by Sarah Meisch

Colorado’s State Lines

In Part 1 of this series, we explored how the US created its states, prioritizing geometric simplicity over geographical variance. Colorado stands uniquely symmetrical and rectangular among other states, and Part 2 of this series will examine how Colorado’s shape and dimensions were placed – and why its borders have been so controversial.

Throughout its history, Colorado has been under the control of France, Spain, Mexico, the Republic of Texas, and the US. The Rocky Mountains formed a natural barrier between the American-owned Louisiana Purchase lands and the area belonging to Spanish Mexico. What would become the western and southern parts of Colorado were acquired by the US government through the Treaty of Guadalupe Hidalgo. Before the Anglo population grew in Colorado, the land was occupied by several indigenous tribes, including the Ute, Jicarilla Apache, Arapaho, Anasazi, Navajo, Comanche, Cheyenne, Kiowa, Pueblo, and Shoshone. Many of these tribes were forced to consolidate or give up their land when white settlers moved into the region. When Kansas Territory was created in 1854, most of central Colorado and the eastern plains were absorbed into Kansas; the parts of Colorado that lay west of the Rocky Mountains had become part of Utah Territory in 1850. 

Following the Pike’s Peak gold rush of 1858-1860, the Front Range and foothills of the Rocky Mountains became more heavily populated, with most of the growth attributed to young and single male miners. The population would diminish over the following years as the spoils of the gold rush faded and the lawlessness of the region made the area unsettling for young families.

With Kansas Territory’s capital being in eastern Kansas, inhabitants of present-day Colorado began to wish for a closer form of government, as well as more locally-enforced law enforcement of the region. In November 1858, Denver residents elected a delegate to the US Congress to officially request that Congress create a new territory.

Colorado’s request was particularly troublesome, as the territorial population was strongly Republican, and Southern Democrats were concerned they would not find support in the area. In the heat of deadlock over the slavery debate, Congress would refuse to act on this request until 1861.

In 1859, Colorado residents decided to take matters into their own hands and, without congressional approval, formed Jefferson Territory, named after the president who had overseen the Louisiana Purchase. For a year and a half, the territory illegitimately elected officials, created territorial boundaries, and established a legislature that adopted legislation related to personal and civil rights. The enlarged borders of Jefferson Territory would have made Colorado about 70% larger than it is today and would have included areas within Wyoming, Nebraska, Utah, and Kansas. This additional land would have contained much of the gold and silver of the region for mining and would also have brought the territory agricultural land, diversifying the economy of the territory from relying entirely on mineral resources. Geographically centering the Rocky Mountains within Jefferson Territory, rather than placing the mountains at the borders, would also “prevent disputes over profitable mining claims.”^[1]

Creating a provisional territory was not unusual. Other parts of the country had instituted provisional governments until Congress officially recognized territorial governments: Deseret became Utah and the State of Franklin became Tennessee. Jefferson Territory adopted a similar extralegal approach until Congress had established an official territory.

A census found that Colorado was occupied by only 34,277 residents in 1860, making it too small to be a state but large enough for another structure of government. And most Colorado voters refused to vote for statehood when they had the opportunity in 1864, due to the higher taxation associated with new statehood. As a territory, the federal government footed the bills; however, this made the extralegal entity of Jefferson Territory unable to collect taxes from residents.

Jefferson Territory ceased to exist when Congress and President Buchanan created the Colorado Territory on February 28, 1861. Members of Congress opposed naming states and territories after individuals, so the name Jefferson was dropped. Although some legislators favored naming the new territory “Idaho,” the delegate from Colorado successfully convinced legislators that “Colorado” would be a more fitting name, as the Colorado River started within the territory. Jefferson County is the sole remaining county from Jefferson Territory. 

