The New Mexico Constitution: Heavily Influenced By Its Land, Culture, and Peoples

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

New Mexico operates under its one and only constitution, ratified in 1911 and amended 182 times. The rights it contains are heavily influenced by the unique history of the lands, culture and peoples of what is now New Mexico, spanning from pre-colonization to Spanish colonization to Mexican rule to eventual statehood. Nods to those Spanish roots are significant, including extensive protections for the rights of Spanish-speakers. Some of those clauses even require a supermajority vote to amend them.

History

The Treaty of Guadalupe Hidalgo, ending the Mexican-American War, was signed in February 1848. Through the treaty, the United States gained more than half of Mexico’s territory, including the land that is now New Mexico. Built into the treaty were guarantees that the United States would respect Spanish and Mexican grants of land to individuals after the territory became part of the United States. In reality, those guarantees were never fully upheld and countless people were dispossessed of their lands after the treaty’s adoption. The treaty also guaranteed that the civil, political, and religious rights of the Spanish-speaking people in the lands ceded by Mexico would be respected. The promises made by the American government in the Treaty of Guadalupe Hidalgo were so fundamental that reference to the treaty was prominently placed toward the beginning of the state’s Bill of Rights: “The rights, privileges and immunities, civil, political and religious guaranteed to the people of New Mexico by the Treaty of Guadalupe Hidalgo shall be preserved inviolate.”

Congress established New Mexico as a territory in 1850 but it did not join the union as the 47th state until 1912. Five constitutional conventions were held within that 62-year period, resulting in four distinct draft constitutions. The last of the four was ultimately ratified and became effective when New Mexico achieved statehood.

Bill of Rights

The Bill of Rights of the U.S. Constitution and that of New Mexico’s Constitution differ in meaningful ways. Some of these differences do not stem from the actual language of the clauses but from New Mexico state courts’ interpretations of them. For example, while New Mexico’s search and seizure clause is similar to the Fourth Amendment, the New Mexico Supreme Court has held that New Mexico provides greater search and seizure protections than under the Fourth Amendment. The state’s courts have also held that protections under New Mexico’s cruel and unusual punishments clause are greater than those found in the Eighth Amendment, despite their similar language.

Certain provisions in the state’s constitution are explicitly broader than in the federal Constitution. For example, New Mexico’s freedom of speech and freedom of the press clause is substantially more expansive than the First Amendment. It reads: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” The New Mexico Court of Appeals has held that this provision affords broader protection to freedom of expression than does the First Amendment.

New Mexico’s Bill of Rights also includes strong protections with expansive language for freedom of religion, free and open elections, and the rights of hunters. It further contains an inherent rights clause, a portion of which protects the right to seek and obtain safety and happiness. However, while the New Mexico Supreme Court has held that the clause is a more expansive guarantee of obtaining safety than the guarantees afforded by the 14th Amendment’s Due Process Clause, the court has so far declined to establish it as an independent source of individual rights.

One of the most significant differences between the two constitutions is that New Mexico’s includes an Equal Rights Amendment (ERA). New Mexico’s ERA was ratified in 1973 and states that “equality of rights under law shall not be denied on account of the sex of any person.” While case law involving the amendment is sparse, the New Mexico Supreme Court established in 1999 that it indeed acts as a substantive right with teeth when it struck down restrictions on state Medicaid abortion coverage as a violation of New Mexico’s ERA. 

Unique Characteristics

The New Mexico Constitution protects the linguistic rights of its Spanish-speaking inhabitants perhaps more than any other state constitution. Given its centuries-long history of colonization by the Spanish and later its transformation into a Mexican province after Mexico won its independence from Spain, Spanish was the predominant language in the land that eventually became New Mexico. The constitution’s framers deemed it crucial to include strong protections for the vast number of Spanish speakers. Indeed, after the constitution went into effect, it required that, for 20 years, all laws passed by the legislature be published in English and Spanish.

The New Mexico Constitution states that the right “to vote, hold office or sit upon juries, shall never be restricted, abridged or impaired on account of . . . inability to speak, read or write the English or Spanish languages . . .” Juries continue to include non-English speakers who are entitled to free, certified interpreters for every step in the legal process, including jury selection and deliberations. These protections extend to speakers of any language, not just Spanish.

The constitution also protects the rights of Spanish-speaking students to attend public schools by including guarantees that children of Spanish descent “enjoy perfect equality with other children” and that they never be placed in separate schools. It further commands the state legislature to provide penalties for any violation of this section. The text also requires that colleges and universities in New Mexico include bilingual education training as part of the curriculum for prospective teachers and that bilingual education always be available to public school students. While the text of the constitution concentrates on English and Spanish, in practice, New Mexico’s bilingual education system encompasses myriad languages.

To further solidify these protections, the framers made it exceptionally difficult to amend these particular sections relating to Spanish-speakers, requiring at least three-fourths of the electors of the state to vote in favor of such amendments. Such requirements are extremely rare, if not unheard of in other state constitutions.

