Quillen's Constitution

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Quillen's Constitution

Rebuilding Colorado's state government

Delivered 18 May 2002 in Leadville at Colorado Libertarian Party convention

Copyright (c) 2002 by Ed Quillen, P.O. Box 548, Salida CO 81201 ed@cozine.com Reprinted by the Colorado Freedom Report with permission.

If you came here expecting a historical examination of our state constitution, I'm sorry, but you're going to be disappointed. Truth be told, I've never even read our constitution in its entirety, let alone studied it. From my brief examinations, it appears to be a populist document, written by people who were deeply suspicious of both corporate power and centralized government. In other words, our political ancestors had the right attitudes.

I tried to read the state constitution once. A few years ago, the director of the Salida office of Colorado Mountain College asked me if I'd be intrested in teaching a writing class. I said I'd try. Then I got the paperwork, which included a loyalty oath of sorts, something about bearing true faith and allegiance to the constitution of the state of Colorado.

I wasn't about to provide faith and loyalty to a document I'd never read, so I went to the library. The cosntitution, along with its commentary, occupies an entire volume of the Colorado Revised Statutes and covers several hundred pages.

After about a week of spending an hour or so on my daily "constitutional," and of discovering that people learned in the law could not agree on what it meant, I gave up. As for the oath so that I could teach, I just crossed that section out, and signed it.

And I still got paid. Which means, as you may have guessed, that Colorado doesn't take its constitution very seriously.

For example, our constitution forbids the merger of parallel or competing railroads. Thus Roy Romer had a clear duty to oppose the 1996 merger of the Union Pacific and Southern Pacific railroads. He responded in the way that American chief executives generally respond when their constitutional obligations conflict with the desires of their campaign contributors: He ignored the constitution.

Another example: We constantly have legislators from both sides of the aisle demanding that certain items --ranging from multicultural diversity appreciation training to daily prayers -- be added to our school curriculum. But our state constitution, as I read it, forbids the legislature from having anything to say about the curriculum, or even the textbooks, used in our public schools.

In other words, we have these 100 people in the legislature , all of whom have taken an oath to support and defend the constitution of the state of Colorado that they probably haven't read either. And of those 100, at least 90 of them appear to want to violate that same constitution by inflicting state curriculum mandates on local schools.

A constitution that inspires such disrespect and disregard -- especially disrespect and disregard from those whose offices are based in that constitution -- is clearly a constitution in need of revision.

We should note that before there was even a Territory of Colorado, the prospectors had proposed a Territory of Jefferson, because they so admired Thomas Jefferson, and within the past couple of years, we have further honored the third president with growth that has put his name on our most populous county.

It was Jefferson who wrote of government in 1776 that "it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."

It is time that we followed the Jeffersonian precept and adopted a new state constitution to effect our Safety and Happiness.

I have given this matter considerable prayer and thought, and here are some recommendations:

Selecting the legislature. As it is, we have a hodgepodge of house and senate districts, and not one Coloradan in 50 could tell you which district she's in. Another problem with the current arrangement is campaign financing -- the voters have made it clear that they want limits, but the courts keep intervening on the grounds that limiting money is an unconstitutional limitation of free speech.

There are many other problems, but I will mention only one more -- our House of Representatives is hardly representative in any sense of the word. It's richer and whiter and more masculine than the general population, even though it's supposed to be "the People's House."

If we adopted a new constitution, then we could make the House much more representative by abolishing elections for House seats. Its members would, instead, be chosen by lot from registered voters, much as juries are now, with the primary difference being that it is much easier to get out of jury service than it would be to avoid House service. The state policy would be quite simple: No Exemptions, for any reason.

If your name were drawn, a State Trooper would appear instantly at your doorstep, bearing the proper writs of public servitude. You would be given a reasonable interval -- up to 72 hours, perhaps -- to get your affairs in order, and then you would be removed to Denver for the duration.

Since juries, chosen in essentially the same manner, have powers of life and death, there could be no objection to giving such powers to other citizens chosen at random.

Our House would be much more like Colorado -- mechanics, bag ladies, corporate presidents, farmers, lumberjacks, unemployed miners, students -- the whole panoply of humanity gathered together under the Gold Dome for the duration.

