US Constitution vs the State of Texas Constitution - Research Paper Example

? (XXXX XXXXXXX) XXX Williams of of the teacher May xx, Williams 2 A comparison of the United s Constitutionwith that of the state of Texas has been drawn in the document. The document will look at the historical issues related with the formulation of the constitution, various salient articles and roles of the important organs of the government of the United States of America with respect to its constitution. These important features will be compared to the corresponding characteristics in the Texas constitution. Ideology Moderate Ideologies along with moderate political viewpoints may be correctly seen as occupying positions between the more extreme wings of the spectrum. In terms of the extent of power of the State moderate ideologies strike a balance between individual rights, freedoms and obligations and the coercive power of the State to mandate or prohibit certain behaviors by people. This “balanced” view brings forth various implications regarding governmental structure, electoral procedures, the rule of Law, economic concerns, and other important issues present in all organized societies. Likewise considerations regarding time help define the boundaries of moderate ideologies.1 However, the impact of two dominant ideologies of our times that have had a profound effect on the American political system can’t be ignored and need to be looked at a little closely.Liberalism and Conservatism are the moderate varieties of political ideologies for well over two centuries. Although its dimensions differ from society to society (where it is permitted to endure), there do exist core elements which can be identified, examined and understood. At the outset let it be noted that common parlance often misapprehends and violates the reality of liberalism. Calling someone a “bleeding heart liberal” is worse than an insult, it is largely Williams 3 meaningless insofar as conveying accurate information. Describing one public policy or another as “liberal” sheds precious little light on the nature of governmental activities.2 The first glimmerings of liberalism may be discovered in the expansive political role being sought by increasingly large numbers of individuals and, more significantly, discreet groups of people with identifiable common interests. British liberalism sought not to overthrow the Monarchy but to reign in its powers by expanding the role of the representatives of the people.3 The basic duty of government is to protect the common good and private rights which were seen to be inextricably related if not the same thing. return gain security and stability in their daily lives.4 As Locke said: “Men being, as has been said, by Nature, all free, equal, and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent.”5 Whereas liberalism sought to liberate mankind from oppressive institutions (be they governments, religious institutions, oppressive social customs and traditions, or vast economic enterprises), conservatism developed as a reaction to what was perceived as dangerous tendencies within the liberal movements toward radicalism and a wholesale rejection of the past as valuable. There was and is an element within conservatism that holds the past in reverence and views with skepticism most change, particularly if it was planned change. If, however, conservatism means nothing more than a rationale' justifying the maintenance of the status quo then it cannot be correctly adjudged an ideology for it would be content neutral. Conservatism Williams 4 could, in that instance, be used to support political systems ranging from democratic to communist to fascist to anarchistic.8 One could say for sure, despite the workings of both the ideologies, as John Locke said that the people have rights, such as the right to life, liberty, and property, that have a foundation independent of the laws of any particular society. Locke used the claim that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better insure the stable, comfortable enjoyment of their lives, liberty, and property.9 Constitutions The best possible analogy that can be drawn in terms of a constitution of a country is with that of a sport and its rules. The constitution sets out to explain the basic framework within which a country functions, including its executive, legislature and judiciary. Written in 1787, ratified in 1788, and in operation since 1789, the United States Constitution is the world’s longest surviving written charter of government.  