Chapter 2 The American Federal System and the Texas State Con

Chapter 2: The American Federal System and the Texas State
Constitution
Introduction
This chapter describes the broad outlines of the American
federal system of government, and how that system is
established in the constitutions of both the United States and
Texas. It begins by describing federalism and constitutions,
and then see how the United States Constitution assigns powers
to the national and state governments. It then proceeds
to describe the development of the Texas Constitution,
culminating with the constitution written in 1876 along with an
overview of how it has been amended through the election on
November 2019.
What is a Constitution?
A constitution is a body of fundamental principles or
established precedents according to which a nation or state is
governed. It does the following :
- establishes the basis of governing authority
- outlines the structure of the government
- defines and enumerates its powers, and the limits on those
powers
- clarifies the rights of the people.
All constitutions in the United States are based on the authority
of the people – at least those with power - who live
within the borders of that governing system. The nature of the
constitution is a reflection of their values and traditions.

The United States Constitution, and in turn the state
constitutions, is based on the republican tradition that
developed
over time in Britain, and included the common law. Texas, as
we will see below, was rooted initially in Spanish law, and
Jacksonian democracy. The structure of the United States
Constitution, written in the summer of 1787, was influenced
by the 13 state constitutions written after independence was
declared from Britain. It then provided a model for all
subsequent state constitutions including Texas.
The original document was organized as follows:
Preamble – Which states that the constitution has been ordained
and established by the people of the United States.
Article One – Vests the legislative powers in a bicameral
Congress.
Article Two – Vests the executive power in a single person, the
president.
Article Three – Vests the judicial power in a Supreme Court,
and inferior courts established by Congress.
Article Four - Establishes the relationships between the states,
and authorizes the creation of new states.
Article Five – The amendment process
Article Six – The national supremacy clause
Article Seven – the ratification process
27 Amendments, including a Bill of Rights, have been added
since then.
The national document is brief, vague and limited in its scope.
What is a State Constitution?
Each of the 50 states have their own constitutions which allow
for the organization of state governments according to

their own wishes, in accordance with what is allowable by the
national constitution, specifically that they establish
republican governments. Local governments are organized under
charters, which are similar to constitutions, except
that they are granted by the states to the specific government.
Thirteen state constitutions predate the U.S.
Constitution, meaning that the states were already in a position
to govern themselves independently, as they had during
the colonial era. The expectation that new states would be added
to the union led to the inclusion of the following
language in Section 4 of Article 4:
The United States shall guarantee to every state in this union, a
republican form of government
Laws were established outlining how new states would be
created. The Northwest Ordinance for example, outlined the
requirements for the statehood of what would eventually
become the states of Ohio, Michigan, Indiana, Illinois, and
Wisconsin. This included the drafting of a constitution outlining
the design of its republican government. This would then
have to be approved by the U.S. Congress prior to admission the
union.
While state constitutions have the same structure as the national
constitution, there are significant differences between
the two regarding policies. As will be illustrated more below,
the greater range of policies handled by the state
governments means that the state constitutions tend to be more
expansive that the national constitution. State power,
as a consequence of the 10th Amendment, is more open ended
than national powers, This has led some states, notably
Texas, to incorporate addition language to make it limits on

governing power more explicit.
For comparison purposes, the Texas Constitution contains the
following articles. We will go through them below, but for
now notice that the first few are similar to those in the United
States Constitution, Differences lie in the subjects of
most the remaining articles. Many concerns subjects that are
specific to the states, such as suffrage, education, and the
formation of local governments. Others are focus on issues
unique to Texas, such as its approach to regulating railroads,
land ownership, and the management of public lands.
Preamble
Article I: Bill of Rights
Article II: The Powers of Government
Article III: Legislative Department
Article IV: Executive Department
Article V: Judicial Department
Article VI: Suffrage
Article VII: Education--The Public Free Schools
Article VIII: Taxation and Revenue
Article IX: Counties
Article X: Railroads
Article XI: Municipal Corporations
Article XII: Private Corporations
Article XIII: Spanish and Mexican Land Titles
Article XIV: Public Lands and Land Office
Article XV: Impeachment
Article XVI: General Provisions
Article XVII: Mode of Amending the Constitution of this State
_________________________________________
What is Federalism?
Federalism in the United States is a division of powers between
three layers of government: the national, state, and

local. Each of government has defined responsibilities, though
many of these overlap. This results in a highly complex
governing system. It is composed of over 90,000 governing
units (citation) on those three levels. We have one national
government, 50 state governments, and the rest are local. These
include multi-purpose governments like cities and
counties, and single-purpose governments like community
college districts and independent school districts.
The federal, confederal, and unitary systems.
There are three ways these layers of government can be relate to
each other, based upon which level has authority over
the others, federalism is one of them. The other two are unitary
and confederal. Each defines the relationship between a
central government and its component parts. Specifically, which
has authority over the other. Ultimate authority in a
republic, of course, rests with the people. This is known as
popular sovereignty.
We see this expressed on the national level in the opening of the
U.S. Constitution:
We the people …. ordain and establish this Constitution of the
United States of America.
But we also see this expressed in the constitutions of the 50
states. The Texas Constitution begins with:
. . . We the people of Texas do ordain and establish this …
This makes the national and state governments equally
sovereign, which is a principle source of conflict between them.
The relationship between them was different under the Articles

of Confederation. In it, the delegates of the states
created the national government, meaning that the states were
superior to the national government. This is the defining
feature of a confederated system of government. The component
parts of a government create a national system to
coordinate activities between the component parts, but it has no
independent authority. It acts only as the states allow
it to act. This has the advantage of limiting the power of the
national government, but it can also make it impossible for
it to effectively address problems that impact all the states. This
was the reason why the confederal system was replaced
with that under the current constitution.
While the national and state government are equally sovereign,
language in the U.S. Constitution makes the national
document supreme. Section 2 of Article 6 states:
This constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made, or
which shall be made, under the authority of the United States
shall be the supreme law of the land; and the judges in
every state shall be bound thereby, anything in the constitution
or laws of any state to the contrary notwithstanding.
This is the supremacy clause. State laws cannot be in violation
of the U.S. Constitution. Furthermore, Section 3 of Article
3 states:
3. The senators and representatives before-mentioned, and the
members of the several state legislatures, and all
executive and judicial officers, both of the United States and of
the several states, shall be bound by oath or affirmation,
to support this constitution.
All government officials in the United States, no matter which
level of government, must be bound to the national

constitution. It is the one document that contains the basic rules
that bind the nation together.
Unitary Systems
A unitary system of government is the reverse of the confederal
system. In it, the central government is supreme and
the component parts exist to implement the law. Alexander
Hamilton presented a plan to the constitutional convention
that would have come close to doing so, but it went nowhere.
The relationship that exists between the state and local
governments however is unitary. Since the U.S. Constitution
says
nothing about local governments, the nature of local power
would not be define until federal judge John Dillon stated
the following in 1868:
"Municipal corporations owe their origin to, and derive their
powers and rights wholly from, the legislature. It breathes
into them the breath of life, without which they cannot exist. As
it creates, so may it destroy. If it may destroy, it may
abridge and control".
This has come to be known as Dillion’s Rule. Under the
reserved powers, states may create local governments, and in
the case of cities authorize their ability to govern themselves by
granting them charters which define the nature of their
powers. This is referred to as home rule authority, which the
Texas Constitut6ion grants to cities over 5,000 in
population. States have the power to alter those powers as they
see fit.

Federalism in the American Constitutional System.
We will now look at how the U.S. Constitution divides power
between the national and state governments we will do so
by first reviewing the various types of powers that exist in the
document, and then looking at the specific functions the
document gives to the states.
Federalism in the American Constitutional System: The Powers.
One of the principle functions of the U.S. Constitution is to
allocate powers to the national and state governments. Some
powers are delegated to Congress or expressly granted to the
President. Others are reserved to the states, while still
others are prohibited to them. The vague language in the
document has led arguments that other powers are implied to
the states. Still other powers are concurrently shared by each
level.
Let’s walk through them:
The Delegated Powers: These are the powers specifically
allocated to the national government, some of which are also
prohibited to the states. The word “delegated” comes from the
10th Amendment. They are also referred to as the
“granted” powers from the language of the beginning of Article
1: “All legislative powers herein granted shall be vested
in a Congress of the United States.” This is taken by some to
mean that Congress is restricted to only these powers. They
are also sometimes referred to as the enumerated powers
because they are numbered in 18 clauses in Section 8 of
Article 1.
These powers focus primarily on the establishment of interstate
and international commerce, and providing internal and
external security. One of the reasons for the creation of a

