1875 Constitution
By Loren Miller
Constitutions
“A constitution should be short and obscure”
Napoleon Bonaparte, 1803
• If Napoleon’s statement about constitutions is to
be taken at face value, then those persons
responsible for drafting the present Texas
Constitution failed miserably.
– The 23,500 word document (not including
amendments) is neither brief nor obscure.
• The legislature has proposed 656 amendments
and 474 have been approved by the voters
making the Texas constitution over 87,000 words
in length (second to Alabama)
2013
Constitutions
• In comparison to national constitutions, state
constitutions are typically longer and amended
more often.
• When the document in which the government is
based contains a lot of specificity, this reduces the
flexibility in which the document may be
interpreted.
Constitutions
• Twenty-five percent of all state constitutions have
been adopted after World War II.
• The average state has had three constitutions.
– Louisiana with 11 and Georgia with 10 top the list
Constitutions
“A constitution should be flexible, concise and dedicated
to the fundamental principles of government”
• The Texas constitution fails all three tests:
– “ill-organized, forbiddingly written document.”
State Politics, 1984
– “As bedside reading, it would be a Texas-sized
sleeping pill.”
Kim Quaile Hill and David Mladenka, 1993
– “having to read the Texas constitution is ‘cruel and
unusual punishment.’”
Leon Blevins, 1993
Texas Under Spain (1519-1821)
• Spain established the first European claim to what
is now Texas in 1519 when Cortez came to Mexico.
• The first Spanish settlement in Texas, the Ysleta
Mission near present-day El Paso, was not
established until 1681.
• Until Mexican independence in 1821, other Spanish
missions, forts, and civil settlements gradually
followed.
Texas Under France (1685-1690)
• In an attempt to expand west of Louisiana, France
in 1685, laid claim to eastern Texas near the Gulf
Coast.
– Though claimed by Spain, the nearest Spanish
settlements were hundreds of miles away.
• A French nobleman founded a colony called Fort
St. Louis, but by 1690 shipwreck, disease, famine,
hostile Indians doomed the colony and France’s
claim.
Constitutions of Texas
• Between 1827 and 1876, Texans drafted and ratified
seven constitutions, each reflecting the politics of
the period and the history of the state.
– Coahuila y Tejas (1827)
– The Republic of Texas (1836)
– The Statehood Constitution (1845)
– The Constitution for the Confederacy (1861)
– The Constitution of Presidential Reconstruction
(1866)
– The Constitution of Congressional Reconstruction
(1869)
– The Constitution of 1875
Coahuila y Tejas (1827)
• The first constitution governed Texas while it was
still a part of the Mexican Federation.
– Texas was joined with Coahuila as one state, although
Coahuilan representatives dominated the legislature.
Coahuila y Tejas (1827)
• The constitution featured:
– A community property system
– A homestead exemption from bankruptcy
– Promote education
– A separate executive, legislative and judicial authority
– A unicameral legislature
– Establishment of Catholicism as the state religion
Coahuila y Tejas (1827)
• The first constitution governed Texas while it was
still a part of the Mexican Federation.
– Texas was joined with Coahuila as one state, although
Coahuilan representatives dominated the legislature.
– Texas lobbied for their own state within the Mexican
Federation, but their requests were denied.
• Mexico was rightfully concerned that an
independent Texas state within Mexico would soon
want annexation to the United States.
Republic of Texas (1836)
• On March 2, 1836, at Washington-on-the-Brazos, Texas
declared independence from Mexico and formed an
interim government under a constitution that was
drafted in less than three weeks.
– David Burnet was selected as interim president
– Most of the delegates were from the South and the
document reflected the American influence.
• Brief and flexible
• Bicameral legislature and an elected chief executive
Alamo Flag
After statehood in 1845, this
flag became the state flag
War for Independence
• The election of Santa Anna as president of Mexico in 1834 was
initially viewed by Texas as a positive event as they believed that
he supported their autonomy within a loose federal state.
• However, Santa Anna soon sought to consolidate power by
centralizing control over all of Mexico, including Texas.
