Describe modern efforts to change the Texas Constitution

Describe modern efforts to change the Texas Constitution

Amendments to the Texas Constitution originate in the House of Representatives and then go to voters for approval. Here, Texas Speaker of the House Joe Straus strikes the gavel as the Texas House votes to pass a proposed constitutional amendment that would boost spending for roads and bridges.

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W HY THE TEXAS CONSTITUTION MATTERS The Texas Constitu­ tion is the legal framework within which government works in Texas just as the U.S. Constitution is the legal framework for our national institutions. Perhaps even more than the U.S. Constitution, the Texas Constitution has an immediate and enormous impact on the everyday lives of Texans. There are rights guaranteed to Texans in Article 1 of the Texas Constitution that go far beyond

those of the U.S. Constitution, addressing issues related to Texans’ private lives. For example, Article 1, Section 7, stipulates that no money will be appropriated or drawn from the treasury that benefits a sect, religious society, or religious seminary. Section 7 clearly lists the conditions that must be met by the state if it wants to take, damage, or destroy the private property of individuals. Section 30 provides a detailed list of the rights that the victims of crime have, including the right to be treated with dignity and privacy in the criminal process and a right to confer with representatives of the prosecutor’s office. Section 31—now rendered inoperable by a U.S. Supreme Court decision in 2015—narrowly defines a marriage as consisting “only of the union of one man and one woman.” Section 33 guarantees Texans a right to access and use public beaches. One could argue that each of these cases is more a matter of policy preference than of constitutional right. By placing these in the Bill of Rights of the Texas Constitution, particular policy posi­ tions take on a protected status. It is more difficult to change a right enshrined in the Texas Constitution than it is to change a policy backed by statutory law.

Given the length and detail of the Texas Constitution, the amendment process assumes a central role in the political process. Every few years, the Texas legislature presents to the voters a list of proposed amendments to the state constitution. There are some important differences between the amending pro­ cess for the Texas Constitution and that for the U.S. Constitution. For example, voter approval is necessary for the amendments to the Texas Constitution to take effect. Moreover, since 1789 there have been only 27 amendments to the U.S. Constitution but 491 amendments to the Texas Constitution as of 2016. In 2013, 9 amendments were proposed and passed. In 2014, 1 amendment was passed. In 2015, 7 were put before the electorate and approved.

Occasionally, amendments deal with overall structural issues of government. In 1979, for example, an amendment passed giving the governor limited authority to remove appointed statewide officials. In 1995 a constitutional amendment passed that abolished the office of the state treasurer,

The Texas Constitution

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placing its duties in the Texas Comptroller’s Office. In such cases, amend­ ments to the Texas Constitution function like those to the U.S. Constitution. At other times, though, the amendments to the Texas Constitution are a far cry from those to the U.S. Constitution. There are many more amendments to the Texas Constitution that have dealt with technical problems in the constitution, reflecting efforts to clean up specific language in the state constitution that was now out of date. In 2007 an amendment passed that eliminated the county Office of the Inspector of Hides and Animals.1 The office had been ef­ fectively vacated with the passage of a new Agricultural Code that eliminated the office in law.2 But the constitution needed to be brought up to date with the law. In 2013, Proposition 2 eliminated language relating to a State Medi­ cal and Education Board and a State Medical Education Fund, neither of which were operational.

Other amendments to the Texas Constitution grapple with pressing policy matters. Interestingly, the electorate is asked to give its approval of certain policy initiatives directly through the amendment process, something that is inconceivable at the national level. In 2009 amendments were passed protecting private property from certain property takings by the state through eminent domain, establishing a National Research University Fund, and allow­ ing members of emergency service districts to serve for four years. In 2011 amendments were passed allowing the Texas Water Development Board to issue bonds so that loans could be given to local governments for water projects and granting the City of El Paso more borrowing authority. Among the amendments passed in 2013, Proposition 6 provided for the creation of two funds to help finance important water projects in the future. In 2015, Proposition 7 provided for the creation of funds to help finance transportation projects throughout the state. Without the passage of these amendments by the electorate, effective public policy in a variety of areas central to the future of Texas would have ground to a halt. Far more than the U.S. Constitution, the Texas Constitution is involved with the nuts and bolts of public policy and must be taken into account frequently by Texas legislators seeking to address problems in new and innovative ways.

