A descent into (at least) seven circles of legal hell

If you’re looking for a quick way to get a Louisiana lawyer to stop talking, try asking them about the Louisiana Constitution. An infamous legal labyrinth, the mere mention of the document triggers a flood of painful law school memories for anyone who’s ever passed the Louisiana bar exam. Convoluted, outdated, and overwhelmingly long, the Louisiana Constitution clocks in at around 72,000 words—the United States Constitution is around 7,500 words, and the average state constitution is around 26,000 words—and it grows longer with every new amendment, an occurrence of alarming frequency. For those familiar with its limitations, it is becoming increasingly clear that our constitutional monstrosity is a problem in desperate need of a solution.

Exactly what that problem is changes depending on who you ask. Some think that the issue lies with the constitutional tangle of absurdly specific statutes. Reformists, such as the watchdog organization Public Affairs Research Council of Louisiana (PAR), envision a constitution that operates more like the U.S. Constitution, whose foundational legal principles are interpreted by judges as time goes on. As they wrote in Part II of their 2020 report, Louisiana Constitutional Reform, “since its creation in 1974, the Louisiana Constitution has morphed into an unwieldy and restrictive document that governs through narrow rules and restrictions rather than broad grants of authority.”

Others are less concerned with the big picture and are more inclined to make specific changes in the way the constitution allocates taxpayer dollars. One of the more sinister voices calling for a constitutional convention is Lane Grigsby, who has referred to himself as a “kingmaker” that talks “from the throne.” In a 2019 Advocate profile on Grigsby, Tyler Bridges wrote that in 2017 Grigsby met with Governor John Bel Edwards to offer his support on the condition that he call a constitutional convention upon reelection to change the current constitutional tax allocations. According to Bridges, “Grigsby said Louisiana needed to end the constitutional requirements that direct most of the state’s tax revenue to K-12 schools and to health care,” before voicing his support for merging state-funded universities, “which could lead to the closure of Southern University of New Orleans [SUNO],” a historically Black public university.

If you ask Dr. Angela Allen-Bell, a professor at Southern University Law Center, you will be swiftly told that any discourse surrounding constitutional reform that doesn’t start with the impact of slavery on our criminal justice system is nothing short of delusional. In February of 2020, Dr. Allen-Bell gave an address at SUNO titled “When Law and Injustice Become Bedfellows: Justice Becomes the Business of the People,” which began with a chilling indictment of the Louisiana legal system. “Each day, I feel less like a lawyer, and more like a part of a modern underground railroad system. My work involves the daily disruption of a state-sanctioned human trafficking system, and the battling of Jim Crow, who refuses to be evicted from the South.” For Dr. Allen-Bell, when bias and racism are codified into law and embedded into custom, policy, and practice—as is the case in the state and nation—reform should be the last step in what is a much longer process of fundamentally changing the system as a whole. “I want to start the process with truth telling,” she says.

The truth is that the roots of our constitution lie in the bloody soil of Louisiana history, and our legal system is an amalgamation of the varying power structures imposed by a succession of ruling classes beginning in 1699. The constitutional controversies we face now are the same ones we’ve been having for centuries. For example, the debate over whether our constitution should be a compilation of legal statutes or a more foundational document that will then be interpreted by judges is really a debate over civil law vs. common law that goes all the way back to the Louisiana Purchase.

Cracks in the Foundation

France and Spain, Louisiana’s first colonizers, are both civil law countries, meaning that their laws are a comprehensive set of continuously updated legal codes. For its first century Louisiana operated under civil law. While the transfer of power between the French and Spanish colonial governments sparked plenty of controversy, most notably in the differences between French and Spanish slavery laws, the two systems were more or less compatible. But the U.S. adopted the English system of common law, presenting the new American government of Louisiana with a whole new set of problems. According to historian Lawrence Powell, the first governor of the territory set up legal tribunals in which half were French judges and the other half were American. Sometimes opposing trial attorneys couldn’t even speak the same language, causing chaos in courtrooms all over Louisiana, and the disconnect between the two systems went largely unresolved.

After the Civil War, the struggle over civil rights fragmented the Louisiana legal system even further. “The starting point is 1868, when the Union ordered Confederate states to redesign their constitutions,” Dr. Allen-Bell explains. “After the Civil War, Congress declared the governments in Confederate states illegal; federal military administrations were existing in their place. Congress refused to seat representatives from these states until they adopted constitutions guaranteeing the vote to the newly emancipated population, ratified the 14th Amendment, repudiated ordinances of secession as well as their war debt, and ratified the 13th Amendment. Toward these ends, Louisiana’s Constitutional Convention of 1868 was called, though many of the men who reported did so with a nod and a wink and an eagerness to be free of federal oversight.”

