A Texas-Sized Look at Our Constitution on its 150th Birthday

Episode Notes

Transcript

Rocky Dhir:

Hi, and welcome to the State Bar of Texas podcast. I got to tell you, I don’t want to be here. It’s not you. I mean, you’re cool and all. It’s my guests. They’re like annoyingly accomplished people. To make matters worse, they’re nice, they’re fun, they’re interesting. They’re genuinely good. Make it stop, please. Okay, look, let’s start. Okay, we’ve got Evan Young. Now, not only did he go to Yale Law School and then go on to Clerk for Justice Antonin Scalia on the US Supreme Court, he eventually went on to become what he is now a justice on the Texas Supreme Court, having been appointed in 2021 and then getting elected to a full term in 2022. So yeah, if you want to feel good about your accomplishments, don’t hang out with this guy. But wait, we aren’t done yet. Dr. Bill Chris, he’s not just an appellate lawyer.

You might know him from there, but he’s an actual historian after his JD from Harvard. Yeah, the UT of the Northeast. Yeah. After his JD from Harvard, Dr. Chriss obtained his PhD in history from the UT of Texas, the real ut, hence the whole doctor thing. He even studied under the famous historian HW Brands. This guy’s real deal. He’s also a blogger in a shout out to you Ted Lasso fans. His blog is called Dr. Bill Independent. Dr. Chriss recently wrote his second book. It’s called Six Constitutions Over Texas. Texas’s Political Identity, 1830 to 1900. That’s right. Six Constitutions Over Texas. Do not take him to Six Flags. Okay. He’ll go off on a whole nother tangent, but there we have it. We have a Supreme Court Justice and a legal historian who better to help us talk through the, yeah, this is a big word. The sesquicentennial of the Texas Constitution, in case you’re about to put that word into chat. GPT Sesquicentennial means the hundred and 50th anniversary. Why don’t we just say the centennial and a half? I don’t know. But yes, 2026 marks 150 years since the Texas Constitution was adopted. And if you hang out with these two guys, you’ll find out that our state’s constitution is actually more interesting than you might’ve thought. So let’s sit down and learn more. Justice, Evan Young, Dr. Bill. Chris, welcome to the podcast. Guys.

Justice Evan A. Young:

Good to be with you. Thank you.

Rocky Dhir:

Absolutely. So Doc, let’s start with you. Your book implies that we have had six constitutions in Texas. Many of us think there’s only been one, or we only talk about one. So can you give us a quick overview? How did we come to have so many of these?

Dr. William J. Basileios Chriss:

Well, it’s kind of shocking actually. There’s some lawyers who don’t even know we have a state constitution.

Rocky Dhir:

Wait. Oh, okay. I feel a little smarter now. I mean,

Dr. William J. Basileios Chriss:

You at least knew that Rocky. That’s good.

Rocky Dhir:

It’s one thing. One thing. That’s all we need.

Dr. William J. Basileios Chriss:

Well, we actually probably had more than six, but HW brands who you mentioned in the introduction came up with that title. He thought it was catchy. He’s really good at title. If you count 1836, we have six. If you the 1820 Constitution of S, that would make seven. If you count the 1891 amendments to the 1876 constitution, that would make eight.

Rocky Dhir:

Wow. I’m assuming the first one started. I’m going to go out on a limb here. This is going back to seventh grade Texas history. I actually had to get my old notes out from Mrs. May’s Texas history class at Young Junior High School. But 1836, that’s when Texas became a country. Right.

Dr. William J. Basileios Chriss:

You’d be shocked how many people don’t know that, but yes, that’s right. My Texas history teacher was Mrs. Esy.

Rocky Dhir:

I’m assuming all history teachers know each other

Dr. William J. Basileios Chriss:

Probably.

Rocky Dhir:

Yeah. Ms. Esy and Ms. Mays probably hung out together. So 1836, I’m assuming that’s the first official constitution.

Dr. William J. Basileios Chriss:

Yeah, that’s the constitution of the Republic of Texas. Right after the revolution when we seceded from Mexico

Rocky Dhir:

And then I guess the next one would’ve been 1845.

Dr. William J. Basileios Chriss:

Very good, Rocky. That’s when we became a state. I can’t teach you anything.

Rocky Dhir:

No, no. I’m just here to try to make you look good. Okay. That’s all it is, doc. I’m telling you.

Dr. William J. Basileios Chriss:

I appreciate that.

Rocky Dhir:

And then when were the next ones after that?

Dr. William J. Basileios Chriss:

That’s where it starts getting interesting. 1861, which wasn’t really a completely new constitution. It was a series of amendments that were designed to facilitate our joining. The Confederacy.

Rocky Dhir:

The Confederacy, okay. Civil War. Okay, that makes sense.

Dr. William J. Basileios Chriss:

You know that one, it’s amazing how many freshmen history students in college don’t. And then you have two more that were 1866 and 1869. Those are the two reconstruction constitutions. Reconstruction, as I like to say, is probably the least well understood or well-studied aspect of American and Texas history both. And then you have the 1876 Constitution, which we’re here to talk about today, which Justice Young is very well familiar with and has written a number of concurrences concerning.

