Texas Constitution
anglb3
Chapter2TheTexasStateConstitutionandtheAmericanFederalSystem2.pdf
Chapter 2: The Texas State
Constitution and the American Federal
System
Learning Objective By the end of this chapter, you will be able to: Explain the origin and development of the Texas State Constitution
Introduction
Proposing State Constitutional Amendments
Figure 2.1 On August 5, 2013, the Texas State Library hosted Texas Secretary of State John Steen for a
drawing that determined the ballot order of the 9 proposed state constitutional amendments to be voted
on as part of the November 5 election. Secretary Steen joined his staff, TSLAC staff, and members of
the media in the lobby of the Lorenzo de Zavala State Archives and Library Building, and he performed
the drawing in the presence of two special pieces of Texas history from the Texas State Archives: one
was the wooden box from which Secretary Steen drew the amendments. The “Ark of the Covenant,” as
the box is known, is made of wood from the house at Washington-on-the-Brazos where Texas delegates
met to declare independence from Mexico in 1836. The second piece was the actual 1876 Texas
Constitution, which is still in effect today. Image Credit: Texas State Library and Archives Commission
(https://www.flickr.com/photos/tslac/9452790214/in/photolist-fpj2cC- fVngXW-eVGPjX-efyyGC-efsMaX-
efyxEW-efsQyF-6fD8JP-2eaMtqy-DacH2L- S5q2Hz-c1gzgs-c7aJjS-2cNo4Q8-TkLLeE-2zjLo7-ZUn5LW-
rRLFnC-2echE2r- MpG6aZ-akfYaj-q8jPs2-29MikCR-fpj1f5-pnK2UM-eVUeh9-cu2FZW-efsN2R-
mGWvr1-efsQvr-xpX9Q-efsMQc-efsQWg-fp4LiX-fpj229-efsPK4-rVoguf- efyzpE-efsPca-5xGfVh-efsPKk-
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A constitution is a body of fundamental principles or established
precedents according to which a state or other organization is acknowledged
to be governed. Another way of thinking about it is that a constitution
outlines the structure of the government, defines the powers of the
government, and enumerates limits on the government. When it comes to
structure, this can include the creation of branches as well as how each
branch is organized. For example, the Texas government has three
branches in which the legislative branch is bicameral, the executive branch
is plural, and the judicial branch is bifurcated.
As for powers, the legislature makes law, the executive enforces law, and
the judicial branch adjudicates and interprets the law. Finally, limits on
powers come in the form of the Bill of Rights. A bill of rights, sometimes
called a declaration of rights or a charter of rights, is a list of the most
important rights to the citizens. The purpose is to protect those rights
against infringement from public officials and private citizens.
The Texas Bill of Rights
(https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm) outlines the limits
on the powers of the government that would violate our rights.1
What distinguishes Texas from other states is its unique history as an
entity—a state, a republic, a nation—and the documents that actually
created what became the Texas we know today.
This chapter discusses the development of Texas' constitutions, from the Constitution of 1876 through the current constitution.
References and Further Reading
1. The Texas Bill of Rights. The Texas Constitution (https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm).
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2.1 | The Evolution of the Texas
State Constitution Learning Objective
By the end of this section, you will be able to:
Discuss the evolution of the Texas State Constitution and how it came to be in its modern day form
The Role of a State Constitution
A state constitution is the governing document of the state in much the same
way the U.S. Constitution sets up the framework of the nation as a whole.
Many of the ideas found in the U.S. Constitution are also found in the Texas
state constitutions, including individual rights, separation of powers, checks
and balances, and republican government.
The First Texas Constitutions
Between the years of 1824 and 1876, Texas was at times a part of the
United States of Mexico, an independent republic, a state within the
Confederate States of America, and a state within the United States of
America. Beginning in 1824, what we now know as Texas passed through
many iterations—each with founding documents that can be accessed in this
course.
These founding documents legally established the entity of Texas, set forth
the rights and responsibilities of its people, and defined the scope and
powers of its government.
The Texas Constitution of 1876
Figure 2.2 The Constitution of the State of Texas is the document that describes the structure and
function of the government of the U.S. state of Texas. Image credit: courtesy of the Texas State Library
and Archives Commission, Public Domain.
Table 2.1 Texas State Constitutions
Constitution of Coahuila y Tejas, 1827
The Republic of Texas Constitution, 1836
The State Constitution of 1845
The Confederate Constitution of 1861
The Post-Civil War Constitution of 1866
The Reconstruction Constitution of 1869
The Texas Constitution of 1876
References and Further Reading
1. Texas Constitutions 1824-1876 (https://tarltonapps.law.utexas.edu/constitutions/), Tarlton Law
Library.University of Texas School of Law.
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Revision and Adaptation: The Evolution of the Texas State Constitution.
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Introduction: Constitutions of Texas. Authored by: Kris S.
Seago. License: CC BY: Attribution (https://www.google.com/url? q=https://creativecommons.org/licenses/by/4.0/&sa=D&ust=1552675072217000)
2.1.1 | Federal Constitution of the
United Mexican States (1824)
Federal Constitution of the United Mexican States of 1824
Figure 2.3 The Federal Constitution of the United Mexican States of
1824 (Constitución Federal de los Estados Unidos Mexicanos de 1824) was enacted on October 4 of
1824, after the overthrow of the Mexican Empire of Agustin de Iturbide. Image credit: Public Domain
(https://commons.wikimedia.org/wiki/File:Constitucion_1824.PNG)
Constitutional government in Texas began with the Mexican Federal
Constitution of 1824, which, to some degree, was patterned after the United
States Constitution but resembled more the Spanish Constitution of 1812.1
Congress was made the final interpreter of the document; the Catholic
religion was made the state faith; and the church was supported by the
public treasury. The president and vice president were elected for four-year
terms by the legislative bodies of the states, the lower house of Congress to
elect in case of a tie or lack of a majority. There were numerous limitations
on the powers of the president. The Congress was composed of two houses
meeting annually from January 1 to April 15. The president could prolong
the regular session for an additional thirty days and could call extra
sessions. Deputies in the lower house served two years, while senators
were selected by their state legislatures for four-year terms. The judicial
power was vested in a Supreme Court and superior courts of departments
and districts. The Supreme Court was composed of eleven judges and the
attorney general. There was no particular effort to define the rights of the
states in the confederacy. They were required to separate executive,
legislative, and judicial functions in their individual constitutions, which were
to be in harmony with the national constitution, but local affairs were
independent of the general government.
Map of Mexico under the Constitution of 1824
Figure 2.4 Political divisions of independent México
(https://commons.wikimedia.org/wiki/Category:Mexico) in 1824, in the present-day U.S. and
México. Image credit: © Giggette / Wikimedia Commons, CC BY-SA 3.0
(https://creativecommons.org/licenses/by-sa/3.0)
Link to Learning
More information on the Federal Constitution of the United Mexican States
(1824) (https://tarltonapps.law.utexas.edu/constitutions/) may be found at
the Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail
Center for Legal Research (http://tarlton.law.utexas.edu/) at the University of
Texas School of Law (http://www.utexas.edu/law/), The University of Texas
at Austin (http://www.utexas.edu/). The project includes digitized images and
searchable text versions of the constitutions.
References and Further Reading
1. Federal Constitution of the United Mexican States (https://tarltonapps.law.utexas.edu/constitutions/mexican1824) (1824). Texas Constitutions 1824-1876, Tarlton Law Library. University of Texas School of Law.
LICENSES AND ATTRIBUTION CC LICENSED CONTENT, ORIGINAL Revision and Adaptation. Authored by: Kris S. Seago. License: CC BY: Attribution (https://creativecommons.org/licenses/by/4.0/) CC LICENSED CONTENT, SHARED PREVIOUSLY
Constitucion 1824.PNG. Authored by: Secretaria de Educacion Publica
(Mexico) Material Educativo Gratuito. Located at:
https://commons.wikimedia.org/wiki/File:Constitucion_1824.PNG
(https://commons.wikimedia.org/wiki/File:Constitucion_1824.PNG).
License: Public Domain: No Known Copyright
(https://creativecommons.org/about/pdm)
2.1.2 | Constitution Of Coahuila And Texas
(1827)
Constitution Of Coahuila And Texas (1827)
Figure 2.5 More than two years were spent on the framing of the Consitution of Coahuila and Texas, which was finally published on March 11, 1827. Image Credit: Public Domain (https://en.wikipedia.org/wiki/Astronaut#/media/File:Astronaut-EVA.jpg)
The Constitution of 1824 of the Republic of Mexico provided that each state
in the republic should frame its own constitution. The state of Coahuila and
the former Spanish province of Texas were combined as the state of
Coahuila and Texas. The legislature for the new state was organized at
Saltillo in August 1824, with the Baron de Bastrop representing Texas.
Location of Coahuila y Texas in Mexico, 1824
Figure 2.6 Coahuila y Tejas (Coahuila and Texas) was one of the constituent states of the newly
established United Mexican States under its 1824 Constitution.5 Image credit: Milenioscuro, CC BY-SA
4.0 (https://creativecommons.org/licenses/by-sa/4.0)
The Constitution of Coahuila and Texas divided the state into three
departments, of which Texas, as the District of Bexar, was one. The Catholic
religion was made the state religion; citizens were guaranteed liberty,
security, property, and equality; slavery was forbidden after promulgation of
the constitution, and there could be no import of slaves after six months.
Citizenship was defined and its forfeiture outlined. Legislative power was
delegated to a unicameral legislature composed of twelve deputies elected
by popular vote; Texas was allowed two of the twelve. The body, which met
annually from January through April and could be called in special session,
was given wide and diverse powers. In addition to legislative functions, it
could elect state officials if no majority was shown in the regular voting,
could serve as a grand jury in political and electoral matters, and could
regulate the army and militia. It was instructed to promote education and
protect the liberty of the press.
Executive power was vested in a governor and vice governor, elected for
four-year terms by popular vote. The governor could recommend legislation,
grant pardons, lead the state militia, and see that the laws were obeyed. The
vice governor presided over the council and served as police chief at the
capital. The governor appointed for each department a chief of police, and
an elaborate plan of local government was set up. Judicial authority was
vested in state courts having charge of minor crimes and civil cases. The
courts could try cases but could not interpret the law; misdemeanors were
tried by the judge without a jury. Military men and ecclesiastics were subject
to rules made by their own orders. Trial by jury, promised by the constitution,
was never established, nor was the school system ever set up. The laws
were published only in Spanish, which few Anglo-Texans could read.
Because of widespread objections to government under this document, the
Convention of 1833 proposed a new constitution to give Texas statehood
separate from Coahuila.
More information on the Constitution Of Coahuila And Texas (1827)
(https://tarltonapps.law.utexas.edu/constitutions/coahuila18 be found at the
Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail
Center for Legal Research (http://tarlton.law.utexas.edu/) at
the University of Texas School of Law (http://www.utexas.edu/law/), The
University of Texas at Austin (http://www.utexas.edu/).
