Constitution of Texas

The Constitution of Texas is the founding instrument of the Republic of Texas, adopted by an elected convention at Austin in 1910, and it is the document that ended sixty-four years of Texas being governed by an arrangement nobody had intended to keep.

Texas entered the United Kingdom of America by negotiation rather than by admission: a treaty signed on 2 March 1845, Acts of Union passed by both parties in 1846, and a proclamation of 21 April 1846 which Texans still keep as Treaty Day. What that settlement produced was a working government and not a constitution. It preserved the Republic’s name, its Presidency, its Congress, its courts, its counties, its sheriffs, its land offices and its public lands; it left a great deal to be worked out; and it was understood on both sides as transitional, on the assumption that Texas would write itself a constitution within a decade or so.

Texas did not, for sixty-four years, and the reason is the reason the Realm’s constitutional lawyers find Texas interesting. The settlement worked. It survived the crisis of 1861, in which Texas came closer to rebellion than the Realm’s histories generally record and did not go. It survived the abolition settlement, the reconstruction of the southern polities and the arrival of the railway. What it did not survive was its own success: by the end of the nineteenth century the Republic was governed by a body of practice, judicial construction and improvisation resting on a treaty text of 1845 that had not been drafted to bear it, and the Supreme Court of Texas said so in terms in a series of judgments between 1897 and 1906 whose burden was that the court could no longer determine what the settlement required.

The convention met in 1909 and reported in 1910. What it produced is the longest polity instrument in the Realm, at something around ninety thousand words, and one of the hardest to amend, which is not the combination anybody expects and is the reason it has lasted.

It settled the public lands and the minerals beneath them, which is the single most valuable thing Texas ever negotiated. It wrote down the dual executive, which until then had rested on practice. It defined the President’s reserve powers, which had been undefined and were beginning to be used. It reconstituted the Senate and the counties. It abolished the last machinery of the Old Republic’s presidential system. And at New Westminster’s insistence it declared the union perpetual and Texas incapable of departing from it, which is the only such article in any polity constitution of the Realm.

It does not reproduce the Treaty of Austin, and it does not mention it. That omission is the loudest thing about the document in Texas and is treated below.

Status

The treaty problem

The Austin settlement was a treaty between two parties, and a treaty is not ordinarily rewritten by one of them. The question of how Texas could replace it alone occupied the convention’s first four months and produced the theory on which the whole constitution rests.

The theory is that the Treaty of Austin did two different things and only one of them was a treaty. It bound the Realm and Texas to each other, on terms about union, representation, debt, the lands and the Republic’s continuance, and that part is a treaty and Texas cannot touch it. And it made arrangements for the internal government of Texas, on terms nobody but Texas had any interest in, and that part was never a treaty at all but a temporary provincial settlement which the Republic was always free to replace.

The convention’s committee on the settlement put it in a sentence that Texas lawyers can recite: what we agreed with the Realm we cannot alter, and what we agreed with ourselves we may alter when we choose.

The Realm accepted it, which is the fact that matters and which was not certain. The federal law officers examined the draft under the Polity Instruments Act 1889 and reported in 1910 that nothing in it altered any obligation owed to the Realm, and Parliament passed a short Act reciting that the Treaty of Austin and the Acts of Union remained in force according to their terms. That Act is the reason the theory holds and is the thing Texas most often forgets when it describes 1910 as an act of sovereign self-determination.

Citation

By Article and section. Texas cites constitutional provisions constantly and in full, in political argument as much as in court, and a Texan public figure who cannot name the Article bearing on a controversy is at a disadvantage that has no equivalent elsewhere in the Realm.

Federal supremacy

A treaty polity had to be unambiguous about this and Texas was. The article is stronger and plainer than the equivalent in any other polity constitution, several of which have none at all, and it was drafted by people who understood that a Republic which kept its name, its Presidency and its public lands would be watched for any suggestion that it had kept anything else.

Texas cites it, without embarrassment, whenever it is accused of constitutional pretension. It is also the article most often left out when Texas describes its own constitution to itself.

History

The settlement of 1845 to 1846

The Treaty of Austin was signed on 2 March 1845, given effect by reciprocal Acts of Union in 1846, and completed by the proclamation of 21 April 1846 which Texas keeps as Treaty Day. Its terms preserved the Republic’s name, the Lone Star, the Presidency of Texas, the Congress of Texas, the courts, the counties, the municipalities, the sheriffs, the land offices and the public lands of the Republic.

