A New Foundation
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If Texas is already overburdened with lawyers, and if, nevertheless, our law schools are still bursting with students, then I have a simple solution. Before submitting an application, all who want to apply to law school must sit down and read every word of the Texas constitution that was passed in February 1876 and every word of the 338 amendments that have been adopted since then. Some students will persevere. But the constitution is such a thicket of clauses and commas, such an undergrowth of endless sentences and contradictory logic, that the rest will flee the room or fall into a stupor.
One who would have persevered is John Montford, a Democratic state senator from Lubbock. For the past several years, at home or in his office, on odd nights and weekends, in airplanes on the long trip between Austin and Lubbock, he has drafted a new constitution for Texas. He had help from his staff, and his work relies on both the existing constitution and the revised constitution that was defeated in the constitutional convention in 1974 and by voters in 1975. But the final document is his own.
“I thought it was time to get a draft out and get people talking,” Montford says. He would like to see a new constitution adopted by the year 2000. “As long as we have a target date,” he adds, “it might as well be the transition between the centuries. We have grown into this in our evolution as a state. We need to go from a horse-and-buggy constitution to a Chevrolet—nothing fancy, but a good, simple, dependable constitution.” He wants the next regular session of the Legislature to create a constitutional commission that would draft a document for the House and Senate to pass. It would be offered to the voters as a constitutional amendment that would repeal the old constitution and replace it with the new one.
It’s an interesting plan—constitutional scholars can enjoy themselves arguing whether a new constitution can be adopted by an amendment to the old one—but Montford’s work brings up two questions. First, what’s wrong with the old constitution other than its tortuous complexity? And second, what’s right with Montford’s?
Texas has several persistent problems that can be blamed squarely on the constitution. School funding is one. The current constitution requires an “efficient” system of free public schools. That word has left the door open for the courts to involve themselves in school finance. The result was the so-called Robin Hood plan, which may cause a taxpayer revolt when the bills start arriving and will be a disaster for the schools because it makes it difficult for local school districts to add money to state funds if they choose to. Montford’s proposed constitution says that Texas public schools “must furnish each individual an equal educational opportunity, but a school district may, consistent with law, provide local enrichment of educational programs exceeding the level provided by the state.” That language, taken virtually word for word from the defeated constitution of 1974, is fair to everyone and would take school funding out of the courts, where it is mired now.
Another problem is our increasingly politicized judiciary. Since judges must run for office in partisan elections, it should be no surprise that on the bench they can act more like politicians than judges. This behavior does not serve justice, and it creates an endless list of expensive and wasteful problems, the most recent of which is redistricting. Let’s say this as delicately as possible: It would be hard to prove that partisanship by judges was not an important factor in the ma-neuvering over redistricting. Because voting for judges remains a very popular idea in Texas, Montford retains judicial elections, but he makes them nonpartisan. Favoritism toward campaign donors and similar problems would remain, but at least justice would not depend on party politics.
The constitution is extremely restrictive and unwieldy in matters of state finance. One of the reasons the constitution has so many amendments is that it forbids the creation of state debt over $200,000, except for defense in time of war or insurrection. This pay-as-you-go provision is intended to ensure that the state always balances its budget, a requirement that would make good sense if it were possible for a government to operate that way. The state shouldn’t go into debt to pay for normal operations, but what about capital improvements? If Texas wants to develop parks, build dams, or help finance a supercollider—benefits that presumably will be enjoyed for several generations—it makes perfect sense and is perfectly fair to spread the cost over several generations by borrowing. Issuing bonds to pay for such benefits—that is, creating state debt—requires a constitutional amendment. Interestingly, the Legislature tried to correct this problem last year, with yet another amendment.
The current constitution has other stringent fiscal provisions that require amendments to allow road building, student loans, pensions to widows of state troopers, as well as a series of amendments to these amendments. Everyone wants fiscal responsibility, but having to pass an amendment on matters that should be addressed by statute is an expensive waste of voters’ time.
In Montford’s constitution, state debt still cannot exceed $200,000 (unless Oklahoma or some other enemy invades us). However, by a two-thirds vote, the Legislature can submit propositions to the voters that would allow creating debt for specific purposes without having to amend the constitution.
But the worst fault of the constitution is that it puts no one in charge. Yes, there is a governor, but the office has little authority. The constitution specifically vests legislative power in the two houses of the Legislature and judicial power in the courts, but it describes the governor only as “the Chief Executive Officer of the State,” without vesting any executive power in that office or any other. Then it further dilutes the governor’s authority by having other offices in the executive branch (lieutenant governor, secretary of state, comptroller, treasurer, land commissioner, and attorney general)—all elected, except for the secretary of state. The executive branch is divided into fiefdoms run by independently elected officials, who may or may not see their way to cooperate with the governor. The result is that the executive branch of the government works as single horses, each carrying one rider in whatever direction the rider wants, rather than as a team pulling the same load in the same direction.
Montford’s constitution says: “The executive power of the state is vested in the executive branch.” The governor, lieutenant governor, and comptroller are elected, as they are now. The governor appoints the other executive officers, who form a cabinet and have executive authority over departments of the treasury, agriculture, public safety, economic development, and so on. The governor may reorganize or even abolish state agencies by submitting plans to the Legislature. The plans go into effect automatically, unless the Legislature votes to reject them. With an appointed cabinet and absolute power over state agencies, the governor is unquestionably in charge of Texas.
Finally, the present constitution contains many minor inconsistencies, errors, and redundancies. Article III, Section 52(b), says, amid much else, that “the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of this Constitution.” That’s clear enough, except that there are no limits imposed in any other provisions.
The constitution also revels in minutiae to the point of hilarity: “…such medical care, services or assistance shall also include the employment of objective or subjective means, without the use of drugs, for the purpose of ascertaining and measuring the powers of vision of the human eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision.” This kind of verbal undergrowth needs to be weeded out.
The present constitution, with its severe strictures on state debt and the executive branch, is the result of Texas’ historical mistrust of government. It is clearly an attempt to create the least powerful government possible that could still govern and leave the most possible power with the people by requiring frequent plebiscites.
That is a noble idea, but today tyranny from state government seems to be less of a threat to liberty and the pursuit of happiness than does the state government’s unwieldiness, needless complexity, and lack of unified effort and vision. There isn’t any reason why a modern constitution couldn’t provide checks against government’s power and streamline government as well. Montford’s proposal tries to do just that.
Montford says, “We went back to the idea behind the United States Constitution. We wanted to create a basic document that allows government to work.” The state constitution of 1974 lost because of an unfortunate battle over a right-to-work clause; the opposition of a group of senators who disliked the constitutional convention’s chairman, Price Daniel, Jr.; and the failure of then governor Dolph Briscoe to support it. Today the right to work is not such a fervent issue; it is hard to imagine Senator Montford’s causing such personal animosity; and Governor Ann Richards has not so far indicated any fervent opposition. Perhaps we can trade the buggy for a Chevrolet after all.