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I have stumbled across section 256 from Alabama Constitution:

(...) 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.

Is this law still applicable? If it is, it does not sound it can be enforced nowadays when discrimination on persons based on race is not legal.

Title 42, Chapter 21 of the U.S. Code prohibits discrimination against persons based on age, disability, gender, race, national origin, and religion (among other things) in a number of settings - including education, employment, public accommodations, federal services, and more.

Question: Why are Alabama Constitution's anachronistic parts not removed?

  • Comments are not for extended discussion; this conversation has been moved to chat. – yannis Sep 2 '18 at 18:11
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It is usually a long and laborious process to amend a Constitution, state or federal. Since federal laws and the courts have already invalidated those portions of the Alabama Constitution, it may be deemed as a waste of time and resources to formally remove the portions of the Alabama Constitution that are already legally ignored.

Article XVIII of the Alabama Constitution defines two ways to amend the state constitution. If three-fifths of the Alabama state legislators approve a proposed constitutional amendment, it is put on the ballot where voters must approve it by a simple majority. The legislature, through a simple majority vote in both chambers, can also call for a ballot measure asking voters to approve a constitutional convention. Alabama does not feature the power of citizen initiative, either for constitutional amendments or statutes.

Below is the section of the Alabama Constitution that outlines the methods of amending the state constitution:

  • If both houses of the Alabama State Legislature by a three-fifths (60 percent) vote agree, then a proposed constitutional amendment shall go on a statewide election ballot. If that amendment is approved by a simple majority of those voting in that election, it becomes part of the constitution.
    • Amendments can initiate in either the Alabama State Senate or the Alabama House of Representatives.
    • Amendments can be voted on either at the next general election, or at a special election date determined by the state legislature. Any such special elections must take place "not less than" three months after the final adjournment of the session of the legislature during which the amendment(s) was proposed.
    • Notice of the fact that an election on a proposed amendment is going to take place must be published in each county of the state for at least eight successive weeks prior to the election.
  • If both chambers of the state legislature agree by a simple majority vote, then a ballot question about whether to have a statewide constitutional convention can be placed on the ballot; if that question is approved by a majority of those voting in that election, then a constitutional convention will be called "

Ballotpedia: Amending state constitutions

In the almost all cases, even if a Legislature approves it, the citizens must approve it by vote, as well (or, in the case of the US Constitution, the states must ratify it). As highly unlikely as the scenario may seem, why risk the remote possibility of humiliation of having the citizens not approve an amendment that is being offered for appearances, with no actual practical impact?

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    While it is generally a long and laborious process to amend a constitution, Alabama is the worst choice in the United States for an example of the difficulty of amending a constitution, with its current 928 amendments to the original 18 articles. Many things that would be passed as law in other states are required to be constitutional amendments in Alabama. – user4556274 Aug 31 '18 at 17:07
  • At the country level, constitutional conventions are avoided in part because they could technically decide to throw everything out, instead of simply cleaning things up. And, especially in today's world, even though the laws may no longer be valid, some legislators may be concerned that acting against some of these laws might ultimately lose them votes. – RDFozz Aug 31 '18 at 19:50
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    This seems reasonable, but do you have any evidence that it is true? Have their been any comments from Alabama officials about this, expert analyses, or do you have personal experience with the subject? – indigochild Aug 31 '18 at 21:46
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    @PoloHoleSet Agreed. But every answer benefits from being backed up, reasonable speculation is inadequate. If you cannot back up your answer, it should not be posted to begin with. – indigochild Aug 31 '18 at 22:27
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    @indigochild - Since there can be a million different reasons why something is not done, the only possible answer you can back up is "because no one has done it yet." Inaction does not need a reason, as I stated before. So I stated some possible reasons why people might not feel like they want to go there. Even if I had a quote from the head of one of the houses, that only covers one person stating one reason. You can't validate every day, every person, every reason for 50+ years of not acting. It's simply not possible. – PoloHoleSet Aug 31 '18 at 23:26
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To answer the specific question "Why are Alabama Constitution's anachronistic parts not removed?"

Generally speaking, parts of a constitution do not get removed. Instead, later amendments may change or repeal earlier parts, without removing the original from the document. Many examples of this can be found in the Alabama Constitution.

In one example, amendment 111 to the Alabama Constitution alters multiple sections, including section 256, somewhat weakening the original requirement to maintain separate schools but still requiring that they be allowed for, and further stating that the state could not be required to guarantee an education to anyone.

There have been attempts to amend the constitution specifically to address this language, but they have not succeeded. In 2004, a proposed amendment to repeal section 256 and amendment 111 was defeated by a narrow margin (691,300 no votes to 689,450 yes.) Some opponents of the amendment claimed that removing the language would force the raising of taxes to pay for school improvements.

In 2012, a proposed amendment to repeal section 256 was also rejected by the state. Interestingly, opponents to the measure included the prominent black caucus, the Alabama Democratic Conference. One of the arguments cited was that repealing section 256 would re-empower amendment 111, which would allow defunding of schools and lead to an increase in segregation.

In both cases, arguments against the change centered on amendment 111, not on section 256 itself. In the 2004 attempt, the removal of 111 was a problem for one side, while in the 2012 vote, the fact that it was not included was an issue for the other side.

