Jump to Content Jump to Main Navigation
The Georgia State Constitution, 2nd Edition by Hill Jr., Melvin B; Hill, G LaVerne Williamson (7th May 2018)

Part One The History of the Georgia Constitution

From: The Georgia State Constitution (2nd Edition)

Melvin B. Hill Jr., G. LaVerne Williamson Hill

(p. 3) The History of the Georgia Constitution

The Advisory Commission on Intergovernmental Relations (1989) concluded in Finding Number One of its study of state constitutional law that state constitutions and the U.S. Constitution are “coordinate documents which, together, provide the total framework for government within the United States. Neither can stand alone.”1 Despite the lack of general public knowledge about state constitutions, these documents provide the framework for important public issues not covered in the U.S. Constitution—education and schools, criminal justice systems, and elections process, for example. State constitutions reflect the independence of the states as well as the diversity of understanding and philosophies of government found in the states.2 State constitutions, in their inception and amendment, provide a forum for considerable and direct citizen involvement and input. These documents are longer, more detailed, and more frequently amended. As such, a state constitution can easily become a fascinating record of that state’s history, continuing development, and political principles and values. A state’s constitutional history is often a reflection of its political, economic, and social histories. As ACIR noted, state constitutions “complete and balance” the nation’s Constitutional framework, and thus are essential in our federalist system.3

(p. 4) Georgia historian Numan Bartley concluded that change and growth in a state’s constitution, major and minor, cannot be divorced from change and growth in society generally.4 Donald S. Lutz argues that “one can glean from a [state]constitution the balance of political forces, a structure for preserving or enhancing that balance, a statement of the way people should treat each other, and the values that form the basis for the people’s working relationship, as well as the serious, remaining problems in political order.”5 With more state constitutions (ten) than all the states, with the exception of Louisiana, few state constitutional records are more complete in the telling of the growth and history of a state than Georgia’s. In addition, Georgia’s constitutional experience illustrates the various methods by which a constitution can be written or rewritten—seven by convention, two by commission, and one (1976) by the Office of Legislative Counsel in the Georgia legislature.

As G. Alan Tarr stated in Understanding State Constitutions, the frequency of revision and amendment of state constitutions is perhaps one of the most salient differences in state constitutions and has broad implications for the study of constitutional law.6 Given the significant and broad-based powers of states over the lives of their citizens, flowing from the Tenth Amendment, the more frequent change of state constitutions is no surprise. As Michael Colantuono concluded, “although constitutional principles typically are thought to have lasting significance, and are therefore designed to be changed only infrequently, a constitution must change in response to changing social and political realities.”7 Georgia’s constitutional history is certainly a prime example of this observation.

As a general rule, state constitutions, and their revisions and amendments are stimulated by political reactions to critical events, continuing problems, or major (real or perceived) crises in that state’s development. Seven of Georgia’s ten constitutions, for example, have been directly associated with war-related periods—1777, 1789, 1861, 1865, 1866, 1877, and 1945. Though each effort has been described as the adoption of a “new constitution,” the bulk of language used in one constitution has been carried over to the succeeding document. Therefore even the current state constitution contains provisions virtually identical to those of the 1789 state constitution.

Most state constitutions dating from the American Revolution were framed immediately before or soon after the issuance of the Declaration of Independence and were brief, general documents. A few states made alterations in their colonial charters and used them as constitutions.8 When a new constitution was developed, details regarding governmental organization, administration, and (p. 5) authority were usually left to the legislature.9 Early state constitutions reflected the basic eighteenth-century view that “government is evil and should be restrained.”10

With the passage of time and the increasing complexity of state governmental systems, however, longer state constitutions became more common. Factors that contributed to the growth in length, detail, and restrictive contents of state constitutions include population growth, urbanization, growth in popular participation in public affairs, extension of suffrage, industrialization, technological development, and growth in the functions and responsibilities of state government.11 Simultaneously, the public became more comfortable with, even required, an expanded and more active role of state government in citizen affairs. Georgia’s constitutional history reflects a similar pattern of development.

Political scientist Daniel Elazar identified three broad subcultures within American constitutionalism: moralistic, individualistic, and traditionalistic. “While these identifiable differences were more a matter of emphasis and degree, and while these characteristics were present to a greater or lesser degree in all three regions, the New England states tended to be more individualistic, and the colonies in the South tended to be more “traditionalistic.”12 The individualistic political culture emphasizes democratic order as a marketplace. Government exists to handle those functions demanded by the people. The moralistic political culture sees “good government” as measured by the degree to which it promotes the public good and the level of commitment of those who govern to the public good.13 But Georgia is most often identified as a “traditionalistic political culture,” which accepts government as actor with a positive role in the community. Here the role of government is confined to continued maintenance of the existing order, with power restricted to a relatively small group from the established elite.14 This characterization helps to explain Georgia’s constitutional development and revisions, as well as the state’s continued conservatism under both Democratic and Republican dominance.

Early Government in Georgia

Following two years of negotiations, King George II of England signed the Charter of Georgia on April 12, 1732. With this event Georgia became the last of the colonies that would later become the original thirteen states.15 The charter (p. 6) was twenty pages long and written in a legalistic style, with no divisions into articles, sections, or paragraphs. A small group of prominent Englishmen, led by James Oglethorpe, persuaded King George to grant them, as trustees, a charter establishing a colony between South Carolina and Spanish Florida. As William Swindler notes, Georgia’s creation as a colony served multiple purposes. For the British its existence consolidated the southern frontier defense, particularly against the Florida Spanish. The fledgling colony also promised the supply of silk, wine, and other items that were difficult to obtain.16 Oglethorpe saw the colony as an economic and political refuge to obtain employment in an overcrowded England or for those who had faced religious persecution.17

The colony was organized as a trusteeship. A common council of fifteen served as an “Executive Committee.” The grant of authority to the trustees of the corporation governing the colony was for a period of twenty-one years, after which time control passed back to the Crown. Oglethorpe set sail for the American colonies on November 17, 1732, with about one hundred settlers “carefully selected from among the poor and unemployed of England.”18 Though Oglethorpe was referred to as “governor,” he was never officially appointed to this position. It was a decade before the formation of a unified executive authority evolved in Georgia.

On July 7, 1733, Oglethorpe swore in the officials of the “Town Court of Savannah and Precincts thereof,” the first local governmental body in Georgia. The seventy trustees having authority over Georgia were given essentially a free hand in running the colony, leading to the early development of a formalized state governmental system in Georgia. Two years prior to the end of the trustees’ reign, a first representative assembly was established through elections held in January 1751. The group had no legislative power, acting strictly as an advisory body to the trustees’ Provincial Congress. In October 1754 a royal governor, under the direct control of the Crown, arrived in Georgia to set up a new government. This governing arrangement existed until the pre-revolutionary “stirrings” of the 1770s.