federal system was the fact under the Articles of
Confederation, the states were unable to provide either. As a
consequence of the enumeration of these powers, it has
become common for challenges to be made in the courts about
the constitutionality of laws passed by Congress under
the theory that Congress can pass no law explicitly authorized
to it. As we will see, this is not the case with the powers
reserved to the states.
The Implied Powers: These are powers not clearly listed in the
U.S. Constitution, but are based on broad readings of
three clauses in Section 8 that are called the elastic causes due
to their vagueness. These are, in order of appearance,
the general welfare clause, the interstate commerce clause, and
the necessary and proper clause. Over the course of
American history claims have been made that Congress has been
authorized to pass laws based on broad readings of
these clauses. Sometimes states push back against these laws in
the courts seeking to have them overturned. Texas is
often a plaintiff in these cases.
The Prohibited Powers: Sections 9 and 10 of Article 1 list limits
on the powers of government. Section 10 focuses
specifically on the states, and lists what the states cannot so.
These are primarily national powers, and are designed to
ensure that individual states cannot interfere with them. These
include treaty making, coining money, and engaging in
war.
The Reserved Powers: These are not mentioned in the original
constitution, but in the last of the first ten amendments
added to the constitution at the request of a number of states
during the document’s ratification. The states were
concerned that without specific limits on the national
government, its powers would grow. James Madison argued that
this was unnecessary given that the U.S. Constitution already

limited national power:
“The powers delegated by the proposed Constitution to the
federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite.
The former will be exercised principally on external
objects, as war, peace, negotiation and foreign commerce. ...
The powers reserved to the several States will extend to all
the objects which in the ordinary course of affairs, concern the
lives and liberties, and properties of the people, and the
internal order, improvement and prosperity of the State.”
Nevertheless, the 10th Amendment was ratified with the
following text:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the
States respectively, or to the people.
Following Madison’s logic, there is no defined list of what
these powers are. They are generally referred to as the police
powers, that is the power to regulate the health, safety, welfare,
and morals of the people. In short, they comprise
anything a state chooses to do, as long as it is not prohibited to
it by the U.S. Constitution. Proponents of an expanded
view of the 10th Amendment argue that there are benefits to
allowing the states free reign to experiment with public
policy. They can act as “laboratories of democracy” and allow
policy options to be tested out. Texas was one of the first
states to experiment with placing limits on non-economic
damages as a result of lawsuits. Other states have

experimented with legalizing marijuana. This allows for a
pragmatic assessment of the consequences of doing so. Based
on this information, other states may decide to adopt similar
policies, or not.
The Concurrent Powers: All governments share certain powers,
these are called concurrent powers. The most common
is the power to tax.
All previous powers relate to the legislature – Congress. The
states are also impacted by the executive and judicial
powers in the U.S. Constitution. The powers of the president
include the power as commander in chief to “call up the
militia of the several States, when called into the actual service
of the United States.”
The judicial power includes the ability of the national courts to
hear cases involving the states. Article III of the
constitution outlines the jurisdiction of the courts, which
includes disputes between the governments of different states.
It also allows the national courts to hear lawsuits against a state
government by its own citizens. This is a consequence of
the 14th Amendment which establishes that people born in the
states are citizens of the United States, and that the
states cannot violate their privileges and immunities or due
process rights.
Neither can the states deny persons in their jurisdiction the
equal protection of the law. Over its history, the government
of Texas has been sued, sometimes in landmark cases, for doing
so.

Here are examples:
- Smith v Allwright
- Sweatt v Painter
- Roe v Wade
- Lawrence v Texas
Federalism in the American Constitutional System: The Roles of
the States.
The U.S. Constitution also clearly grants to the states certain
responsibilities, the most important being control over
suffrage and elections.
Suffrage. Clause 1 of Section 2 of Article One of the United
States Constitution states:
The House of Representatives shall be composed of members
chosen every second year by the people of the several
States, and the elector in each State shall have the qualifications
requisite for electors of the most numerous branch of
the State Legislature.
This establishes that each state gets to decide for itself who gets
to vote. The national government would not begin to
place restrictions on the states until after the Civil War with the

passage of the 15th Amendment – and the statement
that states could not use race, color, and previous condition of
servitude as reasons to deny the right to vote, which
would not be given any substantive support until the Voting
Rights Act in 1965.
Further restrictions would be placed on the ability of states to
deny the right to vote on the basis of sex, inability to pay a
poll tax, or being 18, 19, 0r 20 years old. States still retain the
right to deny the right to vote on other criteria, including
having felony convictions, mental incompetence, failure to
register to vote, and residency requirements. The restrictions
Texas continues to place on suffrage, among other items, can be
found in Article 6 of the Texas Constitution, which is
titled Suffrage. Further information can be found in Texas’
Election Code.
Elections. The U.S. Constitution gives states the sole
responsibility of conducting elections to national office. The
national
government has no independent constitutional authority to place
items on a ballot. For that reason, there is no such
thing as, for example, a national referendum. These can only
happen at the state and local level. The scope of electoral
laws the states can pass include laws regulating candidacy,
voter registration, the determination of voting locations, and
the nature of the ballot. This is established in two separate
clauses in Article 1 and Article 2, this first concerns Congress,
the second concerns the president.
Clause 1, Section 4 of Article 1 states: The times, places and

manner of holding elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof.
Clause 2, Section 1, Article 2: Each State shall appoint, in such
manner as the Legislature may direct, a number of
electors, equal to the whole number of Senators and
Representatives to which the State may be entitled in the
Congress.
Each of the members of the U.S. House and Congress, as well as
the presidential electors, are selected in each of the
separate states. The only initial limit placed on these people is
that each institution had the power to review the
credentials of the elected officials to ensure that they had the
proper qualifications. Since the ratification of the 14th
Amendment’s equal protection clause, and the passage of the
Civil Rights Act of 1964, states were subject to potential
lawsuits initiated by their own citizens alleging that they have
been discriminated against in the electoral process on the
basis of race. As with suffrage Texas has been sued repeatedly
for doing so.
Texas’ history of restrictions to vote based on race was so
egregious that for several decades the state had to have any
changes to its electoral laws pre-approved by a panel of federal
judges appointed by the United States Justice
Department before they could take effect. This was a
consequence of the passage of the Voting Rights Act. Southern
states pushed back against the law and ultimately had the power
of pre-clearance suspended in Shelby v Holder. Texas
supported the case by joining with other states to write a friend

of court brief for the Justices to consider.
Redistricting. Every ten years the national government conducts
a census with the declared intent to reapportion
members of the House of Representatives to the each state
according to a formula which ensured that representation
will be in accordance with the relative populations of the states.
Representatives shall be apportioned among the several States
according to their respective numbers, counting the
whole number of persons in each State.
The national government sends to each state, information
regarding the number of representative they may send, as
well as where people in the state live. Though not required to in
the U.S. Constitution, which says little about districts,
the states take that information and drawn districts for each
member to represent. The Constitution says nothing about
the relative sizes of these districts and over time, some states
did not redistrict, which led unequal populations in each,
and to imbalances in power within the states. In a series of
cases in the early to mid 1960s, the United States Supreme
Court inferred that the constitution contained an implicit
requirement that one person equals one vote.
As with other aspects of elections law, this power has been used
by states like Texas to manipulate the nature of
representation. Through a process called gerrymandering, a
majority in the state can draw districts in such a way that

maximizes their strength, thereby minimizing the power of
others. Sometimes this process involves race, sometimes it
involves parties. In either case, plaintiffs who were effected
negatively by these laws have sought relief against states by
suing in federal court, arguing that their equal protection rights
have been violated. Due to the language and history of
the equal protection clause, the U.S. Supreme Court has been
more sympathetic of the former cases, less so of the
latter. Race, not partisanship is protected under the
Constitution.
An additional constitutional dispute regarding redistricting
involves who gets to do it. As mentioned above, Clause 1,
Section 4 of Article 1 states: The times, places and manner of
holding elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof. Note the use
of the word “legislature.” What does that word actually
mean? Some states, not Texas, have created non-partisan
institutions to redraw legislative districts. Often these have
been done by initiative elections, meaning they were approved
by the voters of each state, not the legislatures in each
state. In 20XX the voters of Arizona established such a
commission and the legislature of Arizona filed suit in federal
court arguing that “legislature” meant that only they could do
so. The Supreme Court narrowly disagreed.
Relations Between the States. Article 4 of the U.S. Constitution
deals solely with the relationship between the states.
Other parts do as well. Most notably, in Article 1, Section 9,
Clause X states – as well as the national government – are
prohibited from taxing items imported across their borders.