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    It might improve your post to add that the 2004 repeal attempt was defeated with 50.07% vs. 49.93% or an actual net margin of 1850 votes. – Fizz Sep 1 '18 at 12:33
  • Also salon.com/2012/06/13/… has more intersting background on the 2004 defeat. – Fizz Sep 1 '18 at 12:45
  • "parts of a constitution do not get removed" ... Germany had some bad experience with having a constitution and other overriding documents valid in parallel, so after WW2, whenever something is to be changed, we actually change the text of the constitution, instead of putting an amendment beside it. I would in general recommend this practice. – Paŭlo Ebermann Sep 2 '18 at 16:27
  • @PaŭloEbermann In the US, this is generally how it's done. For example, the 18th amendment to the US Constitution outlawed alcohol in 1919. In 1933, the 21st Amendment repealed the 18th. The text of the 18th amendment was not removed. One argument for doing it this way is it makes revisionist history more difficult. For a newly created constitution I could see benefits to your recommendation, but to attempt to retroactively change a long-established system would be in my opinion a disaster. – barbecue Sep 6 '18 at 19:28
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TLDR: attempts to remove that section were defeated at the polls (and in the Alabama Supreme court) in no small part due to arguments/judges of the Christian right, despite some Republican support for repealing the section.

A Salon article, although it probably has some (liberal) biases, nonethelss offers some insight into why the 2004 repeal attempt of section 256 (hat tip to @barbacue for finding it) was narrowly defeated:

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.”

I tried to find independent verification of what Moore said on this, but no luck insofar. But I think it's probably a fair assessment that the Christian right opposed the 2004 repeal attempt... promising their own:

Despite the narrow margin, Christian Coalition chief John Giles declared victory.

"The Christian Coalition of Alabama will work to ensure that reckless trial lawyers and activist judges will not be able to open the floodgates to increase taxes and that private, Christian, parochial and home-school families will be protected," Giles said in a statement on the group's Web site.

"The Christian Coalition will lead the way to remove the racist language in the next election."

Note that the 2004 defeat was so narrow it was subject to a recount (same source as above quote).

Also section 256 was struck down by Alabama's courts (including their supreme one) only to be reinstated once the court's composition changed! From the same source:

In 1993, amid a lawsuit over state education funding, a circuit judge in Montgomery struck down the amendment. The state Supreme Court upheld his ruling in 1997.

But in 2002, during Moore's tenure as chief justice, the court reopened the case and reversed itself.

So it's very likely Moore opposed it in 2004 as well. Actually regarding the 2012-defeated attempt Moore said

Moore told the Associated Press that the amendment was “another attempt to open the door for a court-ordered tax increase without the consent of the people” after they’d defeated the earlier amendment, while [Tom] Parker ran radio ads saying that it would create “a new right to education for citizens of all ages” and warning “liberals will use this to pressure judges into raising your taxes.”

As for background on the latter

The most prominent politician besides Moore battling the amendment was his protege and former staffer, Tom Parker, who was running for the Alabama Supreme Court at the time. During that campaign, Parker spoke at an event celebrating Nathan Bedford Forrest, the Confederate general and Ku Klux Klan leader, hosted by opponents of the civil rights movement, and handed out Confederate battle flags at the funeral of a woman believed to have been the last living widow of a Confederate soldier.

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To complement other answers, which deal with the more substantive parts of the problem, it must be noted that the US is a Common Law country.

In a Roman Law country, laws that have not been repealed must be enforced; a government not enforcing a cogent law is acting illegally (and can be sued for that). In Common Law, jurisprudence takes precedence, and a law considered inconstitutional by courts may be ignored, without necessarily being explicitly repealed.

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    +1. This is an interesting complement especially for those living in Europe. – Alexei Sep 1 '18 at 16:21
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    @Alexei - And Latin America. – Luís Henrique Sep 2 '18 at 4:02
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First of all, historically, the legislature didn't want to amend the constitution. It would easily pass today, but the spin wouldn't be some sort of positive symbolic celebration like it would be in a deep blue state. It would be portrayed as insincere political pandering, and the media would focus on the votes, however few, against it. They would complain that it didn't go far enough.

There would be no differentiation made between the (marginalized) racists voting no and the completely non-racist people who voted no for benign reasons like not wanting to add to our gazillion constitutional amendments for a purely symbolic gesture.

A similar situation would be the Roy Moore vote. He was defeated, but just holding the vote left a mark.

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    In this particular case, some of the no votes actually came from the black community. – barbecue Sep 1 '18 at 4:25
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I can't say what's in the heads of government officials in Alabama, but two possibilities that occur to me are:

  1. Amending the Constitution requires effort. I don't know the procedure in Alabama -- I could look it up but it doesn't matter :-) -- but even if it's relatively easy, it involves SOME time, expense, etc. Why bother when it doesn't matter anyway?

  2. There's no apparent problem now. If you attempt to change it, what if there are unintended side effects? Like, what if this clause was replaced with one saying that all schools will be open to all children, and then someone notes a technicality in the new wording and says, "Hey, under this amendment, I can send my children to a school in a different district from where I live that I like better", or, "Nowhere does it say this applies only to PUBLIC schools, so therefore I have a constitutional right to send my children to the most expensive private school in the state even though I can't afford to pay the tuition", or whatever. Lawyers make a living looking for loopholes that they can take advantage of. Why take the chance?

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    Answers here are intended to be factual in nature, rather than person opinion or speculation. Usually this is done by backing-up an answer with links to expert analysis or citing your own personal experience. Can you back-up your argument? – indigochild Aug 31 '18 at 21:44
  • Not a lawyer, but I don't see how the second point could apply in this case, though it could in similar situations with different wording. Simply removing the sentence would fix it, and it's hard to imagine any possible negative consequences of that. – Ian D. Scott Aug 31 '18 at 22:22
  • @IanD.Scott Depends whether you just deleted the words or if it was necessary to replace them with something else. Or even if you did just delete them, maybe that would be safe … but I'm not paid $200 an hour to look for loopholes in laws. Someone who is might find a way to say that with those words deleted, that now creates an iimplication that, something. – Jay Sep 2 '18 at 20:30

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