Overview+of+the+U.S.+and+Texas+Constitutions


 * Overview of the United States and Texas Constitutions**

It's a good idea to begin 2302 by reviewing the parts of 2301 most pertinent to it, namely the basic design of the U.S. and Texas Constitutions. We also will look at the principles that the documents are based on (unalienable rights, and popular sovereignty), plus those that are embedded in it (separated powers and checks and balances). 2302 is essentially an in-depth exploration of these topics.

//The following terms and phrases are necessary in order to understand this material://

- [|government]. - [|authority]. - [|politics]. - [|unalienable rights]. - [|popular sovereignty]. - [|consent of the governed]. - [|tyranny]. - [|autocracy]. - [|oligarchy]. - [|democracy]. - [|tyranny of the majority]. - [|factions]. - [|Jacksonian Democracy]. - [|republic]. - [|legislature]. - [|executive]. - [|judiciary]. - [|separated powers]. - [|checks and balances]. - [|general elections]. - [|electoral college]. - [|primary elections]. - [|political parties]. - [|federalism]. - [|enumerated powers]. - [|implied powers]. - [|reserved powers]. - [|Bill of Rights]. - [|civil liberties]. - [|public opinion]. - [|ideology]. - [|liberalism]. - [|conservatism]. - [|freedom of the press]. - [|interest groups]. - [|civil rights].

//Prior to taking this class, you should be able to answer the following questions://

1. What is an unalienable right? Where do they come from? What are they exactly? 2. What is the purpose of government? What is the source of its authority? How is it properly evaluated? 3. What unique problems do direct democracies pose for government? How are these problems solved? 4. How did democracy evolve and expand over American history? What role did Andrew Jackson play in this evolution? 5. What is tyranny? How is tyranny prevented? 6. What are the distinguishing features of the United States Constitution? 7. How is the Texas Constitution different than the U.S. Constitution? 8. What is federalism? What parts of the U.S. Constitution define the powers of the national and state goverments? Which allow for change? 9. What are the key features of the electoral systems on the national, state, and local levels? 10. What do political parties do? What are distinguishing features of the two major political parties in the U.S.? 11. What is a civil liberty? Where are they defined? 12. What roles do interest groups play in American government? 13. Why is public opinion important in a democracy? 14. What is a civil right? Why is the equal protection clause, and the fourteenth amendment in general, central to civil rights?


 * Assignments for summer 2009 on line (not lecture) students**

Write at least 150 words for each of the following questions. Use all available sources, not just what is written on this page, to fully answer these questions. You will be evaluated on the length, breadth, and comprehensiveness of your answers.

1. Paraphrase, in your own words, the argument in the first two paragraphs of the Declaration of Independence. 2. Fully outline the separate functions of each of the three separated powers (the legislative, executive and judicial) and how each chekcs the others. 3. Use your web surfing skills to find a recent example of one power checking another. 4. The general population of Texas has greater control over Texas Government that the general population of the United States has over the United States government. How?

Email your answer to me by midnight June 14th. Use Microsoft Word or past your answer into the email.

Text in progress.

//". . . what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."// - [|James Madison], Federalist #51.

Madison's quote provides the best starting point for our review of the key features of 2301. In a handful of words he hits on several important themes. He mentions human nature. To the founders, human nature was constant and had to be considered realistically in order to design an effective government. We are not angels. We do not always act cooperatively, and we like to steal each others things. Because of this, governments have evolved over time in order to control our worst impulses. But governments can do some pretty bad things also and effort must be made to make sure that this is prevented.

We will spend this semester focusing on how this occurs in each of the three institutions established in the constitutions of both the US and Texas, but let's review the philosophic principles which led to the constitutional system we have been given.

Let's first review the argument that allows us to even begin this discussion. This is the argument that undermined the previsously accepted principle that monarchs were granted divine right to rule absolutely over their subjects. There are two Biblical elements to this argument, one that monarchs inherited from Adam dominion over the earth and its creatures, and the other that the king has the same absolute authority over humanity that the father had over the family. As a result, people enter into the world within a pre-existing hierarchy, subject to those above and with authority over those below. Briefly put, these arguments were checked in the same manner by John Locke. Adam shared dominion over the earth and other creatuires, but not over other people, and the father is only granted authority over children, an authority shared with the mother. Locke argues that the authority of Adam, and fathers, is limited to creatures and children who lack the capacity to reason. Conversely, what gives our individual autonomy is that very capacity.

