The Proposed Arkansas Constitution of 1980

Article excerpt

IN A WAY, IT IS SURPRISING THAT THE Arkansas Constitutional Convention of 1979-80 took place at all. With the defeat of a proposed constitution in 1970 by a margin of 57 percent against and only 43 percent in favor, many observers predicted that it would be another fifty years before the chance for a new constitution came again.' Instead of a fifty-year wait, Arkansas held two more constitutional conventions within ten years. The first was declared illegal in 1975 by the Arkansas Supreme Court, but the next one convened less than five years later.

Though unsuccessful and increasingly forgotten, the 1979-80 constitutional attempt might offer useful lessons for future constitution-makers. Surely, a study of the origins, content, and defeat of the proposed constitution provides further support for Michael Dougan's thesis that Arkansas's history has been characterized by a struggle between modernizers and traditionalists, with the traditionalists in this instance winning yet again.3 To place this constitutional convention in proper historical perspective, it is necessary to briefly consider earlier Arkansas constitutions and constitutional attempts.4

Arkansas to date has been governed by five state constitutions. Each of the five has been a response, as Ralph Barnhart noted, to "some kind of crisis-statehood, civil war, military occupation, reconstruction and reaction to reconstruction."5 Before statehood, when Arkansas was a territory (1819-1836), the governing legal authority was an act of Congress passed on March 2, 1819. The president of the United States, with the consent of the Senate, appointed the governor of the territory, the secretary, and the three judges of the Superior Court of Arkansas. The people of Arkansas Territory, at least those who could vote, elected a territorial legislature and a non-voting delegate to the U.S. Congress. The national government paid the salaries of the governor, secretary, superior court judges, and members of the territorial legislature, and funded roads, river improvements, army posts, and national troops. In fact, dependence on the national government was so great that on the eve of statehood there was real concern over whether Arkansas could afford to finance its own government.

The 1836 constitution was created so that Arkansas could become a state. Modeled after the United States Constitution, it was both short (9,100 words) and flexible. A new constitution had to be written in 1861 for Arkansas to be admitted to the Confederacy, but, with the exception of the popular election of more officials, its major change from 1836 was to substitute the words "Confederate States" for "United States." Otherwise, the 1836 and 1861 constitutions were essentially identical. In 1864, another constitution was adopted after the Union conquest of a large portion of the state and the establishment of a loyal government. The words "United States" replaced "Confederate States," slavery was abolished, and the Constitution of 1861 was declared null and void. Except for enforcing emancipation, the 1864 constitution, like the 1861 document, differed little from the 1836 constitution.

On the other hand, the 1868 constitution mandated by the federal Reconstruction acts of 1867 contained significant changes. It disenfranchised many ex-Confederates, extended the suffrage to black males, broadened the Declaration of Rights so that distinctions based on race or color were prohibited, and granted unparalleled appointive powers to the governor, including the naming, with consent of the Arkansas Senate, of most judges, tax assessors, and prosecuting attorneys.

The six years of Reconstruction government came to an end in 1874 when voters approved another new constitution. Constitutional delegates had focused on preventing any repetition of what to their minds were the excesses and abuses of the Reconstruction regime, especially as regarded elections, executive patronage, martial law, the length of officials' terms, public finance, and taxation. …