Chapter 2

FEDERALISM AND THE TEXAS CONSTITUTION

Copyright (c) 2011 Pearson Education, Inc. All rights reserved

Learning Objectives

• Explain how state power is constrained by federalism and by the national and state constitutions

• Analyze how the national government has gained power within the federalism equation

• Explain why state constitutions tend to be long and restrictive

• Differentiate between constitutional law and legislative law

Learning Objectives

• Differentiate among the seven constitutions of Texas

• Analyze how the current document is partially a reaction to the previous Reconstruction-era document and partially a return to pre–Civil War policies

• Explain why those who benefit from the current constitution will work to make comprehensive reform difficult

Purpose of Texas

Constitution

• State’s fundamental law

• Structures government

• Establishes basic rules of governing

• Primary source of state’s policy-

making power

• Limits the government

Federalism

• A constitutional sharing of powers between the national and state governments

• A dual system of government operating concurrently – • One at the national level, another within each

of the states

• Both levels have authority over their citizens

The American Federal

Structure

•Federalism

–Division of power between federal

and state governments.

–“a system of states within a state”

Distribution of Powers

• Powers are divided amongst the state

and federal governments.

• Division of powers accomplished by

the U.S. Constitution, by state

constitutions, and by decisions of the United States Supreme Court.

Distribution of Powers

• Delegated Powers

–Powers specifically delegated to the

national government.

–Found under Article 1 Section 8 of the

U.S. Constitution

• Implied Powers

–“necessary and proper clause”

Distribution of Powers

• Reserved Powers

– Found under the 10th amendment of the

U.S. Constitution.

– Include police power, taxing, proprietary

power, and eminent domain.

Limitations on the

States • Powers delegated to the federal

government through Article 1 Section 8

• Powers denied to the states through

Article 1 Section 10

• The Supremacy Clause

Constitutional Limits on States

• Article I, Section 10 of the U.S. Constitution contains limits, e.g. states cannot coin money

• Article IV establishes how states must other treat one another, e.g. full faith and credit

• Other significant limits are found in the constitutional amendments

Limitations on the

States

• 13th Amendment – denied slavery

• 14th Amendment – defined

citizenship, due process, and

equal protection for the states

• 15th Amendment – defined right to

vote

Limitations on the

States

• 19th Amendment – defined right to vote for women

• 24th Amendment – denied federal poll taxes

• 26th Amendment – defined right to vote for 18 and older

Federalism Applied

• Originally, the delineation of duties between the national and state governments was clearer

• The national government dealt with the military and foreign policy

• Issues with a larger local impact, such as education and aid to the poor, have traditionally fallen under the control of the states

Shared Powers • Both states and the national government,

collect taxes and both work jointly to implement many programs, such as social services

• In Texas, federal grants generate more than half of welfare spending

• Education, transportation, and health care are programs administered concurrently by federal and state officials

Guarantees to the

States

• State creation and division (with the

exception of Texas under Annexation

Agreement)

• Republican form of government

• Representation within the U.S.

Congress

Guarantees to the

States

• Electoral college participation

• Ratification of Amendments

• Protection by U.S. military

• Court Protections

Interstate Relations &

State Immunity

• Article IV

–Privileges and Immunities Clause

– Full Faith and Credit Clause

• 11th Amendment

– “sovereign immunity”

State Powers

• State Powers

•not well defined in U.S. Constitution

• Reserved Powers – 10th Amendment

•Police Power

•Taxing Power

•Proprietary power

•Eminent Domain

Constitutions

• The basic document under which a state or nation's government operates

• CONSTITUTIONAL REPUBLIC –

– U.S. constitutional law is supreme, as are acts of Congress and treaties

• JUDICIAL REVIEW: power of the courts to strike down laws that violate the state or national constitution

National Gains • The balance of power has shifted

significantly to the national government

• CONSTITUTIONAL AMENDMENTS – Many have limited state powers

• BILL OF RIGHTS – Limits governmental power and empowers the

individual

Budgetary Powers

• The national government has gained greater control over the states through its taxing and spending policies

• About a third of Texas’s budget comes from federal government sources

• But federal money comes with strings attached –

• compel the states to pass legislation by threatening to withhold funds

The Federal Courts

• Federal courts often have jurisdiction in areas once completely under state control

• Texas politicians have been constrained by federal court orders involving:

• Prison control, mental health and retardation services, higher education funding and minority recruitment programs, and school desegregation

A Brief History of Federalism

• DUAL FEDERALISM

• Well-defined divisions between national and state powers and responsibilities

• Beginning of the Republic to the 1920s

• COOPERATIVE FEDERALISM • Era of expanded national government power,

mandates, and funding

Federal/State Relations:

Evolving Process

• Federal grants-in-aid

• Devolution

• Unfunded mandates

A Brief History of Federalism

• NEW FEDERALISM

–Favored by modern-day presidents, beginning with Richard Nixon

–Greater discretion to state governments in the use of federal grants

–Nonetheless, the overall size and power of the national government continued to increase

The “New” New Federalism • Proponents argued that decision making

should be returned to the states • DEVOLUTION

– Transfer of programs from the national to state levels - occurred in some areas, e.g. speed limits

• MANDATES

– Congressional regulations setting standards for state conduct

The “New” New Federalism

• U.S. Supreme Court Decisions limiting the federal government

• United States v. Lopez (1995)

• United States v. Morrison (2000)

• U.S. Supreme Court Decision not favoring states rights • United States v. Raich (2005)

State Constitutions

• The U.S. Constitution is a model of brevity

• 8,500 words – established the national government and the federal system

• State constitutions tend to be lengthy

• The Texas Constitution contains more than 80,000 words

State Constitutional Structure

• Most are similar in structure • Separate articles empower the executive,

legislative, and judicial branches

• Most blur constitutional law and legislative law • Bills passed by the legislature and enacted by

the governor

The Seven Constitutions of Texas

• 1) COAHUILA Y TEJAS • Created in 1827 – Texas was still a part of the

Mexican Federation

• 2) THE 1836 CONSTITUTION • Republic of Texas

• 3) THE 1846 CONSTITUTION • Texas becomes a State

Congressman, General, President, Senator,

Governor.