The project includes digitized images and searchable text versions of
the constitutions.
References and Further Reading
1. Vito Alessio Robles, Coahuila y Texas en la época colonial (Mexico City:
Editorial Cultura, 1938; 2d ed., Mexico City: Editorial Porrúa, 1978).
2. Nettie Lee Benson, "Texas as Viewed from Mexico, 1820–1834,"
Southwestern Historical Quarterly 90 (January 1987).
3. The Constitution of Mexico, and of the State of Coahuila and Texas (New
York: Ludwig and Tolefree, 1832).
4. Hans Peter Nielsen Gammel, comp., Laws of Texas, 1822–1897 (10
vols., Austin: Gammel, 1898).
5. Henderson K. Yoakum, History of Texas from Its First Settlement in 1685
to Its Annexation to the United States in 1846 (2 vols., New York:
Redfield, 1855).
6. Handbook of Texas Online, S. S. McKay, "CONSTITUTION OF
COAHUILA AND TEXAS
(http://www.tshaonline.org/handbook/online/articles/ngc01.%20),"
accessed August 23, 2019.
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(https://www.google.com/url?q=https://creativecommons.org/licenses/by/4.0/&sa=D
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Revision and Adaptation: Constitution of Coahuila and Texas. Authored by:
John Osterman. License: CC BY: Attribution (https://www.google.com/url?
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2.1.3 | Constitution of the Republic of Texas
(1836)
Constitution of the Republic of Texas (1836)
Figure 2.7 The Constitution of the Republic of Texas was the supreme law of Texas from 1836 to 1845.
On March 2, 1836, Texas declared itself an independent republic due to a lack of support from the
United States in their revolutionary movement. The declaration of independence was modeled
after the United States Constitution.
The Constitution of the Republic of Texas (1836), the first Anglo- American
constitution to govern Texas, was drafted by a convention of fifty-nine
delegates who assembled at Washington- on-the-Brazos on March 1, 1836.
A constitution was adopted by the convention fifteen days later and ratified
by a vote of the people of the republic on the first Monday in September
1836.
The ever-present threat of attack by Mexican cavalry tended to stifle
originality in the document. Almost of necessity the haste to complete their
task led delegates to lift portions from the Constitution of the United States
and from several contemporary state constitutions. The use of such models
produced a document embodying some familiar features. Like the United
States Constitution it was admirably brief (less than 6,500 words) and
contained generous grants of power to state officials, especially the chief
executive. Furthermore, great numbers of specific limitations and restrictions
upon government often found in state constitutions of the time were avoided.
Finally, the well-known words and phrases of older American constitutions
were preserved, making understanding easier.
Typical American features included a short preamble; separation of the
powers of government into three branches-legislative, executive, and
judicial; checks and balances; slavery; citizenship, with “Africans, the
descendents of Africans, and Indians excepted”; a Bill of Rights; male
suffrage; and method of amendment. The legislature was bicameral, the
two houses being the Senate and the House of Representatives. The
executive resembled the American presidency, and the four-tiered judiciary
system comprised justice, county, district, and supreme courts, of which the
district courts were the most important.
Some of the constitution’s atypical provisions undoubtedly reflected
Jacksonian ideas current in the states from which many delegates had
come; fourteen, for example, came from Tennessee. Ministers and priests
were declared ineligible to hold public office. Imprisonment for debt was
abolished, and monopolies, primogeniture, and entailment were prohibited.
Terms of office were short, ranging from one year for representatives to four
years for Among the most important provisions adapted from Spanish-
Mexican law were community property, homestead exemptions and
protections, and debtor relief. Contrary to common-law practice in the
American states, Texas courts were not separated into distinct courts of law
and equity.
The amending process was so complex that, although in the ten- year life
span of the constitution several amendments were suggested, none was
ever adopted. Amendments could be proposed in one session of Congress,
referred to the next session for a second approval, and then submitted to a
popular vote.
Of nearly paramount importance at the time of adoption were provisions
relating to land. The document sought in many ways to protect the rights of
people in the unoccupied lands of the republic, lands that were the main
attraction to the immigrants who had come to Texas. In its “Schedule,” for
example, the constitution affirmed “that all laws now in force in Texas…shall
remain in full force.” Later, in the “General Provisions,” a citizen who had not
received his land grant was guaranteed “one league and one labor of land” if
the head of a family; single men over seventeen years were assured of “the
third part of one league of land”; and orphan children “whose parents were
entitled to land” were declared eligible for all property rights of their
deceased parents. The constitution also sought to void all “unjust and
fraudulent claims.”
Preference of the predominantly Anglo-American settlers for the legal
system they had known “back in the states” is apparent in a provision that
called for the introduction of the common law of England as early as
practicable and declared it the rule to be used in deciding all criminal cases.
Although the constitution of 1836 was a revolutionary document written and
adopted in haste, it was a product of the social and economic conditions of
the time as well as of the constitutional and legal heritage of Texas, the
southern and western states, and the United States. Therefore, Anglo-
Americans immigrating to the Republic of Texas found institutions of law and
government in accord with their experience.
References and Further Reading
More information on the Constitution of the Republic of Texas (1836)
(https://tarltonapps.law.utexas.edu/constitutions/texas1836) may be found at
the Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail
Center for Legal Research (http://tarlton.law.utexas.edu/) at the University of
Texas School of Law (http://www.utexas.edu/law/), The University of Texas
at Austin (http://www.utexas.edu/).
The project includes digitized images and searchable text versions of the
constitutions.
LICENSE AND ATTRIBUTION
CC LICENSED CONTENT, ORIGINAL
Revision and Adaptation. Authored by: Kris S. Seago. License: CC BY:
Attribution
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/4.0/&sa=D&ust=1552676957038000)
2.1.4 | Constitution of 1845
The Constitution of 1845, which provided for the government of Texas as a
state in the United States, was almost twice as long as the Constitution of
the Republic of Texas. The framers, members of the Convention of 1845,
drew heavily on the newly adopted Constitution of Louisiana and on the
constitution drawn by the Convention of 1833 , but apparently used as a
working model the Constitution of the republic for a general plan of
government and bill of rights.
The legislative department was composed of a Senate of from nineteen to thirty-
three members and a House of Representatives of from forty-five to ninety.
Representatives, elected for two years, were required to have attained the age of
twenty-one. Senators were elected for four years, one-half chosen biennially, all at
least thirty years old. Legislators’ compensation was set at three dollars a day for
each day of attendance and three dollars for each twenty-five miles of travel to and
from the capital. All bills for raising revenue had to originate in the House of
Representatives. Austin was made the capital until 1850, after which the people
were to choose a permanent seat of government. A census was ordered for each
eighth year, following which adjustment of the legislative membership was to be
made. Regular sessions were biennial. Ministers of the Gospel were ineligible to
be legislators.
The governor’s term was two years, and he was made ineligible for more than four
years in any period of six years. He was required to be a citizen and a resident of
Texas for at least three years before his election and to be at least thirty years of
age. He could appoint the attorney general, secretary of state, and supreme and
district court judges, subject to confirmation by the Senate; but the comptroller and
treasurer were elected biennially by a joint session of the legislature. The governor
could convene the legislature and adjourn it in case of disagreement between the
two houses and was commander-in-chief of the militia. He could grant pardons and
reprieves. His veto could be overruled by two-thirds of both houses.
The judiciary consisted of a Supreme Court, district courts, and such inferior courts
as the legislature might establish, the judges of the higher courts being appointed
by the governor for six-year terms. The Supreme Court was made up of three
judges, any two of whom constituted a quorum. Supreme and district judges could
be removed by the governor on address of two-thirds of both houses of the
legislature for any cause that was not sufficient ground for impeachment. A district
attorney for each district was elected by joint vote of both houses, to serve for two
years. County officers were elected for two years by popular vote. The sheriff was
not eligible to serve more than four years of any six. Trial by jury was extended to
cases in equity as well as in civil and criminal law.
The longest article of the constitution was Article VII, on General Provisions. Most
of its thirty-seven sections were limitations on the legislature. One section forbade
the holding of office by any citizen who had ever participated in a duel. Bank
corporations were prohibited, and the legislature was forbidden to authorize
individuals to issue bills, checks, promissory notes, or other paper to circulate as
money. The state debt was limited to $100,000, except in case of war, insurrection,
or invasion. Equal and uniform taxation was required; income and occupation
taxes might be levied; each family was to be allowed an exemption of $250 on
household goods. A noteworthy section made exempt from forced sale any family
homestead, not to exceed 200 acres of land or city property not exceeding $2,000
in value; the owner, if a married man, could not sell or trade the homestead except
with the consent of his wife. Section XIX recognized the separate ownership by
married women of all real and personal property owned before marriage or
acquired afterwards by gift or inheritance. Texas was a pioneer state in providing
for homestead protection and for recognition of community property.
In the article on education the legislature was directed to make suitable
provision for support and maintenance of public schools, and 10 percent of
the revenue from taxation was set aside as a Permanent School Fund.
School lands were not to be sold for twenty years but could be leased, the
income from the leases becoming a part of the Available School Fund. Land
provisions of the Constitution of 1836 were reaffirmed, and the General Land
Office was continued in operation.
By a two-thirds vote of each house an amendment to the constitution could be
proposed. If a majority of the voters approved the amendment and two-thirds of
both houses of the next legislature ratified it, the measure became a part of the
constitution. Only one amendment was ever made to the Constitution of 1845. It
was approved on January 16, 1850, and provided for the election of state officials
formerly appointed by the governor or by the legislature.
The Constitution of 1845 has been the most popular of all Texas constitutions. Its
straightforward, simple form prompted many national politicians, including Daniel
Webster, to remark that the Texas constitution was the best of all of the state
constitutions. Though some men, including Webster, argued against the
annexation of Texas, the constitution was accepted by the United States on
December 29, 1845.
More information on the Constitution of Texas (1845)
(https://tarltonapps.law.utexas.edu/constitutions/texas1845) may be found at the
Texas Constitutions 1824-1876 project of
the Tarlton Law Library, Jamail Center for Legal Research
(http://tarlton.law.utexas.edu/) at the University of Texas School of Law
(http://www.utexas.edu/law/), The University of Texas at Austin
(http://www.utexas.edu/).
The project includes digitized images and searchable text versions of the
constitutions.
References and Further Reading
1. Hans Peter Nielsen Gammel, comp., Laws of Texas, 1822–1897 (10
vols., Austin: Gammel, 1898).
2. Annie Middleton, "The Texas Convention of 1845," Southwestern
Historical Quarterly 25 (July 1921).
3. John Sayles, The Constitutions of the State of Texas (1872; 4th ed.,
St. Paul, Minnesota: West, 1893).
4. Vernon's Annotated Constitution of the State of Texas (Kansas City:
Vernon Law Book Company, 1955).
