Texas Constitution

Chapter 2: The American Federal System and the Texas State Constitution Introduction This chapter describes the broad outlines of the American federal system of government, and how that system is established in the constitutions of both the United States and Texas. It begins by describing federalism and constitutions, and then see how the United States Constitution assigns powers to the national and state governments. It then proceeds to describe the development of the Texas Constitution, culminating with the constitution written in 1876 along with an overview of how it has been amended through the election on November 2019. What is a Constitution? A constitution is a body of fundamental principles or established precedents according to which a nation or state is governed. It does the following : - establishes the basis of governing authority - outlines the structure of the government - defines and enumerates its powers, and the limits on those powers - clarifies the rights of the people. All constitutions in the United States are based on the authority of the people – at least those with power - who live within the borders of that governing system. The nature of the constitution is a reflection of their values and traditions. The United States Constitution, and in turn the state constitutions, is based on the republican tradition that developed over time in Britain, and included the common law. Texas, as we will see below, was rooted initially in Spanish law, and Jacksonian democracy. The structure of the United States Constitution, written in the summer of 1787, was influenced by the 13 state constitutions written after independence was declared from Britain. It then provided a model for all subsequent state constitutions including Texas. The original document was organized as follows: Preamble – Which states that the constitution has been ordained and established by the people of the United States. Article One – Vests the legislative powers in a bicameral Congress. Article Two – Vests the executive power in a single person, the president. Article Three – Vests the judicial power in a Supreme Court, and inferior courts established by Congress. Article Four - Establishes the relationships between the states, and authorizes the creation of new states. Article Five – The amendment process Article Six – The national supremacy clause Article Seven – the ratification process 27 Amendments, including a Bill of Rights, have been added since then. The national document is brief, vague and limited in its scope. What is a State Constitution? Each of the 50 states have their own constitutions which allow for the organization of state governments according to their own wishes, in accordance with what is allowable by the national constitution, specifically that they establish republican governments. Local governments are organized under charters, which are similar to constitutions, except that they are granted by the states to the specific government. Thirteen state constitutions predate the U.S. Constitution, meaning that the states were already in a position to govern themselves independently, as they had during the colonial era. The expectation that new states would be added to the union led to the inclusion of the following language in Section 4 of Article 4:

The United States shall guarantee to every state in this union, a republican form of government Laws were established outlining how new states would be created. The Northwest Ordinance for example, outlined the requirements for the statehood of what would eventually become the states of Ohio, Michigan, Indiana, Illinois, and Wisconsin. This included the drafting of a constitution outlining the design of its republican government. This would then have to be approved by the U.S. Congress prior to admission the union. While state constitutions have the same structure as the national constitution, there are significant differences between the two regarding policies. As will be illustrated more below, the greater range of policies handled by the state governments means that the state constitutions tend to be more expansive that the national constitution. State power, as a consequence of the 10​th​ Amendment, is more open ended than national powers, This has led some states, notably Texas, to incorporate addition language to make it limits on governing power more explicit. For comparison purposes, the Texas Constitution contains the following articles. We will go through them below, but for now notice that the first few are similar to those in the United States Constitution, Differences lie in the subjects of most the remaining articles. Many concerns subjects that are specific to the states, such as suffrage, education, and the formation of local governments. Others are focus on issues unique to Texas, such as its approach to regulating railroads, land ownership, and the management of public lands. Preamble Article I: Bill of Rights Article II: The Powers of Government Article III: Legislative Department Article IV: Executive Department Article V: Judicial Department Article VI: Suffrage Article VII: Education--The Public Free Schools Article VIII: Taxation and Revenue Article IX: Counties Article X: Railroads Article XI: Municipal Corporations Article XII: Private Corporations Article XIII: Spanish and Mexican Land Titles Article XIV: Public Lands and Land Office Article XV: Impeachment Article XVI: General Provisions Article XVII: Mode of Amending the Constitution of this State _________________________________________ What is Federalism? Federalism in the United States is a division of powers between three layers of government: the national, state, and local. Each of government has defined responsibilities, though many of these overlap. This results in a highly complex governing system. It is composed of over 90,000 governing units (citation) on those three levels. We have one national government, 50 state governments, and the rest are local. These include multi-purpose governments like cities and counties, and single-purpose governments like community college districts and independent school districts. The federal, confederal, and unitary systems​. There are three ways these layers of government can be relate to each other, based upon which level has authority over the others, federalism is one of them. The other two are unitary and confederal. Each defines the relationship between a central government and its component parts. Specifically, which has authority over the other. Ultimate authority in a republic, of course, rests with the people. This is known as popular sovereignty.

We see this expressed on the national level in the opening of the U.S. Constitution: We the people …. ordain and establish this Constitution of the United States of America. But we also see this expressed in the constitutions of the 50 states. The Texas Constitution begins with: . . . We the people of Texas do ordain and establish this … This makes the national and state governments equally sovereign, which is a principle source of conflict between them. The relationship between them was different under the Articles of Confederation. In it, the delegates of the states created the national government, meaning that the states were superior to the national government. This is the defining feature of a confederated system of government. The component parts of a government create a national system to coordinate activities between the component parts, but it has no independent authority. It acts only as the states allow it to act. This has the advantage of limiting the power of the national government, but it can also make it impossible for it to effectively address problems that impact all the states. This was the reason why the confederal system was replaced with that under the current constitution. While the national and state government are equally sovereign, language in the U.S. Constitution makes the national document supreme. Section 2 of Article 6 states: This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. This is the supremacy clause. State laws cannot be in violation of the U.S. Constitution. Furthermore, Section 3 of Article 3 states:  3. The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution​. All government officials in the United States, no matter which level of government, must be bound to the national constitution. It is the one document that contains the basic rules that bind the nation together. Unitary Systems A unitary system of government is the reverse of the confederal system. In it, the central government is supreme and the component parts exist to implement the law. Alexander Hamilton presented a plan to the constitutional convention that would have come close to doing so, but it went nowhere. The relationship that exists between the state and local governments however is unitary. Since the U.S. Constitution says nothing about local governments, the nature of local power would not be define until federal judge John Dillon stated the following in 1868: "Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control". This has come to be known as Dillion’s Rule. Under the reserved powers, states may create local governments, and in the case of cities authorize their ability to govern themselves by granting them charters which define the nature of their powers. This is referred to as home rule authority, which the Texas Constitut6ion grants to cities over 5,000 in population. States have the power to alter those powers as they see fit.

Federalism in the American Constitutional System​. We will now look at how the U.S. Constitution divides power between the national and state governments we will do so by first reviewing the various types of powers that exist in the document, and then looking at the specific functions the document gives to the states. Federalism in the American Constitutional System: The Powers​. One of the principle functions of the U.S. Constitution is to allocate powers to the national and state governments. Some powers are delegated to Congress or expressly granted to the President. Others are reserved to the states, while still others are prohibited to them. The vague language in the document has led arguments that other powers are implied to the states. Still other powers are concurrently shared by each level. Let’s walk through them: The Delegated Powers​: These are the powers specifically allocated to the national government, some of which are also prohibited to the states. The word “delegated” comes from the 10​th​ Amendment. They are also referred to as the “granted” powers from the language of the beginning of Article 1: “​All legislative powers herein granted shall be vested in a Congress of the United States​.” This is taken by some to mean that Congress is restricted to only these powers. They are also sometimes referred to as the enumerated powers because they are numbered in 18 clauses in Section 8 of Article 1. These powers focus primarily on the establishment of interstate and international commerce, and providing internal and external security. One of the reasons for the creation of a federal system was the fact under the Articles of Confederation, the states were unable to provide either. As a consequence of the enumeration of these powers, it has become common for challenges to be made in the courts about the constitutionality of laws passed by Congress under the theory that Congress can pass no law explicitly authorized to it. As we will see, this is not the case with the powers reserved to the states. The Implied Powers​: These are powers not clearly listed in the U.S. Constitution, but are based on broad readings of three clauses in Section 8 that are called the elastic causes due to their vagueness. These are, in order of appearance, the general welfare clause, the interstate commerce clause, and the necessary and proper clause. Over the course of American history claims have been made that Congress has been authorized to pass laws based on broad readings of these clauses. Sometimes states push back against these laws in the courts seeking to have them overturned. Texas is often a plaintiff in these cases. The Prohibited Powers​: Sections 9 and 10 of Article 1 list limits on the powers of government. Section 10 focuses specifically on the states, and lists what the states cannot so. These are primarily national powers, and are designed to ensure that individual states cannot interfere with them. These include treaty making, coining money, and engaging in war. The Reserved Powers​: These are not mentioned in the original constitution, but in the last of the first ten amendments added to the constitution at the request of a number of states during the document’s ratification. The states were concerned that without specific limits on the national government, its powers would grow. James Madison argued that this was unnecessary given that the U.S. Constitution already limited national power: “​The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State​.”

