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Chapter 20 |
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Texas, like most other states, has functioned under a series of Constitutions, each of which has contributed to the state's constitutional legacy. Each is appropriately understood from the perspective of the period in which it was adopted. The current Constitution was written in 1876 after the termination of Reconstruction policies. Because reconstruction policies were oppressive, the Constitution was designed to put strong restraints on government to guard against future abuses of power. Today, the document is so restrictive that many believe it is counterproductive. However, a rewrite of the Constitution has been elusive, due to special interests and others who believe that they benefit from the current system.
The Texas constitution is unwieldy and restrictive; it measures over 100,000 words in length. It functions as more of a compilation of statutory language than a statement of governmental principles.
Texas seven constitutions need to be understood in their historical context:
1) Constitution of Coahuila y Tejas (1827) With Mexican independence, Texas was united with Coahuila as a single state within the new nation. In 1827 the sparsely populated introduced a constitution that created a unicameral legislature with twelve deputies. Two of the twelve were elected from the less populated Texas area of the state. An executive branch consisted of a governor and vice governor. The Anglo Texans were not subject to military service, taxes or customs duties. Mainly Texas served as a buffer between Mexico and Native American tribes.
2) Constitution of Republic of Texas (1836) During the Texas war for independence, a new constitution was written. Patterned heavily after that of the United States, it created a bicameral Congress and an elected president. Slavery was also legalized. This constitution served Texas during its time as a republic.
3) Constitution of 1845 When Texas entered the United States, a new constitution was drafted. This constitution was based upon that of the U.S. and other southern states, and it was twice as long as the previous document. The new government created an elected, bicameral legislature that would meet biennially. The governor and lieutenant governor would be elected and the governor would appoint additional executive branch members. This constitution also protected private homesteads from foreclosure, guaranteed separate property rights for married women and established a permanent fund for support of public schools. This constitution would be copied almost completely in 1876.
4) Civil War Constitution (1861). When Texas seceded to join the Confederacy, a new constitution was written. New provisions included requiring public officials to take a pledge of loyalty to the Confederacy, greater protection for slavery, and a prohibition against freeing one's slaves. This constitution also cemented the legacy of state's rights.
5) Constitution of 1866. In the immediate aftermath of defeat in the Civil War, Texas was occupied and controlled by the national government. Following the easy means of reincorporation into the Union as set forth by President Andrew Johnson, Texas wrote a new constitution. The requirements were modest and included the abolition of slavery, the repudiation of the right of secession and the repudiation of all debts and obligations incurred under the Confederacy. While slavery was eliminated, freed slaves still had limited rights.
6) Reconstruction Constitution (1869). Radical Reconstructionists in Washington required southern states to rewrite their constitutions under tougher standards. These requirements included granting African Americans the right to vote. This constitution did not conform to the wishes of most Texans. This document also centered more power in the position of governor and lessened local government powers. Radical Republican Governor Edmund Davis abused these powers and paved the way for a new constitution that would severely limit government powers.
7) Constitution of 1876. When Governor Davis refused to leave office in 1874, Texans marched to the capital to force him out. Davis' actions spurred the new Democratic majority to create a new constitution in 1876. Many of the delegates were farmers and they significantly influenced the document that was composed. The state faced tough economic times with rising debt and heavy taxes. The framers created a antigovernment constitution, which moved power more to the local level and limited taxes.
General Principles of the Texas Constitution
The 1876 Constitution was predicated on the theory that governmental excesses could be minimized by carefully defining what governments could and could not do. The document was built upon the national constitutional tradition and embodies three dominant principles: popular sovereignty, limited government, and separation of powers. The post-Reconstruction Texan preference for an independent judiciary is reflected in an elected judicial branch.
Weaknesses and Criticisms of the Constitution of 1876
In the executive branch, the governor does not have control over other elected state executives but shares authority. There also growing numbers of boards and commissions that serve terms longer than those of the governor. At the county level, executive power is also fragmented. All of these elected officeholders also create a very long ballot at election time, which tends to turn away voters. The legislature is low-paid and only meets every other year. Judicial officeholders are all elected, thus giving special interests a great deal of influence. Local control of school districts was instituted, but wide disparities in local tax bases have created an inequitable public education system. The constitution requires a balanced budget but restricts legislative spending, as large amounts of money are dedicated to specific purposes. This constitution also restricted voter participation and levied a poll tax that eventually would be overruled by U.S. Supreme Court decisions. The document is wordy and detailed and many parts are obsolete and contradictory. To "clean up" these contradictions, constitutional amendments are constantly being added.
The framers of the Texas Constitution failed to anticipate that the limitations they imposed on governmental institutions would ultimately allow major economic interests within the state to dominate the policy-making process, often to the detriment of the lower socioeconomic groups. What the delegates to the Texas Constitutional Convention of 1875 regarded as the strengths of the constitution—fragmented authority, detailed limitations on the power of governmental institutions, and decentralization—have served to limit the ability of state and local governments to adapt effectively to economic and demographic changes. The perceived solutions to many of the problems of 1875 have compounded the problems of state and local governments in the 2000s.
Constitutional Change and Adaptation
Efforts to overhaul the Texas Constitution have failed. Consequently, the state has been forced to amend the document continually on a piecemeal basis. Fully 409 amendments were approved by Texas voters between 1876 and 2002, while 172 were rejected. The first amendment was adopted on September 2, 1879. A record twenty-five amendments were on the November 3, 1987 ballot. In 1974 Texas held a constitutional convention in hopes of revising, if not rewriting, the Constitution. This effort failed because of special interests and fights over gambling and a right-to-work provision. In 1999, a proposal to rewrite the constitution, the first such proposal in twenty years, was rejected by the Legislature. This process has produced some success in modernizing the charter, but many structural problems of state government require major institutional changes that cannot be resolved through this amendment process. Texas also does not have the power of initiative and referendum.
There have been piecemeal reforms over the years, including the creation of a state lottery, an increase in property exemptions from school property taxes, and a measure to allow the lieutenant governor to fill the unexpired term of the governor. Overall, however, the Texas constitution favors a powerful elite.
Constitutional Restraints and the Ability to Govern
In many ways, the Texas Constitution reflects the values of the state's conservative political culture, which continues to be suspicious of far-reaching constitutional changes. Moreover, constitutions and debates that surround them are complex, and most people give little attention to these issues. Consequently, it is much easier to mobilize public opinion against rather than for wholesale change.
Over the years, numerous groups have attempted to protect their interests through constitutional amendments. But the same groups usually oppose any proposed changes that threaten their influence, power, or benefits. Consequently, the interests of small segments of the state's population often prevail over the interests of the majority.
Chapter Objectives
After mastering the concepts in this chapter, you will be able to
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