Georgia was not quick to join the movement toward independence, due largely to the colony’s “sense of well-being.”19 The colony sent no representatives to the First Continental Congress in 1774, although a provisional Congress met in Savannah in early 1775. A second provisional Congress sent a full seat of delegates. For a time the number of loyalists and revolutionaries in Georgia remained evenly divided.20 Ultimately Georgia resolved its inner conflicts about the revolutionary efforts and secured its place among the original states. The constitution writing began. Lee Allen and Richard Saeger organize Georgia’s (p. 7) constitutions into three broad categories: the Founding Era, the Federalizing Era, and the Modern Era.21

The Founding Era: The Constitutions of 1777, 1789, and 1798

The Constitution of 1777: The Legislative Primacy Constitution

Following several revolutionary mass meetings in Georgia, Georgia’s first constitution was drawn up by the Provincial Congress in April 1776. Though Georgia was still a colony in the eyes of Great Britain, this early document provided a framework for statehood and first expressed a philosophy of government repeated in succeeding state constitutions: “the people, with whom all power originates, and for whose benefit all government is intended.”22 Allen and Saeger call the Constitution of 1777 the “Legislative Primacy Constitution.” This first constitution included a president with executive powers, appointed by ballot in the Provincial Congress for six months; a Council of Safety to serve as a Privy Council; a chief justice; two assistant judges; an attorney general; a provost-marshal; and a clerk of the Court of Sessions.23 As with most of the state constitutions of this time, the Georgia Constitution of 1777 was anti-monarchy, anti-executive, and pro-legislature.24

It was not until after the colonies had come to a decision on independence that they made any move toward establishing a permanent form of government. Following receipt of the Declaration of Independence, Archibald Bullock, president of the Safety Council in Georgia, called a constitutional convention in Georgia. Ethel Ware notes that this first “constitutional convention” was not really a convention at all, but rather a session of the General Assembly. Following the election of delegates to the Provincial Congress in September, meetings began in October 1776. The draft was completed in February and was not submitted to voters for ratification. It remained in effect for twelve years. This constitution vested most governmental power in a state legislative body. It consisted of an introduction and sixty-three articles arranged in no particular sequence and included a condemnation of the parliament of Great Britain.

The Constitution of 1777 declared the separation-of-powers doctrine and included many basic rights such as free exercise of religion, freedom of the press, trial by jury, and the privilege of habeas corpus. Such items were carried over to later versions.25 With the formation of the federal system through the ratification (p. 8) of the federal Constitution, many states, including Georgia, were inclined to re-evaluate and adjust their state constitutions in order both to correct practical problems in state government operation and to make that operation more harmonious with the new federal system.26

The Constitution of 1789: The Union Constitution

On January 2, 1788, Georgia became the fourth state to ratify the federal Constitution (state ratification of the Bill of Rights, however, would wait until 1939). Following the completion of the ratification process for the federal Constitution in October 1788, Georgia began to revise its state constitution. A state convention, composed of three persons from each county, met in November of that year.

Three separate conventions were appointed to amend Georgia’s constitution in order to bring it into conformity with the federal Constitution. The first convention drafted a new constitution rather than revising the old. The second convention amended the resulting constitution, and the third convention took one day to organize, one day to consider the proposed constitution, and one day to approve it with one amendment. The amendment stated that no money would be withdrawn from public funds except by “appropriation made by law.” This new constitution was formally adopted on May 6, 1789.

For the shortest of Georgia’s constitutions, the framers of Constitution of 1789 used the federal Constitution as a model, thus earning the designation Union Constitution from Allen and Saeger.27 It included four articles, providing for a bicameral legislature to replace the single-house council (Article I), an executive (Article II), and a judicial branch (Article III). It had no bill of rights, and created an elected house and senate, the “General Assembly,” which was given the power to select a governor.28 The judicial branch received little attention, with judges and attorneys generally being chosen by the legislature and with no formal power of judicial review.29 Protections normally found in a bill of rights—free press, trial by jury, habeas corpus, and freedom of religion—were also included in this constitution.

Swindler suggests that the Constitution of 1789 was destined to enjoy only a short life. In the case of Chisholm v. Georgia (1793), the U.S. Supreme Court upheld a suit by private parties against the state and declared that state sovereignty was limited under the federal Constitution by the paramount sovereignty of the federal government. The resulting protest of Georgia and other states led to the swift passage and ratification of the Eleventh Amendment to (p. 9) the federal Constitution. Occurring simultaneously was the scandal of the Yazoo land frauds. In 1789 four stock companies were organized to take over the sale of some 20 million acres of land in the Natchez District. Though this sale fell through, a second Yazoo land sale act was passed in 1795 involving 35 million acres and four new companies. However, because of evidence that all but one of the members of the legislature had been bribed, the new legislature in 1796 repealed the act. Much of the land had been offered at about a penny an acre to the lawmakers who had passed the legislation. Although the Supreme Court upheld the contract in 1810, public outrage over the land frauds helped fuel the call for constitutional revision.30 The brevity of this constitution also made early revision inevitable.

The Constitution of 1798: The Reform Constitution

One of only two constitutions forged under peaceful conditions, the Constitution of 1798 stood in effect for sixty-three years. Also written by convention, this constitution included more detailed provisions regarding the operation of state government in Georgia, including language designed to prevent a recurrence of the Yazoo land frauds. Important provisions were clarified, with legislative powers more carefully defined and limited, and eligibility for office circumscribed.31 The resulting document earns the name “Reform Constitution” from Allen and Saeger.32 Whereas the Constitution of 1789 erred on the side of brevity, the Constitution of 1798 included too much detail. In fact, many of the provisions included in this constitution more properly belonged in the state code.

Following the pattern of the Constitution of 1789, this constitution was divided into four articles. But the Constitution of 1798 was almost twice as long.33 The first article clearly established the provision of separation of powers, with the legislature continuing to be the dominant branch of government.34 But “the amendments to the Constitution of 1798 showed a definite trend away from legislative dominance toward a better balance of power between the branches of the government.”35 Most significant among the changes made in this area were provisions for the popular election of the governor and authorization for the establishment of a state Supreme Court. The Supreme Court was not formally established, however, until 1846. Until this time Georgia utilized only local courts with no formal system of review. The delay in the creation of a state (p. 10) Supreme Court can be attributed to public outrage over the decision of the U.S. Supreme Court in Chisholm v. Georgia.36

The 1798 constitution also provided that there was to be no future importation of slaves from Africa or any foreign country after October 1, 1798. The legislature was prohibited, however, from preventing immigrants from other states from bringing their slaves with them. By act of 1801 no slave was to be freed, and in 1818 free slaves were prohibited from entering the state.

The Federalizing Era: The Constitutions of 1861, 1865, 1868, and 1877

During the Civil War and post-Civil War era, four new constitutions were written by conventions and approved by the people. The new constitutions represented rapid changes in state government control, mirroring the rapid changes in the control of state government in Georgia during the Reconstruction period. Constitutions were written and approved in 1861, 1865, 1868, and 1877.

The Constitution of 1861: The Confederal Constitution

As a response to prior state legislative authorization, a convention was assembled in Milledgeville in 1850. The Georgia legislature had required the calling of such a convention in the event that the United States passed a law prohibiting slavery or if New Mexico or California were admitted to the Union. The 1850 Convention issued the Georgia platform that threatened secession. Another convention meeting in 1861 adopted the Ordinance of Secession. A Congress of seceded states met in February 1861, organized a provisional government, and adopted the Constitution of the Confederate States of America.37 Saye notes that “among other things, the Secession Convention also framed a new constitution for Georgia.”38 Patterned largely after the Confederate Constitution, this fourth constitution was the first one to be submitted to the people for ratification.

Whereas earlier constitutions had enumerated only four or five personal liberties, the Constitution of 1861 incorporated a long bill of rights. Much of this part of the Constitution of 1861 has been carried over to the present state Constitution. Thomas R. R. Cobb, convention chairman and the most active of the convention membership, presented a “Declaration of Fundamental Principles.” This state bill of rights was adopted as Article I of the new constitution. This declaration consisted of twenty-eight paragraphs, embodying Cobb’s conservative philosophy of government. All the provisions of the Bill (p. 11) of Rights of the federal Constitution were included, along with many other safeguards.39

Suspension of habeas corpus and ex post facto laws were prohibited. Due process and the concept of judicial review were incorporated. Saye notes that Thomas R.R. Cobb also published the state’s first Code, a summary of substantive common law and statutory law.40 However, the results of the Civil War and Reconstruction period precipitated numerous changes in state constitutional structure over the next few years.