Its first three words – “We The People” – affirm that the government of the United States exists to serve its citizens.10 Section I of Article. I of the constitution affirms that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” 11 Article II, in a nutshell states that the executive power shall be vested in a Williams 5 President of the United States of America. He shall hold his Office during the Term of four Years. Article III gives powers to the judiciary, that is the Supreme Court.11 However, the first article of the Texas constitution is the Bill of Rights, Article II deals with the Powers of Government (separation of powers), Article III deals with the Legislative Department, Article IV contains in it the workings of the Executive Department, Article V deals with the Judicial Department.12 During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a "bill of rights" that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered.13 On September 25, 1789, the First Congress of the United States therefore proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two proposed amendments, which concerned the number of constituents for each Representative and the compensation of Congressmen, were not ratified. Articles 3 to 12, however, ratified by three-fourths of the state legislatures, constitute the first 10 amendments of the Constitution, known as the Bill of Rights.14 Williams 6 The first amendment says that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. The second amendment, says that a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. The third amendment says thatno soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. The fourth amendment says thatthe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The fifth amendment says that no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The sixth amendment deals in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses Williams 7 Against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. The seventh amendment says that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. The eighth amendment says that Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The ninth amendment talks of enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The last amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.15 Federalism Federalism is the theory or advocacy of federal principles for dividing powers between member units and common institutions. Unlike in a unitary state, sovereignty in federal political orders is non-centralized, often constitutionally, between at least two levels so that units at each level have final authority and can be self-governing in some issue area. Citizens thus have political obligations to, or have their rights secured by, two authorities. The division of power between the member unit and center may vary, typically the center has powers regarding defense and foreign policy, but member units may also have international roles. The decision-making bodies of member units may also participate in central decision-making bodies. Much recent philosophical attention is spurred by renewed political interest in federalism, coupled with Williams 8 empirical findings concerning the requisite and legitimate basis for stability and trust among citizens in federal political orders. Philosophical contributions have addressed the dilemmas and opportunities facing Canada, Australia, Europe, Russia, Iraq, Nepal and Nigeria, to mention just a few areas where federal arrangements are seen as interesting solutions to accommodate differences among populations divided by ethnic or cultural cleavages yet seeking a common, often democratic, political order.16 A federation in this sense involves a territorial division of power between constituent units—sometimes called ‘provinces’, ‘cantons’, or confusingly ‘states’—and a common government. This division of power is typically entrenched in a constitution which neither a member unit nor the common government can alter unilaterally. In comparison, decentralized authority in unitary states can typically be revoked by the central legislature at will. Such entrenchments notwithstanding, some centralization often occurs owing to the constitutional interpretations by a federal level court in charge of settling conflicts regarding the scopes of final legislative and/or judicial authority.17 Legislatures In the US constitution, it’s the Article I that constitutes the legislature or the law making body.Section 1says that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Section 2 states that The House of Representatives shall be composed of Members chosen every second Year by Williams 9 the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.18 In the Texas constitution, Article 3 talks of the Legislative powers of the state. Section 1 says that the Senateand the House of Representatives. The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled “The Legislature of the State of Texas.”  Section 2 deals with the Membership of Senate and House Of Representatives. The Senate shall consist of thirty-one members. The House of Representatives shall consist of 150 members. 