5. Handbook of Texas Online, S. S. McKay, "CONSTITUTION OF 1845
(https://tshaonline.org/handbook/online/articles/mhc03)," accessed
August 23, 2019.
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CC LICENSED CONTENT, ORIGINAL
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Seago. License: CC BY: Attribution
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ommons.org/licenses/by/4.0/&sa=D&ust=155267
7124295000
2.1.5 | Constitution of 1861
Constitution of 1861
Figure 2.8 Image Credit: Public Domain (https://en.wikipedia.org/wiki/Astronaut#/media/File:Astronaut- EVA.jpg)
After the Texas voters ratified secession from the Union on February 23,
1861, the Secession Convention reconvened. Convention delegates
believed it their duty to direct the transition of Texas from a state in the
United States to one of the Confederate States of America. As part of that
duty, they amended the Constitution of 1845. In most instances, the wording
of the older constitution was kept intact, but some changes were required to
meet new circumstances. The words United States of America were
replaced with Confederate States of America. Slavery and states’ rights
were more directly defended. A clause providing for emancipation of slaves
was eliminated, and the freeing of slaves was declared illegal. All current
state officials were required to take an oath of loyalty to the Confederacy,
and all existing laws not in conflict with the constitutions of Texas or the
Confederate States were declared valid. Amending the constitution was also
made easier.
This constitution was as remarkable for what it did not do as for what it did.
It did not legalize the resumption of the African slave trade, a move
advocated by some leaders of the secession movement. It did not take an
extreme position on the issue of states’ rights. It did not substantially change
any important law. It was a conservative document partly designed to allay
fears of the radical nature of the secessionists and to ease the transition of
Texas into the Confederacy.
More information on the Constitution of the State of Texas (1861)
(https://tarltonapps.law.utexas.edu/constitutions/texas1861 be found at the
Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail
Center for Legal Research (http://tarlton.law.utexas.edu/) at the University
of Texas School of Law
(http://www.utexas.edu/law/), The University of Texas at Austin
(http://www.utexas.edu/).
The project includes digitized images and searchable text versions of the
constitutions.
References and Further Reading
1. Walter L. Buenger, Secession and the Union in Texas (Austin:
University of Texas Press, 1984).
2. Handbook of Texas Online, Walter L. Buenger, "CONSTITUTION OF
1861 (http://www.tshaonline.org/handbook/online/articles/mhc04),"
accessed August 23, 2019.
LICENSE AND ATTRIBUTION
CC LICENSED CONTENT, ORIGINAL
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Attribution
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2.1.6 | Constitution of 1866
Constitution of 1866
Figure 2.9 Image Credit: Public Domain (https://en.wikipedia.org/wiki/Astronaut#/media/File:Astronaut- EVA.jpg)
The Constitutional Convention of 1866, in addition to other actions in
compliance with presidential Reconstruction, proposed a series of
amendments to the fundamental law, which came to be known as the
Constitution of 1866. The governor’s term was increased to four years and
his salary from $3,000 to $4,000 a year. He was prohibited from serving
more than eight years in any twelve-year period. For the first time the
governor was given the line-item veto on appropriations. He was
empowered to convene the legislature at some place other than the state
capital should the capital become dangerous “by reason of disease or the
public enemy.” The comptroller and treasurer were elected by the voters to
hold office for four years.
The Senate was set to number from nineteen to thirty-three members and
the House from forty-five to ninety; legislators were required to be white men
with a prior residence of five years in Texas. Terms of office were to remain
the same as before, but salaries of legislators were raised from three dollars
a day to eight dollars, and mileage was increased to eight dollars for each
twenty- five miles. A census and reapportionment, based on the number of
white citizens, was to be held every ten years.
The Supreme Court was increased from three judges to five, with a term of
office of ten years and a salary of $4,500 a year. The chief justice was to be
selected by the five justices on the court from their own number. District
judges were elected for eight years at salaries of $3,500 a year. The
attorney general was elected for four years with a salary of $3,000.
Jurisdiction of all courts was specified in detail. A change was made in the
method of constitutional revision in that a three-fourths majority of each
house of the legislature was required to call a convention to propose
changes in the constitution, and the approval of the governor was required.
Elaborate plans were made for a system of internal improvements and for a
system of public education to be directed by a superintendent of public
instruction. Separate schools were ordered organized for black children.
Lands were set aside for the support of public schools, for the establishment
and endowment of a university, and for the support of eleemosynary
institutions. The legislature was empowered to levy a school tax. An election
in June ratified the proposed amendments by a vote of 28,119 to 23,400; the
small majority was attributed to dissatisfaction of many citizens with the
increase in officials’ salaries.
More information on the Constitution of the State of Texas (1866)
(https://tarltonapps.law.utexas.edu/constitutions/texas1866 be found at the
Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail
Center for Legal
Research (http://tarlton.law.utexas.edu/) at the University
of Texas School of Law
(http://www.utexas.edu/law/), The University of Texas at Austin
(http://www.utexas.edu/).
The project includes digitized images and searchable text versions of the
constitutions.
LICENSE AND ATTRIBUTION
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Revision and Adaptation. Authored by: Kris S. Seago. License: CC BY:
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2.1.7 | Constitution of 1869
Constitution of 1869
Figure 2.10 Image Credit:Public Domain (https://en.wikipedia.org/wiki/Astronaut#/media/File:Astronaut- EVA.jpg)
The Constitutional Convention of 1868–69, called in compliance with the
Congressional Reconstruction Acts of 1867, broke up without completing a
constitution. Its work was gathered up under orders of the military officers,
published as the Constitution of 1869, and accepted by the electorate. The
preface of the bill of rights of the new document reflected the sentiments of
its makers in its condemnation of nullification and secession. The
Constitution of the United States was declared to be the supreme law.
Slavery was forbidden, and the equality of all persons before the law was
recognized. The House of Representatives was set at ninety members and
the Senate at thirty. One-third of the senators were chosen biennially, and
their term of office was increased from four to six years. Sessions were held
annually.
The salary of the governor was increased to five thousand dollars a year.
The attorney general and secretary of state were appointed by the governor;
other officials were elected by the voters. The Supreme Court was reduced
from five to three judges and the term reduced to nine years, one new judge
to take office every third year. All judicial offices were appointive. All
elections were held at the county seat and had to continue through four
consecutive days. A poll tax was authorized; its receipts, along with the
income from the school lands and one-fourth of the annual taxes, went to
the school fund. The office of state superintendent of public instruction was
continued, and school attendance was made compulsory. An immigration
bureau was authorized; county and local government was outlined in detail;
blacks were included as voters; homesteads were to be given gratis to
actual settlers; mineral rights were released to landowners; the legislature
was forbidden to grant divorces or authorize lotteries; all qualified voters
were to be qualified jurors; and the legislature was permitted to prohibit the
sale of liquor near colleges, except at county seats. Permission for the
legislature to call a new constitutional convention was withheld, but the
amendment procedure was unchanged.
This constitution, formulated under pressure from Washington, was disputed
by a large constituency of Texans. Many felt that it was one of the longest
and most unsatisfactory of Texas constitutions. Over the years, however,
alternate interpretations have pointed out some positive goals that delegates
tried to achieve such as the establishment of a common school system,
centralized law enforcement, and broader civil rights. The programs,
implemented by greater taxation, drew heavy criticism from many citizens,
and though it may have laid some of the foundations for a strong educational
system, as well as strengthening the branches of state government, the
Constitution of 1869 sparked much controversy among political and social
factions in Texas.
More information on the Constitution of the State of Texas (1869)
(https://tarltonapps.law.utexas.edu/constitutions/texas1869 be found at the
Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail
Center for Legal
Research (http://tarlton.law.utexas.edu/) at the University
of Texas School of Law
(http://www.utexas.edu/law/), The University of Texas at Austin
(http://www.utexas.edu/).
The project includes digitized images and searchable text versions of the
constitutions.
References and Further Reading
1. Hans Peter Nielsen Gammel, comp., Laws of Texas, 1822–1897
(10 vols., Austin: Gammel, 1898).
2. Charles W. Ramsdell, Reconstruction in Texas (New York:
Columbia University Press, 1910; rpt., Austin: Texas State Historical
Association, 1970).
3. Betty Jeffus Sandlin, The Texas Constitutional Convention of 1868–
1869 (Ph.D. dissertation, Texas Tech University, 1970).
4. John Sayles, The Constitutions of the State of Texas (2d ed., St.
Louis: Gilbert, 1884; 4th ed., St. Paul, Minnesota: West, 1893).
5. Handbook of Texas Online, S. S. McKay, "CONSTITUTION OF
1869 (http://www.tshaonline.org/handbook/online/articles/mhc06),"
accessed August 23, 2019.
LICENSES AND ATTRIBUTIONS
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Revision and Adaptation. Authored by: Kris S. Seago. License: CC BY:
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(https://www.google.com/url?q=https://creativecommons.org/licenses/by
/4.0/&sa=D&ust=1552677413265000)
2.1.8 | The Texas Constitution of 1876
Constitution of 1876
Figure 2.11 The 1876 Texas Constitution document, which has been fully photographed, reprinted and
digitized, is stored in the Lorenzo De Zavala State Archives and Library Building near the Texas Capitol
in Austin.1 Image Credit: Public Domain (https://en.wikipedia.org/wiki/Astronaut#/media/File:Astronaut-
EVA.jpg)
Texas Democrats gained control of Congress in 1873 and decided it was
time to draft a new constitution for Texas. The Texas Constitutional
Convention of 1875 met in Austin with the purpose of replacing the
Constitution of 18692; it was believed that the new constitution should
restrict the state government and hand the power back to the people.
Some examples of how the government was restricted were:
• Legislative sessions moved from annual to biennial sessions
• Creation of a plural executive • Mandated a balanced budget • State Judges would be elected by the people
• The people would vote on the ratification of amendments2
The structure of the current constitution of Texas (Constitution of 1876) is a
Preamble, 17 Articles, and 491 Amendments (Since 2015)3. The Texas
Constitution does not contain a “necessary and proper clause” like the
U.S. Constitution, therefore making it the second longest state constitution in
America (2nd only to Alabama’s).
You Might Be Wondering...
Why is the Texas Constitution So Dang Long? Find out from TexPlainer at the Texas Tribune.
(https://www.texastribune.org/2011/08/25/texplainer-why-texas-constitution-
so-long/) Table 2.2 Articles of the Texas Constitution of 1876
Article 1: Bill of Rights
The Texas Constitution’s Bill of Rights Similar civil liberties and civil rights as in the U.S. Constitution’s Bill of Rights
Article 2: The Powers of the
Government
Establishes three branches of government with separation of powers
Article 3: Legislative Department
Specifics about the Texas Legislature
Article 4: Executive Department
Specifics about the plural executive
Article 5: Judicial Department
Specifics about the Texas Judicial system
Article 6: Suffrage
Forbids the following from voting: -any non-US citizen, -any non-registered Texas voter, -any convicted felon who has
not completed their sentence, or -any person deemed mentally incompetent by the courts.
