1. Chapter 2: The Texas Constitution

2. Table 2–1: The Seven Texas Constitutions

3. Constitutionalism Constitutions have multiple functions.
Define the principles of a society
State the political objectives of a society
Define the relationship between the government and the governed
Set limits on what each group can do
Structure conflict through institutional arrangements
Constitutionalism
Constitutions have multiple functions.
Implicitly and explicitly, they express the fundamental principles upon which a society and its political system are constructed.
They define who can and cannot participate in the political system.
They define the relationships between those who govern and the general polity.
They define the limitations placed on governments and those who govern.

4. Constitutionalism A Well-Constructed Constitution Should Be brief
Provide general principles rather than specific legislative provisions
Create a basic government framework
7,000 words (U.S.) and 90,000 words (Texas)
Grant authority to specific institutions
Provide for orderly change
U.S. Constitution amended twenty-seven times
Texas Constitution amended 474 times
Constitutionalism
Ideally, a constitution should include general and fundamental principles, including the limitations and restrictions imposed on governmental institutions.
It should be brief, spelling out the general responsibility and authority of governments.
The details of this authority should be left to the institutions of government to work out once they have been organized.
A constitution should also include provisions that permit adaptation to changing conditions in the political system.
The Texas Constitution is one of the longest state constitutions with over 90,000 words. In its 100-plus year history, voters have adopted 474 constitutional amendments.
By contrast the 200-year-old U.S. Constitution has approximately 7,000 words and has been amended twenty-seven times.

5. Figure 2–1 Frequency of Amendments: Texas Constitution Compared with Other State Constitutions, January 2011
This map shows the date that each state’s current constitution was ratified and also the number of amendments that have been added to the constitution since it was ratified. Texas is one of only nine states that have added more than 200 amendments to its state constitution.
Source: Based on data found in The Book of the States, 2011 Edition, vol. 43, Table 1.1 (Lexington, KY: The Council of State Governments, 2011).

6. The Constitutional Legacy
The Constitution of Coahuila y Tejas (1827)
Texas and Coahuila become a single state.
Unicameral legislature
Texas had only two of the twelve representatives.
Catholicism was the official state religion.
Mexican laws influenced Texas property and land laws, water rights, community property laws, and local control of schools.
The Constitution of Coahuila y Tejas (1827)
The Constitution of Coahuila y Tejas (1827) was adopted when Texas was part of Mexico.
This constitution provided for a unicameral legislature, and Texas was entitled to two representatives.
The state functioned with a governor and vice governor.
Catholicism was the state religion, although the requirement was not imposed on Anglo Texans.
Moreover, Mexico made limited efforts to impose taxes or military service on the Texan population.
The enduring legacy of this constitutional period is found in elements of the Mexican legal system that have been incorporated into subsequent state constitutions and statutory law.
These include elements of property law, water law and water rights, and community property laws.

7. The Constitutional Legacy
The Constitution of the Republic of Texas (1836)
Fight for independence
Declare independence and create a constitution
Independence won at the Battle of San Jacinto
Constitution influenced by U.S. Constitution and those of other southern states
A bicameral legislature and an elected president
The Constitution of the Republic of Texas (1836)
From 1836 to 1845, Texas functioned under the Constitution of the Republic.
During the formative period of Mexican independence, there was increased Anglo settlement in Texas that brought with it increased conflicts over religion, culture, and economics.
Inevitably, this conflict erupted into an independence movement and warfare between the Mexican government and the predominantly Anglo Texans.
Texas independence was achieved in a relatively short period of time in 1836 after the battle of San Jacinto, when the Texas army under the command of Sam Houston defeated the army of Santa Anna.
The Constitution of 1836 was adopted soon after the fall of the Alamo in San Antonio.
It was a short document, modeled after the U.S. Constitution with a bicameral legislature and an elected president.
The enduring legacy of this period is not the constitution it produced but the autonomy and independence that shaped the Texas psyche.

