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In 1836, the state constitutional convention drafted a document to qualify Arkansas for statehood; this first constitution was brief, flexible, general in language, and relatively lenient in terms of power. In 1861, the state needed a new constitution as it left the Union. Very few other substantive changes were made. In 1864, a third constitution was needed to bring Arkansas back into the Union. In 1868, the state adopted its constitution, which endured throughout the Reconstruction Era, with Arkansas being basically an administrative unit of the national government, overseen by federal officials. Then, finally, the current constitution in 1874 was written at the end of Reconstruction and was drafted to protect the people of the state from the government by limiting its powers. In the numerous attempts to revise or update the document in more than a century since, those issues have been discussed both in the proceedings of the conventions and in the campaigns on the proposed documents, all of which have been defeated.
The First Arkansas Constitution (1836)
The first constitution was brief, flexible, and more closely modeled after the U.S. Constitution than later Arkansas constitutions were. For example, no salaries were set in the constitution, as later would be the case. Slavery was recognized, and emancipation required the consent of the owner. The governor, legislators, and county officials were elected by the people, while the secretary of state, auditor, treasurer, supreme and circuit court judges, and prosecuting attorneys were selected by joint legislative session. Governors, who would serve four-year terms, had to be at least thirty years of age and state residents for ten years. The constitution allowed all free adult white males to vote with no property or literacy restrictions, and the General Assembly was apportioned according to the free white male population.
The Second Arkansas Constitution (1861)
The first constitution remained in effect until Arkansas seceded from the Union on May 6, 1861. The new constitution was generally the same as the original, except for references to the Confederate States of America replacing references to the United States of America, a legal prerequisite to joining the Confederacy. The second constitution was ratified by the Secession Convention, chaired by David Walker of Fayetteville (Washington County), who had not favored secession.
The Third Arkansas Constitution (1864)
Arkansas’s third constitution was written under the terms of Abraham Lincoln’s plan for wartime reconstruction, which aimed to hasten the reestablishment of loyal state governments in the South. Federal recognition and financial support would come once only ten percent of those who had voted in the state in 1860 took an oath of allegiance to the Union. Adopted on January 19, 1864, and ratified on March 4, 1864, in an election supervised by Federal soldiers, it provided for a Unionist state government even while a Confederate one, now exiled to Washington (Hempstead County), continued to exist.
The 1864 constitution abolished slavery and repudiated secession but did not define the rights former slaves would enjoy. Also, this constitution, unlike that of 1836, provided for the popular election of secretary of state, auditor, treasurer, and judges. It also created the office of lieutenant governor.
The Fourth Arkansas Constitution (1868)
Arkansas reentered the Union in 1868. The Reconstruction legislature ratified the new constitution on March 13, 1868, to begin the Reconstruction Era. Among other provisions, this constitution declared racial discrimination illegal, undertook to provide support for public education and for a university, and fixed legislative apportionments to favor counties with large African-American populations. This constitution was written under the terms of the Reconstruction Acts of 1867, by which Congress required former Confederate states to create new constitutions that allowed adult African-American males to vote. This constitution also greatly enhanced the power of the state government, especially the governor. Four-year terms were restored, and the governor was given broad power to appoint officials, including judges. This was necessary because the loyalty of many former Confederates was in question, so few of them were allowed to vote.
The Fifth (and Current) Arkansas Constitution (1874)
After Reconstruction, Arkansas adopted its current constitution in 1874 as a reaction against the centralized authority of the Reconstruction period. A Democratic majority replaced the Reconstruction legislature, which had been mostly Republican. A new state constitutional convention was called in 1874. It worked during most of the summer in a generally harmonious process. For the first time since the Civil War, the Democrats outnumbered the Republicans but remained civil, courteous, and did not take some of the provisions as far as they could have. On October 13, 1874, the constitution was approved by the people in a special election by a three-to-one majority. Democrats swept the offices of governor, secretary of state, state treasurer, state auditor, and attorney general, in addition to swelling their ranks in the Arkansas General Assembly.
Arkansans were generally distrustful of government after seeing such tempestuous times—from nominal military rule, to three years of civil war, to four years of civil government loyal to the United States, to a military regime under Federal generals, and finally political reconstruction, six years of Republican rule, and Democratic upheaval. Therefore, the 1874 constitution reflects a general suspicion of government and authority. The document incorporated more changes than any of the other constitutions in the state’s history, and most of these revisions were highly rural, restrictive, and negative in nature. County governments became all powerful as administrative units of the state, with jurisdiction over roads and bridges, local judiciary, and taxation as well as spending. The state’s powers to tax and borrow were severely limited, the terms of elected officials were reduced from four years to two years, the number of county officials was increased from two to ten, and the legislative sessions were limited to sixty days every two years. The governor’s power was greatly reduced, so he could appoint far fewer officials. At the same time, vetoes could be overridden by a simple majority. Detailed provisions ensured that governmental power would not be misused, and a great deal of authority transferred from state to local government.
