How is the Texas Constitution changed?
As you’ve read in your text, changes to the Texas Constitution are proposed by the state legislature, but can only be approved by a majority vote in a statewide election. In 2017, voters adopted all seven amendments proposed by the state legislature. In 2019, legislators proposed ten amendments for voter consideration, all but one of which passed.
Legislators are already filing legislation to suggest constitutional amendments for the upcoming 2021 session, one of which would abolish daylight savings time in Texas.
Is this a good idea? On the one hand, lots of Texans hate daylight savings time, and it’s a pain to change clocks back and forth every few months. On the other hand, would it be a bigger pain to have Texas on a different time than the rest of the central time zone for half of each year? If you’ve ever driven through Arizona, which doesn’t follow daylight savings time, you know have to change your clocks one way as you cross the border from New Mexico, then two hours the other way when you cross the border into California – changing from Mountain Daylight Time to Pacific Standard Time. To make things worse, the many large Indian reservations in Arizona do observe daylight savings time, so…nobody traveling through Arizona ever knows what time it is.
Write a 2 -5 page (double-spaced, normal font and margins, cited sources, etc.) essay about S.J.R. 13 . Make sure you essay tells your reader:
1. How could this actually become part of the Texas Constitution? (Go through the process by which it would have to pass both the House and Senate, then get a majority of voters to agree)
2. What is this proposal designed to do?
3. Who do you think might be for and against this?
4. What potential problems could this create, if any?
5. How would you vote on this if you were a state legislator?
6. How will you vote on this as a voter if it gets to the ballot?
Submit in Word (.docx). Cite your sources.
Additional Resources
Here’s S.J.R. 13: https://capitol.texas.gov/BillLookup/History.aspx?LegSess=87R&Bill=SJR13 (Links to an external site.)
Legislators tried this two years ago: https://www.texastribune.org/2019/02/26/texas-lawmakers-end-daylight-saving-time-1550177496/ (Links to an external site.)
The Fort Worth Star-Telegram covered the issue two years ago: https://www.star-telegram.com/news/state/texas/article227202644.html (Links to an external site.)
Reform Austin wonders if we still need daylight savings time: https://www.reformaustin.org/texas-legislature/does-texas-need-daylight-savings-time/ (Links to an external site.)
Here’s a good analysis of all of last year’s proposed amendments from the Texas Legislative Council: https://lrl.texas.gov/scanned/Constitutional_Amendments/amendments86_tlc_2019-11-05.pdf (Links to an external site.)
Chapter 2: The American Federal System and the Texas State Constitution Introduction This chapter describes the broad outlines of the American federal system of government, and how that system is established in the constitutions of both the United States and Texas. It begins by describing federalism and constitutions, and then see how the United States Constitution assigns powers to the national and state governments. It then proceeds to describe the development of the Texas Constitution, culminating with the constitution written in 1876 along with an overview of how it has been amended through the election on November 2019. What is a Constitution? A constitution is a body of fundamental principles or established precedents according to which a nation or state is governed. It does the following : – establishes the basis of governing authority – outlines the structure of the government – defines and enumerates its powers, and the limits on those powers – clarifies the rights of the people. All constitutions in the United States are based on the authority of the people – at least those with power – who live within the borders of that governing system. The nature of the constitution is a reflection of their values and traditions. The United States Constitution, and in turn the state constitutions, is based on the republican tradition that developed over time in Britain, and included the common law. Texas, as we will see below, was rooted initially in Spanish law, and Jacksonian democracy. The structure of the United States Constitution, written in the summer of 1787, was influenced by the 13 state constitutions written after independence was declared from Britain. It then provided a model for all subsequent state constitutions including Texas. The original document was organized as follows: Preamble – Which states that the constitution has been ordained and established by the people of the United States. Article One – Vests the legislative powers in a bicameral Congress. Article Two – Vests the executive power in a single person, the president. Article Three – Vests the judicial power in a Supreme Court, and inferior courts established by Congress. Article Four – Establishes the relationships between the states, and authorizes the creation of new states. Article Five – The amendment process Article Six – The national supremacy clause Article Seven – the ratification process 27 Amendments, including a Bill of Rights, have been added since then. The national document is brief, vague and limited in its scope. What is a State Constitution? Each of the 50 states have their own constitutions which allow for the organization of state governments according to their own wishes, in accordance with what is allowable by the national constitution, specifically that they establish republican governments. Local governments are organized under charters, which are similar to constitutions, except that they are granted by the states to the specific government. Thirteen state constitutions predate the U.S. Constitution, meaning that the states were already in a position to govern themselves independently, as they had during the colonial era. The expectation that new states would be added to the union led to the inclusion of the following language in Section 4 of Article 4:
