The Volokh Conspiracy
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On July 4, 1876, the most exuberant celebrations of the centennial of American independence were held in Colorado. The people had just ratified a state constitution in a landslide; soon, President Grant would proclaim Colorado to be the 38th state. The constitution of "the Centennial State" was deeply rooted in the Declaration of Independence. The principles of government announced in the Declaration were elaborated in the Colorado Constitution, whose text still provides insight into the eternal truths of 1776.
This article is based in part on my recent law review article The Right to Arms in Nineteenth Century Colorado, 95 Denver University Law Review 329 (2018).
Rights Come First
The 1876 Colorado Constitutioal Convention had looked carefully at the constitutions of other states. Missouri's new 1875 constitution was closely studied, and it provided a model for several provisions, including the right to arms. When Missouri's original 1820 constitution was written, Missouri was entering the Union as a slave state. Perhaps not surprisingly, the Bill of Rights was the last article in the constitution. But when Missouri adopted a new constitution in 1875, rights came first: "Clearly, limiting government had taken precedence over establishing political institutions and distributing political power to those institutions." (Ronald Brecke & Greg Plumb, Missouri Constitutionalism: Meandering Toward Progress, 1820–2004, in The Constitutionalism of American States 205 (George E. Connor & Christopher W. Hammons eds., 2008)). Similarly, when Ohio replaced its 1802 constitution in 1851, the Bill of Rights was moved to the beginning of the document. "[B]efitting the Jacksonian model, the bill of rights precedes both the letter and the spirit of the parts of the constitution granting power to the different branches. (James J. Walker, The Ohio Constitution: Normatively and Empirically Distinctive, in The Constitutionalism of American States, at 455).
The rights-first approach is more consistent with the theory of government envisioned in the Declaration of Independence. As paragraph two of the Declaration explains, all people have inherent rights, "endowed by their Creator." The purpose of government is to protect those rights. "First come rights and then comes government," as Randy Barnett summarizes. (Our Republican Constitution: Securing the Liberty and Sovereignty of We the People 63 (2016)).
Colorado agreed. As in the 1875 Missouri Constitution, Colorado's article I defines the boundaries of the state. Then article II declares the Bill of Rights. Before specifying any structure for government, Colorado and Missouri gave priority to the inherent rights of the people.
Unlike the federal Bill of Rights, the Colorado Bill of Rights does not begin by enumerating specific limits on government action. Instead, the Bill of Rights first declares the principles of government. These are meant to inform the understanding of everything that follows—namely the enumerated rights (the rest of Article II), and then the structure and operation of the government (Articles III to XIX).
Rights and Duties
The Bill of Rights is the only article of the Colorado Constitution with a preamble, which begins: "In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare . . . ."
Rights and duties are closely linked. The right to a jury trial cannot exist if citizens fail to perform their duty of jury service. A good citizen has the duty to pay taxes. At the same time, citizens have the right not to be taxed in violation of the constitutional rules for taxation. The American Revolution began in part because Americans asserted their right not to be taxed without their consent; the Colorado Constitution provides the system for obtaining consent for taxation.
A governmental system that was all duties and no rights would have no liberty, and would be the antithesis of a legitimate government. A governmental system that was all rights and no duties would soon collapse, thus endangering the rights that every legitimate government is created to defend.
The Sovereign Right to Alter the Government
After the preamble, article II, section 1 states: "All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole."
The people, not the government, possess the sovereignty. The government is the delegated agent of the sovereign people. This has been the bedrock principle of American government since 1776. It is very different from the views in some other nations, where the government is considered to possess the ultimate sovereignty.
Section 2 of the Bill of Rights affirms the sovereign people's right to alter or abolish the government: "The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided, such change be not repugnant to the constitution of the United States."
This is the universal human right asserted by paragraph two of the U.S. Declaration of Independence in 1776 and by the Texan Declaration of Independence of 1836. Section 2 rejects the notion that government is prior to the people or that the government receives its authority from God. Instead, government exists only by the choice of the people, as their agent to carry out certain functions that they choose, and in the manner they, as sovereigns, specify.
The principle of the power to alter government is expressed in many other state constitutions. Colorado's language is similar to the 1875 Missouri Constitution. The Missouri and Colorado wording is distinctive because it provides guidance about what an entirely new government would be: the new government must be "not repugnant to the constitution of the United States." This means that the new state government could not do things that the U.S. Constitution forbids states to do, such as coin money, enact ex post facto laws, or grant titles of nobility.
Most fundamentally, the U.S. Constitution requires that all states have a "Republican Form of Government." Thus, Colorado's section 2 affirms that any new Colorado government would be republican in nature. The 1890 Mississippi Constitution and the 1907 Oklahoma Constitution would contain similar language. With different language, the Texas Constitution of 1873 also affirmed that any new government would be republican.
Contrast Colorado's section 2 with the "No Alteration Oath" that had been required under the despotic Stuart kings in 17th-century Great Britain. The swearer had to abjure "taking arms" against the king's government and swore "that I will not at any time endeavour any alteration of the government either in church or state." Similarly, the mandatory "Non-Resistance Oath" stated, "I A.B. do declare and believe that it is not lawful upon any pretence whatsoever to take arms against the king . . . ." The American Founders were familiar with the Church of England's teaching that people must always submit to government, and that active resistance (such as armed revolution) was immoral, and so was passive resistance (nonviolent disobedience, such as practiced by Quakers). Obviously the Americans did not agree.
