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Chapter 2

The Texas Constitution

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Learning Objectives

2.1 Identify the functions of a constitution and place the Texas Constitution in a national comparative context.

2.2 Describe the historical influences, similarities, and differences among Texas’s first six constitutions.

2.3 Discuss the origins of the Constitution of 1876, its general principles, and the weaknesses and restrictions it still imposes on state government today.

2.4 Contrast the relative ease and frequency of the constitutional amendment process with the difficulty of enacting more fundamental change through the constitutional convention process.

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Constitutionalism (1 of 2)

Constitutions Have Multiple Functions.

Define the principles of a society

State the political objectives of a society

Define the relationship between the government and the governed

Set limits on what each group can do

Resolve conflict through institutional arrangements

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Table 2-1 The Seven Texas Constitutions

The Seven Texas Constitutions
1827: Constitution of Coahuila y Tejas
Adopted in 1827 while Texas was still part of Mexico, this constitution recognized Texas as a Mexican state with Coahuila.
1836: Constitution of the Republic
The constitution of March 16, 1836, declared independence from Mexico and constituted Texas as an independent republic.
1845: Constitution of 1845
Texas was admitted to the Union under this constitution.
1861: Civil War Constitution
After the state seceded from the Union and joined the Confederacy in 1861, Texans adopted this constitution.
1866: Constitution of 1866
This was a short-lived constitution under which Texas sought to be readmitted to the Union after the Civil War and before the Radical Reconstructionists took control of the U.S. Congress.
1869: Reconstruction Constitution
Power was centralized in the state government, and local governments were significantly weakened under this constitution, which reflected the sentiments of Radical Reconstructionists, not of most Texans.
1876: Texas Constitution
Adopted at the end of Reconstruction and amended 491 times since, this is the constitution under which Texas currently functions. Highly restrictive and antigovernment, this constitution places strict limitations on the powers of the governor, the legislature, and other state officials.
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Table 2-2 Comparison of the Texas Constitution and the U.S. Constitution (1of 2)

Provisions U.S. Constitution Texas Constitution
General principles Popular sovereignty Popular sovereignty
Blank cell Limited government Limited government
Blank cell Representative government Representative government
Blank cell Social contract theory Social contract theory
Blank cell Separation of powers Separation of powers
Context of adoption Reaction to weakness of Articles of Confederation—strengthened national powers significantly Post-Reconstruction—designed to limit powers of government
Style General principles stated in broad terms Detailed provisions
Length 7,000 words 90,000-plus words
Date of implementation 1789 1871
Amendments 27 491
Amendment process Difficult Relatively easy
Adaptation to change Moderately easy through interpretation Difficult; often requires constitutional amendments
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Table 2-2 Comparison of the Texas Constitution and the U.S. Constitution (2 of 2)

Provisions U.S. Constitution Texas Constitution
Bill of rights Amendments to the Constitution—adopted in 1791 Article 1 of the Constitution of 1876
Structure of government Separation of powers (with a unified executive) based on provisions of Articles 1, 2, 3 Separation of powers (with plural executive) defined by Article 2
Legislature Bicameral Bicameral
Executive Single or unified president Plural executive
Judiciary Creation of one Supreme Court and other courts to be created by the Congress Detailed provisions creating two appellate courts of last resort and other state courts
Distribution of powers Federal Unitary
Public policy Little reference to policy Detailed policy provisions
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Constitutionalism (2 of 2)

A Well-Constructed Constitution Should

Be brief.

Provide general principles rather than specific legislative provisions

Create a basic government framework

7,000 words (U.S.) vs. 90,000 words (Texas)

Grant authority to specific institutions.

Provide for orderly change.

U.S. Constitution amended 27 times

Texas Constitution amended 491 times

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The Constitutional Legacy (1 of 6)

The Constitution of Coahuila y Tejas (1827)

Texas and Coahuila became a single state.

Unicameral legislature

Texas had only two of the twelve representatives.

Catholicism was the official state religion.

Mexican laws influenced Texas property and land laws, water rights, community property laws, and local control of schools.

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The Constitutional Legacy (2 of 6)

The Constitution of the Republic of Texas (1836)

Fight for independence

Declared independence and created a constitution

Independence won at the Battle of San Jacinto.

Constitution influenced by U.S. Constitution and those of other southern states.

A bicameral legislature and an elected president

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The Constitutional Legacy (3 of 6)

The Constitution of 1845

Annexation to the United States

Texas became the twenty-eighth state and was allowed to be a slave state.

Many high offices appointed by the governor or legislature.

Became elected offices after 1850 amendment, providing for a plural executive branch

Included a number of individual protections

Served as a model for the 1876 Constitution

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Sam Houston

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The early Texas hero opposed secession and was replaced as governor when Texas joined the Confederacy in 1861. He died two years later.

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The Constitutional Legacy (4 of 6)

The Civil War Constitution (1861)

Texas seceded from the United States in 1861 and joined the Confederate States of America.

Few changes to the constitution

Public officials had to pledge support for the Confederate constitution.

