In Texas liberty trumps democracy. The Texas Supreme Court itself says so. In a recent decision, three of the five Justice majority bluntly declared. “(O)ur federal and state charters are not, contrary to popular belief, about ‘democracy’.” They are about “liberty’s primacy.”
The Justices concluded the Texas Constitution gives primacy to liberty because of the sequence of wording “That the great, general and essential principles of liberty and free government may be recognized and established,” is how the Constitution begins. The word “liberty” comes first.
Relying on the sequence of words to establish primacy could have gotten the Justices into trouble when it comes to the federal Constitution, a situation they adroitly finessed by quoting only part of the Preamble. “The federal Constitution, in the first sentence of the Preamble, declares its mission to ‘secure the Blessings of Liberty,”” opined the Justices. But before securing liberty the Preamble lists several other objectives that would have primacy: “establish Justice, insure domestic Tranquility, provide for the common defence, (and) promote the general Welfare.”
Texas politicians love to sprinkle their orations with words like liberty and freedom but even they must concede that all societies establish formal and informal rules governing individual behavior and virtually all interfere to some degree with someone’s freedom of action. No matter how extreme our libertarian bent, most of us accept the need for driving licenses and the restrictions one-way streets and stop signs impose. And however reluctantly we agree that the government can take our money even while profoundly disagreeing on how public money should be spent.
Most of us also accept that property rights are not absolute. Just because we own land doesn’t mean we can build a 30-story building or a slaughterhouse in an otherwise residential neighborhood.
Who should make the rules? Again I believe most of us prefer that decisions be made closest to those who will feel the impact of those decisions that is, by local government. More remote levels of government should defer to governance closer to the people except in rare circumstances.
Keeping this framework in mind, how did the tension between democracy and liberty play out in this year’s Texas legislative session?
Democracy came in a distant second.
It is often said that local government is where the rubber meets the road. It is at the local level that we ultimately must confront the issues of public safety and public health, poverty, and violence, homelessness and bigotry. Cities and counties may lack the capacity to resolve these issues, but they are our first responders in addressing them.
Among the most pressing problems confronting cities is the lack of affordable housing. Rents are rising while wages stagnate. In the 1930s the federal government stepped in to create long term, low interest fixed rate mortgages to enable private home ownership and federally financed local housing authorities to manage public housing.
By the 1960s public housing projects had come under attack for building high-rise ghettoes and concentrating and isolating the poor and people of color. The federal government responded by embracing a market-based strategy: the Housing Choice Voucher Program (HCVP), now the largest federal housing program serving 5 million people and 2 million families. In 2014, 66 percent of non-elderly, non-disabled households using vouchers were working or had worked recently.
Individuals who receive vouchers can choose to live in any housing provided the rent does not exceed certain levels. The renter pays 30% to 40% of his or her household income to the landlord while the local public housing authority, utilizing the vouchers, pays the difference between the tenant’s portion and the market rent.
Vouchers sharply reduce homelessness and offer families an opportunity to move to safer, less poor and more diverse neighborhoods. “These effects, in turn, are closely linked to educational, developmental, and health benefits that can improve children’s long-term prospects and reduce costs in other public programs,” the Center on Budget and Policy Priorities notes.
But the voucher program suffers from a basic flaw. Landlords do not have to accept them. Many do not. “Having a voucher is on par with having an eviction or having a felony. You get the same number of ‘no’s,’” says Abby Tatkow, a landlord outreach specialist with Caritas of Austin. Recipients can wait for years to gain access. And if they cannot find housing they eventually lose their vouchers.
The demand is large and growing. A third of all households in the Austin area have incomes low enough to qualify for vouchers but only 3 percent receive one. But the supply is small and shrinking. A 2012 survey by the Austin Tenants Council found that owners of only 12 percent of eligible units would accept vouchers.
In the past Austin restricted a landlord’s liberty (read property rights) by expanding classes protected under its Housing Discrimination Ordinance: student status, marital status, sexual orientation, gender identity, and age.
In December 2014, after two years of intensive and extensive debate the city council unanimously added another protected class: “Source of Income”.
Previous expansions did not spur state intervention. The addition of source of income did. The legislature quickly overturned Austin’s ordinance and banned any other city from adopting one.
Why did the legislature intervene? Some view the move as racially motivated since people of color hold about 90 percent of Austin’s vouchers. Bill sponsor Sen. Charles Perry argues the issue had only to do with securing liberty and protecting against the overreach of democracy. “I don’t think that local control gives a city the right to override property rights...,” he maintained. Nevertheless the legislature explicitly allowed cities to override landlords’ property rights by allowing them to prohibit landlords from refusing to lease or rent to a “military veteran” using federal housing vouchers.
While Austin was tackling the lack of affordable housing, the fast growing city of Denton was trying to protect its population from rapidly encroaching gas and oil drilling. “The Barnett Shale is what’s known as a “tight” reservoir, meaning it requires more intense fracking to extract hard-to-get gas, and major portions of the field are in urban areas, with Denton at its core,” Newsweek reports,
Citizens tried to work out a compromise with oil and gas companies. Adam Briggle vice president of the Drilling Awareness Group told Newsweek. “We’re Texans—we are obviously used to drilling and seeing rigs around town.” Over a dozen wells operate within city limits.