The Constitution of 1865: The Reconciliation Constitution

On July 13, 1865, Provisional Governor James Johnson issued a call for a constitutional convention to meet in October. As in most of the seceded states, delegates attending the Convention of 1865 were charged with the responsibility of repealing the Ordinance of Secession, abolishing slavery, repudiating the war debt, and framing a new state constitution acceptable to the United States. The most controversial task proved to be repudiating the war debt, which was voted after considerable argument and at the insistence of President Andrew Johnson.

The constitution drawn up by the Convention of 1865 was quite similar to the Constitution of 1861. The long bill of rights was continued, with the elimination of some of the broader generalizations, such as the statement that “the fundamental principles of Free Government cannot be too well understood, nor too often recurred to.”41 A section prohibiting slavery was added. No significant changes were made in the legislature, and the governor was constitutionally limited to two terms.

The major changes came in regard to the judicial branch. Judges of both the Supreme Court and the superior courts were to be selected by the legislature. Judges of all other inferior courts would be elected by the people. The goal was to liberate the judicial branch from the executive branch. Among other important provisions in the Constitution of 1865, the legislature was given the right to grant the power of taxation to county authorities and municipal corporations, thus enlarging the sphere of home rule; and the legislature was authorized to provide for general education and to restore the state university.42

In November 1866 the Georgia legislature refused to ratify the Fourteenth Amendment to the U.S. Constitution, a condition for readmission to the Union. The Constitution of 1865 was rejected, and Georgia was placed under military (p. 12) rule.43 The struggle to develop a state constitutional framework acceptable to the president and the postwar Congress continued.

The Constitution of 1868: The Reconstruction Constitution

By a congressional act of March 2, 1867, supplemented by acts of March 23 and July 19, Reconstruction was established, and military rule in the South resumed under the command of the U.S. army. The officer in charge was to arrange for the election of delegates to a convention to draft a new constitution providing for black suffrage. If Congress approved the constitution, and the legislature elected under the new constitution ratified the Fourteenth Amendment, the reconstructed state would be considered eligible for readmission to both houses of Congress and military rule would be withdrawn.44 Major issues at this convention included the Fourteenth Amendment, qualifications of the electorate, debts and the relief of debtors, and allocation of powers to various departments.

The convention assembled in Atlanta on December 9, 1867, and remained in session until March 11th of the following year. Of the 169 delegates attending, the majority were northerners or northern sympathizers, greatly influenced by radical Republicans. Saye, however, reports that the principal leaders of the Convention of 1867, though not natives of Georgia, were men who had resided in the state long enough to establish permanent interest in the state’s future.”45 Still, concern about the makeup of the convention led a number of journals of the time to dub it the “Unconstitutional Convention.”46

The relief of debtors occupied more attention than any other subject during the convention. The Constitution of 1868 in fact contained the first prohibition against imprisonment for debt. As finally adopted, the constitution deprived the courts of jurisdiction to enforce most debts contracted before June 1, 1865. Further, the legislature was authorized to levy a 25 percent tax on creditors for debts contracted before that date unless the creditor should abandon his claim. Also a homestead realty and personalty to the value of $3,000, which should be free from judgment, was allowed to each head of a family, guardian, or trustee of a family of minor children. Although Congress accepted the homestead provision, the other clauses were rejected except as they related to debts contracted for the price of slaves or contracts made with the intent of assisting the rebellion.47

Ware concludes that, for all its faults, the constitution produced in the Convention of 1868 can be viewed as comparing positively with other Georgia constitutions. The convention expanded the first article (the bill of rights) of (p. 13) the constitution, adding three sections. Saye noted of the new provisions that they were “all logical products of the time and circumstances.”48 These changes included such items as “the social status of the citizen shall never be the subject of legislation,” “whipping as a punishment for crime is prohibited,” and “mechanics and laborers shall have liens upon the property of their employers for labor performed or material furnished.” The substance of the first paragraph in the Fourteenth Amendment of the federal Constitution was also inserted into the new bill of rights.49

A discussion of the electoral franchise became the second article, entitled “Franchise and Elections,” and the franchise was extended to all male citizens of the United States.50 The residence qualification for voting was reduced to six months in the state and thirty days in the county. The composition of the Senate remained the same, one member elected from each of forty-four senatorial districts. Representation in the House was changed to reflect population (e.g., the six counties largest in population received three representatives). Although apportionment among the counties could be altered following the census, the aggregate number of representatives could not be changed.

Powers of the General Assembly remained largely the same, including the election of the secretary of state, treasurer, and comptroller general. The governor’s term was increased to four years, and there was no prohibition against re-election. The power of granting pardons was moved from the General Assembly to the governor. The governor was also granted the authority to appoint judges of the Supreme Court and the superior and district courts, the state attorney general, solicitors of the superior courts, attorneys of district courts, and the state school commissioner.51 Other powers remained the same.

The judiciary was simplified under the Constitution of 1868. A Supreme Court of three judges, authorized by an earlier constitution, appointed by the governor for terms of twelve years, was established for the purpose of correcting errors made by the lower courts. A superior court, consisting of one judge appointed by the governor for an eight-year term, was provided for each judicial circuit. Superior courts retained jurisdiction in civil and criminal cases and had exclusive jurisdiction in divorce cases, cases where the offender was subject to the loss of life or freedom, cases respecting titles to land, and cases of equity. The inferior courts that dated from the Constitution of 1798 were abolished, and their books, papers, and proceedings transferred to the courts of ordinary, the first county governing authorities and the predecessors of the modern-day probate courts. They were replaced by the district courts, one for each of the forty-four senatorial districts. These courts exercised jurisdiction over all criminal (p. 14) cases not involving death or imprisonment, and civil cases as directed by the legislature. A court of ordinary for each county and a justice of the peace and notary public for each militia district were continued as before.52

The Constitution of 1868 directed the General Assembly to provide “a thorough system of general education, to be forever free to all children of the State.” The office of state school commissioner was established, and the poll tax, taxes on shows, exhibitions, and the sale of “spirituous liquors,” and the proceeds from commutations for military service (provided for conscientious objectors) were set aside for the support of the schools.53 If supplemental funds were needed, the General Assembly was authorized to impose a general tax on property. Article XII re-established the method of constitutional amendment under the Constitution of 1798 (passage of an amendment by two-thirds vote of two successive legislatures), and added the requirement that amendments be submitted to popular vote before final ratification.

Though constitutional requirements were met, Georgia’s readmission into the Union was further delayed by its refusal to seat the twenty-eight blacks elected to the House of Representatives. The refusal was based on the claim that the Fourteenth Amendment right to vote did not necessarily mean a right to hold office. In White v. Clements (1869), however, the Georgia Supreme Court upheld the right of blacks to hold office, and in January 1870 the black legislators were seated in the House. On July 15, 1870, Congress passed an act declaring Georgia entitled to representation. Reconstruction in Georgia was complete. It was not until 1876, however, that the last of the armies was removed from the state, and it was not until 1872 that Georgians participated in a free election for state officers. Swindler notes that, like most other southern states, Georgia resented the Reconstruction Constitution, “even though by comparison with other states it was a relatively moderate document.”54 As Atlanta, and Georgia, gradually recovered from the devastation of the war, many Georgians became committed to the vision of a “New South”—a slogan created by the Atlanta Constitution editor, Henry W. Grady. Grady expressed the convictions of many postwar leaders in the state and encouraged the call for a constitutional convention.55

From 1870 to 1877 there was much agitation for a new convention to frame a state constitution whose terms would be dictated not by necessity or pressure but by the will and changing attitudes of the people—a constitution not encumbered by the baggage of war and Reconstruction. Pressure for a new state constitution increased when the Democrats returned to power in Georgia. Throughout the year 1876 calls for a new state constitution repeatedly appeared in the press, and numerous presentments by grand juries urged that a constitutional convention (p. 15) be called.56 In 1877 a bill passed the General Assembly calling for a popular vote on the question of holding a convention. It was this popular vote that provided the final impetus for constitutional revision.