Nevertheless, the 10​th​ Amendment was ratified with the following text: 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​. Following Madison’s logic, there is no defined list of what these powers are. They are generally referred to as the police powers, that is the power to regulate the health, safety, welfare, and morals of the people. In short, they comprise

anything a state chooses to do, as long as it is not prohibited to it by the U.S. Constitution. Proponents of an expanded view of the 10​th​ Amendment argue that there are benefits to allowing the states free reign to experiment with public policy. They can act as “laboratories of democracy” and allow policy options to be tested out. Texas was one of the first

states to experiment with placing limits on non-economic damages as a result of lawsuits. Other states have experimented with legalizing marijuana. This allows for a pragmatic assessment of the consequences of doing so. Based on this information, other states may decide to adopt similar policies, or not.

The Concurrent Powers: All governments share certain powers, these are called concurrent powers. The most common is the power to tax.

All previous powers relate to the legislature – Congress. The states are also impacted by the executive and judicial powers in the U.S. Constitution. The powers of the president include the power as commander in chief to “call up ​the militia of the several States, when called into the actual service of the United States.”

The judicial power includes the ability of the national courts to hear cases involving the states. Article III of the constitution outlines the jurisdiction of the courts, which includes disputes between the governments of different states.

It also allows the national courts to hear lawsuits against a state government by its own citizens. This is a consequence of the 14​th​ Amendment which establishes that people born in the states are citizens of the United States, and that the states cannot violate their privileges and immunities or due process rights.

Neither can the states deny persons in their jurisdiction the equal protection of the law. Over its history, the government of Texas has been sued, sometimes in landmark cases, for doing so.

Here are examples:

- Smith v Allwright - Sweatt v Painter - Roe v Wade

- Lawrence v Texas Federalism in the American Constitutional System: The Roles of the States​. The U.S. Constitution also clearly grants to the states certain responsibilities, the most important being control over suffrage and elections.

Suffrage​. Clause 1 of Section 2 of Article One of the United States Constitution states: The House of Representatives shall be composed of members chosen every second year by the people of the several

States, and the elector in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature​.

This establishes that each state gets to decide for itself who gets to vote. The national government would not begin to

place restrictions on the states until after the Civil War with the passage of the 15​th​ Amendment – and the statement that states could not use race, color, and previous condition of servitude as reasons to deny the right to vote, which would not be given any substantive support until the Voting Rights Act in 1965.

Further restrictions would be placed on the ability of states to deny the right to vote on the basis of sex, inability to pay a poll tax, or being 18, 19, 0r 20 years old. States still retain the right to deny the right to vote on other criteria, including having felony convictions, mental incompetence, failure to register to vote, and residency requirements. The restrictions

Texas continues to place on suffrage, among other items, can be found in Article 6 of the Texas Constitution, which is titled Suffrage. Further information can be found in Texas’ Election Code.

Elections​. The U.S. Constitution gives states the sole responsibility of conducting elections to national office. The national government has no independent constitutional authority to place items on a ballot. For that reason, there is no such thing as, for example, a national referendum. These can only happen at the state and local level. The scope of electoral laws the states can pass include laws regulating candidacy, voter registration, the determination of voting locations, and

the nature of the ballot. This is established in two separate clauses in Article 1 and Article 2, this first concerns Congress, the second concerns the president.

Clause 1, Section 4 of Article 1 states: ​The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof​.

Clause 2, Section 1, Article 2: ​Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress​.

Each of the members of the U.S. House and Congress, as well as the presidential electors, are selected in each of the separate states. The only initial limit placed on these people is that each institution had the power to review the credentials of the elected officials to ensure that they had the proper qualifications. Since the ratification of the 14​th Amendment’s equal protection clause, and the passage of the Civil Rights Act of 1964, states were subject to potential lawsuits initiated by their own citizens alleging that they have been discriminated against in the electoral process on the basis of race. As with suffrage Texas has been sued repeatedly for doing so.

Texas’ history of restrictions to vote based on race was so egregious that for several decades the state had to have any changes to its electoral laws pre-approved by a panel of federal judges appointed by the United States Justice

Department before they could take effect. This was a consequence of the passage of the Voting Rights Act. Southern states pushed back against the law and ultimately had the power of pre-clearance suspended in ​Shelby v Holder​. Texas supported the case by joining with other states to write a friend of court brief for the Justices to consider.

Redistricting​. Every ten years the national government conducts a census with the declared intent to reapportion members of the House of Representatives to the each state according to a formula which ensured that representation

will be in accordance with the relative populations of the states. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State​. The national government sends to each state, information regarding the number of representative they may send, as well as where people in the state live. Though not required to in the U.S. Constitution, which says little about districts,

the states take that information and drawn districts for each member to represent. The Constitution says nothing about the relative sizes of these districts and over time, some states did not redistrict, which led unequal populations in each, and to imbalances in power within the states. In a series of cases in the early to mid 1960s, the United States Supreme

Court inferred that the constitution contained an implicit requirement that one person equals one vote.

As with other aspects of elections law, this power has been used by states like Texas to manipulate the nature of representation. Through a process called gerrymandering, a majority in the state can draw districts in such a way that maximizes their strength, thereby minimizing the power of others. Sometimes this process involves race, sometimes it

involves parties. In either case, plaintiffs who were effected negatively by these laws have sought relief against states by suing in federal court, arguing that their equal protection rights have been violated. Due to the language and history of the equal protection clause, the U.S. Supreme Court has been more sympathetic of the former cases, less so of the

latter. Race, not partisanship is protected under the Constitution. An additional constitutional dispute regarding redistricting involves who gets to do it. As mentioned above, Clause 1,

Section 4 of Article 1 states: ​The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof​. Note the use of the word “legislature.” What does that word actually mean? Some states, not Texas, have created non-partisan institutions to redraw legislative districts. Often these have been done by initiative elections, meaning they were approved by the voters of each state, not the legislatures in each

state. In 20XX the voters of Arizona established such a commission and the legislature of Arizona filed suit in federal court arguing that “legislature” meant that only they could do so. The Supreme Court narrowly disagreed.

Relations Between the States​. Article 4 of the U.S. Constitution deals solely with the relationship between the states. Other parts do as well. Most notably, in Article 1, Section 9, Clause X states – as well as the national government – are prohibited from taxing items imported across their borders. State borders are open to trade. Article 4 goes further and

mandates that states - ​Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state - The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states

- ​A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime States have not always been willing to abide by these mandates however. Texas, along with other states with a strong traditionalist political culture, refused to give full faith and credit to same sex marriage licenses signed in other states

until they were forced to do so by the U.S. Supreme Court in the case of Overgefells v Hodges. Ratify Constitutional Amendments. The United States has not been amended much - -27 times as opposed too over 500

times for the Texas Constitution. This is partly due to the role states play in the amendment process. After a resolution containing an amendment’s language is passed by each chamber of Congress buy a 2/3rds vote, 3/4ths of the states have to ratify it. Currently that means that 13 states are enough to prevent a proposed amendment to take effect. This

set a very high bar that is rarely cleared, and also explains why changes in the U.S. Constitution generally result from reinterpretation of the vague language it contains. As we will see below, the more detailed language of the Texas Constitution does not allow for much reinterpretation. But the lower threshold for amending the Texas Constitution – a

simple majority vote of the electorate following 2/3rds vote of each chamber of the Texas Legislature means that is generally unnecessary. Federalism in the American Constitutional System: Impact of Constitutional Amendments​. Let’s take a quick look at the impact some constitutional amendment have had on the relationship between the national and state governments.

