HJR 1023: Colorado lawmakers’ constitutional ignorance on display

• April 9, 2025
• Rob Natelson

This article first appeared on April 9, 2025 in Complete Colorado.

To understand why some members of the Colorado legislature are unworthy of your trust, look no further than their current effort to take away your state tax refunds and abolish your right to vote on taxes, spending, and debt.

An astounding 44 of 100 lawmakers are sponsoring House Joint Resolution (HJR) 25-1023. This resolution would spend tax dollars on a lawsuit to void the Colorado Taxpayer’s Bill of Rights (TABOR). Coloradans voted to add this valuable protection to the state Constitution in 1992.

I’ve listed the sponsors at the end of this column, so you can see who they are and what districts they so poorly represent. I’ve also included a link so you can see their party affiliation and email addresses and another link so you can find whether you live in any of their districts.

HJR 1023 displays both disdain and greed. But in this column. I’ll focus on two other displayed characteristics: One is deep ignorance among the sponsors. The other is a dull refusal to take even the easiest steps to cure that ignorance.

The problems in HJR 1023 begin in its preamble—a list of “Whereas” clauses. It reads in part as follows:

• “WHEREAS, The “Enabling Act of Colorado” required the territory of Colorado to adopt and maintain a constitution that adopted the constitution of the United States and was “republican in form”; and
• “WHEREAS, Under the Guarantee Clause of section 4 of article IV of the United States constitution, “the United States shall guarantee to every state in this Union a republican form of government”; and
• “WHEREAS, The drafters of the United States constitution envisioned the guarantee of a republican form of government entailing a representative democracy in which legislative bodies determine policy by enacting laws through deliberation and compromise; and
• “WHEREAS, [TABOR] removed fundamental legislative authority and power in matters of revenue and expenditure from the institutions of representative democracy, namely, the General Assembly and the policy-making bodies at all levels of local government, and instead subjected that authority and power to direct democracy, namely, plebiscite; and
• “WHEREAS, [TABOR] has removed necessary and essential powers of its representative institutions and so deprived the state of a republican form of government . . . .”

The proposed resolution goes on to authorize a legislative lawsuit to void TABOR as unconstitutional.

 Legislative ignorance

The first “Whereas” clause is a harbinger of ignorance to come. While purporting to quote the name of the Colorado enabling act, it gets the name wrong. (The actual name was “An Act to enable the people of Colorado to form a constitution and State government, and for the admission of the said State into the Union on an equal footing with the original States.”)

But let that pass.

The second “Whereas” clause misunderstands the purpose and effect of the U.S. Constitution’s Guarantee Clause. The rest of the preamble claims plebiscites are inconsistent with the republican form of government.

I’ll say more about the Guarantee Clause and the meaning of “republican form” in a later column. At this point it is sufficient to note that (1) the sponsors’ claim that plebiscites are unconstitutional already has been rejected by both the U.S. and Colorado Supreme Courts, and (2) the assertion that plebiscites are un-republican is particularly bizarre because plebiscites were both invented and perfected in governments universally acknowledged to be republican.

The plebiscite (Latin: plebis scitum) was central to the Roman republic—which was, of course, the longest lived republic in recorded history (509 – 27 BCE). Plebiscites were further developed in Switzerland, a country universally termed republican.

All three kinds of plebiscite—initiative, referendum, and recall—are recognized in parts of the current Colorado Constitution, outside the Taxpayer’s Bill of Rights. The constitutions of 48 other states recognize one, two, or all three forms of plebiscite.

Did the sponsors of HJR 1023 bother to check into any of this?

And did they bother to check to see what the Colorado Constitution had to say about legislative control over finance when that document was formally recognized as “republican?”

Some history

The Colorado Enabling Act was a congressional statute passed on March 3, 1875. It laid out the conditions by which the territory of Colorado could become a state. It is true that the enabling act required, consistently with the U.S. Constitution, that any proposed state constitution be “republican in form.”

Accordingly, a state constitutional convention drafted a new basic law for Colorado, and the voters ratified it. On August 1, 1876, President Ulysses S. Grant, pursuant to the authority given him by the enabling act, certified that “the fundamental conditions imposed by Congress . . . have been ratified and accepted” and that “the admission of the said State into the Union is now complete.”

This was official recognition that Colorado’s constitution as adopted in 1876 was “republican in form.” The sponsors of HJR 1023 implicitly admit this. But what they didn’t know—and didn’t bother to check—is that the document then imposed far more financial restrictions on the legislature than TABOR does. In fact, one reason TABOR was necessary was because some of the original restrictions had been weakened or abolished by amendment or by judicial error.

The financial restrictions in the 1876 Constitution were the product of hard experience. Earlier in the 19th century, state legislatures had been corrupted and had engaged in massive overspending. During the 1840s, several states even went bankrupt.

Constitutional restrains on government

Let’s look at some of the ways the Colorado Constitution then restricted what the sponsors of HJR 1025 are pleased to call the “fundamental legislative authority.”

As originally adopted, the Colorado Constitution—which, remember, everyone agreed complied with the “republican form”—contained restrictions on state taxation far more extensive than those imposed by TABOR. Specifically: Continue reading →