A duration that would be quite short, I suspect. Most of these people would have better things to do than sit in the legislature. They would focus on business, do what had to be done at the Statehouse, and head home quickly.

They would not be worried about re-election or term limits, since the odds would be extremely high against their ever being summoned to another term. They would also be immune to campaign contributions, since they would never campaign.

Some reformers would make that the entire legislature -- a unicameral system like Nebraska. Just because much of Nebraska is prosperous these days, plus it's a good place for working families because wages are relatively high while housing prices are relatively low, that doesn't mean we should necessarily follow Nebraska's example.

But while we're being Jeffersonian, we should not neglect his brilliant political opponent, Alexander Hamilton. Jefferson wanted a government more or less "of the people," while Hamilton considered the people "a great beast."

Hamilton instead concerned himself with finding ways to make sure that the government was supported by the landed and moneyed gentry -- that those classes would have confidence in the government and feel that their concerns got due consideration.

It's safe to conclude, especially at the federal level, that Hamilton did a pretty good job of it. But since we're working at a different level in this restructuring project, it's something we need to take into account.

To that end, we must have a Senate to represent Capital and Property, just as we have a House to represent Humanity.

How to select this Senate? I propose that we auction its seats, with the proceeds going straight to the state treasury.

Consider how much more efficient this would be than the current system. As it is, Qwest -- one corporation among many, and I single it out only because it is among the most familiar -- must engage lobbyists and donate to campaigns.

That means working through intermediaries, always expensive and inefficient when compared to the benefits of acting directly -- which Qwest could, if it were the successful bidder for one or more Colorado State Senate seats.

The mechanics would be simple -- every two years, as half the four-year Senate seats came up, the state treasurer would arrange a public auction. The television rights alone would fetch a fair sum, and the entire proceeds might well replace the business personal-property tax or some other onerous nuisance that keeps us from being fully competitive with other states.

But wait a minute. Aren't we required to elect our legislature under the federal constitution, wherein Article IV, Section 4 says "The United States shall guarantee to every State in this Union a Republican Form of Government...."

I believe our new house and senate will meet this requirement. If the founders meant the small-r "republican" form of government, what could be more Jeffersonian republican than a House selected at random from among Coloradans of every walk of lif

e? And if the founders meant the capital R "Republican" form of government, what could be more in keeping with modern Republican party principles than a legislative house directly sold to the corporations willing to spend the most money on it? In a capitalist economy, capital should be represented at the Capitol, and why not do so directly, rather than through intermediaries?

So I don't see any constitutional impediment to this, and I can safely predict one immediate benefit.

Thanks to their very different composition, the two Houses would seldom agree on anything, except perhaps on the need for a pay increase, so if they did agree on something else, it would likely be an important matter, rather than a resolution designating an official state spider.

One result would be fewer laws passed each session. That will be a blessing in itself, but we can do more. Our new constitution should require that, for every law that is passed, one currently on the books should be repealed. Just as we establish a maximum number of executive departments of state government, we can establish a maximum number of laws -- either a specific number of statutes, or, preferably, by word count, so that there would be a constitutional limit of, say, 100,000 words for the Colorado Revised Statutes, about the size of a good novel and thus something that our citizens can read and comprehend.

To further this reduction, we will also have constitutional sunset for all state laws and institutions. Colorado was an innovator 25 years ago with its Sunset Law requiring state agencies to justify their presence every so often, or be terminated.

It was a good idea, one worth extending throughout state government. Our constitution should require that no law could remain in effect for more than 20 years, and that the legislature could not merely pass blanket renewals -- each re-enactment would be a separate measure.

This would further honor the spirit of Thomas Jefferson, who often argued that the earth belongs to the living, and that one generation has no right to bind another. It would automatically purge our statute books of measures which may have made sense at the time, but which no longer apply.

The new constitution would hold one more prudent restriction upon the legislature. Every legislator voting in favor of any law -- whether in committee or on the floor -- must be able to recite that law, and explain its provisions in plain English.

The benefits should be obvious -- again, fewer laws and thus fewer restrictions upon our citizens' liberties. And the laws which did get enacted would be laws that people could understand, and perhaps even support and obey.