In the 1860s, there were several attempts by residents to make Colorado a state, but with Civil War and Reconstruction era policies dividing up the political scene in Washington, Colorado was not admitted as a state until 1876.^[2] 

The Borders of Colorado

The eastern border of Colorado was determined by Kansas’ western border when Kansas achieved statehood in 1861, only a month before Colorado Territory was created. A contentious statehood debate raged over the possibility of a “Big Kansas,” which would have included large swaths of Nebraska and possibly areas of Colorado that had already been part of Kansas Territory. Some Kansans raised concerns over how the population of the mining areas in Colorado would upset the balance of power in Kansas. During the 1859 Wyandotte constitutional convention in Kansas, some local delegates claimed that eastern and western Kansas Territory varied too widely in culture and politics or that the Kansas government was too far away from the mining areas of Colorado to provide much responsiveness; linking these areas permanently in statehood would raise the potential for conflict. Others were concerned with the cost of having such a large state, with Republican delegate and future Kansas congressman M.F. Conway stating, “Had we retained the Pike’s Peak region, the mere mileage of the members of the Legislature and officers going to and returning from the State capital would more than exceed the cost of the whole State government.” Political divisions were clear on the matter, as “many Democrats opposed the exclusion of the western territory, while many Republicans approved of the rejection.”^[3]

The arguments for keeping part of present-day Colorado with Kansas were resource-driven. Some wanted the wealth of the mining industry in the Rockies to flow to Kansas, and others believed that the railroad builders would look favorably upon investing in Kansas with its connections to Colorado mineral resources. A few members of the convention argued that cutting off the Rockies and their mining settlements would bring the population of Kansas down to a point where statehood would be off the table, as territories needed to cross a certain population threshold to become a state.

In 1859, the Wyandotte constitutional convention agreed with the “Little Kansas” proponents, which gave the state of Kansas its current size. Creating a homogenous Kansas and allowing the miners to create a government for their region was well-received in both Colorado and Kansas.

When Colorado residents, including many miners, drew the boundaries for the extralegal Jefferson Territory, the same line was drawn with Kansas, exemplifying inhabitants’ agreement with Kansas’ proposed boundary line. Kansas became a state in 1861, solidifying the boundaries voted on in the Wyandotte constitution.

Congress drew Colorado’s western borders according to the equitable principles outlined in Part 1, and with the western landscape largely open, Congress had a chance to make border divisions as equal as possible. The prairie states of North Dakota, South Dakota, Nebraska, and Kansas all have three latitudinal degrees of height. Colorado, Wyoming, and Montana have four latitudinal degrees of height – the extra degree, given out of fairness, allows for the less arable agricultural land these states share. Colorado, Wyoming, the Dakotas, Oregon, and Washington also have nearly seven longitudinal degrees of width per state. This was intentionally done to promote border equality in the western states. Therefore, the western border Colorado shares with Utah was drawn to give the state seven longitudinal degrees of width from the border with Kansas.

The northern border of Colorado was initially proposed to be drawn at the 42nd parallel, aligning with a 1790 agreement called the Nootka Convention, which was signed between England and Spain as a way of dividing their interests in western North America. This line currently provides borders for Oregon, California, Idaho, Nevada, and Utah.

However, Congress wanted to ensure that four longitudinal degrees of height in Colorado were observed, so the northern border was lowered by a degree, as the southern border with New Mexico Territory had already been loosely planned in 1850. This allowed Wyoming and Montana to have four longitudinal degrees of height when they became states years later.

The northern border of Colorado was initially proposed to be drawn at the 42nd parallel, aligning with a 1790 agreement called the Nootka Convention, which was signed between England and Spain as a way of dividing their interests in western North America. This line currently provides borders for Oregon, California, Idaho, Nevada, and Utah. However, Congress wanted to ensure that four longitudinal degrees of height in Colorado were observed, so the northern border was lowered by a degree, as the southern border with New Mexico Territory had already been loosely planned in 1850. This allowed Wyoming and Montana to have four longitudinal degrees of height when they became states years later.

Colorado’s southern border with New Mexico was largely determined by the territorial acts of Utah and New Mexico in 1850 and has been rooted in controversy and violence. Colorado residents initially lobbied for Jefferson Territory to include northern New Mexico. There were several gold mines in the north central part of New Mexico Territory, and Coloradans wanted access to as much gold as possible to sustain its thriving mining industry. This expansion also unconstitutionally included a corner of Texas. When Congress set the southern border at the 37th parallel, it did so with the same logic that determined Colorado’s northern border – a desire to create a column of states with the same height and width. Simplicity of shape and size were prioritized over geography, and the border setting truncated the Hispano population in the San Luis Valley of New Mexico Territory. This set off animosity at the local level and in Congress. 