This is an important point. The defining characteristic of man is the ability to reason, and underlies the justification for the establishment of government, the break with Britain, and the design of the United States Constitution.

The first two points we can review by looking at the first two paragraphs of the [|Declaration of Independence]:

//When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the// [|//Laws of Nature//] //and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be// [|//self-evident//]//, that// [|//all men are created equal//]//, that they are endowed by their// [|//Creator//] //with certain// [|//unalienable Rights//]//, that among these are// [|//Life, Liberty and the pursuit of Happiness//]//. That to secure these rights, Governments are instituted among Men, deriving their just powers from the// [|//consent of the governed//]//, That whenever any Form of Government becomes destructive of these ends, it is the// [|//Right of the People to alter or to abolish it//]//, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute// [|//Despotism//]//, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.//

The first paragraph makes the dramatic claim that people are equal, and that reasonable argument must be made when something as drastic as separation must be claimed. The second takes us step by step through the justification of government, and gives a terrific summary of Locke's argument. Governments are established in order to secure rights that are innate to humans. When governments no longer secure these rights, it loses legitimacy. A government might lose legitimacy if it attempts to create a tyranny over the population.

So what is tyranny? We can apply the phrase to any government that abuses its power, but the term has a specific meaning to the founders. It describes a system of government where the three principles powers (the legislative, executive, and judicial) are held by one person or one institution. When someone aor something can make, implement and interpret the law, abuse is inevitable. The list of grievances that follow these two paragraphs are meant to prove that this was the intent of the King of England. Traditionally monarchs held all power. This was the case in Britain for centuries, but over its history the power of the monarch had been gradually chipped away. This is a story we will tell throughout this class so there is no reason to expound on it now except to say that the members of the revolutionary generation were familiar with the problems that concentrated power in the hand of a monarch poses for people who claim to be born free and equal and endowed with unalienable rights.

Being conversant with the lessons of history, the founders understood that the arch of history often led to the development of monarchy. This could sometimes be a consequence of the attempt to establish a democracy. A democratic government could turn violent since the various interests in society would create groups that would compete against each other. The chaos that would result would lead to the general population deciding to abandon democracy altogether and yield power to an absolute monarch who, though abusive, could at least keep the peace.

The early lesson from this was not to allow for the establishment of a large scale executive. So the first attempt to establish a national government was a confederacy, with a weak national legislature but no national executive or judiciary. This was established in [|the Articles of Confederation]. This was a perfectly fine system for those whose primary allegiance was to their state, and wanted to be free from the influence of other states. For those who wanted coordinated action for the country as a whole, it was a disaster. There was no institution that had the power to create and impose national commercial policies, or provide effective internal and external security. Among other things, states could make their own currency and adjust its value as they saw fit, they could tax imports from other states, and they could make their own treaties with foreign nations. States were effectively independent nations. The small scale shopowners, artisans and farmers that saw no need for large scale projects controled many state legislatures. But the large scale merchants, plantation owners and their lawyers who wanted to establish a commercial republic saw this system as an impediment to development. Without an effective way to establish policy without the resistence of the states, and implement it with a national executive, the country would splinter into small republics that woudl be vulnerable to European powers.

There are two things to point out here. One is institutional, the other political. First, the design of institutions matter. The longevity of the United States may be an indication that it is a "well constructed union" after all. The second is that we see evidence of political conflict from the beginning of the nation, and that much of this conflict concerns the relative powers of the national and state governments.

