The Constitutional Setting: Legitimacy and Purposes

1. CHAPTER 2 THE CONSTITUTIONAL SETTING

2. Purposes of Constitutions Legitimacy Giving legitimacy to the government is the most abstract and ambiguous purpose served by constitutions. A government has legitimacy when its citizens accept its actions as moral, fair, and just. The requirements for governmental legitimacy vary according to what the citizens are willing to accept based of their history and political culture. The traditionalistic/individualistic political culture is more dedicated to limiting government than the moralistic political culture.

3. Purposes of Constitutions Organizing Government This purpose involves clarifying who the major officials are, how they are selected, and what the relationship is between those charged with basic governmental functions. Although the organizational provisions of state constitutions vary widely, they generally follow the model provided by the U.S. Constitution by incorporating separation of powers with a system of checks and balances . Each state establishes an elected chief executive, a bicameral legislature (except in Nebraska), and a judicial system with some type of supreme court. In Texas, the traditionalistic and individualistic political cultures have dominated the constitutional process.

4. Purposes of Constitutions Providing Power The Texas Constitution provides power for the state government subject to the U.S. Constitution's division of powers between the national government and state governments. Although states retain primary control over many types of activity, the power of state officials has been reduced by a combination of factors, including the expansion of the federal government's role in various areas. Limiting Governmental Power Americans' history and national character support the belief in limited government that has produced bills of rights in both the U.S. and Texas constitutions and other constitutional protections against arbitrary governmental action. Reflecting popular dissatisfaction with Reconstruction rule, the Texas Constitution limits government by being very specific in its content.

5. Texas Constitutions Introduction Texas is currently governed by its sixth constitution, compared to only two fundamental laws for the United States. The existence of five constitutions in the forty years prior to 1876 is evidence of the political turbulence in Texas during the period. The Constitution of the Republic of Texas (1836-45) After 131 years of Spanish rule and 15 years of Mexican rule, Texans declared their independence in 1836. The Constitution of the Republic of Texas was drafted soon after and ratified in September 1836. Its major features paralleled those of the U.S. Constitution, but the document also guaranteed the continuation of slavery.

6. Texas Constitutions The "Statehood Constitution" (1845-61) Admission to the Union necessitated a new constitution. The Constitution of 1845 was modeled after the constitutions of other Southern states. Embracing democratic principles of participation and elements of the 20th century administrative reform movement, this brief, clear document was regarded as one of the nations best constitutions at the time. Influenced by Jacksonian democracy, the "statehood constitution" made almost every office elective and limited by short terms.

7. Texas Constitutions The Civil War Constitution (1861-66) Secession prompted the adoption of a slightly revised constitution. The Constitution of 1861 altered the 1845 document to further protect slavery and to declare allegiance to the Confederacy.

8. Texas Constitutions The Reconstruction Constitution (1866-69) A new constitution was ratified in an effort to meet the requirements imposed by President Andrew Johnson on Southern states for readmission to the Union. The provisions of this constitution did not satisfy the radical leadership of the U.S. Congress and so it was short-lived. The Radical Reconstruction Constitution (1869-76) The constitution drafted in 1868-69 contained many features, such as centralized power, generous salaries for state officials, appointed judges, and annual legislative sessions, that modern reformers would like to see in a revised constitution. Although forward-looking in terms of power and organization, this constitution was the least effective of the various Texas constitutions in promoting legitimacy since it was forced on the state by outsiders.

9. The Present Texas Constitution Historical Background Sentiment favoring constitutional revision appeared as soon as Democrats regained control of the legislative branch in 1872. Following the failure of a reform effort in 1874, a constitutional convention was organized in 1875. The 90 delegates, overwhelmingly conservative, reflected the "retrenchment and reform" philosophy of the Grange. The delegates' conservatism included a belief in white supremacy and a determination to limit the powers of government. The document produced by the convention contained many provisions restricting the government's powers, and especially those of the governor. The state's voters approved the document by a wide margin in February 1876.

10. The Present Texas Constitution General Features The Texas Constitution contains a preamble and sixteen articles. Because the Constitution contains many details of policy and governmental organization to avoid abuse of governmental powers and to protect various private interests, it is a long and poorly organized document. The Constitution reflects the time of its writing, an era of strong conservative, agrarian interests and reaction to carpetbag rule. It contains many unenforceable provisions, known as deadwood, that conflict with the national Constitution. The Constitutions 432 amendments by the end of 2003 have been necessary due to the restrictive character of the document but they have produced a Constitution that is poorly organized, difficult to read and interpret, and the second longest constitution in the nation.

