LECTURE Texas Government Chapter 2: Federalism and the Texas Constitution

Introduction to the Federal System

A federal system of government is defined by the sharing of power between the national and state governments.
Both levels of government derive their power from the people, making it a sovereign nation.
In a federal system, neither the national nor the state government maintains complete control over the other.
Each level of government has established room for independent action.
Rationales for choosing federalism initially include: * States existed as colonies before the national government was created. * The states were responsible for creating the federal government and intended to retain specific powers. * Former colonists held a deep distrust of strong central governments due to their experiences with tyrannical rule.

Benefits of Federalism

Dispersal of Political Power: Federalism prevents the consolidation of power in a single branch or person, allowing for more diversity in governance.
Increased Political Participation: The system provides multiple levels and avenues for citizens to participate in the political process, which theoretically increases engagement.
Improved Efficiency: It allows the most appropriate level of government (local, state, or national) to be utilized to solve specific problems.
Policy Responsiveness: Because appropriate levels of government tend to policies, those policies are more likely to be responsive to the specific needs of the people at local or state levels.
Diverse Public Policy Preferences: Federalism allows for policy to be more accommodating to a variety of regional preferences.
Policy Innovation: States are often viewed as "laboratories" where they can experiment with different policies on a small scale. If successful, these policies may be adopted by other states or eventually work their way up to becoming national policy.

National Government Powers and Constitutional Clauses

Enumerated Powers: These are powers specifically spelled out in the U.S. Constitution (referenced in the text as Figure $2.1$ ). Examples include: * Declaring war. * Collecting taxes.
Implied Powers: These powers fall under the Necessary and Proper Clause.
The Necessary and Proper Clause (The Elastic Clause): This provides Congress the ability to carry out laws deemed necessary and proper to execute their enumerated powers. It allows Congress to determine the means to carry out its ends, effectively stretching its powers as needed.
McCulloch versus Maryland ( $1819$ ): This Supreme Court case questioned the meaning of the Necessary and Proper Clause. The state of Maryland attempted to tax a branch of a national bank in Baltimore. The Supreme Court provided a broad interpretation of the clause, ruling that it was within Congress's rights to establish the bank and that the state could not tax it. This reinforced the power of the federal government.

State Powers and Interstate Relations

Tenth Amendment: Establishes that any powers not delegated to the United States government nor prohibited to the states are reserved for the states.
Police Powers: States have the authority to regulate issues related to health, safety, and morals.
Concurrent Powers: These are powers shared with the federal government, including: * Taxing and borrowing money. * Establishing courts. * Chartering banks. * Spending money on the welfare of the citizenry.
Full Faith and Credit Clause: This ensures that judicial decrees and contracts made in one state are binding and enforced in another. * The interpretation of this is complicated when states have different rules. * An example discussed is same-sex marriage prior to it being legalized countrywide via Auberfeld versus Hodgins Hodges. Some states would not recognize marriages performed in other states despite this clause.
Privileges and Immunities Clause (Comedy Clause): Dictates that citizens from outside a state should enjoy the privileges and immunities granted to the citizens of that state. * College tuition serves as an exception; out-of-state residents pay higher fees because they have not been paying the Texas taxes that fund higher education.

The Fourteenth Amendment and Incorporation

The Fourteenth Amendment is one of the post-Civil War amendments ( $13$ , $14$ , and $15$ ).
It opened protections at state and local levels by incorporating the Bill of Rights.
Barron versus Baltimore: Prior to the Fourteenth Amendment, the Supreme Court ruled that the Bill of Rights only protected individuals from actions taken by the national government, not state or local governments. This was the law for nearly a century.
Incorporation: Under the Fourteenth Amendment’s equal protection and due process clauses, the Bill of Rights now protects citizens from state and local government actions as well as national ones.

Evolution of Federalism

Dual Federalism: Characterized as separate but equally powerful state and national governments. States held authority over issues like slavery, property, and crime. * Nullification: During this era, states might declare a national law void or nullify it. * This concept began to weaken following the Civil War and the Reconstruction period.
Sixteenth Amendment: Authorized a national income tax, which gave the federal government significant financial resources to influence state actions through funding.
Seventeenth Amendment: Mandated the direct election of senators by the people. Previously, state legislatures chose national senators; moving this power to the voters weakened dual federalism.
Cooperative Federalism: Occurred during the Great Depression. The national government provided more funding to state and local governments. * Categorical Grants: Funds provided for specific purposes with regulations and stipulations. * The goal was to address national problems (like clean air) and redistribute funds between rich and poor states. * Resulted in an increase in unfunded mandates, where the federal government requires actions without providing the necessary funds.
New Federalism ( $1970$ s): An effort to return power to the states. * Nixon used Block Grants, which offered more leeway in spending than categorical grants. * Reagan cut federal aid. * Clinton reformed welfare and created TAMP (Temporary Assistance for Needy Families).
Coercive Federalism: Modern phase where federal regulations force states to change policies to meet national goals.
Metaphorical Models: * Dual Federalism: Layered cake. * Cooperative Federalism: Marbled cake.

Comparison: U.S. Constitution vs. Texas Constitution

U.S. Constitution: * Created after a tyrannical government. * Procedural document: Simple and lays out the governing process. * Brief: Includes $7$ articles, $8$ pages, and only $27$ amendments over $200$ plus years. * Vague: Allows for flexibility and reinterpretation over time.
Texas Constitution: * Substantive document: Focuses on liberties, rights, and obligations. * Outdated and over-amended: As of the $2021$ election, it has $515$ amendments. * Micromanaging: Due to its specificity, it requires frequent amendments. * Structure: Includes $16$ articles and spans $67$ pages.

Articles of the Texas Constitution

Article 1 (Bill of Rights): Listed at the beginning to signify importance. It is very detailed and defines rights specifically, which often leads to limitations that require further amendments.
Article 2 (Powers of Government): Establishes the separation of powers.
Article 3 (Legislature): Establishes a House and a Senate.
Article 4 (Executive Branch): Creates a plural executive to ensure the governor does not hold concentrated power.
Article 5 (Judicial Branch): Includes two supreme courts (a Supreme Court and a Criminal Supreme Court). All justices are elected, resulting in long ballots.
Articles 6 through 16: Cover suffrage (voting), education, taxation, counties, railroads, Spanish and Mexican land titles, public land and the land office, impeachment, general provisions, and amending the constitution.

Amending the Texas Constitution

The Texas Constitution does not allow for initiatives.
Conventions: Assemblies of citizens can propose changes through voter approval.
Standard Amendment Process in Texas: * Step 1: The legislature must propose the amendment. * Step 2: It must be approved by a $2/3$ majority in both the Texas House and the Texas Senate. * Step 3: The amendment must be published twice in recognized newspapers. * Step 4: A majority of state voters must approve it.
Voter Turnout Data: * Turnout is historically low as these elections often occur when no other major items are on the ballot. * $2017$ : $6\%$ * $2019$ : $12\%$ * $2021$ (November): approximately $9\%$

Discussion and Practical Applications

Personal Responsibility Exercise: * Residents are encouraged to identify examples that reinforce or violate the Full Faith and Credit Clause and the Privileges and Immunities Clause.
Social Responsibility Discussion: * To what extent should the government promote general welfare? * In the relationship between state/local political systems and the federal government, which level should play the greater role in promoting welfare?