Article 7: Education
Mandates an "efficient" free public school system
Established the Permanent School Fund
Article 8: Taxation and Revenue
Places limits on the raising
and spending of public funds
Article 9: Countries
Authorizes the Texas
Legislature to create county
governments
Article 10: Railroads
Regulates the railroad system
Article 11: Municipal
Corporations
Specifics regarding local
governments, including
empowering them to tax, and
how to charter cities
Article 12: Private Corporations
Specifics regarding public businesses, including hot they would be regulated
Article 13: Spanish and Mexican Land Titles
Specifics on which land whit previous claims would become state property
Article 14: Public Lands Established the Land Office which
regulated land office
Established the Land Office which regulated land titles
Article 15: Impeachment Specifics on how to remove a public official from office
Article 16: General Provisions
Miscellaneous regulations, ie., forbidding the legislature from printing money, forbidding U.S. public officials from holding a state office
Article 17: Mode of Amending the
Constitution of this State
2/3 proposal from the legislature Registered voters vote on approval. Whit a majority vote, the amendment is ratified.
More information on the Constitution of the State of Texas (1876)
(https://tarltonapps.law.utexas.edu/constitutions/texas1876 be found at the
Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail
Center for Legal
Research (http://tarlton.law.utexas.edu/) at the University
of Texas School of Law
(http://www.utexas.edu/law/), The University of Texas at Austin
(http://www.utexas.edu/).
The project includes digitized images and searchable text versions of the
constitutions.
References and Further Reading
1. Texans to decide whether to update their aging constitution (https://www.star- telegram.com/news/state/texas/article38172792.html). Fort Worth Star-Telegram. Anna M. Tinsley. October 8, 2018.
2. Texas State Library and Archives Commission.The 1870s: The Constitutional
Convention of 1875
(https://www.tsl.texas.gov/exhibits/forever/representation/page5.html).
3. Texas Constitution and Statutes. (https://www.google.com/url?
q=http://www.constitution.legis.state.tx.us/&sa=D&ust=1552677615485000)
LICENSING AND ATTRIBUTION
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Constitutions of Texas. Authored by: Daniel M. Regalado. License: CC BY:
Attribution
(https://www.google.com/url?q=https://creativecommons.org/licenses/by
/4.0/&sa=D&ust=1552677615487000)
2.2 | Texas State and Local Politics
Learning Objectives
By the end of this section, you will be able to:
Describe how state and local political systems in Texas relate to the federal government
Diagram of the Federal Government and American Union (1862)
Figure 2.12 This print shows the outline of 34 states and 9 territories, a Civil War battle scene, and
Liberty holding U.S. flag and sword riding on the back of an eagle, Lincoln and his cabinet (the
secretaries linked to images of the Army, Navy, Treasury, Interior, P.O. Dept., and State
Department) representing the "Executive" branch, the Senate and the House of Representatives
representing the "Legislative" branch, and the Supreme Court representing the "Judicial" branch of
the federal government. Also, cameo portraits of "The seven builders and leading spirits of the
revolution." Image Credit: Fallschirmjäger
(https://commons.wikimedia.org/wiki/File:Diagram_of_the_Federal_Government_and_American_Un
ion_edit.jpg) Pu Domain (https://en.wikipedia.org/wiki/public_domain)
How Do State and Local Political Systems Relate to the Federal
Government?
As you probably have learned by now, the United States operates under a
federal system of government. That means there is a national government
that works along with the 50 states governments in successfully managing
the nation as a whole and in parts. This relationship between the national
government and the states was set up in the U.S. Constitution without
specifically mentioning the word federalism.
Furthermore, Article VI of the U.S. Constitution tells us that the national
government is supreme over the states. This simply means that the national
government will ultimately have the final say in matters of conflict between
the states and between the states and the national government.
Article IV (https://www.heritage.org/constitution/#!/articles/4/states) tells us
that there will be comity among the states. This means that the states have
to get along with each other by respecting their laws and people. In
Constitutional law, the Comity Clause refers to Article IV, § 2, Clause 2 of
the U.S. Constitution (also known as the Privileges and Immunities Clause),
which ensures that “The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.”1
The result of all of this is that the state governments and the national
government are all going to get along. That national government will take
care of the affairs of the nation as a whole according to the powers set out in
Article 1, Section 8, and the states are going to take care of their affairs as
understood by the Tenth Amendment.
The question now concerns local governments.
Since the U.S. Constitution is silent on local government, it is understood
that states will have power over local governments. This arrangement is
referred to as a unitary government. In other words, the state government
has the central authority and power over all local governments within the
state even though local governments may have some degree of autonomy.
For example, a city can make its own laws and enforce them as long as
they do not violate the state constitution. In Texas, there are cities, counties,
and special districts. You will learn more about these in another chapter.
The key thing to remember here is that we don't exist in a vacuum. In other
words, the policies of the national government regarding trade can impact
states, and the policies of states can impact cities. Since this nation of ours
is designed as a system, all of the parts have to work together. Often times
that does not happen.
The positive and negative actions of the national government tend to roll
downhill and take the states and local governments with them. For example,
proponents for enforcement of federal immigration laws argue that lack of
enforcement creates 1) problems for states, which then have to provide
social welfare services to illegal immigrants, and 2) problems for local
governments, who have to deal with crime and education.
Each level or layer of government has its own constituencies. This means
that the Houston has residents that are most concerned with what goes on
in Houston; however, they are not at all concerned about what goes on in
Dallas. City officials of each community must respond to the needs of their
constituents. Residents of Texas probably don't care much what people do
or think in Maine. Therefore, the elected officials in Texas must consider the
needs of residents of Texas. A member of Congress should be concerned
with the affairs of their state and district; however, districts might cut through
multiple local governments and not all people in the state see the needs of
the state the same way. As a result, members of Congress may have to
think about what is good for the nation as a whole rather than its parts. The
product of all of these elected officials responding to the needs of their
respective constituencies produces the policies we see today. That is one of
the reasons there is so much political conflict. The good news is that
compromise often comes from the conflict. That means we don't have to go
to war over our differences and we can debate them in a public forum. The
best ideas can sometimes win out over bad ideas. Regular elections
determine which ideas will get implemented.
References and Further Reading
1. Cornell Law School: Legal Information Institute. Comity
(https://www.law.cornell.edu/wex/comity). Accessed August 25, 2019.
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2.3 | The Evolution of Federalism
Learning Objectives
By the end of this section, you will be able to:
Analyze the state and federal powers in a constitutional context
Federalism is a system of government that creates two relatively
autonomous levels of government, each possessing authority granted to
them by the national constitution. Federal systems like the one in the United
States are different from unitary systems, which concentrate authority in the
national government, and from confederations, which concentrate authority
in subnational governments.
The Constitution sketches a federal framework that aims to balance the
forces of decentralized and centralized governance in general terms; it does
not flesh out standard operating procedures that say precisely how the
states and federal governments are to handle all policy contingencies
imaginable. Therefore, officials at the state and national levels have had
some room to maneuver as they operate within the Constitution’s federal
design. This has led to changes in the configuration of federalism over time,
changes corresponding to different historical phases that capture
distinct balances between state and federal authority.
The U.S. Constitution allocates powers to the states and federal
government, structures the relationship between these two levels of
government, and guides state-to-state relationships. Federal, state, and
local governments rely on different sources of revenue to enable them to
fulfill their public responsibilities.
The Struggle Between National Power and State Power
As George Washington’s secretary of the treasury from 1789 to 1795,
Alexander Hamilton championed legislative efforts to create a publicly
chartered bank. For Hamilton, the establishment of the Bank of the United
States was fully within Congress’s authority, and he hoped the bank would
foster economic development, print and circulate paper money, and
provide loans to the government. Although Thomas Jefferson,
Washington’s secretary of state, staunchly opposed Hamilton’s plan on the
constitutional grounds that the national government had no authority to
create such an instrument, Hamilton managed to convince the reluctant
president to sign the legislation.1
When the bank’s charter expired in 1811, Jeffersonian Democratic-
Republicans prevailed in blocking its renewal. However, the fiscal
hardships that plagued the government during the War of 1812, coupled
with the fragility of the country’s financial system, convinced Congress and
then-president James Madison to create the Second Bank of the United
States in 1816. Many states rejected the Second Bank, arguing that the
national government was infringing upon the states’ constitutional
jurisdiction.
A political showdown between Maryland and the national government
emerged when James McCulloch, an agent for the Baltimore branch of the
Second Bank, refused to pay a tax that Maryland had imposed on all out- of-
state chartered banks. The standoff raised two constitutional questions: Did
Congress have the authority to charter a national bank? Were states
allowed to tax federal property? In McCulloch v. Maryland, Chief Justice
John Marshall argued that Congress could create a national bank even
though the Constitution did not expressly authorize it.2
Under the necessary and proper clause of Article I, Section 8, the Supreme
Court asserted that Congress could establish “all means which are
appropriate” to fulfill “the legitimate ends” of the Constitution. In other words,
the bank was an appropriate instrument that enabled the national
government to carry out several of its enumerated powers, such as
regulating interstate commerce, collecting taxes, and borrowing money.
Figure 2.13. Chief Justice John Marshall, shown here in a portrait by Henry Inman, was best known for the principle of judicial review established in Marbury v. Madison (1803), which reinforced the influence and independence of the judiciary branch of the U.S. government.
This ruling established the doctrine of implied powers, granting
Congress a vast source of discretionary power to achieve its constitutional
responsibilities. The Supreme Court also sided with the federal
government on the issue of whether states could tax federal property.
Under the supremacy clause of Article VI, legitimate national laws trump
conflicting state laws. As the court observed, “the government of the Union,
though limited in its powers, is supreme within its sphere of action and its
laws, when made in pursuance of the constitution, form the supreme law of
the land.” Maryland’s action violated national supremacy because “the
power to tax is the power to destroy.” This second ruling established the
principle of national supremacy, which prohibits states from meddling in the
lawful activities of the national government.