The Constitution of 1877: The Restoration Constitution

One hundred and ninety-three members, elected on the basis of population, assembled in the Hall of Representatives of the state Capitol on July 11, 1877. The large number of delegates necessitated the use of a system of committees, representing the thirteen articles of the existing Constitution of 1868. In addition, a committee of twenty-six on Order, Consistency, and Harmony of the Constitution (Committee on Revision), made up of two members from each of the thirteen other committees, was created.57

Following extensive debate over almost every paragraph of the new constitution, the convention completed its work on August 25, 1877, and submitted the document to the people for approval. On December 5th, the document received the approval of the citizens of Georgia. Swindler notes that, like so many Constitutions drafted to combat the ills of Reconstruction, the 1877 Georgia Constitution added great detail to almost all of its articles.58 “The general tenor of the instrument as a whole was restraint upon the acts of individuals and institutions.”59

Article I, the Bill of Rights, was continued as an elaborate list of personal rights dating from the Constitution of 1861. Article II, the Elective Franchise, remained largely as it existed under the previous constitution. Residency requirements prior to the election were extended to one year in the state and six months in the county.

Article III left the composition of the state legislature largely as it had been before, with terms for both fixed at two years. Senators had previously served four years. But as a reaction to the abuse of power during the Reconstruction period, numerous restrictions were placed on legislative power. New Articles IV, relating to the power of the General Assembly over taxation, and VII, relating to the power of the governor, were devoted to this objective. The governor was restricted to a two-year term, ineligible to succeed himself after a second term for a period of four years. Otherwise his powers remained basically the same.

In Article VI, concerning the judiciary, the district courts were abolished. The selection of most judges was returned to the General Assembly rather than the governor. The Supreme Court would consist of three judges, selected by the legislature to serve for a period of six years. The superior courts continued to (p. 16) be the courts of original jurisdiction. A court of ordinary and of probate was continued for each county, with a judge elected by the people for a term of four years. The ordinary became the principal administrative officer of the county.60 One justice of the peace for each militia district was to be elected by the people of the district for a period of four years. This official had the power to try cases involving no more than $100. The attorney general was elected by the people for a two-year term.

Article VII, Finance, Taxation, and Public Debt, was designed primarily to prohibit a recurrence of the financial abuses such as those the state suffered during the Reconstruction era. The only purposes for which the General Assembly could levy taxes were to support the state government and public institutions, promote education, pay the principal and interest on the public debt, defend the state, and supply artificial limbs to Confederate soldiers.61

Article VIII provided for a public education system “for the education of children in the elementary branches of an English education only,” and a state university.62 A separate college for blacks was authorized, clearly establishing the concept of separate educational facilities for the races. Article XII made amending the constitution easier, with an amendment proposed by a two-thirds vote of those elected to both houses of the General Assembly and ratified by a majority of people voting on the amendment.

Other items of interest in the new constitution included the following. Lotteries were forbidden as in the Constitution of 1868. Lobbying was declared a crime. In an effort to get rid of “carpetbaggers” from the north, residence requirements for senators and representatives were increased. The legislative session was cut to forty days, with salaries provided for members. Other executive officers, such as the secretary of state and the treasurer, were to be elected. Provision was made for the legislature to establish uniformity of procedure for all courts, except city courts, by law.63

Framers of the Constitution of 1877 had made the document much longer than previous Georgia constitutions in order to limit legislative power and judicial interpretation. As a result, the constitution was amended 301 times. Some of the amendments were local and temporary in nature. The excessive detail incorporated into post-Reconstruction southern constitutions such as this one required a constant series of amendments to keep the constitution up to date, removing restrictions and shifting power when necessary. Swindler states that “the result was a document which, early in the new century, was riddled with appended changes and cried for revision.”64

(p. 17) Developments from 1877 to 1945

A number of constitutional and organizational changes affected the operation of state government during this period. In 1895 the office of Supreme Court justice was made elective. A children’s (juvenile) court was established in 1908; separate juvenile courts with their own judges were established in 1915. In 1943 a Public Service Commission of five popularly elected members was given the power to regulate public utilities. A court of appeals was created in 1906 to relieve the workload pressures of the Supreme Court. Between 1908 and 1938 the purposes for which counties could tax were expanded. In 1943 the state board of education was reorganized, and a board of regents was established.65 These innovations in state government purpose and operation, in combination with the excessive number of amendments, prompted yet another call for constitutional revision.

In 1931 the Institute of Public Affairs at the University of Georgia published a document entitled A Proposed Constitution for Georgia. The Institute was established to provide a forum for the proliferation of “reliable and authentic information on questions of large current significance.” In addition to problems of national and international importance, the Institute also focused on matters of particular interest to the south and to Georgia. Following four years of public discussion, a committee of prominent representatives of Georgia’s university system was appointed by the chancellor of the University of Georgia, Charles Mercer Snelling, chairman of the Institute, to draft a proposed constitution for Georgia.66 The document was presented for public discussion purposes only, with the idea that it would “give public opinion the opportunity of agreeing or disagreeing with definite proposals for change.”67

Recognizing the inadequacies of the Constitution of 1877, the legislature, under the leadership of Governor Ellis Arnall, authorized a revision of the constitution by commission. The twenty-three member commission was appointed by the governor and represented all three branches. Leah Chanin suggests that the use of a commission instead of an elected convention for revision precluded the previous failure of the Georgia legislature to obtain the necessary two-thirds vote to call a convention to draft a new state constitution.68 But, as noted by Albert Sturm, the “increasing use of the constitutional commission as an auxiliary device for initiating both major and minor changes is one of the most significant developments in the procedure of modernizing state constitutions.”69

(p. 18) The Constitution of 1945: The Executive Reform Constitution

The Commission of 1945 consisted of the governor, the president of the Senate, the speaker of the House, five members of the House appointed by the speaker, three members of the Senate appointed by the president, a justice of the Supreme Court named by the court, a judge of the Court of Appeals named by the court, the attorney general, the state auditor, two judges of the superior court, three practicing attorneys, and three laymen appointed by the governor. This new method of constitutional change required that the commission report its work to the governor sixty days prior to the next legislative session. The General Assembly would approve the constitution, making changes as necessary, with the public voting on the new constitution at the 1945 general election. The commission worked in seven subcommittees for two years, with the governor presenting the completed document to the legislature in January 1945.

The House and Senate held public hearings, which provided opportunities for several groups to lobby for particular changes. The county commissioners opposed any county consolidation. The League of Women Voters urged that women be allowed to serve on juries, and that the state school superintendent be elected by the board rather than the public. Governor Ellis Arnall was the chief proponent of the new constitution, urging the inclusion of three particular measures: home rule, the merit system, and a prison board. After debating each article, the legislature submitted the new constitution to the public at the general election. The public approved the new constitution in August 1945.

This new constitution was considered “streamlined,” with a number of important amendments to the previous constitution having been incorporated into the body of the document. Significant changes included the addition of the office of lieutenant governor, as well as new constitutional officers; the creation of two new boards—a state board of corrections and a state department of veterans’ service; and authorization for service of women on juries; in addition the Supreme Court was increased to seven associate justices, elected for six-year terms.

The article on finance, taxation, and public debt was the longest, defining exemptions from taxation for religious and charitable institutions, providing a $2,000 homestead exemption, and defining rules on state debt. The education article was carried over with amendments relating to the Board of Education and the Board of Regents incorporated. A state “merit system” with a non-salaried state personnel board was added. Home rule for counties and municipalities was provided, with optional plans to be proposed by the General Assembly, including initiative, referendum, and recall.

The final Constitution of 1945 produced by the commission continued most of the limitations founded on governmental power in the Constitution of 1877. In fact, approximately 90 percent of the provisions included were taken from (p. 19) this constitution. Changes were confined primarily to those in form and organization of the document. The commission was equally divided on the question of eliminating the constitutional ban against a successive term for governor, with Chairman Arnall breaking the tie in favor of eliminating the ban. The General Assembly, however, reversed this action.