The United States shall guarantee to every state in this union, a republican form of government Laws were established outlining how new states would be created. The Northwest Ordinance for example, outlined the requirements for the statehood of what would eventually become the states of Ohio, Michigan, Indiana, Illinois, and Wisconsin. This included the drafting of a constitution outlining the design of its republican government. This would then have to be approved by the U.S. Congress prior to admission the union. While state constitutions have the same structure as the national constitution, there are significant differences between the two regarding policies. As will be illustrated more below, the greater range of policies handled by the state governments means that the state constitutions tend to be more expansive that the national constitution. State power, as a consequence of the 10th Amendment, is more open ended than national powers, This has led some states, notably Texas, to incorporate addition language to make it limits on governing power more explicit. For comparison purposes, the Texas Constitution contains the following articles. We will go through them below, but for now notice that the first few are similar to those in the United States Constitution, Differences lie in the subjects of most the remaining articles. Many concerns subjects that are specific to the states, such as suffrage, education, and the formation of local governments. Others are focus on issues unique to Texas, such as its approach to regulating railroads, land ownership, and the management of public lands. Preamble Article I: Bill of Rights Article II: The Powers of Government Article III: Legislative Department Article IV: Executive Department Article V: Judicial Department Article VI: Suffrage Article VII: Education–The Public Free Schools Article VIII: Taxation and Revenue Article IX: Counties Article X: Railroads Article XI: Municipal Corporations Article XII: Private Corporations Article XIII: Spanish and Mexican Land Titles Article XIV: Public Lands and Land Office Article XV: Impeachment Article XVI: General Provisions Article XVII: Mode of Amending the Constitution of this State _________________________________________ What is Federalism? Federalism in the United States is a division of powers between three layers of government: the national, state, and local. Each of government has defined responsibilities, though many of these overlap. This results in a highly complex governing system. It is composed of over 90,000 governing units (citation) on those three levels. We have one national government, 50 state governments, and the rest are local. These include multi-purpose governments like cities and counties, and single-purpose governments like community college districts and independent school districts. The federal, confederal, and unitary systems. There are three ways these layers of government can be relate to each other, based upon which level has authority over the others, federalism is one of them. The other two are unitary and confederal. Each defines the relationship between a central government and its component parts. Specifically, which has authority over the other. Ultimate authority in a republic, of course, rests with the people. This is known as popular sovereignty.
We see this expressed on the national level in the opening of the U.S. Constitution: We the people …. ordain and establish this Constitution of the United States of America. But we also see this expressed in the constitutions of the 50 states. The Texas Constitution begins with: . . . We the people of Texas do ordain and establish this … This makes the national and state governments equally sovereign, which is a principle source of conflict between them. The relationship between them was different under the Articles of Confederation. In it, the delegates of the states created the national government, meaning that the states were superior to the national government. This is the defining feature of a confederated system of government. The component parts of a government create a national system to coordinate activities between the component parts, but it has no independent authority. It acts only as the states allow it to act. This has the advantage of limiting the power of the national government, but it can also make it impossible for it to effectively address problems that impact all the states. This was the reason why the confederal system was replaced with that under the current constitution. While the national and state government are equally sovereign, language in the U.S. Constitution makes the national document supreme. Section 2 of Article 6 states: This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. This is the supremacy clause. State laws cannot be in violation of the U.S. Constitution. Furthermore, Section 3 of Article 3 states: 3. The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution. All government officials in the United States, no matter which level of government, must be bound to the national constitution. It is the one document that contains the basic rules that bind the nation together. Unitary Systems A unitary system of government is the reverse of the confederal system. In it, the central government is supreme and the component parts exist to implement the law. Alexander Hamilton presented a plan to the constitutional convention that would have come close to doing so, but it went nowhere. The relationship that exists between the state and local governments however is unitary. Since the U.S. Constitution says nothing about local governments, the nature of local power would not be define until federal judge John Dillon stated the following in 1868: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control”. This has come to be known as Dillion’s Rule. Under the reserved powers, states may create local governments, and in the case of cities authorize their ability to govern themselves by granting them charters which define the nature of their powers. This is referred to as home rule authority, which the Texas Constitut6ion grants to cities over 5,000 in population. States have the power to alter those powers as they see fit.
