The State Constitution's Moment in the Texas Sun

Ah, a new year. A fresh start. A clean slate.

I wrestled with how to kick off these RD policy editions in 2024. Campaign finance? Election law? A survey of candidate residency litigation?

All that would no doubt be fun and is still on the table. But then it occurred to me: the real star of state law and politics in 2023 was the Texas Constitution. It was the Forest Gump of last year’s political story, appearing in almost every major scene, interacting significantly with notable figures, making history.

• Perhaps most notably, Gov. Abbott and President Biden spent most of 2023 in a pitched constitutional powers battle over the border, with Gov. Abbott asserting his powers under both the state and federal constitutions.

• The impeachment. Oh man. Talk about some state constitutional implications. Not only were the impeachment provisions hotly debated—the Karl Rove WSJ piece even had it in the headline—but amendments to those provisions were proposed following the verdict.

• The Legislature put 14 constitutional amendment propositions to the voters on the November 7, 2023 ballot, which is a relatively high number of propositions to put on a ballot (24 was the highest ever proposed in 1987). And after that election, we saw a brief challenge to the effectiveness of those new amendments.

• All the major policy issues of 2023 raised a state constitutional question: school choice, border security and state sovereignty, property taxes, budget surplus and constitutional spending caps, the aforementioned ballot propositions.

The list could go on.

And since many of the 2023 issues will ripple into 2024 and beyond, why not start the year with a quick Texas Constitution orientation?

The subject of constitutions—especially American state constitutions—is an interesting area of study and one to which I wish I had more time to devote.

But at its core, a constitution is, well, the document that constitutes a government. Like Articles of Incorporation work to incorporate a business, a constitution forms a government and directs its administration.

And the idea of a written constitution as we know it today has only been around for a few hundred years. For most of history, the government was just one dude or a big family that owned everything, considered itself god-like, and just decided stuff on the spot. Why on earth would the government write down rules for itself?

So living under a constitution is, historically speaking, a real privilege.

But I digress. So here’s some rapid fire Texas Constitution stuff.

The Texas Constitution is about 63,000 words while the U.S. Constitution is 4,543 words. It reads more like a statutory code than a basic guiding document.

It’s been amended over 500 times since 1876 compared to just 27 amendments to the U.S. Constitution. 66 of the original sections have been removed and we’ve added 216 new sections. But then we later removed 51 of those.

And the most fun, Texas has had six constitutions since declaring independence from Mexico.

1. The Constitution of 1836. It governed the Republic of Texas after independence from Mexico. It mirrored much of the U.S. Constitution with some Mexican law mixed in.

2. The Constitution of 1845. In 1845, Texas got the big invite to join the U.S. of A. So we needed a new constitution that would vibe with American statehood.

3. Confederate Constitution of 1861. The Constitution was amended in 1861 to transfer statehood to the Confederacy. (Texas was the seventh state to secede.)

4. The Constitution of 1866. All former Confederate states were required to adopt new constitutions in order to rejoin the Union. Hello again!

5. The Constitution of 1869. Republicans in D.C. did not really approve of the 1866 Constitution. So Texas convened another Constitutional Convention in 1868. Not much was agreed upon, but some amendments were put to a vote and passed.

6. The Constitution of 1876. After much fighting over the Constitution of 1869—and after Governor Davis made attempts to centralize the state government—a new Convention was convened in 1875. Voters approved the new Constitution on February 15, 1876. This is the operative constitution today.

Lawyers generally agree it’s a pretty flawed document. It’s painfully long and has been amended hundreds of times. Courts often strain to interpret it. Part of this is because it’s pretty simple to amend unlike the U.S. Constitution which requires the ratification of three-fourths of the states.

But it serves as the foundation, the structure, for everything that happens in our political life. So as you observe and participate in the political process this year, a year that everyone is saying will be truly wild (maybe not?), remember to ask the question: what does the constitution have to say about that?

Thanks for reading! If you’re enjoying this newsletter, the biggest compliment you could give me is to share it with one person who might find it useful.

Have a great week. See you again on Saturday morning.

Greg

And p.s., By day, I run Clearfork Strategies, where I tackle complex government, legal, and public affairs issues. Reach out if you’re facing one of those.

Nothing you read here should be taken as legal advice. Legal advice is different from legal information. If you have a specific legal problem, you should consult an attorney.