11. The Present Texas Constitution Specific Features The Texas Constitution is similar in many ways to the U.S. Constitution. Each government has executive, legislative, and judicial branches. Both are separation of power systems. Both include provisions against unequal or arbitrary government action. The two Constitutions differ with regard to providing power to government. The national Constitution is much more flexible in allowing government to act than is the state Constitution.

12. The Present Texas Constitution Bill of Rights Article I of the Texas Constitution, like the national Bill of Rights, provides for equality under the law, religious freedom, due process, and freedom of speech and press. It also protects the mentally incompetent and provides specific guarantees such as the one prohibiting the outlawing of an individual from the state. The provisions of Article I are broadly supported by the state's citizens and have been left intact during modern constitutional revision efforts. Separation of Powers The separation of powers, outlined in Article II, is reinforced by checks and balances, many of which are the same as those found in the U.S. Constitution. Because the concept of checks and balances involves assigning functions identified with one branch to another, powers are actually overlapping and shared rather than being truly separated.

13. The Present Texas Constitution Legislative Branch Article III establishes a legislative body but, rather than emphasizing the positive powers of the legislature, the article spells out those specific actions that the legislature cannot take. Unlike the national Constitution which allows lawmaking to be handled through the regular legislative process, the Texas Constitution forces state government to resort to the constitutional amendment process. Article III also spells out a number of limitations on legislative powers, including the following: Regular legislative sessions occur only once every two years. The number of days allotted to particular tasks is specified. Legislators' salaries and per diem are described and, historically, could only be changed by constitutional amendment. The legislature may not authorize state borrowing. This article rather than the municipal corporations articles includes provisions for municipal employees to participate in social security programs. The legislature may not grant public monies to individuals, but exceptions are made for Confederate soldiers, sailors, and their widows. Similar idiosyncratic provisions and limitations on legislative actions appear throughout the constitution. Although detailed restrictions in this rigid document tie the hands of legislators, the legislature is nonetheless the dominant institution in the state.

14. The Present Texas Constitution Executive Branch The constitution creates (in Article IV) a plural executive with the result that the executive branch is "fragmented" and the governor has little or no control over other executive officials. The constitution requires that the lieutenant governor, the comptroller of public accounts, the commissioner of the General Land Office, the attorney general, and members of the Texas Railroad Commission be elected statewide. Statutory laws require the election of the agriculture commissioner and the members of the State Board of Education. Like the legislative article, the executive article is overly specific, making it difficult for the governor to act. The governor does, however, possess significant legislative powers through control of special sessions and the veto and in recent years has been strengthened by amendments to lengthen the term of office to four years and provide powers of removal, and by legislation to provide greater control over major policy boards.

15. The Present Texas Constitution Judicial Branch The judicial article (Article V) is overly specific and includes such features as the requirement that each county have an elected sheriff. The judicial article has three distinctive features: It creates six types of courts and separate supreme courts for civil and criminal matters. Different trial court levels are given concurrent jurisdiction, but some courts at the same level have different jurisdiction depending on whether they are constitutional or statutory. Judges qualifications may be compromised because those with no legal training may be eligible for a trial court bench and judges are elected and not appointed.

16. The Present Texas Constitution Local Government The constitution gives units of local government (counties, municipalities, and special districts) varying degrees of flexibility. Counties, the administrative and judicial arms of the state, are most restricted as they are saddled by the constitution with a commission form of government. Cities have greater flexibility as those with populations over 5,000 are permitted to adopt home-rule charters. Special districts, of which school districts are the best known type, continue to proliferate because they provide a way around tax and debt limits imposed on cities and counties. Suffrage Many of the provisions on voting and legislative apportionment in the constitution have conflicted with federal law, such as provisions with respect to minimum voting age and property ownership as a requirement for voting in bond elections. The consequence of these conflicts has been frequent amendments and a constitution shot through with temporary transition provisions to bridge the gap between state and federal law.

17. The Present Texas Constitution Amendments Amendments to the constitution are proposed by an absolute two-thirds majority vote in both houses of the legislature and ratified by a simple majority vote in a statewide election. The 432 amendments in the Texas Constitution suggest that the amending process has occupied considerable legislative time and that it is increasingly relied upon to get something done in government. Although some streamlining of the state Constitution should ensue from a 1997 amendment that called for the elimination of obsolete provisions and duplicate numbers, most observers believe that more clean-up will be needed.

