Texan Constitutionalism, if you will, and a Short Introduction to Civil Rights and Liberties

In this lecture on the Texas constitution, I want to introduce you to the current document and why it is important. I do not have a contention about the previous constitutions of Texas and whether they succeeded or failed. What I'm more interested in is whether we can gather a frame of reference for what we have today. How can we relate to our constitution, our fundamental law, the law that generates the state government? How can we learn to see it in our everyday lives?

One of the best ways to understand the law is to understand the political debates adjacent to it. This is not as simple a task as it might seem, because debates in the abstract are useless. We've all heard at one time or another that one party stands for smaller government and another stands for bigger government. With small government people may be freer but receive fewer services; with larger government there may be more rules but more help from officials. Even though this characterization isn't entirely untrue, I'd like you to put it and notions like it aside for a moment. It isn't speaking to the very real needs of people and their confusion about what government can or cannot do. It isn't speaking of how a capacity for self-government, the "We the People" of the U.S. Constitution, can be realized.

So I want to start with this article which is over a year old but speaks to what is happening in West Texas. I should note now that as I teach this class, you'll note that I treat West Texas, Odessa especially, as a stand-in for the rest of the United States. You're going to think this is crazy – how could Odessa stand-in for NYC? LA? Cooperstown? Austin? Yellowstone? Disney World? – but the more you read about Odessa and its environs, the more you realize the issues here are the issues everywhere else, just clearer. Much clearer. The U.S. leads the world in oil production, and the Permian Basin is a significant part of that. What does that mean in terms of how power is distributed? How do we think of power–what do we even think power is? What does that turn into in terms of investment? What do people believe in terms of making it in this area, this country, and how does that turn into civics and culture? Are West Texas' athletic achievements related, you think, to the dominance of the oil industry?

Onto the article, which is about West Odessa. West Odessa is not the City of Odessa because it is not a city. County laws and state laws apply there, but there are no local laws. So there's no zoning. Those of you from West Odessa have stories about people creating their own private zoos, for example. There are also no formal emergency services and for some years, there has been a debate about whether West Odessa should have them at all. It should be noted that people die and injuries are worse because of longer times to get an ambulance, but because West Odessa is not a legal entity, no one is even sure how many people live out there. Here's a passage from the article that I'd like you to focus on and be able to talk about:

For thousands of residents in West Odessa, running water is a luxury with no widespread infrastructure to support it. Neighborhoods are connected by uneven dirt roads. Driving conditions are choppy at best and risky at worst. If there is a speed limit — no one behind the wheel of a large pickup is paying attention to it. Streetlights are few and far between.

The nearest hospital and police department are in the city, miles from reach.

So we've got a place without regular running water, "uneven" roads, needing streetlights, and hospitals and police are a distance away. You can already see why I wanted this to introduce the Texas constitution: the debate is why one needs or has government at all, and the funny thing is that even when one feels government is obviously needed–how else to get 911 services!–that is not a need which presents itself the same way as an immediate need for food or shelter.

I should be clear here. Some people put others down on account of where they live. There's a lot of bullying that happens in the name of declaring oneself more "civilized" or living in a "proper" place. When I introduce the problems of West Odessa, they are not meant in a way to put West Odessa or Odessa down. After all, West Odessa is playing with an idea most in formal positions of authority in the state government are playing with. How can we minimize government? What if we could service all our needs without it? It's easier to see, in certain cases, that there's a social contract we're all taking for granted no matter where we live. That the truth is there are ideas of community and being there for each other–there may be a base agreement that we don't let each other die, for example–that we could use some entity to represent. In other words, the supremely angry people we know who say they don't need anyone else to survive aren't always being totally honest. And acknowledging this leads us to the questions which surround the state constitution.

Rather than have you read the whole state constitution, I would recommend this video to get started with it:

That video is enormously critical of the Texas constitution (pdf), but this is still more government than some in Texas would like. You'll note that Texas has a constitution with far too many amendments. However, it does feature a government with an executive, a legislature, and a judiciary, however qualified. The executive is a plural executive, so as to distribute executive power among a diversity of elected officials. The legislature is biennial, meaning it meets only once every two years. This could mean that the amendment process, as the video points out, leans in the direction of direct democracy. However, as we'll talk about later, this can be a huge problem: Texas, if it were a country, would be the world's 8th largest economy, larger than Russia or South Korea. Because the legislature barely meets and there is a balanced budget requirement, it isn't clear Texas can spend the money it must spend to help all its citizens. Finally, a number of state judges are elected in Texas, and as you can imagine, this lends itself to a certain rhetoric about safety, law, and order.

One thing I'd like you to take especial note of. Texas' constitution is emphatic that a good system of free public education is a must:

"Sec. 1. SUPPORT AND MAINTENANCE OF SYSTEM OF PUBLIC FREE SCHOOLS. A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools. (Feb. 15, 1876.)"

This is from Article VII of the Texas constitution and it has not been discussed much as many in power in the state plan to create a voucher system which, it has been argued, will take money away from existing public schools. The question of privatizing education is one which requires care and serious thinking. There are very good private schools that certainly deserve support. Also, very obviously, there is an existing constitutional mandate for public schools. It would be nice to see more people articulating explicitly what they think this part of the law means and what specific duties it entails.

So I think that's a good introduction to the Texas constitution. You can see how political debates considered a certain way shed light on what the constitution is and why it has certain provisions. This isn't to say that every political debate, carefully considered, will shine a light into how law works in our daily lives. It is to say that we can approach the question of "Why do we have a constitution?" from a more intuitive place. Government does lots of things we take for granted, including some so fundamental we can't imagine life without it.

I'd like you, while thinking about constitutionalism, to think about rights. I think most people, if they're asked about what it means to be an American, will say something like "I can say whatever I want." That's a good start for thinking about rights–what is the First Amendment and our free speech culture, really? How does it work for us, how does it compare with other countries and societies?–but I know it is worth hearing from others whether other rights (strictly speaking, "civil liberties") in the Bill of Rights are given due respect. I want everyone to watch the video about Texas prisons and the heat deaths occurring within them. This is straightforward disregard for the 8th Amendment, the prohibition on "cruel and unusual punishment:"

Again, this video is a bit old, but you can do a quick internet search and assess for yourself whether Texas has changed significantly on the issue. One question in particular I want to leave you with, one that if you can answer, will address some issues in how we think about constitutionalism and rights. What does it mean, you think, that guards are being treated the same as prisoners? That anyone in a given prison without air conditioning is subjected to the same conditions? Those questions will primarily be what we talk about in the live meeting this week.