How to implement this? After every vote, those in favor would file into a small room, one at a time, and recite the statute before a video camera. Then they would face something like a press conference, except that any interested citizen would be welcome. Questions would be asked, and the responses would be on video tape, of course available over the Internet. What's the point of having all this technology if we don't put it to work improving our political system?

To move on, we Coloradans should be able to expect more from our state government than merely the operation of a legislature. Even Texans manage that much, after all.

I will briefly address how we might improve some current functions of state government.

Licensing and Credentials: State government faces two conflicting demands in this regard. On one hand, our citizens should be able to exercise, to the fullest degree possible, their right to earn a livelihood in whatever way seems congenial to them -- what Thomas Jefferson probably meant by "the pursuit of Happiness."

On the other, our citizens want to be protected from lies, fraud, chicanery, bad checks, unsanitary restaurants, and the like.

Both demands are legitimate, and so any resolution will involve compromise. I propose that the state of Colorado immediately cease all licensing of everything from plumbers and electricians to lawyers and physicians. In other words, if you feel you have a gift for healing people, you should be able to hang out your shingle.

But our laws against fraud will be strengthened and more funds will go to their enforcement. That is, you are free to offer herbal therapy in the Colorado marketplace, but you are not free to claim that you have a medical degree from Johns Hopkins if in fact you don't. You are free to sell pies in your living room, but you are not free to claim that the kitchen is sanitary if it has not passed an inspection that you will have to pay for. School districts will be free to hire whomever they wish as teachers, but they, like any other employer, will be responsible for the quality of their personnel.

The marketplace is generally much more efficient than government, and we should move as many governmental functions as possible to the free market. But government does have a legitimate role in defining and regulating markets.

For instance, this nation fought a long and brutal war to eliminate the market in human flesh that operated in some states. For another instance, do we all want to carry our own scales around with us, or do we want the state to require that any pound of bread that someone offers for sale actually contains 16 ounces of bread?

As I said, government has a role here. We must try to minimize it whenever possible, but realize that fraud is not anyone's civil right.

Education: Most of the state budget goes to education, at all levels from pre-school to post-graduate. While some of my Libertarian friends might argue that state education is no more legitimate than a state religion, the majority of the citizens of this state have always felt otherwise.

To get the full benefit from the billions that we Coloradans spend each year, we must back away from the concept of full local control.

The state should set graduation standards. Every high-school graduate should be fluent in Standard English at a 12th-grade level, at least one common street dialect of English (blue-collar English, Ebonics, etc.), and a foreign language.

We will require enough math to comprehend a mortgage loan or a lot description, and if that widespread knowledge causes the state lottery to go belly up, so be it. Students should know the history and culture, both traditional and revisionist, of their community, state, and nation.

We will also require competence in art and music, and proficiency at one or more life-long sports.

This will be demanding, all the way around. But let's look at our geographic forebears here. There is no record that any Ute, Arapaho, or Cheyenne child ever failing to learn what society deemed necessary. Boys learned to shoot arrows and hang out with their friends, why girls learned to scrape hides and grind corn.

Our society has moved away from the assignment of work by gender, but the concept remains valid. Where important skills are involved, the community finds a way to impart them, and children find a way to learn them.

The state should set the requirements, and let the schools -- public, private, charter, parochial, etc. -- find ways to meet them. Some will offer very structured, disciplined environments; some will be rather loose. We will see traditional one-room eight-grade schoolhouses and state-of-the-art high-tech campuses. Educators and school boards will find out what works and what doesn't, and over the years, I am sure that many valid approaches will be discovered.

Education isn't a one-size-fits-all factory, but a process of imparting skills and knowledge.

This may take more money, and I know that Coloradans share my hatred for paying higher taxes. But the funds are already there. Our schools should be academic institutions, not social institutions or sports institutions. Any school district that has money for football or therapists has money to spend on something important. It's just a question of priorities, and it is a legitimate role of state government to set those priorities.

Our goal is to have educated citizens of a republic who can make intelligent choices and offer first-rate goods and services in the free-est market we can possibly arrange.

Transportation: Again, there are Libertarian objections to governmental involvement in transportation. But since the days of Benjamin Franklin arguing for governmental postal routes, and of George Washington promoting the National Road over Cumberland Gap to the rich lands of the West (where he had some investments, by the way), there has never been such a thing as a free market in transportation in this nation. Wagon roads, pack trails, railroads, highways, airports, harbors, canals -- they have all resulted from government transportation policy during the past 250 years.