That last is the one that mattered and is the reason the negotiation is studied. Texas entered the Union retaining the unappropriated public land within its borders, which no other polity did and which every polity admitted from federal territory could not have done. In 1846 this looked like a concession about grazing, timber and the settlement of a frontier, and it was negotiated as such: the Republic had debts, the lands were the only asset it had to pay them with, and the Realm’s negotiators regarded transferring the burden along with the acres as a reasonable trade.

It was worth more than everything else in the treaty combined, and nobody involved knew it.

Why the settlement lasted so long

The Austin settlement was drafted as transitional and was expected to be replaced within about a decade. It lasted sixty-four years, and the explanation is not inertia.

It worked. The Republic had a President, a Congress that could legislate, courts that could decide, counties that could administer and a land office that could sell, and the settlement’s silences were filled as they arose by statute, by the practice of the Congress and by the Supreme Court of Texas. Every generation between 1850 and 1900 contained people arguing for a constitutional convention, and every generation was answered by the observation that the Republic was governed adequately and that a convention would open questions nobody needed opened.

The questions people did not want opened were the same throughout: the lands, the relationship between the two presidencies, and after 1865 the settlement of abolition. A polity that is governed adequately and contains three subjects it would rather not discuss does not hold a constitutional convention, and Texas did not hold one for sixty-four years.

The vote of 1861

Texas came close to rebellion in 1861 and the vote is the most consequential division in its history.

It had every characteristic of the polities that went. It was slaveholding, its economy rested on cotton in the east and on the labour of enslaved people, its politics was dominated by the same interest, and its public argument through the winter of 1860 was conducted in the same language as South Carolina’s. A convention met at Austin in the spring of 1861 and it was not summoned in order to say no.

It said no, narrowly, and the arguments that carried it were not moral.

The first was the Treaty. Texas had entered the Union by an agreement it had negotiated, on terms it had extracted, and the whole of its constitutional self-understanding rested on the proposition that a bargain is binding. A Republic whose identity is that it keeps agreements cannot easily repudiate one, and the delegates who made this argument made it without any warmth toward the federal government whatever.

The second was arithmetic. Texas had a Republic, a Presidency, a Congress, its courts, its counties and its lands, held under an instrument the Realm had signed. The rebels were offering a confederation that had not yet agreed its own terms and could not guarantee any of that. The Old Republic memory, which is usually the most inflammatory thing in Texas politics, worked in 1861 in the opposite direction: a polity that remembers standing alone remembers what it cost and what it gave up to stop.

The third was the frontier, which required a government capable of garrisoning it and which the rebellion could not supply.

The convention divided closely enough that the result was in doubt on the day, the minority did not accept it quietly, and something between five and eight thousand Texans left to fight for the rebellion in the polities that had gone. The Republic spent the war as a loyal polity containing a large, angry and openly disloyal minority, which is a condition it has never entirely stopped arguing about.

The settlement runs out

By the 1890s the Republic was being governed under an instrument that could no longer answer the questions being put to it.

The difficulty was cumulative rather than dramatic. Sixty years of statute, practice and judicial construction had been laid on a treaty text of 1845 which had not been drafted to bear any of it, and the load-bearing provisions were the ones that had been written most loosely, because they were the ones nobody in 1845 had expected to matter. The relationship between the two presidencies rested almost entirely on convention. The Congress’s power over the land office rested on a reading of a clause about debts. The counties held whatever they had held in 1846, which nobody could now establish.

The Supreme Court of Texas said so. In a line of judgments between 1897 and 1906 it held, in progressively blunter language, that the settlement did not determine the questions being brought to it; that the court was being asked to supply a constitution rather than to construe one; and that it would continue to do so only because the alternative was that nobody would. The judgment of 1906, in a case about the appointment of a land commissioner, states that the court has now decided four cases in nine years by reasoning that the settlement must have intended something it does not say, and that the Republic should draw the obvious conclusion.

The Republic drew it. The enabling Act passed in 1908.

The convention, 1909 to 1910

The convention was elected, sat at Austin from March 1909, and reported in September 1910. It was large, was dominated by lawyers and by county interests, and it approached its work in the manner Texas approaches everything, which is to say at length and out loud.

Its two hard subjects were the lands and the union.

The lands were hard because of oil. The Republic’s public lands had been an asset of moderate and declining value for fifty years, being mostly arid and largely sold. The discoveries after 1901 changed what the question meant: the convention was no longer settling who could dispose of grazing land but who owned what lay beneath it, on an area larger than several European countries, at a moment when nobody could estimate the value within an order of magnitude. Article VIII took eleven months.