Federalism in the American Constitutional System. We will now look at how the U.S. Constitution divides power between the national and state governments we will do so by first reviewing the various types of powers that exist in the document, and then looking at the specific functions the document gives to the states. Federalism in the American Constitutional System: The Powers. One of the principle functions of the U.S. Constitution is to allocate powers to the national and state governments. Some powers are delegated to Congress or expressly granted to the President. Others are reserved to the states, while still others are prohibited to them. The vague language in the document has led arguments that other powers are implied to the states. Still other powers are concurrently shared by each level. Let’s walk through them: The Delegated Powers: These are the powers specifically allocated to the national government, some of which are also prohibited to the states. The word “delegated” comes from the 10th Amendment. They are also referred to as the “granted” powers from the language of the beginning of Article 1: “All legislative powers herein granted shall be vested in a Congress of the United States.” This is taken by some to mean that Congress is restricted to only these powers. They are also sometimes referred to as the enumerated powers because they are numbered in 18 clauses in Section 8 of Article 1. These powers focus primarily on the establishment of interstate and international commerce, and providing internal and external security. One of the reasons for the creation of a federal system was the fact under the Articles of Confederation, the states were unable to provide either. As a consequence of the enumeration of these powers, it has become common for challenges to be made in the courts about the constitutionality of laws passed by Congress under the theory that Congress can pass no law explicitly authorized to it. As we will see, this is not the case with the powers reserved to the states. The Implied Powers: These are powers not clearly listed in the U.S. Constitution, but are based on broad readings of three clauses in Section 8 that are called the elastic causes due to their vagueness. These are, in order of appearance, the general welfare clause, the interstate commerce clause, and the necessary and proper clause. Over the course of American history claims have been made that Congress has been authorized to pass laws based on broad readings of these clauses. Sometimes states push back against these laws in the courts seeking to have them overturned. Texas is often a plaintiff in these cases. The Prohibited Powers: Sections 9 and 10 of Article 1 list limits on the powers of government. Section 10 focuses specifically on the states, and lists what the states cannot so. These are primarily national powers, and are designed to ensure that individual states cannot interfere with them. These include treaty making, coining money, and engaging in war. The Reserved Powers: These are not mentioned in the original constitution, but in the last of the first ten amendments added to the constitution at the request of a number of states during the document’s ratification. The states were concerned that without specific limits on the national government, its powers would grow. James Madison argued that this was unnecessary given that the U.S. Constitution already limited national power: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”
Nevertheless, the 10th Amendment was ratified with the following text: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Following Madison’s logic, there is no defined list of what these powers are. They are generally referred to as the police powers, that is the power to regulate the health, safety, welfare, and morals of the people. In short, they comprise
anything a state chooses to do, as long as it is not prohibited to it by the U.S. Constitution. Proponents of an expanded view of the 10th Amendment argue that there are benefits to allowing the states free reign to experiment with public policy. They can act as “laboratories of democracy” and allow policy options to be tested out. Texas was one of the first
states to experiment with placing limits on non-economic damages as a result of lawsuits. Other states have experimented with legalizing marijuana. This allows for a pragmatic assessment of the consequences of doing so. Based on this information, other states may decide to adopt similar policies, or not.
The Concurrent Powers: All governments share certain powers, these are called concurrent powers. The most common is the power to tax.
All previous powers relate to the legislature – Congress. The states are also impacted by the executive and judicial powers in the U.S. Constitution. The powers of the president include the power as commander in chief to “call up the militia of the several States, when called into the actual service of the United States.”
The judicial power includes the ability of the national courts to hear cases involving the states. Article III of the constitution outlines the jurisdiction of the courts, which includes disputes between the governments of different states.
It also allows the national courts to hear lawsuits against a state government by its own citizens. This is a consequence of the 14th Amendment which establishes that people born in the states are citizens of the United States, and that the states cannot violate their privileges and immunities or due process rights.
Neither can the states deny persons in their jurisdiction the equal protection of the law. Over its history, the government of Texas has been sued, sometimes in landmark cases, for doing so.
Here are examples:
– Smith v Allwright – Sweatt v Painter – Roe v Wade
– Lawrence v Texas Federalism in the American Constitutional System: The Roles of the States. The U.S. Constitution also clearly grants to the states certain responsibilities, the most important being control over suffrage and elections.
Suffrage. Clause 1 of Section 2 of Article One of the United States Constitution states: The House of Representatives shall be composed of members chosen every second year by the people of the several
States, and the elector in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.
This establishes that each state gets to decide for itself who gets to vote. The national government would not begin to
place restrictions on the states until after the Civil War with the passage of the 15th Amendment – and the statement that states could not use race, color, and previous condition of servitude as reasons to deny the right to vote, which would not be given any substantive support until the Voting Rights Act in 1965.
Further restrictions would be placed on the ability of states to deny the right to vote on the basis of sex, inability to pay a poll tax, or being 18, 19, 0r 20 years old. States still retain the right to deny the right to vote on other criteria, including having felony convictions, mental incompetence, failure to register to vote, and residency requirements. The restrictions
Texas continues to place on suffrage, among other items, can be found in Article 6 of the Texas Constitution, which is titled Suffrage. Further information can be found in Texas’ Election Code.
Elections. The U.S. Constitution gives states the sole responsibility of conducting elections to national office. The national government has no independent constitutional authority to place items on a ballot. For that reason, there is no such thing as, for example, a national referendum. These can only happen at the state and local level. The scope of electoral laws the states can pass include laws regulating candidacy, voter registration, the determination of voting locations, and
the nature of the ballot. This is established in two separate clauses in Article 1 and Article 2, this first concerns Congress, the second concerns the president.
Clause 1, Section 4 of Article 1 states: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.
Clause 2, Section 1, Article 2: Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.
