THE TEXAS CONSTITUTION
CONSTITUTIONAL PRINCIPLE OF LIMITED GOVERNMENT
The fundamental philosophical foundations of the Texas
Constitution are consistent with other American constitutions.
The theoretical foundations of American constitutions
emphasize the principle of limited government:
•existence of natural rights of individuals before the creation
of government;
•origin of government is a contract;
•policies are based on the consent of the governed;
•the right of “the people” to alter or abolish their government.
In order to preserve these theoretical foundations, governments are limited in
several ways:
• structural mechanisms [i.e., separation of powers, federalism --However, we will
note that the principle of separation of powers functions more rigidly under the Texas
Constitution than under the U.S. Constitution and federalism under the Texas
Constitution refers to a division of governmental powers between state and local
authorities.]
• specific grants* or denials of authority to government [whereas the U.S.
Constitution stresses denials of authority, the Texas Constitution emphasizes grants of
authority];
• by establishing electoral processes for the selection of public officials;
• by listing the rights and liberties of individuals [the Texas Constitution
contains a bill of rights which protects many of the same rights as the U.S.
Constitution];
• by establishing amending processes [amendments to the Texas Constitution
are proposed by a 2/3 vote of both the Texas House of Representatives and the Texas
Senate and must be approved by a majority of votes in a popular election].
SIMILAR PROVISIONS IN U.S. AND TEXAS CONSTITUTIONS
Purpose of
Constitutional Provision
• republican form of government
• indictment by grand jury in serious cases
• no excessive bail
• no suspension of writ of habeas corpus
• guarantee of due process of law
• no ex post facto laws, no bills of attainder
• just compensation in eminent domain proceedings
• right to keep and bear arms
• no quartering of soldiers in private homes
• freedom of speech, press;
• right to peaceable assembly
• freedom of religion
• right to counsel,
• right to speedy trial
• no double jeopardy
• no cruel, unusual punishments;
• no unreasonable searches, seizures
Texas
Constitution
Article I, sec 2
Article I, sec 10
Article I, sec 11, 13
Article I, sec 12
Article I, sec 13, 19
Article I, sec 16
Article I, sec 17
Article I, sec 23
Article I, sec 25
Article I, sec 8
Article I, sec 27
Article I, sec 6
Article I, sec 10
Article I, sec 10
Article I, sec 14
Article I, sec 3
Article I, sec 9
United States
Constitution
Article 4, sec 4
Amendment V
Amendment VIII
Article I, sec 9
Amendment V, XIV
Article I, sec 9, 10
Amendment V
Amendment II
Amendment III
Gitlow v New York [1925]
DeJonge v Oregon [1937]
Cantwell v Connecticut [1940]
Gideon v Wainwright [1963]
Klopfer v N. Carolina [1967]
Benton v Maryland [1969]
Robinson v California [1962]
Mapp v Ohio [1961]
THE TEXAS CONSTITUTION - “LIMITING” GOVERNMENT
Although the Texas and U.S. Constitutions have some similar provisions, their underlying philosophies of constitution-making are
profoundly different. By simple ocular examination of the two documents, we may note that the U.S Constitution is roughly 10,000
words while the Texas Constitution is over 80,000 words. And while the U.S. Constitution has been amended 27 times in 208
years [10 of which came all at once with the ratification of the Bill of Rights], the Texas Constitution has been amended almost 380
times in 121 years. These facts reflect the fundamental differences in the two documents.
The U.S. Constitution is a constitution that lays out a general framework for government - it establishes government institutions and
processes and emphasizes denials of authority to government. Many political scientists and legal scholars believe this implies that
as long as the power is not specifically denied to government by the Constitution, then it may exercise that authority. The powers
of government are said to be plenary. This fact has provided flexibility in the powers of the national government and has allowed
the national government to respond to rapidly changing conditions since 1789 without repeated amendments to the Constitution
being necessary.
The Texas Constitution, on the other hand, goes well beyond a general framework for government and details the policy-making
authority of government - that is, it deals with specific policy issues. The Texas Constitution specifies what government can do and
implies that if the power is not specifically granted, government may not act. This feature of the state’s constitution makes ordinary
legislating very difficult. Frequently, in order for the state legislature to respond to changing conditions or new problems, a specific
amendment must be added to the Constitution giving the legislature specific authority to act, thus explaining the large number of
amendments to the Texas Constitution relative to the U.S. Constitution.
