a new constitution for louisiana

A New Constitution for Louisiana by Cecil Morgan*

OUISIANA has a new constitution effective a t midnight, December 31, L 1974, The people of the state approved the work of Constitutional Convention 1973-74 on April 20 by a vote of 360,980 to 262,676, less than 37 percent of the electorate participating. The heaviest majorities in favor of it were in New OrIeans and the adjoining parishes of Jefferson, Plaquemines and St. Bernard. Thirty-six of the 64 parishes gave majorities against it.

The Public Affairs Research Council of Louisiana has analyzed minutely the election1 and some of the politics involved, so this is a survey of the principal provisions of this most recent of state constitutions with only an occasional reference to political forces a t work, leaving to others a more philosophical appraisal, and a conclusion as to whether or not it has a populist flavor. Probably this writer will occasionally succumb to an impelling urge to inject his own slant and express some opinion or observation con- cerning the advisability of actions taken and the motivations for them.

The body of “persons” composing the convention was exceptionally im- pressed with its independence. There was often voiced their determination to write their own document without leaning on the experts, the lawyers, the political scientists, the research organizations or the lobbyists of special interests. This was to be a constitution the average citizen could read and understand-a “peoples’ constitution.”

Though we smile a t such pronouncements, which may or may not be naive, or demagogic or politically contrived, strangely enough the final document gives some evidence of a degree of accomplishment along these lines. Rephrasing of familiar language is certainly not legalistic. And in a number of specifics it is easy to see how the layman could understand the new provisions, but the lawyer could not. Consequently there will inevitably be much judicial interpretation to follow in the years ahead. On the whole, however, the structure of the new document, in the perspec-

tive of the weaknesses of the old, is excellent. No matter how hard they may have tried to avoid it, one cannot but be

aware of the impact of the works of the Bebouts, the Bradens, the National Municipal League, the League of Women Voters and Public Affairs Research Council, and Committee for a Better Louisiana, and even traces of the work

* Cecil Morgan, a National Municipal League former president, was a member of the Louisiana Constitutional Revision Commission. He was formerly dean of the School of Law, Tulane University, and has been a state legislator, district judge, U. S. Commissioner and member of the state Civil Service Commission in Louisiana.

1 Special Eiection on the Constitution, A p ~ 2 20, 1974. PAR Analysis, Public Affairs Council of Louisiana, 300 Louisiana Avenue, Baton Rouge 70821, 50 cents.

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of the Louisiana State Law Institute. Also felt were the powerful lobby of the AFL-CIO and the NAACP and Women’s Lib. The able staff directed by Mrs, Norma Duncan undoubtedly prevented chaos and turned out a respect- ably organized document.

An astounding accomplishment was the skillful shift of legislative matter from the old constitution to the statute books. While much was said about reducing the length of the old document and cleaning it up, there was recognition that the importance of shortening it was largely in the matter of eliminating legislation. The old constitution with its 536 amendments had attained a length of some 255,500 words, a growth from its original length in 1921 of about 49,200 words, while the new document is now under 35,000 words. The reduced portion, that which went into the statute books, is 62 percent or about 158,600 words. This represents real dedication to sound principles in constitution writing by this convention. This is in spite of the fact that political pressures are always to “include” something in the document, and to oppose the elimination of the “sacred cows” to be left to the mistrusted legislature.

It is true there is some useless or unfavorably retained legislation in the new document, but on balance it is a distinct step forward and with reference to its weaknesses i t is a more manageable document than the old one. The people of the state can now go to work with more hope of success in improving their government than at any time in the last half century.

Indeed, much needs to be done. There must be amendment of this new constitution. In the process of most needed amendment, let us hope the old habits of the state government, particularly the legislature, are now broken, and that new legislation will not find its way into the constitution. Let us hope that in making necessary changes the legislature will assume its responsibility to legislate, and keep the new constitution a proper farmework of government.

At this point, recognition should be given Governor Edwin W. Edwards for his leadership in sponsoring the convention and finally in supporting the document. It was no mean political accomplishment to lead the state into the establishment of a new constitution after so many abortive efforts over more than a half century. Associated with him was the leadership and political power of Mayor Moon Landrieu of New Orleans, and other metropolitan area leaders, whose efforts accounted for the majorities in favor of the constitution in the thickly populated section of the state. There were others who deserve especial mention for particular contributions, but that is not the purpose of this survey. It should, however, be noted that the president of the convention, who is also speaker of the House of Representatives, E. L. Henry, and probably a majority of the members of the convention, actively supported the final document. Only one member of the convention had voted against it. There was a large and substantial black vote in its favor. There were alliances for and against that cut across normal political groupings.