Rocky Dhir:

Let’s talk about that Justice Young, the Texas Constitution. It’s 150 years old. So I’m going to ask the question that perhaps some of these, Dr. Chriss was alluding to these freshmen history students. I’m going to ask the same question that they might be asking 150 years Texas constitution. So what’s a big deal?

Justice Evan A. Young:

Yeah, I’m really happy when people ask that question because it, as Dr. Chriss indicated, implies that the person asking that question was one of the relatively few who even know that we have a constitution. And it’s true. It’s kind of sad honestly, the number of Texans who know that we have a Constitution might honestly be smaller even than the number of Texans who vote every other year on the Constitution. It would be really interesting to have someone from the university go and do a poll an hour after people vote in the Constitutional amendment election and ask them questions like, does Texas have a constitution or institution? Why do we have a Constitution? Or what did you just vote on? I wonder, and I worry what the answers would be, but it doesn’t have to be that way. And that’s the answer to the question, why does it matter?

And it’s because the Constitution of 1876 gives the people of our state all the tools of self-government that any civilization on the face of the globe could reasonably ask for and more. And one of the most important is that the Constitution itself is an important tool of self-government allowing the people to govern themselves, to rule themselves. In part because the people in 1876, for reasons that Dr. Chriss can explain better than I can, were kind of cranky and suspicious. They were doubtful about government. They were very jealous of their own authority and very distrustful of those who had come to exercise power over them. And so the 1876 Constitution was written in a way that sure, it creates the three branches of government. It authorizes the legislature to come and pass laws, all the things that we know that government has to do. But it imposed so many restrictions on the government that seeded within the Constitution itself was the absolute need, the guarantee that we were going to have to amend our constitution. The state couldn’t function with this constitution unless we amend it somewhat frequently. And that’s why our constitution has grown from 22,000 words to something like 109,000 words from 1876 to today,

Rocky Dhir:

22,000 words. It sounds like a lot, but how many pages?

Justice Evan A. Young:

It’s a lot because the US Constitution is about 7,600 words with all of its amendments.

Rocky Dhir:

Oh, wow.

Justice Evan A. Young:

Okay. So we started off in 1876 at about three times that length. Maybe another example is the play. Hamlet is about 30,000 words. So we were about two thirds of Hamlet when we started, and we’re now about half the length of Moby Dick, which takes a long time to read. But I promise you, as much as people might not enjoy learning about the anatomy of every species of whale, it’s going to seem more interesting to the average person than reading about all the exemptions for a valorem taxes or reading all of the forms that have to be included in every home mortgage. If you’re taking out a home equity loan, there are all sorts of things that have to be included with it. Many of those things are included in the text of the Texas Constitution itself. And it takes a while to get through all of this.

And I say all of that because it’s why I think that a lot of people today don’t know that we have a constitution, don’t care about a constitution. The things that we go and vote on when we go to the polls seam to many people, including lawyers. And I must admit some judges as extremely tedious, very technical, the sorts of things that you might wonder, why do we really need that to be in the Constitution? And so they might be great things. We voted for example in November of this past year to authorize tax exemptions for widows or widowers of 100% disabled servicemen whose disability was caused in the line of duty.

Rocky Dhir:

I’m assuming that one passed pretty handily and pretty easily

Justice Evan A. Young:

It passed pretty thoroughly. And yet you might say, well, that sounds great, but why can’t we just get the legislature to pass a law that says that? Why do we need to do that? Why do we need to have the other ones that deal with exemptions from all sorts of securities transactions were defined in excessively detailed, tedious language with cross-references to federal statutes? Why do we need to have this? My favorite one, I’ll just read this to you. This is Article eight, section one, hyphen N, you came prepared with

Rocky Dhir:

Your own provision from the Constitution.

Justice Evan A. Young:

I brought the whole thing. Wow. And I brought, you can’t see it, but this is,

Rocky Dhir:

That’s Dr. Chris’s book. I see it. Okay,

Justice Evan A. Young:

Boom. So this one, article eight, section one Inn says, the legislature by general law may exempt from a valorem taxation, raw cocoa and green coffee that is held in Harris County

Rocky Dhir:

Only in Harris County.

Justice Evan A. Young:

Yeah. So the other 2 53, if you’re in Fort Bend and you’re holding raw cocoa or green coffee, too bad you’re paying your inventory tax. And so I’ve looked at that provision and I’ve thought to myself, wow, what a strange thing to have in the law at all, but even stranger that it’s in the Constitution. But as I have been reflecting on this, and this is really part of why I think we should use this sesquicentennial year to reclaim our constitution, understand why we haven’t. We’ve done it the way we’ve done it. The real key provision, article eight’s all about tax. The key provision in Article eight is Article eight, section one A, which says, taxation shall be equal in uniform. Now that’s something you can understand. That sounds pretty good. That means nobody’s getting a special break

Rocky Dhir:

Unless you’re Harris County and you’ve got cocoa and green coffee.