The Civil Wars Amendments. After the end of the southern rebellion, the national government passed and ratified three

amendments within 5 years. Each enhanced national government power over the state governments, there by placing limits on them. These were

- 13​th​ Amendment (1865), which stated that slavery nor involuntary servitude shall exist in the United States. A crucial exception was made for “punishment of a crime whereof the party shall have been duly convicted.”

- 14​th​ Amendment (1868), which did two things. It nationalized citizenship, meaning that states could not deny the privileges and immunities or due process rights of as defined in the U.S. Constitution. Neither could states deny the equal protection of the laws to “persons in their jurisdiction,” which applies to non-citizens as well.

- 15​th​ Amendment (1870), which outlined three reasons why states could not deny the right to vote: race, color, previous condition of servitude. This fell short of a guarantee that people could vote despite those criteria. States could continue to deny the right to vote for other reasons, including criteria that overlapped with the three mentioned in the

amendment. Two other amendments added over 40 years later also help explain the increase of national power over the states

during the 20​th​ Century. Both were heavily promoted by progressives. - 16​th​ Amendment (1913), which granted Congress the power to collect an income tax. This pleased the states by lessening the need for the national government to collect tariffs, but resulted in the national government collecting sufficient revenue to provide matching grants to encourage the states to implement national policies such as Medicaid and Temporary Assistance to Need Families.

- 17​th​ Amendment (1913), which changed how U.S. Senators were elected. Instead of by the state legislatures, they were elected by the people of the states. This solved a common problem where conflict with the states could lead to

senators not being appointed for long periods of time, meaning that the states were underrepresented. But it also meant that the state legislatures no longer had a direct impact on the actions of Congress. State legislators that may have been opposed to New Deal programs were not in a position to challenge them effectively.

Stages of Federalism​.

The relationship between the state and national government has not been stable. It has changed over history due to a variety of factors including the growth of the nation, the development of communications and transportations technologies, and ebbs and flows of the various political forces over time. Changes in constitutional interpretation also

plays a significant role. The language in the U.S. Constitution is vague enough to allow for disputes over interpretation, as well as reinterpretation over time.

Scholars tend to divide the history of federalism into three eras: - dual federalism (1789 – 1933) - cooperative federalism (1933 – 1981)

- new federalism (1981 – Present) Let’s look at each

Dual Federalism​. This era began with the ratification of the U.S. Constitution and ended with the inauguration of Franklin Roosevelt and the beginning of the New Deal following the election of 1932. The guiding principle during this era was

that the national and state governments are two separate spheres and should focus on their respective spheres only.

The quote from Madison mentioned above helps clarify their relative functions. The powers of the national government

“​will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State​.” This system was relatively easy to maintain during a period when transportation and communications were slow. Interstate commerce was not common. But d​uring the late 19​th​ and early 20​th​ centuries, technology improved to the point where information could begin to flow instantaneously, and coast to coast travel was available. It was easy not only for commerce to cross state borders, but crime as well. Problems related to health, safety, welfare, and morals were no longer just state and local. Consequently, state and local governments were not sufficient to address them.

In addition, large corporate enterprises emerged that had multi-state operations. No one state was in a position to regulate them for the general welfare. Only the national government could do so, but this required a reconsideration of how certain clauses within the US Constitution – notably the interstate commerce clause – were interpreted. Gradually

the Progressive Movement developed and successfully lobbied for the creation of national executive agencies to regulate monopolies, the sale of food and drugs, and other aspects of commerce. The Federal Reserve was established during the time as well.

But the acceptance of these endeavors would not become solidified until after the onset of the Great Depression, and the election of Franklin Roosevelt who promised to use the full weight of the national government to the problems

caused by it. Cooperative Federalism​. This era was triggered by the problems posed by the Great Depression, and made into policy with the various programs affiliated with the New Deal. These would be expanded during the presidency of Lyndon Johnson in what became known as the Great Society in the mid-1960s. The immediate objective of the New Deal was to address the widespread poverty across the nation. This involved works projects and efforts to prop up the price of farm

products. Many projects were funded by the national government, but run by the state governments. The funding mechanism was the matching grant, which provided a significant amount of funds provided that a small amount was matched by the state in order to show that the state was invested in the program. The money was received with the

understanding that it would be used for certain specific purposes as defined by the national government. These were called categorical grants.

A key shift in the Supreme Court also allowed legislation that had been found unconstitutional, to be constitutional instead.

- Jones and Laughlin Steel Company v NLRB - Helverling v Davis - Wickard v Filburn

Among the policies passed during that period were - Securities and Exchange

- The Fair Labor Act - Social Security - Wagner Act

Great Society programs would go further with programs intended to address chronic poverty, and conditions that resulted from racial and gender discrimination. Lyndon Johnson became president after the assassination of John F.

Kennedy, and elected on his own in a landslide in 1964. Having spent decades in Congress, he put his legislative skills to

work to pass additional legislation. For example:

- The War on Poverty - Medicare and Medicaid

- Civil Rights Act - Voting Rights Act - Elementary and Secondary Education Act

Many of these policies saw the national government inserting itself into local affairs, and sometimes pursued objectives that were not supported by majorities at the state and local level. This was especially true of education, which was

already a hot button issue following the decision by the U.S. Supreme Court that racial segregation on schools violated the equal protection clause. This was compounded by the Civil Rights Act, which outlawed racial segregation in public accommodations, as well as the Voting Rights Act.

Johnson was successful in passing two key programs into law as amendments to the Social Security Act in 1965. Medicare, a federal program that provides health care to the elderly as funded by payroll taxes paid by the eventual recipients, and Medicaid, a federally financed, but state run program that provides health care to the poor. While each

passed, the opposition to them helped contribute to the conditions that led to the rise of a counter movement against cooperative federalism. Much of this was driven by eventual president Ronald Reagan whose claims that Medicare and Medicaid constituted “socialized medicine,” and a federal “takeover” of a service that is best either handled by the

private sector, or the state and local government. Opponents were also successful in claiming that rather than being cooperative, these programs were coercive

New Federalism​. This refers to the efforts made after the election of Ronald Reagan to the presidency in 1980 to roll back the expansion of national power since the New Deal. While the overall goal was to eliminate many of the programs – and efforts continue to be underway – these were largely unsuccessful. But the effort, and a string of Republican

victories in the presidency largely put a halt to further encroachments on state power by the national government. The only significant exception being law enforcement and public safety. A law was passed requiring states to raise their drinking ages to 21 or else lose federal matching funds for highway construction. Other laws were passed expanding the

number of federal crimes. New appointments to the Supreme Court were also instrumental in rolling back the ability of an expanded interpretation

of the commerce clause to facilitate expanded national power. Some newer justices adopted a narrow interpretation of constitutional language and were unwilling to allow further expansions of what it justified. Two cases stand out:

- United States v Lopez, which overturned the Gun Free School Zones Act. - United States v Morrison, which overturned the Violence Against Women Act.

Exceptions were made however. - Gonzalez v Raich, US Controlled Substances Act over rules California’s Compassionate Use Act

A major shift in the nature of the grants issued to the states. In order to encourage experimentation and local adaptability, the Reagan Administration began loosening the rules associated with matching grants, and instead of issuing them with narrow guidelines, they provided them as block grants which allowed for variation in their use. Critics

argued that this allowed for the grants to be used for purposes that varied from their intended purposes. Regardless, the increased willingness to allow state and local governments to experiment with laws has led to what

some argue are improvements in public policy. These include marijuana laws, cash bail, energy and environmental

policy, homelessness and vagrancy, and mental health

Recent Federalism Cases involving Texas

During the Obama Administration, Texas was active in using the federal courts to challenge the constitutionality of laws and executive orders issued. The Texas Attorney General – part of Texas’ plural executive - is responsible for making the decision to pursue and organize legal challenges. Greg Abbott held the position until becoming governor after the 2014

election when he was replaced by Ken Paxton. Together they sued the Obama Administration 48 times in federal court, and they are allowed to do in the U.S. Constitution. The Texas Attorney General also assists with other cases by filing friend of the court briefs.