19 The Senators shall be chosen by the qualified voters for the term of four years; but a new Senate shall be chosen after every apportionment, and the Senators elected after each apportionment shall be divided by lot into two classes. The Members of the House of Representatives shall be chosen by the qualified voters for the term of two years. Representatives shall take office following their election, on the day set by law for the convening of the Regular Session of the Legislature, and shall serve thereafter for the full term of years to which elected. 20 Due to the high volume and complexity of its work, the Senate divides its tasks among 20 committees, 68 subcommittees, and 4 joint committees.  Although the Senate committee system is similar to that of the House of Representatives, it has its own guidelines, within which each committee adopts its own rules.  This creates considerable variation among the panels.Standing Williams 10 committees generally have legislative jurisdiction.  Subcommittees handle specific areas of the committee’s work.  Select and joint committees generally handle oversight or housekeeping responsibilities.21 The chair of each committee and a majority of its members represent the majority party.  The chair primarily controls a committee’s business.  Each party assigns its own members to committees, and each committee distributes its members among its subcommittees.  The Senate places limits on the number and types of panels any one senator may serve on and chair.22 Committees receive varying levels of operating funds and employ varying numbers of aides.  Each hires its own staff.  The majority party controls most committee staff and resources, but a portion is shared with the minority.Several thousand bills and resolutions are referred to committees during each 2-year Congress.  Committees select a small percentage for consideration, and those not addressed often receive no further action. 23  Executives The Constitution says that the executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be Williams 11 entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.24 The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President.25 In case of Texas, he powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. 26 In this way, the Texas framers established more explicitly than the framers of the U.S. Constitution the separation of powers. They were no doubt aided by almost ninety years of experience with the national plan of government, the particular genius of which was not fully and immediately evident at the time of its writing.27 Williams 12 Bureaucracy There are approximately 2.7 million civilian bureaucrats (21 million if state and local public employees are included). Although Congress has ordered federal agencies to make special efforts to recruit and promote previously disadvantaged groups, women and nonwhites are still clustered in the lower ranks. As a whole, however, the permanent bureaucracy is more broadly representative of the American people than legislators, judges, or presidential appointees in the executive branch.28 In general, there are four types of bureaucracies: cabinet departments, regulatory agencies, government corporations, and independent executive agencies. Each of the 14 cabinet departments is headed by a secretary (except the Department of Justice, which is headed by the attorney general); all are chosen by the president and approved by the Senate. Beneath the secretary are undersecretaries, deputy undersecretaries, and assistant secretaries. Each department manages specific policy areas, and each has its own budget and staff.29 The state bureaucracy administers (implements) the laws of Texas. It is run by executives whose duty it is to see that the laws of the state are implemented according to the will and intent of the Legislature. Ideally, these executive branch officials or bureaucrats are to administer their duties and implement the laws in a neutral manner, uninfluenced by politics. In reality, state bureaucrats are important players in not just implementation, but also policy making. In Texas there is no overall central governing, controlling authority. Government authority in Texas is very decentralized and rests within many independent state agencies. The structure is often called Williams 13 the plural executive. The governor is not the only elected executive; there are other elected officials with whom the governor must share power. In addition, there are many independent boards, commissions, and agencies that operate independently of the governor. Power is decentralized among many officials. Although the governor appoints over 3,000 individuals to 285-plus state boards and commissions, he has very limited removal authority and thus, has little control over the executive branch. This is a weak executive bureaucratic structure (as compared to a strong executive bureaucratic structure.) This is consistent with thetraditionalistic/individualistic political culture of Texas.30 All statewide elected executives serve 4-year terms with no limit on reelection. Comptroller of Public AccountsThe comptroller