This article first appeared on February 6, 2026 in Complete Colorado.
Editor’s note: The 1889 Montana Constitution closely followed its Colorado predecessor and likewise contained a very expansive bill of rights. More on that subject in a later post.
* * * *
This year marks the 150th anniversary of the original Colorado Constitution, which in a recent column I called “an extraordinary testament to human freedom.” The state constitution remains in effect today, but in a mangled form far less protective of liberty than when it became effective on August 1, 1876.
As my prior column pointed out, the document imposed severe limitations on taxes, spending, and state debt—limitations far more restrictive than those currently mandated by the Taxpayer’s Bill of Rights (TABOR).
The Colorado founders’ dedication to freedom also appeared in their constitution’s bill of rights. The U.S. Bill of Rights consists only of ten relatively short amendments; the original Colorado version consisted of 28 sections, some of them quite detailed. They were in Article II, right up near the front of the document.
Types of rights
You can divide the rights guaranteed in the original Colorado Constitution into four general categories: The first duplicated rights listed in the unamended U.S. Constitution. Examples included trial by jury in criminal cases, habeas corpus, protection against ex post facto (retroactive criminal) laws, and protection against purely political prosecutions for treason.
The second category duplicated provisions of the U.S. Bill of Rights. Among these were due process of law, freedom of speech, freedom of assembly, and protection against cruel and unusual punishment.
The third category was a single provision banning slavery, which copied the U.S. Constitution’s Thirteenth Amendment.
The final group consisted of rights guaranteed to Coloradans, but found nowhere in the U.S. Constitution.
There were at least two reasons for the fourth, additional group. One was simple love of freedom. The other was that, unlike the federal government, state governments are not limited to certain enumerated (listed) powers. This made a longer list of specific rights more important.
Economic liberties
Some of the rights in the fourth category resulted from the same dedication to economic liberty reflected in the state constitution’s fiscal restrictions. Thus:
* Article II, Section 11 expanded the protection against ex post facto laws to include protection against retroactive laws of any kind, civil as well as criminal. A measure retroactively altering an election rule would not violate the U.S. Constitution’s ban on ex post facto laws, but would violate the expanded Colorado guarantee.
* Sections 14 and 15 widened the right to compensation for property seizures. To trigger compensation, a “taking” could be for private as well as public use. Moreover, compensation was guaranteed when property was merely damaged rather than seized in its entirety.
* Section 27 guaranteed the right of aliens who became “bona-fide residents” of the state to “acquire, inherit, possess, enjoy, and dispose of property” on the same basis as native-born citizens. The U.S. Constitution contained no such protection. (The makers of the U.S. Constitution understood property ownership to be almost exclusively a state rather than a federal concern.)
Civil liberties
The additional terms in the Colorado bill of rights showed interest in civil liberties as well as in economic freedom.
For example, section 4 provided that, “no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion.” This language protected atheists and agnostics who practiced no religion. As originally understood, the religion clauses of the U.S. Constitution’s First Amendment did not protect the non-religious.
Another added guard for civil liberty was section 12, which banned imprisonment for debt. Still another was section 17. It prohibited needless imprisonment to force testimony and required the court to appoint legal counsel for a criminal defendant if he had none.
An unnecessary provision?
The last term in the Colorado bill of rights was Article II, Section 28. Readers familiar with U.S. constitutional history might find it odd because it mostly copies the words of the U.S. Constitution’s Ninth Amendment. But the U.S. Constitution’s Ninth Amendment was inserted for reasons irrelevant to a state government such as Colorado’s.
The Ninth Amendment provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Section 28 expanded that slightly: “The enumeration in this constitution of certain rights shall not be construed to deny, impair or disparage others retained by the people.”
Here is some background:
During the debates over the U.S. Constitution, opponents argued that the document should not be ratified without a bill of rights to itemize specific things the federal government could not do, even if otherwise within the scope of its enumerated powers.
The Constitution’s advocates—including James Madison—responded more or less in this manner: “Under normal rules of legal interpretation, a list of things the government cannot do would imply that the government can do everything else. This would undermine the Constitution’s plan for restricting the federal government to its enumerated powers. You want to limit the federal government, but if you include a bill of rights you might find the courts using it as a pretext to expand federal power.”
Eventually, the American Founders arrived at a “gentlemen’s agreement” whereby the Constitution would be ratified and a bill of rights added shortly thereafter. Madison sponsored the bill while serving in the First Congress (1789). He added the Ninth Amendment to prevent the officials and judges from using the Bill of Rights to expand federal authority.
In this context and in 18th century usage, the word “rights” was a synonym for “powers.” Thus, stated in modern English, the Ninth Amendment admonishes, “Don’t use the list of powers denied to the federal government as a reason to disregard the Constitution’s other limits on federal authority.”
But by 1876, the meanings of the words “right” and “power” were less-commonly interchangeable. The Colorado founders likely understood “rights” to mean the natural rights all people have beyond those listed in the state constitution.
If so, then section 28 was a call to the courts to protect personal liberty in ways not mentioned even in the state constitution’s long list of rights.