Here are some noteworthy cases: - National Federation of Independent Business v Sebelius - United States v Texas

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The Constitutions of Texas: 1812 – 1876 As with all other states, Texas has a constitution that creates the republican form of government guaranteed to all the

states in the U.S. Constitution. The current version was initially written in 1876 following the end of Reconstruction, and has been amended over 500 times as of 2019. It is also the last of a series of constitutions that oversaw the governance of the territory during a variety of manifestations. Many of the features of these constitutions still exist in some form in

the current constitution. With that in mind, we will walk through the past constitutions in order to understand how the current document took shape.

We will divide this period in three depending on the specific purposes of each 1 – During the first period the constitutions were produced by Spain or Mexico for Texas. Texas was governed under

Spanish Law, aspects of which still exist in Texas’ legal code. Egalitarianism – no slavery 1812 – The Spanish Constitution

1824 – Mexican Constitution 1827 – The Constitution of Coahuila and Texas

2 – During this period, the constitutions were written by the Anglo-American settlers following the republican model established by the United States. The principle differences between these constitutions regarded what they were forming. What was Texas to be? An independent nation, or a state within the United States of America, or a state within

the Confederate States of America. Racial limits, slavery. 1836 – The Constitution of the Republic of Texas 1845 – The Constitution of the State of Texas

1861 – The Constitution of the Confederate State of Texas 3 – The question after the Confederacy’s loss in the Civil War was what type of constitution would be acceptable to both

the United States government, and the people of the state? 1866 -

1869 – Reconstruction Constitution

1876

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Pre Constitutional Rule Prior to 1812, and the Cadiz Constitution, Texas was ruled under the absolute authority of the Spanish monarch. What

became Texas was an interior province of the land claimed under the Viceroyalty of New Spain after the fall of Tenochtitlan in 1521. Given that it was lightly populated by Europeans, and largely controlled by Plains Indians, there was very little in the way of any governing authority until French interest in the area in the late 17​th​ Century led Spain to create a mission system, in addition to presidios, and local settlements, notably Nacogdoches, Goliad, and San Antonio. Altogether these would establish a buffer keeping first the Plains Indians and later American settlers away from the interior of Mexico. The first two were under the control of the Catholic Church and the military respectively. Settlements

were governed under rules established over time by Castilian Law, under the authority of the crown. Castilian Law would form the basis for governance in the Spanish territories much like Common Law would do so for the British Colonies and, much later, the Napoleonic Code for those of the French. Aspects of Castilian Law were retained by Texans in later

constitutions. These include: - simpler civil trial procedures

- Land titles - common ownership of the gains of marriage between husband and wife - homestead and told of trade protections

1812 Spanish Constitution

The first phase of the constitutional begins in Spain with the replacement of King Ferdinand VII of Spain in 1808 by Napoleon, and his replacement with his brother, who would rule from 1808 to 1814 when Ferdinand would reclaim the throne. Seeking to legitimize his brother’s rule, Napoleon appointed a legislature in Cadiz, and had them create a written

constitution which established a constitutional monarchy. This is to be distinguished from the absolute monarchy that had existed before.

This would become the 1812 Spanish Constitution, more fully known as The Political Constitution of the Spanish Monarchy. The key feature of the document was that limits were placed on the power of the king, certain rights established for the people, and a representative system – a republic – was created. Many components would be familiar

including separated powers, a legislature, freedom of the press, and a complex indirect electoral system. Others would not, including: Catholicism official religion and universal male suffrage.

By 1814 Ferdinand VII was back in power, dissolved the constitution, parliament, and the very idea of representative democracy. He reestablished absolute monarchy, but he would be forced to reconsider in 1820 in order to avert a military coup.

While this was occurring in Europe, a war for independence had broken out in Spanish Mexico. It would last from 1810 – 1821. The forces supporting Spain were called the royalists, while those supporting Mexico – and the elimination of a monarchy – were called the republicans. During this time, the United States was involved in treaty negotiations

regarding the possession of Florida. In 1819, the Adams – Oniz Treaty would be signed which, in addition to acquiring Florida, included the United States relinquishing claims to Texas under the Louisiana Purchase. The boundary was set at the Sabine and Red Rivers.

In 1820, under the Spanish Constitution, Moses Austin negotiated land grants to give out to settlers. It would bring a

large group of Americans into Texas, with the understanding that they would be living under a foreign constitution, and would be willing to comply with certain requirements. These included an acceptance of a state religion – Catholicism – and limits on enslavement. Enforcement of these requirements was lax however. Spain, and later Mexico, needed the

settlers to help develop resources, increase agriculture and commerce, and provide a buffer against the plains Indians. Moses Austin’s death, coupled with the end of Spanish rule and the creation of a new constitutional order, would delay

the arrival of the new settlers. Even without the land grants, approximately 2,500 American settlers were in the province, many illegally.

1824 Mexican Constitution

The end of Spanish rule did not end in the formation of a federal republic immediately. For two years Mexico - including Texas - would be a constitutional monarch under an emperor. This was written out in the Plan of Iguala. The signing of this plan established Mexico as an independent nation, but in a different form. Spain would not accept its independence

until 1836 following several attempts to win it back. The plan is noteworthy for establishing equal rights to citizens across Mexico, including Creoles and others.

This would be the government that Stephen F. Austin would negotiate with in order to receive the land grants previously promised to his father. This time as citizens of Mexico, not Spain. The ​General Colonization Law​, which enabled all heads of household, regardless of race, religion or immigrant status, to acquire land in Mexico. B​etween 1824 and 1828, Austin had been granted almost 300 land titles between the Brazos and Colorado Rivers. The settlers he selected were educated and propertied, and 14​th​ were slave owners. Many were protestants, did not wish to convert to Catholicism, and were committed to private property (including slaves), and personal liberty. These would be the individuals that

provided the core of those who would seek to govern themselves under their own constitution. But before that occurred, they spent time being governed under the Constitution of Coahuila and Texas.

The empire would be overturned in 1824 leading to transition into a federal republic and the writing of the 1824 Constitution. State governments were growing in strength and were electing their own Congresses. ​The constitution would ultimately, though temporarily, establish a federal republic. When the states and provinces sent delegates to

write the 1824 constitution they did so with instructions to create a federal republic, with sovereignty based in the states. These delegates would include Juan Jose Maria Erasmo Sequin who represented Texas in the assembly. It would establish 19 states, as well as 4 territories, and allow the states to create their own constitutions. The legislative branch

would also be made stronger than the executive. At least at the beginning, power was vested primarily in the legislature, and the states had a degree of autonomy. They each declared sovereignty.

Over the course of the next 12 years, the nature of this government would change – partially leading to the complaints contained in the Texas Declaration of Independence written in 1836. Forces existed that continued to support a centralized monarchy, mostly the elites, while others wanted a federal republican system similar to that in the United States. In 1835, this would be revoked by General Santa Ana. He accumulated enough power to throw out the

constitution and attempt to turn states into departments controlled by the national government. _________________________

1827 Coahuila and Texas

The 1824 Mexican Constitution – as originally written – emphasized the importance and autonomy of state

governments. It established a federal republic with 19 states, one was Coahuila y Tejas, which was newly created. Each

state was allowed to then craft its own constitutions. As a border state, it had a military under a single commandant general. The state was also divided into departments, and the departments were subdivided into municipalities, which contained mayors and city councils. Coahuila was among the poorest states in Mexico, and like the Texas, was very

sparsely populated. All of Texas was originally only in the Department of Bexar, and then further subdivided into Bexar, Brazos, and

Nacogdoches. While this gave them 3 representatives, the majority were from Coahuila, and the capital – Saltillo – was there as well. This meant that the Anglo-Texans were a minority within the state and had to travel a long distance for government business. All political matters were handled in Spanish as well. This did not sit well with the Anglo American

immigrants, especially those that arrived in the years following the drafting of the constitutions of both 1824 and 1827. Anglo Texans did not mix with Latinos. The increase in Anglo population led to passage of the law of April 6, 1830 which placed limits on Anglo immigration. This, coupled with Santa Ana’s efforts in 1835 to reduce the powers of the states, led to a quick series of events that led to Texas independence and a new constitution as an independent nation.