Each of the members of the U.S. House and Congress, as well as the presidential electors, are selected in each of the separate states. The only initial limit placed on these people is that each institution had the power to review the credentials of the elected officials to ensure that they had the proper qualifications. Since the ratification of the 14th Amendment’s equal protection clause, and the passage of the Civil Rights Act of 1964, states were subject to potential lawsuits initiated by their own citizens alleging that they have been discriminated against in the electoral process on the basis of race. As with suffrage Texas has been sued repeatedly for doing so.
Texas’ history of restrictions to vote based on race was so egregious that for several decades the state had to have any changes to its electoral laws pre-approved by a panel of federal judges appointed by the United States Justice
Department before they could take effect. This was a consequence of the passage of the Voting Rights Act. Southern states pushed back against the law and ultimately had the power of pre-clearance suspended in Shelby v Holder. Texas supported the case by joining with other states to write a friend of court brief for the Justices to consider.
Redistricting. Every ten years the national government conducts a census with the declared intent to reapportion members of the House of Representatives to the each state according to a formula which ensured that representation
will be in accordance with the relative populations of the states. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State. The national government sends to each state, information regarding the number of representative they may send, as well as where people in the state live. Though not required to in the U.S. Constitution, which says little about districts,
the states take that information and drawn districts for each member to represent. The Constitution says nothing about the relative sizes of these districts and over time, some states did not redistrict, which led unequal populations in each, and to imbalances in power within the states. In a series of cases in the early to mid 1960s, the United States Supreme
Court inferred that the constitution contained an implicit requirement that one person equals one vote.
As with other aspects of elections law, this power has been used by states like Texas to manipulate the nature of representation. Through a process called gerrymandering, a majority in the state can draw districts in such a way that maximizes their strength, thereby minimizing the power of others. Sometimes this process involves race, sometimes it
involves parties. In either case, plaintiffs who were effected negatively by these laws have sought relief against states by suing in federal court, arguing that their equal protection rights have been violated. Due to the language and history of the equal protection clause, the U.S. Supreme Court has been more sympathetic of the former cases, less so of the
latter. Race, not partisanship is protected under the Constitution. An additional constitutional dispute regarding redistricting involves who gets to do it. As mentioned above, Clause 1,
Section 4 of Article 1 states: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof. Note the use of the word “legislature.” What does that word actually mean? Some states, not Texas, have created non-partisan institutions to redraw legislative districts. Often these have been done by initiative elections, meaning they were approved by the voters of each state, not the legislatures in each
state. In 20XX the voters of Arizona established such a commission and the legislature of Arizona filed suit in federal court arguing that “legislature” meant that only they could do so. The Supreme Court narrowly disagreed.
Relations Between the States. Article 4 of the U.S. Constitution deals solely with the relationship between the states. Other parts do as well. Most notably, in Article 1, Section 9, Clause X states – as well as the national government – are prohibited from taxing items imported across their borders. State borders are open to trade. Article 4 goes further and
mandates that states – Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state – The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states
– A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime States have not always been willing to abide by these mandates however. Texas, along with other states with a strong traditionalist political culture, refused to give full faith and credit to same sex marriage licenses signed in other states
until they were forced to do so by the U.S. Supreme Court in the case of Overgefells v Hodges. Ratify Constitutional Amendments. The United States has not been amended much – -27 times as opposed too over 500
times for the Texas Constitution. This is partly due to the role states play in the amendment process. After a resolution containing an amendment’s language is passed by each chamber of Congress buy a 2/3rds vote, 3/4ths of the states have to ratify it. Currently that means that 13 states are enough to prevent a proposed amendment to take effect. This
set a very high bar that is rarely cleared, and also explains why changes in the U.S. Constitution generally result from reinterpretation of the vague language it contains. As we will see below, the more detailed language of the Texas Constitution does not allow for much reinterpretation. But the lower threshold for amending the Texas Constitution – a
simple majority vote of the electorate following 2/3rds vote of each chamber of the Texas Legislature means that is generally unnecessary. Federalism in the American Constitutional System: Impact of Constitutional Amendments. Let’s take a quick look at the impact some constitutional amendment have had on the relationship between the national and state governments.
The Civil Wars Amendments. After the end of the southern rebellion, the national government passed and ratified three
amendments within 5 years. Each enhanced national government power over the state governments, there by placing limits on them. These were
– 13th Amendment (1865), which stated that slavery nor involuntary servitude shall exist in the United States. A crucial exception was made for “punishment of a crime whereof the party shall have been duly convicted.”
– 14th Amendment (1868), which did two things. It nationalized citizenship, meaning that states could not deny the privileges and immunities or due process rights of as defined in the U.S. Constitution. Neither could states deny the equal protection of the laws to “persons in their jurisdiction,” which applies to non-citizens as well.