The eighth constitution of Georgia received the approval of the people at a special election held on August 7, 1945. Governor Arnall proclaimed the document to be in effect on August 13th. Its approval gave Georgia the distinction of being the first state to adopt a constitution proposed by commission rather than by constitutional convention.70

Merritt Pound and Albert Saye noted that there were two principal arguments for the use of an appointed commission instead of an elected convention to revise the state constitution. First, as noted above, the existing constitution required a two-thirds vote of the total membership of both houses of the General Assembly to call a constitutional convention, and previous attempts to call a convention had failed. “Since the work of the proposed commission would be submitted directly to the General Assembly and subjected to revision before submission to the people, the resolution creating it met with approval whereas a resolution calling a convention would probably have failed.”71 Albert Lee Sturm notes that the increasing popularity of constitutional commissions reflects the preference of state legislatures for auxiliary bodies over whose proposals they have control, as well as a dampened enthusiasm for the use of constitutional conventions because of voter rejections.72

Second, the preamble of the resolution authorizing the commission stated that a revision of the constitution could be accomplished “more satisfactorily” by a small commission rather than a convention. The major criticism made of the use of an appointed commission was that this method gave the incumbent administration too much influence in shaping the fundamental law of the state. Governor Arnall, in fact, served as chairman of the commission and appointed eight of the other members.73 Concerns over both the process and substance of the Constitution of 1945 continued to arise periodically over the next thirty years. The constitution was only three years old when the state legislature began adding amendments. Leah Chanin notes that this process continued, with literally hundreds of amendments added before a new constitution was finally drafted.74 “As in previous Constitutions, only fifteen or twenty percent of the amendments were general in nature, the other eighty or eighty-five percent were local in character.”75

(p. 20) The Constitution of 1976: Interim Constitution

Efforts to revise the Constitution of 1945 began as early as 1963, when a Constitutional Revision Commission was established to draft a new constitution for the state.76 The efforts of this commission resulted in a new constitution being approved by the General Assembly at a two-month-long extraordinary session in 1964. Despite its having the requisite number of votes by the General Assembly, the document was never submitted to the people, because of a lower federal court decision (Toombs v. Fortson, 1966) that the document had been the product of a malapportioned legislature. Even though that ruling was later overturned by the U.S. Supreme Court,77 it was not in time to permit a vote on the proposed new constitution at the 1964 general election. As one commentator stated: “The State of Georgia had spent a million dollars drawing up a new Constitution, but the people never got to vote on the question of accepting it.”78

Another major effort to revise the 1945 Constitution began in 1969 when the General Assembly created the Constitutional Revision Commission of 1969. The efforts of this commission led to a document that was approved by the House of Representatives in 1970, but not the Senate. The Senate refused to take action on the document due to insufficient time for consideration.

George Busbee was a member of the General Assembly during the thwarted 1969–1970 constitutional revision effort, and he became convinced that revision of the entire document at once was too difficult. In 1974, he ran for governor on a platform calling, in part, for the revision of the state Constitution. He believed that this revision should be attempted on an article-by-article basis rather than as a whole, given the unsuccessful history of constitutional revision efforts prior to that time.

With this perspective in mind, Governor Busbee, upon election, requested that the Office of Legislative Counsel prepare a proposed “new” constitution for submission to the voters at the 1976 general election, which was organized in a way that would allow for its systematic revision on an article-by-article basis. Lawyers in this office, accustomed to preparing and revising legislation at the direction of the Georgia General Assembly were directed to reorganize the document only, and not to make any substantive content changes. In 1975 the House Judiciary Committee made several changes to the proposed draft, and in 1976 the document won easy passage in both the House and Senate. The 150-page constitutional revision was overwhelmingly approved by popular vote on November 2, 1976. With a vote of 610,516 to 394,734, Pound and Saye note (p. 21) that this was the largest vote ever cast on any state constitution in Georgia.79 Although it was not a substantive revision, this document was in fact Georgia’s ninth constitution. It set the stage for the most thorough revision of the state’s constitution in modern history.

The Constitution of 1983: The Contemporary Constitution

In an article in the December 1983 issue of Mercer Law Review entitled “An Overview of the New Georgia Constitution,” George D. Busbee, governor of Georgia from 1975 to 1983 and former chairman of the Select Committee on Constitutional Revision, stated the following:

Constitutional revision is not for the faint of heart. It is not a Sunday drive in the mountains. It is an incredibly difficult, sometimes tedious, sometimes exhilarating, always challenging undertaking requiring the cooperation of the leadership of all three branches of state government, of counties and municipalities, of local school boards, of the business community and the labor community, of public interest groups and private interest groups, of people inside the government and people outside the government—in short, it requires the cooperation of just about everybody. In fact, with apologies for the hyperbole, I almost would go so far as to say that the confluence of factors needed to bring about the ratification of a new state constitution approaches that needed for the creation of life itself!80

This statement reflects the difficulties encountered in the most recent constitutional revision effort in Georgia, which culminated in the approval of a new state Constitution by the people of Georgia at the November 1982 general election. Though Allen and Saeger refer to this revision as the “bureaucratic constitution,” a thorough review of the content shows that the revision goes well beyond the “burgeoning growth of modern administrative agencies” that Allen and Saeger cite as justification of their terminology.81 “Like its predecessors, Georgia’s current constitution reflects the changing politics of the state yet maintains many characteristics considered traditional: conservative fiscal policy, small government, and deference to localities.”82

In 1977, following the ratification of the 1976 Constitution at the 1976 general election, the General Assembly created by joint resolution the Select Committee on Constitutional Revision to oversee the entire revision effort.83 The members of the select committee were the governor, who served as chairman; (p. 22) the lieutenant governor and the speaker of the House of Representatives who served as cochairmen; the chief justice of the Supreme Court; the chief judge of the Court of Appeals; the attorney general; the chairman of the Senate Judiciary Committee; the chairman of the House Judiciary Committee; a trial judge appointed by the Judicial Council of Georgia; the Senate president pro tempore; and the House speaker pro tempore. Throughout the revision period, George Busbee was governor, Zell Miller was lieutenant governor, and Thomas B. Murphy was speaker of the House of Representatives. All made a major commitment of time and muscle to this initiative, and that commitment had a significant impact on the involvement of others and on the final legislative passage and popular ratification of the 1983 Constitution.

An organizational meeting of the select committee was held in May 1977. At this meeting the select committee, using the principles of “brevity, clarity and flexibility,” adopted the following general policies governing constitutional revision:

  1. 1.  The constitution should be totally revised.

  2. 2.  The language of each article should be broad and flexible, allowing the General Assembly a great deal of latitude when drafting legislation in the future to deal with issues.

  3. 3.  Once revised, there should be little or no reason to amend the constitution repeatedly, as is the present situation.

  4. 4.  The need to provide local constitutional amendments should be eliminated.

  5. 5.  The document, when completed, should be able to stand the test of time.

  6. 6.  The document should not contain provisions of a statutory nature, but should serve as a guide for present and future public policy.

The select committee also adopted the policy that the Constitution should be revised on an article-by-article basis. Once an article was drafted, the select committee would review it, revise it as needed, and then submit it to the General Assembly for approval. Following approval by the General Assembly, the articles would be submitted to the people for ratification or rejection on an article-by-article basis.

