The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
August first is Colorado Day–the day that Colorado became the 38th State. Colorado's path to statehood is the story how a radically free and independent people have exercised their sovereign right of self-government.
This post is based on my article The Right to Arms in Nineteenth Century Colorado, 95 Denver University Law Review 329 (2018); citations and footnotes are therein.
The 1858 discovery of gold in Colorado started a gold rush to "Pike's Peak country" that Fall. In the Spring of 1859, a torrent of settlers began pouring in from the east. At the time, the land that would become the State of Colorado was part of four territories: Kansas (whose capital was Topeka), Utah (Salt Lake City), New Mexico (Santa Fe), and Nebraska (Omaha). The major area of settlement in Colorado was within the Territory of Kansas, near or in the Front Range of the Rocky Mountain. The territorial legislature of Kansas in 1855 had created Arapahoe County, and in 1859 divided Colorado into five counties. But the territorial government of Kansas had little influence in Colorado. It was busy with a civil war in eastern Kansas between pro?slavery and anti?slavery forces. There was a Kansas judge for Colorado, but he never went to Colorado. None of the territorial governments could do much to assist remote Colorado. The settlers were on their own.
Moreover, Colorado and the rest of western Kansas were still Indian country by treaty, so Kansas lacked authority even to attempt to organize county governments there. Nevertheless, after the reports of the 1858 gold discovery, Kansas Governor James W. Denver commissioned several men to set up a county government; they included Arapahoe County Sheriff Edward W. Wynkoop and Treasurer John Larimer. In November 1858, Larimer and others organized the Denver Town Company. Separately, Arapahoe County officers were elected in March 1859. (Denver was part of Arapahoe County until the adoption of the home rule constitutional amendment in 1902.) The newly elected county officers did not wait for consent or orders from Kansas before taking office.
Whatever role Kansas had in the government of the Colorado ended on January 29, 1861, when Kansas was admitted to the Union, with its present western boundary, the 102nd degree of western longitude.
The first governments were created by the people themselves. The Ute Indians had controlled the mountains and western Colorado for centuries. On the eastern plains, the Cheyenne and Araraphoe Indians had arrived approximately around 1800, and pushed the Kiowa and Commanche south, below the Arkansas River. As a practical matter, sovereignty in most of Colorado belonged to whoever could hold territory by force; as of 1859, that continued to be the Indians in most places.
As for the places newly occupied by arrivals from "the States," sovereignty and self-government were also local. Plenty of immigrants had experience with the California gold rush in the previous decade, and they aimed to avoid the anarchic conditions of the early California gold rush. So there were "miner's districts" in the mining regions, "claims clubs" in farming areas, and "town companies" in Denver and elsewhere. These voluntary associations recorded and certified property ownership, provided courts for settling disputes, and organized vigilance committees for law enforcement. Some towns elected their own legislatures. They created "people's courts" for criminal prosecutions. The decisions of the miner's districts were later ratified in the first session of the territorial legislature. They were also approved by the Colorado Territorial Supreme Court. By accepting and integrating the decisions of the ad hoc miners' courts and other early bodies, the developing territorial courts provided continuity of law.
Strictly speaking, the entire settlement of Colorado had been of questionable legality; whatever lands were ceded by Indian treaties belonged to the federal government, which had never enacted any law for transfer of title to settlers. Congress would recognize the fait accompli in 1864 and give clear title to all Colorado settlers.
In January 1859, U.S. Representative Alexander Stephens (D?Ga.) introduced a bill into the thirty-fifth Congress to create the Territory of Jefferson, which would comprise much of modern Colorado plus a great deal of land to the north. Stephens (who would later become Vice President of the Confederate States of America) had been a leading advocate of bringing Kansas into the Union as a slave state, so anti?slavery representatives were wary, and the bill was not enacted.
In response to the request of mass conventions in Denver and Auraria on September 24, 1859, a convention of eighty?eight delegates assembled in Denver on October 10, 1859, to draft a constitution for a provisional government for the "Territory of Jefferson." The territorial constitution was adopted by popular vote and officers elected on October 24. The convention had been presented with a written protest that there was no legal authority to separate from Kansas, and that doing so "will abrogate all legal rights, and throw the country upon the results of a gigantic Vigilance Committee." The convention and the people did not agree. When Kansas Territorial Governor Samuel Medrey found out about what Coloradans had done, he sent them an order instructing them to elect county officers under the laws of Kansas. "This order being disapproved, it was wholly ignored." (1 Frank Hall, History of the State of Colorado 210 (1889). (Hall served as Territorial Secretary during part of the territorial period, and his four-volume history of Colorado is the single best original source on the politics of early Colorado.)
Not putting all their eggs into the provisional basket, the citizens of Arapahoe County elected Richard Sopris as their delegate to the Kansas legislature on December 9, 1859.