Extract from the Reconstructed Constitution Of The State of Louisiana with Portraits of the Distinguished Members of the Convention and Assembly (The Historic New Orleans Collection, acc. no. 1979.183)

Reconstruction in Louisiana represented new opportunities for Black civil engagement, and Black Louisianans were hopeful as they embraced their newfound political power. But this was quickly put to an end by the vicious white supremacist backlash that followed. Paramilitary organizations like the White League were supplied with weapons by the Democratic Party, who was the direct political beneficiary of the white supremacist plan to overthrow the Republican Reconstruction government. One hundred fifty Black Louisianans were killed in the Colfax Massacre, the White League’s most notorious terrorist attack, and another 20 died in the Coushatta Massacre of 1874. All over the state political assassinations were rampant, and victims included white Republican politicians who worked alongside Black politicians to make changes to the state’s power structure.

By the end of the century, any political opposition to white supremacy had been beaten bloody; and when the Democrats called a constitutional convention in 1898 to eliminate the few remaining civil rights gains of the Reconstruction era, there was no one left to protest. In his opening remarks, the president of the constitutional convention, Ernest Kruttschnitt, smirked that it was “little more than a family meeting of the Democratic party of the State of Louisiana.” The purpose of this “family meeting” was stated plainly, and that is “to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” As Dr. Allen-Bell puts it, “1898 is the constitution of disenfranchisement, and that’s where it went wrong—the intention was never to make sure that there was equality. And it is all just getting built upon from there.”

The historical junk drawer that is the Louisiana legal system holds a staggering amount of  codified racism. Article 2748 of the Louisiana Civil Code writes that “laborers, who hire themselves out to serve on plantations or to work in manufactures, have not the right of leaving the person who has hired them… until the time has expired during which they had agreed to serve.” Louisiana may have ratified the 14th Amendment in 1868, but the plantation class had no intention of giving up slavery. Draconian labor laws such as these make apparent the ways the plantation elite found new legal language to protect the same system of forced labor. In Chapter I of the Louisiana Revised Statutes, it explicitly says that the word “person does not include an individual in custody after sentence following a felony conviction.” In the convict leasing system that replaced enslaved labor with prison labor on plantations, Black Louisianans caught in the dragnet of the law often had fewer legal protections than they had during slavery. When constitutional conventions were called in 1913 and 1921, they did nothing to address its racist statutes, nor was this a priority in 1973.

For Dr. Allen-Bell, removing white supremacy and bias from the legal system is about more than eliminating individual statutes. “All of that language needs to be revisited,” says Dr. Allen-Bell. “In many instances, the verbiage is creating a culture that reinforces the same narrative that supported slavery and segregation. We are subliminally saying to our people we still believe in the caste system.” As someone who fought on the front lines to end Louisiana’s Jim Crow non-unanimous jury laws, she believes that systemic change cannot be won one victory at a time. “Further action must accompany this initial step if reform and transitional justice is to ever be achieved,” she says. But if there is no reforming a system designed to protect the interests of the powerful at the expense of an exploited labor force, then how do we begin the process of changing our legal system?

Spirit of ‘73

When it comes to constitutional reform, Dr. Allen-Bell is an outlier; to judge by the mainstream political discourse, Louisiana’s longstanding history of state-sanctioned violence is the last thing on anybody’s mind. As far as the PAR is concerned, Louisiana constitutional history begins with the 1973 convention. The section of their report headed, “How we got here,” begins with the truism, “those who cannot remember the past are condemned to repeat it,” and to read this report, one is left with the notion that the historical blunder at the root of our current problems is the failure in 1973 to secure a foundational constitution. Part I of the report recalls the words of Governor Edwin Edwards at the close of the convention, who says “what criticisms I have of the document, and what problems have arisen in the feel and the hustlings and bustlings of our state, arise, very candidly, from your failure to recognize that you were here to write a constitution, rather than to serve as legislators.”

Though such an analysis does nothing to inform the spirit of the law in a legal system originally designed to protect the interests of the slaveholding class, it does shed light on our current predicament. As a legislative body, the Louisiana Constitution exerts more control over state spending than legislators themselves. No section illustrates this point better than Article VII, which concerns taxation and revenue. Louisiana taxes are distinguished by high rates and an extremely narrow base. The tax base is further narrowed by the state’s numerous tax exemptions, which cause the tax rates paid by the remainder of the base to skyrocket. But even though the average Louisiana payer is exorbitantly taxed, they see very few benefits, thanks in part to the constitution’s special funds and tax dedications. In the years since the 1973 constitutional convention, Article VII has been amended more than 100 times, adding 25,000 words to its original 6,000. Currently, there are at least two dozen constitutionally protected funds and still more tax dedications. As the PAR report puts it, “Louisiana is a national champion at packing away windfalls and dedications to serve specific causes that few even know exist.”

As a result, as soon as money comes into the state nearly two-thirds of it has already been spoken for; the constitution mandates around $4.3 billion of government spending. With such a rigid budget system, any government program or initiative not enshrined in the constitution has to fight over whatever scraps remain. According to the PAR, constitutionally protected funds “are designed to protect much narrower interests or sources of revenue that certain interest groups, but not necessarily a statewide constituency, consider fundamental to our state government.” In times of economic crisis, such as the pandemic-era austerity now acutely felt by Louisiana’s most vulnerable residents, the state budget cannot be redirected to address the needs of the people.