Justice Evan A. Young:

Oh, and that’s one hyphen in. There’s a ton of them, including the widow of the a hundred percent disabled servicemen, including the securities transaction, including people who have now property along the border for certain reasons. And each and every one of those is an exception to that. So you’re right, we have these, but the principle is taxation shall be equal in uniform, no burdens, no breaks. We’re all in this together. If you have a house worth a hundred thousand dollars, you should pay the same thing as somebody else that has the same value house. If you have an inventory of green coffee, you should pay the same as somebody else with that same inventory of green coffee, except that the people of Tex accept Harris County now. And you ask why that is. Well, there are reasons for this, and this is what research helps to develop.

It’s easier to understand why we’re giving the widow the tax exemption. And the point is that equality and uniformity are wonderful basic principles, but when it comes to tax, sometimes inequality and uniformity are good and noble and beautiful and true. And the answer to the people of Texas to the proposition put before them was, alright, give this widow the tax break. Taxation is not equal in uniform anymore. Somebody else going to have to bear a little bit more because she’s going to bear a little bit less. But that’s the price we’re willing to pay so that she doesn’t have to lose her house after presumably caring for her husband or his wife. If it’s the widower who was disabled in service of the country, that’s an inequality we think is worth it. Think through all of the things that are added to our constitution. It means that the people of Texas were charged with thinking about these propositions and saying, shall we make taxation a little less equal in uniform, including for green coffee and raw cocoa?

Why in the world would that be the case? And if so, why only in Harris County? And it turns out that there’s a very good reason even for this, I learned just recently, and that is then in order for Texas to have a port through the New York Board of Trade, which is responsible for the trade and the storage of coffee and cocoa, you have to be certified by it. And you can’t be certified if inventory is taxed. So Miami and New York and Charleston and Long Beach and San Diego and all these other places were able to be New York Board of Trade ports for that. And the pitch to the people of Texas was, we have one place in Texas that’s eligible, and it’s the Port of Houston, but we can’t do it because our constitution says taxation shall be equal and uniform. So here’s the deal, people of Texas, we can keep it that way.

And you can get 100% of the value of the inventory, of the zero pounds of green coffee and raw cocoa that will come here because they will not bring it here, or we can exempt it and then get all the value of the real estate taxes for the warehouses and the employment taxes and the economic development. So you choose 100% of zero or 0% of some amount, but all these other benefits and you decide it’s up to the people that decide. I belabor that because I think it’s really important to realize that this very tedious, lengthy document is embarrassing in its length. In some ways it’s the second longest constitution in the United States. Alabama has us beaten, we don’t take over number one, but these documents, these provisions, the many documents that were voted upon that have become part of the single constitution are a reflection of 150 years of the people of Texas’s values.

And the tax chapter is the most boring chapter in some ways. But when you think about it that way, and you look through and see what things have the people agreed to exempt from taxation, it tells you what things the people regard as beautiful or noble or worthy or at least in the interest of our state. And that’s a very different read than I had of the Constitution when I just looked at it as a series of isolated provisions. And if we look at it that way, then that ought to empower us to be active citizens again and not show up at the polls and say, oh goodness, here’s 17 really boring things. They probably both, they had to pass both houses of the legislature in order to be put on the ballot. So probably it’s okay, I’m really interested in one thing. I’m going to skip past most of the rest of ’em.

And instead to say, as those who came before us did well all, no, we are now going to own this. That’s the other part of my message. The legislature didn’t just pass this exemption for green coffee and raw cocoa. We did it. And so if it’s bad policy, it’s on us. And we can’t just say it’s all of us. It’s the people of Texas, the sovereign people of Texas, a small portion of them, but they operate on behalf of all of us, the ones that showed up to the polls and now they spoke in our name. And the policies that are adopted in our constitution are our policies. And if they’re bad, it’s on us and not just those bad legislators that we sent up. So that ought to make us take this seriously. We ought to demand that our legislature send us good propositions.

We have to amend our constitution. So restrictive needs change, circumstances evolve like the coffee and cocoa, but we want to make sure they’re giving us the right ones, the best ones, and we want to scrutinize them and study them and make sure that we endorse them. And if we can do that, we actually are using a tool of self-government that we can be proud of instead of being embarrassed of having a long, tedious turg document that nobody knows what it is or cares about it and thinks that it’s honestly a little embarrassing to have provisions about coffee and cocoa. And there’s so many others that we could go into. But that’s my pitch to the people of Texas, and especially to the lawyers of Texas. Let’s take our constitution seriously again, let’s understand why it is the way it is. And not all of the stories are wonderful and beautiful, but a lot of them are. And at any rate, they all point to this important message. It’s ours. It belongs to the people of Texas. Only we can change it and we ought to pay attention to it. We ought to celebrate it, and we ought to reform it when it needs reform and we ought to care about it.

Rocky Dhir:

Wow. Okay. First of all, I think my favorite word of the day up until now was sesquicentennial. But I think now I think turgid is my new word. Alright, so here’s what we’re going to do. We’re going to take a quick ad break and we’re going to hear from one of our sponsors, the Justice. The Doctor and I are going to take a quick road trip to Harris County. We’re going to get some green coffee in cocoa, and we’re going to come back and we’re going to continue talking about the Texas Constitution. Dr. Chris, while we’re on our little road trip, I want you to think about why Texas did it so differently from the federal government, because obviously Justice Young just walked us through some of the differences and how the amendment process and everything else, but why do we always have to be so different from the rest of the country?

