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Melof v. James5/28/1999
up of §§ 1, 6, and 22 of the Alabama Constitution of 1901. Because we hold that Alabama has no such "equal-protection provision," we conclude that the court, in entering the summary judgment, was not denying equal protection guaranteed by the Alabama Constitution. In declaring the existence of an "equal-protection provision" in the Alabama Constitution of 1901, this Court in 1977 unfortunately leapt upon a violently egregious editorial error made by an unofficial annotator and built on such an unworthy foundation a theory of constitutional law (equal protection) that absolutely requires solid support. To demonstrate not only how this happened, but the need now to correct that error, we give the following history of the 1901 "equal-protection provision" that never was. In 1901, the State of Alabama held a Constitutional Convention in Montgomery. The delegates to the Convention specifically discussed and rejected the idea of incorporating into the 1901 Constitution the "equal-protection provision" that existed in Alabama's 1875 Constitution.
What appears as § 1 of the Constitution of 1901 first appeared in the Constitution of 1875, as Art. I, § 1; it was followed by § 2, which provided, in pertinent part:
"That all persons resident in this state ... are hereby declared citizens of the State of Alabama, possessing equal civil and political rights."
What was Art. I, § 2, in the Constitution of 1875 had first become a part of an Alabama Constitution with the Constitution of 1868. The first two sections of the 1868 Constitution (Art. I, §§ 1, 2) provided:
"1. That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.
"2. That all persons resident in this state, born in the United States, or naturalized, or who shall have legally declared their intention to become citizens of the United States, are hereby declared citizens of the State of Alabama, possessing equal civil and political rights and public privileges."
In the Constitution of 1875, the phrase "That all men are created equal" (from the 1868 Constitution) was deleted from Art. I, § 1, and the phrase "That all men are equally free and independent" was substituted therefor. The remainder of Art. I, § 1, was unchanged. All of § 2 was carried over from the 1868 Constitution into the Constitution of 1875 except the last three words, "and public privileges."
Therefore, it is evident that the drafters of the Constitution of 1868, which was drafted by a Constitutional Convention but was then defeated by the Alabama electorate, and "ratified" by the Congress of the United States before the ratification of the 14th Amendment, felt that, to provide for equal protection, something more was needed than the phrases "all men are created equal; ... they are endowed by their Creator with certain inalienable rights; ... among these are life, liberty, and the pursuit of happiness." This is evident because these phrases, appearing in § 1, were followed by § 2, which provided that all citizens of Alabama "possess equal civil and political rights and public privileges."
It is also evident that the drafters of the Constitution of 1875 felt that, to provide for equal protection, something more was needed than the phrases "all men are equally free and independent; ... they are endowed by their Creator with certain inalienable rights; ... among these are life, liberty, and the pursuit of happiness." This is evident because these phrases were followed by § 2, which provided that all citizens of Alabama "possess equal civil and political rights."
The provisio
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