In May of 1862, the House of Representatives debated dividing New Mexico in order to create Arizona Territory, and New Mexico’s delegates voiced anger over Colorado’s border with New Mexico Territory. John S. Watts, the delegate from New Mexico, recalled how residents of the San Luis Valley were betrayed when Colorado Territory was made “merely for the purpose of beautifying the lines of the new Territory of Colorado.” The following year, New Mexico’s legislature expressed resentment at the loss of territory and memorialized Congress about the boundary with Colorado, which had been left unsurveyed. New Mexico claimed that Colorado had taken advantage of the unsurveyed land and had started exercising their authority much further south than they were entitled to. 

In 1865, New Mexico delegate Francisco Perea spoke before the House Committee on the Territories in favor of bringing the San Luis Valley settlements back into New Mexico Territory. He derided the “evenness and symmetry” of Colorado’s southern boundary, stating that the focus on a straight border cut off a fertile part of New Mexico and betrayed the long-standing interests of people who had always belonged to the rest of the New Mexico Hispano culture. His sentiments were echoed by the Santa Fe Weekly Gazette, which wrote that although clean-cut borders were pleasing to the eye, the border setting between New Mexico and Colorado did a disservice to the local population of Hispanos. In the end, Congress refused to change Colorado’s southern border, beyond addressing small surveying inaccuracies.

Surveying ambiguities over the exact location of the border were left unresolved by Congress over the years, despite mounting frustration from New Mexico. In 1925, the US Supreme Court deemed that although a more accurate survey of the border existed, the boundary in force took precedence over a later survey. This confirmed that New Mexico would officially lose thousands of acres to Colorado.

So it is that Colorado stretches from 37 degrees to 41 degrees latitude and 25 degrees to 32 degrees longitude. And you might be surprised to learn that it does not have four sides, but 697 – due to a large amount of small surveying errors. There have been attempts to change Colorado’s borders; as recently as 2013, northeastern Colorado county commissioners encouraged a small movement for the area to become its own state, which would be known as North Colorado or New Colorado. This was mostly a symbolic discussion, as some Colorado counties wanted to make a statement against policies being made at the state level. The boundaries determined by the state constitution in 1876, however, have not changed since Colorado became a state.

Colorado’s borders were influenced by a desire by the US government to create states of equitable size, placing a priority on geometric design instead of working around or with geographic barriers. Colorado’s four borders are consistent with this policy and have given us a uniquely symmetrical shape and size on the nation’s map.

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[1] Everett, “Creating the American West,” 14.

[2] To read more about Colorado’s failed attempts at achieving statehood before 1876, please see the following article: https://www.denverpost.com/2006/07/31/civil-rights-role-in-colorado-statehood/

[3] Gower, “Kansas Territory and Its Boundary Question.”

References:

Abbott, Carl, Stephen J Leonard, and Thomas J Noel. Colorado: A History of the Centennial State. Fifth. Boulder, Colorado: University Press of Colorado, 2013.

American Library Association. “Indigenous Tribes of Colorado.” American Library Association, November 21, 2017. https://www.ala.org/aboutala/offices/denver-colorado-tribes.

“Articles of Confederation (1777).” National Archives and Records Administration. Accessed August 31, 2023. https://www.archives.gov/milestone-documents/articles-of-confederation#:~:text=The%20Articles%20of%20Confederation%20were,day%20Constitution%20went%20into%20effect

Berwanger, Eugene H. The Rise of the Centennial State: Colorado Territory, 1861-76. Urbana, Illinois: University Of Illinois Press, 2007.

Cengage. “Jefferson Territory | Encyclopedia.com.” www.encyclopedia.com. Accessed June 6, 2023. https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/jefferson-territory.

Everett, Derek R. Creating the American West: Boundaries and Borderlands. Norman, Oklahoma: University of Oklahoma Press, 2014.

Frederic Logan Paxson. History of the American Frontier, 1763-1893. Cambridge, Massachusetts: The Riverside Press, 1924.