• By early 1836 Santa Anna had crossed the Rio Grande at the
head of a large army:
– The Alamo (3/6/36)
– Goliad (3/27/36)
• Sam Houston’s army retreated eastward.
War for Independence
• Confident of victory, Santa Anna divided his forces.
– One column was sent to capture the provisional government of
Texas
– One column was sent to find and destroy the Texas army
– One column was sent to drive the fleeing civilians out of Texas
• Santa Anna pursued Houston’s army, but was outmaneuvered,
caught napping, and routed in the Battle of San Jacinto (4/21/36)
• Santa Anna was captured and forced to sign the Treaty of
Velasco which recognized Texas independence.
Republic of Texas (1836)
• From 1836 to 1839 the government of the Republic of Texas met
in temporary quarters first at Washington-on-the-Brazos, then in
Columbia, and then in Houston.
• In 1839, Edwin Waller was charged with making Austin the
capitol city of the Republic.
Republic of Texas (1836)
• The leading figures in the new nation were experienced
politicians.
– Sam Houston was elected president
• Served in the U.S. Congress and was the
former Governor of Tennessee
– Mirabeau Lamar
• Served in the state legislature of Georgia
Republic of Texas (1836)
• The constitution featured:
– Separation of powers into three branches
– A bicameral legislature
– Checks and balances
– A bill of rights
– Democratic selection of government officials
Republic of Texas (1836)
• The people also overwhelmingly approved a referendum
calling for annexation to the United States, but the United
States was not ready for Texas.
– It would come in as a slave state and Jackson feared a hostile
Northern reaction
– General Santa Anna repudiated the Treaty of Velasco. Hence,
Mexico still claimed Texas. The United States risked war with Mexico
and was not prepared for war.
• So Texas remained an independent republic until 1845.
The Statehood Constitution (1845)
• By the 1840s, annexation became more acceptable
to the people of the United States, who believed
that the future of the country was tied to westward
expansion.
– James K. Polk was elected president with a platform
of Manifest Destiny (the inevitable expansion of the
United States to the Pacific).
– A joint resolution of Congress passed both houses
of Congress and on March 3, 1845, Texas became
the 28th state.
The Statehood Constitution (1845)
• The annexation agreement contained some unusual
provisions:
– Texas could divide itself in to as many as five states
– The Texas flag could fly at the same height as the U.S.
flag
– Texas was responsible for paying off its foreign debt
– Texas would retain title to its public lands (unclaimed
land primarily in Western Texas)
• This land was to be sold to pay off the debt
The Statehood Constitution (1845)
• Mexico had threatened to declare war on the United
States if they annexed Texas. They did not follow
through on this threat. Relations remained tense.
• Texas claimed that their southern border was the
Rio Grande River, while the Mexican government
claimed that Texas’ southern border was the
Nueces River.
– President Polk ordered the commander of United
States forces in Texas (Zachary Taylor) to move his
forced into the disputed territory.
The Statehood Constitution (1845)
• Polk sent Congressman James Slidell to Mexico to
negotiate the purchase of the disputed territory.
– His mission failed
• General Taylor sent troops to the Rio Grande
(territory claimed by Mexico), and shots were fired.
• Polk then received Congressional approval for a
declaration of war against Mexico.
The Statehood Constitution (1845)
• Mexico City was captured in September of 1847
and the Treaty of Guadalupe-Hidalgo was signed in
1848 which ceded the area between the Nueces
River and the Rio Grande as well as modern day
California and New Mexico to the United States.
The Statehood Constitution (1845)
• The state drafted a new constitution which was
approved by Congress and ratified by the voters.
– This constitution was well-written, appropriately
designed, and the best constitution ever produced by
the state.
– It borrowed heavily from the state constitutions of
other Southern states and of the Republic of Texas.
– Many provisions from this constitution were
incorporated into subsequent state constitutions.
The Statehood Constitution (1845)
• The constitution featured:
– Separation of powers into three branches
– A bicameral legislature
– A democratic form of government
– Elected legislative and executive positions
– Appointed judicial positions
– Homestead and community property provisions
The Statehood Constitution (1845)
• In 1850, the state legislature appropriated money
for a permanent capitol on the site of Capitol
Square (the current site of the capitol).