Defining the scope of national power was the subject of another landmark
Supreme Court decision in 1824. In Gibbons v. Ogden, the court had to
interpret the commerce clause of Article I, Section 8; specifically, it had to
determine whether the federal government had the sole authority to regulate
the licensing of steamboats operating between New York and New Jersey.3
Aaron Ogden, who had obtained an exclusive license from New York State
to operate steamboat ferries between New York City and New Jersey,
sued Thomas Gibbons, who was operating ferries along the same route
under a coasting license issued by the federal government. Gibbons lost in
New York state courts and appealed. Chief Justice Marshall delivered a
two- part ruling in favor of Gibbons that strengthened the power of the
national government. First, interstate commerce was interpreted broadly to
mean “commercial intercourse” among states, thus allowing Congress to
regulate navigation. Second, because the federal Licensing Act of 1793,
which regulated coastal commerce, was a constitutional exercise of
Congress’s authority under the commerce clause, federal law trumped the
New York State license-monopoly law that had granted Ogden an exclusive
steamboat operating license. As Marshall pointed out, “the acts of NewYork
must yield to the law of Congress.”4
Various states railed against the nationalization of power that had been
going on since the late 1700s. When President John Adams signed the
Sedition Act in 1798, which made it a crime to speak openly against the
government, the Kentucky and Virginia legislatures passed resolutions
declaring the act null on the grounds that they retained the discretion to
follow national laws. In effect, these resolutions articulated the legal
reasoning underpinning the doctrine of nullification—that states had the
right to reject national laws they deemed unconstitutional.5
A nullification crisis emerged in the 1830s over President Andrew
Jackson’s tariff acts of 1828 and 1832. Led by John Calhoun, President
Jackson’s vice president, nullifiers argued that high tariffs on imported
goods benefited northern manufacturing interests while disadvantaging
economies in the South. South Carolina passed an Ordinance of
Nullification declaring both tariff acts null and void and threatened to
leave the Union. The federal government responded by enacting the Force
Bill in 1833, authorizing President Jackson to use military force against
states that challenged federal tariff laws. The prospect of military action
coupled with the passage of the Compromise Tariff Act of 1833 (which
lowered tariffs over time) led South Carolina to back off, ending
thenullification crisis.
The ultimate showdown between national and state authority came during
the Civil War. Prior to the conflict, in Dred Scott v. Sandford, the Supreme
Court ruled that the national government lacked the authority to ban slavery
in the territories.6
But the election of President Abraham Lincoln in 1860 led eleven southern
states to secede from the United States because they believed the new
president would challenge the institution of slavery. What was initially a
conflict to preserve the Union became a conflict to end slavery when
Lincoln issued the Emancipation Proclamation in 1863, freeing all slaves
in the rebellious states. The defeat of the South had a huge impact on the
balance of power between the states and the national government in two
important ways. First, the Union victory put an end to the right of states to
secede and to challenge legitimate national laws. Second, Congress
imposed several conditions for readmitting former Confederate states into
the Union; among them was ratification of the Fourteenth and Fifteenth
Amendments. In sum, after the Civil War the power balance shifted
toward the national government, a movement that had begun several
decades before with McCulloch v. Maryland (1819) and Gibbons v.
Odgen (1824).
The period between 1819 and the 1860s demonstrated that the national
government sought to establish its role within the newly created federal
design, which in turn often provoked the states to resist as they sought to
protect their interests. With the exception of the Civil War, the Supreme
Court settled the power struggles between the states and national
government. From a historical perspective, the national supremacy principle
introduced during this period did not so much narrow the states’ scope of
constitutional authority as restrict their encroachment on national powers.7
Dual Federalism
The late 1870s ushered in a new phase in the evolution of U.S. federalism.
Under dual federalism, the states and national government exercise
exclusive authority in distinctly delineated spheres of jurisdiction. Like the
layers of a cake, the levels of government do not blend with one another but
rather are clearly defined. Two factors contributed to the emergence of this
conception of federalism. First, several Supreme Court rulings blocked
attempts by both state and federal governments to step outside their
jurisdictional boundaries. Second, the prevailing economic philosophy at the
time loathed government interference in the process of industrial
development.
Industrialization changed the socioeconomic landscape of the United
States. One of its adverse effects was the concentration of market power.
Because there was no national regulatory supervision to ensure fairness in
market practices, collusive behavior among powerful firms emerged in
several industries.8
To curtail widespread anti-competitive practices in the railroad industry,
Congress passed the Interstate Commerce Act in 1887, which created
the Interstate Commerce Commission. Three years later, national
regulatory capacity was broadened by the Sherman Antitrust Act of
1890, which made it illegal to monopolize or attempt to monopolize and
conspire in restraining commerce. In the early stages of industrial
capitalism, federal regulations were focused for the most part on
promoting market competition rather than on addressing the social
dislocations resulting from market operations, something the government
began to tackle in the 1930s.9
(https://www.google.com/url? q=https://courses.lumenlearning.com/austincctexasgovernment1/chap ter/the- evolution-of-federalism/%23rf- 027&sa=D&ust=1552679556437000)
Figure 2.14
Puck, a humor magazine published from 1871 to 1918, satirized political
issues of the day such as federal attempts to regulate commerce and
prevent monopolies. “‘Will you walk into my parlor?’ said the spider to the
fly” (a) by Udo Keppler depicts a spider labeled “Interstate Commerce
Commission” capturing a large fly in a web labeled “The Law” while
“Plague take it! Why doesn’t it stay down when I hit it?” (b), also drawn by
Keppler, shows President William Howard Taft and his attorney general,
George W. Wickersham, trying to beat a “Monopoly” into submission with a
stick labeled “Sherman Law.”
The new federal regulatory regime was dealt a legal blow early in its
existence. In 1895, in United States v. E. C. Knight, the Supreme Court
ruled that the national government lacked the authority to regulate
manufacturing.10
The case came about when the government, using its regulatory power
under the Sherman Act, attempted to override American Sugar’s purchase
of four sugar refineries, which would give the company a commanding
share of the industry. Distinguishing between commerce among states and
the production of goods, the court argued that the national government’s
regulatory authority applied only to commercial activities. If manufacturing
activities fell within the purview of the commerce clause of the Constitution,
then “comparatively little of business operations would be left for state
control,” the court argued.
In the late 1800s, some states attempted to regulate working conditions. For
example, New York State passed the Bakeshop Act in 1897, which
prohibited bakery employees from working more than sixty hours in a week.
In Lochner v. New York, the Supreme Court ruled this state regulation that
capped work hours unconstitutional, on the grounds that it violated the due
process clause of the Fourteenth Amendment.11
In other words, the right to sell and buy labor is a “liberty of the individual”
safeguarded by the Constitution, the court asserted. The federal government
also took up the issue of working conditions, but that case resulted in the
same outcome as in the Lochner case.12
Cooperative Federalism
The Great Depression of the 1930s brought economic hardships the nation
had never witnessed before. Between 1929 and 1933, the national
unemployment rate reached 25 percent, industrial output dropped by half,
stock market assets lost more than half their value, thousands of banks went
out of business, and the gross domestic product shrunk by one-quarter.13
Given the magnitude of the economic depression, there was pressure on
the national government to coordinate a robust national response along with
the states.
Al Capone's Soup kitchen in Chicago during the Great Depression
(1931)
Figure 2.15 A line outside a Chicago soup kitchen in 1931, in the midst of the Great Depression. The sign
above reads “Free Soup, Coffee, and Doughnuts for the Unemployed.” Image Credit: National Archives
(https://catalog.archives.gov/id/541927)
Cooperative federalism was born of necessity and lasted well into the
twentieth century as the national and state governments each found it
beneficial. Under this model, both levels of government coordinated their
actions to solve national problems, such as the Great Depression and the
civil rights struggle of the following decades. In contrast to dual federalism,
it erodes the jurisdictional boundaries between the states and national
government, leading to a blending of layers as in a marble cake. The era of
cooperative federalism contributed to the gradual incursion of national
authority into the jurisdictional domain of the states, as well as the
expansion of the national government’s power in concurrent policy areas.14
The New Deal programs President Franklin D. Roosevelt proposed as a
means to tackle the Great Depression ran afoul of the dual-federalism
mindset of the justices on the Supreme Court in the 1930s. The court
struck down key pillars of the New Deal—the National Industrial
Recovery Act and the Agricultural Adjustment Act, for example—on the
grounds that the federal government was operating in matters that were
within the purview of the states. The court’s obstructionist position
infuriated Roosevelt, leading him in 1937 to propose a court-packing plan
that would add one new justice for each one over the age of seventy, thus
allowing the president to make a maximum of six new appointments.
Before Congress took action on the proposal, the Supreme Court began
leaning in support of the New Deal as Chief Justice Charles Evans Hughes
and Justice Owen Roberts changed their view on federalism.15
In National Labor Relations Board (NLRB) v. Jones and Laughlin
Steel,16 for instance, the Supreme Court ruled the National Labor
Relations Act of 1935 constitutional, asserting that Congress can use its
authority under the commerce clause to regulate both manufacturing
activities and labor-management relations. The New Deal changed the
relationship Americans had with the national government. Before the Great
Depression, the government offered little in terms of financial aid, social
benefits, and economic rights. After the New Deal, it provided old-age
pensions (Social Security), unemployment insurance, agricultural
subsidies, protections for organizing in the workplace, and a variety of other
public services created during Roosevelt’s administration.
In the 1960s, President Lyndon Johnson’s administration expanded the
national government’s role in society even more. Medicaid (which provides
medical assistance to the indigent), Medicare (which provides health
insurance to the elderly and disabled), and school nutrition programs were
created. The Elementary and Secondary Education Act (1965), the
Higher Education Act (1965), and the Head Start preschool program
(1965) were established to expand educational opportunities and equality.
The Clean Air Act (1965), the Highway Safety Act (1966), and the Fair
Packaging and Labeling Act (1966) promoted environmental and
consumer protection. Finally, laws were passed to promote urban renewal,
public housing development, and affordable housing. In addition to these
Great Society programs, the Civil Rights Act (1964) and the Voting Rights
Act (1965) gave the federal government effective tools to promote civil
rights equality across the country.
Figure 2.16 Lady Bird Johnson, the First Lady, reads to students enrolled in Head Start (a) at the Kemper School in Washington, DC, on March 19, 1966. President Obama visits a Head Start classroom (b) in Lawrence, Kansas, on January 22, 2015.
