The Five Constitutions of Arkansas: A Power Ranking
Which is the GOAT???
I have been working on an article for The Arkansas Lawyer for the upcoming 250th anniversary of the Declaration of Independence. For that article, I have had to read a lot about the five Arkansas constitutions. And since the article is somewhat more serious (but it’s also lots of fun and you should read it when it comes out), I am doing a less serious piece here. Also, I read enough political commentary that I want to mock silly ranking articles. So, I’ve decided to make the definitive power ranking of the five constitutions.
First, a disclaimer: this is a power ranking, not a morality ranking. A power ranking is based on an unquantifiable mix of things. Obviously, morality plays into it. If you know the years of each of the five constitutions, number five (i.e., the worst) is definitely not going to surprise you. Also, if you know the year of each constitution, you deserve a Hero of Arkansas medal.
But I’m also factoring in things like:
Democratic legitimacy—was this truly a product of the people, or was it basically an insider-driven deal?
Philosophical aesthetics—does the document make sense and hint toward larger and broader truths, or is it just kind of a laundry list of stuff?
Metal origin story—is this a document adopted to fulfill some legal requirement (the historical equivalent of paperwork), or was it adopted because of some cool/interesting development?
Also, I have some serious topics on tap for the coming weeks, so if you are bitter about this week being about a frivolous take on a historical subject relax.
Without further ado…
#5: The 1861 Constitution - Can We Just Pretend This One Was Louisiana’s or Something?
If you know your American history, 1861 might stick out. That’s right, it’s the secession crisis that formed the Confederate State of America, and the beginning of the Civil War.
Now, a quick side note before we talk about how terrible this constitution was. I think people assume the Confederacy was an easy call for Arkansas. After all, it was a slave state. But Arkansas is probably the Confederate state that was closest to not joining the Confederacy.1
Arkansas voted to call a secession convention in the election of February 18, 1861. But a majority of delegates to that convention were Unionists. The convention as a whole was so inclined to remain in the Union that a serious movement arose to split the state in half—the northwest wanted to stay in the Union, the more plantation-heavy southeast wanted to secede.
The surrender of Fort Sumter and President Lincoln’s subsequent call to conscript 75,000 soldiers (780 of whom were to be from Arkansas) led to a backlash against the Union. The convention voted almost unanimously to secede. The only dissenter, Isaac Murphy of Huntsville, would later become governor under the 1864 constitution.
But OK, enough context, let’s talk about horrible racist nonsense.
Let’s start with Article II:
That the great and essential principles of liberty and free government may be recognized and established, we declare—That all free white men, when they form a social compact, are equal, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty; of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.
Mixing the best language from the Declaration of Independence with explicit racism—now and forever—is a clown move. We all get that Thomas Jefferson was a hypocrite for writing the Preamble of the Declaration of Independence declaring that all men are created equal, but actually owning slaves. But you can maybe see an eternal principle in the Preamble that means more than Jefferson’s personal hypocrisy—like a great work of art made by a terrible person.
The 1861 Arkansas Constitution went further than that. It actually made it illegal for the state legislature to ever ban slavery.
But OK, let’s look past the racism and slavery—are there any good features of this constitution?
It’s not democratic legitimacy. The secession convention was planning to ultimately submit the issue of secession to the voters, but they ultimately didn’t. So Arkansas left the Union without the voters ever actually weighing in on it.
The only sort of entertaining (not really “good”) part of this episode was the sordid state politics behind the convention. In order to join the Confederacy, Arkansas really only needed to change some specific words in its existing state constitution. For example, it needed to change the specific parts referring to the United States.
But the state politicians of the day sensed an opportunity. They created a whole new constitution, with flashy pro-slavery provisions, but also settled some political scores.
They constitutionally legalized banking—wonder if that got them some donations!
They transferred war powers for Arkansas forces away from the current governor and to a three-man council.
They structured the election schedule so that the current governor would be up for a vote again in the fall of 1862 instead of 1864.
I give a point for the pettiness. But everything else about the 1861 constitution is terrible.
#4: The 1836 Constitution - The OG That Couldn’t Figure Out Vetoes
First off, this one was also clearly written with slavery in mind. Recall that the 1861 dummy constitution explicitly said that “inherent and indefeasible rights” only accrued to white men who were deemed free by their government. The 1836 version was maybe 30% subtler: “[A]ll free men, when they form a social compact, are equal, and have certain inherent and indefeasible rights.”
So, yeah, similar big picture philosophical problem. You can’t talk about “inherent and indefeasible” rights in the same sentence you say it depends on you already being free!
But there are more prosaic problems with ol’ 1836. Much like the U.S. Constitution, it established a veto and veto override process. But recall that a veto override in the federal system requires a two-thirds vote of each chamber of Congress. Under the 1836 system, it just requires a majority vote.
Why is that weird? Well, it means that the governor’s veto really doesn’t do anything. If everyone votes the same way again, the bill becomes a law. Practically, it’s the same as the governor sending a message to the legislature before a vote that just says: “Please don’t.”
Another interesting-in-a-bad-way feature: the legislature chose all state judges, not the executive. This was a pretty big concentration of power in the legislative branch.
Finally, there was no lieutenant governor. This would be carried over in future constitutions, eventually leading to succession problems—there were three acting governors between 1907 and 1909.
#3: The 1864 Constitution - At Least There’s No Slavery in This One!
Finally, we’re past the slavery constitutions! But now the constitutions start having some real democratic legitimacy problems.
It’s worth going into a little detail about what I mean by that. You could have the most beautiful constitution ever (I can’t not hear in that Donald Trump’s voice), but if it’s just imposed on people without any real consent, then (a) people probably will try to evade all the nice-sounding provisions, and (b) the constitution itself probably won’t last long.