State borders are open to trade. Article 4 goes further and
mandates that states
- Full faith and credit shall be given in each state to the public
acts, records and judicial proceedings of every other state
- The Citizens of each state shall be entitled to all privileges
and immunities of Citizens in the several states
- A person charged in any state with treason, felony, or other
crime, who shall flee justice, and be found in another state,
shall, on demand of the executive authority of the state from
which he fled, be delivered up, to be removed to the state
having jurisdiction of the crime
States have not always been willing to abide by these mandates
however. Texas, along with other states with a strong
traditionalist political culture, refused to give full faith and
credit to same sex marriage licenses signed in other states
until they were forced to do so by the U.S. Supreme Court in the
case of Overgefells v Hodges.
Ratify Constitutional Amendments. The United States has not
been amended much - -27 times as opposed too over 500
times for the Texas Constitution. This is partly due to the role
states play in the amendment process. After a resolution
containing an amendment’s language is passed by each chamber
of Congress buy a 2/3rds vote, 3/4ths of the states
have to ratify it. Currently that means that 13 states are enough
to prevent a proposed amendment to take effect. This
set a very high bar that is rarely cleared, and also explains why

changes in the U.S. Constitution generally result from
reinterpretation of the vague language it contains. As we wi ll
see below, the more detailed language of the Texas
Constitution does not allow for much reinterpretation. But the
lower threshold for amending the Texas Constitution – a
simple majority vote of the electorate following 2/3rds vote of
each chamber of the Texas Legislature means that is
generally unnecessary.
Federalism in the American Constitutional System: Impact of
Constitutional Amendments.
Let’s take a quick look at the impact some constitutional
amendment have had on the relationship between the national
and state governments.
The Civil Wars Amendments. After the end of the southern
rebellion, the national government passed and ratified three
amendments within 5 years. Each enhanced national government
power over the state governments, there by placing
limits on them. These were
- 13th Amendment (1865), which stated that slavery nor
involuntary servitude shall exist in the United States. A crucial
exception was made for “punishment of a crime whereof the
party shall have been duly convicted.”
- 14th Amendment (1868), which did two things. It nationalized

citizenship, meaning that states could not deny the
privileges and immunities or due process rights of as defined in
the U.S. Constitution. Neither could states deny the
equal protection of the laws to “persons in their jurisdiction,”
which applies to non-citizens as well.
- 15th Amendment (1870), which outlined three reasons why
states could not deny the right to vote: race, color, previous
condition of servitude. This fell short of a guarantee that people
could vote despite those criteria. States could continue
to deny the right to vote for other reasons, including criteria
that overlapped with the three mentioned in the
amendment.
Two other amendments added over 40 years later also help
explain the increase of national power over the states
during the 20th Century. Both were heavily promoted by
progressives.
- 16th Amendment (1913), which granted Congress the power to
collect an income tax. This pleased the states by
lessening the need for the national government to collect tariffs,
but resulted in the national government collecting
sufficient revenue to provide matching grants to encourage the
states to implement national policies such as Medicaid
and Temporary Assistance to Need Families.
- 17th Amendment (1913), which changed how U.S. Senators
were elected. Instead of by the state legislatures, they
were elected by the people of the states. This solved a common
problem where conflict with the states could lead to

senators not being appointed for long periods of time, meaning
that the states were underrepresented. But it also
meant that the state legislatures no longer had a direct impact
on the actions of Congress. State legislators that may
have been opposed to New Deal programs were not in a position
to challenge them effectively.
Stages of Federalism.
The relationship between the state and national government has
not been stable. It has changed over history due to a
variety of factors including the growth of the nation, the
development of communications and transportations
technologies, and ebbs and flows of the various political forces
over time. Changes in constitutional interpretation also
plays a significant role. The language in the U.S. Constitution is
vague enough to allow for disputes over interpretation,
as well as reinterpretation over time.
Scholars tend to divide the history of federalism into three eras:
- dual federalism (1789 – 1933)
- cooperative federalism (1933 – 1981)
- new federalism (1981 – Present)
Let’s look at each
Dual Federalism. This era began with the ratification of the U.S.
Constitution and ended with the inauguration of Franklin
Roosevelt and the beginning of the New Deal following the

election of 1932. The guiding principle during this era was
that the national and state governments are two separate spheres
and should focus on their respective spheres only.
The quote from Madison mentioned above helps clarify their
relative functions. The powers of the national government
“will be exercised principally on external objects, as war,
peace, negotiation and foreign commerce. ... The powers
reserved to the several States will extend to all the objects
which in the ordinary course of affairs, concern the lives and
liberties, and properties of the people, and the internal order,
improvement and prosperity of the State.”
This system was relatively easy to maintain during a period
when transportation and communications were slow.
Interstate commerce was not common. But during the late 19th
and early 20th centuries, technology improved to the
point where information could begin to flow instantaneously,
and coast to coast travel was available. It was easy not
only for commerce to cross state borders, but crime as well.
Problems related to health, safety, welfare, and morals
were no longer just state and local. Consequently, state and
local governments were not sufficient to address them.
In addition, large corporate enterprises emerged that had multi -
state operations. No one state was in a position to
regulate them for the general welfare. Only the national
government could do so, but this required a reconsideration of
how certain clauses within the US Constitution – notably the
interstate commerce clause – were interpreted. Gradually

the Progressive Movement developed and successfully lobbied
for the creation of national executive agencies to
regulate monopolies, the sale of food and drugs, and other
aspects of commerce. The Federal Reserve was established
during the time as well.
But the acceptance of these endeavors would not become
solidified until after the onset of the Great Depression, and
the election of Franklin Roosevelt who promised to use the full
weight of the national government to the problems
caused by it.
Cooperative Federalism. This era was triggered by the problems
posed by the Great Depression, and made into policy
with the various programs affiliated with the New Deal. These
would be expanded during the presidency of Lyndon
Johnson in what became known as the Great Society in the mid-
1960s. The immediate objective of the New Deal was to
address the widespread poverty across the nation. This involved
works projects and efforts to prop up the price of farm
products. Many projects were funded by the national
government, but run by the state governments. The funding
mechanism was the matching grant, which provided a
significant amount of funds provided that a small amount was
matched by the state in order to show that the state was invested
in the program. The money was received with the
understanding that it would be used for certain specific
purposes as defined by the national government. These were
called categorical grants.
A key shift in the Supreme Court also allowed legislation that

had been found unconstitutional, to be constitutional
instead.
- Jones and Laughlin Steel Company v NLRB
- Helverling v Davis
- Wickard v Filburn
Among the policies passed during that period were
- Securities and Exchange
- The Fair Labor Act
- Social Security
- Wagner Act
Great Society programs would go further with programs
intended to address chronic poverty, and conditions that
resulted from racial and gender discrimination. Lyndon Johnson
became president after the assassination of John F.
Kennedy, and elected on his own in a landslide in 1964. Having
spent decades in Congress, he put his legislative skills to
work to pass additional legislation. For example:
- The War on Poverty
- Medicare and Medicaid
- Civil Rights Act
- Voting Rights Act

- Elementary and Secondary Education Act
Many of these policies saw the national government inserting
itself into local affairs, and sometimes pursued objectives
that were not supported by majorities at the state and local
level. This was especially true of education, which was
already a hot button issue following the decision by the U.S.
Supreme Court that racial segregation on schools violated
the equal protection clause. This was compounded by the Civil
Rights Act, which outlawed racial segregation in public
accommodations, as well as the Voting Rights Act.
Johnson was successful in passing two key programs into law as
amendments to the Social Security Act in 1965.
Medicare, a federal program that provides health care to the
elderly as funded by payroll taxes paid by the eventual
recipients, and Medicaid, a federally financed, but state run
program that provides health care to the poor. While each
passed, the opposition to them helped contribute to the
conditions that led to the rise of a counter movement against
cooperative federalism. Much of this was driven by eventual
president Ronald Reagan whose claims that Medicare and
Medicaid constituted “socialized medicine,” and a federal
“takeover” of a service that is best either handled by the
private sector, or the state and local government. Opponents
were also successful in claiming that rather than being
cooperative, these programs were coercive
New Federalism. This refers to the efforts made after the
election of Ronald Reagan to the presidency in 1980 to roll

back the expansion of national power since the New Deal.
While the overall goal was to eliminate many of the programs
– and efforts continue to be underway – these were largely
unsuccessful. But the effort, and a string of Republican
victories in the presidency largely put a halt to further
encroachments on state power by the national government. The
only significant exception being law enforcement and public
safety. A law was passed requiring states to raise their
drinking ages to 21 or else lose federal matching funds for
highway construction. Other laws were passed expanding the
number of federal crimes.
New appointments to the Supreme Court were also instrumental
in rolling back the ability of an expanded interpretation
of the commerce clause to facilitate expanded national power.
Some newer justices adopted a narrow interpretation of
constitutional language and were unwilling to allow further
expansions of what it justified. Two cases stand out:
- United States v Lopez, which overturned the Gun Free School
Zones Act.
- United States v Morrison, which overturned the Violence
Against Women Act.
Exceptions were made however.
- Gonzalez v Raich, US Controlled Substances Act over rules
California’s Compassionate Use Act
A major shift in the nature of the grants issued to the states. In

order to encourage experimentation and local
adaptability, the Reagan Administration began loosening the
rules associated with matching grants, and instead of
issuing them with narrow guidelines, they provided them as
block grants which allowed for variation in their use. Critics
argued that this allowed for the grants to be used for purposes
that varied from their intended purposes.
Regardless, the increased willingness to allow state and local
governments to experiment with laws has led to what
some argue are improvements in public policy. These include
marijuana laws, cash bail, energy and environmental
policy, homelessness and vagrancy, and mental health
Recent Federalism Cases involving Texas
During the Obama Administration, Texas was active in using
the federal courts to challenge the constitutionality of laws
and executive orders issued. The Texas Attorney General – part
of Texas’ plural executive - is responsible for making the
decision to pursue and organize legal challenges. Greg Abbott
held the position until becoming governor after the 2014
election when he was replaced by Ken Paxton. Together they
sued the Obama Administration 48 times in federal court,
and they are allowed to do in the U.S. Constitution. The Texas
Attorney General also assists with other cases by filing
friend of the court briefs.