8. The Constitutional Legacy
The Constitution of 1845
Annexation to the United States
Texas becomes the twenty-eighth state and is allowed to be a slave state.
Many high offices appointed by the governor or legislature
Became elected offices after 1850 amendment providing for a plural executive branch
Included a number of individual protections
Served as a model for the 1876 Constitution
The Constitution of 1845
Many of the proponents of Texas independence advocated statehood under the U.S. Constitution.
Initial statehood efforts were thwarted, in part, because of the issue of slavery and the balance of political power in the United States Congress.
The movement for statehood was finally successful, and Texans wrote their third constitution in 1845.
This constitution was shaped, in part, by the influence of Jacksonian democracy and borrowed from the constitutions of several southern states.
The constitution followed a national pattern of fragmenting the powers of the executive with the creation of the plural executive.
The 1845 constitution protected private homesteads from foreclosure, guaranteed separate property rights for married women, and established a permanent fund for the support of public schools, provisions that are found in the current Texas Constitution.

9. The Constitutional Legacy
The Civil War Constitution (1861)
Texas secedes from the United States in 1861 and joins the Confederate States of America.
Few changes to the constitution
Public officials had to pledge support for the Confederate Constitution.
Greater protections given to slavery
Influence of Civil War Era
Origins of Democratic Party factionalism
Legacy of states’ rights
The Civil War Constitution (1861)
When Texas seceded from the Union in 1861, another constitution was adopted.
Most of the provisions of the 1845 constitution were incorporated into the new document.
Additionally, greater protection was given to protecting the institution of slavery and prohibiting the freeing of slaves.
The constitution also expressed Texas’s support of the view that the U.S. government was a confederacy.

10. The Constitutional Legacy
The Constitution of 1866
Texas subject to national control
Presidential Reconstruction (Lincoln/Johnson)
Favored quick reintegration of the South
Abolish slavery
Repudiate 1861 Secession Ordinance
1866 Constitution ends slavery but places limits on African American rights.
Congressional Reconstruction
1866 Constitution is invalidated by Radical Republicans.
Adopted the Fourteenth and Fifteenth Amendments to U.S. Constitution
The Constitution of 1866
With the defeat of the southern states in 1865, Texans began the slow and painful process of reestablishing their relationship with the Union.
The Constitution of 1866 was designed to comply with the moderate reconstruction plans of presidents Lincoln and Johnson.
Based on the Constitution of 1845, this document was changed to include the elimination of slavery and the extension of property and legal rights to the newly freed slaves.
Following a period of military government, a civil government was reestablished after the adoption of the new constitution in June of 1866, and by August, President Johnson declared the rebellion in Texas over.

11. The Constitutional Legacy
The Constitution of Reconstruction (1869)
New terms to gain readmission to Union are included in the 1869 Constitution.
Voting rights for African Americans
Centralization of state powers
Increased powers of the governor
Weakened local governments
The Constitution of Reconstruction (1869)
The Constitution of 1866 was short-lived. Radical Reconstructionists in the U.S. Congress invalidated the Constitution of 1866, and military government was reinstituted in the state.
In compliance with the Reconstruction Acts, a constitutional convention, dominated by Republicans, promulgated a new constitution in 1869.
Power was centralized in the state government while local government was weakened.
A broad array of powers was granted to the governor including the appointment of other state officials and members of the judiciary.
Political suffrage was extended to the African American population.
A highly centralized public education system was incorporated into the new document.
The new government that was elected under this constitution took office under a cloud of alleged widespread election abuses.
Moreover, the unpopular Republican governor E. J. Davis was regarded by his opponents as abusive and corrupt, thus laying the predicate for the reaction to highly centralized state government.
After the election of 1873, the Republicans lost control of the governorship as well as the legislature; a constitutional convention was convened in September of 1875.