Like most Coloradans, I like my car. I want to be able to drive it whenever I want, wherever I want. The flexibility and comfort of the private automobile (I can smoke in my car, and listen to the music I enjoy there) are not going to be matched in the foreseeable future by any other technology.

But the sad fact is that building more highways to accommodate more cars is a never-ending process. Sisyphus had it easy, just rolling a stone uphill for eternity, in comparison to highway planners.

Our goal as a society should be to get cars off the road as much as possible. They won't go away, and we'll have to accommodate them, but there's a big difference between accommodation and encouragement.

To that end, we want good mass transit in every commutershed -- a term I just coined to define the area inside which at least 75% of a given city's employed people live, and a term which will come up later when I discuss local government. We will actively discourage heavy truck traffic with a ton-mile tax that pays for the damage that trucks cause to our highways, and we will have strict safety enforcement for trucks. There's an efficient way to move heavy stuff from one place to another in an area too dry for canals -- it was invented 175 years ago, and it's called a railroad.

All new housing developments must have wide sidewalks, transit service, and non-motorized trails that connect to the statewide system that we are developing. All retail establishments must be congenial to pedestrians. This is a government of the people that serves the people, not a government devoted to the promotion of the automobile.

State policy will be aimed at making driving unattractive while making other forms of transportation attractive. Not one rail should come up, and the state will make every effort to preserve and enhance rail service. It works in all forms of weather, and as we rebuild the old network, it can again bind us into a cultural and economic community.

Further, our citizens should enjoy enhanced civil liberties as we improve alternative forms of transportation. There are legitimate safety reasons to stop automobiles and test the blood purity of their operators, and for requiring liability insurance.

There are no such reasons for the state to harass passengers, pedestrians, the vast majority of bicyclists, equestrians, and the like. With a more diverse transportation system, our citizens will be more free to go about their lives without fear of government intrusion or of being arrested for failure to meet expensive and unfunded government mandates. This, our founding fathers believed, was worth pledging life, fortune, and sacred honor -- we moderns could certainly manage a little expense and inconvenience toward such a worthy goal.

Communication: This is something I would prefer to leave to private enterprise. Private enterprise, however, doesn't much care whether rural Coloradans can stay in touch with the world, and prefers to invest in urban markets.

We could try a regulatory approach here -- any company that operates in Colorado would have to offer its services statewide. In other words, no cream-skimming.

But I suspect the bastards would take us to federal court, which would involve extensive and expensive litigation without any guarantee of benefits to the citizens of Colorado.

So I propose instead that the state, which has ample rights of way, establish its own state-of-the-art high-capacity fiber-optic network, connecting every settlement big enough to have a post office. This would be a common carrier, and actual operations could be let out to bid.

With this network in place, the state could also be the "competitor of last resort" in local markets where there is no current competition for local telephone service. As soon as an effective competitor appeared for the local monopoly -- be it telephone or cable TV -- the state could pull out.

We want competitive markets so that government can step out of the picture, but we've got to set up an environment conducive to those markets.

Prisons & Law Enforcement: For starters, let me make it clear that there are some people who belong in prison. Society must be protected from them.

The same holds for the death penalty. When you consider a serial murderer like Ted Bundy, who is also an escape risk, then we don't have much choice if we're going to protect our citizens from such predators. The current status of the death penalty is a reasonable, if informal, compromise: it's on the books so we can use it if we must; it is applied quite sparingly, as it should be; and it allows politicians to say they're tough on crime.

I would, however, extend the death penalty to corporations, which have been classified as a legal person by the federal supreme court. In that case, conviction of certain corporate offenses should mean the death penalty for the corporation -- its offices closed and its assets distributed.

That said, let us consider the functions of our criminal-justice system, and see how the state government might best perform those functions.

1) Protection of society. As I mentioned, there are some people that cannot be allowed to be at large. They must be sequestered from society, and they range from con artists through pederasts to murderers.

While we all have understandable desires to subject these people to slow torture, we need to rise above those instincts. As a society, the main thing want is to get these people out of the picture. There's no reason to pamper or coddle them, of course, but there's also no reason to make their lives any more miserable than necessary.