Failed Constitutional Conventions
Several major attempts were made to replace the current document with a new constitution—in 1918, 1970, and 1980. The first convention after 1874 was during World War I in 1918, the sixth state constitutional convention. The proposed document included women’s suffrage, statewide prohibition, the creation of the lieutenant governor’s office, but it did not propose any changes in taxation or financing. The defeat came amid the war and a worldwide flu pandemic. In 1969–70, the seventh state constitutional convention met during the so-called “Young Turks” movement and the tenure of reform-oriented Governor Winthrop Rockefeller. A very progressive document was offered to the voters, but the campaign was dominated with discussions of taxation and government power, and voters rejected the document. In 1979–80, the eighth state convention worked hard on a new document that finally mirrored much of the convention of the previous decade, with an effort to steer the campaign debate, but the result was the same—rejection of the new document. The power to tax was central to each of the campaign debates on the new documents, and in each case, the providing of new flexibility and authority to state government and officials were the foundation of voter decision making. Each time, the voters narrowly rejected change.
During the 130 years since the current constitution’s adoption, eighty-three amendments have been adopted, covering issues and entities such as salary limits, tax limits, public finance, term limits, abortion, judicial process, paternity, states’ rights, gambling, voter registration, interest rates, county government reorganization, the Game and Fish Commission, the Highway Commission, workers’ compensation, filling vacancies (including board and commission appointments, as well as filling offices when incumbents, for any reason, can no longer continue in office), hospitals, industrial development, and education.
Provisions of the current Arkansas Constitution
- See also: Preambles to state constitutions
The Arkansas Constitution Preamble reads:
- We, the People of the State of Arkansas, grateful to Almighty God for the privilege of choosing our own form of government; for our civil and religious liberty; and desiring to perpetuate its blessings, and secure the same to our selves and posterity; do ordain and establish this Constitution.
Defines the physical boundaries of the state.
Extends to citizens the rights granted by the U.S. Declaration of Independence and Constitution, including the right to bear arms, right to writ of habeas corpus, etc.
Establishes that "elections shall be free and equal" and that "no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage." Parts of this article were superseded by the 39th Amendment. It also ensures that "no idiot or insane person shall be entitled to the privileges of an elector."
Establishes the separation of powers. "The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another."
This section, discusses the operations of the Arkansas General Assembly. It provides that the Assembly shall meet biennially (Section 5) and limited to 60 days unless approved by 2/3rds of both houses (Section 17). Section 4 sets the qualifications for members.
Section 1 allows for passage of laws or constitutional amendment by initiative. Eight percent of voters may place a petition for a law; ten percent for a constitutional amendment (see "Amending the Constitution" for more details, which are applicable to both). Section 1 also allows, by six percent of voters placing a petition, for a statewide referendum on any law or any part of a law. The petition must be filed no later than 90 days after final adjournment of the Assembly. The law is suspended during that time (if part of a law, the portion subject to referendum is suspended while all other provisions of the law remain in effect).
It also includes highly restrictive provisions regardling appropriations:
- Section 38 requires, in order to raise "property, excise, privilege or personal taxes", either 1) approval of the voters or 2) a three-fourths majority of the legislature. However, since the sales tax is not shown in the listing (it was added after passage of the Constitution), it can be increased by a simple majority.
- Section 30 requires that the "general appropriations bill" be limited to the "ordinary expenses of the executive, legislative, and judicial departments of the State." All other appropriations must be passed by special appropriations bills. However, each bill can embrace only one subject; thus, hundreds of bills must be passed to fund other State agencies.
- Section 39 places restrictions on funding. Except for "educational purposes, highway purposes, to pay Confederate pensions and the just debts of the State", no appropriations exceeding $2.5 million can be passed without a three-fourths majority. In recent years, this means that nearly every appropriation bill (including the general bill) requires such.
- Section 40 further requires that the general appropriations bill must be passed before any special appropriations bill can be passed. Otherwise, no appropriations are valid.