Provisional Governor Robert Steele addressed the opening of the Jefferson legislature on November 7, 1859. He explained that the people had been denied protection of life and property; being sovereign, they had taken measures for their security.
The provisional legislature created the first legal code for Colorado. The Jefferson legislature also organized a territorial militia, comprising the Jefferson Rangers (from Auraria) and the Denver Guards.
Jefferson Territory claimed to comprise not only what would later become Colorado, but also the Nebraska panhandle, southern Wyoming, and some of eastern Utah. With no legal authorization–except from the self?governing people of Colorado–Jefferson Territory elected a territorial delegate to Congress. The provisional government did some good, and certainly does not seem to have caused a decline in law and order.
However, the provisional government was mostly disregarded outside of Denver, and even in the city "it was powerless to enforce its decrees. The chief reliance of the citizens lay in the Committee of Safety." (J.E. Wharton, History of the City of Denver: From Its Earliest Settlement to the Present Time , in Richard A. Ronzio, Silver Images of Colorado: Denver and the 1866 Business Directory 20 (1986).)
The Jefferson legislature granted Denver City a municipal charter, and the city's officers were elected on December 19, 1859. But the officers were desultory about setting up a functioning government, so in September 1860, a series of public meetings adopted a proposed structure of government for Denver; it was submitted to the voters in October 1860, and overwhelmingly adopted. In that same election, city officers were chosen.
As of 1860, Denver had five competing court systems. Forum shopping was common. Meanwhile, "the mountain counties stood by their Miner's courts, and as much of the Provisional Government as suited them." (W.B. Vickers, "Territorial Organization," in Legislative, Historical and Biographical Compendium of Colorado 144, 145 (Denver, C.F. Coleman's Publ'g House 1887).) Other Coloradans created judicial districts for what they called "Idaho Territory." In short, there were multiple governments in Colorado with alleged jurisdiction, and in fact the people of Colorado entirely governed themselves:
Side by side sat the Idaho "central judicial" officers, the provisional government of Jefferson, the Kansas county officials, the Denver people's government, scores of miners' courts, and local governments and vigilante committees. Never had frontier democracy blossomed so vigorously. With popular sovereignty in the saddle, the northern part of Bent's old empire was already a far cry from the tradition?bound and caste?conscious territory of New Mexico. A new kind of democratic, middle?class, commercial?minded frontier had arrived on the borders of the Spanish Southwest.
Howard Roberts Lamar, The Far Southwest 1846–1912: A Territorial History 187-88 (rev. ed. 2000).
Colorado was the periphery of the periphery. Very soon, Coloradans began to see themselves as distinct. As Territorial Secretary Frank Hall later wrote, they were "a free and radically independent people." (1 Hall at 369.)
Bills to create a Colorado Territory were introduced in both houses of the thirty-sixth Congress in January 1860. On February 2, 1861, the full Senate took up the bill. The Senate changed the name from "Idaho" to "Colorado," and transferred the northernmost part of New Mexico to the Colorado Territory. In a compromise, the Organic Act said nothing about slavery. (South-central Colorado had a slave trade in which the Ute Indians sold to New Mexicans captured Indians from other tribes.) The House ratified the Senate bill. It became law with President Buchanan's signature on the last day of the same month.
President Lincoln was inaugurated on March 4, 1861. He appointed William Gilpin the territorial governor, and Gilpin arrived in May. Gilpin was already familiar with Colorado, having been part of John C. Frémont's second expedition. He loved Colorado and believed the future of civilization lay in the great lands from the Mississippi Valley to the Rocky Mountains.
In 1861, the settlers voted on whether to seek statehood. The vote was 2,007 for territory and 1,649 for statehood. Nebraska in 1860 had also voted to be a territory and not a state, reflecting popular desire to constrain the cost of government. Another Colorado vote in 1864 had the same result. In Nebraska and Colorado, territorial government might not be ideal, but the federal government would bear the expense; this was considered acceptable until territorial government became unbearably corrupt during the Grant Administration.
The corruption problem became particularly manifest under Edward T. McCook, who was appointed by President Grant as Territorial Governor in 1869, removed in 1874, reappointed several months later, and removed for good in March 1875. His greatest energy was devoted to stealing the annuities that had been promised to Colorado Indians in various treaties.
Thus, Coloradans concluded that the cost of taxing themselves to pay for their own government would be preferable to be ruled by kleptocrats appointed in Washington. Colorado's push for statehood was caught up in the national politics of the time, with some congressmen reluctant to admit a new state that would certainly elect a pair of Republican Senators.
After an intricate struggle, Congress passed the Colorado Enabling Act on March 3, 1875, the final day of the congressional session. President Grant immediately signed it, having called for Colorado's admission in his December 1873 written message to Congress.