Taking the 14 articles of the new document in order, here are some of the highlights of each.

19741 A NEW CONSTITUTION FOR LOUISIANA 34s

Article I . Declaration of Rights After a relatively useless and flamboyant preamble, mostly of window

dressing, to which no one can take serious exception, the Declaration of Rights presents areas of controversy,

The article that invited the impelling criticism of the Metropolitan Crime Commission, Section 20, reads: “No law shall subject any person to eutha- nasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for an offense.”

The argument between law enforcement agencies and social workers as to whether this provision means there can be no such thing as a second offender is now raging, supporting our semi-facetious earlier comment that laymen but not the lawyers can interpret some provisions.

Restatements of the usual provisions may be questioned and are more verbose. Extensions of recently developed or developing concepts excite joy or dismay in persons of polarized positions on supposed diversities of the Warren or the Burger court.

Of historic interest is the inclusion of an equal protection clause, the first in Louisiana since the constitution of 1868 known as the Carpet Bag constitution, superseded by the constitution of 1879 which was the last ratified by a vote of the people until this year.

This equal protection clause as to race is unqualified. Following it is a clause over which one can imagine the debates and controversy. It reads: “No law shall arbitrarily, capriciously or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition or political ideas or affiliations.” Indeed there was some restraint exercised on the sex nondiscrimination proposal, and interestingly enough the limiting terms “arbitrary, capricious, or unreasonableJ1 appear again in Section 12 referring to discrimination as to age, sex or physical condition in regard to access to public areas, accommodations and facilities.

The right to property section provides for expropriation suits to be tried by jury.

The relatively new right to privacy, after some usual statements, says: “Any person adversely affected by a search or seizure conducted in violation of this section shall have standing to raise its illegality in the appropriate court.” As a lawyer less versed in the use of language of the layman, may I ask

whether this may leave open to the courts the application of a ‘(poisoned tree” doctrine or some other enforcement sanctions?

Among provisions added, rephrased, supplemented, modified or ex- panded are freedom from intrusion, freedom of expression, freedom of religion, right of assembly and petition, and of more recent and immediate interest, the right of every citizen upon reaching 18 years of age to register and vote.

There is also a right to bear arms and a prohibition against the passage

346 NATIONAL CIVIC REVIEW [July

of laws to prohibit the carrying of weapons except those concealed. The law enforcement officers are fearful that this will prevent the elimination of the “Saturday Night Special.”

The rights of accused persons have been restated in a number of particulars and there are slight variations in the structure of the jury system and the right to bail and of judicial review.

It is noteworthy that Louisiana did not join its sister states and include a right to work provision. If it had, most certainly the constituion would not have been adopted.

If some of these concepts elicit extreme emotional reaction, favorable or unfavorable, the probabilities are that the rough spots in either extreme will be ironed out by the prevailing philosophy of the United States Supreme Court.

Article ZI. Distribution of Powers This article puts some emphasis on the three branches of government and

their separation, reflective of a fairly continuous concept commencing with the constitution of 1812.

Article I l l . Legislative Branch This article is one of the best and strongest in the new document. Granting

that it is far from perfect, further advances may in the future be made to bring about the most desirable of consequences in government today, that is, confidence in and respect for the legislative branch. This article provides for annual sessions for no more than 60 legislative days during a period of 85 calendar days. This means that the prevailing system of a fiscal session every other year is abolished having been proved to be a complete failure. I t also means that through a process of prefiling bills and practically year-round committee activity, there can be much more mature consideration of the some 3,000 bills introduced at each session. I t can also mean that abuses of lobbying can be minimized at the plenary sessions without impairing the basic value of communications that a lobbying process provides.

A system is established for the decennial reapportionment, leaving to the supreme court of the state the ultimate task when the legislature itself fails.

Some efforts have been made to deal with official conduct and ethics, with legislative auditing, and the usual prohibition against local and special laws.