The union was hard because New Westminster made it a condition. The federal law officers’ informal position, communicated early and never formally recorded, was that a polity rewriting its constitution while retaining the name of a republic, an elected head of state, its own public lands and a treaty of accession would be expected to say plainly that it was not going anywhere. The convention resented the demand, complied with it, and then, characteristically, made the article more emphatic than had been asked for.

The instrument was ratified by the electors of Texas in 1910.

The text

The Constitution of 1910 runs to about ninety thousand words in seventeen Articles, which makes it the longest polity instrument in the Realm by a wide margin and the only one that cannot sensibly be reproduced in an encyclopaedia article. What follows sets out in full the Articles on which the Republic’s constitutional argument actually turns, and describes the remainder.

The Articles are: I the Republic, II the Union, III rights, IV the President of the Republic, V the President of the Ministry and the Ministry, VI the Congress, VII the courts, VIII the public lands and minerals, IX the counties, X municipalities, XI finance and taxation, XII education, XIII water, XIV the General Land Office, XV elections, XVI amendment, and XVII general and transitional provisions.

The length is not an accident of drafting and is not regretted in Texas. The convention had watched a loosely drafted settlement collapse under sixty years of construction and concluded that the fault had been silence. Its answer was to say everything, in detail, on the reasoning that a provision which specifies its own operation cannot be quietly reinterpreted by a court, and that a Republic which had just spent nine years being told by its own Supreme Court that it had no constitution should err in the other direction.

Article II: The Union

Section 2 is the only provision of its kind in any polity constitution of the Realm and it was New Westminster’s condition for a comfortable passage through the deposit examination.

It is also more emphatic than was asked for. The federal position was that the constitution should say the union was perpetual. The convention added the unamendability, the prohibition on entertaining the question, and the extension to counties, and the reason it did so is the reason worth recording: the delegates had watched the argument of 1861 nearly take the Republic out, had watched the losing side spend fifty years insisting it had been right, and wanted the subject closed in terms that could not be reopened by a future convention with a temper on it.

Section 3 is the sentence that makes section 2 bearable. Texas is bound because Texas agreed, not because Texas was told, and the ordering of the two sections was debated for a fortnight. Every Texan account of the constitution quotes them together and in that order.

Article III: Rights

Much of the language is older than the constitution and was carried forward deliberately from the Old Republic’s own instruments, which is why Article III reads in a register the rest of the document does not. The convention treated these as inherited rather than granted and said so, and the drafting committee’s report describes its task as transcription with corrections.

Section 9 is the one with modern consequences. The requirement that compensation be adequate, be made first, and be determined by a jury unless waived is stronger than the federal standard and considerably stronger than most polities’, and in a Republic where public works, pipelines, transmission lines and reservoirs all require taking land, it is among the most litigated provisions in the Realm. Texas landowners regard it as the best sentence in the constitution. Texas ministries regard it as the reason nothing can be built on time.

Section 10 was added in 1964 after the extension of the American Rights Act to the polities, and is one of the twenty-nine amendments.

Article IV: The President of the Republic

Section 8’s last clause is the whole difficulty of the office. A President of Texas is elected on a party ballot, contested by the Realm’s parties, in a partisan campaign, and must then hold no party office and behave as though the campaign had not happened. The constitution requires the office to be non-partisan and requires the route into it to be partisan, and every Texan President since 1910 has had to manage the gap.

It is manageable and is managed, mostly by convention: Presidents resign party membership on taking office, do not attend party functions, and are extended a degree of forbearance by the party they defeated. It stops being manageable the moment a President uses section 5. A head of state elected as a Conservative who withholds assent from a Labour ministry’s bill is, whatever the merits, immediately accused of doing what he was elected to do, and the accusation cannot be disproved.

That is why the reserve powers produce crises, and it is treated below.

Article V: The President of the Ministry

Article V is where the Old Republic’s presidential system finally ended. Until 1910 the accountability of the Texan executive to the Congress rested on the Austin settlement’s general language and on sixty years of practice, and the convention wrote it down in ordinary parliamentary terms.

The title survived because the mechanics did not. Texas kept President in the name of its head of government and accepted confidence, collective responsibility, resignation on defeat and dissolution, which is the whole of what the Old Republic’s presidency had been designed to avoid. The article’s own drafting report is unusually candid: it observes that the Republic had been governed on parliamentary lines since 1846 whatever its vocabulary suggested, and that the constitution was recording a fact rather than making a change.

