Identify the main functions of state constitutions

Identify the main functions of state constitutions

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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44 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

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.
Identify the main functions of state constitutions

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