Here are some noteworthy cases:
- National Federation of Independent Business v Sebelius
- United States v Texas
________________________
The Constitutions of Texas: 1812 – 1876
As with all other states, Texas has a constitution that creates the
republican form of government guaranteed to all the
states in the U.S. Constitution. The current version was initially
written in 1876 following the end of Reconstruction, and
has been amended over 500 times as of 2019. It is also the last
of a series of constitutions that oversaw the governance
of the territory during a variety of manifestations. Many of the
features of these constitutions still exist in some form in
the current constitution. With that in mind, we will walk
through the past constitutions in order to understand how the
current document took shape.
We will divide this period in three depending on the specific
purposes of each
1 – During the first period the constitutions were produced by
Spain or Mexico for Texas. Texas was governed under
Spanish Law, aspects of which still exist in Texas’ legal code.
Egalitarianism – no slavery
1812 – The Spanish Constitution

1824 – Mexican Constitution
1827 – The Constitution of Coahuila and Texas
2 – During this period, the constitutions were written by the
Anglo-American settlers following the republican model
established by the United States. The principle differences
between these constitutions regarded what they were
forming. What was Texas to be? An independent nation, or a
state within the United States of America, or a state within
the Confederate States of America. Racial limits, slavery.
1836 – The Constitution of the Republic of Texas
1845 – The Constitution of the State of Texas
1861 – The Constitution of the Confederate State of Texas
3 – The question after the Confederacy’s loss in the Civil War
was what type of constitution would be acceptable to both
the United States government, and the people of the state?
1866 -
1869 – Reconstruction Constitution
1876
_____________________

Pre Constitutional Rule
Prior to 1812, and the Cadiz Constitution, Texas was ruled
under the absolute authority of the Spanish monarch. What
became Texas was an interior province of the land claimed
under the Viceroyalty of New Spain after the fall of
Tenochtitlan in 1521. Given that it was lightly populated by
Europeans, and largely controlled by Plains Indians, there
was very little in the way of any governing authority until
French interest in the area in the late 17th Century led Spain to
create a mission system, in addition to presidios, and local
settlements, notably Nacogdoches, Goliad, and San Antonio.
Altogether these would establish a buffer keeping first the
Plains Indians and later American settlers away from the
interior of Mexico. The first two were under the control of the
Catholic Church and the military respectively. Settlements
were governed under rules established over time by Castilian
Law, under the authority of the crown. Castilian Law would
form the basis for governance in the Spanish territories much
like Common Law would do so for the British Colonies and,
much later, the Napoleonic Code for those of the French.
Aspects of Castilian Law were retained by Texans in later
constitutions. These include:
- simpler civil trial procedures
- Land titles
- common ownership of the gains of marriage between husband
and wife
- homestead and told of trade protections

1812 Spanish Constitution
The first phase of the constitutional begins in Spain with the
replacement of King Ferdinand VII of Spain in 1808 by
Napoleon, and his replacement with his brother, who would rule
from 1808 to 1814 when Ferdinand would reclaim the
throne. Seeking to legitimize his brother’s rule, Napoleon
appointed a legislature in Cadiz, and had them create a written
constitution which established a constitutional monarchy. This
is to be distinguished from the absolute monarchy that
had existed before.
This would become the 1812 Spanish Constitution, more fully
known as The Political Constitution of the Spanish
Monarchy. The key feature of the document was that limits were
placed on the power of the king, certain rights
established for the people, and a representative system – a
republic – was created. Many components would be familiar
including separated powers, a legislature, freedom of the press,
and a complex indirect electoral system. Others would
not, including: Catholicism official religion and universal male
suffrage.
By 1814 Ferdinand VII was back in power, dissolved the
constitution, parliament, and the very idea of representative
democracy. He reestablished absolute monarchy, but he would
be forced to reconsider in 1820 in order to avert a
military coup.
While this was occurring in Europe, a war for independence had

broken out in Spanish Mexico. It would last from 1810 –
1821. The forces supporting Spain were called the royalists,
while those supporting Mexico – and the elimination of a
monarchy – were called the republicans. During this time, the
United States was involved in treaty negotiations
regarding the possession of Florida. In 1819, the Adams – Oniz
Treaty would be signed which, in addition to acquiring
Florida, included the United States relinquishing claims to
Texas under the Louisiana Purchase. The boundary was set at
the Sabine and Red Rivers.
In 1820, under the Spanish Constitution, Moses Austin
negotiated land grants to give out to settlers. It would bring a
large group of Americans into Texas, with the understanding
that they would be living under a foreign constitution, and
would be willing to comply with certain requirements. These
included an acceptance of a state religion – Catholicism –
and limits on enslavement. Enforcement of these requirements
was lax however. Spain, and later Mexico, needed the
settlers to help develop resources, increase agriculture and
commerce, and provide a buffer against the plains Indians.
Moses Austin’s death, coupled with the end of Spanish rule and
the creation of a new constitutional order, would delay
the arrival of the new settlers. Even without the land grants,
approximately 2,500 American settlers were in the
province, many illegally.

1824 Mexican Constitution
The end of Spanish rule did not end in the formation of a
federal republic immediately. For two years Mexico - including
Texas - would be a constitutional monarch under an emperor.
This was written out in the Plan of Iguala. The signing of
this plan established Mexico as an independent nation, but in a
different form. Spain would not accept its independence
until 1836 following several attempts to win it back. The plan is
noteworthy for establishing equal rights to citizens
across Mexico, including Creoles and others.
This would be the government that Stephen F. Austin would
negotiate with in order to receive the land grants previously
promised to his father. This time as citizens of Mexico, not
Spain. The General Colonization Law, which enabled all heads
of household, regardless of race, religion or immigrant status, to
acquire land in Mexico. Between 1824 and 1828, Austin
had been granted almost 300 land titles between the Brazos and
Colorado Rivers. The settlers he selected were
educated and propertied, and 14th were slave owners. Many
were protestants, did not wish to convert to Catholicism,
and were committed to private property (including slaves), and
personal liberty. These would be the individuals that
provided the core of those who would seek to govern themselves
under their own constitution. But before that
occurred, they spent time being governed under the Constitution
of Coahuila and Texas.

The empire would be overturned in 1824 leading to transition
into a federal republic and the writing of the 1824
Constitution. State governments were growing in strength and
were electing their own Congresses. The constitution
would ultimately, though temporarily, establish a federal
republic. When the states and provinces sent delegates to
write the 1824 constitution they did so with instructions to
create a federal republic, with sovereignty based in the
states. These delegates would include Juan Jose Maria Erasmo
Sequin who represented Texas in the assembly. It would
establish 19 states, as well as 4 territories, and allow the states
to create their own constitutions. The legislative branch
would also be made stronger than the executive. At least at the
beginning, power was vested primarily in the legislature,
and the states had a degree of autonomy. They each declared
sovereignty.
Over the course of the next 12 years, the nature of this
government would change – partially leading to the complaints
contained in the Texas Declaration of Independence written in
1836. Forces existed that continued to support a
centralized monarchy, mostly the elites, while others wanted a
federal republican system similar to that in the United
States. In 1835, this would be revoked by General Santa Ana.
He accumulated enough power to throw out the
constitution and attempt to turn states into departments
controlled by the national government.
_________________________

1827 Coahuila and Texas
The 1824 Mexican Constitution – as originally written –
emphasized the importance and autonomy of state
https://en.wikipedia.org/wiki/General_Colonization_Law
governments. It established a federal republic with 19 states,
one was Coahuila y Tejas, which was newly created. Each
state was allowed to then craft its own constitutions. As a
border state, it had a military under a single commandant
general. The state was also divided into departments, and the
departments were subdivided into municipalities, which
contained mayors and city councils. Coahuila was among the
poorest states in Mexico, and like the Texas, was very
sparsely populated.
All of Texas was originally only in the Department of Bexar,
and then further subdivided into Bexar, Brazos, and
Nacogdoches. While this gave them 3 representatives, the
majority were from Coahuila, and the capital – Saltillo – was
there as well. This meant that the Anglo-Texans were a minority
within the state and had to travel a long distance for
government business. All political matters were handled in
Spanish as well. This did not sit well with the Anglo American
immigrants, especially those that arrived in the years following
the drafting of the constitutions of both 1824 and 1827.
Anglo Texans did not mix with Latinos. The increase in Anglo
population led to passage of the law of April 6, 1830 which
placed limits on Anglo immigration. This, coupled with Santa