CHAPTERGOALS

• Identify the main functions of state constitutions (pp. 45–47)

• Describe the six Texas constitutions and their role in Texas political life (pp. 47–62)

• Analyze the major provisions of the Texas Constitution today (pp. 62–71)

• Describe modern efforts to change the Texas Constitution (pp. 71–79)

45T H E R O L E O F A S TAT E C O N S T I T U T I O N

constitution the legal structure of a government, which establishes its power and authority as well as the limits on that power

separation of powers the division of governmental power among several institutions that must cooperate in decision making

checks and balances the constitutional idea that overlapping power is given to different branches of government to limit the concentration of power in any one branch

tyranny according to James Madison, the concentration of power in any one branch of government

The Role of a State Constitution

State constitutions perform a number of important functions. They legitimate state political institutions by clearly explaining the source of their power and authority. State constitutions also delegate power, explaining which powers are granted to par­ ticular institutions and individuals and how those powers are to be used. They also are responsible for the establishments of local governments, including counties, mu­ nicipalities, and special purpose districts. They prevent the concentration of political power by providing political mechanisms that check and balance the powers of one po­ litical institution or individual officeholder against another. Finally, they define the limits of political power. Through declarations of rights, state constitutions explicitly for bid the intrusion of certain kinds of governmental activities into the lives of individuals.

The idea of constitutional government in Texas since its first constitution has been heavily indebted to the larger American experience. Five ideas unite the U.S. and Texas constitutional experiences. First, political power in both the United States and Texas is ultimately derived from the people. The Preamble to the U.S. Constitution begins with the clear assertion that it is “We the People of the United States” that ordains and establishes the Constitution. Echoing these sentiments, the Preamble to the Texas Constitution proclaims that “the People of  the State of  Texas, do ordain and establish this Constitution.” In both documents, political power is something that is ar­ tificially created through the constitution by a conscious act of the people.

Second, the U.S. and Texas constitutions feature separation of powers. The legis­ lative, executive, and judicial branches of government have their own unique powers derived from the people. Each branch has its corresponding duties and obligations.

Third, the U.S. and Texas constitutions structure political power in such a way that the power of one branch is checked and balanced by the power of the other two branches. The idea of checks and balances reflects a common concern among the framers of the U.S. Constitution and the authors of Texas’s various constitutions that the intent of writing a constitution was not just to establish effective governing insti­ tutions. Its purpose was also to create political institutions that would not tyrannize the very people who established them. In this theory of checks and balances, both the U.S. and Texas constitutions embody the ideas articulated by James Madison in The Federalist Papers, nos. 10, 47, and 51. There, Madison argued that one of the most effec­ tive ways of preventing tyranny (the concentration of power in one branch) was to pit the self­interest of officeholders in one branch against the self­interest of officehold­ ers in the other branches. Good intentions alone would not guarantee liberty in either the United States or Texas. Rather, constitutional means combined with self­interest would ensure that officeholders had an interest in preserving a balance among the dif­ ferent branches of government.

The concern for preventing the emergence of tyranny is also found in a fourth idea that underlies the U.S. and Texas constitutions: the idea of individual rights. Government is explicitly forbidden from violating a number of particular rights that the people possess. Some rights, such as freedom of speech, freedom of assembly, and

Identify the main functions of state constitutions

46 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

federalism a system of government in which power is divided, by a constitution, between a central government and regional governments

supremacy clause Article VI of the U.S. Constitution, which states that the Constitution and laws passed by the na­ tional government and all treaties are the supreme law of the land and superior to all laws adopted by any state or any subdivision

necessary and proper clause Article I, Section 8, of the U.S. Constitution; it provides Congress with the authority to make all laws “necessary and proper” to carry out its powers

freedom of religion, are guaranteed by both the U.S. Constitution and the Texas Con­ stitution. Interestingly, the Texas Constitution also guarantees other rights not found in the U.S. Constitution, such as certain victims’ rights and the right to have an “ef­ ficient system of public free schools.” In this the Texas Constitution can be seen as guaranteeing a broader set of rights than the U.S. Constitution.