Sam Houston did it all

© The Granger Collection, New York

The Seven Constitutions of Texas

• 4) THE 1861 CONSTITUTION • Texas joins the Confederacy

• 5) THE 1866 CONSTITUTION • Texas rejoins the Union - nothing more than an

amended 1846 document

• BLACK CODES: Post–Civil War laws restricting the freedom and rights of African Americans

The Seven Constitutions of Texas

• 6) THE 1869 CONSTITUTION – 1867: All southern state governments were

disbanded and divided into 5 military districts - RECONSTRUCTION

– Required a constitution guaranteeing African American suffrage, and each had to ratify the Fourteenth Amendment

– E.J. DAVIS: Radical Republican Governor

The Democrats Return to Power

• After the 1872 elections – Democrats immediately began to dismantle the Radical Republican programs

• 1873 - Davis lost reelection to Democrat Richard Coke – Davis and his supporters argued the election

was unconstitutional – Asked for federal intervention - President

Ulysses S. Grant refused

Drafting of the Texas

Constitution of 1876

• 75 Democrats and 15 Republicans

elected to the Constitutional

Convention – Included 6 African-Americans

– 40% were members of the Texas Grange

• “Retrenchment and Reform” – Slogan of the Constitutional Convention

Goals of the Texas

Constitution of 1876 • Decentralize the Government

– Providing local control and taxing authority

• Reduce governmental power

– Weakened executive, legislative, and judicial

power

• Limit state debt and taxing power

– No state property tax, income, or corporate

income tax

– Unconstitutional for state to be in debt

Limiting Power in the

Constitution of 1876 • Legislature – biennial sessions with limited

salary and power

• Governor – two-year term (now four years)

sharing power with plural executive

• Judicial – elected position

• Voters supported Constitution in a 2-to-1

majority vote

The Seven Constitutions of Texas

• 7) THE 1876 CONSTITUTION • The current Texas Constitution

• THE GRANGE - A populist farmers’ alliance influential in its creation

• Represented a simple backlash against Radical Republican rule and the perceived abuses of the Davis administration

It is somewhat surprising that the 1875 Constitutional convention commissioned a poster, given that their purse strings were so tight that they didn't hire an official record keeper to chronicle the proceedings.

Courtesy of Texas State Library &

Archives Commission

The 1876 Constitution • LIMITS ON GOVERNMENT POWER

• Limited all three branches

• THE BILL OF RIGHTS • 30 provisions – e.g. protections against

unreasonable searches and seizures and double jeopardy, freedom of the press and freedom of speech, prohibitions against individuals being imprisoned for debt, and prohibited monopolies

Amending the Constitution

• TWO-STEP PROCESS:

– 1) The House and the Senate must approve the proposed amendment by at least a two-thirds vote

– 2) Majority approval from the voters

• Usually voters approve amendments

– 467 Amendments as of 2010

• Governor has no formal role

Constitutional Revision • There have been numerous efforts to

revise or rewrite the Texas Constitution

• Most have failed completely and voters have shown little interest

– 1969: several obsolete provisions, were removed, but instead of renumbering - blank sections and articles were left

– A 1999 constitutional amendment eliminated three outdated passages

The 1974 Constitutional Convention

• Last major attempt at revision

• Haggled over proposed changes from January to July – then killed it

• 1975: reconvened as the legislature - submitted a revised version to the voters

• With vocal opposition of the governor - voters overwhelmingly defeated all the provisions

Prospects for Revision • Major obstacles: –Opposition from groups that benefit

–Isn’t a hot topic with most Texans

• Prospects for change are not hopeless: –Major newspapers have called for

revision

–Junell/Ratliff proposal

Texas Constitution of

1876: Advocates/Critics

• Supporters – Lasted 140 years

– Follows culture and traditions of Texas

– Texans decide Constitutional changes through election

• Critics – Lengthy

– Complex

– Fragmented

– Duplicative

– Written more as a statute than a constitution

Texas Constitution of 1876

Source: Brown, et al. Practicing Texas Politics, 14th edition: page 68.

Texas Constitution of 1876

Source: Brown, et al. Practicing Texas Politics, 14th edition: page 71.

Constitution of 1876:

Revision Attempts

• 1995 Montford Plan

• 1999 Ratliff – Junell Draft

• Piecemeal approach to constitutional

revisions

Point/Counterpoint

Constitution of 1876:

Details • Article I – Bill of Rights

– 30 sections with 11 sections directly limiting arbitrary governmental actions

– Provides for basic rights such as freedom of speech, religion, press, petition, peaceful assembly, etc.

– Defines marriage

– Provides victim protections

– Equal rights for women

– Philosophical observations

Constitution of 1876:

Details

• Article II

–Separation of Powers

• Article III

–Legislative Power

• Bicameral legislature

• Biennial Sessions

Constitution of 1876:

Details • Article IV

–Executive Department • Plural Executive

• Article V – Judicial Branch

• Partisan election of judges

• Bifurcated Supreme Court

Constitution of 1876:

Details • Article VI

– Suffrage defined

• Article IX and others – Creates local and county government structures

– Defines municipalities and specials districts

• Other Articles – Cover education, taxation, railroads, private corporations, public

lands, impeachment, general provisions (longest article), and mode of amendment

GOOD NIGHT

• Any Questions on Topic?