‌Geurts, Jennie. 2014. “How Rivers Shaped the Shape of Colorado.” Water Education Colorado. July 24, 2014. https://www.watereducationcolorado.org/publications-and-radio/blog/how-rivers-shaped-the-shape-of-colorado/.

Gower, Calvin. “Kansas Territory and Its Boundary Question, 1: ‘Big Kansas’ or ‘Little Kansas.’” Www.kshs.org 33, no. 1 (1967): 1–12. https://www.kshs.org/p/kansas-historical-quarterly-kansas-territory-and-its-boundary-question/13180.

History, Art & Archives: United States House of Representatives. “Draft Bill for Colorado Territory | US House of Representatives: History, Art & Archives.” history.house.gov. Accessed June 6, 2023. https://history.house.gov/HouseRecord/Detail/15032436207.

History Colorado. “Carving up a Continent: State Boundaries in the American West, Feat. Dr. Derek Everett.” www.youtube.com, October 5, 2021. https://www.youtube.com/watch?v=EUit0Mj5QH8.

History Colorado, and Michael Troyer. “Colorado Territory | Articles | Colorado Encyclopedia.” Coloradoencyclopedia.org, February 25, 2016. https://coloradoencyclopedia.org/article/colorado-territory.

Humeyumptewa, Aleks, and Tracie Etheredge. “An Inventory of the Records of Arapahoe County, Colorado.” Denver, Colorado: The Colorado Historical Society, 1994.

“Is Colorado a Square State?” 2016. Denver Public Library History. August 1, 2016. https://history.denverlibrary.org/news/colorado-square-state.

Jacobs, Frank. “Colorado Is Not a Rectangle—It Has 697 Sides.” Atlas Obscura. Big Think, April 14, 2023. https://www.atlasobscura.com/articles/is-colorado-a-rectangle.

Library Of Congress, and Sponsoring Body Library Of Congress. Center For The Book. How the States Got Their Shapes. Washington, D.C.: Library of Congress, -07-15, 2008. Video. https://www.loc.gov/item/2021687996/.

Maness, Jack. “When Colorado Was Kansas, and the Nation Was (Even More?) Divided.” Denver Public Library, January 26, 2017. https://history.denverlibrary.org/news/when-colorado-was-kansas-and-nation-was-even-more-divided.

Paxson, Frederic. “The Boundaries of Colorado.” The University of Colorado Studies 2, no. 2 (July 1904).

Stein, Mark. How the States Got Their Shapes. New York: Smithsonian Books/Collins, 2008.

The U.S. Today, with Dates of Statehood Wall Map. Mapszu. Accessed June 6, 2023. https://cdn.shopify.com/s/files/1/0268/2549/0485/products/maps.com-the-u.s.-today-with-dates-of-statehood-wall-map_2400x.jpg?v=1572562951.

Trembath, Brian. “Jefferson Territory: The Renegade State That Almost Replaced Colorado.” Denver Public Library, June 24, 2020. https://history.denverlibrary.org/news/jefferson-territory-renegade-state-almost-replaced-colorado.

www.native-languages.org. “Colorado Indian Tribes and Languages.” Native Languages of the Americas. Accessed June 6, 2023. http://www.native-languages.org/colorado.htm.

Wikipedia. “Colorado Territory,” June 2, 2023. https://en.wikipedia.org/wiki/Colorado_Territory.

Wikipedia. “Four Corners,” May 7, 2023. https://en.wikipedia.org/wiki/Four_Corners#:~:text=The%20Four%20Corners%20area%20is.

Zimmer, Amy. “Jefferson’s Legacy in Colorado.” www.coloradovirtuallibrary.org. Colorado Virtual Library, April 11, 2013. https://www.coloradovirtuallibrary.org/resource-sharing/state-pubs-blog/jeffersons-legacy-in-colorado/.

by Sarah Meisch

How State Lines are Drawn

Looking at a map of the United States, one spots a difference between the symmetrical states in the West and the more irregular borders of the East. At first glance, Colorado seems to have been easily drawn with its four clean borders. But why don’t we have the winding borders the eastern states have? Why are our mountains in the middle of the state, rather than drawn as a border? Is there a reason for the way our state cuts into part of Nebraska? This two-part series will address these questions and more, showing how the placement of Colorado’s state and territorial lines was part of a grander vision for political and cartographical harmony across the United States.

