Purposes of a constitution

1. Purposes of a constitution • A “brief” charter that outlines basics of the political game in society. • It authorizes government – gives legitimacy • It outlines structure of government. • It outlines political affairs. • It defines & limit powers of government. • It establishes legal contract & identifies the civil rights of the people.

2. 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 “federalism.” • 5). Bill of Rights for the people

3. Seven Constitutions of Texas • Types of governments: unitary, confederation, & federations • All Texas Constitutions found on line at the University of Texas law library: http://tarlton.law.utexas.edu/constitutions/constitutions.html • 1827, Coahuila y Tejas • 1836, Republic of Texas. • 1845, joined the USA federation

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

5. 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.

6. 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.

7. 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 attempts • 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

8. 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. • As little as 1.5% of Texas’ voting age population! Disgraceful. Shameful. We are supposedly the greatest democracy in the world! Ha! Too many just do not care. • http://www.sos.state.tx.us/elections/historical/70-92.shtml

9. How get information? • http://www.csg.org/policy/publications/bookofthestates.aspx • Analyses of Proposed Constitutional Amendments. • Texas Legislature’s “Legislative Council” http://www.tlc.state.tx.us/const_amends.htm

10. 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!

11. Amending Texas Constitution • Texas Constitution is huge book with 484 amendments as of 11/2013. • Average state constitution is 19,300 words. US Constitution 6500. • Alaska model constitution http://ltgov.alaska.gov/treadwell/services/alaska-constitution.html • Long constitutions are caused by weak amending methods and strong special interest groups.

12. Consider the following --- • http://www.brb.state.tx.us/bfo/bfo.aspxAs of August 31, 2010 Texas had a total of $37.71 billion in state debt outstanding. It has more than doubled under Perry and the “fiscally conservative Republican legislature and will cost more than $75 million for someone else to pay back in 30 years - YOU! They will add to it this year with additional vaguely worded amendment proposals on the ballot. • Remember the Analyses of Proposed Constitutional Amendments - Texas Legislature’s “Legislative Council” publishes this at http://www.tlc.state.tx.us/pubsconamend/pubsconamend.html where you can find the truth about these amendments before have to vote. Most do not understand and WILL pass these amendments to let our leaders off the hook so they SEEM fiscally conservative • http://www.texaswatchdog.org/2011/02/texas-taxpayers-have-rolled-up-billions-in-debt-to-keep-road-TxDOT/1298911865.column • http://www.texasbudgetsource.com/2011/03/voters-could-decide-fate-of-boosting-gas-tax/

13. 2. Too detailed. • Excessive details should be left to lesser statutory laws only needing to be passed by legislature and signed by the governor! • Too many provisions fail to meet fundamental standards of law!

14. 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!

15. Too detailed • Alabama Constitution, sec. 102 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.“ • Repealed 2000 in public referendum by vote of 59% for and 41% against (41% AGAINST!)

16. 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!

17. 3. Poorly written • Most state constitutions were written in language of 1800’s not commonly used today • Reforming with modern language makes them more easily understood

18. 4. Too restrictive on the legislative branch • Inability to call itself into session when need to work. • 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 law

19. 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: • 2001: .20 gal=$2.8 billion; comptroller takes 1% for her admin then divides 75% highways, 25% education. Republican Legislature proposes 10 cent increase=$1 billion/year. • http://www.texasbudgetsource.com/2011/03/voters-could-decide-fate-of-boosting-gas-tax/ • Most live in cities but most of money spent on rural roads with few people because most used to live in the country! • http://www.texaswatchdog.org/2011/02/texas-taxpayers-have-rolled-up-billions-in-debt-to-keep-road-TxDOT/1298911865.column

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

21. 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.

22. 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.

23. 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, comptroller.

24. Fragmentation • 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.

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

26. 6. State Court System • Constitutions create, structure, & empower courts. • http://www.courts.state.tx.us/oca/pdf/Court_Structure_Chart.pdf • EJ Davis appoints unpopular cronies; democrats get power back & elect. • Should majority rule courts or the LAW? Federal system.

27. 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.

28. 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 electorate. • 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.

29. 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.

30. 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 see http://www.pbs.org/wgbh/pages/frontline/post-mortem/ which will scare you how ignorant elected officials decide wrongly how your family member died. It is a scandal that must be changed immediately. • 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.

31. 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. http://www.pbs.org/moyers/journal/02192010/watch.html • Look at these interviews with experts on the subject at http://www.pbs.org/wgbh/pages/frontline/shows/justice/howshould/ and http://www.pbs.org/wgbh/pages/frontline/shows/justice/ • and see this story at http://www.slate.com/id/2201960/ • The NYU School of Law has some good information to help you understand judicial elections issues http://www.brennancenter.org/content/section/category/state_judicial_elections and http://www.justiceatstake.org/issues/index.cfm provides information on fair and impartial courts.

32. Did you see the 2011 news http://www.nytimes.com/2009/02/13/us/13judge.html?_r=1 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. • http://www.brennancenter.org/content/resource/caperton_v_massey/ and http://www.wvrecord.com/news/231208-caperton-refiles-massey-suit-in-virginiaandhttp://www.nytimes.com/2012/01/30/opinion/a-reform-for-fair-courts.html?nl=todaysheadlines&emc=tha211 • See this March 2012 article on the problem of electing judges http://www.nytimes.com/2012/03/16/opinion/no-way-to-choose-a-judge.html?nl=todaysheadlines&emc=edit_th_20120316

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

34. 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.

35. 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 resources.

36. 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 constitution.

37. 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

38. 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.