The Sole and Exclusive Right of Governing Themselves
While affirmations of the right to alter the government are common, the Colorado Constitution makes a unique declaration: "The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state . . . ." Three states have similar language, but there are important differences. The Mississippi, Missouri, and North Carolina constitutions assert the sole and exclusive right "to regulate the internal government and police thereof." In contrast, the Colorado right of self-governance is not limited to certain things. The Colorado right is the full right "of governing themselves." Further, Colorado's Sole and Exclusive Clause goes beyond the clause in other states: Colorado is a "free, sovereign and independent state."
The "sole and exclusive" language was not meant hyper-literally. Colorado certainly recognized that laws of the United States would govern Coloradans in part. Sovereignty in Colorado was necessarily mixed. Under the U.S. constitutional system, the federal and state government are each delegated portions of the sovereignty possessed by the people. Coloradans never understood the Sole and Exclusive Clause to mean that they could send or receive ambassadors, issue patents, or perform other sovereign functions of the federal government. At the same time, they adopted a uniquely strong Sole and Exclusive Clause, a powerful affirmation of States' Rights.
Coloradans had long exercised their rights to govern themselves, starting with the ad hoc governments they created during the gold rush that began in 1858. At the time, Colorado was nominally part of the Territories of Kansas, Nebraska, New Mexico, and Utah, and on the far peripherary of all of them. None of these territorial governments had the capacity to provide governance in Colorado, and only Kansas made even a minimal effort. With no legal authorization from anyone but themselves, Coloradans adopted their own governments: miner's districts, claims clubs, town companies, people's courts, judicial districts, and even a provisional legislature and governor. Later, after Congress created the Colorado Territory in 1861, the decisions of these ad hoc governments were ratified by the U.S. Congress, the territorial legislature, and the territorial supreme court. The federal territorial government that was created in 1861 was often feeble and frequently corrupt. Besides that, the federal government was busy fighting the Civil War in 1861-65. When a coalition of Cheyenne, Arapahoe, and Sioux Indians launched a war in 1864 and cut the supply trails to "the States," the new settlements in Colorado came close to starvation and elimination. Coloradans continued to have to rely on themselves for survival.
The principle of the Sole and Exclusive Clause thrives in 21st century Colorado. Defying federal statutes based on an overbroad interpretation of congressional power "[t]o regulate Commerce . . . among the several States," Colorado has created a strictly regulated system for the lawful cultivation and retail sale of medical and recreational marijuana. Colorado's statutes aim to ensure that Colorado marijuana commerce will be only intrastate. In the spirit of the Sole and Exclusive Clause, Colorado's marijuana regulations govern something that in 1876 (and 1776) was considered a state matter, far beyond Congress's enumerated powers.
When the voters of Colorado adopted constitutional amendments for the regulated sale of medical marijuana (2000) and adult use (2012), they in essence ordered state government officials to conspire to violate of the federal Controlled Substances Act. Given total quantities involved in this "conspiracy" (tons of marijuana, and many millions of dollars), the Colorado government officials are, arguably, committing federal felonies that qualify them as drug "kingpins," subject to very severe mandatory sentences.
Yet consistent with the sole and exclusive right of Coloradans to govern themselves, state executive branch officials and the Colorado General Assembly have obeyed the Colorado Constitution, and created a carefully controlled, highly taxed, government-supervised system for the production and retail sale of marijuana. As in gold rush days, Coloradans presented the federal government with a fait accompli, and the federal government acquisced. "Sole and exclusive" indeed.
The final part of the Colorado Constitution's trilogy of bedrock principles is section 3 of the Bill of Rights: "All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness."
Colorado's article II, section 3, is based on a provision that appeared in the 1780 Massachusetts Constitution. That constitution begins with what became the classic American formulation of the nature of government, copied by many later state constitutions: "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness."
Colorado is one of thirty-five states whose constitutions expressly affirm that human rights are inherent, natural, or otherwise not the mere creation of positive law. Often, the affirmations of inherent rights include the enumeration of self-defense.
The principles in sections 1 through 3 are the foundation of government in Colorado. They are prior to everything except the boundaries of the state.
Colorado's 1876 principles are the same principles by which the Declaration of Independence turned the 13 American colonies into the United States of America. Before and after 1876, these principles have been affirmed and elaborated in American state constitutions. Admittedly, Colorado's Sole and Exclusive Clause is unique–perhaps because in Colorado, States' Rights had never been used a pretext for slavery, seccession, or a racial caste system. To the contrary, Colorado's 1876 Constitution outlawed racial segregation in public schools. The practical experience of self-governance on the peripherary helped Coloradans confidently proclaim States' Rights principles as strong as those that had been the norm in 1776.
Many things have changed in 242 years of American independence. Human nature is not one of them, nor are natural rights. For self-government and the blessings of ordered liberty, the best principles are those of 1776. So recognized the people of Colorado in 1876. Our sweet land of liberty will endure as long as–and only as long as–those principles live in the hearts and minds of the American people.