– 15th Amendment (1870), which outlined three reasons why states could not deny the right to vote: race, color, previous condition of servitude. This fell short of a guarantee that people could vote despite those criteria. States could continue to deny the right to vote for other reasons, including criteria that overlapped with the three mentioned in the
amendment. Two other amendments added over 40 years later also help explain the increase of national power over the states
during the 20th Century. Both were heavily promoted by progressives. – 16th Amendment (1913), which granted Congress the power to collect an income tax. This pleased the states by lessening the need for the national government to collect tariffs, but resulted in the national government collecting sufficient revenue to provide matching grants to encourage the states to implement national policies such as Medicaid and Temporary Assistance to Need Families.
– 17th Amendment (1913), which changed how U.S. Senators were elected. Instead of by the state legislatures, they were elected by the people of the states. This solved a common problem where conflict with the states could lead to
senators not being appointed for long periods of time, meaning that the states were underrepresented. But it also meant that the state legislatures no longer had a direct impact on the actions of Congress. State legislators that may have been opposed to New Deal programs were not in a position to challenge them effectively.
Stages of Federalism.
The relationship between the state and national government has not been stable. It has changed over history due to a variety of factors including the growth of the nation, the development of communications and transportations technologies, and ebbs and flows of the various political forces over time. Changes in constitutional interpretation also
plays a significant role. The language in the U.S. Constitution is vague enough to allow for disputes over interpretation, as well as reinterpretation over time.
Scholars tend to divide the history of federalism into three eras: – dual federalism (1789 – 1933) – cooperative federalism (1933 – 1981)
– new federalism (1981 – Present) Let’s look at each
Dual Federalism. This era began with the ratification of the U.S. Constitution and ended with the inauguration of Franklin Roosevelt and the beginning of the New Deal following the election of 1932. The guiding principle during this era was
that the national and state governments are two separate spheres and should focus on their respective spheres only.
The quote from Madison mentioned above helps clarify their relative functions. The powers of the national government
“will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” This system was relatively easy to maintain during a period when transportation and communications were slow. Interstate commerce was not common. But during the late 19th and early 20th centuries, technology improved to the point where information could begin to flow instantaneously, and coast to coast travel was available. It was easy not only for commerce to cross state borders, but crime as well. Problems related to health, safety, welfare, and morals were no longer just state and local. Consequently, state and local governments were not sufficient to address them.
In addition, large corporate enterprises emerged that had multi-state operations. No one state was in a position to regulate them for the general welfare. Only the national government could do so, but this required a reconsideration of how certain clauses within the US Constitution – notably the interstate commerce clause – were interpreted. Gradually
the Progressive Movement developed and successfully lobbied for the creation of national executive agencies to regulate monopolies, the sale of food and drugs, and other aspects of commerce. The Federal Reserve was established during the time as well.
But the acceptance of these endeavors would not become solidified until after the onset of the Great Depression, and the election of Franklin Roosevelt who promised to use the full weight of the national government to the problems
caused by it. Cooperative Federalism. This era was triggered by the problems posed by the Great Depression, and made into policy with the various programs affiliated with the New Deal. These would be expanded during the presidency of Lyndon Johnson in what became known as the Great Society in the mid-1960s. The immediate objective of the New Deal was to address the widespread poverty across the nation. This involved works projects and efforts to prop up the price of farm
products. Many projects were funded by the national government, but run by the state governments. The funding mechanism was the matching grant, which provided a significant amount of funds provided that a small amount was matched by the state in order to show that the state was invested in the program. The money was received with the
understanding that it would be used for certain specific purposes as defined by the national government. These were called categorical grants.
A key shift in the Supreme Court also allowed legislation that had been found unconstitutional, to be constitutional instead.
– Jones and Laughlin Steel Company v NLRB – Helverling v Davis – Wickard v Filburn
Among the policies passed during that period were – Securities and Exchange
– The Fair Labor Act – Social Security – Wagner Act
Great Society programs would go further with programs intended to address chronic poverty, and conditions that resulted from racial and gender discrimination. Lyndon Johnson became president after the assassination of John F.
Kennedy, and elected on his own in a landslide in 1964. Having spent decades in Congress, he put his legislative skills to
work to pass additional legislation. For example:
– The War on Poverty – Medicare and Medicaid
– Civil Rights Act – Voting Rights Act – Elementary and Secondary Education Act
Many of these policies saw the national government inserting itself into local affairs, and sometimes pursued objectives that were not supported by majorities at the state and local level. This was especially true of education, which was
already a hot button issue following the decision by the U.S. Supreme Court that racial segregation on schools violated the equal protection clause. This was compounded by the Civil Rights Act, which outlawed racial segregation in public accommodations, as well as the Voting Rights Act.