Ana’s efforts in 1835 to reduce the powers of the states, led
to a quick series of events that led to Texas independence and a
new constitution as an independent nation.
Conventions were called in the state in both 1832 and 1833
which ultimately produced a new constitution in 1833 to be
presented to the Mexican government. Tejanos opposed the
conventions, so the results of the conventions, and the
content of the proposed constitution was a reflection of the
values and traditions of Southern Americans. It contained
106 articles divided into 6 sections.
Preamble
General Provisions
Legislature
Executive
Judiciary
Schedule
Stephen F. Austin was selected to deliver the constitution to the
Mexican government in Mexico City. It was not well
received. He was jailed for a period of time, which became a
key grievance made by the Anglo-Texans in the Texas
Declaration of Independence. It has:
incarcerated in a dungeon, for a long time, one of our citizens,
for no other cause but a zealous endeavor to procure the
acceptance of our constitution, and the establishment of a state
government.

Which was an indication that the right to petition for
grievances, as well as habeas corpus was not acknowledged.
The
final impetus to independence, not just in Texas but in the
Mexican states of Yucatan, Tabasco, and the Republic of the
Rio Grande (Nuevo Leon, Tamaulipas, Coahuila), was in 1835
when Santa Ana, on his own authority, changed the 1824
Constitution to grant himself additional power. The key change
was in changing the status of the independent states to
departments of the federal government. This made them fully
subject to national power, and led to the dismantling of
state legislatures a
Texas then passed a declaration of in November 11, 1835 to
take arms up against Mexico, create a provisional
government, and send delegates to another convention in 1836
that produced, in the midst of the Texas Revolutionary
War, another constitution, but also a Declaration of
Independence stating the reasons for the push for independence.
Texas Declaration of Independence - 1836
The 59 men – and they were only men – who wrote and signed
the Declaration of Independence were largely recent
arrivals from the United States, and young. Many came in
violation of the immigration ban of 1830. The majority were
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from southern states and were committed to a republican
government in the American model, as well as Jacksonian
Democracy and slavery.
As with the American Declaration of Independence, the Texas
document begins with a statement of the purpose of
government, then proceeds to list the reasons why the Mexican
government was falling short of meeting these
objectives. It then proceeds to list the specific grievances
against the Mexican government.
- change in the federal republic
- having to be a state with Coahuila
- punishment for petitioning for a redress of grievances
- lack of trial by jury
- military supremacy
- dissolving the legislature of Coahuila and Texas
- trials held outside the district where they were committed
- undermining commercial development
- limits on free exercise of religion

- denial of right to bear arms
- instability
- inability to implement the law
They then proceeded to writing – quickly a new constitution for
the nation of Texas. Which takes us to the next section
as Texas determines what it will be.
____________________
The Constitutions of 1836, 1845, and 1861
The principle constitutional question during this period was
whether Texas would be governed under a national
constitution for the Republic of Texas, or a state constitution
under either the United States of America, or the
Confederate States of America. The answer would ultimately be
decided by the inability of the Republic to remain
solvent and the confederacy’s loss in the Civil War. This would
lead to a question addressed between 1866 and 1876.
The principle change during this period was that the
constitutions would be written by Texas, primarily Anglo-
Americans
who had recently arrived and were conditioned to life under the
US Constitution, and had value systems rooted in
Jacksonian democracy and the antebellum economic system,
which included support for slavery.
The 1836 Constitution

The convention produced a national constitution, which required
it to address issues beyond what had been contained
in the 1833 document, or would be produced in subsequent
constitutions when Texas returned to being a state.
Modeled like US document
Preamble and Preliminary Provisions
Article I (Powers of the Government)
Article II (Legislative)
Article III (Executive)
Article IV (Judicial)
Article V (Oaths)
mble
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Article VI (President and Vice President)
Schedule
General Provisions
Declaration of Rights

It creates a unitary, not a federal government. As is the case
now, local government are not independently sovereign.
The preamble is almost word for word the same as the preamble
of the U.S. Constitution, and it marks the first time that
reference is made to the people of Texas independent of
Mexico.
The first article outlines the separated powers (as is done in all
subsequent constitutions) and details the bicameral
design of the legislature, setting the term of the House at 1 year,
and the Senate at 3 years. Article 2 outlines the powers
of Congress, much like Section 8 of Article 1 of the U.S.
Constitution. It includes the power to tax, regulate commerce,
declare war, and provide and maintain an army and navy, among
others. Article 3 establishes a unitary executive with
three year terms, and cannot run for re-election, though they are
not forbidden from running after that.
Article 4 is especially important. It creates the judiciary,
establishes that they are to serve 4 year terms, but are eligible
for re-election. It creates judicial districts and allows for the
appointment of district attorneys and the election of clerks.
It also allows for the development of counties and establishes
for a number of county officials including justices of the
peace, sheriffs, and constables. Most consequentially, we see
the introduction of the common law:
SEC. 13. The Congress shall, as early as practicable, introduce,
by statute, the common law of England, with such
modifications as our circumstances, in their judgment, may
require; and in all criminal cases the common law shall be the

rule of decision.
Article 5 states that “no minister of the gospel or priest of any
denomination whatever shall be eligible to the office of the
Executive of the Republic, nor to a seat of either branch of the
Congress of the same.” And requires office holders,
whether elected or appointed take an oath to support the new
constitution, as well as an oath of office. Article 6
provides detail on the powers of the president, which is then
followed by a schedule outlining how the transition to the
nationhood would be handled.
The section of General Provisions, among other things, limits
citizenship to “free, white persons,” contained the laws
would established regulate slavery, and established general
rules associated with land grants. The latter two were
contained in large sections (9 and 10 respectively) that would
become separate article in the 1845 constitution, one on
slavery, and one on Head-Rights.
The document ends with a Declaration of Rights, which
contained 17 provisions that would form the basis of the Texas
Bill of Rights contained in future constitutions.
This would provide the basic structure of all future
constitutions. The constitution of the Republic of Texas would
take
effect following the defeat of the Mexican Army in the battle of
San Jacinto. The Mexican government also began to
focus on the other revolutions underway across the nation, but
did not recognize the new republic which indicated that
at some point it intended to take Texas back at some point. This

possibility led some Texans to immediately seek to
become a state within the USA, but Texas’ position of slavery
led to opposition from the free states. Some promoted
Texas making a go of it as an independent nation, even claiming
the land westward to California. The practical reality
was that this was difficult to accomplish.
- Comanche raids
- Mexican raids
- racial differences made regarding rights
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- Slavery made foreign affairs difficult
- Mexico lobbied against Texas
- US recognized it 1837
- difficulty proving viability
- bonds unsold
- tough to build army and navy
- could not pay debts
- would eventually sell land claims for $10m in fed bonds

Opposition to Texas’ annexation within the United States
dissipated and James Polk won the presidency in 1844 on a
platform that included annexing Texas. A joint resolution of the
United States Congress extended an annexation offer to
the state. This led to a convention during the summer of 1845 to
consider both the proposal and to write a constitution
for the state of Texas. The convention accepted the offer 55 – 1.
As with the 1836 convention, the bulk of participants
were from southern states. Both annexation and the new
constitution were accepted by Texas voters on October 13,
setting the stage for both to take effect December 19, 1845.
It was significant that both were done at the same time. If Texas
had entered as a territory it would have lost ownership
of its public lands. By entering as a state it retained possession
of them, and all the revenue likely to be drawn from their
use. This includes revenue for education. Texas was also
allowed to Texas can split into up to five states if Texas voters
approved.
The new constitution built off the previous document and
created the organization we have today – with obvious
changes. It added separate articles on the militia, slaves,
impeachment, education, head-rights, and the land office.
Much of the language contained in these sections were
contained elsewhere in the 1836 documents.
After a preamble establishing popular sovereignty and a
religious appeal, the first article contain a bill of rights based
largely on what was contained in the 1836 document, and would

form the basis of the upcoming documents as well.
Article two contains a statement regarding the separated
powers, the following three outlines each of them.
Article 3 starts with two sections captaining the racial
restriction in the 1836 documents. Africans and Indians cannot
“be
deemed electors.” This restriction also applied to any “soldier,
seaman, or marine, in the army or navy of the United
States.” The legislature was biennial, and terns were two years
for the House and 4 for the Senate. Article 4 created the
court system and established that judges were nominated by the
governor with the consent of the Senate for 6 years
terms.
Article 5 created a plural executive. The Governor and
Lieutenant Governor were elected separately by the electors for
two year terms, but could not serve more than four out of any
six years. A state treasurer Comptroller of public
accounts were selected by the legislature for two year terms.
Article 6 concerned the militia – which is not the subject of
any article of the current constitution. It is brief and contains
only 4 sections. A militia could be created, the governor
could call them forth, people were allowed to opt out of service
- - conscientiously scruples - - though they had to pay.
Licensed ministers of the gospel did not have to serve, nor
could they be required to work on roads or serve on juries.
Article 7 contains general provisions – includes modes of
amending the constitution