The select committee initially appointed three article committees: the Committee to Revise Article II on the Elective Franchise, the Committee to Revise Article VI on the Judiciary, and the Committee to Revise Article X on Retirement Systems and Educational Scholarships. These committees were comprised of approximately twenty-five people each and included elected state and local government officials, community leaders, and persons having an interest in the revision of the article (members of the League of Women Voters, representatives of Chambers of Commerce, etc.). The initial article committees were chaired, respectively, by Arthur K. Bolton, attorney general of Georgia (Article II); State Representative Wayne Snow, Jr., chairman of the House Judiciary Committee (Article VI); and State Senator Al Holloway, president (p. 23) pro tempore of the State Senate (Article X). All appointments were made by the select committee, on the recommendation of a nominating committee comprised of the governor, the lieutenant governor, and the speaker.

Each article committee was charged with the responsibility of preparing a proposed revision of its article by the beginning of the 1978 legislative session, so that action could be taken at that session on the proposal, and a proposed revision of Articles II, VI, and X could be submitted to the voters at the general election in November 1978.

The Committee to Revise Article II and the Committee to Revise Article X submitted proposed revisions of their respective articles to the General Assembly for consideration at the 1978 legislative session. The Committee to Revise Article VI requested additional time to work on the judicial article. The proposed revisions of Articles II and X were approved with little debate or controversy at the 1978 session. These articles were placed on the ballot at the 1978 general election for ratification or rejection by the voters. Although there was no organized opposition to these proposals, they were nevertheless rejected by the people.

This unexpected setback prompted speculation about the cause of the defeat. Some believed that it was because of the inordinate number of constitutional amendments that appeared on the ballot in 1978 (thirty-six general amendments and eighty-seven local amendments were offered, and the people “rebelled”). Others believed that the articles were rejected because some citizens questioned the wisdom of piecemeal constitutional revision. No citizen survey was ever conducted, so no one will ever know for sure why these articles failed.

Following this election, there was a period of uncertainty concerning the future of constitutional revision on an article-by-article basis. In July 1979, however, the select committee was reconvened, and it decided to appoint six new article committees to work, respectively, on Article I (Bill of Rights), Article III (Legislative Branch), Articles IV (Constitutional Boards and Commissions) and V (Executive Branch), Article VII (Taxation), Article VIII (Education), and Article IX (Counties and Municipal Corporations). These article committees were chaired, respectively, by State Representative Albert Thompson (Article I); Harold G. Clarke, attorney at law and former president of the State Bar of Georgia (Article III); Sidney O. Smith, Jr., attorney at law and former federal district court judge (Articles IV and V); Randolph W. Thrower, attorney at law and former commissioner of the Internal Revenue Service (Article VII); David H. Gambrell, attorney at law and former U.S. senator (Article VIII); and Robert H. Smalley, Jr., attorney at law and former chairman of the Senate Judiciary Committee (Article IX).

The select committee asked the first three of these article committees and the Committee to Revise the Judicial Article to submit their proposed revisions to the select committee by early December 1979; it asked the remaining article committees to report back to the select committee by early December 1980.

(p. 24) In January 1980 the select committee approved with some changes the recommendations of the Committee to Revise Article I, the Committee to Revise Article III, and the Committee to Revise Articles IV and V for submission to the General Assembly. It also approved with some modifications the proposed revision of Articles II and X that had been rejected by the voters at the 1978 general election. The committee to revise the judicial article was granted another extension so that it could continue its efforts to reach agreement on a proposed new judicial article.

Due to the interdependence of Articles I through V and X, an attempt was made at the 1980 legislative session to incorporate these six proposed new articles into a “new” constitution that would also contain unrevised Articles VI through IX and XI through XIII. The voters would then be asked to approve this constitution at the 1980 general election, and if they did, work would continue on the revision of the unrevised articles. Due to the confusion created by this new approach and the lack of sufficient time, this effort at the 1980 session was unsuccessful, and once again the prognosis for constitutional revision was dim.

At a meeting held soon after the close of the 1980 legislative session, the select committee decided to press on, and it requested that the remaining article committees, including the judicial article committee, complete their proposed revisions and report back by early December 1980. This was accomplished, and a meeting of the select committee was held in early 1981. At this meeting, it was decided that a new committee comprised of a broad spectrum of legislators was needed to review the recommendations of the various article committees and to submit a proposed new constitution to the General Assembly at a special legislative session to be held in the summer of 1981 on reapportionment. Pursuant to this understanding, a joint resolution was approved by the General Assembly at the 1981 session, creating the Legislative Overview Committee on Constitutional Revision.84 This committee was comprised of thirty-one members of the Senate and thirty-one members of the House of Representatives.

The legislative overview committee was charged with the responsibility, in conjunction with the Select Committee on Constitutional Revision, of reviewing the work and recommendations of the respective article committees and completing its review process prior to the proposed convening date of the special legislative session in late August 1981. These meetings of the legislative overview committee were held throughout the summer of 1981. They were personally chaired by the governor and cochaired by the lieutenant governor and the speaker of the House of Representatives. Agreement on a proposed new constitution was reached in late August 1981, and this document was introduced into both houses on the first day of the 1981 special session.

(p. 25) The General Assembly met in special session in August and September 1981 to consider reapportionment and constitutional revision. On September 25, 1981, a proposed new constitution was approved by the General Assembly. The final vote in the House was 148 “ayes” to twenty-five “nays”; the final vote in the Senate was thirty-nine “yeas” to seventeen “nays.”

The proposed new constitution was amended at the 1982 session. As amended, it was submitted to the voters for ratification or rejection at the 1982 general election. Perhaps because the document was supported by the leadership of all three branches of state government, perhaps because there was an organized public education campaign to explain it, perhaps because there was no organized opposition to the proposal, or perhaps just because the people had grown weary of twenty years’ worth of “talk” about constitutional revision, the proposed new constitution was approved overwhelmingly at the 1982 election, by a vote of 657,663 for and 211,342 opposed. The effective date of the new constitution was July 1, 1983. Therefore, it is referred to as the “1983 Constitution.” The 1983 Constitution included one amendment relative to sovereign immunity that had been placed on the ballot as a separate question at the 1982 general election. This amendment was also approved by the voters at the same election and was incorporated into the 1983 Constitution at Article I, Section II, Paragraph IX. This provision was subsequently amended again in 1990.

One might ask: Why was there such an interest in constitutional revision in Georgia for so long? The best answer to this question is the so-called “bed sheet ballot.” The Georgia Constitution had three features that caused the ballots at each general election held every other year to be extremely long. One was the number of elected statewide and local constitutional officers. Another was that the general Constitution itself was full of statutory detail, so that every time there was a need for a change in one even minor provision, there would be a need for a new constitutional amendment to fix it. Third, the Constitution permitted local amendments that had to be voted on by the people of the particular city or county affected. Therefore, the people of Georgia were demanding a new constitution that would be leaner and eliminate the need for so many amendments every other year. This came to a head in the 1978 general election when there were thirty-six general amendments and eighty-seven local amendments on the ballot, and all but fifteen general amendments were rejected by the people.

The rallying cry for the Select Committee on Constitutional Revision had been “brevity, clarity, flexibility.” The overriding purpose of the revision effort was to try to eliminate from the constitution those provisions that were more detailed and statutory in nature, as opposed to provisions that reflected broad constitutional principles. J. Robin Harris, the executive director of the select committee, commented at the first meeting of one of the article committees that one of the goals of the select committee was to eliminate as much “trash” as possible from the Constitution. A state representative immediately reminded him (p. 26) that “one man’s trash is another man’s treasure.”85 Nevertheless, the final product of the revision effort was indeed shorter than the previous constitutions, and there was a concerted effort by all of the “framers” to keep out excessive verbiage.

Fortunately for judges, lawyers, constitutional scholars, and others, the deliberations of the select committee, of all of the article committees, and of the legislative overview committee were recorded, transcribed, published, and indexed. The hard copies of these transcripts are available at the State Law Library, the Georgia Supreme Court, the Georgia Court of Appeals, the four accredited law schools in Georgia, and at selected libraries of the University System of Georgia.86 A digital version of these transcripts is available via GALILEO through most university libraries.