So when we come back, we’re going to continue talking, guys, stay tuned and we’ll talk to you in just a few. Alright, everybody, welcome back. We’re here with Justice Young and Dr. Bill, and we’re talking everything Texas Constitution. And I learned something today. I thought we were different in just about every way, but I guess our constitution is different too, which who to thunk it. So Dr. Chris, walk us through this process. 1876 we’re part of the United States. We could have just modeled our constitution on the federal Constitution, been done with it. Why did we have to do this different one with this capacity to add in stuff about cocoa and green coffee? What’s the story there?

Dr. William J. Basileios Chriss:

Well, I guess there’s two or three answers. The first would be, and probably the most important one is industrialization, the Industrial Revolution. And the second is history. And the third is that we really did kind of take the US Constitution as a exemplar. We certainly did in 1836 and in 1845

Rocky Dhir:

I would expect that. But by 1876, we kind of said, no, we’re doing our own thing.

Dr. William J. Basileios Chriss:

And this has to do with the fast pace of change. Change is really fast today, but 1876 Constitution was passed only 40 years after Texas became a nation. So you have six constitutions in the space of 40 years. So there was a lot going on politically. The reason the 1876 Constitution has these provisions about taxation and corporations and securities is because those were such pressing issues in the 1860s and 1870s, really throughout the South. And what happened is the South, depending on who you believe, I mean some people argue the South didn’t lose the Civil War, but the South did lose the Civil War in the most obvious sense. And after that loss, Texans as well as other people in the South began reevaluating their Jacksonian ideas about industrial development. The 1836 Constitution, by the way, the original one, outlawed corporations altogether. Really? Yes. It also outlawed banks.

Rocky Dhir:

Wow, okay. Yeah. So there’s no banks, there’s no SpaceX. I mean, if that had continued on, there’d be no Tesla, just all of that is gone.

Dr. William J. Basileios Chriss:

So fast forward 40 years, you’ve lost the Civil War. The state has not been damaged as badly as the other 10 Confederate states, but certainly been damaged. And the leaders of the state, many of whom were lawyers, certainly the members of the 1875 Constitutional Convention that produced this document were lawyers, most of them. And they were concerned about economic development. They wanted to see railroads continue to be built and expanded. They wanted to see the economy expanded. They wanted to at the same time, because there was a substantial contingent of members of that convention, that constitutional convention who were members of the Grange, which was a sort of populist organization that was interested in

Rocky Dhir:

Agriculture, right?

Dr. William J. Basileios Chriss:

Yeah. Farmers who were interested in regulating things like transportation rates for sending their goods to market and so on.

Rocky Dhir:

I learned that while watching Little House on the Prairie as a kid. So please don’t think I’m smart. It was a lot of TV in the eighties.

Dr. William J. Basileios Chriss:

Hey, I learned a lot from tv, a lot from TV and from the Encyclopedia Britannica, right? So I always tell people there’s nothing I teach that’s not in the Encyclopedia Britannica,

Rocky Dhir:

And that’s the difference between us. I rely on you to read the encyclopedia.

Dr. William J. Basileios Chriss:

Well, one of those kids, I’m sorry, I apologize. I was not a football star. My son was, but I wasn’t. Anyway, so that’s the reason that we have this. Now, the federal constitution has an analog to our Article eight, and that’s the original provision that outlawed direct taxation by the federal government, right? And it required a constitutional amendment to allow the federal government to levy income taxes. And so if you look at the state of Texas and its constitution, it’s really an explosion of that same concept where at the federal level, they were really satisfied with just one direct tax. At the state level, you have a number of farmers who are a member of the constitutional convention who are concerned about things like taxation exemption of homesteads from not just taxation, but also execution by creditors. And by the same token, you had all these lawyers, you had all these railroad interests and other commercial interests who wanted to see commercial expansion and industrial development.

And so there’s a bunch of stuff in the 1876 Constitution that essentially represents a compromise between those factions. So you have homestead exemptions in the Constitution because they were serious about that. You have usury laws for the first time that appear in the Constitution because the reconstruction Republicans, they were also in favor of government expansion, but they didn’t really think there was much particularly wrong with usury laws or with usury, rather not usury laws, but usually. So they had also, during reconstruction, they had hamstrung railroad land subsidies to encourage railroads to build tracks. So there are a bunch of these things that were built into the constitution as a pro-development, and at the same time protection of agriculture consensus that was essentially up against trying to undo some of the reforms of radical reconstruction.

Rocky Dhir:

This may be a question for either one of you. Let’s see. Maybe you both have an opinion, or maybe you both know the answer if there is one. But this radical radio, I mean, you’re saying it was fueled by this desire for development in Texas economic development. What was the impetus behind that? Was it that the framers wanted, they wanted Texans to become more prosperous, which might be a more altruistic motive. Was it that they wanted Texas to be better armed so that if it ever had to take up arms again, it would have the industrial infrastructure to be able to take on the federal government? Or were there special interests and politics involved in some of the decisions that they made?