Conventions were called in the state in both 1832 and 1833 which ultimately produced a new constitution in 1833 to be presented to the Mexican government. Tejanos opposed the conventions, so the results of the conventions, and the

content of the proposed constitution was a reflection of the values and traditions of Southern Americans. It contained 106 articles divided into 6 sections.

Preamble General Provisions Legislature

Executive Judiciary Schedule

Stephen F. Austin was selected to deliver the constitution to the Mexican government in Mexico City. It was not well received. He was jailed for a period of time, which became a key grievance made by the Anglo-Texans in the Texas

Declaration of Independence. It has: incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the

acceptance of our constitution, and the establishment of a state government. Which was an indication that the right to petition for grievances, as well as habeas corpus was not acknowledged. The

final impetus to independence, not just in Texas but in the Mexican states of Yucatan, Tabasco, and the Republic of the Rio Grande (Nuevo Leon, Tamaulipas, Coahuila), was in 1835 when Santa Ana, on his own authority, changed the 1824 Constitution to grant himself additional power. The key change was in changing the status of the independent states to

departments of the federal government. This made them fully subject to national power, and led to the dismantling of state legislatures a Texas then passed a declaration of in November 11, 1835 to take arms up against Mexico, create a provisional

government, and send delegates to another convention in 1836 that produced, in the midst of the Texas Revolutionary War, another constitution, but also a Declaration of Independence stating the reasons for the push for independence.

Texas Declaration of Independence - 1836 The 59 men – and they were only men – who wrote and signed the Declaration of Independence were largely recent

arrivals from the United States, and young. Many came in violation of the immigration ban of 1830. The majority were

from southern states and were committed to a republican government in the American model, as well as Jacksonian

Democracy and slavery. As with the American Declaration of Independence, the Texas document begins with a statement of the purpose of

government, then proceeds to list the reasons why the Mexican government was falling short of meeting these objectives. It then proceeds to list the specific grievances against the Mexican government.

- change in the federal republic - having to be a state with Coahuila - punishment for petitioning for a redress of grievances

- lack of trial by jury - military supremacy - dissolving the legislature of Coahuila and Texas - trials held outside the district where they were committed

- undermining commercial development - limits on free exercise of religion - denial of right to bear arms

- instability - inability to implement the law

They then proceeded to writing – quickly a new constitution for the nation of Texas. Which takes us to the next section as Texas determines what it will be.

____________________ The Constitutions of 1836, 1845, and 1861

The principle constitutional question during this period was whether Texas would be governed under a national constitution for the Republic of Texas, or a state constitution under either the United States of America, or the

Confederate States of America. The answer would ultimately be decided by the inability of the Republic to remain solvent and the confederacy’s loss in the Civil War. This would lead to a question addressed between 1866 and 1876. The principle change during this period was that the constitutions would be written by Texas, primarily Anglo-Americans

who had recently arrived and were conditioned to life under the US Constitution, and had value systems rooted in Jacksonian democracy and the antebellum economic system, which included support for slavery.

The 1836 Constitution The convention produced a national constitution, which required it to address issues beyond what had been contained

in the 1833 document, or would be produced in subsequent constitutions when Texas returned to being a state. Modeled like US document

Preamble and Preliminary Provisions Article I (Powers of the Government)

Article II (Legislative) Article III (Executive) Article IV (Judicial)

Article V (Oaths)

Article VI (President and Vice President)

Schedule General Provisions Declaration of Rights

It creates a unitary, not a federal government. As is the case now, local government are not independently sovereign. The preamble is almost word for word the same as the preamble of the U.S. Constitution, and it marks the first time that

reference is made to the people of Texas independent of Mexico. The first article outlines the separated powers (as is done in all subsequent constitutions) and details the bicameral

design of the legislature, setting the term of the House at 1 year, and the Senate at 3 years. Article 2 outlines the powers of Congress, much like Section 8 of Article 1 of the U.S. Constitution. It includes the power to tax, regulate commerce, declare war, and provide and maintain an army and navy, among others. Article 3 establishes a unitary executive with three year terms, and cannot run for re-election, though they are not forbidden from running after that.

Article 4 is especially important. It creates the judiciary, establishes that they are to serve 4 year terms, but are eligible for re-election. It creates judicial districts and allows for the appointment of district attorneys and the election of clerks.

It also allows for the development of counties and establishes for a number of county officials including justices of the peace, sheriffs, and constables. Most consequentially, we see the introduction of the common law:

SEC. 13. The Congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision​. Article 5 states that “​no minister of the gospel or priest of any denomination whatever shall be eligible to the office of the Executive of the Republic, nor to a seat of either branch of the Congress of the same​.” And requires office holders, whether elected or appointed take an oath to support the new constitution, as well as an oath of office. ​Article 6 provides detail on the powers of the president, which is then followed by a schedule outlining how the transition to the nationhood would be handled.

The section of General Provisions, among other things, limits citizenship to “free, white persons,” contained the laws would established regulate slavery, and established general rules associated with land grants. The latter two were

contained in large sections (9 and 10 respectively) that would become separate article in the 1845 constitution, one on slavery, and one on Head-Rights.

The document ends with a Declaration of Rights, which contained 17 provisions that would form the basis of the Texas Bill of Rights contained in future constitutions.

This would provide the basic structure of all future constitutions. The constitution of the Republic of Texas would take effect following the defeat of the Mexican Army in the battle of San Jacinto. The Mexican government also began to focus on the other revolutions underway across the nation, but did not recognize the new republic which indicated that at some point it intended to take Texas back at some point. This possibility led some Texans to immediately seek to

become a state within the USA, but Texas’ position of slavery led to opposition from the free states. Some promoted Texas making a go of it as an independent nation, even claiming the land westward to California. The practical reality was that this was difficult to accomplish.

- Comanche raids - Mexican raids

- racial differences made regarding rights

- Slavery made foreign affairs difficult

- Mexico lobbied against Texas - US recognized it 1837 - difficulty proving viability

- bonds unsold - tough to build army and navy - could not pay debts

- would eventually sell land claims for $10m in fed bonds The 1845 Constitution

Opposition to Texas’ annexation within the United States dissipated and James Polk won the presidency in 1844 on a platform that included annexing Texas. A joint resolution of the United States Congress extended an annexation offer to the state. This led to a convention during the summer of 1845 to consider both the proposal and to write a constitution

for the state of Texas. The convention accepted the offer 55 – 1. As with the 1836 convention, the bulk of participants were from southern states. Both annexation and the new constitution were accepted by Texas voters on October 13, setting the stage for both to take effect December 19, 1845.

It was significant that both were done at the same time. If Texas had entered as a territory it would have lost ownership of its public lands. By entering as a state it retained possession of them, and all the revenue likely to be drawn from their

use. This includes revenue for education. Texas was also allowed to Texas can split into up to five states if Texas voters approved.

The new constitution built off the previous document and created the organization we have today – with obvious changes. It added separate articles on the militia, slaves, impeachment, education, head-rights, and the land office. Much of the language contained in these sections were contained elsewhere in the 1836 documents.

After a preamble establishing popular sovereignty and a religious appeal, the first article contain a bill of rights based largely on what was contained in the 1836 document, and would form the basis of the upcoming documents as well.

Article two contains a statement regarding the separated powers, the following three outlines each of them. Article 3 starts with two sections captaining the racial restriction in the 1836 documents. Africans and Indians cannot “be

deemed electors.” This restriction also applied to any “​soldier, seaman, or marine, in the army or navy of the United States.” The legislature was biennial, and terns were two years for the House and 4 for the Senate. Article 4 created the court system and established that judges were nominated by the governor with the consent of the Senate for 6 years

terms. Article 5 created a plural executive. The Governor and Lieutenant Governor were elected separately by the electors for

two year terms, but could not serve more than four out of any six years. A state treasurer Comptroller of public accounts were selected by the legislature for two year terms. Article 6 concerned the militia – which is not the subject of any article of the current constitution. It is brief and contains only 4 sections. A militia could be created, the governor could call them forth, people were allowed to opt out of service - - conscientiously scruples - - though they had to pay.

Licensed ministers of the gospel did not have to serve, nor could they be required to work on roads or serve on juries.