While the era of cooperative federalism witnessed a broadening of federal
powers in concurrent and state policy domains, it is also the era of a
deepening coordination between the states and the federal government in
Washington. Nowhere is this clearer than with respect to the social welfare
and social insurance programs created during the New Deal and Great
Society eras, most of which are administered by both state and federal
authorities and are jointly funded. The Social Security Act of 1935, which
created federal subsidies for state-administered programs for the elderly;
people with handicaps; dependent mothers; and children, gave state and
local officials wide discretion over eligibility and benefit levels. The
unemployment insurance program, also created by the Social Security Act,
requires states to provide jobless benefits, but it allows them significant
latitude to decide the level of tax to impose on businesses in order to fund
the program as well as the duration and replacement rate of unemployment
benefits. A similar multilevel division of labor governs Medicaid and
Children’s Health Insurance.17
Thus, the era of cooperative federalism left two lasting attributes on
federalism in the United States. First, a nationalization of politics emerged
as a result of federal legislative activism aimed at addressing national
problems such as marketplace inefficiencies, social and political inequality,
and poverty. The nationalization process expanded the size of the federal
administrative apparatus and increased the flow of federal grants to state
and local authorities, which have helped offset the financial costs of
maintaining a host of New Deal- and Great Society–era programs. The
second lasting attribute is the flexibility that states and local authorities were
given in the implementation of federal social welfare programs. One
consequence of administrative flexibility, however, is that it has led to cross-
state differences in the levels of benefits and coverage.18
New Federalism
During the administrations of Presidents Richard Nixon (1969–1974) and
Ronald Reagan (1981–1989), attempts were made to reverse the process
of nationalization—that is, to restore states’ prominence in policy areas into
which the federal government had moved in the past. New federalism is
premised on the idea that the decentralization of policies enhances
administrative efficiency, reduces overall public spending, and improves
policy outcomes. During Nixon’s administration, general revenue sharing
programs were created that distributed funds to the state and local
governments with minimal restrictions on how the money was spent. The
election of Ronald Reagan heralded the advent of a “devolution revolution”
in U.S. federalism, in which the president pledged to return authority to the
states according to the Constitution. In the Omnibus Budget
Reconciliation Act of 1981, congressional leaders together with President
Reagan consolidated numerous federal grant programs related to social
welfare and reformulated them in order to give state and local
administrators greater discretion in using federal funds.19
However, Reagan’s track record in promoting new federalism was
inconsistent. This was partly due to the fact that the president’s
devolution agenda met some opposition from Democrats in
Congress, moderate Republicans, and interest groups, preventing
him from making further advances on that front. For example, his
efforts to completely devolve Aid to Families With Dependent
Children (a New Deal-era program) and food stamps (a Great
Society-era program) to the states were rejected by members of
Congress, who feared states would underfund both programs, and
by members of the National Governors’ Association, who believed
the proposal would be too costly for states. Reagan terminated
general revenue sharing in 1986.20
(https://www.google.com/url?q=https://courses.lumenlearning.
com/austincctexasgovernment1/chapter/the- evolution-of-
federalism/%23rf-038&sa=D&ust=1552679556451000)
Several Supreme Court rulings also promoted new federalism by
hemming in the scope of the national government’s power,
especially under the commerce clause. For example, in United
States v. Lopez, the court struck down the Gun-Free School
Zones Act of 1990, which banned gun possession in school
zones.21
It argued that the regulation in question did not “substantively affect
interstate commerce.” The ruling ended a nearly sixty-year period in which
the court had used a broad interpretation of the commerce clause that by the
1960s allowed it to regulate numerous local commercial activities.22
However, many would say that the years since the 9/11 attacks have
swung the pendulum back in the direction of central federal power. The
creation of the Department of Homeland Security federalized disaster
response power in Washington, and the Transportation Security
Administration was created to federalize airport security. Broad new
federal policies and mandates have also been carried out in the form of the
Faith-Based Initiative and No Child Left Behind (during the George W.
Bush administration) and the Affordable Care Act (during Barack
Obama’s administration).
COOPERATIVE FEDERALISM VERSUS NEW FEDERALISM Morton Grodzins coined the cake analogy of federalism in the
1950s while conducting research on the evolution of American
federalism. Until then most scholars had thought of federalism as
a layer cake, but according to Grodzins the 1930s ushered in
“marble-cake federalism”: “The American form of government is
often, but erroneously, symbolized by a three-layer cake. A far
more accurate image is the rainbow or marble cake, characterized
by an inseparable mingling of differently colored ingredients, the
colors appearing in vertical and diagonal strands and unexpected
whirls. As colors are mixed in the marble cake, so functions are
mixed in the American federal system.”[23]
(https://courses.lumenlearning.com/austincctexasgovernment1/chapter/the-
evolution-of-federalism/#footnote-36-23)
Figure 5. Morton Grodzins, a professor of political science at the University of Chicago, coined
the expression “marble-cake federalism” in the 1950s to explain the evolution of federalism in
the United States.
Cooperative federalism has several merits:
• Because state and local governments have varying fiscal capacities,
the national government’s involvement in state activities such as
education, health, and social welfare is necessary to ensure some
degree of uniformity in the provision of public services to citizens in
richer and poorer states.
• The problem of collective action, which dissuades state and local
authorities from raising regulatory standards for fear they will be
disadvantaged as others lower theirs, is resolved by requiring state
and local authorities to meet minimum federal standards (e.g.,
minimum wage and air quality).
• Federal assistance is necessary to ensure state and local
programs (e.g., water and air pollution controls) that
generate positive externalities are maintained. For
example, one state’s environmental regulations impose
higher fuel prices on its residents, but the externality of the
cleaner air they produce benefits neighboring states.
Without the federal government’s support, this state and
others like it would underfund such programs.
New federalism has advantages as well:
• Because there are economic, demographic, social, and
geographical differences among states, one-size-fits-all
features of federal laws are suboptimal. Decentralization
accommodates the diversity that exists across states.
• By virtue of being closer to citizens, state and local
authorities are better than federal agencies at discerning
the public’s needs.
• Decentralized federalism fosters a marketplace of
innovative policy ideas as states compete against each
other to minimize administrative costs and maximize policy
output.
Federalism in the United States has gone through several phases of
evolution during which the relationship between the federal and state
governments has varied. In the era of dual federalism, both levels of
government stayed within their own jurisdictional spheres. During the era of
cooperative federalism, the federal government became active in policy
areas previously handled by the states. The 1970s ushered in an era of
new federalism and attempts to decentralize policy management.
References and Further Reading
1. The Lehrman Institute. “The Founding Trio: Washington, Hamilton
and Jefferson
(http://lehrmaninstitute.org/history/FoundingTrio.asp).”
2. McCulloch v. Maryland, 17 U.S. 316 (1819).
3. Gibbons v. Ogden, 22 U.S. 1 (1824).
4. Gibbons v. Ogden, 22 U.S. 1 (1824).
5. W. Kirk Wood. 2008. Nullification, A Constitutional History, 1776–
1833. Lanham, MD: University Press of America.
6. Dred Scott v. Sandford, 60 U.S. 393 (1857).
7. Joseph R. Marbach, Troy E. Smith, and Ellis Katz. 2005.
Federalism in America: An Encyclopedia. Westport, CT:
Greenwood Publishing.
8. Marc Allen Eisner. 2014. The American Political Economy:
Institutional Evolution of Market and State. New York: Routledge.
9. Eisner, The American Political Economy; Stephen Skowronek.
1982. Building a New American State: The Expansion of National
Administrative Capacities, 1877-1920.Cambridge, MA: Cambridge
University Press.
10. United States v. E. C. Knight, 156 U.S. 1 (1895).
11. Lochner v. New York, 198 U.S. 45 (1905).
12. Hammer v. Dagenhart, 247 U.S. 251 (1918).
13. Nicholas Crafts and Peter Fearon. 2010. “Lessons from the 1930s
Great Depression,” Oxford Review of Economic Policy 26: 286–
287; Gene Smiley. “The Concise Encyclopedia of Economics:
Great Depression
(http://www.econlib.org/library/Enc/GreatDepression.html).”
14. Marbach et al, Federalism in America: An Encyclopedia. ↵
(https://www.google.com/url?q=https://courses.lumenlearning.com/
austincctexasgovernment1/chapter/the-evolution-of-
federalism/%23return-footnote-36-
14&sa=D&ust=1552679556468000)
15. Jeff Shesol. 2010. Supreme Power: Franklin Roosevelt vs. The
Supreme Court. New York: W. W. Norton.
16. National Labor Relations Board (NLRB) v. Jones & Laughlin
Steel, 301 U.S. 1 (1937).
17. Lawrence R. Jacobs and Theda Skocpol. 2014. “Progressive
Federalism and the Contested Implemented of Obama’s Health
Reform,” In The Politics of Major Policy Reform in Postwar
America, eds. Jeffrey A. Jenkins and Sidney M. Milkis. New York:
Cambridge University Press.
18. R. Kent Weaver. 2000. Ending Welfare as We Know It.
Washington, DC: The Brookings Institution.
19. Enter your footnote content here.
20. Dilger, “Federal Grants to State and Local Governments,” 30–31.
21. United States v. Lopez, 514 U.S. 549 (1995).
22. See Printz v. The United States, 521 U.S. 898 (1997).
23. Morton Grodzins. 2004. “The Federal System.” In American
Government Readings and Cases, ed. P. Woll. New York: Pearson
Longman, 74–78.
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2.4 | Federalism: A Division of Powers
Learning Objective
By the end of this section, you will be able to:
Explain how the separation of powers and checks and balances
function in practice in Texas
Division of Powers
Modern democracies divide governmental power in two general ways; some,
like the United States, use a combination of both structures. The first and
more common mechanism shares power among three branches of
government—the legislature, the executive, and the judiciary. The second,
federalism, apportions power between two levels of government: national
and subnational. In the United States, the term federal government refers
to the government at the national level, while the term states refers to
governments at the subnational level.
Federalism Defined and Contrasted
Federalism is an institutional arrangement that creates two relatively
autonomous levels of government, each possessing the capacity to act
directly on behalf of the people with the authority granted to it by the national
constitution.1
Although today’s federal systems vary in design, five structural
characteristics are common to the United States and other federal systems
around the world, including Germany and Mexico.
First, all federal systems establish two levels of government, with both
levels being elected by the people and each level assigned different
functions. The national government is responsible for handling matters that
affect the country as a whole, for example, defending the nation against
foreign threats and promoting national economic prosperity. Subnational,
or state governments, are responsible for matters that lie within their
regions, which include ensuring the well-being of their people by
administering education, health care, public safety, and other public
services. By definition, a system like this requires that different levels of
government cooperate, because the institutions at each level form an
interacting network. In the U.S. federal system, all national matters are
handled by the federal government, which is led by the president and
members of Congress, all of whom are elected by voters across the
country. All matters at the subnational level are the responsibility of the fifty
states, each headed by an elected governor and legislature. Thus, there is
a separation of functions between the federal and state governments, and
voters choose the leader at each level.2
While each level of government is somewhat independent of the others, a
great deal of interaction occurs among them. In fact, the ability of the federal
and state governments to achieve their objectives often depends on the
cooperation of the other level of government. For example, the federal
government’s efforts to ensure homeland security are bolstered by the
involvement of law enforcement agents working at local and state levels. On
the other hand, the ability of states to provide their residents with public
education and health care is enhanced by the federal
government’s financial assistance.
The second characteristic common to all federal systems is a written
national constitution that cannot be changed without the substantial consent
of subnational governments. In the American federal system, the twenty-
seven amendments added to the Constitution since its adoption were the
result of an arduous process that required approval by two-thirds of both
houses of Congress and three-fourths of the states. The main advantage of
this supermajority requirement is that no changes to the Constitution can
occur unless there is broad support within Congress and among states. The
potential drawback is that numerous national amendment initiatives—such
as the Equal Rights Amendment (ERA), which aims to guarantee equal
rights regardless of sex—have failed because they cannot garner sufficient
consent among members of Congress or, in the case of the ERA, the states.
Some consider a ERA to be uncessasary due to the equal protection
afforded by the 14th Amendment.