Dr. William J. Basileios Chriss:

Let me start out, because you mentioned politics and there was a lot of politics involved. And the reason that we’ve never had a new constitution after 1876 is because we’ve never had a political consensus in this state as strong as the one in the 1870s about undoing the form of government that we had before the 1870s. And so the elections of 1873 and 1874 were elections that were largely referenda on things like completely restructuring the judiciary in Texas, which was a big boogeyman for those that were in favor of a new constitution because they didn’t like the fact that we had a strong government who for a long time in the 1860s after the Civil War, was supported by the federal military and by a state police force and who had the power to appoint essentially all the judges in Texas. And so actually, one of the biggest things that produced the 1876 Constitution was a desire among conservative farmers and pro-business conservative Democrats to undo the powers of the reconstruction government. And so that’s why we have a fairly weak state government. We have a traditionally weak governor, and we only allow the legislature to meet once every two years for a short period of time unless the governor declares an emergency. And we elect essentially almost all of our judges until recently,

Rocky Dhir:

How did people know what the consensus was when they didn’t have TikTok or smartphones?

Dr. William J. Basileios Chriss:

You know what they had back then, Rocky, that’s kind of going away is they had newspapers. They had what? Newspapers remember that. Remember newspapers?

Rocky Dhir:

That’s almost as big a word as Sesco. Centen. I have to look that one up.

Dr. William J. Basileios Chriss:

Newspapers, in fact, they

Rocky Dhir:

Sound rather t

Dr. William J. Basileios Chriss:

Turon. I don’t know if it’s still there, but if you go to the where used to be, the Austin American Statesman’s offices over there on the intersection like Barton Springs Road in Congress, there used to be a big stone sign there that said Austin American statesman, democratic voice or something like that. So people complain now that both the different political parties have their own organs, their own press organs, their own media organs. That’s not new Democratic newspapers in the 18 hundreds. And there were Republican newspapers in the 18 hundreds. There were wi newspapers in the 18 hundreds. There were federalist newspapers in the 18 hundreds. It’s the same game, just different technology.

Rocky Dhir:

So echo chambers have been around forever, is what you’re trying to

Dr. William J. Basileios Chriss:

Tell us. Absolutely. If you’re a Democrat, you read Democrat newspapers. If you were a wig, you read wig newspapers,

Rocky Dhir:

Justice Young, you’ve been sitting quietly listening to all this probably in rap attention the way I have been. We’ve got to hear from another one of our sponsors. But when we come back, here’s a question. I want you to think about this as you sip on that green coffee that you’re savoring at this moment. I want you to think about which one you think is the better framework. The federal one or the Texas State one. They’re obviously very different. We talk about some of those differences as a jurist, which one do you think is superior? And you can’t say both. And you can’t say it depends. You got to come out one way or the other. We’re a back. We’re going to hear Justice Young’s take on the scoreboard. We’ll be right back. We’re back with our guest talking about the Texas Constitution’s sesquicentennial. You know what? I was about to call it The Texas centennial, and I think I like that word better if you can manage to pronounce it. The Texas Centennial

Justice Evan A. Young:

Que centennial.

Rocky Dhir:

Yes. T centennial. T

Dr. William J. Basileios Chriss:

Centennial

Rocky Dhir:

Centennial. We got Yes, we’ve done it. We’ve done it here. I think we can go home, guys. We’ve solved the problem. Alright, so while we were listening to our sponsors, my two guests, just to give you an idea of what I’m dealing with here. These guys were talking about where they did their Rhode Scholar interviews, Rhode Scholarship interviews. To me, up until now, I thought a Rhode Scholar was somebody who knew how to drive on ice in February. These guys are a real deal. They’re smart.

Dr. William J. Basileios Chriss:

Those guys actually are overrepresented in the Rhode scholarships. I bet they’re,

Rocky Dhir:

They’re the only ones who can make it there when it’s February and there’s ice on the roads. So alright, justice Young, we have stalled and we given you as much time as we can. You got to answer the question. I’m going to repeat the question because I’m a good lawyer and I’m going to repeat the question for you. So in your opinion, which is the better framework, the federal or the Texas state, with all of its differences with being able to add amendments, they get popularly voted versus the federal system where amendments are damn near impossible. But when they do happen, they’re momentous, but they’re not by popular vote, which is your preference?

Justice Evan A. Young:

I’m going to give you a direct answer, but then I’m going to have to explain it.

Rocky Dhir:

Of course. No, yeah, please.

Justice Evan A. Young:

And in part my thinking of this has evolved particularly over this past year as I’ve been meditating on the Texas, I can’t say it anymore. You’re the one who said it. You came up with it and now you

Rocky Dhir:

Don’t dunno how to say it. I

Dr. William J. Basileios Chriss:

Can’t

Justice Evan A. Young:

Even do it anymore. Anymore. It

Dr. William J. Basileios Chriss:

Centennial. I’m trilingual, so I

Justice Evan A. Young:

Can’t that text Centennial. I like it. There you go. That’s right.