The Constitution of the
Confederacy (1861)
• A state convention was held in January of 1861
which passed a resolution, later ratified, calling for
secession from the Union.
– Sam Houston warned Texans that northern numbers and
industrial capability would overwhelm the South
– Most Texans came from the South
– The vote was 46,153 for succession and 14,747 against
– Affirmation of “states rights” and the notion that the union was
designed originally as a confederacy, in which sovereign states
possessed a right to come and go
The Constitution of the
Confederacy (1861)
• Texas was admitted to the Confederate States of
America, and a new constitution that was drafted that
was little different from the constitution of 1845.
– All references to United States of America were
replaced with Confederate States of America.
Texas
1845
1861
The Constitution of Presidential
Reconstruction (1866)
• Abraham Lincoln’s plan for bringing the Southern
states back into the Union was very lenient.*
– If 10% of the people who had voted in the 1860
presidential election would swear their allegiance to
the United States, then the state could elect their own
state government (Ten-Percent Plan).
*In 1868, the Supreme Court in Texas v. White ruled that secession was
unconstitutional. Hence, the states of the Confederacy had never really left
the Union.
The Constitution of Presidential
Reconstruction (1866)
• Andrew Johnson began to implement Lincoln’s plan
by appointing A.J. Hamilton as provisional governor.
– His task was to restore civil government
– Registration of voters
– Assess and collect taxes
• A convention was called to draft a new constitution.
• The 1866 constitution is similar to that of 1845.
– As required by the national government, the
convention abolished slavery, and repudiated the war
debt and the ordinance of secession.
The Constitution of Presidential
Reconstruction (1866)
• A new legislature was elected and a new governor
was inaugurated (J. W. Throckmorton)
• On August 20, 1866, Andrew Johnson
proclaimed the insurrection at an end.
• While hindered by federal troops, Throckmorton
made steady progress in returning order to the state
The Constitution of Congressional
Reconstruction (1869)
• In the November elections of 1866, the radical
Republicans gained control of Congress.
– They chafed at the leniency of presidential
Reconstruction and insisted on more punitive
measures including the removal of former Confederate
leaders from state governmental positions.
The Constitution of Congressional
Reconstruction (1869)
• Congress passed additional Reconstruction Acts:
– The South was divided into military districts with a
military leader superior to civil officials.
– All voters had to take an oath of allegiance to the U.S.
– Ex-Confederates were prevented from voting; Blacks
were enfranchised
– Demanded new state constitutional conventions that
would be open to voters of both races.
The Constitution of Congressional
Reconstruction (1869)
• E.M. Pease was appointed as provisional governor
and he called for the convening of a constitutional
convention in April of 1868.
– 90 delegates (10 were African-American and many others
were Carpetbaggers)
• Many provisions of this constitution are items that
reformers of today would support:
– Annual legislative sessions
– Cabinet style leadership for the governor
– Greater power at the state level and less at the local level
The Constitution of Congressional
Reconstruction (1869)
• In the gubernatorial election of 1868, the moderate
faction led by A.J. Hamilton was defeated by the
more radical supporters of E.J. Davis.
– Davis defeated Hamilton by fewer than 800 votes of over 79,000 ballots
– The constitution was approved by over 65,000 votes.
– In March of 1880, President Grant ended military rule in Texas.
Officially, Reconstruction was over.
The Constitution of 1875
• To many Texans, Reconstruction did not end in 1870.
• The Texas Legislature was dominated by the
supporters of E.J. Davis (Radical Republicans).
– A state police and a state militia were created under
the control of the governor.
– The governor was given power to fill vacancies in the
city, county, district and state levels.
– The office of state printer was created (subsidized by
the government and thus sympathetic to the
government) to print official documents.
The Constitution of 1875
• In September of 1871, a taxpayers convention met to
protest the high salaries of government officials,
violations of the state constitution and the allegation
that the Davis administration was bankrupting the
state.
• In 1872, Grant lost Texas to the Democratic
candidate, Horace Greeley, and Democrats took
control of the state legislature.