Article 8 concerned slaves. This was the first time slavery was
directly addressed in the Constitution. It contained three
sections. The first forbad the legislature from emancipating
slaves without the consent of their owners, nor without
paying them for the loss of their property. It also mandated that
slaves be treated humanely. The second guaranteed an
impartial jury to slaves tried for crimes “of a higher grade than
grand larceny.” And the third stated that certain crimes
against slaves were to be punished as they would be against a
white victim, “except in case of insurrection by such
slave.”
Article 9 concerned impeachments. Article 10 concerned
education, and begins with the same general language
contained in the current document. Free schools were to be
established and a perpetual fund was to be created, with
revenue collected from the use of public land. Article 11
concerned head-rights – a process for determining who owned
specific parcels of land. Head-rights, and later land titles, would
be a subject in successive constitutions until they were
judged to be unnecessary in 1969.
Article 12 created a land office which would be the source of
land titles, and authorized the legislature to create offices
to run it. This would eventually become the Commissioner of
the land office. Article 13 contained the schedule by which
the Texas would transfer from the 1836 to the 1845 document.

The Years from 1845 - 1861
The years following the ratification were as tumultuous as those
preceding it. The first issue concerned the securing of
Texas as an American state. American victory in the Mexican -
American War, which ended with the treaty of Hidalgo in
which Mexico not only acknowledged that Texas was now part
of the United States, with the Rio Grande as the
southern border, but that the land to the west was now part of
the United States as well.
Commentators have suggested that the new land, and the
ensuing debate regarding whether these would be free or
slave territories and/or states, exacerbated the march towards
Civil War. The Supreme Court made matters worse by
stating that the national government – Congress specifically –
lacked the authority under the US Constitution to regulate
slavery at all. Fears that slavery was now a national institution
gave rise to the abolition movement, the election of
Abraham Lincoln, the fear that the new Republican majority
would end slavery, and the gradual secession of the
southern states after the election of 1860.
Voices emerged in the state claiming that the state should shift
allegiance from the United States of America to the
Confederate States of America. The movement towards
secession in Texas was delayed because of constitutional rules.
A convention could only be called by the legislature, but the
legislature was not meeting. Only the governor could call a
special session, and Governor Sam Houston was opposed to
secession, and refused to call a convention hoping the drive
to secession would wane. It did not. Others attempted to call a
convention anyway despite the blatant illegality of it. A
special session was eventually called and a convention was

called.
Delegates to the convention were selected in public meeting by
a voice vote. This discouraged unionists from attending,
and resulted in a strongly pro-secession convention. It met in
the House chambers in January and February of 1861. This
first meeting of the convention produced the Declaration of
Causes. The full official title was: A declaration of the causes
which impel the State of Texas to secede from the Federal
Union. As with the Texas Declaration of Independence before
it, it outlined the reasons why the convention urged separation
from the United States Government, which it referred to
as a confederated union. The principle complaint in the
document was the threat posed to the institutions of slavery,
after being promised the ability to maintain it as a condition of
entering the union.
She was received as a commonwealth holding, maintaining and
protecting the institution known as negro slavery--the
servitude of the African to the white race within her limits--a
relation that had existed from the first settlement of her
wilderness by the white race, and which her people intended
should exist in all future time. Her institutions and
geographical position established the strongest ties between her
and other slave-holding States of the confederacy.
Those ties have been strengthened by association. But what has
been the course of the government of the United States,
and of the people and authorities of the non-slave-holding
States, since our connection with them?
. . . the avowed purpose of acquiring sufficient power in the
common government to use it as a means of destroying the
institutions of Texas and her sister slave-holding States.
Other complaints contained in the document include:

- preventing the Southern States from owning the land west of
Texas – the Mexican Session.
- using violence to control the Kansas Territory
- failure “to protect the lives and property of the people of
Texas against the Indian Savages on our border.”
- failure to protect against “murderous forays of banditti from
the neighboring territory of Mexico.”
- refusal to return escaped slaves.
- the rise of the Republican Party – founded on abolitionism.
- promotion of the principle of equality among men: irrespective
of race or color--a doctrine at war with nature, in
opposition to the experience of mankind, and in violation of the
plainest revelations of the Divine Law.
- making the Southern states a minority within the national
government.
A second meeting of secession convention began March 5 ended
March 23. The average age was 40. They were almost
all born in slaveholding states and 70% owned slaves, though
most less than 50. They tended to be slightly wealthier
Texans of the day, though the great planters and merchants of
the day were not represented greatly. Almost half were
lawyers. They wrote a formal ordinance of secession to be
approved by the voters, and decided that since a referendum
was called to support annexation, another should be called to
authorize secession. This would legitimize the decision.
After the vote, a committee on public safety was established and
authorized to seize all federal property in Texas. Texas
sent seven members went to Alabama to create the Confederate

States of America. All current officers made to swear
loyalty oaths. Sam Houston refused to take the oath and
claimed actions were illegal. The governorship was then
vacated by convention delegates and Sam Houston was replaced.
Contents of the 1861 Constitution
Preamble
Article II: Division of the Powers of Government
Article IV: Judicial Department
Article V: Executive Department
Article VI: Militia
Article VII: General Provisions
Article VIII: Slaves
Article IX: Impeachment
Article X: Education
Article XI: Untitled (concerns Headrights)
Article XII: Land Office
Article XIII: Schedule
The 1861 document is substantively the same as that of 1845.
The major change was the change from an affiliation with
the United States of American to the Confederate States of
America, and the strengthening of laws related to slaves. No
major articles were added or deleted.

The Preamble contained a slight rewording removing a
reference to the United States, and Article One – the Bill of
Rights
– added the following reinforcement of consent: no government
or authority can exist or exercise power within the State
of Texas, without the consent of the people thereof previously
given; nor after that consent be withdrawn.
There were no major changes to the articles establishing the
separated powers. Article Three – which dealt with
legislative power replaced the word “African” with “negro.”
Nothing changed in the article on the judiciary, and in Article
5, on the executive power, the word “confederate” was
substituted when necessary. Similar substitutions were made in
the articles on the militia and general provisions. Oaths were to
be made to the confederacy, rather than the United
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States.

Article 8, on slavery was changed the most. Slavery as an
institution was given greater protection from the legislature.
The individual property rights of the slave-owner was
prioritized. No law could be passed about emancipation.
Individuals could not free their own slaves. Immigration of
slaves from other states could not be limited, though the
international slave trade was not restored. Slaves were granted
rights to jury trials, and a change was made to the clause
stating the certain crimes against slaves were to be punished as
they would be against a white victim. In the 1845
constitution, the only exception was “except in case of
insurrection by such slave.” To this was added: “or rape on a
white female.”
The remaining articles on impeachment, education, head-rights,
and the land office were unchanged, and the schedule
for implementing changes was rewritten to make clear that the
changes were under the Confederate States. The nature
of the changes make clear that the principle concern of the
members of the secession convention was to ensure the
preservation of slavery.
The came the rebellion.
______________________________
The Constitutions of 1866, 1869, and 1876
The question about the legality of slavery was answered by the
Civil War. The unsuccessful end of the war for the

confederacy meant that Texas would remain – and would always
be – a state within the United States of America. The
only question would be, what type of constitution it would have,
and how would it met the demands imposed on it by
the United States for the ability to represent itself in Congress.
It took three tries to arrive at a document that was
acceptable to both the national government and the state’s
electorate.
The one dominant theme in all three documents was allegiance
to the United States, and acceptance of the 13, 14, and
15th Amendments. Each of which entailed a significant
constitutional expansions in to the powers of the national
government.
The differences between the documents, as with all the previous
documents, resulted from which groups were involved
in – and restricted from - calling and participating in the
respective constitutional conventions, as with those who were
able to approve each document. Major differences regarded the
status of the recently freed slaves – whether they
could vote and have access to education and the courts. Another
dispute regarded the power of state institutions and
whether education and law enforcement was to be a state or a
local function.
After failed attempts in 1866 and 1869, the document ratified in
1876 - one written to meet the needs of an agrarian
economy – remains the basis of the governing system in the
United States. The 1866 Constitution did not meet the

