The Colorado Constitution establishes the basic framework of the state’s government. Written and ratified in 1876, it has served as the state’s original and only constitution. As in other states, ultimate power rests with the people and is exercised by their representatives in the executive, legislative, and judicial branches of state government. Colorado is distinct in reserving to its citizens the right to initiate laws, to hold referenda on laws enacted by the legislature, and to alter the Constitution, which has seen more than 150 amendments in its history.
Writing and Ratification
On December 20, 1875, thirty-nine delegates, representing every district in the Colorado Territory, gathered in Denver for a constitutional convention. For almost three months, they studied constitutions, both of the United States and of other states, and debated the issues. The delegates chose a “rights first” approach to their new constitution, declaring the rights of the citizens before specifying the structure of the government. Like the US Constitution, the Colorado Constitution divided the government into three branches—executive, legislative, and judicial—that would check and balance each other’s power. The delegates completed their task on March 14, 1876, with all members signing. The document they created—forty pages of ledger paper as originally handwritten—was, and remains, one of the longest state constitutions.
The Constitution was ratified by voters on July 1, 1876, by a vote of 15,443 to 4,062, and a copy was sent to Washington, DC. A month later, on August 1, 1876, President Ulysses S. Grant proclaimed that Colorado was accepted into the Union as the thirty-eighth state.
Inclusion and Suffrage
In framing a constitution for Colorado, the first problem the delegates confronted was the diversity of its people. Shifting international and internal boundaries meant that people who had been living on the northern frontier of Mexico, Texas, or New Mexico Territory suddenly found themselves in Colorado after the territory’s borders were defined in 1861.
In the 1870s, nearly one-fifth of the state’s population was Spanish speaking. Territorial legislator Casimiro Barela, a delegate from southern Colorado, believed that his constituents would take another generation to acculturate, so he extracted a pledge from the convention that the Constitution and the statutes would be available in Spanish until 1900. German immigrants made up the largest segment of the new state’s foreign-born population, so the Constitution ended up being printed in German as well. The Constitution also promised that “aliens, who are or who may hereafter become bona fide residents of this State,” would enjoy the same property rights “as native born citizens.”
The Colorado Constitution gave the right to vote to all men over the age of twenty-one. In addition, the Constitution took a stand against racial discrimination, guaranteeing a free education for all. Women were given the right to vote only on questions pertaining to schools. At the urging of delegates Henry Bromwell of Denver and Agapito Vigil of Huerfano and Las Animas Counties, the Constitution provided for a referendum on women’s suffrage the following year and at any time thereafter. That first vote, in 1877, failed, and women in Colorado were not granted full suffrage until a referendum in 1893.
Water Rights and Conservation
Water rights have been a perennial issue in Colorado. As the constitutional convention sat down to its work at the end of 1875, it had in mind a clear recent example that shaped its approach to water law. Just two years earlier, a dispute had erupted between two communities. The Union Colony (now Greeley) had built two ditches to access water from the Cache la Poudre River. But their water flow dried up in 1874, when colonists in Camp Collins (now Fort Collins) built their own ditch, which diverted the entire flow of the river to their community. The question facing the convention’s delegates was whether upstream newcomers could intercept water that downstream residents already relied on. The delegates enshrined in the Constitution the concept of prior appropriation, or “first rights,” which prioritized older, more senior rights over more recent rights. In addition, the Constitution, relying on the 1861 act that had established the territory of Colorado, granted right-of-way across both public and private lands to build ditches and flumes.
Conservation was also important to the framers of Colorado’s Constitution, and they made their document the first state constitution to mention forests. The general assembly was instructed to “enact laws in order to prevent the destruction of, and to keep in good preservation, the forests upon the lands of the state.”
Direct Democracy
Colorado is one of only twenty states that still has its original constitution. However, since 1876, the Constitution has been amended more than 150 times. Initially, Article XIX specified two ways of amending the Constitution: a constitutional convention or a legislatively referred constitutional amendment, whereby an amendment is referred to the ballot for a vote of the people. Both methods of amending the Constitution—the constitutional convention and the legislatively referred amendments—had to begin with elected representatives.
The constitutional amendment process changed in the Progressive Era of the early 1900s, when reformers such as Persifor M. Cooke, president of the Colorado Direct Legislation League, pushed to make the political system in Colorado more democratic. In 1910 a special legislative session referred a new amendment to the ballot, and voters approved, giving citizens two new powers: the referendum and the initiative. The referendum allowed citizens a direct say on legislation passed by the General Assembly through a process of gathering signatures on a petition to place the legislation on the ballot for voters to approve or reject.
