Arkansas Constitution: Wikis

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The Constitution of the State of Arkansas is the governing document of the U.S. state of Arkansas. It was adopted in 1874, shortly after the Brooks-Baxter War replacing the 1868 constitution that had allowed Arkansas to rejoin the Union after the conclusion of the American Civil War; the new constitution and the Brooks-Baxter war marked the end of Reconstruction in Arkansas, two years before the disputed 1876 presidential election ended it completely.

Contents

Background

Adopted toward the end of Reconstruction, the new constitution provided a transition period between it and its predecessor.

Preamble

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.

Article 1: Boundaries

Defines the physical boundaries of the State.

Article 2: Declaration of Rights

Source: Arkansas Constitution

1. Source of Power.

All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.

2. Freedom and Independence.

All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

3. Equality before the law.

The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity; nor exempted from any burden or duty, on account of race, color or previous condition.

4. Right of assembly and of petition.

The right of the people peaceably to assemble, to consult for the common good; and to petition, by address or remonstrance, the government, or any department thereof, shall never be abridged.

5. Right to bear arms.

The citizens of this State shall have the right to keep and bear arms, for their common defense.

6. Liberty of the press and of speech - Libel.

The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions, is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.

7. Jury trial - Right to - Waiver - Civil cases - Nine jurors agreeing.

The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.

Note:

Amended by Amendment 16. The amendment was proposed by the General Assembly at the 1927 regular session and adopted at the general election on Nov. 6, 1928, by a vote of 101,890 for and 52,147 against.

8. Criminal charges - Self-incrimination - Due process - Double jeopardy - Bail.

No person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury, except in cases of impeachment or cases such as the General Assembly shall make cognizable by justices of the peace, and courts of similar jurisdiction; or cases arising in the army and navy of the United States; or in the militia, when in actual service in time of war or public danger; and no person, for the same offense, shall be twice put in jeopardy of life or liberty; but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had, may, in its discretion, discharge the jury, and commit or bail the accused for trial, at the same or the next term of said court; nor shall any person be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty or property, without due process of law. All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.

9. Excessive bail or punishment prohibited - Witnesses - Detention.

10. Right of accused enumerated - Change of venue.

11. Habeas corpus.

The privilege of the writ of habeas corpus shall not be suspended; except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it.

12. Suspension of laws.

No power of suspending or setting aside the law or laws of the State, shall ever be exercised, except by the General Assembly.

13. Redress of wrongs.

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.

14. Treason.

Treason against the State shall only consist in levying and making war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

15. Unreasonable searches and seizures.

The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

16. Imprisonment for debt.

No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.

17. Attainder - Ex post facto laws.

No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall ever be passed; and no conviction shall work corruption of blood or forfeiture of estate.

18. Privileges and immunities - Equality.

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.

19. Perpetuities and monopolies.

Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed; nor shall any hereditary emoluments, privileges or honors ever be granted or conferred in this State.

20. Resident aliens - Descent of property.

No distinction shall ever be made by law, between resident aliens and citizens, in regard to the possession, enjoyment or descent of property.

21. Life, liberty and property - Banishment prohibited.

No person shall be taken, or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed, or deprived of his life, liberty or property; except by the judgment of his peers, or the law of the land; nor shall any person, under any circumstances, be exiled from the State.

22. Property rights - Taking without just compensation prohibited.

The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation thereof.

23. Eminent domain and taxation.

The State's ancient right of eminent domain and of taxation, is herein fully and expressly conceded; and the General Assembly may delegate the taxing power, with the necessary restriction, to the State's subordinate political and municipal corporations, to the extent of providing for their existence, maintenance and well being, but no further.

24. Religious liberty.

All men have a natural and indefensible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.

25. Protection of religion.

Religion, morality and knowledge being essential to good government, the General Assembly shall enact suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship.

26. Religious tests.

No religious test shall ever be required of any person as a qualification to vote or hold office; nor shall any person be rendered incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths or affirmations.

27. Slavery - Standing armies - Military subordinate to civil power.

There shall be no slavery in this State, nor involuntary servitude, except as a punishment for crime. No standing army shall be kept in time of peace; the military shall, at all times, be in strict subordination to the civil power; and no soldier shall be quartered in any house, or on any premises, without the consent of the owner, in time of peace; nor in time of war, except in a manner prescribed by law.

28. Tenure of lands.

All lands in this State are declared to be allodial; and feudal tenures of every description, with all their incidents, are prohibited.

29. Enumeration of rights of people not exclusive of other rights - Protection against encroachment.

This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.

