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State Constitutional Law
South Texas College of Law Houston
Rhodes, Charles W. "Rocky"





Introductory Notes

· TX State Constitution is 187 pages long, 16 Articles and 87,000 words.

o Generally grants more rights than the US Constitution.

o Protections in TX Constitution not included in the US Constitution

§ Protects jury trials more than any other state.

§ One of the first adopters of the Equal Rights Amendment (based on gender). Gives strict scrutiny to gender disputes.

§ Open courts provision – limits ability of legislature change common law remedies/causes of action.

§ Prohibition of retroactive laws.

§ Contains a specific separation of power clause. The three departments of government shall be separate and distinct.

§ Guarantees the right to an education

o Legislature every two years for 140 days. Governor can call a special session.

§ Save expenses (only paid $600 per month plus per diem for every day in session).

§ Population likes small government

o TX Legislature

§ TX Senate

§ TX House of Representatives

o TX Supreme Court

§ Justices are elected by popular vote

o TX Governor

§ No term limits

§ Considered a weak position compared to other states.

· Has little control over appointments once they are made

· History of state constitutions in general

o No written constitutions before the American Revolution

§ Colonists didn’t feel that they were being afforded the same rights and the English.

§ First state constitutions were formed soon after the Declaration of Independence. These generally copied the colonial charters.

· Diminished governor’s powers. Most were entirely dependent on (and elected by) the legislature. Due to fears of centralization of powers.

· Increased the power of the legislature.

§ Colonists found that the dangers of too much democracy were just as bad as not enough. The wishes of the masses are not always good for the whole (no one wants to pay taxes but everyone wants benefits from the government)

· Brought on a second wave of revolutionary charters

· Massachusetts Constitution of 1780

· New Hampshire Constitution of 1754

§ Jacksonian Democracy – 1840s to 1850s – thought that everyone should be elected.

· NY Constitution of 1846

§ Retrenchment (After the Civil War)

· Constitutions had to be redone in order to rejoin the Union

· Happened again after the Radical Republicans took over Congress in 1876. This was very restrictive on the government due to the Panic of 1873, where TX started to accrue large debts

§ Progressive Movement

§ Some constitutions changed since the 1950s

· Mirror the US Constitution more.

· Much shorter than older constitutions.


· Drafted when TX become a nation

· The Bill of Rights has changed very little since the original constitution

· Influenced heavily by good and bad aspects of the Mexican Constitution


· Primarily influenced by desire to join the Union

· Very conservative so as not to

· Only amended once


· Retrenchment –

· Wanted to decrease the power of government. Did not allow the government to go into debt

· Current constitution



1) Meaning –

Largess v. Supreme Judicial Court of Massachusetts (2004)

· Held that same-sex marriage is required under the state constitution

· Guarantee Clause Justiciability – Not necessarily a political question (it is justiciable)

· Republican – Not a monarchy, aristocracy, dictatorship, etc.

· Outcome – US Supreme Court will not intervene in these cases except in extreme cases.

Luther v. Borden (1849)

· Dorr Rebellion in Rhode Island – An uprising tried to overthrow the charter government held over from before the US Constitution. Parties asked the Court to determine which government was valid.

· Outcome – Not justiciable. It is for Congress to recognize the true government of the state.

Pacific States Telephone & Telegraph Co. v. Oregon (1912)

· Law passed by initiative taxed telephone companies. Telephone company claimed a law passed by purely democratic process was not consistent with a republican government

o Initiative – Petition proposing a law put to a popular vote (purely democratic lawmaking)

o Referendum – Law by legislature that must be approved by popular vote (basically a popular veto)

· Outcome – Not justiciable. The question of the validity of the lawmaking process is a political question for the Congress.

2) Notes on the Guaranty Clause and the Admission of New States

(a) Federal Judicial Enforcement of the Guaranty Clause:

(b) The Guaranty Clause in State Courts:

(c) Potential Meanings of the Guarantee Clause:

(d) The President’s Role:

(e) The Limits of Enabling Acts:

Coyle v. Smith 1911

· OK changed the capitol from Guthrie to OK City despite a clause in the enabling act mandating no change until 1913

· Outcome: Congress can create condition for the state constitution prior to admission to the Union. After admission, any restriction must be based on another US Constitutional grant of power (commerce, tax/spend, compact, etc.). The powers of new states cannot be restricted more than the other states.

3) Notes on State Sovereignty and Federal Limits on State Charters

(a) The Bases for Federal Regulation:

(b) The Impact of Increasing Federal Power:


1) Preemption

(a) Meaning – State constitutions and laws are subordinate, not only to the US Constitution, but federal statutes, treaties, executive orders, administrative regulations, and common law.

(b) Express Preemption – explicit in text

(c) Implied Preemption

(i) Field Preemption – federal law completely occupies the field and there is no room for state regulation

(ii) Conflict Preemption – impossible to comply with federal AND state laws

(iii) Obstacle Preemption – state law conflicts with the purpose of federal law

Davis v. Davis (In re Davis)

2) Notes on Federal Preemption Doctrine

(a) Preemption and State Constitutions:

(i) If Congress uses the Supremacy Clause to preempt state constitutions, the state constitution is void and does not necessarily need to be changed.