Such was the 1864 constitution. The Union Army took Little Rock in September 1863. In December, Lincoln issued his “Ten Percent Plan” by which reconstruction would begin in a state if 10 percent of its population swore allegiance to the United States and approved emancipation of slaves. In January 1864, Arkansas met the 10 percent threshold, but half the state was still under Confederate control. Unionists called for a constitutional convention to meet the reconstruction terms. Only 24 of the state’s 57 counties sent any delegates to the resulting convention.
This constitution did end slavery in Arkansas and pledge allegiance to the U.S. That’s good! But Arkansas Unionists were still not quite sold on the political equality of black people, so the 1864 was pretty much silent on their rights.
The 1864 constitution was approved by 98% of voters, a truly Kim Jong Un-ian level of support. But, well, the election was administered by the Union Army, and there were some suspicions of fraud (can’t imagine why!)
So, shaky legitimacy + ending slavery + no civil rights + no fun political shenanigans. That puts 1864 in the middle of the metaphorical wild pack of hogs.
#2: The 1874 Constitution
This is our current constitution, and it does get some points for lasting way longer than the others. We’re at 152 years under this one, vs. 25 for the first, 3 for the second, 4 for the third, and 6 for the fourth. So, 1874’s longevity is currently four times as long as all the others put together. It has been amended 104 times, so it’s maybe cheating a little to call it the same constitution, but we’re sticklers for formalism here at In re Arkansas.
Let’s start with the good. And in many ways, the good here is all about what didn’t change from the 1868 constitution (which, spoiler, is the #1 GOAT ELITE ARKANSAS CONSTITUTION).
Article II, Section 2 basically made the preamble of the U.S. Declaration of Independence enforceable in court. That gives a nice twist on the old story of the Declaration, where a slaveholder (Jefferson) wrote some of the most stirring political rhetoric ever in a document that creates no actual rights.
Article IX protected the rights of widows to their husband’s property after they died (i.e., shielded the property from judgment liens and execution sales against the husband’s estate).
Resurgent former Confederate Democrats, freshly able to participate in politics again, kept the crucial equality amendment from the 1868 constitution (more on that below). Now, they probably did that to hedge against federal intervention, but, hey, in the post-Reconstruction Era, you take the good news where you can find it.
Now the not so good.
The delegates set a maximum rate of taxation measured in “mills”, i.e., tenths of a percentage point. Not only is “mills” an annoying archaic unit, but it basically meant that public services could not be adequately funded. And before you say, “Look at big tax guy Thorlin, he loves him some taxes!”, consider that this constitution simultaneously committed the state to doing things libertarians generally do not want (e.g., public education), but then takes away the power to actually do it. That basically guaranteed the state would just do those things poorly.
Article 19, Section 1 bars atheists from holding office or testifying as witnesses. This provision seemingly directly contradicts Article II, which prohibits religious tests for office.2 Federal caselaw later clarified that provisions like this are unenforceable, but it’s still on the books. (Note to self: see if you can get some legislators to take this off the books.)
The governor was made basically an honorary position. There was still the simple majority veto override, still very little in the way of appointment powers.
And really, there’s an icky feeling throughout this constitution that the 1874 delegates were setting up Jim Crow by keeping superficially good provisions while denuding the state of the power to do anything to protect black citizens.
#1: The 1868 Constitution (The GOAT)
The alpha. The Absolute Unit.
Here’s the backstory. Like the 1864 constitution, this one was a Reconstruction necessity. Congress hadn’t recognized the 1864 constitution, and the Reconstruction Acts of 1867 rejected the existing state governments of the former Confederate states wholesale. Getting back into the Union required adopting a new constitution, approved by a majority of voters (and black people had to be able to vote), and the state had to ratify the Fourteenth Amendment to the U.S. Constitution.
This one is good enough that we can actually start with the bad:
Democratic legitimacy was still not great, although this time it’s a much closer question. Tens of thousands of former Confederates were not allowed to vote, and the final vote for adoption was 27,913 for to 26,497 against — so extremely close that obviously the former Confederates would have put the “against” vote over the top. There was also reportedly fraud and intimidation on both sides of the vote.
The governor may have been too powerful under this system, which led to the swing against executive powers in 1874. The governor could appoint not only judges, but also county official sand county tax assessors. The whole idea there was to prevent ex-Confederates from regaining power in local elections, but obviously the constitution accomplished that by creating a mega-governor.
There was constitutionally-enshrined gerrymandering, again to forestall ex-Confederates from getting into the legislature.
While it is a legitimate problem to have a constitution that (maybe) the majority of actual residents probably do not support, it’s hard to look back at this constitution and really complain that it wasn’t nice enough to ex-Confederates.
The good:
For the first time, the delegates put in a constitutional commitment to public education. There were black delegates, at least one of whom argued that racism is rooted in lack of education, and that a strong commitment to education would ameliorate racism in Arkansas and the United States more broadly.
This constitution mandated the creation of the University of Arkansas, my employer, whom I love and occasionally fret about firing me for intemperate Substack posts.
Not only no slavery, but a constitutional commitment to legal equality for black people!
There were provisions promoting railroads and economic development— factors crucial to developing a modern economy.
In short, there was a lot to like in the 1868 constitution, and the things that didn’t work well were kind of abstract or less morally outraging in the context of Reconstruction.
It’s basically the Confederacy equivalent of Maryland or Missouri, two states that just barely stayed in the Union.
There is some interesting speculation that “religious tests” meant testing whether you are part of a specific sect. Something like that is probably the explanation since otherwise these two provisions are directly contradictory.