Article VI: The Congress

Section 5 is the limit of the Senate’s power and section 6 is the extent of it. Texas’s Senate cannot defeat supply, which distinguishes it from Plymouth’s Council of Towns, and it can defeat anything else outright, which distinguishes it from Ohio’s. Combined with section 7’s committee requirement, that gives a Senate committee chairman a practical veto over any bill that is not a money bill, exercised by declining to report it, and that is the mechanism behind the failure mode Texans call the Senate Hostage: a President of the Ministry with a comfortable House majority and an unfriendly Senate committee can be prevented from legislating at all.

The remedy is negotiation, and the Republic’s politics is accordingly conducted through Senate committees to a degree visitors find inexplicable. Texas’s ministers spend more time managing the upper chamber than any others in the Realm.

Section 8, the single-subject rule, is heavily litigated and is the provision under which most Texan legislation is struck down.

Article VIII: The public lands and the minerals

This is the article the convention spent eleven months on and it is the most valuable provision in any polity constitution of the Realm.

Section 2 is the severance rule and section 5 is its limit, and between them they divided the Republic’s mineral wealth on a single date. Land granted before 1910 carries its minerals to the grantee; land granted after does not, unless the Republic says so. The convention chose the date of its own commencement rather than any earlier one because an earlier date would have been a taking, and Article III, section 9 requires compensation first.

The consequence is that a very large proportion of the Republic’s oil and gas lies under land whose surface was granted in the nineteenth century and whose minerals therefore went with it, which is the foundation of a great many Texan private fortunes, and that the remainder belongs to the Republic and funds Article XII, which is education.

Section 4’s Permanent Fund is the Republic’s answer to the obvious danger. Proceeds are capital and cannot be spent; only the income may be, and only on the purposes Article XII names. The Fund is now among the largest public endowments in the world, it pays for a substantial part of Texas’s schools and universities, and no ministry has ever succeeded in touching the capital, four attempts having been defeated in the Congress and one in the Supreme Court of Texas.

Texans regard the Permanent Fund as the best thing the convention did and are probably right.

Article VII: The courts

Texas has a divided judiciary: the superior courts appointed and the local courts elected. The arrangement is a compromise of 1910 between a convention that wanted an appointed bench and counties that were not going to give up electing their own judges, and it has produced a Republic in which the quality of justice varies noticeably with the level of the court.

Section 5 is the provision that made 1983 unresolvable. It puts the President’s stated reasons beyond review, deliberately, on the 1910 reasoning that a reviewable refusal is not a refusal. Every proposal to repeal it has failed on the same argument.

Article IX: The counties

Section 4 is the County Fortress in one sentence, and section 11 is the narrow door cut into it after a hurricane in 1957. Two hundred and fifty-four counties with constitutional powers and separately elected officers is a formidable amount of independent authority, and the Republic coordinates rather than directs it as a matter of constitutional obligation rather than of preference.

Article XII: Education and the Fund

Section 3 is drafted to be unbreakable and has been tested four times. The word pledged was added late, after a delegate pointed out that a ministry unable to spend the capital would try to borrow against it.

Article XIII: Water

These two sections are irreconcilable as hydrology and are the law of Texas. Surface water belongs to the Republic and is allocated; groundwater belongs to whoever owns the ground above it and may be pumped without limit. The aquifers do not observe the distinction, and a landowner may lawfully drain water that would otherwise have surfaced in a river the Republic owns.

The rule of capture in section 2 was settled Texan law before 1910 and the convention wrote it down without much debate, which the Republic’s water lawyers have been describing as the single worst decision of the convention for about eighty years. It is amendable and every attempt has failed, because the people who would lose by the amendment own a great deal of land.

Articles X, XI, XIV and XV

Article X provides for municipalities and grants home rule to cities above a stated population. Article XI is finance and taxation, is the longest Article in the constitution at over a hundred sections, and consists mostly of exemptions granted one at a time. Article XIV constitutes the General Land Office, which administers Article VIII. Article XV is elections.

Article IX constitutes the counties, of which there are two hundred and fifty-four, and gives them elected commissioners courts, sheriffs, clerks, assessors and judges. County powers are constitutional rather than statutory, which is unusual in the Realm, and a county may be created, abolished or altered only by Act of the Congress with the consent of the electors of the county affected.

That is the constitutional root of the failure mode Texans call the County Fortress. A county whose powers come from the constitution and whose officers are separately elected is not an administrative arm of Austin, and in an emergency crossing county lines the Republic must coordinate rather than direct. Article IX, section 11 permits the President of the Ministry to direct a county in a declared emergency, was added by amendment in 1957 after a hurricane, and is drawn narrowly enough that it is argued about every time it is used.