To that end, I propose we set aside an "exile zone" -- some place like Brown's Hole where geography makes it relatively easy to sequester this class of prisoner from the rest of our citizens. The state land board should be able to make the trades and purchases to set up this preserve for human "wildlife."

Those who get life sentences will serve their terms there, and during their lives, they may be able to practice an honest trade or the like, read their mail, and watch TV at night. As I said, we don't want to torture them; we just don't want them around.

2) Deterrence. One purpose of punishment is to scare potential offenders. In my experience, public shame and humiliation are quite frightening.

Let us, then, publish the names and pictures of men convicted of soliciting prostitutes. Let us bring back the public stocks and other instruments of humiliation -- someone who wouldn't blink at paying a $1,000 fine will blink, and more, at the prospect of a day being mocked in a public park. And certainly we can devise more such punishments.

3) Outlawry. In English common law, one punishment was to make a felon into an "outlaw" -- literally, someone beyond the protection of the law, unable to go to court to protect his rights, someone whose murder was no crime, etc.

By reviving this punishment, our outlaws would have to live very circumspect lives -- which is what we want, isn't it? -- or they would lose their property and perhaps their lives, with no prospect of legal redress.

4) Drug Laws. I deeply believe that what chemicals may or may not be around your house or in your bloodstream is no proper business of government, that it is a matter of privacy.

However, there are many with deep beliefs to the contrary, and this is a democracy. So I propose a reasonable compromise.

All drugs (except those grown at home) will be sold at registered pharmacies, and we'll let the market determine the price. Anyone purchasing substances now on any controlled list will have to sign a form indicating what he bought and how much he bought.

Anyone then caught with drugs he did not purchase himself will be in trouble, and the lists of purchasers and purchases will be published at regular intervals in the local newspaper and posted on the Internet.

As long as our citizens comply with Colorado law, the full resources of the state will be devoted to protecting them from any federal prosecutions. As I read the federal constitution, the national government has the right to control imports and to regulate what crosses state lines; this will be an internal matter and the attorney general will vigorously pursue our stand.

5) Concealed Weapons and the like. Vermont has a very low crime rate, and absolutely no regulation of concealed weapons. We'll try that approach for a few years, and see what happens.

Private property owners will, of course, have the right to regulate the possession of concealed weapons on their premises.

Land Use and Other Property Rights: By and large, the state will support the right of property owners to use their property as they see fit. The only exceptions are for health and safety -- neither the state nor any of its subdivisions will have the power to act to protect property values.

As it is, zoning functions primarily to subsidize the wealthy. If they don't want to view trailer parks from their manors, they just use zoning to eliminate the trailers, rather than doing the right thing, and buying the property so they can arrange it as they see fit.

Further, the right to build whatever you want does not automatically convey a right to all governmental services. Each county will be required to declare "Stupid Zones," where there are geologic hazards, road-building difficulties, utility-access problems, and the like.

In those Stupid Zones, no governmental services will be offered, except for the sheriff serving writs. No road-plowing, no school buses, no law-enforcement patrols, nothing. Thus taxpayers can avoid subsidizing stupid developments, while we still preserve full property rights.

As for developments of a potentially hazardous or obnoxious nature -- cyanide heap leaches, smelters, foundries, tanneries -- they can go forward quickly, just as long as the majority of the owners live within one mile downwind or downstream of the facility, and abide in their homes at least 300 days a year. This will provide the private owners with the incentive to deal with any threats to air or water quality, or with noise and dust and traffic, at no cost to government and with no regulations. If they're willing to breathe and drink the effluent from their operations, the state should be satisfied.

Water: Our water courts are already organized by basin, so the political boundaries in place.

Existing trans-basin water rights will be phased out over a 10-year period, to be replaced by a market system. If Denver wants water from Grand or Summit county, fine -- it can pay an annual fee to the source area's general fund, and if the price is too high, the city can find other suppliers.

If environmentalists want to buy a water right to keep a river flowing, or if California or Nevada wants to buy water -- fine. The state will collect a small tax to cover the costs of administration and enforcement, but otherwise, we'll stay out of it. Remember, markets are efficient, and we'll use them wherever possible.