requirements of the national government while the 1869
constitution was unacceptable to the people of Texas,
particularly the confederates that had regained power after the
end of Reconstruction. As we will see, the 1876
Constitution has been heavily amended to make the Texas
government amenable to a business economy. That will be
discussed in the following section.
To summarize the constitutions of this period
As with those written after 1836, the basic structures of each
was same.
- Each had a preamble that began with an appeal to either “the
grace of God” or “Almighty God” followed by a
statement that the constitution is ordained and established by
the people of Texas.
- Each preamble is followed by a Bill of Rights that contain the
same basic freedoms and rights.
- Each then contains an article stating that the governing powers
are separated into three institutions, which is then
followed by three articles which organize, in order, the
legislative, executive, and judicial powers. Differences exist in
the
relative power of each. After an increase in the power of the
state government, and the executive branch specifically,
the 1876 constitution is designed to place institutional limits on

the power of each branch. The legislature is permitted
to meet briefly every other year, the executive power is split
into separate independent offices, and the judiciary is
elected, making it subject to majority rule.
- Each constitution contained separate articles on impeachment,
education, general provisions, and public lands – much
as the pre-civil war constitutions had.
The differences include the article on the militia, which existed
in the 1866 and 1869 documents, but not in 1876 (where
did those powers go?). The 1866 Constitution had an article on
freedmen, which was an update of the previous articles
on slaves. Neither the 1869 or 1876 Constitutions had one, but
each had articles on suffrage. The 1866 Constitution was
the last to have an article on Head-Rights, which would
reappear in some manner as an articles on Spanish and Mexican
Land Titles in 1876. This section would be emptied in 1969.
The 1869 Constitution was the only one with an article on
Immigration, which created an office of the Superintended of
Immigration.
The 1876 Constitution would create new articles on
- taxation and revenue
- counties
- railroads
- municipal corporations
- private corporations

Let’s walk through the circumstances of each document
News of the end of the Civil War reached Texas in May of
1865. On June 17th, US President Andrew Johnson appointed
Andrew Jackson Hamilton provisional governor of Texas, and
federal troops arrived to begin occupation of the state on
June 19th which began the Presidential reconstruction. Hamilton
had been an elected official in Texas, but his support for
the Union led him to flee North during the war. He had already
been appointed US Military Governor of Texas during the
war, but the position could not be filled due to the war.
On November 15, 1865 Hamilton called for an election to be
held the following January 6th to elect delegates for a
convention to meet in Austin starting February 7. Many former
secessionists were largely excluded from serving in the
convention, though many were able to vote for delegates. After
three days delegates agreed to take oaths to the US
Constitution, and were then told what was to be expected of
them by the US government in order to be represented
again.
These were the following:
- the right of secession must be denied – secession had never
happened.
- slavery must be denied

- the social and political status of the freedmen must be
addressed fairly
- the confederate debt must be repudiated
- freedmen had the right to sue, engage in contracts, use of
courts, testify,
While the eventual constitution would incorporate some of these
requirements, it did not go far enough to the United
States government. Racial restrictions still existed. The
convention did not provide for black suffrage or the right for
freedmen to hold office. Neither did they ratify the 13th
Amendment, they simply acknowledged that it was now part of
the US Constitution they had taken an oath to. The To make
matters worse, 1866 the Texas Legislature passed the Black
Codes which attempted to keep the recently emancipated Blacks
in an inferior positons politically, economically, and
socially. It replaced slavery with a sharecropping system that
still tied Black laborers to the land. Other features included
prohibitions on serving in militias, carrying guns, and
interracial marriage. The convention voted on March 27, 1866
to
submit to the eligible electors of the state the proposed
Constitution. These were among its key features:
- governors power increased, 4 years terms, higher pay
- line item veto established
- salaries of legislators increased
- census to be based on the number of white citizens

- public education to be funded by lands
- public education directed by superintendent
- separate schools for black children
- lands to also fund a university and charitable institutions
- school tax could be levied
The 1866 Constitution was deemed insufficient and invalidated
after the election of 1866, by the so called “radical
republicans” who had increased their power in the United States
Congress, and had a more punitive attitude towards
the southern states. In 1867, Congress passed a series of
reconstruction acts which resulted in the South into military
districts with Texas placed in the 5th district with Louisiana.
First Reconstruction Act – March 2
Second Reconstruction Act - March 23
Third Reconstruction Act– July 19
Readmission made dependent upon ratifying the 13th and 14th
Amendments and establishing universal manhood
suffrage, as well as rudimentary civil rights. The state was also
required to hold another to convention to write an
appropriate constitution, and to impose voter registration. The
US Army not only kept the peace, but determined
acceptable office holders. Many confederates were removed
from local office.

The commander of the 5th Military District called an election
for early February 1868 to determine whether a convention
should be held, and if so, who would be the delegates to the
convention. Black voters were eligible to vote, and
overwhelmingly voted to support the calling of the convention.
The legitimacy of the vote was made suspect by the large
number of people who failed to vote, including a sizable number
of whites. Ten of the ninety delegates were black, and
only six had been members of the 1866 Convention. Deep
divisions within the various factions, in addition to efforts to
address broader issues, made the convention unproductive and
resulted in an incomplete product.
While unpopular with the state, the constitution was sufficient
to reestablish Texas as a member of the Congress, and
the voters were able to participate in the 1872 presidential
election. The document contained language and institutions
very different than that found in other constitutions.
The Bill of Rights, for example, Began with the following
language:
That the heresies of nullification and secession, which brought
the country to grief, may be eliminated from future
political discussion; that public order may be restored, private
property and human life protected; and the great
principles of liberty and equality secured to us and our

posterity, We declare that:
SECTION I. The Constitution of the United States, and the laws
and treaties made, and to be made, in pursuance thereof,
are acknowledged to be the supreme law; that this Constitution
is framed in harmony with, and in subordination thereto;
and that the fundamental principles embodied herein can only
be changed, subject to the national authority.
Powers were far more centralized – particularly in education
and law enforcement - than what had existed before or
since. The executive authority was stronger, with the governor’s
appointment powers expanded. Equality before the law
and universal male suffrage established. School attendance
made compulsory, county and local governments were
outlined, and an immigration bureau was created.
Many of these proved unpopular with ex-confederates, who had
not participated in the formation of this constitution. In
addition to the ever present drive to limit black equality,
education, and suffrage, opposition emerged to the taxes
required to enforce state wide law enforcement and education.
Proponents of local government pushed back against
effort to limit their ability to govern themselves as they chose.
Their efforts to oppose these measures would be aided by the
end of reconstruction, and the removal of the federal
troops necessary to implement the measures contained in the
1869 Constitution.
_____________________
Support for Reconstruction began to wane in the 1870s,and
circumstances surrounding the disputed 1876 election

would led to union troops being pulled from the South, which
allowed the older southern establishment to become
more involved in state politics. As members of the old political
order were able to become politically active again, efforts
made to first weaken 1869 constitution. Democrats regained
control of the legislative and executive branches of Texas
government following the election of 1874, and worked then to
replace it. They sought to place limits on the state
government by reducing terms and salaries, reducing tax rates
and allowable levels of spending, increased local control
over law enforcement and education, placing controls over
corporations, and reducing protections for civil rights.
The legislature submitted a question to the eligible voters about
whether they approved another constitutional
convention, which they did. Three delegates from each
senatorial district were selected from across the state, many of
whom were members of the Grange who were particularly
concerned about the growing power of railroads and banks –
headquartered elsewhere - within the state. The convention met
in Austin from 9/6/1875 to 11/2/1875.
An important change was made to the opening language of
Article One – The Bill of Rights: It begins by removing the
previous language in the 1869 Constitution that mentioned
secession and nullification, and replaced it with the
following:
That the general, great and essential principles of liberty and
free government may be recognized and established, we
declare:
SECTION 1. Texas is a free and independent State, subject only
to the Constitution of the United States; and the
maintenance of our free institutions and the perpetuity of the
Union depend upon the preservation of the right of local

self-government unimpaired to all the States.
Further, as a response to the belief that the previous
constitution allowed for centralized and autocratic power, the
members of the convention created a detailed constitution that
clearly established the rights of the citizens of the state,
and the limits on each branch of government. This included the
use of elections to the bulk of state and county
positions, as well as short terms of office and low levels of pay.
The key restrictions placed on each branch are structural, and
still exist to this day. These restriction are reflections of
the continued influence of the spirit of both Jacksonian
Democracy and the frontier common to the Anglo-American
immigrants to the states.
- The legislature meets part-time and legislators are paid a
nominal salary. It is amateur rather than professional. This
limits their independence. Over time the constitution has been
amended to limit pay to $600 per month, in addition to a
per dime rate when the legislature in session. Regular sessions
are limited to 140 days, and the legislature cannot call
itself into special sessions. Only the governor can, in addition
to stating what the special session can focus on.
- The executive branch is plural. Power is distributed to a
handful of separately elected offices, each is independent of
the other. Unitary executives, where the governor – as chief
executive – can appoint the rest of the top officials are
more powerful because they executive is coordinated. That is
not the case in Texas.
The Texas Constitution makes the following positions

