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					            Purposes of a constitution

1.    A “brief” charter that outlines basics of the
      political game in society.
     1.    It authorizes government – gives legitimacy
     2.    It outlines structure of government.
     3.    It outlines political affairs.
     4.    It defines & limit powers of government.
     5.    It establishes legal contract & identifies the
           civil rights of the people.
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     State Constitution Principles

   1). The state Constitution created a
    “republic” form of government.
   2). The state Constitution created
    “separation of powers.”
   3).The state Constitution created “checks
    and balances.”
   4). The state Constitution accepted
   5). Bill of Rights for the people
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     Seven Constitutions of Texas

   Types of governments: unitary, confederation,
    & federations
   All Texas Constitutions found on line at the
    University of Texas law library:
   1827, Coahuila y Tejas
   1836, Republic of Texas.
    1845, joined the USA federation

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     Texas Constitutions
   1861, seceded from USA
   1866, forced reinstatement in the USA
   1869, forced compliance with “Radical
    Republican reconstruction program.”

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1876 Constitution
   Reaction against the United States, and its
    “Radical Republican Reconstruction” plan.
      None who wrote 1869 permitted.

      Reaction to Union general EJ Davis

      Severely restrict governor. Many elected
       instead of appointed. Legislature dominate
       power. Central schools abolished for local
       control. Poll tax.

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1876 Bill of rights
   Included things like:
      No suspend writ of habeas corpus

      All trials by jury

      Can’t be imprisoned for debt.

      Can’t be outlawed to another state.

      Citizen right to arms but Legislature has
       right to regulate wearing & prevent crime.

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       Amending U.S. Constitution

   Article V. Propose amendments by 2/3
    House/Senate, or by state conventions on application
    by 2/3 (33) of the state legislatures. Over 11,000
   Ratify in either of two ways and Congress has the
    right to decide the method
      ¾ (38) of state legislatures (to do this Texas

       would need to pass a joint resolution by 2/3), or
      ¾ (38) state conventions

         27 ratified
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      Amending Texas Constitution

   Proposal requires 2/3 vote in Texas House (100
    of 150) and in Senate (21 of 31).
   Ratification by a simple majority who show up at
    the election polls.
      Low voter turnout & uninformed voters are

       problems. Most amendments pass.
           6.9% state voter turnout(’97). 4.7% in Tarrant County(’99).
            9% voter turnout in 2001. 18% in Texas 2005

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How get information?
   Analyses of Proposed Constitutional
     Texas Legislature’s “Legislative


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        State Constitution Problems

   The following have been identified as
    problems in general with most of the
    50 state constitutions.
   1. Too long
       U. S. Constitution brief but OK to
        govern whole country!

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Amending Texas Constitution
   Texas Constitution is huge book with
    467 amendments as of 11/09.
        Average state constitution is 19,300 words.
         US Constitution 6500.
        Long constitutions are caused by weak
         amending methods and strong special
         interest groups.

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    2. Too detailed.

   Excessive details should be left to lesser
    statutory laws only needing to be
    passed by legislature and signed by the
       Too many provisions fail to meet
        fundamental standards of law!

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     Too detailed

   Texas Constitution Article 6 prohibits
    18, 19, and 20 year olds, idiots,
    lunatics, and poor people the right
    to vote.
   Mississippi requires a religious test
    for office holders
   Georgia has a $250,000 reward for
    1st person to strike oil!
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Too detailed
   Alabama Constitution, sec. 102 still
    forbids the legislature from
    legalizing inter-racial marriage.
        Constitution of 1901 decrees: "The
         legislature shall never pass any law to
         authorize or legalize any marriage between
         any white person and a negro, or
         descendant of a negro."

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     Too detailed

   Texas Constitution has details like: college student
    loan req, public financial statements, admin of water
    boards, water bond sales, parks administration,
    building commission req, municipal retirement
    systems, roads construction, tax rates, interest rates
    on bonds, where gov must live, how clerks
    appointed, sheriff elections, selling of school lands,
    creation of hospital districts, railroad operation,
    seawalls, deductions from state salaries, retirement
    systems, AND dueling!

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        3. Poorly written

   Most state constitutions were written in
    language of 1800’s not commonly used
       Reforming with modern language makes
        them more easily understood

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4. Too restrictive on the
legislative branch
        Inability to call itself into session when need to
        Constitutional requirement to read bills 3 times in
         each house before can become law. Originally
         because too many could not read.
               1 to 7 million pages a session should be read to meet the

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    Too restrictive
    Ear-marking revenue to be spent only on activity
     authorized by Constitution
    Also known as dedicated funding, like gasoline tax is
     dedicated to:
       2009: .20 gal=$3 billion; comptroller takes 1% for

        her admin then divides 75% highways, 25%
        education. Republican Legislature proposes 10
        cent increase=$1 billion/year.

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Too restrictive
   Dedicated fund problems are:
        1) Legislatures lack control of up to 65% of
         the state budget locked up in dedicated
        2) Dedicated funds prevent the legislature
         from controlling individual agency funding;

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Too restrictive
        3) Dedicated funds prevent the legislature
         from controlling the overall state budget;
        4) Legislature has no power to use surplus
         in one account to fund another account in
         the red to avoid a tax increase.