12. The Constitutional Legacy
The Constitution of 1876: Retrenchment and Reform
Delegates to the 1875 Convention
Seventy-five of the original ninety were Democrats.
Only four were native Texans.
One-half (the Grange) represented agriculture.
Reaction against Reconstruction Era abuses
Restricted state powers, expanded local powers, and placed limits on taxation
The Constitution of 1876: Retrenchment and Reform
To a large extent, the Constitution of 1876 was a reaction to Radical Reconstruction policies and an effort to reestablish traditional institutional and political relationships.
Seventy-five of the delegates who attended the Constitutional Convention of 1875 were Democrats.
Six of the delegates were African Americans. Most were from the rural areas of the state.
The majority had emigrated from other southern states, and the average age of attendees at the convention was forty-five.
Several of the delegates had served in previous constitutional conventions, and more than a third had previous government service.
Moreover, an appreciable number of the delegates were professionals, and more than half were members of the Grange.
The framers were primarily concerned with creating a constitution that would preclude a repetition of the abuses of the Davis administration.

13. Discussion Question The Constitutional Legacy
Why are constitutions regarded as so important?
What are the primary functions of constitutions?
How do constitutions reflect the attributes of the political culture?
The Constitutional Legacy
Americans have a somewhat unique “love affair” with their constitutions, and there is a real sense that constitutions do make a difference.
Drawing on students’ knowledge of American political history, a discussion of the broad constitutional legacy of the United States would lay the predicate for the discussion of the Texas Constitution.
Students could be asked to consider the following questions:
Why are constitutions regarded as so important?
What are the primary functions of constitutions?
How do constitutions reflect the attributes of the political culture?

14. General Principles of the Texas Constitution
Five Key Principles of the Texas Constitution
Popular Sovereignty
Power of government comes from the people.
Social Contract Theory
People agree to have government for survival.
Limited Government (scope of government)
Separation of Powers (three branches)
Checks and Balances
Each branch must get consent from the other two.
General Principles of the Texas Constitution
The Texas Constitution is part of the broad constitutional tradition of the United States.
A relatively short preamble and the first two sections of the Bill of Rights express the underlying principles of the Texas Constitution of 1876.
The document is a social contract formed by a free people based on the concepts of popular sovereignty and compact theory.
A second principle is limited government.
A third major principle is separation of powers.
This constitution created three branches of government – legislative, executive, and judicial – and provided for a system of checks and balances.
Lawmaking is vested in an elected legislature.
The House of Representatives is composed of 150 members, elected for two-year terms.
The Senate is composed of thirty-one members, elected for four-year terms.
The legislature meets in odd-numbered years and in special sessions of limited scope when called by the governor.
A statewide elected governor shares executive authority with a number of other independently elected, statewide officeholders.
Members of the judiciary are also elected; this provision reflects the strong sentiment of post- Reconstruction Texans for an independent judiciary.
Unlike the federal judiciary, Texas has two courts of last resort.
The Texas Supreme Court has jurisdiction over civil matters.
The Texas Court of Criminal Appeals reviews criminal cases.

15. Table 2–2: Comparison of the Texas Constitution and the U. S
Table 2–2: Comparison of the Texas Constitution and the U.S. Constitution

16. Weaknesses and Criticisms of the Constitution of 1876
Executive Branch
Fragmented responsibility and authority
Difficult for governor to set policy priorities
Legislative Branch
Created a part-time legislature
Limits ability to meet needs of a modern state
Judicial Branch
Elected local judges can develop autonomy and power through local constituencies.
Weaknesses and Criticisms of the Constitution of 1876
The fundamental law of the state created a plural executive arrangement under which a number of statewide elected officeholders are elected independently of the governor and answer directly to the people in the performance of their duties.
The governor has no authority over the other elected state executives.
The governor’s power has been further defused by the creation of numerous boards and commissions.
In 1972, the voters approved a constitutional change to lengthen the terms of the executive branch.
The constitution created a low-paid, part-time legislature to ensure the election of citizen lawmakers.
This action created a lawmaking body easily influenced by special-interest groups.
Strict limitations now hamper the legislature in addressing the increasingly complex needs of a growing, modern Texas.
The Texas Constitution also created numerous locally elected judicial officers who have a great deal of autonomy and power.