Dr. William J. Basileios Chriss:

That’s

Rocky Dhir:

Why you’re the doctor.

Justice Evan A. Young:

I have to practice it a few times before I can get it out. It’s a good tongue twister. So my answer, which is not the same as it would’ve been probably a year ago even, is that I think I prefer our framework, our Texas framework, which is a surprising answer.

Rocky Dhir:

Yeah, it is

Justice Evan A. Young:

Including even a bit to me as I say. But I want to tell you why. And it has something to do with what we even think we mean by what a constitution is. And so I have grown up, and I think probably most lawyers, most people that think about these things, think of a constitution basically the way that Chief Justice Marshall thought about a constitution when he wrote about it in McCulloch versus Maryland, for example, describing it as something law school memory is coming back. Isn’t it fun? Yeah, we can do this all day is keep going. And Chief Justice Marshall described it as being something that provides this very basic framework, a very important thing, which the people rarely speak when they speak, they don’t say much. They establish the basic meets and bounds of the government, establish some important values, but then after that, they send people to Washington, they legislate, and that’s how the government works.

And it’s not bad. That’s definitely a constitution. But he described that as basically the only thing that a constitution could be something that was not a Constitution, just because it has the word constitution stuck on top of it. And of course that is true. The fact that a document has the word Constitution at the top of it doesn’t mean anything. North Korea has a beautiful document that says Constitution at the top of it with all sorts of amazing rights, including a protest publicly and inherit property and all the rest of it. And just try invoking your rights and not very much good is going to happen to you if you do. I don’t mean to suggest that just anything can be a constitution, so we call it one. But I do think though that a constitution can be much more granular and detailed than maybe classically what we think of as a constitution is.

And it has to do with the way that whatever society it is that’s governed by the Constitution wants to use it to govern itself. And so for the United States, it’s the one thing that Justice Scalia said he would change about the Constitution for sure was how to amend the Constitution. Because the extreme difficulty that you referenced in amending the federal Constitution has created various distortions in our politics and in our law. It puts an awful lot of pressure on the US Supreme Court because when it says, here’s what the Constitution means, that’s it. There’s no real way to get around it until we have a new justice. And that’s why every time we get a new justice, it’s Armageddon. And that’s very unfortunate. It’s not really the way it is on our court because sure, we have important things to say about the Constitution. They’re very serious, they’re difficult to fix, but they can be fixed.

Even the Constitution can be changed if the legislature and the people want to do that. If my court makes it wrong and that’s good, that’s a little bit less pressure on me. And it also means that we have every incentive to do our best and just trying to lawyerly get this right. But it also means that that process of fixing things, and maybe we didn’t get anything wrong, it’s just that there are things that need changing. Society changes, society changes, economics change. The pressures that the state faces change. Our experiences show that something that might’ve been a great idea in 1876 or 1891 or 1915, maybe that doesn’t work as well now because of all the things that have changed beyond our control. That doesn’t mean that they were wrong at the time, doesn’t mean that they were right, but they might have been right for that time.

And who gets to make the change? The people of our state get to do that. So the caveat is I think our framework is better if the essential premise of the framework is present, and that is that we have an informed electorate that understands its role and cares about its role and is engaged in the process of self-government. If we don’t have that, then something closer to the federal model might be better. And this is why the words theory and practice are different words. If they were the same thing, we just need one word, but we don’t. And so Dr. Chriss can tell us when the Constitution was first enacted, took effect February 15th, 1876, and the legislature started to propose a whole lot of amendments in the decades following ratification. And the voters were not hesitant at all to say, absolutely not. We’ll take this one but not the next four, and we’ll take these two but not the next seven.

And we don’t have that as much anymore. For the most part, these days they pass. And I’m not saying that that’s bad. It does. It has to go through both houses of the legislature. And if it can make it through that kind of a gauntlet, probably it’s okay. And I don’t mean to suggest that we should for no reason at all, reject them, but I do think that it means that there is so little oxygen left for most citizens today compared to 1876. We elect so many people to so many things. The Supreme Court, which had three members in 1876, we had a few dozen judges. Everybody was voting for two or three judges for the whole ballot when they were voting back then. Now if you’re in Harris County, Texas, it is the longest ballot in the United States of America because we have so many judges.

Wow. Our ancestors did not anticipate that as the population grew, Harris County in 1876 had fewer than 30,000 people. You don’t need a bunch of judges for a population like that. Well now it’s become one of the great metropolises of the world, and we need dozens and dozens and dozens and dozens of judges. And so every single election, you’re going to have upwards of 60, 70 before you even get to justices of the peace who are voted on by the people in Harris County along with everything else, all the members of the legislature and the governor and the senator and the president and constables. And then you have Constitutional amendment elections. And the problem with self-government in a society like ours today is people are so busy they’re trying to survive. They’re trying to make sure they get their kids from T-Ball practice in time.