Legislative and committee procedures are revised and improved. One-year appropriations are required, and tax matters may be considered

only every other year. Constitutional dedication of much of the tax revenue of the state has been

removed, thus giving the legislature greater freedom to allocate resources. To these constitutional advances may be added the recent physical provi-

sion for office space and staff that can and should help to make future legis- latures responsible and responsive, and in line with recommendations of national organizations urging improvement.

19741 A NEW CONSTITUTION FOR LOUISIANA 347

Article ZV. Executive Branch Two important changes in the executive branch should be mentioned. The

first is that except for the offices of governor and lieutenant governor all offices and agencies, some 220 of them, are required to be allocated according to function within not more than 20 departments.

The other important change removes the last vestige of overlap between the executive and legislative branches by failing to give the lieutenant gover- nor the office of presiding over the Senate with the concomitant power of appointment of Senate committees. Thus, the separation of powers is further emphasized.

There has been a slight decrease in the number of elected offices with authority in the legislature to provide further for appointment. There is only slight hope for such political eventualities.

There has been some improvement in the structure of the system for pardons and reprieves.

The attorney general was transferred from the old judiciary article to the new executive article and has been limited in his power of supervision over district attorneys. This occurred much to the dismay of those interested in law enforcement, particularly with reference to official misconduct, and is a serious defect in the system.

A new requirement for appointment of assistants to all executives is expected to operate as a limitation on the appointive power of the governor in cases of vacancies, along with a continuum of function.

For some reason the public service commission has been increased in size but recognition has been given to the need for eliminating an abuse rep- resented by delays in granting or refusing rate adjustments.

On the whole the new executive article, while not going as far as one might wish in streamlining government, nonetheless represents a decided advance.

ArtMe V . Judicial Branch This article contains provisions that give those most concerned with the

judicial system both deep concern and great satisfaction. A few years ago the system was materially improved and judicial administration has been markedly effective. The new document on the whole adds improvements consisting of a more complete definition of the rule-making power of the courts, strengthening of the judiciary commission and, without using the name of a unified court system, there has been established something almost equivalent thereto. A three-tier system consisting of the supreme court, the courts of appeal and the district courts is fairly well defined, with the lesser municipal courts and justices of the peace being legislative rather than constitutional. There was evident a strange fear of and prejudice against a declaration that there existed a unified court system. This is possibly because of both judicial and some lay opposition to autocratic domination by the chief justice to the extent of arbitrarily shifting judges from one jurisdiction


to another. Of course, in a well adjusted judicial system the most feared abuses simply could not take place, but it is hard to persuade some people of this fact and as it turns out the provisions of this article are sufficient.

One regressive action on the part of the convention was to reduce the term of office of supreme court justices from 14 to 10 years and of courts of appeal judges from 12 to 10 years. The convention also refused to consider seriously the abandonment of the elective system and the establishment of a merit selection system. One might generalize, as authoritatively as political matters may be estimated, that a great deal of lay support can be summoned for a Missouri-plan type of appointment of judges. The bar association and the Louisiana State Law Institute also favor merit selection, but quite vocal opposition from a large part of the judiciary and practically all other elected officials and legislators prevailed.

The shortcomings of election as against appointments are minimized by the strengthening of the disciplinary function of judicial administration and the judiciary commission.

Control of the extent and number of judicial districts and judges together with salaries and other administrative matters was shifted from the constitution to the statute books under the requirement for a two-thirds vote to bring about changes and under the further limitation of a protection of all incumbents against any adverse change.

Appointments to fill vacancies have been shifted from the executive to the judiciary, but as one so appointed may not be elected this is of doubtful advantage.

Of less general interest, but of much concern to the members of the judiciary, were matters of retirement and retirement pay.

It may be said that on the whole and on balance the judiciary article is satisfactory and that as time goes on specific irnpravement may be made without dramatic maladjustment. Some of these may be found in the New Orleans area. The largest task of improving the administration of criminal justice is up to the legislature.

Article VZ. Local Government

This part constitutes the most dramatic and advanced article in the new constitution. It i s as near a political scientist’s dream as one might reasonably wish. A few provisions can only reduce this estimate to hyperbole. We must quote the modified Fordham provision: “Subject to and not inconsistent with this Constitution, the governing authority of a local governmental subdivision may exercise any power and perform any function necessary, requisite, or proper for the management of its affairs, not denied by its charter or by general law, if a majority of the electors voting in an election held for that purpose vote in favor of the proposition that the governing authority may exercise such general powers. Otherwise, the local governmental subdivision shall have the powers authorized by this constitution or by law.”