Throughout its history, the US has drawn its state and territorial borders according to geometry, with a focus on equity between the states and their resources. The Confederation government (1781-1789) solidified the Enlightenment-era precedent of drawing boundaries in straight lines through several ordinances in the 1780s, creating a distinct preference for geometry over geography. Most scholars of boundary-making have expressed disapproval of this approach, with historian James Bryce writing in the 1880s that state lines “are for the most part not natural boundaries fixed by mountain ranges, nor even historical boundaries due to a series of events, but purely artificial boundaries determined by an authority which carved the national territory into strips of convenient size.” 

In the US, only part of a single state line follows a chain of mountains; this line lies along the Continental Divide dividing Idaho and Montana. Only one-third of states incorporate rivers into their boundaries, and outside of relatively small surveying errors, American states are generally neat and well-defined. It was always the intention of the US government to create cleaner boundaries based on straight lines, rather than borders based on unpredictable natural barriers. This explains the confusion over the state boundaries here in Colorado, as according to historian Derek Everett “geographically, there is no sensible reason for the state of Colorado to exist….[T]he simple rectangle that demarcates Colorado’s boundaries affords practically nothing…capable of bringing this disparate region into a single political entity.”^[1]

However, in spite of the criticism aimed at geometric boundary-making, drawing lines based on geography has its drawbacks. Rivers are unreliable boundaries because they change dramatically over time; there have been several issues with the Missouri River as a boundary-maker over the years, as parts of Nebraska were found on the Missouri side of the river in the 1870s. Only the most entrenched and immovable rivers can realistically be used as boundaries, but these make up a very small portion of rivers. When the western states were being divided, there was a bit of public support for placing major rivers in the center of states instead to encourage riverine city and commercial development, but these petitions ultimately failed to convince Congress. 

Mountain ranges as natural barriers are also difficult to use as state lines. It would be enormously difficult to survey a mountain range from peak to peak and cleft to cleft in all kinds of weather, even with modern technology. In the 1890s, scientist and explorer John Wesley Powell recommended state and county lines be drawn according to river basins, which are far less changeable over time than rivers, and also prioritize natural boundaries over geometric lines. There were many limitations with his plan for law enforcement and land ownership, and his suggestions came after the continental US had been divided up; therefore, it was too late to practically consider implementing Powell’s proposal.

Congress attempted to create equality between states, drawing lines in order for states to share access to water, agriculture, and maintain relative equality of size. States that are far larger than others, such as California, Texas, and Alaska, are states that created themselves. When Congress asked California and Texas to readjust their borders after admittance to the Union, few borders were actually altered, and the economic benefit of these states being part of the US outweighed the high risk of alienating them to preserve boundary equality.

Slavery was another integral piece of boundary making. To maintain an uneasy peace in the years leading up to the Civil War, the North and South would admit a slave-owning state when they would add a free state. This tit-for-tat division influenced the border placement of many states near the 36th and 37th parallels.

Even as new territories and states were in the offing, the US Congress had an eye on the future. Congress placed an emphasis on intentional planning, allowing for and encouraging the explosive growth in the West. The tapestry of our nation could very well have been checkered with states of different sizes, shapes, and names from what exist today, if it hadn’t been for the vision of equity and symmetry championed by our Enlightenment thinkers.

Stay tuned for Part 2 of this piece next week, which will explore the reasons behind Colorado’s borders, and how they have changed over time!

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[1] Everett, “Creating the American West,” 11.

References:

Abbott, Carl, Stephen J Leonard, and Thomas J Noel. Colorado: A History of the Centennial State. Fifth. Boulder, Colorado: University Press of Colorado, 2013.

American Library Association. “Indigenous Tribes of Colorado.” American Library Association, November 21, 2017. https://www.ala.org/aboutala/offices/denver-colorado-tribes.

