POLS 207: State & Local Government

Megan K. Dyer January 27, 2017

 Overview

Announcement: Syllabus quiz

Today: Constitutionalism in the States

1. What is a constitution?
Constitutional traditions in the U.S.
2. State constitutions
Compared w/ U.S. Constitution
The Texas Constitution
3. Assessing state constitutions
 Constitutionalism

Purposes of Constitutions
1. Legitimacy
Where political power comes from
What it may be used for

2. Provide basic framework organizing govt

Allocate power to institutions
Create rules for decision-making

3. Limiting governmental power

Establish formal limits to govt power
State Bills of Rights
Internal & procedural limits too

Same basic purposes at BOTH federal & state levels! Texas Constitution, Preamble
 Constitutionalism

Constitutionalism in North America

English Constitutionalism
Magna Carta (1215)
securing feudal rights against royal power
+ various other documents & traditions
Shared history

Colonial charters
Royal grants allowing colonies to establish govts
Looked to for limiting British interference
! State traditions of written constitutions
King John agrees to uphold the rights of his barons
 State Constitutions

Key Similarities & Differences

Purpose + shared history ! key similarities

Among state constitutions
w/ federal constitution

State-level separation of powers

! executive, legislative, & judicial branches

Systems of checks & balances

BUT states often have weaker governors
Historical reaction to royal governors
Post Civil War desire for voters to reserve power
Emphasis on legislative power
Note: bicameralism in the states (except NE)
 State Constitutions

Key Similarities & Differences

Similar hierarchy of govts & their laws to federal level

1. Constitution
2. State statutes
3. Local govt ordinances

BUT local govts are subdivisions of state govts

NO independent authority or inherent powers
NO federalism b/t state & local levels
 State Constitutions

Key Similarities & Differences

States DONT get their authority from the national govt

dual sovereignty

BUT local govts DO get their authority from their state

State may delegate powers
State may limit local govt powers

Can delegate power EITHER via the state constitution or state law
 State Constitutions

State Bills of Rights

All states have them

(Used to justify absence of Bill of Rights in original U.S. Constitution)

U.S. Constitution Supremacy Clause (+incorporation)

! National Bill of Rights also applies to the states

BUT many states specify additional rights their citizens possess

e.g. Many states have little ERAs
e.g. TX prohibition against transportation as punishment
e.g. Freedoms against govt interference in private life
 State Constitutions

Specificity of State Constitutions

States often use their constitutions to carefully control their govts

Reflected in length of the document

U.S. Constitution = ~8000 words (amended)
Most state constitutions much longer

Way more specific

Contain detailed restrictions of govt power
! weaker governor & legislatures
Address specific areas of public policy
 State Constitutions

Constitutional decision-making v. ordinary policymaking

Traditional distinction
Constitutions govern governments
set down rules & procedures for decision-making
Deciding how to decide
(not making the decisions themselves)

but STATE CONSTITUTIONS contain many policy decisions

Groups attempt to enshrine their preferences in constitution
! More difficult to alter or revoke
! Cant be undone by ordinary law
(Must be changed via more amendment)
 State Constitutions

Constitutionalizing Policy Preferences

Constitutions supposed to be HIGHER LAW

More difficult to amend (or revoke) than regular laws
Writing policy into constitution removes it from ordinary legislative process

U.S. Constitution
18th Amendment: Prohibition
(Repealed by 21st Amendment)
Other attempts: Corwin Amendment (1861)
To forbid Congress from interfering w/ the domestic institutions of the states
 State Constitutions

State Constitutions & Policy Decisions

1. Lots of regulatory language

Insurance, utilities, railroads, alcohol, real estate, education, etc.
Often enshrined by lobbying efforts

2. Taxation & finance specifics

Often limit or cap power to tax
Tax exemptions*
Earmarks for specific revenues
i.e. lottery money ! education & scholarships

3. Limitations on Debt
Balanced budget requirements
Constitutionally mandated debt limits
 State Constitutions

Should we want a detailed, policy-specific constitution?

ADVANTAGES
1. Details bind govt officials & limit power
Fewer opportunities for abuse
2. Possibly requires less interpretation
But NOT if the constitution gets unwieldy!

DISADVANTAGES
1. Details bind govt officials & limit power!!!
Rigidity & lack of flexibility
2. Used to entrench policy beyond normal political process
 State Constitutions

Changing a Constitution

U.S. Constitution
Amended 27 times (book says 77 WRONG!!!)
(Only 1 deals w/ regular legislation & policy)

Most amendments:
Fundamental changes to govt structure &/or powers
e.g.
1. Protecting rights
2. Expanding the electorate
3. Altering relationship b/t electorate & elected officials
4. Expanding & limiting govt power
 State Constitutions

Amending State Constitutions

More detailed, many policy specifics

! Need & incentive to propose changes!

Less flexible & adaptable

! Change requires constitutional amendment
! Amendments much more common

Note: State variation in method of amendment

 The Texas Constitution

Texas Constitutions

7 constitutions, 5 since statehood

Why so many?
1845---Annexation & statehood
1861---Succession
1866---Lost the war between the states
1869---Required for re-admission to the Union
1876---Enacted shortly after return of Democratic rule
Current constitution!

New constitutions for powerful stakeholders?

 The Texas Constitution

The Texas Constitution (of 1876)

Long & poorly organized

2nd longest Constitution in the U.S.
Nearly 87,000 words!

MANY details of public policy & govt organization

1. To avoid abuse of power by govt
2. To protect various private interests
Re: individualistic & traditionalistic political culture

Conservative, agrarian, & reacting to carpetbag rule

 The Texas Constitution

The Texas Constitution

Contains a lot of deadwood

i.e. Unenforceable provisions that conflict with the U.S. Constitution

e.g. Art. 1 (Bill of Rights), Sect. 4: Religious Tests

No religious test shall ever be required as a qualification to any

office, or public trust, in this State; nor shall any one be excluded
from holding office on account of his religious sentiments, provided
he acknowledge the existence of a Supreme Being.
 The Texas Constitution

Texas & U.S. Constitutions

Structural similarities
3 branches executive, (bicameral) legislative, & judicial
Separate powers among branches
Limited govt:
Through written provision
Through institutional checks

Different provision of power to govt

U.S. Constitution: short, but flexible
Texas Constitution
LONG, much more restrictive of govt power & its use
 The Texas Constitution

The Texas Constitution

Many policy specifics

! amended frequently

Amendments not appended like

in U.S. Constitution
Inserted into document

2005 amendment creating constitutional ban on same sex

marriage; now constitutional deadwood
 Assessing State Constitutions

The Supreme Law of the STATE?

U.S. Constitution
Rarely changed
Widely acknowledged as the Supreme law of the land
Often cited as a source of authority & a moral touchstone
Viewed by many as sacred & inviolable
Symbol taken up from all sides

Can the same be said of your state constitution?

Do state constitutions operate differently?

 Assessing State Constitutions

State constitutions not NEARLY as venerated

Turn to other symbols of state uniqueness & values

Even so: RULES & INSTITUTIONS are NEVER neutral

They create winners & losers
(Even the U.S. Constitution!)

Who benefits from constitutional arrangements of state power?

Who do they protect?
Which interests/stakeholders do they favor?
Next: Democracy In the States