is the chief tax administrator and accounting officer for Texas. He/she makes revenue projections and oversees collection of various state taxes. The Commissioner of the General Land Office is an important post as Texas is only one of 4 states to have a land commissioner. The land commissioner supervises leases on the state’s public lands and the leasing of state mineral rights, and also administers the state’s veteran’s land program. The Commissioner of Agriculture oversees the administration of all state laws related to agriculture. This involves a wide range of duties, from checking meat market scales to promoting Texas agricultural products. The Lieutenant Governoris technically a member of the executive branch, but derives most of his powers from their legislative role. As presiding officer of the Texas Senate, the lieutenant governor serves ex officio on the Legislative Budget Board and numerous other legislative boards. If the governor dies, resigns, or is removed from office, the lieutenant governor succeeds the governor. 31 Williams 14 The Courts The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.32 In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.33 The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.34 Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. The names of potential nominees are often recommended by senators or sometimes by members of the House who are of the President's political party. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. Article III of the Constitution states that these judicial officers are appointed for a life term.35 Williams 15 When Texas first became a state in 1845 all Texas Judges were appointed by the Governor to six year terms. However, when the Texas Constitution was rewritten in 1875 and later enacted in 1876 it provided for the election of all County Court, District Court, and Appellate Court judicial positions in Texas. The new Constitution attempted to reduce the appointive power of the Texas Governor. After 1876 the Governor could still fill all vacant judicial positions, but judges have to stand for election every four years on the trial court level and six years on the appeal court levels. The Texas Constitution of 1876 was written by conservative democrats and the new system worked to their advantage. In every legislative session since 1995, there have been proposals and debate regarding reforms to judicial selection but nothing has passed both houses of the Legislature.36 Local Government Curiously, Article XI is titled “Municipal Corporations,” yet a good number of its provisions deal with county government. Indeed, it begins by recognizing the counties as “legal subdivisions of the State. This article continues by authorizes counties, cities, and towns to lay and collect taxes to pay for outstanding debts (presumably left over from the Radical era). Counties on the Gulf coast are authorized to use public revenues to build sea walls and breakwaters, with the state Legislature authorized to provide financial and other assistance.It exempts county, city, and town property from forced sale for non-payment of debts.37 Williams 16 The overall treatment of county and municipal government in the Constitution is quite uneven. Specifications for the organization of local government, including for county and local judges, tax assessor, tax collector, treasurer, and surveyor, are scattered throughout the various articles. The two articles primarily dedicated to counties and municipalities are focused on the geographic size and shape of counties and on issues of taxation and spending.38 The city of San Antonio today has evolved from a small Indian village nestled along the banks of a quiet, meandering river into a major metropolitan center that thrives on its culture and history. Spanish explorers and missionaries arrived at the village in 1691 on the feast day of St. Anthony and renamed it San Antonio de Padua. The missionaries set out to convert the native Americans to Christianity and introduce them to Spanish society. The first of the five missions, the Alamo, was built in 1718 by the Spanish but it would also serve as a military post as would the other four missions. In 1836, at the historic battle of the Alamo, San Fernando de Bexar was caught in the middle of Texas’ fierce fight for independence from Mexico. A year later, the new Republic of Texas organized Bexar County and San Antonio was formally incorporated as its seat of government. Following incorporation, a mayor-alderman form of government was established as the city’s first administrative and legislative body, with each alderman representing one section of the city. Aldermen were replaced in 1915 with commissioners who were elected at-large. Voters adopted yet another City Charter in 1951 that replaced commissioners with a council-manager form of government, which is still used today. 