A Brief History of Colorado’s Constitution

The Colorado Constitution was one of a handful of state constitutions ratified by Congress in the immediate years after the Civil War. A precursor to many state constitutions drafted or amended in the latter half of the 19th century, it created the constitutional conditions for Americans to engage more directly in democracy, harness and in some cases protect natural resources, and navigate the terms and limitations of political, civil, and human rights for diverse and dynamic populations. 

As the following will show, Colorado’s constitutional history demonstrates some of the transformative possibilities of a state constitution in achieving protections and guarantees for such goals as equality and equity beyond its federal counterpart. At the same, the Colorado Constitution symbolizes the ambivalence of those promises made at its founding, as the state’s charter came to be contested and applied differently over time.

The following is an edited excerpt from the Albany Law Review.

On February 28, 1861, Congress created the Territory of Colorado. At that time, Coloradans, like their national counterparts, were deeply divided along regional lines. In the rural southern expanses lived a Catholic, Spanish-speaking population, while Anglo migrants settled in the urban and increasingly industrial sectors in the northern half of the state. 

Ambivalence about the human rights concerns of its diverse citizenry became embedded in both the political construction and jurisprudential development of Colorado’s “Centennial” Constitution, accepted by voters on July 1, 1876. That ambivalence continued over the years as Coloradans adopted nearly half of the 360 amendments to their constitution submitted for their approval, and courts interpreted what it all meant.

The Colorado Constitution’s Article II contains the most explicit declarations of the basic equality guarantees held by the state’s citizenry. It is notable that the Equal Protection Clause of the 14th Amendment and the 15th Amendment to the federal Constitution do not have a counterpart in the state’s text. Nonetheless, Colorado’s original 1876 constitution provided for the freedom of elections, equality of justice, due process of law, prohibition of slavery, and guarantees for the property rights of aliens. In addition, the original constitution explicitly provided that the publication of laws be printed in Spanish and German and that the right of suffrage could be extended by the state legislature to women of lawful age.

However, efforts to embed civic equality for women pitted the rights of women against those of other minorities in the state. As early as 1866, William Byers, publisher and editor of the Rocky Mountain News, argued in an editorial that white women deserved the vote more than the nation’s recently emancipated African Americans. Racial tension extended beyond blacks and whites — during the 1876 constitutional convention, national suffragists blamed “the Mexican vote” for the failure of men to grant the franchise to women. Eventually, male Coloradans did extend the right to vote to women on November 7, 1893, and Colorado became the second state in the Union, after Wyoming, to allow gender-neutral suffrage.

Ambivalence about the Colorado Constitution’s promise of human rights and social equality continued over the next century. In 1972, for example, Colorado voters added an “equality of the sexes” provision to Article II of the state constitution. Almost identical to the unratified Equal Rights Amendment to the U.S. Constitution, the Colorado “equality of the sexes” amendment reinforced the state’s long-standing role in pioneering political rights and social equity for women. 

However, in 1974, anti-integrationists responded to the U.S. Supreme Court’s Keyes v. School District No. 1 desegregation decision by encouraging Colorado citizens to pass the Poundstone Amendment. This amendment greatly limited the ability of Denver to acquire land through annexation and thus end metropolitan educational segregation.

Another citizens’ initiative that same year amended the “religious test and race discrimination” in public education provision of the constitution to prohibit the busing of students to achieve racial balance. This newly amended clause undermined the ability of the state to achieve equality of educational opportunity in its public schools, instead making apparent the constitution’s importance in maintaining the color lines of the state’s multiracial populations.

And in a complete repudiation of the multilingual spirit embedded in the original 1876 constitution, a citizens’ initiative in 1988 added an English-only provision. Four years later, Colorado voters approved a constitutional amendment that prohibited local and state government from enacting laws designed to forbid sexual orientation discrimination. The constitutionality of this provision was ultimately decided in Romer v. Evans, where both the Colorado Supreme Court and the U.S. Supreme Court found that the amendment violated the U.S. Constitution’s Equal Protection Clause. 

In a very powerful sense, the political and legal fight surrounding Romer v. Evans reconnected the Colorado Constitution with its unique historical origins and original intent. First crafted in an era when the concept — if not the precise definition — of liberty and equality were ubiquitous in American culture and life, and with a congressional mandate to reject any attempt to embed within its structure the nation’s most obvious social inequities, the Colorado Constitution was drafted by a multiethnic collection of framers who felt the conflicting pressures surrounding the human rights demands of a diverse citizenry. These tensions remain today.                       

Tom Romero is an associate professor at the Sturm College of Law. This piece is an edited excerpt of his essay “Wringing Rights Out of the Mountains: Colorado’s Centennial Constitution and the Ambivalent Promise of Human Rights and Social Equality” in the Albany Law Review. 

Suggested Citation: Tom Romero, A Brief History of Colorado’s Constitution, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 10, 2023), https://statecourtreport.org/our-work/analysis-opinion/brief-history-colorados-constitution.