The Supreme Court and the Court of Appeals have referred to this record frequently, and they will certainly continue to do so. As stated by former appellate court judge Dorothy T. Beasley: “The 1983 Constitution is a new and revitalized organic law, which speaks to the current people’s will and understanding and need not depend solely on 200 year-old intentions of framers or the historical development of those intentions as announced by successor judiciaries, legislatures and executives.”87

Constitutional Amendments

Thomas Jefferson once observed that “some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant—too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”88 When Jefferson wrote these words, he did not have Georgia on his mind. Amendment X of the Georgia Constitution requires that the proposal be approved by two-thirds vote of the members of both houses of the General Assembly or by a constitutional convention called by the General Assembly, then approved by a majority of voters at the next general election (held in even-numbered years).89 The General Assembly approved seventeen amendments to the Constitution of 1945 when (p. 27) it was only three years old. In 1950 the number of proposed amendments rose to thirty-seven.

In commenting on the method of amendment of the Georgia Constitution in a 1956 case in the Georgia Supreme Court, Roberts v. Suttles, Justice Wyatt stated: “We are not unmindful of the argument that this is a very dangerous way in which to deal with fundamental law of our state, and that the Constitution is rapidly becoming a hodge-podge of so-called general provisions with local application. . . . We agree that the fundamental law of our state, the Constitution, by this method is being undermined and destroyed.” Proposed amendments must be made available to the public prior to the vote. But with limited explanation of proposed amendments available on the ballot itself and limited explanation to the voters by other means, voters can be left unsure of how to vote on these provisions. Changes made through the amendment process may sometimes be called into question based solely on this reason.

Nevertheless the trend continued. In 1960, eighty-seven constitutional amendments were proposed, including nineteen general amendments and sixty-eight local amendments. In 1962, 137 amendments were proposed; in 1964, 117; and so on and so on (see Table 1 below).

(p. 28) The principal reason for such an inordinate number of amendments to the Georgia Constitution was the anomaly of “local” constitutional amendments. Local amendments were those amendments that applied to a particular city or county and did not have general applicability throughout the state. The 1945 Constitution had authorized amendments of local application and required that such amendments receive the approval of a majority of the qualified voters of the entire state voting on them as well as a majority of the qualified voters of the particular subdivision affected voting on them. Constitutional amendment number ten in the 1952 general election stated that those amendments to the Constitution of purely local application needed only to be approved by a majority of the voters of the particular subdivision affected. That one amendment set the stage for what was to follow.

The procedure for adopting local constitutional amendments in the General Assembly was the same as that for adopting local legislation. If the requisite number of senators and representatives from a particular city or county approved a proposed local act affecting that city or county, then the rest of the General Assembly would approve it as a matter of legislative “courtesy.” Therefore, any proposed local amendment would be approved by two-thirds of each house as a matter of “courtesy” if the local delegation approved it. Upon ratification by a majority of the qualified voters voting in the particular subdivision affected, the amendment would become a part of the Constitution of Georgia, as much a part as any of the matters addressed in the Bill of Rights.

The most glaring example of the danger of this amending process was found in a local constitutional amendment relating to the powers of a political subdivision in the Georgia mountains. This amendment provided that the General Assembly was authorized to provide for the powers and duties of this particular subdivision “without regard to any other provision of this Constitution or general law.”

Table 1:  Amendments: 1982–2016: Proposed, Ratified, or Rejected

Year

Proposed

Ratified

Rejected

1982

4

3

1

1984

11

10

1

1986

9

8

1

1988

15

6

9

1990

9

8

1

1992

8

7

1

1994

6

5

1

1996

5

4

1

1998

5

3

2

2000

7

6

1

2002

6

4

2

2004

2

2

0

2006

3

3

0

2008

3

3

0

2010

5

3

2

2012

2

2

0

2014

2

2

0

2016

4

3

1

Totals

106

82

24

The text of the ratified amendments is available in Appendix A. A description of the amendments rejected is available in Appendix B. It should come as no surprise that, at the time of the referendum on the proposed 1983 Constitution at the 1982 general election, the previous Georgia Constitution had been amended 1,105 times, including 197 general amendments and 908 local amendments. In the 1982 general election itself, there were seventy-eight more proposed amendments on the ballot for the previous constitution (no. 9), including four general amendments and seventy-four local amendments; of these proposed amendments, three general amendments and sixty-six local amendments were ratified. Therefore, on the effective date of the 1983 Constitution, the ninth Constitution of Georgia had been amended 1,174 times since 1945. With the approval of the 1983 constitution, these amendments were frozen in place with a period for re-evaluation regarding their inclusion in the new constitution.

The year 1983 was a turning point in Georgia constitutional law, because the 1983 Constitution prohibited the adoption of any additional local constitutional (p. 29) amendments. It provided a four-year “grace period” for existing local amendments, and allowed them to be continued forward unchanged by an affirmative act of the General Assembly or the local government affected. Amendments of such local amendments were prohibited, so that they were essentially “frozen” in the Constitution as they were on the effective date of the 1983 Constitution.

What has the record on constitutional amendments been since 1983? Discouraging. The number of proposed general amendments since the adoption of the 1983 Constitution has still been high. In the elections following the 1982 general election, 106 general amendments have been proposed, and of those, 82 have been ratified (see Table 1 above). Table 2 (below) shows the articles affected by the respective amendments.

Table 2:  Ratified Amendments: 1982–2016—Articles Affected

Year

Article I

Article II

Article III

Article IV

Article V

Article VI

Article VII

Article VIII

Article IX

Article X

Article XI

1982

1

1

1

1984

2

2

1

3

2

1986

1

5

1

2

1

1988

5

1

1990

1

1

2

2

1

1

1992

1

2

3

1

1

1

1994

1

1

1

1

1

1996

1

1

1

1

1998

1

2

2000

1

3

1

1

2002

1

1

1

1

2004

1

1

2006

1

1

1

2008

1

1

2010

1

1

1

2012

1

1

2014

1

1

1

2016

2

1

Totals

7

6

28

1

8

18

4

10

3

Note: The number of articles affected does not match the number of amendments ratified, because some amendments modified more than one article, as authorized by Article X, Section I, Paragraph II—“One or more new articles or related changes in one or more articles may be submitted as a single amendment.”

Additional detail on these amendments can be found in Appendix A: Amendments Ratified since 1982, Appendix B: Amendments Rejected since 1982, and Appendix C: Text of Ratified Amendments since 1982.

Why do the people of Georgia still face a lengthy amendment ballot at each general election? There are several possible explanations. First, the process of amending the Georgia constitution is relatively easy, thus sometimes preferable to the more complex lawmaking process. A provision in the constitution is more secure than one in a general law and, ironically, may encounter less political scrutiny than the full legislative process. As there is no constitutional limit to the number of proposed amendments that can be put on the ballot, the process can be frequently used without impediment. Second, the process itself encourages popular participation in the system, a value difficult to dispute. Third, there is a general lack of oversight of proposed constitutional amendments in the legislative process. “Compounding the problem, Georgia’s general assembly historically has not had a special constitutional oversight committee with specific responsibility for helping insure that proposed constitutional amendments are of true constitutional significance and are consistent with other constitutional provisions.”90 The leadership of both houses of the General Assembly hold a generally “laissez-faire” attitude toward the form and substance of proposed constitutional amendments, treating them in essentially the same manner as changes in statutory law. This is unfortunate, because they are not the same. Fourth, the ease of amending the constitution gives legislators an easy excuse to “pass the buck” to the voters. “Legislators (and others) often believe that a constitutional amendment is the safest way to proceed legally, even though the desired action could probably be accomplished through simple enactment of a statute.”91 This is particularly true on potentially public controversial issues, such as one defining marriage.(p. 30)

(p. 31) Potential reasons for constitutional amendment include the following. First, a desire by some person or group to do something that the Georgia constitution currently does not allow, such as the prohibition of gratuities in Article III, the “no earmarking” provision in Article III, and the Uniformity of Taxation provisions in Article VII. Second, some amendments are motivated by a desire, of some person or group, to promote political or cultural views that are strongly held. The amendment to ban gay marriage, passed in 2002, is one such example. However, as is sometimes the case in such politically debated areas, this amendment was nullified by the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges.