The final idea embodied in both the U.S. and Texas constitutions is that of federalism. Federalism is the division of government into a central government and a series of regional governments (see Chapter 3). Both kinds of government exercise direct authority over individual citizens of the United States and of each particular state. Article IV, Section 4, of the U.S. Constitution guarantees that every state in the Union will have a “Republican Form of Government.” Curiously, no attempt is made to explain what exactly a “Republican Form of Government” entails. The Tenth Amend­ ment to the U.S. Constitution also recognizes the importance of the idea of federal­ ism to the American political system. It reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” According to the U.S. Constitution, enormous reser voirs of political power are thus derived from the people who reside in the states themselves.

However, some important differences distinguish the constitutional experi­ ence of Texas from that of the United States. Most important is the subordinate role that Texas has in the federal system. Article VI of the U.S. Constitution contains the supremacy clause, declaring the Constitution and the laws of the United States to be “the supreme Law of the Land.” The supremacy clause requires all judges in every state to be bound by the U.S. Constitution, notwithstanding the laws or constitution of their particular state. In matters of disagreement, the U.S. Constitution thus takes precedence over the Texas Constitution.

One of the major issues of the Civil War was how the federal system was to be understood. Was the United States a confederation of autonomous sovereign states that were ultimately independent political entities capable of secession (much like the current European Union)? Was the United States a perpetual union of states that were ultimately in a subordinate relationship to the central government? The results of the war and the ratification of the Fourteenth Amendment in 1868 ultimately re­ solved this question in terms of the latter. The idea that the United States was a per­ petual union composed of subordinate states would have profound implications for constitutional government in Texas throughout the late nineteenth and twentieth centuries. The incorporation of the Bill of Rights through the Fourteenth Amend­ ment, which made much of the Bill of Rights apply to the states, became a dominant theme of constitutional law in the twentieth century. The Fourteenth Amendment effectively placed restrictions on Texas government and public policy that went far beyond those laid out in Texas’s own constitution.

Another major difference between the U.S. and Texas constitutions lies in the necessary and proper clause of Article I, Section 8, of the U.S. Constitution. Section 8 begins by listing in detail the specific powers granted to Congress by the Constitution. The Founders apparently wanted to limit the scope of national government activities. But Section 8 concludes by granting Congress the power necessary to accomplish its constitutional tasks. The net effect of this clause was to provide a constitutional basis for an enormous expansion of central government activities over the next 200­plus years.

Drafters of Texas’s various constitutions generally have been unwilling to grant such an enormous loophole in the exercise of governmental power. Although granting

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state government the power to accomplish certain tasks, Texas constitutions have generally denied officeholders broad grants of discretionary power to accomplish their goals.

Texas’s power to establish local governments has no analogous feature in the U.S. Constitution. States such as Texas are sovereign entities unto themselves deriving power directly from the people in the state through the state constitution. Texas is not created by the U.S. Constitution, although it is subject to it, as we shall see in Chapter 3. Local governments derive their authority directly from the state constitu­ tion and the people of  Texas, not from the people in their locality. Self­government for local governing bodies in Texas ultimately means self­government by the people of Texas under the state constitution.

The Texas Constitutions: 1836–1876

Many myths surround the origins of Texas as a state. Some trumpet its unique ori­ gins as an independent republic that fought to attain its own independence from an oppressive regime much like the United States did. Others suggest that Texas has a certain privileged position as a state given the way that it entered the Union or that it reserved for itself a right to break up into separate states or even to leave the Union. To separate the myth from the reality, it is necessary to understand the Founding of Texas out of its war of independence with Mexico and its subsequent constitutional development.