These differences between the U.S. and Texas can best be understood in terms of the motivations of the men who framed the
respective documents. The U.S. Constitution was written at a time when the prevailing wisdom concluded that ordinary people
could not be trusted to be intimately involved in the day-to-day affairs of government. Madison and Hamilton, for example, believed
that “the people” were susceptible to “momentary passions” and should not make governing decisions. By the early part of the
19th century, however, a more democratic view prevailed. State constitutions written in the early to mid-19th century reflected the
Jeffersonian/Jacksonian tradition which expressed considerably more faith in the ability of the common people to govern
themselves. Constitutional referenda and the long ballot, among other provisions, illustrate how the Texas Constitution is based on
this philosophical tradition.
U.S.
Constitution
Texas
Constitution
what govt. can
NOT do
what govt.
CAN do
general
provisions
Madisonian/
Hamiltonian
republicanism
detailed
provisions
Jeffersonian/
Jacksonian
democracy
History of Constitution-Making in Texas
The following list shows the several constitutions under which Texans have lived. Each constitution was
drafted in response to a particular set of historical conditions:
Constitution of Coahuila y Tejas - this document was written when Mexico gained its independence from
Spain; Texas was a state of the Republic of Mexico
Constitution of the Republic of Texas - was written when Texas obtained its independence from Mexico;
Texas was an independent republic
Constitution of 1845 - was written after Texas was successfully annexed by the United States; Texas became
a state of the USA
Constitution of 1861 - was drafted when Texas and the other southern states attempted to secede from the
United States; Texas attempted to become a member of the Confederate States of America
Constitution of 1866 - the southern states were required to draft new constitutions at the conclusion of Civil
War
Constitution of 1869 - this is the so-called radical Reconstruction constitution; the 1869 Constitution was
imposed on Texas by the Republican-controlled Congress
Constitution of 1876 - because Texans perceived the government established by the 1869 Constitution to be
“corrupt,” when Reconstruction came to an end, they drafted a new constitution. This constitution can best be
understood as a reaction to the conditions endured by Texans during the Reconstruction period. Political
scientist Beryl Pettus refers to the 1876 Constitution as a “perpetual product of Reconstruction.” Pettus
believes that it is easy enough to understand why Texans in 1876 drafted such a document, but finds it more
difficult to understand why generations of Texans since have perpetuated such a restrictive constitution.
FEATURES OF THE THE TEXAS CONSTITUTION - “LIMITING” POPULAR GOVERNMENT
• Structural and express limitations on government refers to the detailed listing of policy-making authority in
the Constitution. As we have previously noted, the inclusion of policy detail in the state’s constitution
frequently requires constitutional amendment for government to act. Some analysts have referred to this
feature of the Texas Constitution as a “strategy of detail” because it limits the authority of the Legislature to
make policy decisions, allowing policy decisions instead to be made by narrow interest groups who are
immediately affected by the outcomes of constitutional referenda.
• Separation of powers is a structural feature of the Texas Constitution which limits the power of government.
The principle differs under the Texas Constitution from the U.S. Constitution in that the former includes a
specific statement of separation of powers whereas the latter does not. The specific mention of separation of
powers in the Texas Constitution implies the principle of non-delegation of authority - one branch of
government (i.e., the Legislature) cannot delegate its authority to another branch (i.e., the executive branch)
unless there is a specific constitutional amendment allowing such a delegation of power.
• The most important limitations imposed on the Legislature include:
sessional time - by constitutional provision, the Texas Legislature meets only 140 days every two years;
consequently much legislative business goes undone [the Constitution does allow for special sessions,
however, they are limited to 30 days in duration and the agenda is set by the governor]
express limitations - amending procedure [see discussion above]
legislative compensation - Texas legislators make only $7,200 a year [plus $30/day stipend while the
Legislature is in session], leading some critics to argue that only independently wealthy persons can serve in
the state legislature.
• Plural executives - the executive power in Texas is distributed among several constitutional and statutory
executives, many of which are directly elected by voters [i.e., the long ballot]. This fact diminishes the
governor’s ability to provide a coordinated and cohesive policy agenda for the state since individual executives
can claim to have a mandate from the voters.
• Dual court system - Texas is one of only two states that retains a dual court structure [one set of courts for
criminal matters and another set of courts for civil matters]. This leads to problems in equalizing court dockets.