Article 3: Franchise and Elections

Article 4: Departments

Article 5: Legislative Department

This section discusses the operations of the Arkansas General Assembly. It provides that the Assembly shall meet biennially (Section 5) and limits these meetings to 60 days unless approved by two-thirds of both houses (Section 17). Section 4 sets the qualifications for members.

Section 1 allows for passage of laws or constitutional amendments by initiative. Petitions require signatures equal to eight percent of registered voters to appear on the ballot for a law, or ten percent for a constitutional amendment (see below). 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 until it is voted on in the next election; if part of a law, the portion subject to referendum is suspended while all other provisions remain in effect.

It also includes highly restrictive provisions regarding 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 wreak 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.

Article 6: Executive Department

Article 7: Judicial Department

Article 8: Apportionment--Membership in General Assembly

Article 9: Exemption

Article 10: Agriculture, Mining and Manufacture

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).

Article 11: Militia

1. Persons liable to military duty.

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, [sic] armed and equipped and trained in such manner as may be provided by law.

2. Volunteer companies.

Volunteer Companies of Infantry, Cavalry or Artillery may be formed in such manner and with such restrictions as may be provided by law.

3. Privilege of members from arrest.

The volunteer and militia forces shall in all cases (except treason, felony and breach of the peace) be privileged from arrest during their attendance at muster and the election of officers, and in going to and returning from the same.

4. Authority to call out volunteers or militia.

The Governor shall, when the General Assembly is not in session, have power to call out the Volunteers or Militia, or both, to execute the laws, repel invasion, repress insurrection and preserve the public peace; in such manner as may be authorized by law.

Article 12: Municipal and Private Corporations

Article 13: Counties, County Seats and County Lines

Article 14: Education

Article 15: Impeachment and Address

Article 16: Finance and Taxation

Article 17: Railroads, Canals and Turnpikes

Article 18: Judicial Circuits

Article 19: Miscellaneous Provisions

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Controversy

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."

However, there are no known cases of this article being enforced in modern times. It is commonly held 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." Current precedent holds that this is binding on the states as well under the liberty clause of the 14th Amendment to the federal constitution. Additionally, the First Amendment to the federal constitution establishes freedom of religion as a constitutional right. While the wording of this amendment specifically bars Congress from restricting freedom of religion, current precedent holds that this amendment and the rest of the United States Bill of Rights are binding on the states by the the liberty clause of the 14th Amendment. As a result, it is understood that this section would almost certainly be thrown out if challenged in court.

Usury law

Section 13 originally set the state's usury limit at 10%; it was amended in the early 1980s to 5% above the Federal Reserve discount rate, but falling interest rates and poorly-worded provisions made the amended version even more onerous than the original. For example, a clause in the 1980s amendment appears to set a 17% limit for consumer loans; but since they weren't exempted from the main "5% above discount rate" provision, the courts ruled that the limit for consumer loans was the lesser of the two clauses, usually the 5% rule. Also, other language in the amendment applying the usury limit "at the time of the contract" made floating-rate loans extremely difficult, even though the usury limit itself was a floating rate. Even worse, neither the original nor amended provisions allowed the legislature to make any exceptions to the general usury law, as happened in other states. The Arkansas legislature tried to permit payday loans anyway, but after two adverse decisions in 2008 the Attorney General ordered all payday lenders in the state to shut down.[1]

Eventually, after out-of-state banks took over most lending in Arkansas thanks to the Marquette decision and the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994,[2] Arkansas banks received special relief from the usury law through Section 731 of the Federal Gramm-Leach-Bliley Act in 1999. Also in that year, an Arkansas Supreme Court decision allowed out-of-state auto finance companies to engage in subprime lending through Arkansas dealerships without violating the usury law.[3] Today, only a handful of loans made to Arkansans are still subject to this law, mainly private-party lending and some prime auto loans from companies like GMAC and Ford Credit.

Article 20: "Holford" Bonds Not to Be Paid

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, some of which refinanced disputed debt from shortly after Arkansas' statehood in 1836. These bonds had been central to the Brooks-Baxter War.

Amendments

In addition to the 20 Articles listed above, several amendments (84 as of March, 2007) have been added. Though some amendments have been physically incorporated into the text of the Constitution (e.g. Amendment 1, adding Article 20), others remain physically separate from the text.

Notable amendments shown separately include:

Amending the Constitution

The current Constitution allows for two methods of amendment. However, each method is shown in a separate section.

Legislative Amendment

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, requiring each amendment to appear separately on the ballot and limiting the number per ballot to three.

Amendment by Initiative

Under Section 1 of Article 5 (as amended by Amendment 7), 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 legislative amendments, there are no limits on the number of amendments by initiative that may be proposed on any one ballot.

External links

References


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