The+Texas+Constitution


 * Texas Constitution**

Power Points:

In this section we'll look at the Texas Constitution as well as the nature of state constitutions. State constitutions tend to be longer than the national constitution and Texas is no exception. Only Alabama has a longer constitution. Alabama's constitution is so long because municipal governments do not have home rule authority. Any law affecting cities must be passed by the state legislature. Texas' Constitution allows home rule authority, but as with other states, additional clarity is needed in order to specify how the state's reserved powers will be enacted, including descriptions of some of the agencies that carry out these laws. These descriptions increase the document's length. The Texas Constitution also contains restrictions on the power of the state, which requires even more language.

Study Guide Questions


 * What is the difference between a royal, corporate and proprietary charter?
 * What are some of the general differences between state constitutions and the U.S. Constitution?
 * What is Jacksonian Democracy and what does it tell us about the nature of the constitutions written for the western states?
 * Texas had a number of constitution prior to writting of the current constitution in 1876. What factors led to the drafting of each constitution?
 * How are the powers of the institutions of Texas government restricted even more than those of the national government?

State constitutions have their own unique histories. The original 13 states, as you should know, began as colonies and each had its own unique charter granted by the British monarch at the time. Charters authorized the holder of the charter to establish a government under the authority of the monarch and defined the relationship between the colony and Britain. Three types of colonies were established. Charter colonies, like Virginia and Massachusetts, were essentialy business enterprises. The Virginia Company of London and the Company of Massachusetts Bay were respectively given the authority to establish governments with the intent of beginning profitable enterprises. Proprietary colonies, like Pennsylvania, were based on charters granted to a private individual who serves in essence as the state. Royal colonies were ruled more directly by the crown, who was then responsible for establishing the governmental system and appointing ruling officials.

Over time most charters became Royal charters meaning that by the time of the American Revolution most colonies had direct relationships with the crown, separate from each other. Recall that the last paragraphs of the Declaration of Independence, the ones that state independence, use the plural form. Each of the separate states were independent from each other in their relationship with the crown, and were still independent from each other until limits were placed on the degree of sovereignty they enjoyed when they ratified the Constitution. The charters that established their governing systems served as models for state constitutions which established their powers, first as quasi nations and later as states within a federal system.

State constitutions remain unique documents. They are far more detailed and specific than the U.S. Constitution. Recall that the U.S. Constitution is relatively short and is vaguely worded. It is more about establishing a process whereby governmental policies can be established and implemented. State constitutions are tend to be more about policies. In order to do so, they have to be more specific about those policies and this requires enough language to provide that clarity. The range of state powers also tends to be broader than those held by the national government. These are called the reserved power following the language of the Tenth Amendment and includes police powers, a loose phrase referring to those powers necessary to protect the morals, safety, welfare and health of a community. These have not only an open ended quality about them, but place government in a position where it can directly affect the lives of individuals either positively or negatively. Additional language is needed to stipulate just how these police powers can be applied.

State constitutions, and constitutions in general, tend to take the form adopted by the Constitution of Massachusetts, the oldest written constitution in the world. It contains a preamble, a statement declaring the rights held by the people, an outline of the structure of government, and a list of amendments.


 * The Constitutions of Texas**.

Texas, as we all know, was an independent republic prior to becoming a state. Before becoming an independent nation it was a state under the jurisdiction of France, Spain and Mexico at different times. In 1824, Texas was placed under the first of eleven separate constitutions it would live under until the 1876 was ratified. It exists to this day.

The circumstances of each constitution are worth relating, beginning with the Constitution of 1836 which established the government of the newly independent Republic of Texas. One general note about the circumstances of the settlement of not only Texas, but of the entire western United States. meaning the states west of the original 13 states, helps put all of them in context. The states founded after the original 13 are significantly different, at least at the start, from those of the original states. The original states grew out of what had been aristocratic colonies and still retained polcies that limited the ability of lower class individuals from being able to vote and hold office.