• By 1873, many newspapers were calling for the
convening of a constitutional convention.
The Constitution of 1875
• In 1873, Democrat Richard Coke defeated Governor
Davis by more than two to one, but the governor
refused to leave office.
– When the local militia took the side of Coke, Davis beat a hasty
retreat.
• In 1874, Democrats gained control of the state
judiciary.
• By 1875, the last vestige of the Republican
administration was the Constitution of 1869. Most
Texas believed that this too needed to be replaced.
The Constitution of 1875
• In early September of 1875, a constitutional
convention met in Austin. Of the 90 delegates:
– 76 were Democrats; 14 were Republicans (including 6 blacks)
– Average age was 45
– 72 were immigrants from other Southern states; 19 from
Tennessee
– About 50 had come to Texas between 1840 and 1870 and had
first hand experience with Reconstruction
– 33 lawyers; 28 farmers; 3 merchants; 3 physicians; 2 editors; 2
teachers; 2 mechanics; 1 minister; and 1 postmaster
– Many had held high ranks in the Confederate Army; 3 had been
Union Army officers
– None had been members of the Convention of 1869
Delegates to the
Constitutional
Convention of
1875
The Constitution of 1875
• Almost half of the delegates were members of the
Texas Grange, a farmers organization.
– They favored frugality and anti-monopolistic business practices
– Members favored low taxes and limited governmental services
– Members favored governmental regulation of the railroads, banks
and other corporations
– Members favored a limited public school system
– Members wanted a poll tax as a suffrage requirement
The Constitution of 1875
• The new constitution included a provision for
financing a new capitol building. In 1881, just as the
plans for a new capitol were finished, the 1853 capitol
burned to the ground. The new capitol, financed by
the sale of three million acres of public land, was
completed in 1888.
XIT Ranch
• Land in the Texas Panhandle
was given to a group of Chicago
investors as compensation for
the construction of a new state
capitol in Austin. The land
(3,000,000 acres) covered
portions of 10 counties. This
became the XIT Ranch and
operated from 1885 to 1912.
The Constitution of 1875
• The delegates were experienced in governmental
affairs, but not very well read in the writings of the
great philosophers.
• These were people who had been uninvolved in
decision-making and they now had the opportunity to
draft a state constitution to their liking.
“We know that the convention has relatively but a few
able men in its composition, but those we deem very
able, with sound clear judgment.”
San Antonio Herald, 1875
The Constitution of 1875
Goals and Objectives
• Restrict the power of the state government
– Many believed that excessive tax money was spent to fund inappropriate
government activities
• Promoting railroad construction
• Excessive funding of public schools
• Public debt had increased twenty times over what it had been in
1866
• Further the interests of the agrarian community
– Limit the power of banks and railroads
– Place most of the power at the local level
The Constitution of 1875
• The new constitution was longer and more detailed
than previous state constitutions.
• Limit on legislative powers:
– Legislators were to meet in biennial sessions and only for a maximum of
140 days
– Legislator’s salary was reduced; any increase in salary would require a
constitutional amendment
– Required legislators to create a balanced budget
– By including detailed sections on education, finance and railroad
regulation, it forced legislators to propose constitutional amendments if
they wanted to adopt policy changes
The Constitution of 1875
• Limit on executive power
– The executive branch was to consist of seven persons, all elected
– The governor was given the responsibility to “execute the laws” but not
the power to do so
– The governor’s salary was cut
– The term of office was reduced to two years from four
– While the governor could appoint minor officials, he could not remove
them
The Constitution of 1875
• Limit on judicial power
– The judicial article provided for the election of all judges to relatively brief
terms
– The court system was divided into two segments (civil and criminal)
thereby limiting the types of cases individual courts could hear
– By writing a long and detailed constitution they left little room for judicial
interpretation
The Constitution of 1875
• The Bill of Rights: Texans wanted to make sure that
individual liberties would never again be trampled.
–
–
–
–
–
30 very detailed and lengthy amendments
Can not be imprisoned for debt
No monopolies are allowed
Cannot use state money for religious purposes
Cannot deport a citizen from the state for any offense
committed in Texas
Comparing Constitutions
The Constitution of 1875
• The constitution reflected measures that were
popular in the 1870s; unfortunately the constitution
was time-bound to that era.
