Wednesday, September 16, 2020

From the Texas Tribune: Why is the Texas Constitution So Dang Long?

For 2306, a question also addressed in your textbooks.

- Click here for it.

One answer is that amending the state's Constitution is relatively easy. Texas has a relatively low bar for amending its Constitution. Another reason that Texas’ Constitution has needed additions and alterations so often is that, perhaps paradoxically, it takes a highly restrictive view of the powers of state government. Both of these factors, which Texas has in common with many other states, differ markedly from the United States Constitution.

The founding fathers wanted to make it a difficult process to amend the federal Constitution, and they succeeded. There are several different ways to change the U.S. Constitution, but it’s only ever been amended by a process that requires a two-thirds vote by both houses of Congress and the approval of three-fourths of the states. Unlike that Constitution, which has remained relatively brief with 27 amendments and has only been changed once since 1971, the Texas Constitution merely requires an amendment be passed by the state Legislature and approved by voters in a referendum.

Another reason for the difference between the two constitutions lies in the different philosophical approaches the framers of the constitutions had about the role of government. The U.S. Constitution sets out the responsibilities and powers of government, and then grants Congress the “power - To make all Laws which shall be necessary and proper for carrying” into being the powers granted in the rest of the document. This, the Necessary and Proper Clause, is the justification for a wide array of federal powers not specifically enumerated by the Constitution itself.

There is no equivalent to that clause in the Texas Constitution. Instead, the powers granted to the Legislature and governor include only those specifically written in the state Constitution. So, even small legislative changes — like allowing El Paso County to finance its own parks with local taxes — can require a constitutional amendment and a referendum.

A good example of the challenges posed by this type of restrictive constitution is Article X, one of the 17 articles in the Texas Constitution. The article dealt with the regulation of railroads — a hot-button issue in 1876. Article X has remained in the Constitution long after the federal government took over regulatory duties for transportation, and in 1969, all except one of the Article’s sections was repealed. The remaining section is likewise outdated, and has little force of law.