Johnson was successful in passing two key programs into law as amendments to the Social Security Act in 1965. Medicare, a federal program that provides health care to the elderly as funded by payroll taxes paid by the eventual recipients, and Medicaid, a federally financed, but state run program that provides health care to the poor. While each
passed, the opposition to them helped contribute to the conditions that led to the rise of a counter movement against cooperative federalism. Much of this was driven by eventual president Ronald Reagan whose claims that Medicare and Medicaid constituted “socialized medicine,” and a federal “takeover” of a service that is best either handled by the
private sector, or the state and local government. Opponents were also successful in claiming that rather than being cooperative, these programs were coercive
New Federalism. This refers to the efforts made after the election of Ronald Reagan to the presidency in 1980 to roll back the expansion of national power since the New Deal. While the overall goal was to eliminate many of the programs – and efforts continue to be underway – these were largely unsuccessful. But the effort, and a string of Republican
victories in the presidency largely put a halt to further encroachments on state power by the national government. The only significant exception being law enforcement and public safety. A law was passed requiring states to raise their drinking ages to 21 or else lose federal matching funds for highway construction. Other laws were passed expanding the
number of federal crimes. New appointments to the Supreme Court were also instrumental in rolling back the ability of an expanded interpretation
of the commerce clause to facilitate expanded national power. Some newer justices adopted a narrow interpretation of constitutional language and were unwilling to allow further expansions of what it justified. Two cases stand out:
– United States v Lopez, which overturned the Gun Free School Zones Act. – United States v Morrison, which overturned the Violence Against Women Act.
Exceptions were made however. – Gonzalez v Raich, US Controlled Substances Act over rules California’s Compassionate Use Act
A major shift in the nature of the grants issued to the states. In order to encourage experimentation and local adaptability, the Reagan Administration began loosening the rules associated with matching grants, and instead of issuing them with narrow guidelines, they provided them as block grants which allowed for variation in their use. Critics
argued that this allowed for the grants to be used for purposes that varied from their intended purposes. Regardless, the increased willingness to allow state and local governments to experiment with laws has led to what
some argue are improvements in public policy. These include marijuana laws, cash bail, energy and environmental
policy, homelessness and vagrancy, and mental health
Recent Federalism Cases involving Texas
During the Obama Administration, Texas was active in using the federal courts to challenge the constitutionality of laws and executive orders issued. The Texas Attorney General – part of Texas’ plural executive – is responsible for making the decision to pursue and organize legal challenges. Greg Abbott held the position until becoming governor after the 2014
election when he was replaced by Ken Paxton. Together they sued the Obama Administration 48 times in federal court, and they are allowed to do in the U.S. Constitution. The Texas Attorney General also assists with other cases by filing friend of the court briefs.
Here are some noteworthy cases: – National Federation of Independent Business v Sebelius – United States v Texas
________________________
The Constitutions of Texas: 1812 – 1876 As with all other states, Texas has a constitution that creates the republican form of government guaranteed to all the
states in the U.S. Constitution. The current version was initially written in 1876 following the end of Reconstruction, and has been amended over 500 times as of 2019. It is also the last of a series of constitutions that oversaw the governance of the territory during a variety of manifestations. Many of the features of these constitutions still exist in some form in
the current constitution. With that in mind, we will walk through the past constitutions in order to understand how the current document took shape.
We will divide this period in three depending on the specific purposes of each 1 – During the first period the constitutions were produced by Spain or Mexico for Texas. Texas was governed under
Spanish Law, aspects of which still exist in Texas’ legal code. Egalitarianism – no slavery 1812 – The Spanish Constitution
1824 – Mexican Constitution 1827 – The Constitution of Coahuila and Texas
2 – During this period, the constitutions were written by the Anglo-American settlers following the republican model established by the United States. The principle differences between these constitutions regarded what they were forming. What was Texas to be? An independent nation, or a state within the United States of America, or a state within
the Confederate States of America. Racial limits, slavery. 1836 – The Constitution of the Republic of Texas 1845 – The Constitution of the State of Texas
1861 – The Constitution of the Confederate State of Texas 3 – The question after the Confederacy’s loss in the Civil War was what type of constitution would be acceptable to both
the United States government, and the people of the state? 1866 –
1869 – Reconstruction Constitution
1876
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Pre Constitutional Rule Prior to 1812, and the Cadiz Constitution, Texas was ruled under the absolute authority of the Spanish monarch. What
became Texas was an interior province of the land claimed under the Viceroyalty of New Spain after the fall of Tenochtitlan in 1521. Given that it was lightly populated by Europeans, and largely controlled by Plains Indians, there was very little in the way of any governing authority until French interest in the area in the late 17th Century led Spain to create a mission system, in addition to presidios, and local settlements, notably Nacogdoches, Goliad, and San Antonio. Altogether these would establish a buffer keeping first the Plains Indians and later American settlers away from the interior of Mexico. The first two were under the control of the Catholic Church and the military respectively. Settlements
were governed under rules established over time by Castilian Law, under the authority of the crown. Castilian Law would form the basis for governance in the Spanish territories much like Common Law would do so for the British Colonies and, much later, the Napoleonic Code for those of the French. Aspects of Castilian Law were retained by Texans in later
constitutions. These include: – simpler civil trial procedures
– Land titles – common ownership of the gains of marriage between husband and wife – homestead and told of trade protections
1812 Spanish Constitution
The first phase of the constitutional begins in Spain with the replacement of King Ferdinand VII of Spain in 1808 by Napoleon, and his replacement with his brother, who would rule from 1808 to 1814 when Ferdinand would reclaim the throne. Seeking to legitimize his brother’s rule, Napoleon appointed a legislature in Cadiz, and had them create a written
constitution which established a constitutional monarchy. This is to be distinguished from the absolute monarchy that had existed before.
