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St. Mary's Law Journal

First Page

765

Date Created

10-28-2021

Publisher

St. Mary's University School of Law

Editor

Melissa Fullmer

Last Page

836

Abstract

The pre-ratification text of the Texas Constitution appeared throughout the state in conflicting English-and foreign-language copies. Some commentators argue that it is impossible to know which copy the people ratified, or even that Texas does not have a constitution. These arguments create theoretical problems, because courts interpreting the constitution assume that it consists of fixed and determinable text. And the principle of popular sover­eignty precludes denying that the constitution exists. The conflicting copies also create practical problems. Are the legislature’s acts void for failing to include a Spanish-language enacting clause? May the state imprison citizens for debt, since the German copy omits that protection from the bill of rights? Must the state provide a school system that is rich and plentiful, as the Czech copy requires?

This Article solves these problems by showing that the parch­ment copy that the delegates to the constitutional convention signed and enrolled is the only instrument that governs the state today. First, that is the only copy the delegates framed. Second, every pre-ratification copy—including newspaper copies analyzed here for the first time—contained express textual evidence indicating that the framed constitution would control. Voters thus ratified the same constitution that the delegates framed. This solution rescues courts from treating multiple conflicting copies as equally authoritative. It also leaves room for courts to use the other copies to help determine the enrolled constitution’s original public meaning. Each citizen should—and now can—know exactly what the Texas Constitution is.

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