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One hundred years after the U.S. declared its independence, the aptly nicknamed Centennial State ratified its own constitution in 1876. Since then, the founding document has been amended 176 times. This November, Colorado’s voters are being asked whether they want to make seven more amendments.
Citizen initiatives that have been certified to appear on the ballot will ask voter approval for several topics. For example, Amendment 83 seeks to enshrine the right to hunt and fish into the Colorado Constitution and Amendment 82 seeks to do the same for the right to buy and sell natural gas.
Regardless of whether you think these are good things to codify, this is not the proper way to do it. The constitution is not a place to create legislation, and those pushing these amendments are losing sight of that.
Throughout this election season, debates have raged about the merits of proposed amendments, yet I have heard little discussion as to why these ballot initiatives are constitutional amendments in the first place. What even is the difference between the words of the constitution and those of statutes? It may seem like a semantic one, but that couldn’t be further from the truth.
Lon Fuller, who was a philosopher of law and professor emeritus at Harvard University, spoke to the Harvard Law Review in 1958 about the dangers of writing what should be statutory into constitutions. He said this:
“We should think of our constitution as establishing a basic procedural framework for future governmental action in the enactment and administration of laws. … Not uncommonly these constitutions incorporate a host of economic and political measures of the type one would ordinarily associate with statutory law. It is hardly likely that these measures have been written into the constitution because they represent aims that are generally shared. One suspects that the reason for their inclusion is precisely the opposite, namely, a fear that they would not be able to survive the vicissitudes of an ordinary exercise of parliamentary power. Thus, the divisions of opinion that are a normal accompaniment of lawmaking are written into the document that makes law itself possible. This is obviously a procedure that contains serious dangers for a future realization of the ideal of fidelity to law.”
Ballot initiatives like Amendment 82 and 83 are exactly the kind of thing Fuller is talking about here. What does my right to hunt, fish or buy and sell natural gas have to do with how we do government? Nothing. That isn’t to say these initiatives are incompatible with our constitution, but these are matters that should be regulated by the ordinary lawmaking process. Why give our legislature the power to make laws if we don’t trust them to do so?
Historically, there has been a high bar to clear when seeking to amend the constitution, both at the federal and state levels. This is especially true compared to passing new statutes and amending or repealing old statutes. The people of Colorado have amended their constitution 176 times since its ratification. For comparison, the Colorado Legislature has passed around 5,000 bills or resolutions in the last 10 years alone, not even counting extraordinary sessions.
Maintaining a high bar to pass before amending the constitution makes plenty of sense. How can individuals, businesses and lawmakers know how to get their affairs in order if the basic rules that govern civil society are in constant flux? The ability to hunt and fish or buy and sell natural gas is not necessary for a society to function, unlike a legislature, court system and executive — all of which are established by the constitution.
One might reject my line of reasoning by emphasizing these amendments are up for popular vote. If they are passed, it will mean they reflect the majority view of the people of Colorado. While that is true, it misses the point. Fuller was correct; by using the Colorado Constitution as a partisan political tool, we risk weakening the foundation of our government.
I have no interest in convincing you why you should vote yes on one amendment and no on another. What I want to make clear is this: Our constitution has a purpose. It is not a trump card to lord over our legislature. It is the bedrock of democracy in Colorado. It’s not about party politics; it’s about principle.
Reach David Martinez at letters@collegian.com or on social media @RMCollegian.