19741 A NEW CONSTITUTION FOR LQUISIANA 349

Indeed, home rule charters, plans of government, powers and limitations all come in for favorable treatment in most particulars. Pertinent provisions include:

Authority to any local governmental subdivision to draft, adopt or a m a d a home rule charter.

Authority to the governing authority of a local governmental subdivision to appoint a commission to prepare and propose a charter or an alternate charter, or to call an election to elect such a commission. “Local governmental subdivision” in Section 44 is defined to mean any parish or municipality.

Authority to exercise further self-operative provisions relative theret9. Authority under legislative approval to two or more local governmental

subdivisions to adopt a home rule charter. Full structural provisions for home rule are provided, and existing home

rule charters are recognized. Opportunity is given for intergovernmental, political and contractual rela-

tionships which should aid in the development of metropolitan areas without a statewide vote by the people for constitutional amendment. This latter process has been a deterrent to local governmental development under the old constitution. The new constitution emancipates the cities and local governments.

Part I1 relating to finance continues the limitation of a parish to levy an ad valorem tax for general purposes of four mills with further authority and limitation with the approval of the electorate. A differentiation between tbe authority granted for taxation within the city of New Orleans and the other parishes is retained.

Provision is made for cooperation with federal agencies for particular purposes, which is highly desirable in this new era of revenue sharing,

Under this general heading comes the problem of port commissions and districts, a matter which under normal circumstances could be considered appropriately within the jurisdiction of the legislature and not be the subject of constitutional provisions. In Louisiana, however, the history of the dock board of New Orleans was one of political imposition during ~JI earlier era which led to the inclusion of a detailed constitutional provision designed to protect the agency from political domination. The detailed nature of the provision for the composition of the board presented some problems which under the old constitution could only be resolved by constitutional amendment. When that route was attempted the amendment was rejected by the people. I n the new constitution detailed provisions are transferred to the statutes and thus returned to the jurisdiction of the legislature. This was considered by many business and civic leaders in New Orleans as an invita- tion to return t~ the pol i t id domination of an earlier era and became the justification for spirited opposition to the whole new constitution by much of the very best and most public spirited of “the establishment” in New Orleans.

It Is now important for all those who fear political tampering with the dock

3 50 NATIONAL CIVIC REVIEW E July

board, which could be an economic disaster to the state, to make a determined effort to assure that the needed changes in the composition of the board are the subject of initial legislation implementing the new constitution, which specifically provides that once structural changes are made any further changes will require a two-thirds vote of the legislature. By taking an affirmative position it would be possible to head off political tampering.

Article W I . Revenue and Financing

Part I-General Provisions. Section 2 provides: “The levy of a new tax, an increase in an existing tax, or a repeal of an existing tax exemption shall require the enactment of a law by two-thirds of the elected members of each house of the legislature.”

This may be offensive to the purist political scientist, but it is better than legislating by constitutional amendment. If there is one provision that was unanimously approved by the politicians, the business interests and the labor interests, it is this one. No new constitution could have been adopted without its acceptance.

No commentary is necessary here with respect to the continuation of many provisions involving income tax, severance tax and the preservation of the rights of bondholders.

Part 11-Property Taxalion. The essential features of this part include a provision for assessment a t a percentage of the fair market value of property, uniform throughout the state upon the same class of property, the classifications and percentages being (1) on land, 10 percent, ( 2 ) improvements for residential purposes, 10 percent, and ( 3 ) other property, 15 percent with some detailed provision for use value. The homestead exemption was increased. It presently is $2,000, and for veterans, $3,000; and the new provision is for $3,000, or for veterans or 65-year-olds, $5,000. This means applying the factor of 10 percent to fair value, or 100 percent value, then deducting the homestead exemption, meaning no tax would be paid on a home costing $30,000, or for veterans, $50,000.

Recently the statewide 5.75 mill tax was repealed, and the new constitution will enable the legislature to reinstate it, if i t sees fit. There is therefore no problem of statewide equalization, except for the fact that a suit which has been pending for six years has finally reached judgment, and the court has ordered 100 percent equalized assessment, which the tax commission had failed to bring about.

Provision is made for the new fair value assessments with the applicable factor to be effective three years hence, and for the parishes’ millages to be adjusted upward or downward to produce the same revenue.

