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Melof v. James5/28/1999
n tested by enlightened judicial construction be disturbed. If we abridge or deny the negro the right to vote, we take this action not in hostility to him as a race, not on account of his color or previous condition of servitude, but because his exercise of suffrage without restriction make it unsafe to the life of the State and detrimental to all the interests of the people among whom he resides." Id. at 2778.
These opinions, and many similar ones, reflected the view that the framers of the proposed constitution could, consistent with the United States Constitution, deny large numbers of Alabama citizens the right to participate in the political process.
Thus, when the Committee on the Preamble and Declaration of Rights proposed to write into the new constitution the provisions of Art. I, § 2, Ala. Const. 1875 -- providing that all Alabama citizens should have "equal civil and political rights" -- the proposal evoked opposition. More specifically, Delegate Coleman stated: "It seems that Section 2 is rather in conflict with the provision of the Committee's report on Suffrage and Elections." II Official Proceedings, at 1623 (emphasis added). There followed considerable Discussion as to, among other things, the meaning of the phrase "equal civil and political rights," and whether the right to vote was a "civil and political right." Id. at 1623-42. In opposition to including the provisions of § 2, Delegate Coleman argued: "Now when a question comes up that admits of so much debate, as to which there is such a contrariety of opinion has arisen upon the subject of this question, it seems to me that the Convention ought not to adopt it." Id. at 1628.
As a logical matter, it made little sense for the delegates, who were intent on disfranchising African-American citizens, and who believed their proposals would successfully circumvent the Fourteenth and Fifteenth Amendments, to include a provision in the state constitution that might be construed by the courts as guaranteeing the right to vote. In the final analysis, the proposal to include the provisions of § 2 failed.
It was a credit to this Court that it -- like the courts of Colorado, Maryland, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Vermont, West Virginia, and Wisconsin -- found a guarantee of equal protection to be inherent in the due-process and other pillar provisions of its Constitution. The main opinion sounds a retreat from this court's long-standing solicitude to a process under the Alabama Constitution that assured to Alabama citizens a means by which to measure the validity of classifications created by state laws. This Court thus ushers in the new millennium, out of the mainstream of American constitutional thought and deficient in its application of the fundamental constitutional concept of equal protection of the laws. For these reasons, I Dissent from that portion of the opinion purporting to hold that the constitution of Alabama does not contain a guarantee of equal protection. I would hold that it does contain an equal-protection guarantee. However, because I would hold that the taxation scheme at issue in this case does not violate that guarantee, I concur in the result.
Kennedy, J., concurs.
JOHNSTONE, Justice (dissenting).
I Dissent from the position of the main opinion that the Alabama Constitution of 1901 does not guarantee our citizens equal protection of the laws. The guarantee of equal protection serves the purpose of prohibiting governmental action which arbitrarily discriminates among citizens. The main opinion declares, in effect, that the Constitution of 1901 allows governmental action which arbitrarily discriminates.
I adopt
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