Article 7 contains general provisions – includes modes of amending the constitution

Article 8 concerned slaves. This was the first time slavery was directly addressed in the Constitution. It contained three sections. The first forbad the legislature from emancipating slaves without the consent of their owners, nor without

paying them for the loss of their property. It also mandated that slaves be treated humanely. The second guaranteed an impartial jury to slaves tried for crimes “of a higher grade than grand larceny.” And the third stated that certain crimes against slaves were to be punished as they would be against a white victim, “except in case of insurrection by such

slave.”

Article 9 concerned impeachments. Article 10 concerned education, and begins with the same general language contained in the current document. Free schools were to be established and a perpetual fund was to be created, with

revenue collected from the use of public land. Article 11 concerned head-rights – a process for determining who owned specific parcels of land. Head-rights, and later land titles, would be a subject in successive constitutions until they were judged to be unnecessary in 1969.

Article 12 created a land office which would be the source of land titles, and authorized the legislature to create offices to run it. This would eventually become the Commissioner of the land office. Article 13 contained the schedule by which

the Texas would transfer from the 1836 to the 1845 document. The Years from 1845 - 1861

The years following the ratification were as tumultuous as those preceding it. ​The first issue concerned the securing of Texas as an American state. American victory in the Mexican - American War, which ended with the treaty of Hidalgo in which Mexico not only acknowledged that Texas was now part of the United States, with the Rio Grande as the

southern border, but that the land to the west was now part of the United States as well.

Commentators have suggested that the new land, and the ensuing debate regarding whether these would be free or slave territories and/or states, exacerbated the march towards Civil War. The Supreme Court made matters worse by stating that the national government – Congress specifically – lacked the authority under the US Constitution to regulate slavery at all. Fears that slavery was now a national institution gave rise to the abolition movement, the election of Abraham Lincoln, the fear that the new Republican majority would end slavery, and the gradual secession of the southern states after the election of 1860. Voices emerged in the state claiming that the state should shift allegiance from the United States of America to the Confederate States of America. The movement towards secession in Texas was delayed because of constitutional rules. A convention could only be called by the legislature, but the legislature was not meeting. Only the governor could call a special session, and Governor Sam Houston was opposed to secession, and refused to call a convention hoping the drive to secession would wane. It did not. Others attempted to call a convention anyway despite the blatant illegality of it. A special session was eventually called and a convention was called. Delegates to the convention were selected in public meeting by a voice vote. This discouraged unionists from attending, and resulted in a strongly pro-secession convention. It met in the House chambers in January and February of 1861. This first meeting of the convention produced the Declaration of Causes. The full official title was​: A declaration of the causes which impel the State of Texas to secede from the Federal Union​. As with the Texas Declaration of Independence before it, it outlined the reasons why the convention urged separation from the United States Government, which it referred to as a confederated union. The principle complaint in the document was the threat posed to the institutions of slavery, after being promised the ability to maintain it as a condition of entering the union. She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery--the servitude of the African to the white race within her limits--a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy. Those ties have been strengthened by association. But what has been the course of the government of the United States, and of the people and authorities of the non-slave-holding States, since our connection with them? . . . the avowed purpose of acquiring sufficient power in the common government to use it as a means of destroying the institutions of Texas and her sister slave-holding States. Other complaints contained in the document include:

- preventing the Southern States from owning the land west of Texas – the Mexican Session. - using violence to control the Kansas Territory - failure “to protect the lives and property of the people of Texas against the Indian Savages on our border.” - failure to protect against “murderous forays of banditti from the neighboring territory of Mexico.” - refusal to return escaped slaves. - the rise of the Republican Party – founded on abolitionism. - promotion of the principle of equality among men​: irrespective of race or color--a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of the Divine Law​. - making the Southern states a minority within the national government.

A second meeting of secession convention began March 5 ended March 23. The average age was 40. They were almost

all born in slaveholding states and 70% owned slaves, though most less than 50. They tended to be slightly wealthier Texans of the day, though the great planters and merchants of the day were not represented greatly. Almost half were lawyers. They wrote a formal ordinance of secession to be approved by the voters, and decided that since a referendum

was called to support annexation, another should be called to authorize secession. This would legitimize the decision. After the vote, a committee on public safety was established and authorized to seize all federal property in Texas. Texas

sent seven members went to Alabama to create the Confederate States of America. All current officers made to swear loyalty oaths. Sam Houston refused to take the oath and claimed actions were illegal. The governorship was then vacated by convention delegates and Sam Houston was replaced.

Contents of the 1861 Constitution

Preamble Article I: Bill of Rights Article II: Division of the Powers of Government Article III: Legislative Department

Article IV: Judicial Department Article V: Executive Department Article VI: Militia

Article VII: General Provisions Article VIII: Slaves Article IX: Impeachment

Article X: Education Article XI: Untitled (concerns Headrights) Article XII: Land Office

Article XIII: Schedule The 1861 document is substantively the same as that of 1845. The major change was the change from an affiliation with

the United States of American to the Confederate States of America, and the strengthening of laws related to slaves. No major articles were added or deleted.

The Preamble contained a slight rewording removing a reference to the United States, and Article One – the Bill of Rights – added the following reinforcement of consent: ​no government or authority can exist or exercise power within the State of Texas, without the consent of the people thereof previously given; nor after that consent be withdrawn​.

There were no major changes to the articles establishing the separated powers. Article Three – which dealt with

legislative power replaced the word “African” with “negro.” Nothing changed in the article on the judiciary, and in Article 5, on the executive power, the word “confederate” was substituted when necessary. Similar substitutions were made in the articles on the militia and general provisions. Oaths were to be made to the confederacy, rather than the United

States.

Article 8, on slavery was changed the most. Slavery as an institution was given greater protection from the legislature. The individual property rights of the slave-owner was prioritized. No law could be passed about emancipation.

Individuals could not free their own slaves. Immigration of slaves from other states could not be limited, though the international slave trade was not restored. Slaves were granted rights to jury trials, and a change was made to the clause stating the ​certain crimes against slaves were to be punished as they would be against a white victim. In the 1845 constitution, the only exception was “except in case of insurrection by such slave.” To this was added: “or rape on a white female.”

The remaining articles on impeachment, education, head-rights, and the land office were unchanged, and the schedule for implementing changes was rewritten to make clear that the changes were under the Confederate States. ​The nature of the changes make clear that the principle concern of the members of the secession convention was to ensure the preservation of slavery.

The came the rebellion.

______________________________

The Constitutions of 1866, 1869, and 1876 The question about the legality of slavery was answered by the Civil War. The unsuccessful end of the war for the

confederacy meant that Texas would remain – and would always be – a state within the United States of America. The only question would be, what type of constitution it would have, and how would it met the demands imposed on it by the United States for the ability to represent itself in Congress. It took three tries to arrive at a document that was

acceptable to both the national government and the state’s electorate. The one dominant theme in all three documents was allegiance to the United States, and acceptance of the 13, 14, and

15​th​ Amendments. Each of which entailed a significant constitutional expansions in to the powers of the national government.

The differences between the documents, as with all the previous documents, resulted from which groups were involved in – and restricted from - calling and participating in the respective constitutional conventions, as with those who were able to approve each document. Major differences regarded the status of the recently freed slaves – whether they

could vote and have access to education and the courts. Another dispute regarded the power of state institutions and whether education and law enforcement was to be a state or a local function.

After failed attempts in 1866 and 1869, the document ratified in 1876 - one written to meet the needs of an agrarian economy – remains the basis of the governing system in the United States. The 1866 Constitution did not meet the requirements of the national government while the 1869 constitution was unacceptable to the people of Texas,

particularly the confederates that had regained power after the end of Reconstruction. As we will see, the 1876 Constitution has been heavily amended to make the Texas government amenable to a business economy. That will be discussed in the following section.

To summarize the constitutions of this period As with those written after 1836, the basic structures of each was same.

- Each had a preamble that began with an appeal to either “the grace of God” or “Almighty God” followed by a statement that the constitution is ordained and established by the people of Texas.

