John Eidsmoe
Lt. Colonel, USAFR(Ret.)
Professor, Thomas Goode Jones School of Law
2648 Pine Acres, Pike Road, AL 36064 
Ph. (334) 270-1789 Fax (334) 386-7223 Attn: Eidsmoe

 9 April 2001
Memo to: Eunie Smith, President
Alabama Eagle Forum 

Subject: Ratification of New Alabama Constitution

The provision for calling a new state constitutional convention is found in Article XVIII, Section 286 of the Alabama Constitution. Two important features of Section 286 seem to have escaped notice thus far, but they deserve serious consideration.

First, the legislature cannot limit the authority or scope of a constitutional convention. Section 286 provides that

"..nothing herein contained shall be construed as restricting the jurisdiction and power of the convention, when duly assembled in pursuance of this section, to establish such ordinances and to do and perform such things as to the convention may seem necessary or proper for the purpose of altering, revising, or amending the existing Constitution."

Presumably, the legislature may provide the means by which delegates are appointed or elected for the convention, and the date and place for the convention to begin. Beyond that, the convention apparently would be on its own to choose its own officers and make up its own rules and procedures as it goes along. The possibility of a "runaway" convention cannot be discounted, especially if the delegates are financed and controlled by special interests, and any attempt by the legislature to restrict the convention's procedures or dictate to the convention what provisions a new constitution must include, seems to be specifically precluded by Section 286. In fact, at the 1901 Convention there was an attempt to amend Section 286 by inserting a provision that gave the legislature authority to limit a convention. This attempt failed, indicating the framers intended a future convention to have full, unrestricted authority to do whatever it wants.

Second, convention advocates insist that fears of a convention controlled by special interests are groundless because whatever the convention decides must be approved by the people. In other words, if the public doesn't like the new constitution, they can vote it down and refuse to ratify it. Surprisingly, however, the Alabama Constitution contains no provision whatsoever for popular ratification of a new constitution. Section 286 provides that if the legislature calls for a convention, the call must be approved by the voters before the convention takes place. But it says nothing about the people ratifying the new constitution after the convention takes place.

Admittedly, this issue is not clear-cut. In 1955 a bill in the legislature called for a new convention and provided for popular ratification of the convention's new constitution. When asked whether the provision for ratification was valid, the Alabama Supreme Court answered affirmatively in a nonbinding advisory opinion, Opinion of the Justices, 263 Ala. 141, 81 So.2d 678 (1955). The opinion was based more on general principles of popular sovereignty than on any provision of the Alabama Constitution, and the Justices used unusual language to note that

"Since this is an advisory opinion, and as such is not the opinion of the Supreme Court and binds neither the Justices nor the department requesting it, being merely advisory or consultative, State ex rel. Bozeman v. Hester, 260 Ala. 566, 72 So.2d 61, we feel inclined to make this statement. The many fine amicus curiae briefs we have received and our own discussions in consultation reveal that the 'proviso' in Section 286 means many different things to different people, and it would seem to be an act of wisdom on the part of the legislature to submit to the people an amendment to Section 286, dispelling any doubt as to the limitations which can or cannot be placed on the convention by the legislature."

In other words, the Justices used unusual language to warn us that the validity of a popular ratification provision is open to serious question, and the legislature should clear this up by amending Section 286. The legislature has not done so.

All of this assumes that the legislature would include a popular ratification provision in its convention call. There is no requirement that the legislature would do so, and even if they do, there is no guarantee that the ratification provision would be valid. If the legislature included a ratification provision and this provision were challenged in court, there is a substantial possibility the court would rule the ratification provision invalid, for the following reasons:

* The lack of a ratification provision in the current Alabama Constitution.
* The possible inconsistency of a ratification provision with the language in Section 286 prohibiting the legislature from restricting the authority of the convention.
* The nonbinding nature of the 1955 Opinion of the Justices and their express recognition that other interpretations of Section 286 are possible.
* The fact that the legislature has ignored the Justices' warning in the 1955 Opinion and has not amended Section 286; a court could interpret this inaction as evidence that the legislature wants Section 286 to remain as it is and does not want a ratification provision. 

In summary, there is no guarantee that the scope of a convention could be restricted, or that a new constitution produced by a convention would have to be ratified. Calling a new constitutional convention would be gambling with Alabama's future.

John Eidsmoe
Professor of Constitutional Law