To understand why the Texas Constitution of 1876 trusts nobody, read the seven years before it

A man in the second row asked me, after a talk, why the Texas Constitution reads the way it does. He meant the length, the biennial legislature, the two year term for a governor, the elected judges, the salaries fixed in the text, the sense throughout of a document that expects to be abused. I gave him an answer about the Grange and agrarian suspicion of government, which is the answer in the textbooks, and I was dissatisfied with it before I had finished the sentence. It described the delegates. It did not describe what they were afraid of.

The better answer is that the 1876 constitution is a reaction, and that to read it you have to read the document it was reacting to and the seven years lived under that document. Richard Coke was governor when the convention met, and the convention was, in a sense, the completion of the election that put him there. So this was not a side question for me. It was the center of the years I was writing about, and it turned into a research problem of a kind I want to describe, because the problem is more general than Texas.

The sources disagree about what the memory was

The constitution of 1869 had concentrated power. A four year term for the governor. Judges appointed rather than elected. A legislature that met annually. A state police force, created under it, answering to the governor. Registration of voters under officials the governor named. By the time Coke took office in January 1874 a large majority of the white electorate regarded that arrangement as an occupation, and the convention that met in the autumn of 1875 set about dismantling it clause by clause. Where the old document had allowed, the new one forbade. Where the old one had appointed, the new one elected. Where the old one had been silent about money, the new one put a ceiling in the text.

That much is agreed. What the sources disagree about is why. I had three kinds of source in front of me and they told three different stories.

The journal of the convention records what was moved, amended and voted. It is precise and it is nearly silent about motive. A delegate moves to strike a clause; the motion carries; the journal moves on. The debates, where they were reported, appeared in newspapers, and the newspapers of 1875 in Texas were parties to the argument. A Democratic paper reported the convention as a restoration of honest government. The few papers on the other side reported it as a return of the men who had lost the war. Read either one alone and the memory the delegates were writing against is whatever that editor said it was.

The third kind of source is the memoir, written decades later by men who had been there, and those are the most vivid and the least reliable. By the 1890s a delegate remembered the convention as a struggle against tyranny, or against extravagance, or against the railroads, depending on what he had spent the intervening years fighting. The memory being described had been overwritten by the memory of the memory.

The judgment call, and where it breaks

The method I settled on was to trust the journal for what happened and to use the newspapers and the memoirs only to explain a vote the journal could not account for on its own. If a clause was struck and both sides of the press gave the same reason, I took the reason. If they gave different reasons, I wrote down both and said so. If only a memoir explained it, I treated the explanation as a claim rather than a fact and said that too. This is slower than picking the account you like, and it produces a duller book, and I would defend every page of it.

The claim I will make that some historians will argue with is this. Whatever its later admirers have said about limited government in the abstract, and whatever the textbooks say about farmers, the 1876 constitution is mainly a document about a specific set of officials, most of them with names the delegates knew, and about specific things those officials had done with appointed judges, a standing police force and control over who could vote. The delegates wrote a constitution that made those specific things impossible, and the abstract principle came afterward, as the way the document was explained to people who had not lived through the seven years. You can see it in the journal. The clauses that drew the sharpest fights were not the ones about taxation. They were the ones about the judiciary and the ballot.

That reading has a cost, and I want to be honest about what it is. If the constitution was written against a memory, then a great deal of what it prevents was prevented for reasons that stopped applying within a generation, and the state has lived for a century and a half under restrictions designed for men who died in the 1890s. A reader who admires the document as a monument to limited government will not like that conclusion, and a reader who dislikes the document will like it too much. I do not think either of them is my business. My business was to say what the delegates were doing, and the record says they were closing doors they had personally watched being walked through.

Where the method breaks is that it cannot get inside the room. The journal tells me a clause was struck by a vote of so many to so many. The papers tell me two incompatible reasons. The memoirs tell me a third, thirty years late. I can rank those sources by reliability, and I have, and I can still not tell you what the man who moved to strike the clause believed as he stood up. The honest sentence in the book says that. No reader wants that sentence, and the record supports it.

That is where I would have liked to leave the man in the second row: with the seven years rather than with the Grange. What I still cannot give him is the mind of a delegate, and no amount of method will produce it. The document was written against a memory, and the memory went to the grave with the men who held it.