- Each preamble is followed by a Bill of Rights that contain the same basic freedoms and rights. - Each then contains an article stating that the governing powers are separated into three institutions, which is then

followed by three articles which organize, in order, the legislative, executive, and judicial powers. Differences exist in the relative power of each. After an increase in the power of the state government, and the executive branch specifically, the 1876 constitution is designed to place institutional limits on the power of each branch. The legislature is permitted

to meet briefly every other year, the executive power is split into separate independent offices, and the judiciary is elected, making it subject to majority rule.

- Each constitution contained separate articles on impeachment, education, general provisions, and public lands – much as the pre-civil war constitutions had. The differences include the article on the militia, which existed in the 1866 and 1869 documents, but not in 1876 (where

did those powers go?). The 1866 Constitution had an article on freedmen, which was an update of the previous articles on slaves. Neither the 1869 or 1876 Constitutions had one, but each had articles on suffrage. The 1866 Constitution was the last to have an article on Head-Rights, which would reappear in some manner as an articles on Spanish and Mexican

Land Titles in 1876. This section would be emptied in 1969. The 1869 Constitution was the only one with an article on Immigration, which created an office of the Superintended of Immigration.

The 1876 Constitution would create new articles on - taxation and revenue

- counties - railroads - municipal corporations

- private corporations Let’s walk through the circumstances of each document

The 1866 Constitution

News of the end of the Civil War reached Texas in May of 1865. On June 17​th​, US President Andrew Johnson appointed Andrew Jackson Hamilton provisional governor of Texas, and federal troops arrived to begin occupation of the state on June 19​th​ which began the Presidential reconstruction. Hamilton had been an elected official in Texas, but his support for the Union led him to flee North during the war. He had already been appointed US Military Governor of Texas during the war, but the position could not be filled due to the war.

On November 15, 1865 Hamilton called for an election to be held the following January 6​th​ to elect delegates for a convention to meet in Austin starting February 7. Many former secessionists were largely excluded from serving in the convention, though many were able to vote for delegates. After three days delegates agreed to take oaths to the US Constitution, and were then told what was to be expected of them by the US government in order to be represented

again. These were the following:

- the right of secession must be denied – secession had never happened. - slavery must be denied

- the social and political status of the freedmen must be addressed fairly

- the confederate debt must be repudiated

- freedmen had the right to sue, engage in contracts, use of courts, testify, While the eventual constitution would incorporate some of these requirements, it did not go far enough to the United

States government. Racial restrictions still existed. The convention did not provide for black suffrage or the right for freedmen to hold office. Neither did they ratify the 13​th​ Amendment, they simply acknowledged that it was now part of the US Constitution they had taken an oath to. The To make matters worse, 1866 the Texas Legislature passed the Black

Codes which attempted to keep the recently emancipated Blacks in an inferior positons politically, economically, and socially. It replaced slavery with a sharecropping system that still tied Black laborers to the land. Other features included prohibitions on serving in militias, carrying guns, and interracial marriage. The convention voted on March 27, 1866 to

submit to the eligible electors of the state the proposed Constitution. These were among its key features: - governors power increased, 4 years terms, higher pay - line item veto established

- salaries of legislators increased - census to be based on the number of white citizens - public education to be funded by lands

- public education directed by superintendent - separate schools for black children - lands to also fund a university and charitable institutions

- school tax could be levied The 1869 Constitution

The 1866 Constitution was deemed insufficient and invalidated after the election of 1866, by the so called “radical republicans” who had increased their power in the United States Congress, and had a more punitive attitude towards

the southern states. In 1867, Congress passed a series of reconstruction acts which resulted in the South into military districts with Texas placed in the 5​th​ district with Louisiana.

First Reconstruction Act – March 2 Second Reconstruction Act - March 23 Third Reconstruction Act– July 19

Readmission made dependent upon ratifying the 13​th​ and 14​th​ Amendments and establishing universal manhood suffrage, as well as rudimentary civil rights. The state was also required to hold another to convention to write an

appropriate constitution, and to impose voter registration. The US Army not only kept the peace, but determined acceptable office holders. Many confederates were removed from local office.

The commander of the 5​th​ Military District called an election for early February 1868 to determine whether a convention should be held, and if so, who would be the delegates to the convention. Black voters were eligible to vote, and overwhelmingly voted to support the calling of the convention. The legitimacy of the vote was made suspect by the large number of people who failed to vote, including a sizable number of whites. Ten of the ninety delegates were black, and

only six had been members of the 1866 Convention. Deep divisions within the various factions, in addition to efforts to address broader issues, made the convention unproductive and resulted in an incomplete product.

While unpopular with the state, the constitution was sufficient to reestablish Texas as a member of the Congress, and the voters were able to participate in the 1872 presidential election. The document contained language and institutions very different than that found in other constitutions.

The Bill of Rights, for example, Began with the following language:

That the heresies of nullification and secession, which brought the country to grief, may be eliminated from future political discussion; that public order may be restored, private property and human life protected; and the great

principles of liberty and equality secured to us and our posterity, We declare that:

SECTION I. The Constitution of the United States, and the laws and treaties made, and to be made, in pursuance thereof, are acknowledged to be the supreme law; that this Constitution is framed in harmony with, and in subordination thereto; and that the fundamental principles embodied herein can only be changed, subject to the national authority.

Powers were far more centralized – particularly in education and law enforcement - than what had existed before or since. The executive authority was stronger, with the governor’s appointment powers expanded. Equality before the law and universal male suffrage established. School attendance made compulsory, county and local governments were outlined, and an immigration bureau was created. Many of these proved unpopular with ex-confederates, who had not participated in the formation of this constitution. In addition to the ever present drive to limit black equality, education, and suffrage, opposition emerged to the taxes required to enforce state wide law enforcement and education. Proponents of local government pushed back against effort to limit their ability to govern themselves as they chose. Their efforts to oppose these measures would be aided by the end of reconstruction, and the removal of the federal troops necessary to implement the measures contained in the 1869 Constitution. _____________________ The 1876 Constitution Support for Reconstruction began to wane in the 1870s,and circumstances surrounding the disputed 1876 election would led to union troops being pulled from the South, which allowed the older southern establishment to become more involved in state politics. As members of the old political order were able to become politically active again, efforts made to first weaken 1869 constitution. Democrats regained control of the legislative and executive branches of Texas government following the election of 1874, and worked then to replace it. They sought to place limits on the state government by reducing terms and salaries, reducing tax rates and allowable levels of spending, increased local control over law enforcement and education, placing controls over corporations, and reducing protections for civil rights. The legislature submitted a question to the eligible voters about whether they approved another constitutional convention, which they did. Three delegates from each senatorial district were selected from across the state, many of whom were members of the Grange who were particularly concerned about the growing power of railroads and banks – headquartered elsewhere - within the state. The convention met in Austin from 9/6/1875 to 11/2/1875. An important change was made to the opening language of Article One – The Bill of Rights: It begins by removing the previous language in the 1869 Constitution that mentioned secession and nullification, and replaced it with the following: That the general, great and essential principles of liberty and free government may be recognized and established, we declare: SECTION 1. Texas is a free and independent State, subject only to the Constitution of the United States; and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government unimpaired to all the States. Further, as a response to the belief that the previous constitution allowed for centralized and autocratic power, the members of the convention created a detailed constitution that clearly established the rights of the citizens of the state, and the limits on each branch of government. This included the use of elections to the bulk of state and county

