Alexander H. Curtis The Alabama Constitutions of 1865 and 1868 were the third and fourth of six constitutions adopted by the state of Alabama between 1819 and 1901. Written during the period of Reconstruction, both constitutions were required by the U.S. Congress for Alabama to reenter the Union after the Confederacy’s loss in the American Civil War. The 1865 Constitution was a revised version of the 1861 Constitution that removed any mention of secession and recognized the abolition of slavery as inscribed in the Thirteenth Amendment to the U.S. Constitution, which was then undergoing the ratification process. (Alabama ratified it on December 2, 1865, and it achieved final ratification with Georgia’s December 6 vote.) It was deemed insufficient for reentry into the Union by Congress, so Alabamians responded with the 1868 Constitution, which recognized the Fourteenth Amendment to the U.S. Constitution. It was the first to be voted on by the people of Alabama and the only one in which African Americans had a major role in drafting. It was replaced by the Alabama Constitution of 1875, which rolled back the more progressive elements of the 1868 Constitution, signaling the collapse of Reconstruction.
With the Confederacy’s defeat in 1865, Alabama was left without a functioning system of government as its 1861 “Secession” Constitution was now void. In May 1865, Democratic president Andrew Johnson, who was sympathetic to poor southern whites, issued a general proclamation of amnesty that restored certain rights to former Confederates. On June 21, 1865, Johnson appointed former Alabama state representative Lewis E. Parsons of Talladega, Talladega County, as the state’s first provisional governor during Reconstruction. Johnson instructed Parsons to reinstate the laws of 1861 except for those protecting slavery. Parsons ordered the election of delegates to a new constitutional convention to be convened in Montgomery, Montgomery County, in September 1865.
Meeting from September 12 until September 30 and led by convention president Benjamin Fitzpatrick of Autauga County, delegates to the constitutional convention framed and adopted a new constitution for the state. It included the Declaration of Rights enshrined in the 1819 and 1861 constitutions, invalidated the 1861 Ordinance of Secession, banned slavery, and repudiated the state’s $20 million war debt. A notable debate among delegates was over how representation would be apportioned. Prior to the Civil War, representation was based on white and enslaved populations, a system that allowed Black Belt planters to dominate antebellum politics. The 1865 convention, however, apportioned representation based on the white population only, giving largely white north Alabama counties control of Reconstruction in Alabama. Delegates, however, were uninterested in acknowledging racial equality with freedmen and unanimously tabled a resolution seeking citizenship and voting rights for black men.
Even though the new state legislature elected that November ratified the Thirteenth Amendment to the U.S. Constitution on December 2, the 1865 Constitution had not guaranteed legal equality for African Americans. In fact, the legislature soon passed “Black Codes” to control freedmen, especially for agricultural labor, raising the ire of the U.S Congress. As the Alabama Constitution of 1865 was required to comply with all dictates of Presidential Reconstruction to rejoin the Union, failure to comply led to the constitution’s rejection by Congress.
When the Republican-controlled Congress met in late 1865, it refused to seat newly elected U.S. Senators and Representatives from the South, including Alabama’s who arrived in December, as southern states selected ex-Democrats and former Confederates to political office. Congress then instituted its own Plan of Reconstruction that was much more radical than Johnson’s acquiescent plan of Presidential Reconstruction. In 1867, they passed the Reconstruction Acts, which created new conditions for southern states to be readmitted to the Union, including the requirement that each state draft a new state constitution to be approved by Congress and that states ratify the pending Fourteenth Amendment to the U.S. Constitution granting citizenship and legal rights to African Americans. Congress also divided the South into five military districts; Alabama was placed under Gen. John Pope, who commanded the Third Military District. The head of the Freedman’s Bureau in Alabama, Gen. Wager Swayne, became the state’s military governor in July 1867.
In October 1867, Alabama became the first state to undergo Congressional Reconstruction, and voters cast ballots to elect delegates to a new constitutional convention that allowed African American males to vote for the first time in Alabama history. The convention convened on November 5, 1867, with 100 delegates including 96 Republicans and 18 African Americans. The constitution drafted during the convention was the only constitution in the state’s history in which African Americans had a significant role in creating. African American James T. Rapier, a Republican and future congressman, served as a delegate at the convention, where he avidly promoted an alliance between freedmen and poor whites. The convention concluded on December 6, 1867, and unlike other states convening similar conventions, freed people and their allies in Alabama avoided legislating racial integration, focusing instead on equality before the law and the creation of a free public school system for all.
By February 1868, the proposed constitution, consisting of 16 articles, was sent to the voters for ratification, making it the first constitution in Alabama history to be voted on by the people. That same month, former Alabama state representative and Unionist refugee from Randolph County William H. Smith was elected as the first Republican governor of Alabama and Andrew J. Applegate of Ohio was elected as his lieutenant governor, a position newly created in the constitution. Because of a widespread boycott by Democratic white voters during the election, Republicans held firm control of the state legislature. The Alabama Constitution of 1868 was one of Alabama’s most progressive constitutions, guaranteeing the rights of all citizens, protecting the property rights of married women, protecting black suffrage, broadening the voting rights of poor whites, and creating a bureau to promote industrial development. It also provided financial support for public education, though largely segregated, through the sale of land, a poll tax, and a variety of taxes on industries, and establishing a centralized Board of Education. Prior to Reconstruction, no other southern state had a state-financed public education system. Delegates also provided for the establishment of an agricultural college (it would be at East Alabama Male College, present-day Auburn University) and created a militia with compulsory service except for religious objections.
In response to the finalized constitution, white Democratic Alabamians boycotted the vote for ratification, with some 68,000 registered voters failing to vote. Therefore, the state lacked the required two-thirds majority as set forth in the Second Reconstruction Act. The Republican-controlled Congress repealed the requirement of a two-thirds majority, made the repeal retroactive, and thereafter required only a simple majority for the constitution to be ratified. In June 1868, the new Alabama Constitution was approved by Congress, the Alabama Legislature ratified the Fourteenth Amendment July 13, and the state was formally readmitted to the Union on that day. That same month, William H. Smith finally assumed office as the state’s governor. In office, he held a conservative stance, supporting the restoration of voting rights for ex-Confederates, promoting economic development, and doing little to curb the increasing violence of the Ku Klux Klan.
As southern Democrats gained power in the first half of the 1870s, the advances of Radical Reconstruction were rolled back, and Democratic politicians dismantled laws protecting black suffrage and rights for former slaves. In 1874, Democrat George S. Houston was elected governor and Democrats won both houses of the state legislature, effectively ending Reconstruction in Alabama. The following year, another constitutional convention was convened that was comprised of 80 white Democrats, 12 Republicans (three of whom were African Americans), and seven independents. They framed and adopted the Alabama Constitution of 1875, which rolled back many of the advances of the Reconstruction constitutions by reducing the size of government, reducing funds for public education, and weakening the political power of African Americans.
Bridges, Edwin C. Alabama: The Making of an American State. Tuscaloosa: University of Alabama Press. 2016.
Rogers, William W., et al. Alabama: The History of a Deep South State Bicentennial Edition. Tuscaloosa: University of Alabama Press, 1994.