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Texas Bill of Rights

Texas Bill of Rights. GOVT 2306. As with the states (notably the original 13) and the national government as well, the Texas Constitution has a Bill of Rights. It is contained in Article One of the Texas Constitution.

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Texas Bill of Rights

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  1. Texas Bill of Rights GOVT 2306

  2. As with the states (notably the original 13) and the national government as well, the Texas Constitution has a Bill of Rights. It is contained in Article One of the Texas Constitution.

  3. The purpose of a Bill of Rights is to clearly define the rights of individuals in a governmental system. This is done in two interrelated ways.

  4. First, it establishes limits on what government can do. Second, it states what individuals should be able to do.

  5. These sound the same, but they are not. The subject of the first is government: What laws can be passed, how the executive can implement the laws, and what process the judiciary must when adjudicating disputes.

  6. The subject of the second is the individual citizen: what rights they ought to be able to enjoy. This is a far more proactive statement the former. It suggests an obligation – an entitlement – on the party of government to establish certain rights.

  7. A quick note on terminology: LibertiesRights

  8. To say that someone has “liberty” can simply mean that they are “free from restriction or control.”To say that someone has a “right” means that they have a “power or privilege to which [they are] justly entitled.”

  9. Obviously there can be tremendous controversy over what is implied be these terms.A written Bill of Rights is supposed to help clarify what those terms mean. That’s what we will attempt to do in this section by running through the Texas Bill of Rights and analyzing its content.

  10. As a point of comparison, the United States Bill or Rights is primarily concerned with restricting the powers of government. The subject is not what the people are entitled to, but what the legislature, the executive and the judicial branches cannot do.

  11. For example:

  12. The First Amendment states that Congress cannot pass certain laws, including those that abridge religious and participatory freedoms.

  13. The Fourth Amendment states that the executive branch cannot perform unreasonable searches and seizures.

  14. The Sixth Amendment requires the judicial branch to recognize certain procedural rights for criminal defendants.

  15. The language does not clearly state that people have certain rights (like to speech, security, and jury trials). It assumes they have them and restricts government’s ability to deny them. [These rights are not absolute however. The Supreme Court occasionally rules on exceptions to them, but we cover this topic in GOVT 2305]

  16. A bit of history would help here.The rights embedded in the US Constitution developed over the course of Anglo-American history.

  17. The idea that the rights of individuals ought to be articulated is an ancient one. It dates back to the Magna Carta, which was a document written in 1215 that articulated the rights of the nobility that were recognized by King John. Along with other documents, this provides the foundation for the bills of rights in the United States.

  18. Some of the terminology in the US Bill of Rights is pulled directly from the Magna Carta and from the British Bill of Rights.This is an important point. The rights expressed in the US and Texas Bills of Rights (and those of other states) are not novel and capricious. They developed over time.

  19. When the original British colonies were established in North American, they were granted charters by the crown. These charters contained statements of the rights the colonists had (at least those who had the qualifications of citizenship) due to the fact that they were Englishmen.

  20. For a thorough look at that argument you might want to read through the following: American Constitutional Thought: Colonial Charters and Early State Constitutions

  21. These two might be helpful as well.

  22. Worth a look: STATE BILLS OF RIGHTS IN 1787 AND 1791: WHAT INDIVIDUAL RIGHTS ARE REALLY DEEPLY ROOTED IN AMERICAN HISTORY AND TRADITION?

  23. And a companion piece: Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition?

  24. After the Revolutionary War, these colonial charters became state constitutions, and many of the states had Bill of Rights.These predate the US Bill of Rights.

  25. As you may already know, the United States Constitution did not originally contain a Bill of Rights. Alexander Hamilton argued that the national government did not need a Bill of Rights because its powers were defined and enumerated in the Constitution.

  26. State constitutions needed them because they possessed reserved powers, which were undefined. The state governments could do anything they wished. A clarification of what they could not do was essential to protect the people from state power.

  27. A national Bill of Rights was argued to be superfluous, but James Madison believed it was harmless and introduced a Bill of Rights immediately upon the convening of the First Congress. Not that the US Bill of Rights was amended to the Constitution. It was an afterthought.

  28. Note that the US Bill of Rights only protected people from the national government. Until the 14th Amendment was ratified, the national government had no ability to protect the people from the state government. We discussed this topic in one of the first lectures in this class.

  29. Once the 14th Amendment was ratified, the protections people were guaranteed from the actions of the national government also applied to the state governments as well. The process that led to this is called the selective incorporation of the Bill of Rights to the states.

  30. The point is that the people of Texas are covered by the rights listed in the United States Bill of Rights, as well as that of Texas. Since the US Bill of Rights is defined by the national government, there’s tremendous opportunity for conflict here due to the tension in the political culture of the US versus that of Texas.

  31. But let’s focus on the Texas Bill of Rights.Remember that the document establishes the relationship between people in the state and the state government. By extension it also applies to local governments as well.

  32. As with many other state bills of rights, the Texas document more clearly establishes that people have rights, not just freedoms from the state government.It makes grander claims about what people are entitled to do that the national Bill of Rights.

  33. Here are a few useful links before we look at the specific language of the bill of rights.

  34. This article looks interesting, though its not fully available online. Origins of the Texas Bill of Rights

  35. Here is the original Texas Bill of Rights- Article One - as written in 1876.

  36. Here is how it looks today: The Texas Constitution Article 1. Bill of Rights.

  37. For an historical look at Article One from the Texas State Law Library click here.

  38. And very quickly, here are links to similar language in previous constitutions in Texas history.

  39. The Declaration of Rights in the 1836 Constitution of the Republic of Texas.

  40. Article 1, The Bill of Rights in the 1845 Constitution.

  41. Article 1, The Bill of Rights in the 1861 Constitution.

  42. Article 1, The Bill of Rights in the 1866 Constitution.

  43. Article 1, The Bill of Rights in the 1869 Constitution.

  44. Now a look at the contemporary document.It contains 33 sections and 3, words. The US Bill of Rights has ten sections and contains 482 words.

  45. In order to compare the US and Texas Documents, you might want to look through the US Bill of Rights before continuing.

  46. It begins with this statement: That the general, great and essential principles of liberty and free government may be recognized and established, we declare:

  47. Sec. 1.  FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.

  48. This establishes Texas’ placement within the federal system. Notice the mention of local self government.This has not been amended since 1876.

  49. Sec. 2.  INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.

  50. This contains language seen in the US Declaration of Independence.It has not been amended since 1876.

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