independent: the lieutenant governor, which is the presiding
officer of the Senate; the attorney general, which is the top law
enforcement officer of the state; the comptroller, which
is the top tax officer of the state and is responsible for the
biennial budget estimate; the land commissioner, which
oversees the management of public Texas’ public lands,
including the amount set aside to fund education. The
Constitution also establishes the appointed position of secretary
of state, which is the top elections officer of the state.
The legislature also established the Commissioner of
Agriculture, which promotes the agriculture industry. Each is
separate and works independent of the other.
- The judicial branch is elected in partisan elections. This makes
judges subject not only to the will of the majority, but –
since the advent of primary elections - to the will of the
majority of the voters of their party. The strength off the
judiciary is in its independence, which is why federal judges
serve for life after being appointed and confirmed.
The effort to limit power also led to one of the documents most
noteworthy features, its length. As opposed to the
United States Constitution, which is relatively brief and vague
in its choice of language, the Texas Constitution is far
more precise. This is to restrain power. The more specific the
language, the less debate there can be over meaning. This
creates a problem. In order for the legislature do go beyond the
specific limits in the Constitution, it has to seek to
amend it. More language allows the legislature to bypass the
limits created by clear language. This has led to a
Constitution that, as of November 2019, contains over 90,000
words, 30,000 of which are in Article 3 which outlines
legislative power, and authorizes spending beyond what is
otherwise allowable constitutionally. These are the results of
the changes that have occurred gradually that have facilitated
Texas’ shift from an agrarian to an industrial state.

The resulting document bears similarities to the U.S.
Constitution, but with specific articles that focus on the unique
functions of states – Suffrage, Education, Counties, and
Municipal Corporations – and the unique experiences of Texas –
Railroads, Spanish and Mexican Land Titles, and Public Lands
and Land Office.
Preamble
Article II: The Powers of Government
Article IV: Executive Department
Article V: Judicial Department
Article VI: Suffrage
Article VII: Education--The Public Free Schools
Article VIII: Taxation and Revenue
Article IX: Counties
Article X: Railroads
Article XI: Municipal Corporations
Article XII: Private Corporations
mble

Article XIII: Spanish and Mexican Land Titles
Article XIV: Public Lands and Land Office
Article XV: Impeachment
Article XVI: General Provisions
Article XVII: Mode of Amending the Constitution of this State
The Amendments
While it may seem odd that after changing constitutions as often
as it did, Texas would settle on a single document for
almost 150 years, this is only superficially true. The agrarian
document prepared in the mid to late 19th Century has been
significantly changed internally to adapt to the governance of a
state that has become very urban, populous, and
commercial. The constitution has been subtly but purposely
changed to allow for the governance of a state that in 2019
had a gross state product of $1.9 trillion.
Many of the key objectives of the original document – the heavy
regulation of railroads and banks for example – have
been terminated. Loop holes have also been placed in the
constitution to allow for state to invest in commercial
endeavors. It has also had to adapt to migration of people w ho
do not share the same value system as those who wrote
in in 1875. The discovery of oil, and the expansion of commerce
as a result of railroads and the various ports along the
Gulf Coast attracted people to the state who were less interested
in traditional politics, and more oriented around
individualism and saw government as a means to create
economic opportunities. Still others came to the state with the
idea that government should do more to enhance the welfare of
the general population, especially the poor and
minority groups. This remains a minority of the population of
the state, though they can be influential in local politics.

Much of the struggle between these groups has played out in
proposed changes to the Texas Constitution, which has
resulted in the document we have currently. Let’s walk through
the changes. Once done, we should have a clear idea of
the document’s current content.
What are the major changes?
Article 1. The Bill of Rights. This has been amended to include
equal rights for women, exceptions for which types of
crimes are bailable, and processes for committing people of
unsound mind. In 2009 the section on imminent domain
was updated to respond to a U.S. Supreme Court case. In 1989
and 1997, during a phase when the state was focused on
crime, a section was added listing the rights of crime and
providing funds for the victims of the crime. The last three
changes to the established that “the people have the right to
hunt, fish, and harvest wildlife,” and that people have the
right to access to public beaches.
Most controversially the people of the state ratifies an
amendment establishing that marriage consisted “only of the
union of one man and one woman” and that the state or political
subdivision of it may “not create or recognize any legal
status identical or similar to marriage.” While this language
remains in the Constitution, it is currently null – what is
considered “deadwood” – due to the United Supreme Court
decision in Obegerfel v Hodges which legalized same sex
marriages nationally.
Article 3. Legislative Department. Most of the additions made
to the Texas Constitution have been in this article, most
concern allowing bonds to be sold for various purposes
economic development purposes. This fits within the

legislature’s power over purse. The original constitution created
little opportunity for the state to borrow money.
Infrastructure development was not important for an agrarian
economy, but it was important for a business economy.
In 1991 Section 49 was amended to make it easier to do so, all
that is required is a further amendment, which allows the
voters to vote for or against the spending proposal. Since then,
bonds have been passed authorizing spending on water
development projects, farms and ranch loans, veterans’ loans,
prison construction, highway construction, railroad
relocation, and student loans. In 2019, the voters approved the
creation of a Flood Infrastructure Fund.
Other amendments added include the following.
Other notable changes included:
1980 – Section 47. Lotteries were legalized, as were other forms
of gambling. Ongoing, unsuccessful efforts have been
made to allow for casino gambling in the state.
1986 – Section 49-g created the Economic Stabilization Fund –
also referred to as the rainy day fund – in the aftermath
of a state wide recession following a crash in the value of oil.
Funds from oil and gas production are deposited in the
fund and can be drawn in order to make up deficits in the state
budget at the discretion of the legislature.
1991- Section 24a. Creation of the Texas Ethics Commission

2003 - Section 66. Limitation of Liability for Non-Economic
Damages. Tort Reform.
2007 – Section 67. Bonds for the Cancer Prevention and
Research Institute of Texas. First a limit of $3b, increased in
2019 to $6b.
Article 4. The Executive Department. The basic structure of the
executive branch has not changed since 1876. The office
of treasurer was eliminated in 1995, and the terms were
expanded from 2 to 4 years in 1972. Both by amendments. The
later expanded their power. In 1936 the $4,000 salary limit for
the governor was removed and the legislature was given
the ability to set the salary. The governor is still prevented from
holding other offices, which makes it a professional
position, as opposed to the legislators.
Article 5. The Judicial Department. Judges were made subject to
requirement, and the State Commission on Judicial
Conduct was created and given the ability to remove judges if
necessary. Most recently, the Constitution has been
amended to require judges to inform the attorney general if they
are set to hear a case challenging the constitutionality
of state statutes.
Article 6. Suffrage. Changes made to keep state laws in line
with the expansion of suffrage nationally. As amendments
were added restricting the criteria states could use to restrict the
vote, changes had to be made to the article to comply
with it. Nevertheless, the state constitutes to place restrictions
based on felony convictions and declarations of mental

incompetence since these are not protected by the U.S.
Constitution.
A ley change in wording changed mention of “idiots and
lunatics” to “to persons who have been deemed mentally
incompetent by the courts.” Language restricting suffrage to
“paupers supported by any county” and “soldiers, marines,
and seamen.” Was also removed.
Article 7. Education. While the bulk of the language in the
Constitution is long, detailed, and precise, the opening
language of article 7 is not, and has been subject to review by
the Texas Supreme Court. It states:
A general diffusion of knowledge being essential to the
preservation of the liberties and rights of the people, it shall be
the duty of the Legislature of the State to establish and make
suitable provision for the support and maintenance of an
efficient system of public free schools.
Cuts to the education budget following the housing crash of
2009 let to law suit against the state the forced the court
determine what the word “suitable” meant.
Most of the changes regard the nature of funds establishes to
fund primary and secondary schools – the Permanent
School Fund and the Available School Fund – and universities –
the Permanent University Fund. It also contains language
creating the State Board of Education, and establishing the
public universities in the state.

Article 8. Taxation and Revenue. While this section authorizes
local governments to collect property taxes, it has grown
since then with tax exemptions for a large variety of reasons.
Counties have been authorized to collect taxes for flood
control.
Article 9. Counties. Amendments have been added expanding
what counties are allowed to do, including creating
hospital districts, airport authorities, mental and public health
facilities, as well as manual labor poor houses.
Article 10. Railroads. While the constitution originally allows
for heavy regulations of railroads, much of the article was
removed in 1969. All that remains is the designation of
railroads as common carriers.
Article 11. Municipal Corporations. Amendments were added in
the early 20th century to allow for home rule authority
Articles 12, 13, 14 have been mostly depleted.
Article 15 – mostly the same
Article 16. General Provisions. This article continues to be
where the protections for community property can be found.
The most significant change, reflecting the growth of Texas as a
business center is the authorization of the creation of

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