• Hence, bringing Texas into the 20th and 21st centuries
falls on the amending process rather than the
legislative process.
– The fundamental law for the state is kept up to date
not by custom, usage and interpretation, but by the
amending process.
Uniquely Texas
• Many settlers came to Texas to escape debts, so the
Texas Constitution promised that no one could be
imprisoned for debt and your homestead could not
be seized for debt.
• Even in bankruptcy, your homestead and personal
property up to $60,000 for married couples and
$30,000 for singles is protected.
• Retirement accounts (IRAs, 401k, 403b, and
educational IRAs) are protected.
Uniquely Texas
• Texans enjoy a general protection against
garnishments (seizure of wages to pay debts).
– Exceptions include spousal and child support,
repayment of student loans, and payment to the IRS
• Texas is a community property state
– Property acquired before marriage or after marriage
by gift or inheritance remains separate, but all property
acquired in marriage is held in common
• There is a provision that requires officeholders to
affirm a belief in a “supreme being”
– Violates the U.S. Constitution (1st Amendment)
Amendments
Years
# Proposed
# Adopted
Average #/Year
1879-1900
31
17
0.81
1901-1920
55
21
1.05
1921-1940
91
47
2.35
1941-1960
78
59
2.95
1961-1980
151
98
4.90
1981-2000
180
148
7.40
2001-2011
89
84
7.64
Constitutional Amendments
November 5, 2013
•
Authorize the legislature to provide for a property tax exemption for the
spouses of veterans.
•
Eliminate a requirement for the State Medical Education Board and the
State Medical Education Fund (neither is in operation with the
Education Board closing over 25 years ago).
•
Extend the tax exemption period on storing aircraft parts in the state
and would provide more tax relief for aerospace manufacturers.
•
Authorize the legislature to give a partial property tax exemption on
charity donated residences to disabled veterans or their surviving
spouses (would eliminate the 100% disabled requirement).
•
Allow home owners 62 or over to use reverse mortgages to purchase
residences.
Constitutional Amendments
November 5, 2013
•
Would create two funds to finance key projects in the state’s water plan
by pulling about $2 billion from the Texas Economic Stabilization Fund
(pulling money from the Rainy Day Fund).
•
Allow home rule municipalities to chose how to fill city council
vacancies if the positions have less than 12 months remaining in a 3 or
4 year term (eliminates the requirement to hold special elections).
•
Repeal a provision authorizing the creation of a hospital district in
Hidalgo County.
•
Authorize the State Commission on Judicial Conduct to use additional
disciplinary actions – including public admonition, reprimand , or
required additional education or training – against judges or justices
after a hearing (current law only allows public censure, removal or
retirement).
“Half the ballot items are ridiculous
because they deal with doing away
with a constable’s position in Erath
County or somewhere and the other
half no one can understand because
they involve bond financing or some
arcane part of the Constitution that
has to be fixed.”
Former Senator Bill Ratliff
Prospects for Reform
• Calls to revise the constitution began fairly soon
after its ratification.
• It was not until 1974 that a convention was held
– The legislature created a Constitutional Revision Commission to
make recommendations to members of a constitutional
convention, composed of members of the Texas Legislature
• The revision commission proposed a draft of a new
constitution and this draft became the basis for debate in
1974.
Prospects for Reform
• Special interest groups that were protected by the
Constitution of 1876 were afraid of losing their
protected status.
– JPs feared the requirement that all state judges be attorneys
– Texas A&M and UT-Austin were worried about protecting the
Permanent University Fund
– The highway lobby was worried about the Highway Trust Fund
– “Right to Work” angered labor leaders
• Members of the legislature were delegates and were
afraid of alienating the major benefactors in their
districts.
Prospects for Reform
• In 1975, the legislators voted to present the failed
constitution to the voters as a series of eight
constitutional amendments.
– Voters in 250 of the 254 counties rejected all eight amendments
– Overall, it was rejected by a 4 to 1 margin
Can Texas Secede?