MONTGOMERY, Ala. (ABP) — It appears that antiquated racist language will remain in the Alabama Constitution for the time being after an automatic recount determined that an attempt to strip it failed.
Supporters of the amendment that would have removed the language are accusing former state Chief Justice Roy Moore and the state head of the Christian Coalition of demagoguery in helping defeat the amendment.
Initial returns after the Nov. 2 election showed Amendment Two failing by less than 2,000 votes out of nearly 1.4 million cast statewide. The slim margin of defeat triggered the recount, which began Nov. 29. Alabama Secretary of State Nancy Worley announced Dec. 3 that the results showed little change in the election's outcome.
Moore and Alabama Christian Coalition President John Giles opposed the amendment, they said, because additional language in it could have opened the state to lawsuits over public-education funding, and that could have led to higher taxes.
Amendment Two proposed stripping two provisions from the 1901 document that were blatantly racist — one requiring separate schools for “white and colored children,” and another regarding the Jim Crow-era practice of poll taxes.
The disputed language is moot because federal civil-rights law requires integration in public schools. But a group of Alabamians had mounted a campaign to get the language removed to help erase a stain on the state's history, from a period when black Alabamians were severely oppressed and subjected to public education and accommodations far inferior to those provided to their white counterparts.
Indeed, Moore and Giles both publicly supported removing those provisions. However, they disagreed with a third aspect of Amendment Two, which also would have removed another provision, added to the Alabama Constitution in 1956. That clause said it was not Alabama's responsibility to provide taxpayer-funded education to its citizens.
Historians say that amendment was an attempt to circumvent the Supreme Court's 1954 Brown vs. Board of Education decision, which banned segregation in public education.
But Moore, Giles and their allies argued that the removal of that language would open the state to lawsuits that “activist” judges could use to impose new taxes for education.
“Our position on that is, activist judges that we have watched throughout the years have no boundaries constitutionally and statutorily,” Giles said, in a Dec. 7 telephone interview. “It's almost dressing up a bellman at the door of the courthouse with a bullhorn, saying, 'Lawsuits welcome.'”
But many legal experts in the state have ridiculed that argument.
Wayne Flynt, a professor of history at Auburn University and member of Auburn's First Baptist Church, accused Giles, Moore and their allies of willfully misleading voters in a Dec. 5 guest column for the Birmingham News.
“They know a circuit court judge in 1993 struck down the amendment they cherish,” Flynt wrote. “They know the state Supreme Court twice upheld that ruling. They know the state recently passed an amendment requiring that any court-authorized tax increase be referred to a statewide referendum so no judge can unilaterally raise taxes. And they know the consequence of their demagoguery will be a national campaign of ridicule unparalleled in recent Alabama history.”
Indeed, the Alabama Supreme Court — including Moore — in 2002 upheld both the idea that the right-to-education provision was null but that judges could not impose new taxes without legislative approval.
Moore became a folk hero to many Alabamians in 2003, while he was the head of the Alabama Supreme Court, when he refused to obey a federal court's order that he remove a massive granite monument to the Ten Commandments he had installed in the rotunda of the state's judicial headquarters. A series of federal courts said the monument violated the First Amendment's ban on government establishment of religion.
Moore was removed from office for violating judicial-ethics rules. The federal Supreme Court declined Moore's appeals without comment.
However, opinion polls in Alabama taken in the wake of the incident showed overwhelming support for Moore and his position on the Ten Commandments. He is widely believed to be grooming himself for a run for another statewide office.
Flynt said Giles' desire for “political influence in the state” and Moore's desire for higher office led them to attempt to make an issue out of Amendment Two. “I don't really mind that the [Alabama] Christian Coalition takes a position like this, but the arguments that they advance are either uninformed or demagogic — you take your pick,” he said in a Dec. 7 interview.
Tom Parker, one of Moore's former aides who himself won election to the Supreme Court Nov. 2, joined his old boss and Giles in opposing Amendment Two during his campaign. Parker reportedly handed out Confederate battle flags on the campaign trail.
But Giles said the reasons to fear the removal of the language are legitimate, because newer amendments can sometimes take precedence over older amendments and court decisions.
“You have two debates here,” Giles said. “One is removing the racial language — we're all for that; [it was] never a question in our mind. And we're going to see that taken out of the Alabama Constitution. The other is the debate over the right to an education — or is it a gift from the state? There are those who want to make it a constitutional right. And then we have judges deciding what is an education — both funding and standards.”
Giles said he expects a “clean” version of the amendment that would remove only the blatantly racist constitutional language to be proposed in the legislative session that begins in February. He predicted the Christian Coalition would support it and that it would pass by a wide margin.
But Flynt argued that it wouldn't be a truly “clean” version of the amendment, because the 1956 language was conceived in racism, even if its supporters don't want to admit that now.
“When your newly graduated sons or daughters sadly inform you that despite love for family, kin and community they have decided to strike out for greener pastures elsewhere, blame Roy Moore, Tom Parker, John Giles, et al,” he wrote in the Birmingham News. “They have been accused of racism. I am convinced they are innocent of that charge. But they have proved themselves (all in the name of Christ) guilty of demagoguery, which is alive and thriving in the Heart of Dixie.”
Nonetheless, Giles said he was simply trying not to throw the baby out with the proverbial bathwater. “We know that that was not such a glamorized part of our history in the 1950s and 1960s,” he said. “But this is today, and there is nobody I know who wants to deny the gift of public education to our children.”