When George Wallace was sworn in as Alabama’s governor in 1963, he infamously declared, “I say, segregation now, segregation tomorrow, segregation forever." History proved him wrong, of course, but not entirely -- the state still has Jim Crow-era language enshrined in its constitution.
Section 256 of the document reads to this day: “Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.” Elsewhere, the document contains language dealing with poll taxes. Brown v. Board of Education and other actions from Washington rendered these provisions moot even before Wallace took the oath, but the language remains on the books, almost 60 years later.
Now, in November, voters will have a chance to finally strike the ugly words from the state’s charter, thanks to a referendum put on the ballot by the state Legislature. But first it has to pass -- something that may be harder than it seems, considering that voters narrowly struck down a similar measure in 2004. Alabama didn’t remove vestigial language banning miscegenation, racial mixing via sex or marriage, until 2000, and even then, 40 percent voted against it.
The story of how school segregation remains preserved in the state constitution well into the 21st century involves taxes, the world’s longest constitution and a two-and-a-half ton granite statue of the 10 Commandments.
Eight years ago, Alabama considered a measure to remove the same unenforced Jim Crow provisions called Amendment 2. By a margin of just 1,850 votes out of 1.38 million cast, voters rejected the amendment and the racist language stayed on the books. Why depends on whom you ask. While some say it was latent racism, or perhaps a reverence for the history of the Old South, or at least an aversion to reopening old wounds, the opposition would say it was about taxes.
In 2004, Roy Moore was looking for something new to do. In November of the previous year, he had been thrown out of the Alabama Supreme Court, where he was the chief justice, for installing a 5,000-pound monument of the 10 Commandments in the center of the courthouse rotunda. This was a clear violation of the First Amendment -- “To this, the Establishment Clause says no,” U.S. District Judge Myron Thompson ruled -- but Moore was defiant. After years of litigation and political controversy, the monument was eventually removed and Moore lost his job. But the incident turned him into a Christian-right celebrity, drawing supportive rallies of thousands that featured national conservatives like Alan Keyes and the Rev. Jerry Falwell.
Moore leveraged that fame into his new campaign: fighting Amendment 2. He claimed it was actually a secret back door to increase taxes. "This is the most deceptive piece of legislation I have ever seen, and it is simply a fraud on the people of Alabama,” he told the Associated Press at the time.
At issue was that the amendment would have guaranteed a "right to an education” for all children, something that Brown v. Board had already guaranteed, but that Moore and his allies, especially the state chapter of the Christian Coalition, nonetheless used as a cudgel. Opponents argued that a parent in a poorer county could bring a lawsuit alleging that their children's rights were violated because they received an inferior education to their peers in a richer county, and that a court would then order a tax hike to fix the inequality. Legal experts thought the argument was far-fetched.
As the Washington Post noted after the measure failed, “Employing an argument that was ridiculed by most of the state's newspapers and by legions of legal experts, [Alabama Christian Coalition president John] Giles and others said guaranteeing a right to a public education would have opened a door for ‘rogue’ federal judges to order the state to raise taxes to pay for improvements in its public school system.”
Moore has chosen to associate himself with some questionable people in the past, such as when his Foundation for Moral Law hosted neo-Confederate groups at its 2010 Alabama Secession Day Commemoration (Moore later claimed he was unaware of the event). The judge’s protege, Tom Parker, has even more neo-Confederate baggage. “Roy Moore will get all of the Confederate vote for governor," Roger Broxton, president of the Confederate Heritage Fund, told the AP when the former judge ran for governor in 2009. The Alabama Christian Coalition did not return calls or emails for comment.
Now, Moore is running again for his old job of chief justice, an elected position. He won the Republican nomination in March and is almost guaranteed to dominate in the general and reclaim his old gavel in the heavily Republican state. Asked if the once-and-future justice would oppose this year’s anti-segregation ballot measure, his campaign manager Rich Hobson told Salon, “Since the issue could possibly come before the Court in the future, it would be inappropriate for him to comment on the Constitutional Amendment that will be on the ballot this November.”
This year, the amendment’s drafters were careful to avoid the “right to education” language that opponents objected to eight years ago. “My goal was to offer the people of Alabama a constitutional amendment to vote on that only affected the segregationist language and poll tax language,” Alabama state Sen. Arthur Orr, the ballot measure’s Republican sponsor, told Salon.
“I believe in 2004, the state received a black eye, not only nationally but internationally,” Orr said. The new amendment, he said, “sends a message to correct not only the 2004 misinterpreted message, but that Alabama is a different place and we’ve moved on from that [segregationist] history.”
In March of 2011, the state Legislature overwhelmingly passed Senate Bill 112, which puts on the November 2012 ballot a voter referendum: “[A]n amendment to the Constitution of Alabama of 1901, to repeal portions ... relating to separation of schools by race and to repeal Section 259, Amendment 90, and Amendment 109, relating to the poll tax.”
“My expectation is that it will resoundingly pass,” Orr added confidently.
But further complicating the matter is the state’s absurdly arcane constitution. Running thousands of pages long and with over 800 amendments, the Alabama constitution is the world’s longest. Forty times longer than the U.S. Constitution and three times the size of India’s notoriously logorrheic charter, the state has no provision of “home rule” for municipalities, meaning that virtually every matter of local concern has to be put through the constitutional amendment process. The latest amendment, number 827, authorizes Tallapoosa County to enforce traffic laws in private gated communities. Other recent amendments deal with the retirement of public employees in St. Clair County, sewers in Jefferson County and the handling of “dangerous dogs” in Mobile.
“It is completely inaccessible to even the most sophisticated readers,” University of Alabama law professor Bryan Fair told Salon.
The Alabama State Bar Association notes that, aside from being “a blatantly racist document,” the constitution “limit[s] our government’s ability to function effectively." Fair said this may explain some of the opposition to the 2004 referendum, or any ballot measure. “My suspicion is that one of the reasons many of these ballot measures are voted down is that many Alabamians don’t care what happens in Jefferson County if they don’t live there,” he said, speaking hypothetically. “They simply vote 'no' on everything as a way of protesting.”
“But I suspect there still remains some feeling about race and education, that may in fact be not just a state, but national issue,” he said. “I do believe there is a feeling among some that it would be better just to move forward and not to talk about these things, reopen these things.”
This year, no major conservative opposition has materialized to the amendment so far. Instead, what little resistance there has been has come from the left.
“To me, it was something to make yourself look good or feel good,” state Sen. Linda Coleman, an African-American Democrat from Birmingham, told Salon. Coleman co-sponsored SB112 and said she supports its passage, but just doesn’t think it goes far enough. She fears the measure may make people complacent to the deeper problems that can’t be fixed so easily; "it's a token," she said. Coleman pointed to the state’s new “most racist -- they didn’t call it the most racist -- but the toughest immigration law,” the state’s tax on food, which disproportionately affects minorities, and the potential disenfranchisement of minority voters from a voter ID law.
“There’s so many other things that keep people down socially, economically or what have you,” she said. “So if we’re going to do it, let’s not just do a cursory kind of thing,”