Present assessments are made by the various assessors in their own indi- vidual way, starting with the last sale of the property, and adjusted with their own factor without reevaluation at any given time, and sometimes by negotiation with the taxpayer, which accounts for much political power


in the assessors. The percentage of cash, or fair value, ranges from about 8 percent in Jefferson Parish to about 25 percent in Caddo Parish.

Strangely enough there are no statistics available to determine what total fair value statewide may be, nor what the average percentages may be. There is some informed guess that in Calcasieu Parish the percentage may average about what the 10 percent-15 percent figure in the new constitution is. No one can assert and substantiate his assertion as to just what the effect of the new provision will mean in dollars to any group of taxpayers.

One other pertinent fact is that the new document places a limit on the personal income tax of the present 6 percent without limiting the corporate income tax or the corporate franchise tax, or the statewide sales tax. There is, however, the general limitation that no tax can be increased except by a two-thirds vote of the legislature.

New Orleans has a different homestead treatment from the other parishes, a home rule charter and a future financing problem, along with the problem of the entire state when present lucrative oil and gas severance taxes decline.

These sections provided more fuel for the fires of debate over the adoption or rejection of the new document than any other. They were the principal or stated cause for the open opposition to the total constitution of the Com- mittee for a Better Louisiana, Metropolitan Area Committee, several chambers of commerce, the Louisiana Manufacturers Association, reluctantly, several leading newspapers including the New Orleans Times-Picayune, and in fact, many business groups which should have been in the ranks of supporters of a new constitution.

These opponents pointed to a shrunken tax base, particularly for New Orleans and other municipalities that would impair future financing; a shift of essential tax burden from homes and property to business; from property taxation to business income and franchise taxes and sales taxes; a shift to taxation of the poor; a discouragement to new industries to invest in the state; reduction of employment and economic development.

Since i t has been the view of this writer that the objections to this part of the new constitution should not be considered to vitiate the whole document, and since the document has now been adopted, a closer look should be taken of it.

The first and most important objection to i t is that it contains too much legislation, and should not have been in the constitution at all. Provision should only have been made for the legislature to deal with the details of assessment, homesteads, taxes, the duties of the tax commission, and the future problem of financing government.

Since that was too much for the assessors to accept, they are left with a responsibility, under proper legislation, to determine what fair value is, what proper criteria should be applied to determine value, acknowledge that to apply the 10 percent-15 percent formula they must start with 100 percent no matter what the campaign propaganda was, and give local governments the opportunity to adjust their millages accordingly.


It is time that the tax commission and the research organizations determined what, in dollars, the tax shift may be, so a basis will be laid for the inevitable day when tax reform must come, and leave i t to the legislature, with known facts before it, to determine just where they want the tax burden to rest.

Recognition should be given to the fact that the unsound portions of these articles consist in limitation of taxing power in the legislature, rather than in an actual tax; in establishing a differential between the assessment of homes and land on the one hand, and business on the other, when such classifications should be left to the legislature in the exercise of its taxing power; in excessive homestead exemptions with demagogic appeal; and in creating an atmosphere of an apparent prejudice against business to the detriment of economic development.

In point of fact there is no part of this list of valid objections that could influence out-of-state investors against coming into the state, First, it is local business that will take the brunt of any shift in tax burden from homes, and the new plant will be on the same basis as the home business, but after its 10-year tax exemption expires. Second, unlimited opportunity to increase taxes always exists, and is anticipated by all investors. Third, Louisiana has a low rate of property tax, and it is not property tax that will keep business away. Fourth, other taxes are more important than property tax in the competitive situation, and under the present constitution the problem has been the same as it will be under the new. It is actually fear that often prompts business to be negative on change. It is very hard to see where that fear can be increased by the new constitution. There are no facts available, as has been said, to know the extent of a shift of burden, but it is knom that many homeowners now do not pay any tax.

Finally, reluctantly, the business community should be grateful to the assessors for one important thing. The uncertainty of what factor would be applied to 100 percent assessment has been made certain. This is an important element in determining what the burden will be. There may be favorable or unfavorable treatment by the assessor. This has been the case under the old constitution and will be under the new unless, possibIy, there is strong, practical legislation to give effective remedies to taxpayers.

