BIDLACK | A constitution keeps the tyranny of the majority in check
Author: Hal Bidlack - March 30, 2018 - Updated: March 30, 2018
We may be in the throes of a constitutional crisis. Not in Washington (well, maybe a little, stay tuned) but here in Colorado. This week, a federal judge blocked parts of the measure, approved by voters in 2016, that made it harder to amend our lovely state’s constitution. Specifically, the Judge ruled that provision that required at least 2% of the signatures gathered to put a proposed new constitutional amendment on the ballot be collected in each of the 35 state senate districts. This was a direct effort to undo the ability of a ballot-measure supporter to gather all needed signatures along the Front Range, where lots of people live, while ignoring those who live in the less well-populated regions of Colorado.
There were unusual coalitions in both support and opposition to the proposal, making for some strange bedfellows indeed. Ultimately, more than 55% of Colorado voters supported Amendment 71, and it became the newest addition to our State Constitution. Colorado Secretary of State Wayne Williams has stated his intention to appeal the ruling, arguing the will of the people should be respected here.
I was then, and remain now, a supporter of any effort to make Colorado’s Constitution harder to amend, so I hope the ruling will, in fact, be overturned, but perhaps not for the same reason as Mr. Williams and many other supporters. I don’t think there should ever be a citizen-voted method for amending our Constitution. There, I said it flat out – no citizen initiatives to change the core document of the state.
For point of reference, the U.S. Constitution has roughly 4,500 words. Those words were enough to create an entire country, in seven articles, from whole cloth and it remains the longest-lasting written constitution in world history. Our 6-page federal document has 27 amendments, and two of them are getting rid of booze, and then getting rid of getting rid of booze. So only 25 of the amendments are “real” and even some of them are iffy (ever worry about soldiers being quartered in your home against your will? If not, perhaps the 3rd Amendment is a tad passé?
I don’t think there should ever be a citizen-voted method for amending our Constitution. There, I said it flat out – no citizen initiatives to change the core document of the state.
But our Colorado Constitution is a tad longer. We’re not as long as the longest state constitution – that honor belongs to the great state of Alabama, with a 172,000-word document containing 770 amendments. But with over 40 pages, 29 articles, and 152 amendments over its lifetime, Colorado is no slouch. And it is this length and the number of amendments that I argue should give us pause about the amending process itself.
I posit that there should be no citizen initiative path to amend our state’s most important document. Madison, in Federalist #10, wrote about what he called the danger of factions, which we call special-interest groups today. And the worst of all, Madison warned, would be a majority faction. There must be a protection, the Founders believed, for those not in the majority to keep those with the numbers from inflicting unfair rules on the rest of the population. For laws, that isn’t too much of a problem, because there will usually be those who will fight against such laws, but even if that fails, the Courts are there to defend your rights, with the foundation of the Constitution behind them.
But when the Constitution itself is amended, the hands of judges are tied, and tyranny of the majority becomes a very real threat. Imagine for a moment if the U.S. Constitution had an amending process similar to what we have here in Colorado. If a simple majority (raised to 55% by Amendment 71) approved of a new amendment, it would become part of that sacred document. If a demagogic leader, with sufficient financial resources, pushed for a national vote to, say, make smoking illegal, or drinking too much coffee or soda a crime, can you imagine the possible result, and implicit threat to our basic rights?
Simply put, the founders of our nation, and of our state, gave us the tools to change laws that need changing. They put in a process for civil revolution every couple of years – we call them elections.