(ii) If Congress uses their Tax and Spending power, the state constitution either has to be changed or ignored.

(b) The Political Safeguards of Federalism

(i) State sovereignty is somewhat protected by the political process because Congressmen and the President are elected by state citizens and representatives.

(ii) Therefore there is an interest in preserving these interests.

(iii) Protection by the US Supreme Court has varied over the years. Prior to 1937 and after 1990 the Supreme Court has given great deference to state sovereignty.

(c) Federal Spending Conditions as a Preemption Alternative

(i) Congress can avoid issues of preemption by attaching conditions to receipt of federal funding so long as the conditions are not ambiguous or unduly coercive.

(ii) A conflict in the state’s constitution does not protect it from this type of regulation. If the state wishes to receive the funding, it must change its constitution.

(d) Preemption and Traditional State Powers

(i) Even powers traditionally exercised by the states can be preempted by federal law.

(ii) However, judges are less likely to find implied preemption in these fields.

(iii) In matters of traditionally state sovereign areas, the federal courts will take this into consideration unless there is specific language of preemption in the federal law.

American Insurance Association v. Garamendi

3) Notes on Preemption of State Conduct Impacting International Affairs

(a) Dormant Foreign Affairs Preemption

(i) Even though it is not clear in the federal law, the state is acting contrary to the spirit of the policy. Same as field preemption except specifically involving foreign affairs.

(b) State Courts and Transnational Law

(i) States are field preempted from enacting laws even if the laws are consistent with the intent of the federal policy.

(c) State Laws and Foreign Affairs

(i) States generally cannot enact laws which significantly affect foreign affairs (or are specifically directed at foreign nations) and are against national policy.

(ii) Laws that do not conflict with national policy are okay if they have delegated or reserved power to do so. (See below)

Cook v. Gralike

4) Notes on the Scope of State Powers

(a) Delegated v. Reserved State Powers

(i) Delegated Powers – Powers granted to the states by the US Constitution.

(ii) Reserved Powers – Powers of the state that existed prior to the US Constitution. If the p

aw errors, thereby allowing power to be returned to the states for decision making in accordance with their own principles of state governance.

7) Preemption and Federal Review

(a) A state cannot use a preempted law as its adequate and independent ground

(b) Exception: If there is another law, not preempted, that will bring the same result.



1) Article III, section 2 limits the subject matter jurisdiction of the federal judiciary to resolving certain categories of cases or controversies.

2) In contrast, state courts typically have general subject matter jurisdiction, authorizing some court in that state to adjudicate any type of controversy, except for those rare cases in which exclusive jurisdiction has been vested in the federal courts. The state court does not have to abide by federal justiciability, even when addressing a federal issue (or even if a federal issue was the only issue in the case).

Notes on the Relationship Between State and Federal Justiciability Doctrines:

(a) Federal Justiciability Doctrines:

(i) Standing – whether the plaintiff has the appropriate personal stake in the litigation as a result of suffering an injury that is fairly traceable to the defendant’s conduct and is likely to be redressed by a favorable judicial decree

(ii) Ripeness – ensures that the suit is not filed too prematurely before a concrete adversary context exists

(iii) Mootness – prevents the continuation of the lawsuit after the injury has ceased

(iv) Political Question – carves out certain subjects that the federal courts believe are inappropriate for judicial resolution because the decisions should be made by the politically accountable branches of government.

(b) State Justiciability Doctrines:

(i) Standing – Even if a party would not have standing in federal court, the state constitution may allow standing. If the winning side would have standing as petitioner in the United States Supreme Court, then it is reviewable. If the party that would not have had standing is the petitioner, they will not have standing for the United States Supreme Court to review. Most states are more lenient toward issues of standing and allow taxpayer standing. In TX the courts follow federal standing standards when consistent with state law or harmonized with state precedent.

(ii) Mootness – Most states have an exception to the mootness requirement for cases of “great public importance.” TX

generally follows the federal approach to mootness and applies the same exclusions to cases capable of repetition yet evading review and class action suits. TX adds the “great public importance” exception, but this essentially only eliminates the condition that the same party’s case be capable of repetition yet evading review (not officially recognized by the TX Supreme Court, but he appellate courts are split). The TX Supreme Court has not heard a case on this issue yet.

(iii) Advisory Opinions in State Courts – At least ten states allow advisory opinions, including TX. These are generally limited to specific areas of law and some states, including TX refuse to make this a practice.

· Who may seek –

· Circumstances – important questions with serious doubts

· Precedential Effect – Even when advisory opinions are issued, they are not binding on any court OR any party.

Exception: Certifications sought by federal appellate courts and the United States Supreme Court. This is where the federal court has a question about how to apply state law given certain facts. (Article V, section 3-c of the Texas Constitution). Will not accept from federal district courts or courts in other states.