They’re trying to make sure they get to work. They can fight through traffic. I mean very reasonable requests of ordinary people, all of us people is just to be able to make it through the day and not fall behind in are paying our bills or managing our affairs. And then to say, but also we need you to be studied up on the minutia of the New Amendments to the a valorem taxation provisions of the Texas Constitution and all the 70 judges in Harris County that you’re going to vote for. Who’s the best probate judge? Who’s the best district judge? Who’s the best county court at law judge? Who’s the best family judge? Who’s the best court of appeals justice? Who’s the best court of criminal appeals justice, supreme Court justice, and all the rest of it’s an awful lot of attention that we’re demanding of our people.

And so if we don’t have a population that is actually able to do what our ancestors thought that we could do a very reasonable response, we’d be to say, well, we don’t want to just delegate it all to Austin, but maybe we can do a few things. Maybe for example, we could pass one amendment to replace all the amendments in Article eight and say we repeal all of the provisions that grant special exemptions to the green coffee, to the widows, to the borderlands, to the research institutions. All of the statutes enacted pursuant to those amendments remain valid. And from here on out, any exemption from taxation must be passed by a two thirds vote of both houses and signed by the governor or three quarters if you want or something to make it clear that this equal and uniform principle remains the basic principle for Texas.

But instead of dragging this to the people all the time for us to have it get lost in the noise, we’re going to hold you accountable legislature for doing that. And then we shrink that part of our constitution by 95% and have one provision instead of dozens and dozens. That would not be an irrational thing to do, just like it would not be irrational when it comes to judges to say, well, if the people are going to demand to elect all of those judges in Harris County, maybe we say that district judges are going to have a term maybe of six years at least instead of four, that would shrink the number of people that are on the ballot. It would allow our constitution, which is predicated on the idea that the people of Texas choose all of their leaders and make all the basic policies.

We’re still going to do that. But each time you have to go to the polls, you’re responsible for a little bit smaller number of people you have to study up on. And then those people who are elected to the district court have a little bit longer time to actually be the judge before they immediately have to start going out and try to catch the attention of the people of their county that won’t be able to remember them 10 seconds after they vote for them, because there’s so many of them. And maybe that would help us get better people willing to throw their hat in the ring because they know that they’ll have a longer time to do the job if they win. Maybe there are things that we can do within the structure of our existing constitution to allow self-government to actually be more effective by asking a little bit less on an annual basis of the people who are governing themselves.

So I still like ours better for our state, maybe not for the whole country, but for our state. We were created to be a self-governing people and our citizens ought to accept that, grasp the nettle. But maybe there are some ways we can make the nettle a little less painful, at which point maybe we have our people pay a little bit more attention and we get the voting rate for Texas Constitutional Amendment elections to go up from 16% of eligible voters, which means that for the amendments that passed by a 55, 45 margin, that meant that 5% of all Texans spoke for the sovereign people of Texas because 55% of 16% of registered voters amounts to 5% of the 31 million. They did it. And so we should have more than that to take this kind of seriously. But I don’t blame people. I don’t blame them for not knowing every jot and tittle of the 17 propositions that were put forward to us.

But wouldn’t it be wonderful if we could use this opportunity of reflection on our constitution to think about what it is that we want? And I’ve got one last thing I want to say to the Lord. I know this is the state bars podcast. There’s a lot in this constitution of great value that has not changed even one word since February 15th, 1876. And Dr. Chriss referenced some of the concurring opinions that I’ve written about some of those fundamental provisions, not small, little narrow things like the coffee and cocoa, but things like due course of the law of the land. That’s the Texas equivalent of the due process clause or the takings clause or the Texas constitution that protects us from the government just coming in and taking what is ours for public use without giving us just compensation. And these are written in very different terms than the federal Constitution.

We have some provisions in the Texas constitution that are almost identical to the US Constitution, our religious liberty provision in Article one, section six of the Constitution, article one is our bill of rights. We put at the beginning instead of at the end as the federal Constitution did. We don’t really know what it means because we’ve not had opportunities for lawyers to bring us cases so that the Supreme Court of Texas can give definitive interpretations of what exactly it is that the people of Texas have intended to protect or acquire or demand of our government and of the people themselves on so many amazingly important provisions of our Constitution. And I wonder if in part, that’s also because lawyers get this book, which I’m holding up this big thick fat book, like, oh, I don’t think I’m going to read that. I’ll just use the federal constitution.

Or I’ll find a statute and they defend their client’s interest that way. But I would encourage the lawyers of our state to also use this 150th birthday to go back through and reflect on whether or not in doing the work that their clients hire them to do, there might be things in our constitution, our fundamental, our highest law in which they can bring to court cases that will allow the courts to begin to better develop the meaning of our constitution so that the people of Texas can decide whether they want to keep that meaning or get a better one. And maybe they’ll win cases they otherwise are going to lose too or get a better result than they would have. So that’s my encouragement to the lawyers, not just to the people. I mostly want to talk to the people, but I also want to talk to the lawyers because we lawyers have a special obligation to the people who are our clients to make sure that our law is well understood, faithfully applied. And that’s why all lawyers take oaths to uphold the constitution of the United States and of this state and all lawyers take oath to be officers of the court. Here’s a new chance to fulfill the oath you took the day you became a lawyer when you took that oath. Here’s a new chance to make that meaningful. Let’s let 2026 be a year of renewal for theBar of our state as well.

