One thinks of the Warren Court, and the great number of decisions concerning civil rights, voting rights, etc. It is often not realized, however, to what an extent state judges play ar ole in shaping these issues. In many state court systems, the state system was actually more liberal than the Federal:
First and foremost, state constitutions may be used not only to broaden rights but also to restrict them. They are far easier to amend than the U.S. Constitution. Therefore, forces within a state dissatisfied with liberal court interpretations of the fundamental state law may, without nearly the same effort required on the federal level, undo those rulings....In Florida... voters adopted an amendment to the state constitutional search and seizure provision, requiring the provision to be "be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.".... [This] "forced linkage"... requires the Florida courts -- which had also been quite liberal in establishing state constitutional rights -- to adopt no broader rights than are granted by the U.S. Supreme Court....Before forced linkage, Florida Supreme Court cases rejected U.S. Supreme Court interpretations in favor of broader rights 80% of the time; after forced linkage the rejection rate dipped to 18%.
This is one way that the Texas Constitution does allow for the judiciary to be more responsive to the opinions of the voters. A constitutional amendment would not have been required in Texas to effect these same changes. Yet, whether that is actually better is a matter that is open to question. Remember, in states such as Florida and California (California has also instituted similar constitutional change), any significant change in general judicial policy must be put up to a special vote of the general population. The Texas system permits a fair degree of popular, and even very temporary, prejudice from obscuring good policy c.f. Civil Rights.
The foregoing example reveals, in fact, a particularly great flaw in the Texas State Constitution. In the name of protecting popular sovereignty, and guarding the people against abuse of power by officials, the Constitution has also enshrined the popular will as a force of awesome power; a force of awesome that may be positive or negative. Early political theorists, both in the United States and abroad, spoke frequently of the dangers of mob rule. In the years immediately before Texan Independence, the young United States was particularly convulsed by riots:
1835 represented the crest of rioting in the United States. All types of mobs had riotous representation in this year, but over two-fifths of the riots... related to issues at the core of sectional tension [emphasis added]: there were 46 proslavery riots (35 against abolitionists and 11 in response to insurrection scares) and 15 racial riots, 11 of these against blacks, 3 in aid of fugitive slaves, and 1 by blacks.
The subjects of these riots were to have an ominous significance for later developments in Texas, and throughout the South. Pressure from the White "rank and file" was to be all important in the future system of Jim Crow. In the case of the Civil Rights Movement, the courts were all important in advancing a "liberal agenda." During the long period in which African-Americans were denied equal rights, and treated as second-class citizens, one would have been hard put to find a Texas judge who would have risked re-election by supporting an "extremist agenda" like equal rights for Black People.
Another example of popular sentiment vs. human or civil rights can be found in the "Religious Right" Movement that is so powerful in the State of Texas. Again, the State's heavy reliance on popular sovereignty opens the door to popular bias. In a State where one's public faith is deemed so important, one is not likely to discover elected judges who will be overly enthusiastic about protecting the rights of non-believers, or even of those who do not believe in quite the same way. In the 1990s, the editor of an Austin newspaper for atheists was called to jury duty. She refused to swear any kind of oath, as to her, any such statement smacked of religion. She was found in contempt of court until a judge finally worked a kind of "truth affirmation" that she could use instead of a traditional oath.
Here in this case we see the operation of popular prejudice to a much greater degree than would have been possible in say New York or California.
Too great a reliance on the general will, combined with exceedingly precise governmental instructions can also immobilize the Texas State Government. Almost no matter where one looks, one sees the operation of these kinds of constraints. Texas is regularly ranked near the bottom in terms of education, welfare, medical care and so forth. These facts can easily be linked to the limitations of the Texas System. This is not to say that Texans, as a people, are especially...
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