A degree of property was required to vote, and an even higher amount was required in order to hold office. The [|Constitution of Massachusetts], for example, stated that one could only vote for a member of the Senate if they were worth at least 60 pounds, and hold office in the Senate unless they were worth at least 600 pounds. Other states included long terms lengths and other barriers that prevented voters form being able to directly vote on members of any of the branches of government. This of course is the case in the U.S. Constitution and is explained by the suspicions the founders had for the capability of the general public to make rational, calm decisions about public policy. But while the founders feared mob rule, the general population feared biased aristocratic rule. There was simply no way for non elites to get a foothold in the early governments of the original 13 states, but options existed for them further west.

The people who populated the west were not drawn from the class of social and political elites. There was little reason to go west if one was. Those shut out from effective participation in east coast states had ever reason to move west and as they did they carried with them the idea that the common man (meaning a non-property owning white man) was capable of self rule. The ability of these people to participate politically marked a significant expansion in American democracy. The new constitutions written for states in the west embodied this idea. Most positions, including judicial positions, were elected directly and for short terms of office. The idea that government should be strenghtened by removing it from the direct influence of the population was replaced with the idea that governments should be restrained by closely connecting it to the public. This trend has been labelled [|Jacksonian Democracy] because the movement was embodied in the personality of Andrew Jackson, the first President from a western state, and the first that had no direct connection with the eastern aristocrats that had ruled America since the revolution.

The settlers who pushed past Tennessee, Kentuchy and the other states and wound up in Texas, were perhaps an extreme example of this spirit. Each of the constitutions established for, first the nation, and then the state, embody the idea that government needs to be limited. Activists government were seen as tools of the established elites, especially the banks and their ability to punish debtors and take away land. By limiting government, common people were considered to be better able hold onto what they considered rightfully their.

- Avalon Project: [|Texas From Independence to Annexation]. - Texas Politics: [|Constitutions in Texas History]. - Ballotpedia: [|Texas Constitution]. - Tarleton Law Library: [|Texas Constitutions 1824 - 1876]. - Tarleton Law Library: [|Debates of the Texas Constitutional Convention].

- [|The Constitution of the Republic of Texas 1836].
 * The Constitution of 1836**

As with the Texas Declaration of Independence, this document mirrored the U.S. Constitution closely. Many phrases are lifted directly from the U.S. document. It establishes a system of separated powers with checks and balances and grants the government many of the powers the U.S. Constitution grants it. It has a preamble, and a bill of rights. The terms of office are shorter, which makes sense considering the Jacksonian nature of the political culture.

Texas was explicitly a slave owning nation, and the right to own slaves, as well as their explicit description as property, was spelled out clearly in the document. An additional difference is the way the document treats land ownership -- including the provision of land grants to settlers. Land was used to entice people to Texas and the document makes pains to ensure that they, and their descendants, were able to retain it.


 * The Constitution of 1845**

- [|The Constitution of the State of Texas 1845].

Once Texas became a state, it needed a state constitution. Thsi was done in 1845. It retained many of the rights established in the 1836 Constitution, but follows the model of the U.S. Constitution far more than our current (1876) constitution does. Government was more centralized, the appointed powers of the governor were broader, and the judiciary was appointed.


 * The Constitution of 1861**

- [|The Constitution of Texas 1861]

Texas, as we know, seceeded -- or attampted to seceed -- from the union in 1861 following the election of Abraham Lincoln and the rise of the abolitionists. Once the voters of Texas approved secession, a new constitution was written establishing its relationship under the Confederate States of America. Of special note is an entire section on slavery which includes a restriction on the legislature from ever passing a law emancipating slaves.


 * The Constitution of 1866**

- [|The Constitution of Texas (1866)]

The constitution of the confederacy had to be modified to make it acceptable for readmitance into the union. The constitution did not resolve lingering disputes concerning the status of laws passed by the confederate government, and was judged unacceptable by the increasingly influential Radical Republicans who wished to punish the South for the war.


 * The Constitution of 1869**

- [|The Constitution of Texas (1869)]

Radical Republicans, aided by a military occupation, passed this constituton which established far stronger power for the state government. It promoted higher levels of social services, including those aimed at the recently freed slaves, and created a stronger centralized governmental system to carry laws out. It also raised taxes to pay for these services. Ex-Confederates were prevented from holding public office.

These not only led to a political backlash, but also provided an opportunity for Edmund Davis to use the new political apparatus for his personal political advantage.