18. Constitutional Revision Overview of the Need for Reform While the framers of the U.S. Constitution provided only the essential structure of national government and broad powers to insure flexibility, the Texas Constitution is long, restrictive, confusing, and protects the concerns of vested interests and therefore requires frequent amending. State constitutions which were ratified more recently tend to have sound, workable constitutions while those, like Texas, which are older tend to be more problematic. Texas is not alone in having a proliferation of constitutional amendments, but the method of constitutional amendment is less likely to affect the frequency of amendment as much as the quality of the basic document. Reform advocates urge Texas to follow Alexander Hamiltons prescription by adopting a new document that is general, flexible, and streamlined. Proposals for reform focus on these problems: Biennial legislative sessions. Organization of the judicial system. The plural executive branch. The weakness of county governments. Excessive detail in the constitution.

19. Constitutional Revision Recent Reform Efforts 1971-1974 From 1971 to 1974, a major effort to revise the constitution was mounted as the legislature convened itself as a constitutional convention. The constitutional convention (the "Con-Con") was the product of a constitutional amendment authorizing the legislature to act. The Texas Constitutional Revision Commission, created by the same amendment, provided a detailed study that served as the basis for new constitutions proposed in 1974 and 1975. The proposal drafted by the constitutional convention, which never made it to the voters, was defeated because opponents were able to focus attention on the controversial parimutuel betting and right-to-work provisions.

20. Constitutional Revision Recent Reform Efforts, cont. 1975 Constitutional reform was revived by the legislature in 1975, but a proposal that included many of the changes suggested by the 1973 Revision Commission was defeated two-to-one by the voters due to fears that the new document might promote more spending and allow greater governmental power. 1976-1991 From 1976 to 1991, little interest was shown in constitutional revision, both because the legislature was too concerned with more pressing problems and because the many groups with interests protected by the current constitution were not supportive of change.

21. Constitutional Revision Recent Reform Efforts, cont. 1992 and Beyond A constitutional reform proposal prepared by Senator John Montford for introduction in the 1993 legislative session included the following provisions: Six-year Senate and four-year House terms with limits of two and three consecutive terms, respectively. A 60-day budget session of the legislature in even-numbered years. Authority for the legislature to meet to reconsider bills that were vetoed. The only elected executives to be the governor, lieutenant governor, and comptroller, each with a limit of two terms. Simplification of the judiciary and nonpartisan judicial elections. Creation of five regional university systems with each sharing in the Permanent University Fund (PUF). Ordinance power for counties, subject to local voter approval.

22. Constitutional Revision 1992 and Beyond, cont. More immediate problems crowded out constitutional revision in 1993 and 1995 and, after Montford left the legislature, revision was not even considered by the legislature in 1997. In 1997 Representative Rob Junell was joined by Senator Bill Ratliff in proposing constitutional reforms that were similar to Montfords but they, too, were withdrawn when it became apparent that support was thin. Although three powerful legislators in recent years have taken an interest in constitutional reform, nothing has come of their efforts due to lack of interest and the political conservatism of the states citizens. It is likely that constitutional amendments will continue to be the primary approach used to patch a creaky Texas Constitution.

23. Constitutional Politics Something for Everyone Special interests view the constitution as a durable vehicle for their own policy concerns and therefore attempt to influence its content. One strategy is to seek to include in the constitution provisions that will result in economic benefits for the group. Using the constitution to prevent the state from acting (as with parimutuel betting before 1987 or with a state income tax more recently) is another method special interests may employ. Altering existing constitutional provisions (such as the authorization of bond sales to purchase land and provide home loans for veterans, limitations on welfare spending, and restrictions on branch banking) is another means of advancing some special interest. Elected officials may also either support constitutional change in hopes of augmenting their powers or oppose it in order to avoid losing powers.

24. Constitutional Politics The Political Process The politics of constitutional change are much like the politics involved in other areas of public policy. The issue of how building projects at state universities are to be funded, resolved by a constitutional amendment adopted in 1984, provides an illustration of the process. The University of Texas at Austin and Texas A&M University at College Station were, constitutionally, the sole beneficiaries of the $10 billion Permanent University Fund (PUF). After the state property tax, the primary source of funds for construction at other state universities, was abolished in 1982, the legislature was forced to come up with an alternative source of funds. Ultimately, the various interest groups involved (including university alumni, taxpayers, business and industrial interests, minority interests, the House and Senate, the governor, and the Texas Higher Education Coordinating Board) settled on a plan whereby PUF coverage would continue for institutions in the UT and A&M systems and a separate capital fund would be established to cover other state institutions.

25. Constitutional Politics The Political Process, cont. In 2001 the legislature changed the system to begin reducing the amount of appropriated funds that went into the Higher Education Fund and additional changes were made in 2003 that eliminated this special pot for construction dollars at non-PUF schools and shifted emphasis to research-only funding. Consequently, university students outside the UT and A&M systems have faced higher fees and tuition that are in part pledged to construction bonds.