The most recent example of how the restrictions can wreck havoc was in 1989. The general appropriations bill (which exceeded $2.5 million) failed to gain the required three-fourths majority, but was declared passed by the General Assembly under the "just debts of the State" exemption, and all subsequent special appropriations bills were passed thereafter. However, the Arkansas Supreme Court disagreed with the Assembly's use of the just debts provision. As a result, it declared every single appropriations bill of the session unconstitutional (the general bill did not receive the votes needed to pass under Section 39, and under Section 40 all other appropriations bills were invalid since the general bill must be passed first), requiring the Assembly to return in special session to reenact them.
Ironically, though, appropriations are not really the state budget in Arkansas; that is enacted near the end of the session, when the Revenue Stabilization Law, which provides the mechanism for distributing the state's revenue (even general revenues), is amended to reflect the actual budget. Any appropriation not funded by the Revenue Stabilization Law is essentially null and void.
Forms the executive offices of Arkansas government. This article was heavily revised by later amendments.
Forms the judiciary and was also heavily amended.
Establishes the two houses of the legislature, the General Assembly and Senate.
Creates exemption against the seizure of property, with specific provisions for widows and children.
This article authorizes the Assembly to pass laws supporting Arkansas's agriculture, mining, and manufacturing (including a seven-year abatement of all taxes on capital investment in such).
Establishes a state militia. "The militia shall consist of all able-bodied male persons, residents of the State, between the ages of eighteen and forty-five years; except such as may be exempted by the laws of the United States, or this State; and shall be organized, officered, armed and equipped and trained in such manner as may be provided by law."
Delineates the liabilities of private companies.
Establishes the conditions for forming and changing the boundaries of counties.
Establishes a school fund for use in a free public school system. "Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education."
Defines the conditions and procedures of impeachment. This article was amended by a 2000 referendum.
Established rules governing state funds and the taxes that may be levied.
Article 17 describes these modes of transportation.
Article 18 Establishes the Judicial Circuits and states which counties are represented in each circuit.
Article 19 covers miscellaneous items.
Section one, titled "Atheists disqualified from holding office or testifying as witness", states: "No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court."
It is commonly believed that Article Six of the United States Constitution bans such qualifications when it states, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." It is rarely enforced, since it would almost certainly be thrown out if challenged in court.
This highly unusual article (added by Amendment 1) prohibits the General Assembly from making appropriations for payment of principal and interest on several bond issues from 1869-1871, commonly referenced as "Holford" bonds, which were passed during Reconstruction by a Union-dominated General Assembly.
Provided for a transition between the current Constitution and the prior one.
In addition to the 20 Articles listed above, several amendments (87 as of July, 2013) have been added. Though some amendments have been physically incorporated into the text of the Constitution (Amendment 1, adding Article 20), others remain physically separated from the text.
Notable amendments shown separately include:
- Amendment 34, which provides for the right to work (only Arizona, Florida, and Oklahoma have similar constitutional provisions).
- Amendment 46, which allows for horse racing pari-mutuel betting, but only in Hot Springs, the location of Oaklawn Park. (Interestingly, there is no similar constitutional amendment relating to dog racing, though Southland Greyhound Park operates in West Memphis.)
- Amendment 68, which states that "[t]he policy of Arkansas is to protect the life of every unborn child from conception to birth, to the extent permitted by the Federal Constitution." This provision would allow Arkansas to restrict the practice of abortion in the event Roe v. Wade is ever overturned by the United States Supreme Court.
- Amendment 73, which places term limits on Arkansas officeholders (Section 3 also placed limits on Arkansas's Congressional delegation; similar provisions in other states were found to be unconstitutional; Section 4 placed a severability clause so the remainder of the amendment would remain in force).
- Amendment 83, which is Arkansas's Defense of marriage amendment.
Amending the Constitution
The current Constitution allows for two methods of amendment. However, each method is shown in a separate section.
Under Section 22 of Article 19, either house of the General Assembly may propose amendments. The amendment requires majority approval of both houses (in a recorded vote), publication in at least one newspaper in each county for six months prior to the next election of the Assembly, and majority approval of the voters.
However, the Section places further restrictions on legislative amendments;
- Each amendment must be separately placed on the ballot.
- No more than three amendments may be placed on any one ballot.
Amendment by Initative
Under Section 1 of Article 5, ten percent of legal voters may propose an amendment by initiative, requiring majority approval of the voters. The proposed amendment must be filed with the Arkansas Secretary of State not less than four months before the election, and 30 days prior to the election the petitioners (at their own expense) must publish the amendment "in some paper of general circulation." Unlike with legislative amendments, there are no limits on the number of amendments by initiative that may be proposed on any one ballot.
- Arkansas Constitution provided by Arkansas Legislature
- The Encyclopedia of Arkansas History and Culture, Arkansas Constitutions
Portions of this article were adapted from Wikipedia.