Public Meetings and Records: Everything the state or any subdivision does is public. This includes our courts -- no more sealed settlements. They expect the public courts to enforce private agreements, agreements whose terms we are not even allowed to know.

That's idiotic, like signing a blank check, and it's time we quit being stupid.

There will be no limits on campaign contributions, but no anonymity, either. Contributions will be posted immediately in the Internet, and published at least weekly in a statewide newspaper.

To enforce this, all campaign contributions must go through the state treasurer or his designated agent, such as a county treasurer. That officer will check the ID of the donor to establish the source of the contribution, record it for publication, and forward the money to the appropriate campaign fund.

Campaign funds may be audited at any time, and if any money is present from an undisclosed source, the candidate will be immediately disqualified and sent to the appropriate public stocks.

While removing the legislature from the election process, as I detailed earlier, will eliminate much of the need for this campaign reform, we will still have elections for federal and statewide offices, as well as local governments.

Local Government: Colorado is a hodgepodge of towns, cities, home-rule municipalities, water districts, recreation districts, school districts, counties, judicial districts, legislative districts -- too much for anyone, except highly paid attorneys, to keep track of.

We believe in local government, and we should, but we've got more of it than we can reasonably handle.

Since we're overhauling the state constitution anyway, we will instruct the state geographer to establish "commutersheds," and those will be the basic unit of local government.

These will be adjusted after every census, of course, to reflect current realities. Every settlement with a post office is deemed big enough to have an office of the commutershed to handle routine governmental matters like tax payments, license plates, building permits, that sort of thing.

Commutersheds will be governed by an elected executive and a council with at least one representative for each 10,000 residents. The council can be elected, or selected at random like the state House of Representatives.

The rest should be up to the local voters, who can organize their government as they see fit. The commutershed council will be responsible for all the functions of local government: schools, law-enforcement, roads, parks, and so forth. The only requirement for service on the council should be full financial disclosure. In other words, if a councilor wants the road paved to his real-estate development, we have the right to know about such financial interests.

Citizen Obligations: So far, I have spoken mostly of the rights of citizens, and that is as it should be. After all, Thomas Jefferson wrote that "it is to secure these Rights that governments are ordained among men."

But citizenship in a republic cannot be a passive activity; it does incur some duties.

There is jury duty and possible legislative duty, for instance.

Each citizen will also be required to attend at least one meeting of a public body or agency each month (it can be a courtroom case, or a visit to a prison -- the main thing is that they pay attention to what their government is doing so that the citizenry monitors its agents); the public stocks can be employed to punish those who fail in this obligation.

In the Jeffersonian spirit, each citizen will also be required to belong to the local militia and to attend its drills and practices. This militia will serve as the militias of old to defend the residents against invaders -- developers, pavers, diverters -- but every militia will be required to have units which are not armed, so that we can respect the beliefs of citizens who oppose carrying firearms.

Thus a pacifist attorney, for instance, could devote his militia drill time to defending local water rights, or a pacifist farmer might join the rest of his militia unit in bulldozing a toxic landfill.

The particulars of militia service might be best left to local authorities, but the drill requirement should be at least eight hours a month.

Conclusion: While these proposals for a new constitution may not be sufficiently Libertarian to satisfy everyone here, I believe they are a vast improvement on the system we have now, and they are true to the spirit of Thomas Jefferson.

Another possible solution might be the dissolution of the political entity known as Colorado. The eastern plains might well be given to Nebraska and Kansas. The southern tier would fit well in New Mexico, our western mesas and canyons in Utah, and the northern ranchland in Wyoming.

But that would still leave the Front Range and Central Mountains, and thus the need for some kind of state government, even if its territory were much smaller than the current Colorado.

Further, this big box of a state forces some diversity upon us. To work as a polity, we have to work with people who are very different from us -- rarefied Boulderites need to deal with lumberjacks and ranch hands. If we divided into little segments of people who were "just like us," we would force blinders upon ourselves and eventually find ourselves unable to function in a world that exposes us to more and more each day.

So, I urge us to begin this constitutional overhaul. I cannot predict that it would hold Colorado together, but I can predict that unless we try something, Colorado will fall further apart.

Thank you, and good afternoon.

The Colorado Freedom Report--www.FreeColorado.com