The Constitutional Convention was called to solve the problems posed by the Articles of Confederation. These problems all came down to the inability of the national government to reconcile the competing interests of the states. Rather than amend the document, participants simply threw it out and started from scratch. Though some participants were supporters of states rights, the general sense was that the national government needed to be at least on par with the states, if not more powerful. Without reviewing the full story of the convention, which we would have done in 2301, here a few of the results of the convention:

1 - **National Power**. The national government connected itself directly to the people of the nation. According to the Articles of Confederation, the national government exists beacuse the states establish it and give it legitimacy and authority. The opening phrase "We the People" in addition to the direct elections to the House of Representatives establish that the general population is the basis of national authority and is directly connected to national governing institutions.

- [|The Preamble].

2 - **The Separated Powers.** The national government is given actual power by having three separate institutions, most importantly a national executive. The powers of these institutions are held in place by "the mutual relations," that is the systems of checks and balances that allows the ambitions of one to check the ambitions of the others. This also involves a complicated system of elections, and staggered terms lengths, designed to provide each institution with a "will of its own."

- [|Checks and Balances].

3 - **The Republican Form of Government.** Collectively, the separate institutions establish a republic. A chief advantage of a republic is its tendency to break and control the violence of factions by ansuring that a sufficient number of issues are introduced into the political arena to make sure that only minority factions will form. The key way this is done is by ensuring that the mass public never has the ability to directly influence government.

- [|Article One]. - [|Article Two]. - [|Article Three].

4 - **Federalism.** Specific powers are delegated to the national government, specifically the legislative branch. These generally fall into two categories: commercial and security. We call these the delegated powers. Two clauses, the commerce and necessary and proper clauses, have elastic properties and have allowed the expansion of national power over time. We call these the implied powers. When the Tenth Amendment is added to the Constitution as part of the Bill of Rights, those powers not delegated to the national government or restricted to the states were reserved to the states, we call these naturally reserved powers. These tend to include criminal law and policies related to health, safety, welfare and moral of the community.

5 - **States Relations.** Each state is also obliged to recognize the public acts and records of other states, and to treat the citizens of other states as they do their own.


 * The Anti Federalists, The Jeffersonians and The Jacksonians**

It is crucial to bear in mind that a goal of the authors of the Constitution was to check the excesses of democracy. In their view the problems the government was facing was due in large measure to the excessive influence of the less wealthy and educated in state legislatures. Since many of these individuals were debtors, the policies they pursued were in their interests. Madison would criticize some of these, "a rage for paper money, and abolition of debts and an equal distribution of property." as being "wicked." The constitutional structure in many ways can be seem as an effort to simultaneously base the legitimacy of the national government on these people, but to limit their direct influence on it.

These restrictions did not sit well with the portion of the general population that were not elite. Though these individuals were able to ensure that a Bill of Rights would be passed that placed specific limits on the powers of the national government, many continued to be excluded from politics due to property rights restrictions on the vote. They fortunately had options, notably the quickly expanding lands to the west where this group moved westward, some to Texas. They took with them the belief that the common man (meaning non-propertied white males) were capable of self-government, and that any governing system that contained appointed positions, long terms of office and intermediate institutions, such as an electoral college, that came between the people and the law was illegitimate.

The term Jacksonian Democracy is used to describe the movement that encompassed these people and this belief system. They were the descendants of the groups that controlled the state legislatures under the Articles of Confederation, campaigned against ratifying the Constitution, and supported Jefferson's vision of an agrarian America. Andrew Jackson was their biggest beneficiary. His very election was the result of the expansion of the vote to non-property owners.


 * The Texas Constitution**

Though this is a simplification, Texas can be considered to be a product of the Jacksonian spirit. It was safely agrarian for a century after its admission into the union in 1845. It would not vote for a Republican until 1928 (Democrats had campaigned on a promise to annex to Texas in [|1844]). Its constitutions tend to use short terms of office and elections as mechanisms for ensuring that the decisions it makes would not steer too far away from the preferences of the general population. This is one of the factors that ties Texas into the Anti-Federalist movement. The institutions of government should not be too far removed from the governed. The expansion of democracy was a good thing. The Federalists disagreed. [|The excesses of democracy] were one of the principle factors used to justify the barriers (such as the electoral college, the state selection of Senators, and appointment of judges to life time tenure) placed between the general population and governing institutions.