The second and more significant new power, the initiative, allowed citizens to petition to place measures on the ballot that would enact either new statutes or constitutional amendments. Citizen-initiated statutes, like other laws, could later be changed by the General Assembly in the normal course of legislation. But citizen-initiated constitutional amendments could be changed only by another amendment. In 1912, the first year the initiative option was available, there were thirty-two ballot initiatives. The use of the ballot initiative to amend the state’s Constitution peaked in that decade and was used only sporadically for the next sixty years.
1976 Winter Olympics
Sixty years later, in the 1970s and 1980s, Colorado’s citizens began to use the Constitution to fight over social issues. The first modern ballot initiative involved taxation and the environment. In 1970, after years of work by the Chamber of Commerce, Denver was awarded the 1976 Winter Olympics, in a nod to both the 200th anniversary of the United States and the 100th anniversary of the state of Colorado. But Colorado’s citizens did not feel involved in the decision to bring the Olympics to the state. This, combined with concerns about environmental and economic costs, led to a successful 1972 ballot initiative known as the Colorado Winter Olympic Games Funding and Tax Amendment, which prohibited the state from levying taxes or appropriating or loaning funds for the 1976 Olympics. With a major funding source unavailable, Denver had to give up the games, which were instead held in Innsbruck, Austria. No other city has ever rejected the Olympics after being awarded them.
Recent Amendments
Starting in the late 1980s, Boulder, Denver, Aspen, and other cities in Colorado instituted antidiscrimination ordinances that protected citizens on the basis of sexual orientation in addition to race, sex, and disability. In response, religious-rights organizations, spearheaded by the Colorado Springs group Colorado for Family Values, successfully pushed a 1992 initiative, known as Amendment 2, that rescinded these protections and prohibited the state of Colorado from creating laws to protect anyone on the basis of sexual orientation. The Supreme Court later declared Amendment 2 unconstitutional because it violated the Fourteenth Amendment’s equal protection clause.
The three recent amendments that have most affected the state legislature all deal with taxes and funding. The Gallagher Amendment, named for state legislator Dennis Gallagher and approved through legislative referral in 1982, was intended to keep a consistent ratio between the revenue from property taxes on residential and business properties. The effect over time has been a decline in revenues collected from property taxes. The Taxpayer Bill of Rights (TABOR), passed by ballot initiative in 1992, gave citizens the right to vote on taxes, provided limitations on the growth of government spending, and prohibited the state from engaging in multiyear transactions. Finally, Amendment 23, passed in 2000, mandated that the state annually increase K–12 per-pupil funding by the rate of inflation. Together, these three amendments often work at cross-purposes, creating a budgetary knot that constrains the legislature. Attempts to either strengthen or eliminate these provisions continue to be contentious.
Recently, the most socially and culturally significant constitutional amendments have involved cannabis (marijuana). In 2000 voters approved Amendment 20, which allowed the use of medical marijuana. Twelve years later, voters decided to allow recreational marijuana use under Amendment 64.
Future of the Constitution
Colorado’s Constitution provides ways for citizens to initiate both statutes and constitutional amendments. Since the initiative process was established in 1910, most ballot initiatives have been for constitutional amendments, which are difficult to change, rather than statutes, which are relatively easy to change. Especially in the late twentieth and early twenty-first centuries, the ease of amending Colorado’s constitution made it an attractive testing ground for both national movements and special interests. As different amendments piled up, one problem has been that there exists no easy mechanism to reconcile conflicting amendments.
To make the Colorado Constitution harder to amend, voters in 2016 approved Amendment 71, known as the “Raise the Bar” initiative. Previously, the requirements for citizen-initiated statutes and for citizen-initiated constitutional amendments had been the same. Amendment 71 changed that by raising the number of signatures required to get an initiated amendment onto the ballot from 5 percent of the number of people who voted for the Colorado secretary of state in the previous general election to 2 percent of registered voters in each of the state’s thirty-five Senate districts. The oil and gas industry underwrote the amendment campaign to ensure that new amendments could not rely solely on votes from Front Range population centers, which often vote for industry regulation.
Amendment 71 also made the amendment process harder by requiring new amendments to garner 55 percent of the vote in order to go into effect. In a 2018 ruling, US district judge William Martinez upheld that part of Amendment 71, but ruled that the requirement to get votes from each of the state’s Senate districts was unconstitutional. Amendment 71 continues to be litigated.