17. Weaknesses and Criticisms of the Constitution of 1876
Public Education
Local control led to disparities in funding and quality.
Budgeting and Finances
Balanced-budget requirements restrict choices over state spending.
Individual Rights
Restrictive voting laws limited democratic development.
Weaknesses and Criticisms of the Constitution of 1876
The public school system was decentralized, an action that has produced an inequitable public education system.
The constitution requires a balanced state budget that heavily restricts the legislature’s choices over state spending.
Texas had such restrictive laws on voter participation that most minorities were excluded.

18. Weaknesses and Criticisms of the Constitution of 1876
Excessive Details
Restricts state and local governments
Has obsolete and contradictory language
474 amendments due to changing needs
The Amendment Process
Texas ranks fourth with 474 amendments through 2011.
Amendments needed for government to adapt to social, economic, and political changes
Weaknesses and Criticisms of the Constitution of 1876
Another important criticism of the Texas Constitution focuses on amendments and the amendment process.
Alabama has had more constitutional amendments than any other state, but Texas ranked fourth, behind Alabama, California, and South Carolina, with 474 amendments from 1876 through 2011.
In contrast, the U.S. Constitution has been amended only twenty-seven times since 1789, and ten of those amendments were adopted as the Bill of Rights immediately after the government organized.
The numerous restrictions and prohibitions in the Texas Constitution require excessive amendments to enable state government to adapt to social, economic, and political changes.

19. Constitutional Change and Adaptation
Amendments
A proposed constitutional amendment is passed by a two-thirds vote in both houses of legislature.
The proposed amendment is submitted to the voters for their approval by majority vote.
Texas lacks a statewide initiative or referendum process.
Amendments
Texas does not permit citizens to initiate constitutional amendments through the initiative.
The authority to amend or change the constitution rests with the legislature.
Under existing provisions, both houses of the legislature must pass a proposed constitutional amendment by a two-thirds vote, and the proposed amendment is submitted to the voters for their approval by majority vote.
Many proposed constitutional amendments are complex and difficult to understand in terms of the language or the intent.
There is often a clear intent to confuse voters through the complex and confusing language of the proposed amendments.
Interest groups often use the constitutional amendment to advance and protect their interests.
While they must be approved statewide, many constitutional amendments apply to a single county.

20. Figure 2–2: State Constitutions with the Most and Fewest Amendments, 2011
This map highlights the states whose constitutions have had the most and fewest amendments adopted as of Texas ranks fourth behind Alabama, California and South Carolina.
Source: Based on information in The Book of States, 2011 Edition, Volume 43, (Lexington, KY: The Council of State Governments, 2011).
*The number shown in each state is the number of amendments that have been added to the state constitution as of 2011.
**The Texas Constitution was amended in November 2011 when voters approved seven of ten amendments.

21. Constitutional Change and Adaptation
Constitutional Convention
Can be called by the legislature with voter approval
Delegates and terms approved by the voters
Revised constitution subject to voter approval
Constitutional Convention
The constitution can also be amended by a constitutional convention, which the legislature can call with the approval of the voters.
Delegates to such a convention have to be elected, and proposed changes adopted by a constitutional convention also must be approved by voters.
Voters overwhelmingly rejected a proposal for a constitutional convention in 1919.
Subsequent efforts, including an attempt by Governor John Connally in 1967, to hold conventions also were defeated.
Connally’s efforts, however, resulted in adoption of a “cleanup” amendment in 1969 that removed many obsolete provisions from the constitution, and it laid the groundwork for a constitutional convention in 1974.