The Colorado Constitutional Convention convened on December 20, 1875, at the corner of 15th and Blake Streets in downtown Denver. They met in the Odd Fellows Hall, above the First National Bank. The Convention finished its work by unanimously adopting a proposed constitution on March 14, 1876.
The thirty-nine delegates were twenty-four Republicans and fifteen Democrats. At the time, southern Colorado was more Democratic and Catholic, while the north was more Republican and Protestant. The dividing line was the Palmer Divide, an east-west ridgeline north of Colorado Springs.
On most issues, partisan divisions were not important. Wilbur Fiske Stone–a Democrat, delegate, and future Colorado Supreme Court justice–recalled "there was no politics in it at all." As Stone put it, the "lines between Democrat and Republican were very lightly drawn in those days." E.T. Wells, a Republican delegate and a territorial judge, wrote that on "no occasion whatever" did "personal acrimony or partisan feeling" impede the Convention.
The fundamental problem for the Convention to solve was not a partisan one. Rather, it was the inherent tension in what the delegates wanted. They knew they did not want a "do nothing" government. To the contrary, their constitution ordered the creation of state institutions for higher education, for care for the insane, and for the blind, deaf, and mute. The delegates required the establishment of "a thorough and uniform system of free public schools," and that such schools not be racially segregated. The Framers created a commissioner of mines, and ordered the general assembly to enact laws prohibiting child labor in mines, and to enact laws for safe working conditions in the state's most important industry. The Convention wrote the first American constitution to mention forests, instructing the general assembly to "enact laws in order to prevent the destruction of, and to keep in good preservation, the forests upon the lands of the state." This was an early manifestation of the Colorado ethos of conservation. The conservation imperative may have resulted in part from knowledge of how the Indians (and, later, the whites) had overused the woodlands along the rivers of the plains.
The new constitution further provided that the general assembly "shall" enact "liberal homestead and exemption laws," "shall" pass arbitration laws, and "shall" enact laws against "spurious, poisonous or drugged spirituous liquors."
Yet while the Convention had a list of things it mandated the legislature to do, at the same time, the Convention profoundly distrusted the legislature. In the words of one scholar, "The delegates created a legislature and then, as though they regretted their work, they took most discretionary authority from it." (Donald Wayne Hensel, A History of the Colorado Constitution in the Nineteenth Century 133 (Aug. 9, 1957) (unpublished Ph.D. dissertation, University of Colorado). (Hensel's thesis is still the definitive source on early Colorado constitutional history.)
The 1875-76 Convention was meeting in "the post-Civil War era, when popular distrust of legislatures was at its height." (G. Alan Tarr, Understanding State Constitutions 199 (1998).) The early American state constitutions had been terse statements of principles, with only a broad outline for the structure of government–similar to the U.S. Constitution. At the federal level, the short constitution seemed to be working well enough, since Congress could only exercise the enumerated powers that it had been granted. At the state level, where legislatures could legislate on almost any topic, special legislation for the benefit of powerful interests–especially, railroads–had been rampant. Starting in the 1830s, the new state constitutions and new constitutions adopted in older states were much more aggressive about constraining legislative discretion.
The Colorado Constitution went especially far to hem in the government, with the longest state constitution up to that point in American history. As amended, the Colorado Constitution remains the one of the longest, reflective of Coloradans' inclination to instruct their government exactly what it should do and cannot do. Article V, creating the Colorado House of Representatives and Senate, is much longer than Article I of the U.S. Constitution, which creates the Congress. Article V contains many procedural restrictions on the legislative process. Among many examples, legislative sessions were limited to forty days, with no legislative sessions in even-numbered years. A variety of constitutional provisions outlawed taxing, spending, or borrowing on behalf of corporations or other private interests. Later, the first constraints on the legislature would be bolstered by amendments adopted by the people.
As one historian summarized, the Convention believed "that permitting too much freedom to govern was a far greater threat than possibly clogging the government's effectiveness in order to shield the people from their own rules. If the turnstiles blocked efficiency they also checked exploitation and rascality." (Hensel at 120.)
The people of the Colorado Territory adopted the Colorado Constitution on July 1, 1876: 15,443 in favor and 4,052 opposed. Voter turnout was low because opposition was almost nonexistent.
Colorado's Fourth of July celebrations in 1876 may have been the most exuberant in the nation. A large parade in Denver was led by the Colorado militia, with officers on white horses and the troops on black ones. Each of the thirty-eight states was honored with its own float. On August 1, 1876, President Ulysses Grant issued the proclamation making Colorado the thirty-eighth state.
Colorado calls itself "the Centennial State" since it achieved statehood in the 100th year of American independence. Except technically, President Grant's proclamation was signed nearly a month after July 4, 1876, and thus was in the 101st year of American independence. Yet Coloradans had written and ratified their constitution in the centennial year, which was good enough for them. Then, as now, the Colorado ethos is that Coloradans, and not the District of Columbia, are the deciders for Colorado.