Texas has operated under seven constitutions, one when it was part of a state un­ der the Mexican political regime prior to independence, one as an independent re­ public, one as a member of the Confederacy, and four as a state in the United States. Each was shaped by historical developments of its time and, following the first consti­ tution, attempted to address the shortcomings of each previous constitution. To un­ derstand constitutional government in Texas today demands a clear understanding of the founding of Texas and the specific historical circumstances that gave rise to each constitution. The constitutional regime operating in Texas today is the product of a long course of political and legal development in the state. In this section, we look at historical circumstances that gave rise to Texas’s constitutions.

The Texas Founding

Political scientists refer to “the Founding” as that period in American history when the foundational principles of American political life were established, roughly the period of time from the Declaration of Independence in 1776 through the ratification of the Constitution (1790) and the Bill of Rights (1791). Texas has a founding period, but one that is much longer and more convoluted.

Describe the six Texas constitutions and their role in Texas political life

48 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

On the face of it, Texas’s road to independence appears to mirror that of the United States. Like the United States, Texas had a period of discontent with the gov­ erning regime that culminated in a Declaration of Independence. This document cat­ aloged grievances against Mexico and announced the establishment of a new Republic of Texas. But whereas Britain was a stable and powerful empire in the mid­eighteenth century, Mexico was not. Mexico had only recently freed itself from Spain and was experiencing a lengthy period of domestic turmoil. In addition, while the American colonies had been effective self­governing entities before the Declaration of Indepen­ dence, Texas was not. The Texas Founding encompassed a number of phases of consti­ tutional government. These phases stretched from 1836 when Texas declared itself an independent republic to 1876 when reconstruction after the Civil War came to an end and a new (Texas’s current) state constitution was put into place.

The Constitution of Coahuila y Tejas, 1827 Despite the growing fears of American expansionism following the Louisiana Purchase, in 1803 Spanish Texas was still sparsely populated. In 1804 the population of Spanish Texas was esti­ mated to be 3,605. In 1811, Juan Bautista de las Casas launched the first revolt against Spanish rule in San Antonio. The so­called Casas Revolt was successfully put down by the summer of 1811. The next year, a second challenge to Spanish rule took place along the border between Texas and the United States. After capturing Nacogdoches, La Bahia, and San Antonio, rebel forces under José Bernardo Gutiérrez de Lara issued a declaration of independence from New Spain and drafted a constitution. By 1813, however, this revolt had also been put down, and bloody reprisals had depopulated the state. Texas remained part of New Spain until the Mexican War of Independence.3

The Mexican War of Independence grew out of a series of revolts against Spanish rule during the Napoleonic Wars. Burdened by debts brought on by a crippling war with France, Spain sought to extract more wealth from its colonies. The forced abdi­ cation of Ferdinand VII in favor of Napoleon’s brother Joseph in 1808 and an inten­ sifying economic crisis in New Spain in 1809 and 1810 undermined the legitimacy of Spanish rule. Revolts broke out in Guanajuato and spread throughout Mexico and its Texas province. Although these rebellions were initially put down by royalist forces loyal to Spain, by 1820 local revolts and guerrilla actions had helped to weaken con­ tinued royal rule from Spain. On August 24, 1821, Mexico was formally granted inde­ pendence by Spain.