But seeing the problem is not the same as seeing a solution, and applying a short-term historical memory to the Louisiana Constitution is a surefire way to watch history repeat itself. Within the current structure, Louisiana politics is a zero-sum game, and its politicians are not accustomed to acting on behalf of the public good. Currently, the constitution offers each special interest group iron-clad protection for their portion of public funds, and they all have what Dr. Allen-Bell calls “a vested interest in defending the status quo.” When reform-minded free-market pragmatists like PAR and the Louisiana Association of Business and Industry (LABI) advocate for an efficient and common sense constitutional structure, it’s hard not to wonder if they are living in the same Louisiana as the rest of us.

The reality is that if a constitutional convention is called, the process will be nearly impossible to control. Thanks to the constitution’s current stipulations, there is no legal way to ensure that convention delegates act according to the will of the people, and there is a real fear that attempting to change it will only make things worse. In 1992, a legislative session proposed a constitutional amendment that would allow for a limited constitutional convention, meaning that the legislature could address specific constitutional issues without putting the whole document up for debate. The amendment was roundly voted down, and so it remains that, in the words of the PAR, “convention delegates, particularly if they include non-legislators who were uninvolved with the convention call, might, once convened, choose to address a broader set of topics.” Effectively, calling for a constitutional convention could (and likely would) result in a political battle royale. Envisioning a demonic orgy of special-interest groups and neo-conservatives all fighting for the biggest slice of the pie, many progressive Louisianans consider it prudent to avoid a constitutional convention at all costs.

“Most people think about this and think it’s overwhelming, says Dr. Allen-Bell. But for her, accepting the status quo out of fear isn’t an option. “I think that is absolutely ridiculous,” she says. “The only way we actually can improve on this is to talk about the fact that it needs to happen.” But for Dr. Allen-Bell, reform is the last step for changing a legal system with a history of state-perpetrated human rights (and constitutional) violations. First, we have to publicly acknowledge the darker purposes the legal system serves. “From the onset of our system in Louisiana, we see a concerted effort to produce ‘criminals.’ There must be a shift in intentions. Criminal justice must finally start being about public safety,” she says.

Dr. Allen-Bell points to ways systemic injustice has been dealt with in other parts of the world. “You have to look at how this is dealt with globally,” she says. “I am a big proponent of transitional justice.” Transitional justice is a framework that is used internationally to heal societies emerging from severe political repression. The process begins with prosecuting those who have committed the most serious crimes, which Dr. Allen-Bell admits may be prohibitively complicated in the case of the Louisiana legal system. However, the next step in the process, truth-telling, is something Dr. Allen-Bell believes we can implement right away. “We need to get to the business of telling people the truth,” she says. “I have learned that when people get the truth they are equally alarmed.”

The Next Chapter

As Dr. Allen-Bell travels throughout Louisiana speaking truth to white supremacist power, people often express concerns for her safety. “People often ask me if I have security, which I attribute to the fear that exists in this state when it comes to matters of race and suppressed history.” The fear of speaking out has its own legal precedent; Dr. Allen-Bell mentions that during the Civil Rights movement, political dissent was against the law. “For ‘criminal anarchy,’ the statute was a hard labor sentence, and the prosecutor had the discretion to decide on what constituted criminal anarchy. So we have silenced the people who could liberate us in this state—a lot of times activists would be afraid to come here.”

Applying a transitional justice model would acknowledge that restoring the people’s faith in the government and the law will take time, and offers new opportunities to right historical wrongs in the full light of the truth. “What I love about the transitional justice approach is that it is inclusive,” she says. “There is no trademark or copyright—there are stakeholders saying we want a better state. It’s saying, sit here and confront this truth: the language in the law furthers oppression.” From there, we will be better prepared to repair the damage and allow for healing. Only then can we talk about reform. “The final step is reform,” says Dr. Allen-Bell. “That is when you go through all of the laws to figure out how you change that structure so that it mirrors the new society instead of the old one.”

Dr. Allen-Bell sees the truth-telling process as something that should extend from the state to the nation. After all, any talk she gives on racism and the law starts with the 13th Amendment. In her mind, Louisianans should harbor no illusions about American common law, which historically has been equally guilty of harboring codified racism and classism. She takes the opportunity to make it clear that civil law in Louisiana is not the problem. “I think that every conversation we have had about change is easier in a place like Louisiana because of our civilian history, which says that the government is ours, we own it. In common law judges decide the law, but in civil law the people tell the legislature and the legislature just facilitates it.” She sees a future where a civil law system is something we regard as the sacred property of the people, a value that her Louisiana law school failed to impart. “Nobody taught me that,” she says wryly, “but law schools don’t teach you anything.”

illustrations by Happy Burbeck


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