 * The Constitution of 1876**

- [|The Constitution of Texas (1876]) - Wikipedia: [|Texas Constitution]. - Texas Handbook Online: Texas Constitution.

As Democrats regained power in Texas, they made a push to rewrite the 1869 Constitution, and once again restrain the power of government. One of the primary reasons why this could occur was that the period of reconstruction ended. The full story takes us to the negotiations that resolved the disputes following the contested election of 1876, but the simple story was that in order to prevent a direct challenge to the legitimacy of the Presidency of Rutherford B. Hayes by Democrats, the Republicans agreed to pull troops from the South. The muscle which backed up the 1869 Constitution was now gone and it could be rewritten to reflect the interests of the Democrats.

Instead of actively enfranchising the public through state programs, the new constitution restricted participation. While business interests held sway in the 1869 constitutional convention, agricultural interests dominated the 1875 convention. Educational programs were scaled back, state banks were abolished, and limits were placed on corporations and railroads. The overall structure of government, though it was retained in form, was limited in many ways. Salaries and terms of office were reduced. Government was decentralized, which made it difficulty for governmental activities to be effectively coordinated.

In brief, these are the structural changes that led to a more restrained governmental system. The legislature, though bicameral, was to meet only 140 days every other year, be paid low wages, be given low budgets for staff and supplies, and would not have the ability to override vetos by the governor. This resulted, to this day, in an amateur legislature that is incapable of reacting swiftly to events, and does not meet long enough to give due deliberation to legislation. It is hurried. Little time is allowed to pass legislation. The executive is plural in form. Rather than elect one person on top of the office who has the power to coordinate the entire bureaucratic apparatus, the governor is only one of a handful of officials elected seperately with no authority over officials. The attorney general, comptroller, and land commissioner are all elected separately, meaning that they have their own unique constituencies a governor may have personal influence over another official, but no real authority. Members of the judiciary are elected, meaning that their actions can be limited by either the general public who can remove them from office by vote, or by wealthy interests that can either give or deny them campaign contributions. The national judiciary is appointed to lifetime tenure for the specific reason that they are to be independent from political forces. Not so in Texas.

Here are few highlights from the text of the Texas Constitution:

//-// [|The Preamble]//.// As with the U.S. Constitution, the Texas Constitution begins with a preamble, but rather than establishing a statement of principles it states the following: "//Humbly invoking the blessings of Almighty God, the people of the State of Texas, do ordain and establish this Constitution//."

//-// [|Article One: The Bill of Rights]. The Texas Bill of Rights is far more detailed than the national document. It contains 32 sections and is far more detailed about state/church relations than the national document. It also contains provisions that do not exist in the national document including an Equal Rights Amendment, Rights of Victims of Crime, and a ban on same sex marriages.

//-// [|Article Two: The Powers of Government]. As opposed to the U.S. Constitution which says nothing about the separation of powers, the Texas Constitution does explicitly state that the three powers of government are to be separated.

- [|Article Three: The Legislative Department]. In its basic structure, the Texas Legislature is based on the same principles as the U.S. Constitution. It is bicameral with a House that is designed to be close to the population (150 members serve for 2 years terms) and a Senate that is designed to be a bit further removed from them (31 members serving 4 year overlapping terms). But where the national legislature is designed to be "professional" meaning that it is expected that members are fulltime legislators, the Texas Legislature is intended to be "amateur." Members sit in session only 140 days every other year and are paid a small salary toi do so. The expectation is that their promary focus be on district matters. This reflects a deep concern that the authors of the Texas Constitution had about a government removed from the direct preferences of the general population.

- [|Article Four: Executive Department]. The design of the Executive Department also reflects an effort to limit governmental power. In this case the executive power is divided among several departments rather than vested, as in the national constitution, in a single office. This is the releveant text from Article Four: "//The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General//."

- [|Article Five: Judicial Department]. As with the previous two institutions, the design of the judiciary reflects concerns about a government removed from the people. The national judiciary is appointed -- in order to guarantee qualified judges -- for service during good behavior -- which allows the judiciary to be independent. This allows national judges autonomy to determine whatthey believe the law means without having to worry about the general population. This can prove disconcerting to some. In Texas an elected judge can always be removed from office by an electorate that disagrees with his or her decisions. So the law is not neutral in Texas, but is subject to majority rule. As opposed to the U.S. Constitution which delegates the entire design of the judiciary to the legislative branch. The Texas Constitution fully designs the Texas judicial system, which means that any adjustment of the design must be done in a constitutional amendment, not a simply statutory law.

