Government/Politics Texas - A Good

Government/Politics

Texas - a Good Constitution?

The system of government of a land, or territory, ideally reflects the history and culture of that particular place. The Constitution of the United States is based on the traditions and ideals of the American people. Each of the states that together make up the United States has its own constitution as well. Each of these state constitutions likewise represents the coming together of that state's history, ideals, and way of life. Most of the American state constitutions bear some resemblance to the national Constitution of the United States. The government and the philosophy of government, that each establishes is, in broad outline, similar to the political arrangements that remain in force throughout the Union. Yet, each of the fifty states has its own "personality;" its own "story" that pertains to the people of that state alone. Again, there are many common denominators. Most of the Eastern States, for example, were for many years colonies of Great Britain. All of the American States (with the sole exception of Louisiana) base their laws upon the English Common Law. Common Law itself represents the legal conclusions reached during England's long history. Common Law is based especially on the concept of juridical precedents - a judge reaches a decision on a specific matter, which matter had never before been addressed in quite the same way by any other court or legislative body. These judicial decisions accumulate, one on top of the other, and are laid beside all other precedents and legislative acts. The sum total of all these is the Common Law - a uniquely organic and ever-changing system of jurisprudence. However, not all states share a common history as long-time English colonies. Texas stands out in many ways. Like various other Western States, the Lone Star State was originally a part of the Spanish Empire. It was also at times under the rule of other powers, and was, in fact, even an independent nation following its successful secession from the young Mexican Republic. The Constitution of Texas is based on these experiences. The Texan Constitution, therefore, both resembles and differs from, those of other states. Whether these differences are positive or negative demands a closer analysis.

Like most state constitutions, the Texas State Constitution is considerably longer than the federal constitution. In fact, the Texas Constitution carries the dubious distinction of being the second longest in the nation - only Alabama's is lengthier.

The extreme wordiness of the Texas document is due to the great detail in which the functions and responsibilities of state government are spelled out. As little as possible is left to the imagination; the result of a Nineteenth Century abuse of power that was not quickly forgotten.

As a result of this painful memory of Reconstruction Era corruption and misgovernment, the powers of most state officials are severely curtailed. The state's governor is one of the weakest in the nation, and even the legislature is permitted to serve only one hundred forty days a year, except when in special session.

The state's constitution is an ideal document for a people who prize independence and personal initiative. The constitution of the State of Texas, like its people, is dedicated to the maxim that "the government that governs best governs least." Nevertheless, in today's increasingly complex world, such an arrangement may not always before the best. In the past generation, two full-blown attempts have been made to change the Texas Constitution, both of which failed to command sufficient public support.

The 1974 State Legislature was actually designated a Constitutional Convention. The body failed by only three votes to agree on a revised document to present to the state's voters.

A second attempt did not get even as far. Constitutional reform in the state remains a dream.

But why these major attempts to re-write the current Constitution? As described in brief, the governor of the State of Texas is one of the least powerful of all American state governors. The strict limitations placed on the exercise of gubernatorial power means that there is no single, strong hand that directs the state administration. Power is divided among the governor and other elected officials, creating the unusual situation of a plural executive.

The State is like a ship with several captains, each vying for control, each attempting to set the course of the vessel. It is easy for these officials to agree only on the most basic and straightforward of ideas and policies. The dividing up of the executive limits the chances that any one official will assuming absolute control, but it also works against any dramatic change - no matter how sorely needed. In effect, the entire Texas executive is an assembly; an assembly without any clear leader.

By the same token, the Texas System of divided leadership provides for very little accountability for decisions. Though a single individual holds the office of governor, for example, that one individual can always blame his failings on a lack of support from the other officials with whom he shares power. The same system that discourages personal accountability does, however, create a system that emphasizes "group accountability"... For better or worse. In Texas, party government is even more significant than it else elsewhere in the United States. As each individual officeholder has so little power on his own, he must work closely with others in order to achieve any real influence. On the surface, this may sound like a very good idea; one that encourages cooperation and moderation. Officials who are compelled to "unite" must also settle their differences, and work toward the greater public good... right? Unfortunately, a party can also become a machine, a dangerous monolith that is beyond the control of any one politician. The more offices a party controls, the more powerful it becomes. If a party comes to control a huge preponderance of offices, it eventually assumes the very same kind of "dictatorial power" that the Texas Constitution was so careful to prevent. It is unfortunate that historical circumstances combined to produce exactly this situation in Texas. Popular hatred for the policies of Reconstruction turned Texas - and indeed the entire South - against the party of Reconstruction i.e. The Republican Party. Therefore, for more than a century, the government of the State of Texas, like state government all across the American South, was entirely dominated by one party - the Democratic Party.

A case in point is the Texas Judiciary. Texas state judges are elected, as they are in many other states. Presumably, this system was adopted as it was thought to allow for greater public control over the judiciary - the judges would, at every step of the way, would be held accountable for their decisions. If their decisions were unpopular, they could simply be voted out of office.

In its first five years of statehood, Texas was a microcosm of the early national experience with state judicial selection. Initially, judges were appointed by the governor and approved by the Texas senate. Then, in 1850, the influence of Jacksonian Democracy led to the adoption of judicial selection by popular election. Under Reconstruction, Texas returned to the gubernatorial appointment of judges. However, largely in response to abuses of the gubernatorial appointment power during Reconstruction, Texas included a provision in its current constitution, adopted in 1876, for the selection of judges by popular election. While the Texas constitution does not require that judicial candidates run on partisan ballots, Texas election law encourages judicial candidates to run as party Nominees.

In other words, Texas's judicial system is a reproduction in miniature of the State's entire political and governmental system. As such, it shares the identical strengths and weaknesses.

Once more, the one party system that is encouraged by the Texas State Constitution has its advantages and its drawbacks. In the case of judges, the pressure to conform is exceedingly great. No judge wants to be vote out of office - a party machine can easily influence judicial decisions. Even worse, the ruling party can interfere with the selection of candidates for the judiciary. The whole system encourages party bosses to choose highly-malleable individuals for judicial positions. Such individuals may not only be pliable, they may also have few deep moral convictions, and might well show a willingness to dispense with what is right in the name of furthering their careers, or maintaining their hold on office. So many of today's political battles go to the very heart of American politics. Arguments over the separation of church and state, abortion, and gay rights, demand un-biased judges and officials. The independence of the state judiciary is more important even than many realize. While one is constantly hearing of decisions of the United States Supreme Court that effect a broad impact on policy, individual state courts possess very similar, and potentially even more significant powers.

One of the most fiercely argued debates of modern jurisprudence regards so-called "activist judges." It is almost an article of faith in the Republican Party that "activist judges" are "liberal judges." 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.