A New Foundation

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

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