Third, the constitutions of countries with federal systems formally allocate
legislative, judicial, and executive authority to the two levels of government
in such a way as to ensure each level some degree of autonomy from the
other. Under the U.S. Constitution, the president assumes executive power,
Congress exercises legislative powers, and the federal courts (e.g., U.S.
district courts, appellate courts, and the Supreme Court) assume judicial
powers. In each of the fifty states, a governor assumes executive authority,
a state legislature makes laws, and state-level courts (e.g., trial courts,
intermediate appellate courts, and supreme courts) possess judicial
authority.
Another common characteristic of federalism around the world is that
national courts commonly resolve disputes between levels and
departments of government. In the United States, conflicts between states
and the federal government are adjudicated by federal courts, with the U.S.
Supreme Court being the final arbiter. The resolution of such disputes can
preserve the autonomy of one level of government, as illustrated recently
when the Supreme Court ruled that states cannot interfere with the federal
government’s actions relating to immigration.3
In other instances, a Supreme Court ruling can erode that autonomy, as
demonstrated in the 1940s when, in United States v. Wrightwood Dairy
Co., the Court enabled the federal government to regulate commercial
activities that occurred within states, a function previously handled
exclusively by the states.4
Finally, subnational governments are always represented in the upper house
of the national legislature, enabling regional interests to influence national
lawmaking.5
In the American federal system, the U.S. Senate functions as a territorial
body by representing the fifty states: Each state elects two senators to
ensure equal representation regardless of state population differences.
Thus, federal laws are shaped in part by state interests, which senators
convey to the federal policymaking process.
Division of power can also occur via a unitary structure or confederation. In
contrast to federalism, a unitary system makes subnational governments
dependent on the national government, where significant authority is
concentrated. Before the late 1990s, the United Kingdom’s unitary system
was centralized to the extent that the national government held the most
important levers of power. Since then, power has been gradually
decentralized through a process of devolution, leading to the creation of
regional governments in Scotland, Wales, and Northern Ireland as well as
the delegation of specific responsibilities to them. Other democratic
countries with unitary systems, such as France, Japan, and Sweden, have
followed a similar path of decentralization.
Figure 2.17 There are three general systems of government—unitary systems, federations, and confederations—each of which allocates power differently. Image Credit:
In a confederation, authority is decentralized, and the central government’s
ability to act depends on the consent of the subnational governments. Under
the Articles of Confederation (the first constitution of the United States),
states were sovereign and powerful while the national government was
subordinate and weak. Because states were reluctant to give up any of
their power, the national government lacked authority in the face of
challenges such as servicing the war debt, ending commercial disputes
among states, negotiating trade agreements with other countries, and
addressing popular uprisings that were sweeping the country. As the brief
American experience with confederation clearly shows, the main drawback
with this system of government is that it maximizes regional self-rule at the
expense of effective national governance.
Federalism and the Constitution
The Constitution contains several provisions that direct the functioning of
U.S. federalism. Some delineate the scope of national and state power,
while others restrict it. The remaining provisions shape relationships among
the states and between the states and the federal government.
The enumerated powers of the national legislature are found in Article I,
Section 8. These powers define the jurisdictional boundaries within which
the federal government has authority. In seeking not to replay the problems
that plagued the young country under the Articles of Confederation, the
Constitution’s framers granted Congress specific powers that ensured its
authority over national and foreign affairs. To provide for the general welfare
of the populace, it can tax, borrow money, regulate interstate and foreign
commerce, and protect property rights, for example. To provide for the
common defense of the people, the federal government can raise and
support armies and declare war. Furthermore, national integration and
unity are fostered with the government’s powers over the coining of money,
naturalization, postal services, and other responsibilities.
The last clause of Article I, Section 8, commonly referred to as the elastic
clause or the necessary and proper cause, enables Congress “to make all
Laws which shall be necessary and proper for carrying” out its constitutional
responsibilities. While the enumerated powers define the policy areas in
which the national government has authority, the elastic clause allows it to
create the legal means to fulfill those responsibilities.
However, the open-ended construction of this clause has enabled the
national government to expand its authority beyond what is specified in the
Constitution, a development also motivated by the expansive interpretation
of the commerce clause, which empowers the federal government to
regulate interstate economic transactions.
The powers of the state governments were never listed in the original
Constitution. The consensus among the framers was that states would retain
any powers not prohibited by the Constitution or delegated to the national
government.6
However, when it came time to ratify the Constitution, a number of states
requested that an amendment be added explicitly identifying the reserved
powers of the states. What these Anti-Federalists sought was further
assurance that the national government’s capacity to act directly on behalf
of the people would be restricted, which the first ten amendments (Bill of
Rights) provided. The Tenth Amendment affirms the states’ reserved
powers: “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.” Indeed, state constitutions had bills of rights, which the first
Congress used as the source for the first ten amendments to the
Constitution.
Some of the states’ reserved powers are no longer exclusively within state
domain, however. For example, since the 1940s, the federal government
has also engaged in administering health, safety, income security,
education, and welfare to state residents. The boundary between intrastate
and interstate commerce has become indefinable as a result of broad
interpretation of the commerce clause. Shared and overlapping powers
have become an integral part of contemporary U.S. federalism.
These concurrent powers range from taxing, borrowing, and making and
enforcing laws to establishing court systems.7
Article I, Sections 9 and 10, along with several constitutional amendments,
lay out the restrictions on federal and state authority. The most important
restriction Section 9 places on the national government prevents measures
that cause the deprivation of personal liberty. Specifically, the government
cannot suspend the writ of habeas corpus, which enables someone in
custody to petition a judge to determine whether that person’s detention is
legal; pass a bill of attainder, a legislative action declaring someone guilty
without a trial; or enact an ex post facto law, which criminalizes an act
retroactively. The Bill of Rights affirms and expands these constitutional
restrictions, ensuring that the government cannot encroach on personal
freedoms.
Figure 2.18 Constitutional powers and responsibilities are divided between the U.S. federal and state governments. The two levels of government also share concurrent powers. Image Credit:
The states are also constrained by the Constitution. Article I, Section 10,
prohibits the states from entering into treaties with other countries, coining
money, and levying taxes on imports and exports. Like the federal
government, the states cannot violate personal freedoms by suspending the
writ of habeas corpus, passing bills of attainder, or enacting ex post facto
laws. Furthermore, the Fourteenth Amendment, ratified in 1868, prohibits
the states from denying citizens the rights to which they are entitled by the
Constitution, due process of law, or the equal protection of the laws. Lastly,
three civil rights amendments—the Fifteenth, Nineteenth, and Twenty-
Sixth—prevent both the states and the federal government from abridging
citizens’ right to vote based on race, sex, and age. This topic remains
controversial because states have not always ensured equal protection.
The supremacy clause in Article VI of the Constitution regulates
relationships between the federal and state governments by declaring that
the Constitution and federal law are the supreme law of the land. This
means that if a state law clashes with a federal law found to be within the
national government’s constitutional authority, the federal law prevails. The
intent of the supremacy clause is not to subordinate the states to the
federal government; rather, it affirms that one body of laws binds the
country. In fact, all national and state government officials are bound by
oath to uphold the Constitution regardless of the offices they hold. Yet
enforcement is not always that simple. In the case of marijuana use, which
the federal government defines to be illegal, twenty-three states and the
District of Columbia have nevertheless established medical marijuana
laws, others have decriminalized its recreational use, and four states have
completely legalized it. The federal government could act in this area if it
wanted to. For example, in addition to the legalization issue, there is the
question of how to treat the money from marijuana sales, which the
national government designates as drug money and regulates under laws
regarding its deposit in banks.
Various constitutional provisions govern state-to-state relations. Article IV,
Section 1, referred to as the full faith and credit clause or the comity
clause, requires the states to accept court decisions, public acts, and
contracts of other states. Thus, an adoption certificate or driver’s license
issued in one state is valid in any other state. The movement for marriage
equality has put the full faith and credit clause to the test in recent decades.
In light of Baehr v. Lewin, a 1993 ruling in which the Hawaii Supreme Court
asserted that the state’s ban on same-sex marriage was unconstitutional, a
number of states became worried that they would be required to recognize
those marriage certificates.8
To address this concern, Congress passed and President Clinton signed the
Defense of Marriage Act (DOMA) in 1996. The law declared that “No state
(or other political subdivision within the United States) need recognize a
marriage between persons of the same sex, even if the marriage was
concluded or recognized in another state.” The law also barred federal
benefits for same-sex partners.
DOMA clearly made the topic a state matter. It denoted a choice for states,
which led many states to take up the policy issue of marriage equality.
Scores of states considered legislation and ballot initiatives on the
question. The federal courts took up the issue with zeal after the U.S.
Supreme Court in United States v. Windsor struck down the part of
DOMA that outlawed federal benefits.9
That move was followed by upwards of forty federal court decisions that
upheld marriage equality in particular states. In 2014, the Supreme Court
decided not to hear several key case appeals from a variety of states, all of
which were brought by opponents of marriage equality who had lost in the
federal courts. The outcome of not hearing these cases was that federal
court decisions in four states were affirmed, which, when added to other
states in the same federal circuit districts, brought the total number of states
permitting same-sex marriage to thirty.10
Then, in 2015, the Obergefell v. Hodges case had a sweeping effect
when the Supreme Court clearly identified a constitutional right to marriage
based on the Fourteenth Amendment.11
The privileges and immunities clause of Article IV asserts that states are
prohibited from discriminating against out-of-staters by denying them such
guarantees as access to courts, legal protection, property rights, and travel
rights. The clause has not been interpreted to mean there cannot be any
difference in the way a state treats residents and non-residents. For
example, individuals cannot vote in a state in which they do not reside,
tuition at state universities is higher for out-of-state residents, and in some
cases individuals who have recently become residents of a state must wait a
certain amount of time to be eligible for social welfare benefits. Another
constitutional provision prohibits states from establishing trade restrictions
on goods produced in other states. However, a state can tax out-of-state
goods sold within its borders as long as state-made goods are taxed at the
same level.
The Distribution of Finances
Federal, state, and local governments depend on different sources of
revenue to finance their annual expenditures. In 2014, total revenue (or
receipts) reached $3.2 trillion for the federal government, $1.7 trillion for the
states, and $1.2 trillion for local governments.12
Two important developments have fundamentally changed the allocation of
revenue since the early 1900s. First, the ratification of the Sixteenth
Amendment in 1913 authorized Congress to impose income taxes without
apportioning it among the states on the basis of population, a burdensome
provision that Article I, Section 9, had imposed on the national
government.13
With this change, the federal government’s ability to raise revenue
significantly increased and so did its ability to spend.
The second development regulates federal grants, that is, transfers of
federal money to state and local governments. These transfers, which do not
have to be repaid, are designed to support the activities of the recipient
governments, but also to encourage them to pursue federal policy objectives
they might not otherwise adopt. The expansion of the federal government’s
spending power has enabled it to transfer more grant money to lower
government levels, which has accounted for an increasing share of their
total revenue.14
The sources of revenue for federal, state, and local governments are
detailed in Figure 3. Although the data reflect 2013 results, the patterns we
see in the figure give us a good idea of how governments have funded
their activities in recent years. For the federal government, 47 percent of
2013 revenue came from individual income taxes and 34 percent from
payroll taxes, which combine Social Security tax and Medicare tax.
