71 The Alabama Lawyer 286 (2010). Constitutions... establish the very framework of government.

• Author: By Marc James Ayers

Alabama Lawyer

2010.

71 The Alabama Lawyer 286 (2010).

Constitutions... establish the very framework of government

Constitutions... establish the very framework of government.Interpreting the Alabama ConstitutionBy Marc James AyersThe interpretation of statutory text is guided by fairly well-known policies (like separation of powers) and rules (the "canons" of construction). What about constitutional text? Constitutional text is somewhat different in nature than that found in statutes. Does this difference affect how courts do or should interpret the text of Alabama's Constitution? And what are the guiding principles that govern Alabama appellate courts' interpretation of the Alabama Constitution?

Of course, a complete survey on this subject could be the task of much larger work. This article is intended to summarize the Alabama appellate courts' basic philosophy governing the interpretation of the Alabama Constitution, and then to provide examples of some of the recognized rules of interpretation stemming from that underlying philosophy.

Constitutions Versus Statutes

Statutes are purely majority-rule matters that can concern virtually any topic and change back-and-forth with the political winds. Constitutions, on the other hand, recognize and identify fundamental rights and powers, and establish the very framework of government.(fn1) While initially established by a majority, a constitution exists to be somewhat anti-majority and undemocratic with regard to those rights and powers that the people consider to be fundamental, thus helping protect important, long-recognized legal rights or principles against sudden, unwise changes sought by, for example, a temporary but passing political majority. Constitutions recognize that "change" (particularly drastic change from well-established practices or traditions) is not always a good thing-it all depends on the direction. Accordingly, while constitutions can be amended, it is intentionally a difficult thing to accomplish.

Although a legislature is presumed to be the "voice of the citizens," in many ways a constitution is more directly and forcefully so. A legislature can pass wholly unpopular legislation-and can do so unilaterally with an override of a gubernatorial veto-and the people have no direct power to intervene to stop it. (In fact, debate over this very issue was seen in recent days with regard to the controversial health care legislation passed by Congress despite, by most accounts, a consistently strong majority of the citizenry in opposition.) However, unlike with statutes, it is virtually impossible to pass an unpopular constitutional amendment, because the people themselves have the ultimate say and are, in a real sense, a constitution's authors.

This distinction between the nature of statutory and constitutional text is relevant to how such text is interpreted by the courts. In interpreting statutes, Alabama courts are ultimately guided by Section 43 of the Alabama Constitution, which requires a strict separation between the three branches of government:

In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.(fn2)

Because it is the province of the legislature to make and change statutes, courts have to be cautious to avoid usurping the legislative role under the guise of "interpretation."

However, an improper judicial "revision" of constitutional text is not technically a separation of powers violation because the judiciary is not usurping the role of the legislative or executive branches. No branch has the "role" or ability to amend the constitution; it is solely the province of the Alabama citizenry to revise what is correctly called "their Constitution."(fn3) The legislature certainly plays a part in the people's revision of their fundamental charter, but, unlike with statutes, the legislature cannot rewrite the constitution itself.

The Limited Role of Stare Decisis in Constitutional Interpretation

Perhaps where this distinction is most often illustrated is in the Alabama appellate courts' application of the doctrine of stare decisis. "Stare decisis is '[t]he doctrine of precedent under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litiga-tion.'"(fn4) The Alabama Supreme Court has repeatedly held that stare decisis carries much less weight in analyzing previous interpretations of constitutional provisions than it does in analying prior interpretations of statutes because, as stated above, erroneous constitutional interpretations are much more difficult to correct than are erroneous interpretations of statutes.(fn5)

The Alabama Judiciary's Guiding Philosophy for Interpreting the Alabama Constitution: Judicial Restraint and Ex Parte Melof

Every method of constitutional interpretation is ultimately guided by some fundamental judicial philosophy, and that philosophy will be determined to a great extent on how the judiciary views its own role in the constitutional system. In the words of Judge Learned Hand, does the judiciary exist to "do justice" as the judiciary defines "justice" from case to case, or does the judiciary exist to "apply the law [as set forth by the people] and hope that justice is done?"(fn6) The former philosophy tends toward the view that a constitution is a "living document" that can and must change on its own as society changes. The latter philosophy, that of "judicial restraint," tends more toward the view that a constitution is a legal document that by definition resists change,(fn7) as it is for the authors-i.e., the people- who should judge when a social "change" is a good change that should receive constitutional recognition. By all accounts, Alabama courts are in the latter camp.

There is no specific constitutional provision addressing how Alabama courts are to interpret constitutional text. The Section 43 separation of powers provision gives some general guidance, but that provision is more directly applicable to statutory interpretation, as discussed above. Perhaps the most illuminating provisions in the Alabama Constitution are the amendment provisions,(fn8) which make clear (1) that it is ultimately for the people-not the courts or anyone else-to change the constitution, and (2) that this process is intentionally difficult and time-consuming (much more difficult to pass than statutes). These principles help illustrate that the Alabama judiciary's guiding principle of constitutional interpretation is and must be guided not precisely from the notion of separation of powers (as with statutes), but from the inherent nature of a constitutional system where the judiciary holds the enormous (and potentially dangerous) power of "judicial review"-the final say on what the Alabama Constitution means.(fn9) Perhaps the best discussion of this issue occurred in the debate over Alabama's "phantom equal protection clause" found in the Alabama Supreme Court's decision in Ex parte Melof, 735 So. 2d 1172 (Ala. 1999).

In Melof, the court corrected an erroneous line of decisions that had actually created and relied upon a constitutional provision-an "equal protection provi-sion"-where none existed in the Alabama Constitution of 1901. It was undisputed that such a provision existed in earlier Alabama constitutions but that it had been intentionally removed in the 1901 Constitutional Convention(fn10) in an overall effort to hinder black Alabamians. However, in 1977 the court ruled (based on a scrivener's error, as it turns out(fn11)) that various other constitutional provisions somehow combined to form the essence of an "equal protection provision" similar to, but not necessarily identical to, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.(fn12) This "provision" had no specific text (and therefore no history to be examined), but was merely the "spirit" behind several different provisions.

Like the federal Constitution's Equal Protection Clause, an equal protection provision in the Alabama Constitution would carry with it certain substantive limitations on the state, and could be interpreted as providing much greater limitations than those provided under the Equal Protection Clause. And as this "provision" was allegedly part of the Alabama Constitution, any ruling by the Alabama Supreme Court under that provision would not be reviewable by the United States Supreme Court. The "phantom equal protection provision" was used in striking down as unconstitutional tort reform legislation(fn13) and in attempting to judicially restructure the funding of Alabama's educational system.(fn14)

The phantom equal protection provision finally met its end in Melof. In that decision, the court stressed that it could not simply create constitutional provisions under the guise of "interpretation," and that, even though several decisions had relied on the phantom provision, the principle of stare decisis could not-for the reasons discussed above-apply to uphold a wholly unfounded constitutional interpretation. Although several of the...