Article X provides for municipalities and home rule for cities above a stated population. Article XI is finance and taxation and is the longest Article in the constitution, running to over a hundred sections, most of them exemptions. Article XII is education and is where the Permanent Fund’s income goes. Article XIII is water, and establishes the doctrine that surface water belongs to the Republic and groundwater to the owner of the land above it, which is the most consequential and least defensible distinction in Texan law and is the subject of continuous litigation. Article XIV constitutes the General Land Office. Article XV is elections.

Article XVI: Amendment

Texas made amendment hard on purpose and it is the reason the instrument has lasted.

The convention had before it the example of polities whose constitutions were long and easily amended, and understood exactly what that combination produces: a document that accumulates every temporary enthusiasm of every decade until nobody can read it. Its answer was to keep the length, which it regarded as necessary, and remove the ease.

Two thirds of both chambers, six months of publication, and a majority at a general election is a hard sequence. The six-month publication requirement is the one that does the work, because it removes the possibility of carrying an amendment on a passing mood and gives opponents two seasons to organise. Twenty-nine amendments have been carried in a hundred and eighteen years, which is fewer than one every four years, in a polity of thirty-two million people with a ninety-thousand-word constitution.

Section 3’s double majority protects Article VIII, and section 4 makes the perpetual union unamendable.

The reserve powers in practice

Article IV gives the President three powers that are exercised against the government of the day, and they were written down in 1910 precisely because they had begun to be used without being written down.

Section 4, declining to appoint a person whose command of the House is not demonstrable, is uncontroversial and has been used four times, on each occasion during a confused parliamentary situation and on each occasion with the outcome accepted within a fortnight.

Section 6, the formal warning, is used perhaps once a decade. It costs the President nothing, obliges the Ministry to answer in public, and is generally regarded as the office working correctly. Presidents who use it sparingly are respected for it and Presidents who use it often are ignored.

Section 5, withholding assent, is the dangerous one, and the Republic has been living with the consequences of the only modern use of it for forty-five years.

The assent crisis of 1983

In 1983 the Congress passed a redistricting bill for the House of Representatives. President Delia Marquez, who had been elected in 1980 on a Conservative and Crown Union ballot, withheld assent from it under section 5, stating in writing that the districts it drew were not of as nearly equal population as practicable and that the bill was therefore repugnant to Article VI, section 2.

The ministry was Labour and Social Democratic. It had a comfortable majority in the House. It did not have two thirds, and the override under section 5 accordingly failed.

What followed was the worst constitutional period in the Republic since the settlement. The ministry’s position was that a head of state elected on the other party’s ticket had destroyed a redistricting bill that would have cost that party seats, and had done so under a constitutional provision that made the question unreviewable. The President’s position was that the bill was unconstitutional and that she had said why in writing, as the section requires. Both statements were true, and there was no forum in which the relation between them could be settled, because a refusal of assent produces no bill and therefore no case.

The Republic spent three years arguing about it. Marquez completed her term, was not re-elected in 1984, and was unable to perform any part of the office’s ordinary work after the spring of 1983, ceremonial functions included.

And she was right

In 1991 the Supreme Court of Texas held, in a case arising from the successor bill, that the districts drawn in 1983 would have violated Article VI, section 2. The judgment does not mention Marquez and did not need to.

That is the reason section 5 has not been used since. The Republic learned in 1983 that the power works, that it can be exercised correctly, and that exercising it correctly is not survivable by a President who reached the office through a partisan election, because the accusation of partisanship cannot be answered by being right.

The office is now understood to hold a power it cannot afford to use. Every Texan President since has said in some form that section 5 exists for a case worse than 1983 and has not identified one, and the Republic’s constitutional writers are divided about whether this is the provision failing or the provision working exactly as a last resort should.

Proposals to make the refusal reviewable in the Supreme Court of Texas have been made in 1994, 2003 and 2019. All three failed, on the objection that a reviewable veto is not a veto and that the office would then hold nothing at all.

The lands in practice

Article VIII divided the Republic’s mineral wealth on the date of its own commencement and the consequences have run for a hundred and eighteen years.

The private half is the land granted before 1910, which carries its minerals under section 5, and it is the origin of most of the great Texan fortunes and of a landowning politics that has no equivalent in the Realm. A Texan surface owner may not own the minerals beneath, the two estates having been severed by some previous grant, and the law of that severance is the most developed body of private law the Republic has produced. Mineral title work is a profession in Texas in a way it is nowhere else.