In January 2013, Denton passed setback rules to keep fracking away from residential homes. The oil and gas companies ignored the rules. By September, they had begun fracking less than 200 feet from homes.
Briggle recalls. “The realization was that you can either have fracking or you can have a healthy city, but you can’t have both.”
Citizens gathered enough signatures to force a vote by the City Council. When the Council rejected a ban the citizens forced it onto the ballot. In November 2014 60 percent voted in favor even though the oil and gas industry outspent those in favor by 15-1.
The legislature quickly passed a law stripping cities and towns of the authority to enact drilling ordinances unless the industry deems them “commercially reasonable.”
At a capitol signing ceremony Gov. Greg Abbott explained why he found the new law “incredibly important”: its “profound job of protecting private property rights.”
In Texas liberty trumps the desire of a community to protect its residents health or to tackle discrimination in housing. As James Quintero of the conservative think tank Texas Public Policy Foundation (TPPF) observes, “What we’re arguing is that liberty, not local control, is the overriding principle that state and local policy makers should be using.”
In a speech to the TPPF Governor Abbott decried the epidemic of local sovereignty, “Large cities that represent about 75 percent of the population in this state are doing this to us.” Some might wonder whether 75 percent of the population might constitute “us”.
And then there is the issue of guns, the ownership of which is synonymous with liberty in Texas. Again the Justices made their sentiments clear, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”
Before the start of this session the Texas legislature had passed laws allowing concealed weapons on college campuses, but not in classrooms, dorms and other inside spaces. In 2015 legislators were determined to lift that prohibition.
Thirteen Texas student body presidents elected to represent over 300,000 students wrote the Governor pleading with him not to sign the bill. The executive director of the Texas Association of College Teachers insisted an “overwhelming majority” of his members opposed allowing guns in classrooms. University administrators responsible for the safety of their students were just as adamantly opposed.
The legislature ignored the voices of the students, the faculty and the administration of state universities. The only debate involved whether to treat public and private universities differently. Ultimately the legislature decided it should. Private universities can opt out. Public universities cannot. State schools can ban guns on designated parts of campuses but chief sponsor Sen. Brian Birdwell warned these must be “very limited, reasonable prohibitions”.
Why the distinction between private and public colleges? As Birdwell maintained, "I am duty-bound to protect Second Amendment rights parallel to private property rights. We must protect most private property rights equally, and not protect one or the other.”
Businesses can ban guns, but the state makes it challenging for them to do so. They must post conspicuous signs at all entrances. Each sign must contain a 38-word message in both English and Spanish, in contrasting colors, with letters an inch in height. The Texas Association of Business asked the 2015 legislature for a break. On its behalf State Rep. Poncho Nevárez introduced a bill to allow businesses to post smaller signs by shortening the statutory language required to appear on each sign. “If you own a business and want to keep somebody out if they’ve got a gun, you should be able to do it simply,” The bill never made it out of committee.
Indeed stating in January Texas businesses must display two giant signs, one for the newly permissible open carry and another for concealed carry.
Adding insult to injury, this legislature drastically reduced the penalty for ignoring these signs from a $4,000 fine or up to a year in jail, or both, to a fine not to exceed $200 and no jail sentence. One gun advocate scarcely contained his delight; “This is especially helpful for concealed carriers who feel it necessary to break the law for their own protection.”
At a signing ceremony Governor Abbott justified the state’s repeated overturning of the local popular will, insisting “we are ensuring that people and officials at the local level are not going to be encroaching upon individual liberty or individual rights.”
However, in Texas one basic individual right does not appear to have primacy: the right to vote.
Texas may have the strictest voter registration rules in the country. Non-Texans are barred from registering voters; anyone registering voters must undergo training through the county; all voter registration applications must be personally delivered, rather than mailed.
One might cynically note that voter registration barriers disproportionately affect the poor, minorities, and young people, all those groups that tend to vote Democratic. Some 2 million Texas Hispanics are unregistered and just 39% of eligible Hispanics in the state voted in 2012.
Texas twice sued the federal government for interfering with its right to require a voter photo ID even though it could offer only two proven cases of in-person fraud that would have been prevented by an ID requirement since 2000.
In May the group Battleground announced it might sue Texas under the National Voter Registration Act (NVRA), a law requiring states to use their Departments of Motor Vehicles and other government agencies to facilitate voter registration. Battleground found over 4,600 complaints from would-be voters about the lack of such assistance and concluded, “voter registration failures are widespread and systematically undermining the right to vote in Texas”.
Prior to 2015 the Texas voter law allowed “a form of identification containing a photograph that establishes a person’s identity (such as an employee identification card).” That included student IDs.
This year the legislature de-listed student IDs but added a new form of ID that would gladly be accepted: a handgun license.