At the Goldwater Institute, we’re fond of saying that Americans don’t have one Constitution—we have 51, and each state constitution holds the potential of protecting individual liberty more than the federal Constitution does. That’s how our system was designed: while the federal government is given certain limited powers, and charged with defending certain basic rights, state governments hold most of the responsibility for day-to-day regulation, and also have the ability to provide greater protections for free speech, private property rights, freedom from warrantless searches, or any number of other liberties.
But the system only works if state judges are willing to enforce their state constitutions rather than simply parroting what federal courts have said. And the unfortunate fact is that many state judges simply borrow federal legal theories and turn them into state law, even where there’s very little justification for it.
That’s the issue raised by a case before the Texas Supreme Court in which the Goldwater Institute filed a brief last week. The case involves a law that lets cities exercise authority beyond their city limits—over people who can’t vote for the political leaders in those cities. In other words, they’re subjected to government control, but aren’t allowed to vote for the officials who enjoy that power.
Represented by our friends at the Texas Public Policy Foundation, a group of citizens sued, arguing that this violates a provision of the Texas Constitution that says “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government.” Yet the court threw out the case, saying that this part of the state constitution is “nonjusticiable”—meaning courts can’t enforce it—because it involves “political questions” instead of legal ones. In reaching that decision, the court relied on federal legal precedent that says a provision in the federal Constitution, which says “the United States shall guarantee to every state in this union a republican form of government,” is “nonjusticiable” thanks to this “political question” theory.
But it makes no sense for the state court to simply mimic federal court opinions in this way. The two constitutional provisions, after all, are entirely different. The federal version was written in 1787, and promises federal protection against violent uprisings in the states. The Texas version was written in 1876, and it pledges the faith of the people of Texas to certain basic political principles—including the idea that citizens should be able to vote for those who exercise political rule. There’s hardly any overlap. So, as we argue in our brief—written by American Freedom Network members Katrina Eash and Courtney Rimann of Winston & Strawn—there’s just no good reason for state courts to copy federal precedent that concerns a different constitution, written at a different time, for different reasons, and containing different words. That’s like reading a recipe for lasagna as if it described baking a cake. Of course states should follow federal law—but they should first look to their own constitutions, and enforce those.
James Madison, the father of the (U.S.!) Constitution, said our federalist system was designed to provide a “double security to the rights of the people”—meaning that the federal Constitution provides a basic minimum of protections for freedom, and state constitutions can then add further protections on top of that. But when state courts just copy what federal courts have said—particularly what they’ve said about a different constitution entirely—that system gets short-circuited, and the rights that Texas’s founders intended to secure are rendered more vulnerable, rather than less. We hope the Texas Supreme Court will take up the case and ensure that the Lone Star State’s highest law is given the respect it deserves.
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