The public half funds the schools. Section 4’s Permanent Fund takes the proceeds as capital, spends only the income, and applies it under Article XII, and it has grown into one of the largest public endowments in the world. Texas’s schools and its universities are financed to a degree that other polities find difficult to credit, its per-student capital spending is the highest in the Realm, and none of it comes from taxation.

That last fact is the political heart of modern Texas and is rarely stated plainly. A Republic whose schools are paid for by the ground rather than by the taxpayer is a Republic with an unusual attitude to taxation, and Texas’s low-tax politics, which it generally attributes to character, rests substantially on a constitutional provision adopted in 1910 by people who did not know what they were sitting on.

Four attempts have been made to spend the capital, in 1933, 1959, 1987 and 2011, three defeated in the Congress and one in the Supreme Court of Texas. Every Texan politician knows the Fund is untouchable and every Texan politician has at some point been tempted.

The Treaty that is not there

The Constitution of 1910 does not reproduce the Treaty of Austin, does not schedule it, and does not mention it.

This is the loudest thing about the document in Texas. The Treaty is the emotional foundation of the Republic’s place in the Union, Treaty Day is the Republic’s national day, the settlement is taught in every Texan school, and the instrument that governs Texas passes over it in silence.

The convention’s reasons were technical and are not disputed. The Treaty was in force, remained in force, and would have been misdescribed by being reproduced in a document it did not govern; scheduling it would have implied that its force came from the constitution, which was the opposite of the theory on which the convention was proceeding; and Parliament’s confirming Act of 1910 already recited that it remained in force according to its terms. Reproducing a treaty inside a constitution would have been the one thing capable of weakening it.

The reasons are good and have never persuaded anybody. The grievance is constant, is raised at every anniversary, and has produced four separate amendment proposals to schedule the Treaty, in 1946, 1971, 1996 and 2021, of which the last two reached the Congress and neither reached the electors.

What Texas is actually complaining about is a mismatch of registers. The Treaty of Austin has no independent operative force and has had none since 1910; it decides nothing, is cited in no judgment, and confers no right anybody could plead. It is nonetheless the thing Texans mean when they say what Texas is. A Republic that keeps its founding document out of its constitution because the document is too important to be put there has arrived somewhere genuinely odd, and Texans are aware of the oddity and have no intention of resolving it.

What the constitution does not say

Four silences, of which three are contested and one is not defended by anybody.

Spanish

The Constitution of 1910 is silent about language, in a Republic with an enormous Spanish-speaking population and a Tejano presence older than the Republic itself.

The silence was not an oversight in 1910 and it is contested now. The convention considered a proposal to make the constitution authentic in Spanish as well as English, on the model the March of Arizona later adopted, and rejected it without extended debate in a manner the minutes record and do not explain. The Republic’s Spanish-speaking population at the time held very little political weight and the delegates who might have pressed the point were few.

Modern proposals have been made in 1978, 1999 and 2017. The 1999 proposal, for an authentic Spanish text rather than co-officiality, came closest and failed in the Senate. The argument against is that the constitution’s meaning would then depend on which text a court preferred; the argument for is that a document a third of the Republic reads in translation is a document a third of the Republic is being told to take on trust.

The Indigenous nations

The Constitution of 1910 does not mention the Indigenous nations at all, and the omission is the least defensible thing in the document.

Texas’s treatment of the nations within its borders, under the Old Republic and after, was among the worst on the continent and is described in the Republic’s own article. The convention of 1909 to 1910 did not consider the subject. There is no proposal in the minutes, no committee, and no recorded speech.

Article XVIII was added in 1993, eighty-three years later.

It was negotiated over three years with the nations, who are not parties to the constitution and declined to be, for the reason nations have declined elsewhere in the Realm: a party is bound, and being bound might one day be read as a settlement. Section 5’s consent requirement is the same device Rhode Island adopted seven years earlier and is stronger than anything Texas had previously offered.

It is a good article of its kind.

It is also eighty-three years late, and the Register states the point the nations’ own representatives made at its adoption: that a Republic which had written ninety thousand words in 1910 had found room for the taxation of oil-field equipment and none for them.

Slavery

The constitution says nothing about slavery, which the convention of 1909 addressed only in the sense of not addressing it.

Texas entered the Union in 1846 as a slaveholding republic, kept slavery until the abolition settlement, came within a narrow vote of rebelling to preserve it in 1861, and wrote a ninety-thousand-word constitution forty-five years after abolition without an acknowledgement of any kind. The generation that drafted it had lived through the whole of it.

