By Jerry Kopel

 

Have you ever seen this before? Article 17, Section 5 of the state constitution:

 

"No person having conscientious scruples against bearing arms shall be compelled to do militia duty in time of peace provided, such person shall pay an equivalent for such exemption."

 

That language has been in the state constitution since the constitution was adopted in 1876 and has never been changed. The last clause, about paying for an exemption, will be before the voters in November, 2006 to be repealed as part of the Senate Concurrent Resolution No. 2. SCR 2 does away with obsolete language and was sponsored by Sen. Dave Owen  (R) and Rep. Fran Coleman (D).

 

In 1859 and 1864 Coloradoans liked the idea of having the federal government pay the expenses for  Colorado Territorial government, and voted against become becoming a state. That feeling changed in 1865. Colorado voted for statehood and approved a constitution. Statehood was vetoed by President Andrew Johnson. There were several more tries, each with a proposed state constitution. All failed either by a Johnson veto or lack of congressional support. Until 1876.

 

But the idea of paying money to keep out of the militia went back to the civil war. The federal constitution states: "The president shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into actual service of the United States."

 

Lincoln met the crisis in manpower by exercising his right to call up the militia, which included most adult males. His goal was 300,000 soldiers from the non-succeeding states.

 

When that failed to produce enough  manpower, Congress passed the first draft law, the National Conscription Act on March 3, 1863.

 

According to author Bruce Catton in "Never Call Retreat" all male citizens between 20 and 45 were declared to constitute the national forces.

 

"Built into the draft was a rule that a man with money could not be compelled to go into the army. All men had to register,  of course, but one whose name was drawn could get released from service (at least until the next drawing) if he could pay a commutation fee of $300.

 

"Three hundred dollars was a figure from dreamland -- the better part of a year's income, more money than any wage earner ever saw or hoped to see at one time.

 

"(A man) could get permanent release if, spending more than this, he hired a substitute to go soldiering for him. If he did neither of these things he must serve, under penalty of being shot as a deserter if he ran away."

 

Following major draft riots in New Your and other cities, the $300 commutation was removed in 1864.

 

The state militia laws of 1877 were quite detailed but I have not found any state statute regarding payment to avoid service in the Colorado militia.

 

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There are two other Articles with portions removed under SCR 2.

 

Article 20, Section 7 strikes language dealing with the FIRST school board election of the city and county of Denver. The language was adopted in November, 1902.

 

The second, Article 24, is a prime example of why you should never put statutory reference in the constitution.

 

Article 24 deals with the old age pensions. SCR 2 removes obsolete starting dates, becomes gender neutral,. restates the portion of the payment from license fees from obsolete statutes to the present statutory Article 26 of Title 39. Next time the statutes are changed, the constitutional language will also have to be changed.

 

SCR 2 removes references to obsolete inheritance taxes and recognizes that incorporation fees no longer go to the old age pension fund.

 

This is the fourth constitutional amendment removing obsolete language that I have drafted with Sen. Owen as chief sponsor in 2000, 2002, 2004, and 2006. Previous amendments were in 1988, given to House Speaker Bev Bledsoe (R) who then gave them to State Rep. Scott McInnis (R), 1990 given to Speaker Bledsoe and 1992, which I gave to myself as a retirement present.

 

There are very few non-controversial obsolete sections left. Ones that would stir controversy are:

 

Article 2, Section 30b "No protected status based on homosexual, lesbian, or bisexual orientation" ruled unconstitutional by the U.S. Supreme Court in 1995.

 

Article 18, Section 9 (a), subsection (1) which limits terms of office for congress to three consecutive terms and senators to two consecutive terms. This type of term limitation violates U.S. Supreme Court decisions.

 

( Jerry Kopel served 22 years in the Colorado House.)