positions, as well as short terms of office and low levels of pay. The key restrictions placed on each branch are structural, and still exist to this day. These restriction are reflections of the continued influence of the spirit of both Jacksonian Democracy and the frontier common to the Anglo-American immigrants to the states. - The legislature meets part-time and legislators are paid a nominal salary. It is amateur rather than professional. This limits their independence. Over time the constitution has been amended to limit pay to $600 per month, in addition to a per dime rate when the legislature in session. Regular sessions are limited to 140 days, and the legislature cannot call itself into special sessions. Only the governor can, in addition to stating what the special session can focus on. - The executive branch is plural. Power is distributed to a handful of separately elected offices, each is independent of the other. Unitary executives, where the governor – as chief executive – can appoint the rest of the top officials are more powerful because they executive is coordinated. That is not the case in Texas. The Texas Constitution makes the following positions independent: the lieutenant governor, which is the presiding officer of the Senate; the attorney general, which is the top law enforcement officer of the state; the comptroller, which is the top tax officer of the state and is responsible for the biennial budget estimate; the land commissioner, which oversees the management of public Texas’ public lands, including the amount set aside to fund education. The Constitution also establishes the appointed position of secretary of state, which is the top elections officer of the state. The legislature also established the Commissioner of Agriculture, which promotes the agriculture industry. Each is separate and works independent of the other. - The judicial branch is elected in partisan elections. This makes judges subject not only to the will of the majority, but – since the advent of primary elections - to the will of the majority of the voters of their party. The strength off the judiciary is in its independence, which is why federal judges serve for life after being appointed and confirmed. The effort to limit power also led to one of the documents most noteworthy features, its length. As opposed to the United States Constitution, which is relatively brief and vague in its choice of language, the Texas Constitution is far more precise. This is to restrain power. The more specific the language, the less debate there can be over meaning. This creates a problem. In order for the legislature do go beyond the specific limits in the Constitution, it has to seek to amend it. More language allows the legislature to bypass the limits created by clear language. This has led to a Constitution that, as of November 2019, contains over 90,000 words, 30,000 of which are in Article 3 which outlines legislative power, and authorizes spending beyond what is otherwise allowable constitutionally. These are the results of the changes that have occurred gradually that have facilitated Texas’ shift from an agrarian to an industrial state. The resulting document bears similarities to the U.S. Constitution, but with specific articles that focus on the unique functions of states – Suffrage, Education, Counties, and Municipal Corporations – and the unique experiences of Texas – Railroads, Spanish and Mexican Land Titles, and Public Lands and Land Office. Preamble Article I: Bill of Rights Article II: The Powers of Government Article III: Legislative Department Article IV: Executive Department Article V: Judicial Department Article VI: Suffrage Article VII: Education--The Public Free Schools Article VIII: Taxation and Revenue Article IX: Counties Article X: Railroads Article XI: Municipal Corporations Article XII: Private Corporations

Article XIII: Spanish and Mexican Land Titles Article XIV: Public Lands and Land Office Article XV: Impeachment Article XVI: General Provisions Article XVII: Mode of Amending the Constitution of this State The Amendments While it may seem odd that after changing constitutions as often as it did, Texas would settle on a single document for almost 150 years, this is only superficially true. The agrarian document prepared in the mid to late 19​th​ Century has been significantly changed internally to adapt to the governance of a state that has become very urban, populous, and commercial. The constitution has been subtly but purposely changed to allow for the governance of a state that in 2019 had a gross state product of $1.9 trillion. Many of the key objectives of the original document – the heavy regulation of railroads and banks for example – have been terminated. Loop holes have also been placed in the constitution to allow for state to invest in commercial endeavors. It has also had to adapt to migration of people who do not share the same value system as those who wrote in in 1875. The discovery of oil, and the expansion of commerce as a result of railroads and the various ports along the Gulf Coast attracted people to the state who were less interested in traditional politics, and more oriented around individualism and saw government as a means to create economic opportunities. Still others came to the state with the idea that government should do more to enhance the welfare of the general population, especially the poor and minority groups. This remains a minority of the population of the state, though they can be influential in local politics. Much of the struggle between these groups has played out in proposed changes to the Texas Constitution, which has resulted in the document we have currently. Let’s walk through the changes. Once done, we should have a clear idea of the document’s current content. What are the major changes?

Article 1. The Bill of Rights​. This has been amended to include equal rights for women, exceptions for which types of crimes are bailable, and processes for committing people of unsound mind. In 2009 the section on imminent domain was updated to respond to a U.S. Supreme Court case. In 1989 and 1997, during a phase when the state was focused on crime, a section was added listing the rights of crime and providing funds for the victims of the crime. The last three changes to the established that “the people have the right to hunt, fish, and harvest wildlife,” and that people have the right to access to public beaches. Most controversially the people of the state ratifies an amendment establishing that marriage consisted “only of the union of one man and one woman” and that the state or political subdivision of it ​may “not create or recognize any legal status identical or similar to marriage.” While this language remains in the Constitution, it is currently null – what is considered “deadwood” – due to the United Supreme Court decision in Obegerfel v Hodges which legalized same sex marriages nationally. Article 3. Legislative Department​. Most of the additions made to the Texas Constitution have been in this article, most concern allowing bonds to be sold for various purposes economic development purposes. This fits within the legislature’s power over purse. The original constitution created little opportunity for the state to borrow money. Infrastructure development was not important for an agrarian economy, but it was important for a business economy. In 1991 Section 49 was amended to make it easier to do so, all that is required is a further amendment, which allows the voters to vote for or against the spending proposal. Since then, bonds have been passed authorizing spending on water development projects, farms and ranch loans, veterans’ loans, prison construction, highway construction, railroad relocation, and student loans. In 2019, the voters approved the creation of a Flood Infrastructure Fund. Other amendments added include the following. Other notable changes included:

1980 – Section 47. Lotteries were legalized, as were other forms of gambling. Ongoing, unsuccessful efforts have been made to allow for casino gambling in the state. 1986 – Section 49-g created the Economic Stabilization Fund – also referred to as the rainy day fund – in the aftermath of a state wide recession following a crash in the value of oil. Funds from oil and gas production are deposited in the fund and can be drawn in order to make up deficits in the state budget at the discretion of the legislature. 1991- Section 24a. Creation of the Texas Ethics Commission 2003 - Section 66. Limitation of Liability for Non-Economic Damages. Tort Reform. 2007 – Section 67. Bonds for the Cancer Prevention and Research Institute of Texas. First a limit of $3b, increased in 2019 to $6b. Article 4. The Executive Department​. The basic structure of the executive branch has not changed since 1876. The office of treasurer was eliminated in 1995, and the terms were expanded from 2 to 4 years in 1972. Both by amendments. The later expanded their power. In 1936 the $4,000 salary limit for the governor was removed and the legislature was given

the ability to set the salary. The governor is still prevented from holding other offices, which makes it a professional position, as opposed to the legislators.

Article 5. The Judicial Department​. Judges were made subject to requirement, and the State Commission on Judicial Conduct was created and given the ability to remove judges if necessary. Most recently, the Constitution has been amended to require judges to inform the attorney general if they are set to hear a case challenging the constitutionality

of state statutes. Article 6. Suffrage​. Changes made to keep state laws in line with the expansion of suffrage nationally. As amendments were added restricting the criteria states could use to restrict the vote, changes had to be made to the article to comply with it. Nevertheless, the state constitutes to place restrictions based on felony convictions and declarations of mental incompetence since these are not protected by the U.S. Constitution.

A ley change in wording changed mention of “idiots and lunatics” to “to persons who have been deemed mentally incompetent by the courts.” Language restricting suffrage to “paupers supported by any county” and “soldiers, marines,

and seamen.” Was also removed. Article 7. Education. While the bulk of the language in the Constitution is long, detailed, and precise, the opening

language of article 7 is not, and has been subject to review by the Texas Supreme Court. It states: 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​. Cuts to the education budget following the housing crash of 2009 let to law suit against the state the forced the court

determine what the word “suitable” meant. Most of the changes regard the nature of funds establishes to fund primary and secondary schools – the Permanent

School Fund and the Available School Fund – and universities – the Permanent University Fund. It also contains language creating the State Board of Education, and establishing the public universities in the state.

Article 8. Taxation and Revenue​. While this section authorizes local governments to collect property taxes, it has grown since then with tax exemptions for a large variety of reasons. Counties have been authorized to collect taxes for flood control.

Article 9. Counties. Amendments have been added expanding what counties are allowed to do, including creating hospital districts, airport authorities, mental and public health facilities, as well as manual labor poor houses.

Article 10. Railroads. While the constitution originally allows for heavy regulations of railroads, much of the article was removed in 1969. All that remains is the designation of railroads as common carriers.

Article 11. Municipal Corporations. Amendments were added in the early 20​th​ century to allow for home rule authority Articles 12, 13, 14 have been mostly depleted.

Article 15 – mostly the same Article 16. General Provisions. This article continues to be where the protections for community property can be found.

The most significant change, reflecting the growth of Texas as a business center is the authorization of the creation of

banks in the state.