The omission has been raised, most recently in 2021 alongside the Treaty proposal, and has not been carried.

The Tejano titles

The one silence that is not really a silence. Article VIII, section 6 preserves title derived from a Spanish or Mexican grant confirmed under the settlement of 1846, which is a real protection and was insisted on in 1910 by the delegations from the border counties.

Its limitation is the word confirmed. The confirmation process ran under the Austin settlement between 1846 and the 1870s, was conducted in English, required documentary proof of a kind many holders did not have, and extinguished a great many valid titles by procedure rather than by decision. What section 6 protects is what survived that process, and the Republic’s own historians now describe the process as having done most of the damage before the constitution arrived to protect the remainder.

The constitution in Texan public life

No polity of the Realm argues about its constitution as much as Texas does, and the reason is partly the document and partly the Republic.

The document invites it. A constitution of ninety thousand words that specifies taxation exemptions, water rights, county offices and the composition of a land board is a constitution with a provision bearing on almost any dispute a citizen might have, and Texans reach for it. Ordinary political argument in the Republic is conducted in constitutional terms to a degree that visitors mistake for grandiosity and which is simply what happens when the instrument is detailed enough to be relevant.

The Republic requires it. Texas’s civic culture holds that dignity must be visible, and a constitutional argument is the most visible form a Texan grievance can take. A minister who says a federal decision is unwise has complained; a minister who says it is repugnant to Article VIII has made a constitutional case, and the second is heard differently in Texas whether or not it is better.

The consequence is a body of public constitutional knowledge that is unusually wide and unusually shallow. Article VIII and Article III, section 9 are known to a very large number of Texans who could not name another provision, because the first is where the money is and the second is what stands between a landowner and a pipeline. The perpetual union article is known and is resented in a small way by people who have no intention of testing it. The Treaty’s absence is known by everybody.

Teaching and Treaty Day

The Republic teaches its constitutional history in schools around the Treaty of Austin rather than around the constitution, which is the reverse of the legal position and follows the emotional one exactly. Treaty Day on 21 April is the Republic’s national day, is marked with ceremony the Realm finds excessive, and commemorates an instrument that has had no operative force since 1910.

The Constitution of 1910 has no day. A proposal to mark its adoption was made in 1960 and defeated, and the reason given in the Congress at the time is the most Texan sentence in the subject: that a Republic does not celebrate the document that governs it, but the agreement that made it a Republic.

The lawyers

Texas has more constitutional litigation than any other polity of the Realm and the largest specialist bar to conduct it. Article III, section 9’s compensation requirement, Article VI, section 8’s single-subject rule, Article VIII’s severance, Article XIII’s water and Article IX’s county powers each support a practice of their own.

The Republic’s own view of this is that a detailed constitution produces litigation because it produces answers, and that the alternative is a short constitution producing litigation because it produces none. Texas cites the Austin settlement’s last decade as its proof, which is a fair point and is the argument the convention of 1909 made when it decided to write everything down.

Texas in the Realm

The Republic returns thirty-seven members to the House of Commons, second only to California, and its constitutional peculiarity has a federal dimension that other polities’ do not.

The Republic is the Realm’s standing argument about what a polity may keep. Texas holds its own public lands, an elected head of state, a republican form, its own name, and a treaty of accession, and every one of those was negotiated rather than granted. When another polity wants something the Realm is disinclined to give, Texas is the precedent it cites, and New Westminster’s standing answer is that the Texan arrangements are the price of an accession that would otherwise not have happened and are not a template.

Article II is the reason that answer works. A Republic that has written its own inability to leave into an unamendable section, at the Realm’s request and in stronger terms than were asked for, is not a secession risk and has not been treated as one for a hundred and eighteen years. The Realm’s tolerance of everything else Texas keeps rests on that provision, which is a bargain the convention understood perfectly well and made deliberately.

The Republic’s relations with the Realm are conducted by the President of the Ministry under Article V, section 5, and are noisy. Texas litigates against the federal government more than any other polity, generally about energy, water and the border, and generally loses, and the litigating is understood on both sides as a form of speech rather than a strategy. The Republic’s constitutional culture requires that dignity be visible, and a Texan ministry that accepted a federal decision without arguing about it in public would be in more difficulty at home than one that argued and lost.

What is contested

The two presidencies

The Republic’s oldest constitutional argument is whether the dual executive is worth its cost.

The case for it is that Texas separates the dignity of the state from the government of the day more cleanly than any other polity of the Realm. The President of the Republic belongs to Texas rather than to a party or to the Crown, is elected by Texans, and can speak for the Republic in a disaster or a crisis without anybody supposing that a political interest is being served. In a polity whose emotional core is that dignity must be visible, this is not ornamental.