Louisiana should tell the world to forget the overstatements, the expres- sions of fear and the demagoguery of the campaign, with respect to industry coming into the state. It should get busy and affirmatively prepare to meet the real requirements of financing the state and the localities. In this respect there will inevitably be required some amendments to this constitution, and there certainly would, under the old. The real tax and financial problems have not been dealt with.

Article VIII . Education This article provides for the education of the people of the state and

requires that the state shall establish and maintain a public educational


system. It sets forth the requirements for a state superintendent of education which &all remain elective until the legislature shall provide for appointment and includes a board of regents to plan and coordinate, and for bud- getary responsibility for all higher education. It sets up other boards for other branches of education and at the last minute the one and only alternative submitted to the people was a substitute which was rejected and need not be further considered here, except to point out that it struck no deeper into the educational problem.

Issues involved the board of supervisors of Louisiana State University and the board of the predominately black Southern University, the number of boards and their composition for the control of the educational system, and the election or appointment of the state superintendent and his powers. One forward step has to do with the coordination of higher education, and one problem yet to be fully resolved is the development of vocational education and the improvement of the quality of secondary education. While all institutions are integrated, Southern University is still predominately black, and the population of both races is divided as to whether it should be merged with Louisiana State University.

Much concern has resulted from the elimination of the constitutional prohibition on public aid to private and sectarian schools lest there be a diversion of public funds from public education to parochial or private schools. This issue led various religious groups to take positions for or against the total document. Here again, fear of or mistrust of the legislature controlled thinking, but in the final analysis will make no difference in ultimate results.

Though much legislation was taken out of the article, the system still suffers from statistically demonstrable ills not dealt with.

Article I X . Nutwal Resowces This subject matter is new with respect to constitutional principles laid

down but hardly affects basics that cannot be dealt with by the legislature. It is an interesting commentary on constitutional revision.

Article X . Public Oficials and Employees Civil service has an interesting history in Louisiana. Its establishment

following the Huey Long days, its destruction under Earl Long and its subsequent reinstatement in the constitution with appointment of the commission being nonpolitically provided for by nominations by educational institutions of panels from which the governor made the appointments, has been closely guarded by the Civil Service League and completely popularized in the state. In transferring enormous volumes of legislative matter out of the constitution into the statute books, it was generaIly considered advisabIe to maintain the structural portion in the constitution. However, the process opened up other issues resulting in some innocuous changes and some which have weakened but not destroyed the system. The innocuous change was that of eliminating Louisiana State University as one of the nominating institu-

3 54 NATIONAL CIVIC REVIEW 1 July

tions and substituting a predominately black college. This was unnecessary because a black person had been appointed a few years ago, and he has made an excellent record on the commission. The city of New Orleans commission also has an excellent black member but had a similar change and nominating institutions were designated. One is the Catholic women’s institution and another a predominately black one. There has been no serious objection to these changes. However, the new provision for the election of a member of the state commission by the state employees under civil service of one of their number is in the view of many and of the state Civil Service League completely contrary to principle and an unfortunate development. The civil service commission should remain a quasi-judicial and completely impartial body without anyone thereon representing a constituency.

Included in the criteria for appointments and promotions along with merit, efficiency and fitness are the words “and length of service.” While ,it is true that some such language is used in the commission rules, it has been considered unfortunate to place it in the constitutional article because, if unduly emphasized, it can be interpreted as a derogation from the principle of merit.

The most important objection to the new civil service structure grows out of the activities and the politics of the statewide organization of firemen and policemen who now have their own classified service, based on length of service, for municipalities having a population exceeding 13,000 with special provision being made for a city with a population exceeding 400,000, which, of course, means New Orleans. In the latter there will be an election held for the purpose of deciding whether they shall be included in the special classified service or left in the city structure. It is ardently hoped by all who cherish the integrity of a civil service system that i t will not be so frag- mented and in addition that the pay scales of these particular groups will not be imposed by the legislature on the smaller municipalities without it being financed by the state. This aberration, it is predicted, will either cause great difficulty in the future or alternatively will be amended.

Article X I . Elections This article is adequate and brief.

