This article was originally published on March 2, 2016.
In honor of Texas Independence Day, this week we’re looking back at the mystery of the Texas Constitution.
The mystery being that, after 180 years, it doesn't technically have one in effect, because the State of Texas has never formally recognized one of the many versions of its constitution.
In the throes of its rebellion, Texas adopted its Declaration of Independence at Washington-on-the-Brazos. Months later, after defeating the Mexican army, the fledgling republic adopted a constitution — the first of many iterations – each part of a trial-and-error for the republic that became a state… that became a rogue state... that became a state. That stumbling process seemed to have ended in 1876, when the state adopted a final draft of a constitution.
But it didn’t. So, technically, Texas doesn’t have a uniformly-recognized constitution.
The state’s constitutional confusion began in 1875, when the Constitutional Convention began drafting the document. It was framed in two different versions. The majority of the 64 delegates at the convention voted to enroll one version, but didn’t actually end up enrolling it—they enrolled another. And neither of the two versions amended or canceled the other out.
Then, the convention sent the language out to Texans, providing voters across the state with versions of the constitution – in different languages – before they voted on it. That’s where the differences proliferated.
“The biggest difference is in the versions that were ratified by the people. The version in Bohemian – which is sort of like Czech, as I understand it – is quite different from the version in German. And, obviously, the vast majority of the people in Texas had no idea what the Bohemian speaking voters were ratifying or what the German speaking voters were ratifying, and vice versa,” says Jason Boatright, a lawyer who wrote an article on the constitutional conundrum titled simply, “No One Knows What the Texas Constitution Is.” The preamble, for example, proved problematic in translation — some German letters don’t exist in Spanish; Spanish words like “blessing” don’t exist in Bohemian.
Even the English versions have inconsistent wording and punctuation that alters the meaning of the document — a problem that’s plagued the U.S. Constitution’s Second and Fifth Amendments as well.
State courts have cited the different English versions of the Constitution, but no Texas court has ruled on which of the six total versions is the unifying version of the document—which means “one could argue – for perfectly legal reasons – that there is not one in effect,” Boatright says.
But—that conditional is key to Boatright’s argument – it’s an exercise in legal and logical gymnastics.
“As a practical matter, no. There is a Texas Constitution, it is in effect, we are governed by it, and we are free to amend it.”
The notion, he says, wouldn’t go anywhere in the courts, but his argument’s still valid — that’s why he wrote the article, to prove a point.
“There are problems inherent in any multi-step enacting process because of human error. Because transcriptions are never exact, and translations are never identical, and, without a unitary text, there are going to be differences in versions. And sometimes those differences in versions can create legal problems.”
He’s not the first to point this out. In 1974, a convention held 19 public hearings over seven months across Texas – spending $3 million in the process – but ultimately failed, by three votes, to draft a new constitution to send to voters for review. Instead of rebuilding the whole thing, lawmakers could take the easy way out and just unify the versions of the Constitution that are already on the books, Boatright says.
“If the legislature proposed in a resolution a text of the constitution and put it before voters, and the voters approved it, there would be absolutely no question as to what the text of the Texas Constitution is. That would definitely solve all of this.”