This would become the 1812 Spanish Constitution, more fully known as The Political Constitution of the Spanish Monarchy. The key feature of the document was that limits were placed on the power of the king, certain rights established for the people, and a representative system – a republic – was created. Many components would be familiar
including separated powers, a legislature, freedom of the press, and a complex indirect electoral system. Others would not, including: Catholicism official religion and universal male suffrage.
By 1814 Ferdinand VII was back in power, dissolved the constitution, parliament, and the very idea of representative democracy. He reestablished absolute monarchy, but he would be forced to reconsider in 1820 in order to avert a military coup.
While this was occurring in Europe, a war for independence had broken out in Spanish Mexico. It would last from 1810 – 1821. The forces supporting Spain were called the royalists, while those supporting Mexico – and the elimination of a monarchy – were called the republicans. During this time, the United States was involved in treaty negotiations
regarding the possession of Florida. In 1819, the Adams – Oniz Treaty would be signed which, in addition to acquiring Florida, included the United States relinquishing claims to Texas under the Louisiana Purchase. The boundary was set at the Sabine and Red Rivers.
In 1820, under the Spanish Constitution, Moses Austin negotiated land grants to give out to settlers. It would bring a
large group of Americans into Texas, with the understanding that they would be living under a foreign constitution, and would be willing to comply with certain requirements. These included an acceptance of a state religion – Catholicism – and limits on enslavement. Enforcement of these requirements was lax however. Spain, and later Mexico, needed the
settlers to help develop resources, increase agriculture and commerce, and provide a buffer against the plains Indians. Moses Austin’s death, coupled with the end of Spanish rule and the creation of a new constitutional order, would delay
the arrival of the new settlers. Even without the land grants, approximately 2,500 American settlers were in the province, many illegally.
1824 Mexican Constitution
The end of Spanish rule did not end in the formation of a federal republic immediately. For two years Mexico – including Texas – would be a constitutional monarch under an emperor. This was written out in the Plan of Iguala. The signing of this plan established Mexico as an independent nation, but in a different form. Spain would not accept its independence
until 1836 following several attempts to win it back. The plan is noteworthy for establishing equal rights to citizens across Mexico, including Creoles and others.
This would be the government that Stephen F. Austin would negotiate with in order to receive the land grants previously promised to his father. This time as citizens of Mexico, not Spain. The General Colonization Law, which enabled all heads of household, regardless of race, religion or immigrant status, to acquire land in Mexico. Between 1824 and 1828, Austin had been granted almost 300 land titles between the Brazos and Colorado Rivers. The settlers he selected were educated and propertied, and 14th were slave owners. Many were protestants, did not wish to convert to Catholicism, and were committed to private property (including slaves), and personal liberty. These would be the individuals that
provided the core of those who would seek to govern themselves under their own constitution. But before that occurred, they spent time being governed under the Constitution of Coahuila and Texas.
The empire would be overturned in 1824 leading to transition into a federal republic and the writing of the 1824 Constitution. State governments were growing in strength and were electing their own Congresses. The constitution would ultimately, though temporarily, establish a federal republic. When the states and provinces sent delegates to
write the 1824 constitution they did so with instructions to create a federal republic, with sovereignty based in the states. These delegates would include Juan Jose Maria Erasmo Sequin who represented Texas in the assembly. It would establish 19 states, as well as 4 territories, and allow the states to create their own constitutions. The legislative branch
would also be made stronger than the executive. At least at the beginning, power was vested primarily in the legislature, and the states had a degree of autonomy. They each declared sovereignty.
Over the course of the next 12 years, the nature of this government would change – partially leading to the complaints contained in the Texas Declaration of Independence written in 1836. Forces existed that continued to support a centralized monarchy, mostly the elites, while others wanted a federal republican system similar to that in the United States. In 1835, this would be revoked by General Santa Ana. He accumulated enough power to throw out the
constitution and attempt to turn states into departments controlled by the national government. _________________________
1827 Coahuila and Texas
The 1824 Mexican Constitution – as originally written – emphasized the importance and autonomy of state
governments. It established a federal republic with 19 states, one was Coahuila y Tejas, which was newly created. Each
state was allowed to then craft its own constitutions. As a border state, it had a military under a single commandant general. The state was also divided into departments, and the departments were subdivided into municipalities, which contained mayors and city councils. Coahuila was among the poorest states in Mexico, and like the Texas, was very
sparsely populated. All of Texas was originally only in the Department of Bexar, and then further subdivided into Bexar, Brazos, and
Nacogdoches. While this gave them 3 representatives, the majority were from Coahuila, and the capital – Saltillo – was there as well. This meant that the Anglo-Texans were a minority within the state and had to travel a long distance for government business. All political matters were handled in Spanish as well. This did not sit well with the Anglo American
immigrants, especially those that arrived in the years following the drafting of the constitutions of both 1824 and 1827. Anglo Texans did not mix with Latinos. The increase in Anglo population led to passage of the law of April 6, 1830 which placed limits on Anglo immigration. This, coupled with Santa Ana’s efforts in 1835 to reduce the powers of the states, led to a quick series of events that led to Texas independence and a new constitution as an independent nation.