Rocky Dhir:

And I think we’ve also learned a new phrase the day along with Tid as our word of the day. We’ve got dots and tittles, which I think is a

Justice Evan A. Young:

Jots, jots and jots.

Rocky Dhir:

Jots with

Justice Evan A. Young:

A J,

Rocky Dhir:

Jots and tittles. Okay, I love it. We’re adding to people’s knowledge even in the most minute ways. This is fantastic. So Dr. Chris, to close this out, justice Young just talked about, he talked a lot about this framework that why he likes the Texas Constitution the way it is, but the challenge being that you need to have an informed electorate to really be able to weigh some of these constitutional provisions if you’re going to write ’em into the governing document of our land. You alluded to this earlier, and I’m going to come back to this as our closing question of the day. In your opinion, in light of what Justice Young has just laid out, will we ever need a seventh constitution over Texas? And if so, when and why?

Dr. William J. Basileios Chriss:

Well, that was tried in 1973 and 1974. There was a constitutional convention in 1974 that was the chairman of which was Price. Daniel Jr. Who was at that time also the Speaker of the House of Representatives. My understanding of that project is that it failed for the reason that a political analyst and historian like me, who’s an independent might expect, which is that the people in the middle were in favor of it, and the people on the edges of the right and the left were both against it. I’m always concerned when people talk about new constitutions or constitutional conventions statewide or federally, but I would welcome it. What I really think we need more than anything else is the one fly in the ointment for me in the argument for our constitution being the way it’s the one fly in the ointment for me. And the one thing I think we could do to improve the situation so that people would be more engaged would be not to have the legislature have a monopoly on proposing constitutional amendments. Texas is one of the very few states, can’t call the exact number, but Texas is one of the very few states in the union that does not allow initiative and referendum. And I think people would pay more attention to the state constitution and to the amendments proposed to the state constitution if they also had the opportunity to propose them directly and bypass the legislature. That’s my personal view.

Rocky Dhir:

So for example, in California,

Dr. William J. Basileios Chriss:

Yeah, proposition 13 proposition, this proposition that same thing in Wisconsin, same thing in virtually every other state in the union. I can’t tell you exactly how many, but I know Texas is in the distinct minority in not allowing citizens to directly by petition, essentially get enough people interested. And I think that might spur more interest and knowledge about the constitution. If people thought, well, maybe I’ll get some people together and we need to reform this or that,

Rocky Dhir:

That could be some really beautiful pandemonium. That’d be fun to watch from the sidelines for sure. Just a

Justice Evan A. Young:

Very brief defense of not going that way, at least for food, for thought. And that is

Rocky Dhir:

You guys decided to make it spicy of the podcast. Okay, let’s hear

Justice Evan A. Young:

It. I get it, and I’ll keep it brief, but there is something to be said for Texas being like a baby bear’s porridge. It’s just right. There are places where it’s even harder to amend their state constitution, and there are places where it’s very, very easy to do it. And a constitution ought to be something that is amended with great solemnity. It’s our serious fundamental law. And I do worry that if we were to cut the legislature out or something like that out, it becomes too easy to have things that are just the passions of the moment, lead to rapid change, unpredictable change, volatile change without due deliberation. So the way we have it right now with the legislature means that they’re playing the important role of what we send them to Austin to do. And that is they’re there to kick the tires, they’re there to do the work, they have to really think about it.

They have to get two thirds of both houses, and that’s the way that the people can have their public servants do the work that maybe a professor has an RA do. You go through, you do the research, you dig on it, you bring me what you think the right answer is, and then I’ll make the final choices. And that I think can serve us well. But we need to be vigilant as citizens to demand that the legislature give us the right kinds of amendments. So it’s a debate worth having. And I’m not trying to utterly reject the idea that we could do something else, but I worry that too rapidly shifting in the other direction would undermine rather than advance some of the important values of self-government.

Rocky Dhir:

Well doc, he’s the judge. I’m going to let him have the last word on that. Totally fine. And I think you’re okay with it. Totally

Dr. William J. Basileios Chriss:

Fine.

Rocky Dhir:

Absolutely. I mean, even I’m smart enough to know that this has been a lot of fun. It really has been. I was like, all right, these are two smart guys. They’re going to be super hard to talk to, but you guys are super cool. This has been so much fun. Justice Evan Young, Dr. Bill, Chris, thank you both for joining us today.

Dr. William J. Basileios Chriss:

I’ll tell my kids, you said I was cool.

Rocky Dhir:

Once they get a hello to me, they’ll be like, look, we’re going to consider the source. So I want to thank you all for tuning in and for listening. Want to encourage you to stay safe and be well. We always love having these discussions with you. If you like what you heard today, please rate and review us wherever you get your podcasts. Until next time, to paraphrase Ron Burgundy, stay nerdy, Texas. I’m Rocky Deer. Signing off for now. We’ll see you next time.