Greater protections given to slavery

Influence of Civil War era

Origins of Democratic Party factionalism

Legacy of states’ rights

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The Constitutional Legacy (5 of 6)

The Constitution of 1866

Texas subject to national control

Presidential reconstruction (Lincoln/Johnson)

Favored quick reintegration of the South

Abolished slavery

Repudiated 1861 Secession Ordinance

1866 Constitution ended slavery but placed limits on African American rights.

Congressional reconstruction

Radical Republicans invalidated 1866 Constitution.

Adopted the Fourteenth and Fifteenth Amendments to U.S. Constitution

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The Constitutional Legacy (6 of 6)

The Constitution of Reconstruction (1869)

New terms to gain readmission to Union were included in the 1869 Constitution.

Voting rights for African Americans

Centralization of state powers

Increased powers of the governor

Weakened local governments

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The Constitution of 1876 (1 of 4)

The Restored Democratic Majority Assembled a New Constitutional Convention

Delegates to the 1875 Convention

Seventy-five of the original ninety were Democrats.

Only four were native Texans.

One-half (the Grange) represented agriculture.

Reaction against Reconstruction era abuses

Restricted state powers, expanded local powers, and placed limits on taxation

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The Constitution of 1876 (2 of 4)

The preamble of the constitution embraces popular sovereignty and social contract theory.

Women and minorities were initially denied full citizenship rights.

Other major principles include limited government, representative government, and separation of powers.

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The Constitution of 1876 (3 of 4)

The Three Branches of Texas Government

Legislative

Executive

Judicial

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The Constitution of 1876 (4 of 4)

Weaknesses and Criticisms

Decentralized public school system

Requires a balanced state budget

Slowed democratic development in Texas

Burdened with excessive detail

Requires excessive amendments to enable state government to adapt to social, economic, and political changes

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Figure 2-1 Texas Constitution Compared with Other State Constitutions (2015)

SOURCE: Based on data found in The Book of the States, 2015 Edition, vol. 47, Table 1.1 (Lexington, KY: The Council of State Governments, 2015) accessed at http://knowledegecenter.csg.org/kc/system/files/1.1%202015.pdf. Constitutional Amendments, Legislative Reference Library of Texas accessed at http://www.lrl.state.tx.us/legis/ConstAmends/index.cfm.

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This map shows when each state’s current constitution was adopted and the number of amendments that have been added since then. Texas is one of only eight states that have amended their constitutions more than 200 times.

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Constitutional Change and Adaptation (1 of 4)

Amendments

A proposed constitutional amendment is passed by a two-thirds vote in both houses of legislature.

The proposed amendment is submitted to the voters for their approval by majority vote.

Texas lacks a statewide initiative or referendum process.

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Constitutional Change and Adaptation (2 of 4)

Constitutional Convention

Can be called by the legislature with voter approval

Delegates and terms approved by the voters.

Revised constitution subject to voter approval

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Constitutional Change and Adaptation (3 of 4)

Constitutional Reform Efforts, 1971 to 1975

1974 Constitutional Convention

Three votes short of approval for proposal

1975 legislative session

Presented to voters as eight separate amendments

Rejected by voters in November 1975

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Journal 2.4

The constitutional amendment that abolished the office of county treasurer in Bexar County had to be approved by voters statewide, not just in Bexar County. Should Bexar County voters alone have been able to decide whether they wanted a county treasurer? Why or why not?

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Constitutional Change and Adaptation (4 of 4)

Further Piecemeal Reforms

Texas voters approved 269 amendments between 1976 and 2015.

Constitutional Provisions, Interest Groups, and Elites

Voter turnout is very low.

Interest groups influence amendments.

Elites dominate the system.

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Figure 2-2 Average Percentage of Voter Turnout for Constitutional Amendment, Gubernatorial, and Presidential Elections in Texas, 1974–2015

SOURCE: Texas Secretary of State, Elections Division.

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Most constitutional amendment elections do not attract many voters. This graph shows the significant differences in voter turnout for constitutional amendment elections, compared to presidential and gubernatorial elections.

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Shared Writing 2.4

Consider the discussion in the “Proposition 7 Aims to Boost El Paso Parks” article. Proposition 7, which would have applied only to El Paso County, was approved by El Paso County voters in a 2011 constitutional amendments election. But the amendment failed because it lost statewide when voters in many other counties, some hundreds of miles from El Paso, voted against it. Do you think all Texas voters should be allowed to vote on constitutional amendments that affect only one county, such as those that create local taxing districts or abolish obsolete local offices?

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Photo Credits

Page 31: Eric Gay/AP Images; 038: Library of Congress Prints and Photographs Division Washington, D.C. 20540 USA [LC-USZ62-10802]; 38: Photo Researchers, Inc/Alamy Stock Photo; 40: Courtesy of Texas State Library & Archives Commission; 42: “Published with permission of the Tarlton Law Library, Jamail Center for Legal Research, University of Texas School of Law.”; 44: Smiley N.Pool/Pool/AP Images; 47: Monkey Business/Fotolia; 48: “Courtesy of Texas State Library & Archives Commission.”; 51: Ron T. Ennis/The Fort Worth Star-Telegram/AP Images; 52: Texas General Land Office