Conventions were called in the state in both 1832 and 1833 which ultimately produced a new constitution in 1833 to be presented to the Mexican government. Tejanos opposed the conventions, so the results of the conventions, and the
content of the proposed constitution was a reflection of the values and traditions of Southern Americans. It contained 106 articles divided into 6 sections.
Preamble General Provisions Legislature
Executive Judiciary Schedule
Stephen F. Austin was selected to deliver the constitution to the Mexican government in Mexico City. It was not well received. He was jailed for a period of time, which became a key grievance made by the Anglo-Texans in the Texas
Declaration of Independence. It has: incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the
acceptance of our constitution, and the establishment of a state government. Which was an indication that the right to petition for grievances, as well as habeas corpus was not acknowledged. The
final impetus to independence, not just in Texas but in the Mexican states of Yucatan, Tabasco, and the Republic of the Rio Grande (Nuevo Leon, Tamaulipas, Coahuila), was in 1835 when Santa Ana, on his own authority, changed the 1824 Constitution to grant himself additional power. The key change was in changing the status of the independent states to
departments of the federal government. This made them fully subject to national power, and led to the dismantling of state legislatures a Texas then passed a declaration of in November 11, 1835 to take arms up against Mexico, create a provisional
government, and send delegates to another convention in 1836 that produced, in the midst of the Texas Revolutionary War, another constitution, but also a Declaration of Independence stating the reasons for the push for independence.
Texas Declaration of Independence – 1836 The 59 men – and they were only men – who wrote and signed the Declaration of Independence were largely recent
arrivals from the United States, and young. Many came in violation of the immigration ban of 1830. The majority were
from southern states and were committed to a republican government in the American model, as well as Jacksonian
Democracy and slavery. As with the American Declaration of Independence, the Texas document begins with a statement of the purpose of
government, then proceeds to list the reasons why the Mexican government was falling short of meeting these objectives. It then proceeds to list the specific grievances against the Mexican government.
– change in the federal republic – having to be a state with Coahuila – punishment for petitioning for a redress of grievances
– lack of trial by jury – military supremacy – dissolving the legislature of Coahuila and Texas – trials held outside the district where they were committed
– undermining commercial development – limits on free exercise of religion – denial of right to bear arms
– instability – inability to implement the law
They then proceeded to writing – quickly a new constitution for the nation of Texas. Which takes us to the next section as Texas determines what it will be.
____________________ The Constitutions of 1836, 1845, and 1861
The principle constitutional question during this period was whether Texas would be governed under a national constitution for the Republic of Texas, or a state constitution under either the United States of America, or the
Confederate States of America. The answer would ultimately be decided by the inability of the Republic to remain solvent and the confederacy’s loss in the Civil War. This would lead to a question addressed between 1866 and 1876. The principle change during this period was that the constitutions would be written by Texas, primarily Anglo-Americans
who had recently arrived and were conditioned to life under the US Constitution, and had value systems rooted in Jacksonian democracy and the antebellum economic system, which included support for slavery.
The 1836 Constitution The convention produced a national constitution, which required it to address issues beyond what had been contained
in the 1833 document, or would be produced in subsequent constitutions when Texas returned to being a state. Modeled like US document
Preamble and Preliminary Provisions Article I (Powers of the Government)
Article II (Legislative) Article III (Executive) Article IV (Judicial)
Article V (Oaths)
Article VI (President and Vice President)
Schedule General Provisions Declaration of Rights
It creates a unitary, not a federal government. As is the case now, local government are not independently sovereign. The preamble is almost word for word the same as the preamble of the U.S. Constitution, and it marks the first time that
reference is made to the people of Texas independent of Mexico. The first article outlines the separated powers (as is done in all subsequent constitutions) and details the bicameral
design of the legislature, setting the term of the House at 1 year, and the Senate at 3 years. Article 2 outlines the powers of Congress, much like Section 8 of Article 1 of the U.S. Constitution. It includes the power to tax, regulate commerce, declare war, and provide and maintain an army and navy, among others. Article 3 establishes a unitary executive with three year terms, and cannot run for re-election, though they are not forbidden from running after that.