Being part of Mexico, the first federal constitution that Texas operated under was the Mexican Constitution. At the national level, there were two houses of Congress in Mexico. The lower house was composed of deputies serving two­year terms. In the upper house, senators served four­year terms and were selected by state legislatures. The president and vice president were elected for four­year terms by the legislative bodies of the states. There was a supreme court, composed of 11 judges, and an attor­ ney general. Although the Mexican Constitution mandated separate legislative, execu­ tive, and judicial branches, no attempt was made to define the scope of states’ rights in the Mexican confederation. Local affairs remained independent of the central government. Although the Mexican Constitution embodied many of the ideas found in the U.S. Constitution, there was one important difference: Catholicism was estab­ lished as the state religion and was supported financially by the state.4

Under the Mexican Constitution of 1824, the state of Coahuila and the sparsely populated province of  Texas were combined into the state of  Coahuila y Tejas. Saltillo,

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Mexico, was the capital. More than two years were spent drafting a constitution for the new state. It was finally published on March 11, 1827.

The state of Coahuila y Tejas was formally divided into three separate districts, with Texas composing the District of Bexar. Legislative power for the state was placed in a unicameral legislature composed of 12 deputies elected by the people. The people of the District of Bexar (Texas) elected 2 of these. Along with wide­ranging legislative powers, the legislature was also empowered to elect state officials when no majority emerged from the popular vote, to serve as a grand jury in political and military mat­ ters, and to regulate the army and militia. Executive power was vested in a governor and a vice governor, each elected by the people for a four­year term. Judicial power was placed in state courts. The Constitution of 1827 formally guaranteed citizens the right to liberty, security, property, and equality. Language in the Constitution of 1827 also supported efforts to curtail the spread of slavery, an institution of vital impor­ tance to planters who were immigrating from the American South. The legislature was ordered to promote education and freedom of the press. As in the Mexican federal constitution, Catholicism was the established state religion.5

Political instability in Mexico in the late 1820s and early 1830s largely undercut the provisions and protections of both the federal and state constitutions under which Texans lived. But they were important to political debate at the time as discontent against the central government built up. At least in the early stages of the Texas rebel­ lion against Mexico, many Texans could, and did, see themselves as defending these constitutions and most of the political principles that they represented. The turn away from defending the Mexican Constitution of 1824 and the state constitution of 1827 to articulating a new constitutional regime relying more on American political and cultural values was a fundamental step on the road to independence for Texas.

This 1844 cartoon satirized congressional opposition to the annexation of Texas. Personi­ fied as a beautiful young woman, Texas is holding a cornucopia filled with flowers. Though James K. Polk, elected to the presidency in 1844, welcomes Texas, the Whig Party leader Senator Henry Clay, with arms folded, warns, “Stand back, Madam Texas! For we are more holy than thou! Do you think we will have anything to do with gamblers, horse­racers, and licentious profligates?”

unicameral comprising one body or house, as in a one­house legislature

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The Constitution of the Republic of Texas, 1836

Texas’s break with Mexico was in large part a constitutional crisis that culminated in separation. Americans had come to Texas for a variety of reasons. Some, like Ste­ phen F. Austin, had come to Texas in the service of the Mexican state as empresa­ rios, individuals whose goal was to encourage immigration into Texas from America through the distribution of land made available by the Mexican government. They saw themselves as Mexican citizens working with the constitutional regime of 1827. There were other American immigrants who came to Texas as part of America’s move westward. They were far less committed to integrating themselves into the Mexican political community. For these people, independence from Mexico either as an independent Republic or as part of the United States was the ultimate political objective.

Recognizing the dangers to Mexican authority by Americans coming into Texas, Mexican officials made various attempts to limit the influx of new American immi­ grants. These restrictions, along with other grievances, led to growing discontent among Texans over their place in the Mexican federal system. Ultimately, Texans called for political conventions in 1832 and 1833 to discuss new constitutional forms of government. Along with demands for a more liberal immigration policy for people from the United States and for the establishment of English­ and Spanish­speaking primary schools, calls for separate statehood for Texas emerged from the conventions. The 1833 convention actually drafted a constitution for this newly proposed state modeled on the Massachusetts Constitution of 1780. Stephen F. Austin’s attempt to bring the proposed constitution to the attention of the central government in Mexico City led to his imprisonment, which in turn pushed Texas closer to open rebellion against the central Mexican government.
Describe modern efforts to change the Texas Constitution

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