39 Williams 17 Notes 1., Riley, Jim L. , Denver University accessed, May 5, 2011, http://academic.regis.edu/jriley/libcons.htm 2. Ibid. 3. Ibid. 4. Ibid. 5. Ibid. 6. Ibid. 7. Ibid. 8. Ibid. 9. “Locke”, Stanford University, accessed May 5, 2011 http://plato.stanford.edu/entries/locke-political/ 10. “Constitution”, Senate, accessed May 3, 2011, http://www.senate.gov/civics/constitution_item/constitution.htm 11. “Constitution”, Archives, accessed May 1, 2011,http://www.archives.gov/exhibits/charters/constitution_transcript.html 12. “Lecture”, University of North Texas, accessed May 5, 2011, http://www.psci.unt.edu/Todd/PSCI%201040%20-%20Lecture%20IV.pdf 13. “Bill of Rights”, Government Archives, accessed May 5, 2011,http://www.archives.gov/exhibits/charters/bill_of_rights.html 14. Ibid. 15. “Bill of Rights”, Cornell University, accessed May 5, 2011,http://topics.law.cornell.edu/constitution/billofrights 16. “Federalism”, Stanford University, accessed May 1, 2011, http://plato.stanford.edu/entries/federalism/ 17. Ibid. Williams 18 18. Texas Constitution and Statutes, accessed May 1, 2011 http://www.statutes.legis.state.tx.us/Docs/CN/htm/CN.3.htm 19. Ibid. 20. ibid. 21. “Committees”, United State Senate, accessed May 1, 2011, http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/committees_home.htm) 22. Ibid. 23. Ibid. 24. “Constitution transcript”, US government archives, accessed on May 2, 2011, http://www.archives.gov/exhibits/charters/constitution_transcript.html 25. Ibid. 26. “ The Constitution”, Texas Politics, accessed May 1, 2011 http://texaspolitics.laits.utexas.edu/7_4_3.html 27. Ibid. 28. “Government in America”, Pearson, accessed May 1, 2011 http://wps.ablongman.com/long_edwards_gab_8/0,10654,2190081-,00.html) 29. Ibid. 30. “Texas Government”, Odessa College, accessed May 1, 2011 www.odessa.edu/dept/govt/dille/brian/courses/2306C/UNIT9.doc 31. Ibid. 32. “Constitution”, Archives, accessed May 1, 2011, http://www.archives.gov/exhibits/charters/constitution_transcript.html 33. Ibid. 34. Ibid. 35. “Judgeship Appointments By President”, US courts, accessed May 1, 2011, http://www.uscourts.gov/JudgesAndJudgeships/JudgeshipAppointmentsByPresident.aspx Williams 19 36. Shapley, Gary R, “Judicial Selection in Texas”, South West College, accessed May 1, 2011 http://swc2.hccs.edu/htmls/govdep/pdf/ereader/texpdf/cp10/judselect10.pdf) 37. “ County and Municipal Government”, Texas Politics, accessed May 1, 2011 http://texaspolitics.laits.utexas.edu/7_5_2.html 38 “Local Government: Its Past and Present”, City of San Antonio, accessed May 1, 2011, .http://www.sanantonio.gov/yourcity/localgov.aspx 39. Ibid. Williams 20 Bibilography Riley, Jim L. , Denver University accessed, May 5, 2011, http://academic.regis.edu/jriley/libcons.htm “Locke”, Stanford University, accessed May 5, 2011 http://plato.stanford.edu/entries/locke-political/ “Constitution”, Senate, accessed May 3, 2011, http://www.senate.gov/civics/constitution_item/constitution.htm “Constitution”, Archives, accessed May 1, 2011,http://www.archives.gov/exhibits/charters/constitution_transcript.html “Lecture”, University of North Texas, accessed May 5, 2011, http://www.psci.unt.edu/Todd/PSCI%201040%20-%20Lecture%20IV.pdf “Bill of Rights”, Government Archives, accessed May 5, 2011,http://www.archives.gov/exhibits/charters/bill_of_rights.html “Bill of Rights”, Cornell University, accessed May 5, 2011,http://topics.law.cornell.edu/constitution/billofrights “Federalism”, Stanford University, accessed May 1, 2011, http://plato.stanford.edu/entries/federalism/ “ Texas Constitution and Statutes”, accessed May 1, 2011 http://www.statutes.legis.state.tx.us/Docs/CN/htm/CN.3.htm “Committees”, United State Senate, accessed May 1, 2011, http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/committees_home.htm) “Constitution transcript”, US government archives, accessed on May 2, 2011, http://www.archives.gov/exhibits/charters/constitution_transcript.html “ The Constitution”, Texas Politics, accessed May 1, 2011 http://texaspolitics.laits.utexas.edu/7_4_3.html “Government in America, Pearson, accessed May 1, 2011 http://wps.ablongman.com/long_edwards_gab_8/0,10654,2190081-,00.html) “Texas Government”, Odessa College, accessed May 1, 2011 www.odessa.edu/dept/govt/dille/brian/courses/2306C/UNIT9.doc “Constitution”, Archives, accessed May 1, 2011, http://www.archives.gov/exhibits/charters/constitution_transcript.html “Judgeship Appointments By President”, US courts, accessed May 1, 2011, http://www.uscourts.gov/JudgesAndJudgeships/JudgeshipAppointmentsByPresident.aspx Shapley, Gary R, “Judicial Selection in Texas”, South West College, accessed May 1, 2011 http://swc2.hccs.edu/htmls/govdep/pdf/ereader/texpdf/cp10/judselect10.pdf) “ County and Municipal Government”, Texas Politics, accessed May 1, 2011 http://texaspolitics.laits.utexas.edu/7_5_2.html “Local Government: Its Past and Present”, City of San Antonio, accessed May 1, 2011, .http://www.sanantonio.gov/yourcity/localgov.aspx Read More