and the Senate resolution demands?

Members from Rural Alabama? Zero. (Okay: one if you count Governor Albert Brewer being Morgan County.)

African-Americans Members? One out of 16 or (6.25%) while African-American represent 26% of the population in Alabama.

Female Members? Four (25%) while the lady folk represent 51% of the population generally.

White suburbia and corporations? I will let you count.

If this Commission reflects the “diversity” of Alabama, then Alabama is one big white, suburban enclave with as many registered lobbyists as there are African-Americans.

Thanks again, Democratic Majorities of years past.


As I pointed out, here, that the current members of the proposed Constitution Reform Commission are exclusively from the affluent, white suburbs like Auburn, St. Clair County, Homewood, Baldwin County, and Prattville.  The Anniston Star editorial board sees history repeating itself :

The commission’s membership should look more like Alabama in all its diversity and less like Montgomery’s political players. As proposed, commission members and their appointees will be almost exclusively Republican. The constitutional rewrite should not be conceived by this era’s fat cats; the commission should represent all of the state’s wide diversity, including race, gender, income level, ideology, region and background.

The document written by 1901’s powerbrokers put us in the mess we are currently in. It is a product of its time and values. Alabama’s powerful were looking to reassert themselves after the Civil War and Reconstruction. As a result, they rigged a system where their power and influence was secured. Alabamians without a seat at the table were cut out.

Let us not rig the system for another century.