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Too restrictive
   Amendments specifying low
    legislative pay that causes too
    many conflicts of interest
        New Hampshire pay is $100/year
         gross; Texas $600/month gross Art.
         III, sec. 24.

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5. Fragmentation of the
executive branch

   Having many state agencies headed by
    their own elected officials who are not
    in the governor’s chain of command.
    Texas: Railroad Commissioners,
    attorney general, agriculture
    commissioner, land commissioner,

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   Governor near powerless to direct other
    agency heads, unlike in a business or in
    a cabinet style of government.
        Reaction to corrupt governors, like EJ
         Davis. Dispersal of power so that no one
         governor could ever hurt citizens too badly.

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   Fragmentation causes a long ballot with
    many candidates/names unfamiliar to
    the voters.
   Election too often depends on money
    and name identification and slick

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      6. State Court System

   Constitutions create, structure, & empower
   EJ Davis appoints unpopular cronies;
    democrats get power back & elect.
   Should majority rule courts or the LAW?
    Federal system.

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         State Court System
   254 partisan elected county judges and hundreds of elected
    justices of the peace do not have to be lawyers or have any
    legal training (just be voter).
   Too many have little education & come from unrelated
    occupations like truck drivers, high school students,
    laborers. Like an airline pilot flying with no training. Basic
    fairness demands that litigants & accused have a judge
    trained to understand the complexity of law. What good are
    judges if they can’t even understand legal arguments?
   Partisan elected state & local judges whose decisions can reflect
    local politics rather than uniform application of law (civil rights),
    straight ticket voting, & uninformed electorate.
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       State Court System
   Too many elected courts, denounced, reviled, & described
    as unprofessional amateurs, incompetent, a farce, outworn,
    feeble, & respected by few. They keep few records &
    operate without supervision since accountable only to
   They are too closely associated with those who bring cases
    to court (police & prosecutors & interest groups). Often
    interest groups with cases before the courts find a favorable
    person to its cause, sometimes one of its employees, and
    run that person as a candidate for the courts and spend
    millions to get him elected --- in effect to buy a favorable
    outcome to a court decision. Just imagine if this was the
    way it worked at the federal level that an Exxon could buy
    favorable candidates’ election to the U.S. Supreme Court to
    get a favorable decision on Exxon Valdez case.
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State Court System
   Many judges former police officers often prejudiced
    against accused. Towns fight for them because
    elected judges raise revenue (such as speed traps).
    Such courts often found in odd places like gas
    stations, sometimes pubic not admitted, witnesses
    not sworn to tell truth, no word for word record of
    proceedings. Leave long trail of injustice and
    mangled rulings, abuses of power and law. Often
    elected in low turn out elections.

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       State Court System
   Raise money from lawyers & litigants with issues
    before the courts & wined & dined & vacationed by
    the same. Coroners in most state counties are not
    physicians, but JPs. Texas has a dual court system
    that is only used by one other state ... Oklahoma.
    Supreme Court is highest civil court. Court of
    Criminal Appeals is highest criminal supreme court.
    Inefficient & ineffective as some judges are busy
    and others not who waste tax money. Financially
    mismanage millions of dollars in fines each year.

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   How do you best prevent corruption in the courts? Is it OK when parties and
    lawyers involved in legal actions legally contribute enormous sums of money to
    the very judges deciding their cases? First I want you to watch this PBS video
    "Is Justice for Sale" that summarizes the issue.
   Look at these interviews with experts on the subject at and
   and see this story at
   The NYU School of Law has some good information to help you understand
    judicial elections issues
    and provides information on fair
    and impartial courts.
   Did you see the 2011 news how 2
    Pennsylvania elected state judges were convicted in a kickback scheme to
    convict kids and send them to private detention juvenile centers
   See this great story about buying (electing) the right judges on a court to get
    the decision you want.
 and

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NML Model State Constitution
   Deals only with fundamental principles
    of government rather than specific
    legislative details better left to statutory

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NML Model State Constitution
   Permit only the governor and lt.
    governor to be elected in the executive
    and judicial branches.
   Allow the governor to nominate agency
    head and judicial appointees confirmed
    by the legislative branch.

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     NML Model State Constitution

   Cabinet style government.
   Grant considerable authority and
    flexibility to the legislative branch as the
    chief policy making and taxing body in
    the state, like Congress.
      This is in contrast to the part-time

       legislatures lacking adequate staff and
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NML Model State Constitution
   Even though the 14th Amendment of
    the U. S. Constitution guarantees U.S.
    Bill of Rights protection to the states,
    the model state constitution should also
    protect the civil liberties of its citizens.
   In short, this model constitution is the
    exact opposite of the typical state

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Constitutional Reform Efforts

   1974 in Texas was the last reform
    effort. Legislature sat as convention
    (181 delegates).
   “Right to work” killed it. Vote 118 to 62
    (2/3’s or 121 needed to pass).
        Rep. Craig Washington & Galveston district

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Constitutional Reform Efforts
   1975 Legislature passed 8 amendments
    to accomplish much of the failed
    constitutional convention proposals.
   Failed 11/4/75 in a constitutional
    amendment election
        Interest group opposition spent millions on
         media advertising to kill it. Only 23% of
         voters went to polls.

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