In addition to linguistic protections, the New Mexico Constitution contains unique cultural protections, including those for “acequias” — community managed water distribution systems that have their origins in Spanish legal principles that govern water usage and that continue to hold strong cultural significance for many people of Hispanic descent in rural New Mexico. While the term acequia is not explicitly mentioned in the text, the constitution recognized the already-existing water rights at the time of its adoption, which encompassed the existing acequias. The framers also included protections for adherents to Catholicism — the dominant religion in New Mexico then and now — for the use of sacramental wine, affirming that “the use of wines solely for sacramental purpose under church authority at any place within the state shall never be prohibited.”

Amendments

The New Mexico Constitution can be amended in two ways. The first is by legislative proposal, prompted either by the legislature itself or an independent commission established by the legislature, followed by voter approval. This requires separate majority votes of all members elected in both the House of Representatives and the Senate. If approved, the secretary of state must provide notice of the content and purpose of the proposed amendment to voters in English and Spanish. For Indigenous languages and other languages, the secretary of state must make “reasonable efforts” to provide notice. The language will then appear on the ballot in the next general or special election, where it requires a simple majority of voters to pass and become part of the constitution. That simple majority requirement does not apply to any amendment that seeks to restrict voting rights or the right to serve on a jury based on English proficiency or other discriminatory factors or, as mentioned, alter certain protections for Spanish-speaking public school students; those must pass by a three-fourths majority in both houses as well as by three-fourths of the voters.

The second way is via constitutional convention. The legislature can call a constitutional convention by a two-thirds majority vote in each house, and that proposal is then sent to the voters. If a simple majority of the people vote in favor, a constitutional convention will be called. New Mexico has had only one constitutional convention since ratification in 1912. The proposed constitution that emerged from the 1969 convention was narrowly defeated by the voters.

Governance

The New Mexico Constitution follows the same basic separation-of-powers structure as the federal government with legislative, executive and judicial branches. The bicameral legislature meets for 60 days during odd-numbered years and 30 days during even-numbered years. Currently, New Mexico is the only state in the country that does not pay its legislators a salary. However, in November 2026, New Mexicans will have an opportunity to vote on a constitutional amendment that will provide, for the first time in its history, an annual salary to legislators. The language for this proposed amendment was approved by the legislature during the 2026 legislative session.

The executive branch consists of a governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general, and commissioner of public lands, all of whom are elected statewide for terms of four years. These elected officials can only serve two consecutive terms but can run again after one full term has passed.

The judicial branch consists of a supreme court, a court of appeals, district courts, one metropolitan court, magistrate courts, and municipal courts. Justices and judges run in partisan elections and thereafter are subject to retention races. Judges in magistrate courts do not have to be attorneys unless the district in which they sit has a population over 200,000. Qualifications for municipal court judges are dictated by ordinance of the relevant municipality.

The New Mexico Civil Rights Act

Following the murders of George Floyd and Breonna Taylor in 2020 and the resulting public outcry, the New Mexico legislature in 2021 passed the New Mexico Civil Rights Act. The law provides an avenue for plaintiffs to seek redress against public bodies for violations of rights included in the state constitution’s Bill of Rights. The statute is arguably the strongest state civil rights act in the country, as it explicitly prohibits the use of qualified immunity as a defense and allows for parties asserting violations of rights to recover attorney’s fees, enabling access to representation to those who could not afford it. The civil rights law is a game changer for litigants in New Mexico and has opened the door to significantly expanding state constitutional protections.

Judicial interpretation

New Mexico’s history of interpreting state constitutional rights more expansively than their federal counterparts has played out in multiple state supreme court cases. In 1976, the New Mexico Supreme Court made clear in Serna v. Hodges that it — not the federal judiciary — is the ultimate arbiter of the laws of New Mexico, even when the state constitutional provision being interpreted is identical to the federal one.

Currently, New Mexico uses an “interstitial” approach to state constitutional interpretation. The approach entails first determining whether there is an analogous federal provision to the state provision. If no such provision exists, the interstitial approach does not apply and courts must interpret the provision on its own independent state grounds. If there is an analogous federal provision, New Mexico state courts can still diverge from federal precedent for any of the three following reasons: 1) a flawed federal analysis; 2) structural differences between the state and federal government; or 3) distinctive state characteristics that warrant departure from federal precedent. If any of these are present, a state court must do an independent analysis of the state constitutional provision and may hold that it provides broader protections than its federal counterpart. New Mexico courts have done just that under several state constitutional provisions.

There is a movement among advocates across the political spectrum to push state courts to engage in independent analysis of their state constitutions without deference to federal precedent. In New Mexico, that would entail abandoning the interstitial approach in favor of an approach that elevates an independent analysis of our state constitution. The New Mexico Supreme Court signaled that it is open to such a move in its 2023 Grisham v. Van Soelen decision, encouraging litigants to engage in “thoughtful and reasoned argument in the future addressing whether the interstitial approach is the proper method to ensure the people of New Mexico the protections promised by their constitution.”

• • •

New Mexico may have been one of the last states to enter the Union, but its constitution has proven to be a tool for progressive and expansive protections for its people. Such a posture places the state at the forefront of the current struggle to push back against federal incursions of long-protected rights, and the existence of the New Mexico Civil Rights Act provides it with the perfect vehicle to do so.