Texas government has few such barriers. The current Texas Constitution was written in 1876, following the end of [|Reconstruction]. It reflects the fears of governmental power common among agrarians, and reflective of Jacksonianism. In structure it looks very similar to the government established in the U.S. Constitution, almost all constitutional positions are elected, and the terms were at least initially shorter than the similar positions on the national level. The overall goal is to ensure that the size and scope of government is kept minimal, though there are appropriate questions raised whether this is in fact the case.

Here are key features which reflect Texas' concerns for excessive power.

Legislative Power: Texas has an amateur legislature, while the national legislature -- and many other state legislatures -- can be called professional. A professional legislature meets often, and is paid a reasonable salary. Amateur legislators meet seldom (The Texas Legislature meets only 140 days every other year), are paid little (Texas Legislators are paid $600 month, but also get a per diem allowance when the legislature is in session) and have little money to hire a staff. The brief session is meant to reduce the amount of time that legislation can be passed. This assumes that longer sessions in fact produce more legislation ([|see Texas Legislative statistics here]). The cautionary quote is: "No man is safe as long as the legislature is in session." Teh small monthly salary is meant to ensure that no one earns enough as a legislator to make it a full time job. One has to spend the bulk of a two year period between elections in one's home district and thereby stays in touch with the needs of the constituency. Considering that the bulk of the work done in a legislature is actually accomplished by legislative staffs (this is especially true for Congress), the smaller the staff, the less work they can do.

Executive Power: Texas has a plural executive while the national government has a singular executive. The singular national executive is meant to provide, in Hamilton;s words, "[|energy in the executive]." Hamilton argues that this is the leading characteristic of good government, but a single headed design can also allow for abuse. The executive branch is the last place you want to have an abusive leader. The American's first experience with an executive was the self-controlled George Washington, this might explain the willingness to trust the singular design. Prior to drafting the 1876 Constitution, Texas' immediate experience with the abusive and corrupt [|E.J. Davis], who [|refused to step down]following an election. The [|plural design]of the Texas Executive was meant to dispurse power across the institution making it difficult for a single person to use all executive institutions for their own purposes.

Judicial Power: Texas has an elected judiciary that serves a limited term, while the national government has an appointed judiciary that serves for life. Madison explicitly states in Federalist #51 that the purpose of the appointed system is to ensure that judges will have the qualifications necessary for the office. But in order to ensure that judges will not then be controlled by whatever institution or individual appoints them to office, they are given lifetime service. This creates the possibility that judges may begin to make capricious decisions free from reasonable limits imposed by external sources. Those who argue that the judiciary has become "imperial" would agree. Elections ensure that judges will not stray far from the preferences of the majority (making them a tool of, rather than a check on, majority tyranny), but it also makes them subject to manipulation (or the appearance of manipulation) due to the need of campaign funding in order to run successfully for office.


 * Additional Sources:**

Constitutions and Codes of Ordinances - [|The United States Constitution] - [|The Texas Constitution] - [|City of Houston Code of Ordinances] - [|City of Alvin Code of Ordinances] The Separated Powers - The Legislature (The Purse) - [|Read the intro and "The Theory Elaborated and Implemented]." - The Executive (The Sword) - [|Read the "Creation of the Presidency.]" - The Judiciary (The Scholar) - [|Read the opening paragraph and "One Supreme Court.]" Checks and Balances (These links contain a lot of reading and I will whittle them down soon) - [|Legislative Oversight] - [|Executive Privilege] and [|the Unitary Executive] - [|Judicial Review] Federalism - [|Answers.com] For an [|overview of Politics and Government in the United States, click here].


 * Assignment (for spring 2009 students)**

Since we will lose a day (Monday January 19th) due to MLK day. I want my internet and lecture students to do the same assignment. Please write at least 150 words on each of the following questions.

1. What theories underlie the designs of each of the separated powers? 2. Describe each of the checks and balances listed above and discuss any controversies associated with them.

Lecture students, turn this in either January 21st, or 22nd, depending on when your class meets. Bring hard copy to class. Internet students, get this to me by Friday Jan 23rd. Email it to me, Microsoft Word or pasted into the email.|