22. Constitutional Change and Adaptation
The Constitutional Reform Efforts of 1971 to 1975
1974 Convention
Three votes short of approval for proposal
1975 Legislative Session
Presented to voters as eight separate amendments
Rejected by voters in November 1975
The Constitutional Reform Efforts of 1971 to 1975
The convention worked out a major overhaul of most provisions of the 100-year-old constitution, but on the final day of the convention, the revisions failed by three votes to get the necessary two-thirds majority required for submission to the voters.
The convention failed for numerous reasons. Interest groups played a prominent role in blocking passage because of their opposition to specific provisions included in the final document. Governor Briscoe refused to play any significant role in the revision process.
The constitutional convention was comprised of legislators, many facing reelection campaigns in the party primaries.
There was a sizable minority of legislators who opposed change and attempted to delay or obstruct the business of the convention.
Many local officials opposed changes in the proposed document.
Issues such as gambling and particularly the "right-to-work provisions" produced divisions that were impossible to resolve through compromise or accommodation.
In the aftermath of the failure of the constitutional convention to adopt a proposed constitution, the Texas legislature revived the effort to modernize the state’s fundamental document.
With some minor revisions, the legislature adopted the document that had been narrowly rejected in the convention.
The articles of the proposed constitution were structured in eight propositions that were presented to the voters in November of Large majorities defeated all of the proposals.
Governor Briscoe actively opposed the proposed document.
Many interest groups opposed the revisions.
Public interest in the process was limited, and there is evidence to suggest that many voters had little understanding of the implications or need for constitutional changes.

23. Constitutional Change and Adaptation
Further Piecemeal Reforms
255 amendments were approved by Texas voters between 1975 and 2012.
Constitutional Provisions, Interest Groups, and Elites
Voting turnout is so very low.
Interest groups influence amendments.
Elites dominate the system.
Further Piecemeal Reforms
As a consequence of the failures to modernize the Constitution in , the state has muddled along with piecemeal constitutional change.
Between 1975 and 2012, 255 amendments were approved by Texas voters, and forty-two were rejected.
Constitutional Provisions, Interest Groups, and Elites
The majority of voters have limited knowledge of the details or complexities of most constitutional amendments that are submitted to them.
Interest groups continue to use constitutional amendments to protect their narrow interests.
With the exception of voter approval of the amendment to permit a lottery, voter participation in special elections is extremely low, thus permitting a small part of the electorate to make fundamental decisions for the majority.
The process of amending the constitution coupled with the resources required to mobilize voters are purported to prove more beneficial to the interests of elites and organized interests, particularly the industrial and financial groups.

24. Table 2–3: Average Percent Turnout for Constitutional Amendment Elections, 1970–2011
Source: Texas Secretary of State, Elections Division.

25. Constitutional Change and Adaptation
Change through Court Interpretation
Courts interpret Texas Constitution and call for policy changes, as in the Edgewood case.
Prospects for Future Change
Groups have a stake in preserving interests protected by the current constitution.
Little voter demand for change
Change through Court Interpretation
Increasingly activist state courts have rendered decisions that have constitutional implications, and these cases are redefining the constitution.
Some more recent legal decisions indicate that Texas courts have become more active in interpreting the constitution in cases involving major state policies.
In 1989, the Texas Supreme Court invalidated the system of funding public education and ordered the legislature to provide more equity in tax resources among the state’s 1,000-plus school districts.
More recently, in February 2012, the Texas Supreme Court, in a major water rights case, ruled in favor of two farmers who had challenged governmental restrictions on how much water they could pump from a well on their own land.
Prospects for Future Change
Experts can point out the many flaws of the Texas Constitution, but attempts at wholesale revision have not been successful. And prospects for an overhaul, at least in the near future, are unlikely.
For generations, most Texans have been suspicious of government. They are more concerned about governmental abuses and excesses than they are about restrictions on government’s ability to respond quickly and efficiently to public needs.
Also, many special interests benefit from the existing constitution, and they resist efforts to change it.
Most Texans, though, know little about the document and how it can or does affect their lives.
Enormous educational problems must be overcome if citizens are to be motivated to press for constitutional revision.
It would take an exceptional statewide effort by reform advocates to mobilize the necessary political resources and develop a successful strategy to produce a constitutional overhaul.