Figure 2.19 As these charts indicate, federal, state, and local governments raise revenue from different sources.
For state governments, 50 percent of revenue came from taxes, while 30
percent consisted of federal grants. Sales tax—which includes taxes on
purchased food, clothing, alcohol, amusements, insurance, motor fuels,
tobacco products, and public utilities, for example—accounted for about 47
percent of total tax revenue, and individual income taxes represented
roughly 35 percent. Revenue from service charges (e.g., tuition revenue
from public universities and fees for hospital-related services) accounted for
11 percent.
The tax structure of states varies. Alaska, Florida, Nevada, South Dakota,
Texas, Washington, and Wyoming do not have individual income taxes.
Figure 4 illustrates yet another difference: Fuel tax as a percentage of total
tax revenue is much higher in South Dakota and West Virginia than in
Alaska and Hawaii. However, most states have done little to prevent the
erosion of the fuel tax’s share of their total tax revenue between 2007 and
2014 (notice that for many states the dark blue dots for 2014 are to the left
of the light blue numbers for 2007). Fuel tax revenue is typically used to
finance state highway transportation projects, although some states do use it
to fund non-transportation projects.
Figure 2.20. The fuel tax as a percentage of tax revenue varies greatly across states.
The most important sources of revenue for local governments in 2013 were
taxes, federal and state grants, and service charges. For local
governments the property tax, a levy on residential and commercial real
estate, was the most important source of tax revenue, accounting for about
74 percent of the total. Federal and state grants accounted for 37 percent of
local government revenue. State grants made up 87 percent of total local
grants. Charges for hospital-related services, sewage and solid-waste
management, public city university tuition, and airport services are
important sources of general revenue for local governments.
Intergovernmental grants are important sources of revenue for both state
and local governments. When economic times are good, such grants help
states, cities, municipalities, and townships carry out their regular functions.
However, during hard economic times, such as the Great Recession of
2007–2009, intergovernmental transfers provide much- needed fiscal relief
as the revenue streams of state and local governments dry up. During the
Great Recession, tax receipts dropped as business activities slowed,
consumer spending dropped, and family incomes decreased due to layoffs
or work-hour reductions. To offset the adverse effects of the recession on
the states and local governments, federal grants increased by roughly 33
percent during this period.15
In 2009, President Obama signed the American Recovery and
Reinvestment Act (ARRA), which provided immediate economic-crisis
management assistance such as helping local and state economies ride out
the Great Recession and shoring up the country’s banking sector. A total of
$274.7 billion in grants, contracts, and loans was allocated to state and local
governments under the ARRA.16
The bulk of the stimulus funds apportioned to state and local governments
was used to create and protect existing jobs through public works projects
and to fund various public welfare programs such as unemployment
insurance.17
How are the revenues generated by our tax dollars, fees we pay to use
public services and obtain licenses, and monies from other sources put to
use by the different levels of government? A good starting point to gain
insight on this question as it relates to the federal government is Article I,
Section 8, of the Constitution. Recall, for instance, that the Constitution
assigns the federal government various powers that allow it to affect the
nation as a whole. A look at the federal budget in 2014 shows that the three
largest spending categories were Social Security (24 percent of the total
budget); Medicare, Medicaid, the Children’s Health Insurance Program, and
marketplace subsidies under the Affordable Care Act (24 percent); and
defense and international security assistance (18 percent). The rest was
divided among categories such as safety net programs (11 percent),
including the Earned Income Tax Credit and Child Tax Credit,
unemployment insurance, food stamps, and other low-income assistance
programs; interest on federal debt (7 percent); benefits for federal
retireesand veterans (8 percent); and transportation infrastructure (3
percent).18
It is clear from the 2014 federal budget that providing for the general welfare
and national defense consumes much of the government’s resources—not
just its revenue, but also its administrative capacity and labor power.
Figure 2.21. Approximately two-thirds of the federal budget is spent in just three categories: Social Security, health care and health insurance programs, and defense.
Figure 2.22 compares recent spending activities of local and state governments.
Educational expenditures constitute a major category for both. However, whereas the
states spend comparatively more than local governments on university education,
local governments spend even more on elementary and secondary education. That
said, nationwide, state funding for public higher education has declined as a
percentage of university revenues; this is primarily because states have taken in
lower amounts of sales taxes as internet commerce has increased. Local
governments allocate more funds to police protection, fire protection, housing and
community development, and public utilities such as water, sewage, and electricity.
And while state governments allocate comparatively more funds to public welfare
programs, such as health care, income support, and highways, both local and state
governments spend roughly similar amounts on judicial and legal services and
correctional services.
Figure 2.22 This list includes some of the largest expenditure items for state and local governments.
References and Further Reading
1. See John Kincaid. 1975. “Federalism.” In Civitas: A Framework for
Civil Education, eds. Charles Quigley and Charles Bahmueller.
Calabasas, CA: Center for Civic Education, 391–392; William S.
Riker. 1975. “Federalism.” In Handbook of Political Science, eds.
Fred Greenstein and Nelson Polsby. Reading, MA: Addison-Wesley,
93–172.
2. Garry Willis, ed. 1982. The Federalist Papers by Alexander
Hamilton, James Madison and John Jay. New York: Bantam
Books, 237.
3. Arizona v. United States, 567 U.S. (2012).
4. United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942).
5. Ronald L. Watts. 1999. Comparing Federal Systems, 2nd ed.
Kingston, Ontario: McGill-Queen’s University, 6–7; Daniel J.
Elazar. 1992. Federal Systems of the
World: A Handbook of Federal, Confederal and Autonomy
Arrangements. Harlow, Essex: Longman Current Affairs.
6. Jack Rakove. 2007. James Madison and the Creation of the
American Republic. New York: Pearson; Samuel H. Beer. 1998. To
Make a Nation: The Rediscovery of American Federalism.
Cambridge, MA: Harvard University Press.
7. Elton E. Richter. 1929. “Exclusive and Concurrent Powers in
the Federal Constitution
(http://scholarship.law.nd.edu/cgi/viewcontent.cgi?
article=4416&context=ndlr),” Notre Dame Law Review 4, No.
8: 513–542.
8. Baehr v. Lewin. 1993. 74 Haw. 530.
9. United States v. Windsor, 570 U.S. (2013).
10. Adam Liptak, “Supreme Court Delivers Tacit Win to Gay
Marriage,” New York Times, 6 October, 2014.
11. Obergefell v. Hodges, 576 U.S. (2015).
12. Data reported by
http://www.usgovernmentrevenue.com/federal_revenue
(https://www.google.com/url?
q=http://www.usgovernmentrevenue.com/federal_revenue&sa=D&
ust=1552679317723000).
State and local government figures are estimated.
13. Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895).
14. See Robert Jay Dilger, “Federal Grants to State and Local
Governments: A Historical Perspective on Contemporary Issues,”
Congressional Research Service, Report 7-5700, 5 March 2015.
15. Jeffrey L. Barnett et al. 2014. 2012 Census of Governments:
Finance-State and Local Government Summary Report, Appendix
Table A-1. December 17.
Washington, DC: United States Census Bureau, 2.
16. Dilger, “Federal Grants to State and Local Governments,” 4.
17. James Feyrer and Bruce Sacerdote. 2011. “Did the Stimulus
Stimulate? Real Time Estimates of the Effects of the American
Recovery and Reinvestment Act” (Working Paper No. 16759
(http://www.nber.org/papers/w16759.pdf)), Cambridge, MA: National
Bureau of Economic Research.
18. . Data reported by the Center on Budget and Policy Priorities. 2015.
“Policy Basics: Where Do Our Federal Tax Dollars Go?
(http://www.cbpp.org/research/policy- basics-where-do-our-federal-
tax-dollars-go)” March 11.
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Chapter 2 Glossary
The Texas State Constitution and Federalism
bill of attainder: a legislative action declaring someone guilty
without a trial; prohibited under the Constitution
bill of rights: (sometimes called a declaration of rights or a
charter of rights) a list of the most important rights to the
citizens. The purpose is to protect those rights against
infringement from public officials and private citizens.
coercive federalism: federal policies that force states to change
their policies
to achieve national goals
comity: the legal principle that political entities (such as states,
nations, or courts from different jurisdictions) will mutually
recognize each other’s legislative, executive, and judicial acts.
The underlying notion is that different jurisdictions will
reciprocate each other’s judgments out of deference,
mutuality, and respect.1
concurrent powers: shared state and federal powers that range
from taxing, borrowing, and making and enforcing laws to
establishing court systems
Confederacy: The Confederate States of America, those
southern states that seceded from the United States in late
1860 and 1861 and argued that the power of the states was
more important the power of the central government
constituent: a person living in the district from which an official
is elected
constitution: the legal structure of a government which
establishes its power and authority, as well as the limits on that
power
cooperative federalism: a type of federalism existing since the
New Deal era in which grants-in-aid have been used to
encourage states and localities (without commanding them) to
pursue nationally defined goals; also known as
"intergovernmental cooperation"
devolution: a process in which powers from the central
government in a unitary system are delegated to subnational
units
dual federalism: the system of government that prevailed in the
U.S. from 1789 to 1937, during which most fundamental
governmental powers were strictly separated between the
federal and state governments
elastic clause: the last clause of Article I, Section 8, which
enables the national government “to make all Laws which shall
be necessary and proper for carrying” out all its constitutional
responsibilities
ex post facto law: a law that criminalizes an act retroactively;
prohibited under the Constitution
federalism: an institutional arrangement that creates two
relatively autonomous levels of government, each possessing
the capacity to act directly on the people with authority granted
by the national constitution.
full faith and credit: clause found in Article IV, Section 1, of the
Constitution, this clause requires states to accept court
decisions, public acts, and contracts of other states; also
referred to as the comity provision
line-item veto: In United States government, the line-item veto,
or partial veto, is the power of executive authority to nullify or
cancel specific provisions of a bill, usually a budget
appropriations bill, without vetoing the entire legislative
package.
poll tax: a state tax imposed on voters as a prerequisite for
voting; poll taxes were determined unconstitutional in national
elections by the Twenty-Fourth Amendment, and in state
elections by the Supreme Court in 1966
privileges and immunities clause: found in Article IV, Section 2,
of the Constitution, this clause prohibits states from
discriminating against out-of- staters by denying such
guarantees as access to courts, legal protection, and property
and travel rights
separation of powers: the division of governmental power
among several institutions that must cooperate in decision
making.
states: governments at the subnational level
suffrage: term referring to the right to vote
unitary system: a centralized system of government in which
the subnational government is dependent on the central
government, where substantial authority is concentrated
writ of habeas corpus: a petition that enables someone in
custody to petition a judge to determine whether that person’s
detention is legal
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