Article XII . General Provisions This article calls for little critical comment, deals with a number of the

usual and important subjects and is reasonably satisfactory. One interesting commentary should be made in order to clarify it in the minds of those not versed in the civil law system of Louisiana who might find it strange and unusual. Reference is made to Section 5 which says that no law shall abolish forced heirship and that the determination of forced heirship, the amount of the forced portion and the grounds for disinherison shall be provided by law. I t further provides that trusts may be authorized by law and a forced portion may be placed in trust. This provision is the only overlap or invasion of the civil code of Louisiana by a constitutional process. I t


probably was intended to clarify and validate the system of trusts that the legislature has in recent years set up and which the courts have been called on to interpret. It is supposed to place this body of law in a comparable position with that of other states in spite of differences with respect to the law of the devolution of property, which generally is a matter of concern only within the state. I t may require further interpretation.

Article XIIZ. Constitutional Revision The procedures for amending the new constitution would not seem on

their face to be dramatic or unusual but in the light of the problems involved under the old constitution of 1921 as it was amended and abused in its history through legislation by constitutional amendment, and the difficulties experienced in rewriting that document by the Constitutional Revision Com- mission or any means other than the constitutional convention procedure successfully resorted to this year, they have great significance.

The legislature may propose as one amendment a revision of an entire article of the new constitution which may contain multiple objects or changes. In view of the improved structure of the total document this is an important provision. The fact that the old constitution contains some 255,500 words and the new document approximately 35,000, the organization of the total document, and the capacity for presenting important changes on which the electorate might cast a single ballot makes the new document much more manageable than the old. The portion of the old document shifted to the statute books means that large volume of legislative material is also manageable through the legislature alone rather than through a vote of the public.

There has been established a large body of legislation that can be modified or repealed only by a two-thirds vote of the legislature. There was much debate in the convention as to whether there should be established a sort of quasi-constitutional body of law. Such a designated section was not adopted but specific provisions were placed under that limiting restraint. It is a sort of compromise between constitutional stability and legislative prerogative.

Many voters were persuaded to accept the new constitution in spite of provisions which they strongly felt were undesirable on the ground that the new document was more manageable and that they would rather attempt in the future to amend the new document with one or two choices at the ballot box rather than attempt to obtain much needed change in the old document that might require, a ~ , in recent rejected attempts, some 53 choices. Against this process the electorate has rebelled. Interestingly enough, only one alternative choice was given the electorate in the adoption of this new constitution and that choice resulted in the rejection of the alternate prepared at the last minute. It is noteworthy that the new constitution, as a result, was one adopted on a “take all or none” basis.

Article XIV. Transitional Provisions This (without having checked each and every detail which of course has

356 NATIONAL CIVIC REVIEW [July

been done by the staff) one may boldly say, represents a most skillful and sophisticated process of constitutional revision. It is true there will be a large body of legislation to be enacted at a special session of the legislature which the governor proposes to call in the month of October, to implement the new constitution and do whatever may be necessary to supplement the transitional provisions.

This represents the great accomplishment, mentioned before, of shifting 62 percent, or 158,600 words from the 1921 constitution as amended to the statute books, subject to legislative management, either by simple majority or by two-thirds vote.

Conclusion The people have expressed themselves in the adoption of this new document,

but that does not mean that all who voted for it subscribe to all that is therein contained. It is now incumbent on those who opposed it for speafic reasons, and those who supported it with reservations, which undoubtedly have great validity, to come forward with proposals for change that will be of definite benefit to the state as a whole and present their case in an atmosphere that is not fraught with the emotions of controversy, politics and fear of change.

The fear of inappropriate distribution of tax burden can ody be dispelled when pertinent facts are available, but those facts should be developed. The fear of undue erosion of the civil service system can only be dispelled by an educational process and political restraint. The fear of the diminution of support for public education may be a continuous fear under any system or circumstances, and calls for affirmative programs to improve the educational process. There was fear that the elimination from the constitution of the declaration that gambling is a vice would open the state to more wide- spread gambling and organized crime. Local law enforcement or non-enforcement of anti-gambling laws still depends on regional attitudes, and the constitutional omission can hardly be deemed to change these factors.

Fear and distrust of the legislature should be displaced by citizen par- ticipation in the development of sound policies, affirmatively advanced, with the expectation of favorable legislative response.

The ultimate conclusion, therefore, is that where basic issues have not been met squarely in the new document it is all to the good because legislation should not be a part of a constitution, and the legislature can, in good time, come to grips with these issues.

Even though it still has too much legislation in it, structurally the new document presents definitely advanced thinking, and opens the door to further improvement. It is for the state now to take this new document and commence the process of building on it.

a new constitution for louisiana

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