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" For most this is generally seen as a reference to the Federal Judiciary. One thinks of the Warren Court, and the great number of decisions concerning civil rights, voting rights, etc. It is often not realized, however, to what an extent state judges play ar ole in shaping these issues. In many state court systems, the state system was actually more liberal than the Federal:
First and foremost, state constitutions may be used not only to broaden rights but also to restrict them. They are far easier to amend than the U.S. Constitution. Therefore, forces within a state dissatisfied with liberal court interpretations of the fundamental state law may, without nearly the same effort required on the federal level, undo those rulings....In Florida... voters adopted an amendment to the state constitutional search and seizure provision, requiring the provision to be "be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.".... [This] "forced linkage"... requires the Florida courts -- which had also been quite liberal in establishing state constitutional rights -- to adopt no broader rights than are granted by the U.S. Supreme Court....Before forced linkage, Florida Supreme Court cases rejected U.S. Supreme Court interpretations in favor of broader rights 80% of the time; after forced linkage the rejection rate dipped to 18%.
This is one way that the Texas Constitution does allow for the judiciary to be more responsive to the opinions of the voters. A constitutional amendment would not have been required in Texas to effect these same changes. Yet, whether that is actually better is a matter that is open to question. Remember, in states such as Florida and California (California has also instituted similar constitutional change), any significant change in general judicial policy must be put up to a special vote of the general population. The Texas system permits a fair degree of popular, and even very temporary, prejudice from obscuring good policy c.f. Civil Rights.
The foregoing example reveals, in fact, a particularly great flaw in the Texas State Constitution. In the name of protecting popular sovereignty, and guarding the people against abuse of power by officials, the Constitution has also enshrined the popular will as a force of awesome power; a force of awesome that may be positive or negative. Early political theorists, both in the United States and abroad, spoke frequently of the dangers of mob rule. In the years immediately before Texan Independence, the young United States was particularly convulsed by riots:
1835 represented the crest of rioting in the United States. All types of mobs had riotous representation in this year, but over two-fifths of the riots... related to issues at the core of sectional tension [emphasis added]: there were 46 proslavery riots (35 against abolitionists and 11 in response to insurrection scares) and 15 racial riots, 11 of these against blacks, 3 in aid of fugitive slaves, and 1 by blacks.
The subjects of these riots were to have an ominous significance for later developments in Texas, and throughout the South. Pressure from the White "rank and file" was to be all important in the future system of Jim Crow. In the case of the Civil Rights Movement, the courts were all important in advancing a "liberal agenda." During the long period in which African-Americans were denied equal rights, and treated as second-class citizens, one would have been hard put to find a Texas judge who would have risked re-election by supporting an "extremist agenda" like equal rights for Black People.
Another example of popular sentiment vs. human or civil rights can be found in the "Religious Right" Movement that is so powerful in the State of Texas. Again, the State's heavy reliance on popular sovereignty opens the door to popular bias. In a State where one's public faith is deemed so important, one is not likely to discover elected judges who will be overly enthusiastic about protecting the rights of non-believers, or even of those who do not believe in quite the same way. In the 1990s, the editor of an Austin newspaper for atheists was called to jury duty. She refused to swear any kind of oath, as to her, any such statement smacked of religion. She was found in contempt of court until a judge finally worked a kind of "truth affirmation" that she could use instead of a traditional oath.
Here in this case we see the operation of popular prejudice to a much greater degree than would have been possible in say New York or California.
Too great a reliance on the general will, combined with exceedingly precise governmental instructions can also immobilize the Texas State Government. Almost no matter where one looks, one sees the operation of these kinds of constraints. Texas is regularly ranked near the bottom in terms of education, welfare, medical care and so forth. These facts can easily be linked to the limitations of the Texas System. This is not to say that Texans, as a people, are especially uncaring or unfeeling. On the contrary, one can witness a great deal of public feeling, helpfulness, and camaraderie at many levels of Texas Society. Religion, and also local community life in general, is quite strong, and exhibits the powerful bonds that exist among fellow-Texans. The citizens of few others states have such a fierce sense of pride in their home state, and possess such a strong identification with it. Nevertheless, the mere suggestion that everyone has a voice, and that everyone is paying into the common pot, will lead many citizens to question how their taxes are being used, and if all who receive public money are truly deserving of that money. This can translate into a situation in great numbers of people do not fully understand the very real needs of others, and believe that, by eliminating people from "the dole," they are in fact making them better people. "In Texas, weak political institutions -- a weak governorship and a still largely amateur legislature -- allow special interests great influence over state policy."
In place of a real concern for the public, there are instead private groups that speak through the legislature, judiciary, governorship, and all of the other rather weak stae offices established by the Texas Constitution. Policies that are not in the public interest, but favor only powerful and entrenched commercial and private interests are able to gain the fore by masquerading as genuine public concerns i.e. these issues are brought forward by one of the nation's most populist state governments.
Clearly, there are many desirable features in the Constitution of the State of Texas. Among these should be placed the Document's great emphasis on popular sovereignty and the popular will. Yet, in Texas, the Constitution so circumscribes the power of any, and all, officials - judges, legislators, administrators - and so clearly fixes the responsibilities of each that, the government is largely immobilized. Change is almost impossible because of the minuteness of regulation, and the need on the part of public officials to constantly be campaigning for office. No one wishes to do anything even vaguely unpopular, and thus jeopardize his career. As well, an overweening concern with public opinion leads to giving too much weight to prejudice, as opposed to fairness, and good sense. Public money, too, is watched so carefully that it is difficult for the government to adequately provide services and assistance. In short, the Texas State Constitution should be modified to allow for greater freedom of action on the part of government officials, while at the same time preserving essential guarantees of public control and responsibility to the public good. Texas needs to find a balance between the individualism of the Old West, and the community of the modern world.
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