The case against is 1983. An elected head of state with reserve powers and a partisan route into office is a constitutional crisis waiting for an occasion, and the Republic has managed it for a hundred and eighteen years by the office declining to use what it holds. A power that cannot be used without destroying its holder is not a safeguard; it is a hazard that has not yet gone off twice.

Neither position has moved in forty-five years.

The Senate

Whether a Senate committee chairman should be able to prevent a bill from being reported, and therefore from passing, is argued every time it happens and has never been changed. The counties like the Senate. The Senate is elected from whole counties. Article VI, section 3 is amendable and the amendment would have to pass the Senate.

The counties

Two hundred and fifty-four counties with constitutional powers and separately elected officers is a great many, and the County Fortress problem is real: emergency management across county lines depends on coordination that Article IX, section 11 permits the Republic to compel only within narrow limits and only in a declared emergency.

The Republic has amended section 11 once, after a hurricane, and every subsequent proposal to widen it has been defeated by the counties, whose position is that a Republic which can direct a county in an emergency will discover more emergencies.

The Fund

Whether the Permanent Fund’s capital should ever be spent. The answer has been no four times and will be no again, and the argument recurs whenever the Republic wants something large and does not wish to tax for it, which in Texas is often.

The offices today

Elena Cavazos is President of the Republic, in the second of her two permitted terms, elected in 2024. She was a judge of a court of appeal before her election and stood on a Liberal Federal Democrat ballot, and has, in the manner the office requires, held no party office since and attended no party function.

Wade Bristow is President of the Ministry, at the head of a Conservative and Crown Union administration formed after the elections of 2026 and dependent on the votes of two independent members from the border counties.

The pairing is the ordinary Texan arrangement rather than an unusual one. A head of state elected on one party’s ballot and a head of government from another have coexisted for about half the Republic’s history since 1910, the two offices being elected on different cycles and for different reasons, and the arrangement functions because everybody understands that the President’s business is not the Ministry’s. It has failed once, in 1983, and the memory of that year governs how both offices behave.

Assessment

The Constitution of 1910 is the least fashionable constitution in the Realm and among the most successful, and the two facts are related.

It is ninety thousand words long, which every constitutional writer outside Texas regards as indefensible. It contains a hundred sections on taxation, an article on water resting on a distinction between surface and ground that no hydrologist accepts, and a great deal of material that in a better-drafted instrument would be statute. It reads, in large stretches, like a code rather than a constitution.

And it has governed a polity of thirty-two million people for a hundred and eighteen years with twenty-nine amendments and no constitutional crisis except one, which is a record none of the Realm’s tidier instruments can match. The convention’s judgment was that the settlement of 1846 had failed through silence, that a court asked to supply what a constitution omits will eventually be asked to supply everything, and that the remedy was to say too much rather than too little. The judgment was correct for the problem the convention actually had.

Its two great achievements are both in Article VIII. It settled the lands and the minerals on a rule that could be applied, which was the question the Republic had been avoiding for sixty-four years, and it put the proceeds beyond the reach of any ministry that ever wanted them. A Texan child is educated on the income of ground the Republic kept in 1846 and the convention protected in 1910, and neither the keeping nor the protecting was done by anybody who knew what it would be worth.

Its two great failures are silences. It said nothing about the Indigenous nations for eighty-three years, in a document that found room for oil-field equipment. And it said nothing about slavery, forty-five years after abolition, drafted by people who had lived through it.

What Texas demonstrates, against a Realm that mostly believes the opposite, is that a constitution’s virtues are not in its drafting. This one is verbose, unbalanced, technical and ugly. It is also specific enough that it cannot be quietly reinterpreted, hard enough to amend that it has not been buried, and clear enough about the two things Texas was actually going to fight over that it stopped both fights before they started. The Republic that negotiated its way into the Union wrote itself a constitution that reads like a contract, which is what a polity that regards a bargain as sacred was always going to produce.

Chronology

Trivia

See also

• Republic of Texas, the polity this instrument governs
• Treaty of Austin, the settlement of 1845 to 1846 that the constitution does not reproduce
• Polity Instruments Act 1889, under which the constitution was examined in 1910
• American Civil War, the rebellion Texas voted narrowly against joining
• Constitution of Louisiane, the other negotiated instrument
• Constitution of the March of Arizona, sealed between three parties in 1884
• American Rights Act, which Article III supplements