What did the authors of the 1876 Texas Constitution do as part of their effort to dismantle?

Hey, Texplainer: Why does the Texas Constitution have so many amendments?

This November, another 10 constitutional amendments approved by the state Legislature will be put to a vote in a biennial referendum that’s become something of a tradition in Texas.

The proposed amendments, which range from a measure allowing El Paso County to finance parks and recreational areas, to a measure facilitating partnerships between cities, counties or government agencies, will bring the total number of amendments considered by Texas voters to 656 since the current state Constitution was ratified on Feb. 15, 1876. Of those, 467 amendments have been approved — the fourth-highest number of amendments of any state, behind Alabama, California and South Carolina. Why has the Texas Constitution been changed so much?

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.

Over the years, there have been many attempts to clean up the ever-growing document. A constitutional convention called by the Legislature in 1974 met for 150 days before ending in gridlock: The proposed constitution fell short by three votes, with 118 for and 62 against. When the Legislature tried to add parts of the proposed constitution to the current one a year later in the form of eight constitutional amendments, all were overwhelmingly rejected by voters.

In 1999, state Sen. Bill Ratliff, R-Mt. Pleasant, and state Rep. Rob Junell, D-San Angelo, proposed a rewritten constitution which attempted to simplify the document and streamline state government. The bill died in committee, but the bill’s authors remained convinced of the need for reform.

Voters, Ratliff said at the time, know “that any document that you have to amend 20 times every other year is broke. It's sort of a Texas tragedy, actually, that we can't seem to come to grips with the fact that we need a new basic document going into the next century and the next millennium.”

At least Texas’ Constitution isn’t the most unwieldy: Alabama's Constitution, which has been amended 827 times, is more than 340,000 words long. That’s three times as long as the longest constitution of a soverign nation, India's. And California’s Constitution, which allows constitutional amendments to be introduced to the ballot by petition, has contributed significantly to the state’s budgetary woes and was the subject of a special report in The Economist earlier this year.

Barring a constitutional convention, though, Texas voters should get used to watching more obscure amendments sail through the approval process, whether its 2003’s Proposition 21, which allowed “a current or retired faculty member of a public college or university to receive compensation for service on the governing body of a water district," or Proposition 5, from 2001, which permitted “cities to donate used firefighting equipment to foreign countries.”

Bottom line: The way the Texas document is written makes it, perhaps paradoxically, both fairly easy to amend and highly restrictive in the powers it grants, making frequent and often highly specific changes necessary. 

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