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Constitutionalism. Chapter 2. Purposes of a Constitution. Provide legitimacy for a government Consent of the people Tacit consent Establish and organize government Liberal Constitution Statutory Constitution. Purposes of a Constitution. Give government the powers to operate Taxation

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Purposes of a Constitution

  • Provide legitimacy for a government

    • Consent of the people

    • Tacit consent

  • Establish and organize government

    • Liberal Constitution

    • Statutory Constitution


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Purposes of a Constitution

  • Give government the powers to operate

    • Taxation

    • Police power

  • Limit government

    • Bill of Rights


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Texas’s Constitutions: 1836

  • Liberal constitution

  • Bicameral Congress consisting of House and Senate

  • President and vice president

  • Four levels of judiciary: justice, county, district, supreme

  • Short terms of office: 1-4 years

  • Typical American features: preamble, separation of powers, checks and balances, bill of rights, adult male suffrage, slavery

  • Amending process difficult; none adopted


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Texas’s Constitutions: 1845

  • Liberal constitution

  • Bicameral legislature with biennial meetings

  • Governor, AG and SOS appointed by governor; comptroller and treasurer elected by legislature.

  • Judiciary consisted of supreme court and district courts; judges appointed by governor

  • Homestead protection and community property

  • Public school system

  • Only one amendment (1850) which made offices elective


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Texas’s Constitutions: 1861

  • Liberal constitution

  • 1845 constitution revised to reflect joining the confederacy

  • Defense of slavery and states’ rights

  • Emancipation of slaves prohibited


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Texas’s Constitutions: 1866

  • Liberal constitution

  • Re-enter union under presidential Reconstruction

  • Slavery abolished

  • Governor’s term extended, line-item veto, salary increased, other executive officers elected

  • Legislative salaries increased

  • Supreme Court increased in size and elected to long terms. District judges also elected.

  • Segregated public education


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Texas’s Constitutions: 1869

  • Result of Radical Reconstruction (Congress)

    • Granted suffrage to African Americans

    • Ratification of the Fourteenth Amendment

  • Liberal constitution

  • Centralized power in the executive – majoritarian democracy

  • Appointment of most political authorities – state and local levels


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Texas’s Constitutions: 1876

  • Statutory Constitution

  • Reasons for 1876 Constitution

    • Reaction to Reconstruction Era

    • Reaction to Governor E.J. Davis’s administration

    • Agrarian movement sweeping United States in the 1870s that called for more democratic participation and a more limited government.


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Texas’s Constitutions: 1876

  • Reasons for 1876 Constitution

    • Democratic Delegates ideologies

      • Rapid commercial and agricultural growth, but otherwise no governmental functions

      • Rapid economic growth and invest in human resources, such as schools

      • Government role limited to what private enterprise would not or could not do

      • Less government generally, regardless of purpose


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Texas’s Constitutions: 1876

  • Seventeen Articles

  • Article 1: Bill of Rights

  • Article 2: Separation of Powers

  • Article 3: Legislature

  • Article 4: Executive

  • Article 5: Judiciary

  • Article 17: Amendment Process


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Amending the Constitution

  • Proposal: House and Senate by a 2/3 vote of each chamber

  • Secretary of State prepares statement describing the amendment

  • Approved by attorney general

  • Published in newspapers twice

  • Ratification by popular vote in general election or special election


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Criticisms: 1876 Constitution

  • Long

  • Disorganized

  • Substantive powers lacking for legislature and executive

  • Judicial organization and selection of judges

  • Local government section archaic and disorganized



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Constitutional Change: Piecemeal

  • First amendment proposed in 1877.

  • Many piecemeal changes from efforts to achieve comprehensive change.

  • Governor Connally’s attempts in the 1960s resulted in an amendment to reduce the Constitution’s deadwood.

  • Representative Mowry introduced amendments between 1997 and 2001.


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Politics Now: The Texas Marriage Amendment

  • Texas Defense of Marriage Act, 2003

  • Amendment defined marriage as “only the union of one man and one woman”

  • Proponents claimed the amendment was necessary to protect against activist judges

  • Opponents argued that the amendment was unnecessary and would bind future Texans

  • Amendment passed with 76 percent of the vote


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Constitutional Change: Comprehensive

  • Early efforts to call a constitutional convention were unsuccessful.

  • 1971, the legislature proposed an amendment calling for a Constitutional Convention in 1974. Amendment was adopted in 1972 by a 2-1 margin.


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Constitutional Revision: 1971-74

  • Legislature elected in 1972 was constitutional convention in 1974.

  • Elected Chair of the Convention and established committees.

  • Bill of Rights could not be revised.

  • Each provision adopted by majority vote.

  • Rules required two-thirds vote for adoption of proposed constitution which failed.


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Constitutional Convention Failure

  • Legislators as convention members

  • Two-thirds requirement

  • Right-to-work provision

  • Lack of leadership

  • “Revisionists” and “Cockroaches”


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Constitutional Amendments 1975

  • Eight Amendments presented to voters

  • Voters rejected amendments

  • Reasons

    • Concern about government’s power

    • Lack of governor’s support

    • Cynicism by voters


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Constitutional Revision in 1999

  • Proposal by Junell and Ratliff

  • Legislature

    • House terms increased, increased size of Senate, veto sessions, and term limits

  • Executive

    • Governor headed cabinet of nine members

    • Lieutenant governor, comptroller, and attorney general independently elected


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Constitutional Revision in 1999

  • Judiciary

    • Simplified into fewer courts

    • Supreme Court with 15 members (14 associates and a chief justice)

    • Merit system for selecting judges to district courts, courts of appeals, and supreme court

  • Other Changes

    • Salary commission to recommend salaries

    • Statewide property tax to fund public education

    • Legislature could call a constitutional convention, subject to voter approval


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Join the Debate: Initiative Process

  • Currently, 24 states employ some form of the initiative process.

  • The process involves:

    • Direct initiative—proposed policies placed on a ballot for popular approval

    • Indirect initiative—proposed policies must first be submitted to the state legislature during a regular session


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Join the Debate: Initiative Process

  • Proponents

    • Increases citizen involvement in government

    • Reduces power of special interests

    • Makes government more responsive

  • Opponents

    • Increases the power of special interests

    • Subjects the minority to a tyranny of the majority

    • Reduces legislature’s authority, which means less deliberation and compromise