- [|Article Six: Suffrage]. Until the 15th Amendment was passed, suffrage -- the right to vote -- was at the discretion of the state. But even after a series of amendments listed what criteria states cannot use to deny access to the polls, voting has never in fact been made a right. States, including Texas, continue to use certain criteria to deny access to the polls. Article Six mentions three: Youth (lees than 18 years old), Mental Incompetence as determined by the court, and having been convicted of a felony. The past two are subject to legislative adjustment. According to the [|Election's Division of the Texas Secretary of State's Office] (which is responsible for conductign electiosn in Texas): //"In Texas, a convicted felon regains the right to vote after completing his or her sentence. Therefore, once you have completed the punishment phase (including any term of incarceration, parole, or supervision, or completed a period of probation ordered by the court), you would be// eligible to register and vote in the state of Texas//."// Voters, you might wish to know, are privileged from arrest while voting.

- [|Article Seven: Education]. This is a long detailed article which establishes the general outline for K-12 public education and higher education in Texas. Education is generally considered to be among the reserved -- police -- powers of the states. The article begins by justifying public education as follows: //"A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools."// Further, it establishes the Perpetual School Fund, the tax system to support schools, authorizes the creation of independent school systems and junior college systems. The Permanent University Fund, and the Texas Tomorrow Fund.

- [|Article Eight: Taxation and Revenue]. This is a long and heavily amended Article. The general outline of the system of property and ad valorem taxation is set up in addition to rules about property appraisals and tax collections. It also establishes a high threshold for passing an income tax.

- [|Article Nine: Counties].

- [|Article Ten: Railroads].

- [|Article Eleven: Municipal Corporations].

- [|Article Twelve: Private Corporations].

- Article Thirteen: Spanish and Mexican Land Titles. (Repealed 1969)

- [|Article Fourteen: Public Lands and Public Office].

- [|Article Fifteen: Impeachment].

- [|Article Sixteen: General Provisions].

- [|Article Seventeen: Mode of Amending the Constitution].


 * Criticisms and Attempts to write a New Constitution for the State.**

- [|A Citizen's Guide to the Proposed 1976 Texas Constitution].


 * Links:**
 * Answers.com: [|Colonial Charters].
 * Wikipedia: [|Thirteen Colonies].
 * Wikipedia: [|Proprietary Colonies].
 * Avalon Project: [|Colonial Charters, Grants and Related Documents].
 * Avalon Project: [|Texas From Independence to Annexation].
 * Wikipedia: [|State Constitutions].
 * Texas Politics: [|Constitutions in Texas History].
 * Wikipedia: [|Texas Constitution].
 * Ballotpedia: [|Texas Constitution].
 * Texas Legislature Online: [|Texas Constitution].
 * [|State Bill of Rights].
 * The Handbook of Texas Online: [|1876 Constitution].
 * Tarleton Law Library: [|Texas Constitutions 1824 - 1876].
 * Tarleton Law Library: [|Debates of the Texas Constitutional Convention].
 * Wikipedia: [|Province of Georgia].
 * The New Yorker: [|The States We're In].
 * Wikipedia: [|Territorial Changes in the United States].


 * Past Written Questions:**

1 - Review the five constitutions that preceeded the current Texas Constitution. What are their similarities and differences? 2 - Discuss the similarities and differences between the basic design of the legislative, executive, and judicial branches as written in the United States and Texas Constituons. 3 - Apart from the articles which create the legislative, executive and judicial branches, how are the additional articles ( 6 - 17) in the Texas Constitution different than those in the United States Constitution? What items doe sthe state document address that the national document does not? 4 - The text below makes the claim that the Texas Constitution is designed to ensure that Texas government is closely controlled by the people of Texas. Just because it is designed this way doesn't mean that it works this way. Read through recent news items and determine whether in fact the actions of the state of Texas reflect the preferences of the general population. Does it do so better or worse than the national government?