Though the motivation for making constitutional changes through such a participative process as public vote is understandable it is, nevertheless, problematic when viewed in the context of a state constitution. In a 1982 discussion of a proposed balanced budget amendment to the U.S. Constitution, one commentator noted: “The Constitution of the United States is the fundamental political agreement among Americans—an agreement that binds together not only living citizens but also the past and future generations. And a constitutional amendment, by altering that agreement, is the single most solemn political action that one generation can take.”92 This same sobering perspective is needed in Georgia about state constitutional amendments.

Conclusion

Ware notes that “a progressive democracy demands a changing constitution.”93 Between 1777 and 1945 Georgia adopted eight constitutions, all of which can be considered a logical and expected reaction to the needs and motivations of the time.

The brief Constitution of 1777 was designed primarily to care for the immediate needs of the newly independent state. To this end it provided a sense of security through a written guarantee of fundamental rights. The 1789 Constitution was patterned closely after the federal Constitution. “It did not meet the needs of the times, however, and gave way to another in 1798.”94 The Yazoo fraud had shown the need to protect the state against the abuse of legislative power. With few amendments, this constitution sufficed until the outbreak of the Civil War in 1861.

The Constitutions of 1861, 1865, and 1868 were necessitated by the war, its conclusion, and Reconstruction.95 The Constitution of 1877 was written when (p. 32) Georgia once again became an independent state, and remained in force until 1945. However, limitations on governmental power required the addition of more than three hundred amendments. Every subsequent effort for constitutional revision failed until Governor Arnall made constitutional reform a part of his campaign for reform in Georgia. Ware notes that a common thread in Georgia’s constitutional history, and other states as well, was the tendency to add more provisions under the fundamental law. Also notable is the increase in the importance of the judicial branch at the expense of the other branches. In the area of taxation and finance, the trend was to make law uniform and general.96

The Constitution of 1976 was an attempt to inject order into what had become a chaotic and overlong document through administrative review and revision. The Office of Legislative Counsel confined its revision to rearranging and clarifying the document’s content.

The 1983 Constitution was Georgia’s first truly “new constitution” since 1877, and it provided the state with a revitalized charter that should help guide the state for many years to come. However, this current constitution, as the others, gives way through the amendment process to the continuing practicality of continuing state growth, expected and unexpected shifts in political control, and changing political views on the topics of the day.

In a speech given in New York City in 1990 to a Cornell University alumni group, the former chief judge of the New York State Court of Appeals, referring to our seminal federal documents, said: “We have to remember that the Constitution, the Declaration of Independence, the Bill of Rights—as magnificent as these instruments are—are only words. They are not self-propelled chariots of justice but only words, which depend on each generation to give them a meaning and significance for their time.”97 This can equally be said of the Georgia Constitution. Constitutional revisions and the amendments that follow them are a gauge of what the state political entities and the public is concerned about—education, children, natural resources, and others. As Allen and Saeger conclude in their book Georgia State Politics: The Constitutional Foundation, “In Georgia, the people are like a slumbering giant; when they are jolted awake by scandals or hard times, the political system takes notice . . . In Georgia, the people rule.”98 The rule of the people in Georgia has been evident in constitutional conventions, in constitutional commissions, and in the continuing amendment process. For good or ill, the Georgia state constitutional record is a record of the will of its people.

Footnotes:

1  Advisory Commission on Intergovernmental Relations, State Constitutions in the Federal System, p. 1.

2  Ibid.

3  Ibid.

5  Lutz, p. 3.

6  Tarr, Understanding State Constitutions, p. 29.

9  Bartley, p. 21.

10  Sturm, p. 4.

11  Ibid., p. 5.

12  Lutz, pp. 52–53.

13  Elazar, pp. 115–19.

15  Saye, A Constitutional History of Georgia, 1732–1945, 1948 ed., pp. 10–11.

16  Pound and Askew, Handbook on the Constitutions of the United States and Georgia pp. 16–17.

18  Saye (1948 ed.), p. 19.

19  Swindler, p. 443.

20  Ibid.

21  Allen and Saeger, pp. 10–11.

24  Allen and Saeger, pp. 10–11.

25  Chanin, p. 5.

26  Ibid., p. 6.

27  Allen and Saeger, pp. 10–11.

28  Ware, pp. 65–69.

29  Ibid., pp. 69–70.

30  Swindler, p. 456.

31  Ware, pp. 79–90.

32  Allen and Saeger, p. 11

33  Saye (1948 ed.), p. 158.

34  Ibid., p. 165.

35  Ibid., p. 167.

36  Chanin, p. 7.

37  Chanin, p. 8.

38  Saye (1948 ed.), p. 242.

39  Ibid., p. 144.

40  Ibid., pp. 246–47.

41  Ibid., p. 256.

42  Ware, p. 133.

43  Ibid., p. 135.

44  Saye (1970 ed.), p. 261.

45  Ibid., p. 265.

46  Ware, p. 141.

47  Saye (1948 ed.), p. 266.

48  Ibid., p. 267.

49  Ibid.

50  Ibid., pp. 267–68.

51  Ibid., pp. 268–69.

52  Ibid., p. 269.

53  Ibid., p. 270.

54  Swindler, p. 514.

55  Ibid.

56  Ibid.

57  Ibid., p. 281.

58  Swindler, p. 514.

59  Ibid.

60  Saye (1948 ed.), p. 286.

61  Ibid., p. 287.

62  Ibid., p. 288.

63  Ware, p. 170.

64  Swindler, p. 547.

65  Ware, p. 176.

66  Institute of Public Affairs, University of Georgia, “A Proposed Constitution for Georgia,” Bulletin of the University of Georgia 32, no. 4 (1932).

67  Ibid., p. ix.

68  Chanin, p. 13.

69  Williams, p. 1.

70  Saye (1948 ed.), pp. 388–89.

72  Sturm, p. 109.

73  Pound and Saye, p. 46.

74  Ibid., p. 13.

75  Chanin, p. 13.

76  1964 Ga. Laws 234.

77  In the U.S. Supreme Court’s decision, Fortson v. Toombs (1965), Justice Goldberg’s dissent contains the full text of the order of the district court enjoining Georgia’s government officials from placing the proposed constitution on the ballot.

78  Saye (1970 ed.), p. 429.

79  Pound and Saye, p. 47.

81  Allen and Saeger, p. 11.

82  Fleischmann and Pierannunzi, pp. 59–60.

83  1977 Ga. Laws 1528.

84  1981 Ga. Laws 1539.

85  State of Georgia, Transcripts of Meetings, Select Committee on Constitutional Revision, Committee to Revise Article I, September 20, 1979, p. 9.72.2273.

86  Copies of the Transcripts of Meetings of the Select Committee on Constitutional Revision, the Legislative Overview Committee on Constitutional Revision, and all of the respective article committees are available in the libraries of the following institutions of the University System of Georgia: Albany State College, Armstrong State College, Augusta College, Columbus College, Georgia Southern College, Kennesaw College, North Georgia College, University of Georgia, Valdosta State College, and West Georgia College.

89  Hill and Hill, p. 296.

90  Ibid., pp. 296–97.

91  Ibid.

92  “Notes and Comments,” The New Yorker (August 1982), p. 25.

93  Ware, p. 193.

94  Ibid., pp. 193–94.

95  Ibid., p. 194.

96  Ibid., p. 196.

98  Allen and Saeger, p. 5.