“Articles of Confederation (1777).” National Archives and Records Administration. Accessed August 31, 2023. https://www.archives.gov/milestone-documents/articles-of-confederation#:~:text=The%20Articles%20of%20Confederation%20were,day%20Constitution%20went%20into%20effect

Berwanger, Eugene H. The Rise of the Centennial State: Colorado Territory, 1861-76. Urbana, Illinois: University Of Illinois Press, 2007.

Cengage. “Jefferson Territory | Encyclopedia.com.” www.encyclopedia.com. Accessed June 6, 2023. https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/jefferson-territory.

Everett, Derek R. Creating the American West: Boundaries and Borderlands. Norman, Oklahoma: University of Oklahoma Press, 2014.

Frederic Logan Paxson. History of the American Frontier, 1763-1893. Cambridge, Massachusetts: The Riverside Press, 1924.

‌Geurts, Jennie. 2014. “How Rivers Shaped the Shape of Colorado.” Water Education Colorado. July 24, 2014. https://www.watereducationcolorado.org/publications-and-radio/blog/how-rivers-shaped-the-shape-of-colorado/.

Gower, Calvin. “Kansas Territory and Its Boundary Question, 1: ‘Big Kansas’ or ‘Little Kansas.’” Www.kshs.org 33, no. 1 (1967): 1–12. https://www.kshs.org/p/kansas-historical-quarterly-kansas-territory-and-its-boundary-question/13180.

History, Art & Archives: United States House of Representatives. “Draft Bill for Colorado Territory | US House of Representatives: History, Art & Archives.” history.house.gov. Accessed June 6, 2023. https://history.house.gov/HouseRecord/Detail/15032436207.

History Colorado. “Carving up a Continent: State Boundaries in the American West, Feat. Dr. Derek Everett.” www.youtube.com, October 5, 2021. https://www.youtube.com/watch?v=EUit0Mj5QH8.

History Colorado, and Michael Troyer. “Colorado Territory | Articles | Colorado Encyclopedia.” Coloradoencyclopedia.org, February 25, 2016. https://coloradoencyclopedia.org/article/colorado-territory.

Humeyumptewa, Aleks, and Tracie Etheredge. “An Inventory of the Records of Arapahoe County, Colorado.” Denver, Colorado: The Colorado Historical Society, 1994.

“Is Colorado a Square State?” 2016. Denver Public Library History. August 1, 2016. https://history.denverlibrary.org/news/colorado-square-state.

Jacobs, Frank. “Colorado Is Not a Rectangle—It Has 697 Sides.” Atlas Obscura. Big Think, April 14, 2023. https://www.atlasobscura.com/articles/is-colorado-a-rectangle.

Library Of Congress, and Sponsoring Body Library Of Congress. Center For The Book. How the States Got Their Shapes. Washington, D.C.: Library of Congress, -07-15, 2008. Video. https://www.loc.gov/item/2021687996/.

Maness, Jack. “When Colorado Was Kansas, and the Nation Was (Even More?) Divided.” Denver Public Library, January 26, 2017. https://history.denverlibrary.org/news/when-colorado-was-kansas-and-nation-was-even-more-divided.

Paxson, Frederic. “The Boundaries of Colorado.” The University of Colorado Studies 2, no. 2 (July 1904).

Stein, Mark. How the States Got Their Shapes. New York: Smithsonian Books/Collins, 2008.

The U.S. Today, with Dates of Statehood Wall Map. Mapszu. Accessed June 6, 2023. https://cdn.shopify.com/s/files/1/0268/2549/0485/products/maps.com-the-u.s.-today-with-dates-of-statehood-wall-map_2400x.jpg?v=1572562951.

Trembath, Brian. “Jefferson Territory: The Renegade State That Almost Replaced Colorado.” Denver Public Library, June 24, 2020. https://history.denverlibrary.org/news/jefferson-territory-renegade-state-almost-replaced-colorado.

www.native-languages.org. “Colorado Indian Tribes and Languages.” Native Languages of the Americas. Accessed June 6, 2023. http://www.native-languages.org/colorado.htm.

Wikipedia. “Colorado Territory,” June 2, 2023. https://en.wikipedia.org/wiki/Colorado_Territory.

Wikipedia. “Four Corners,” May 7, 2023. https://en.wikipedia.org/wiki/Four_Corners#:~:text=The%20Four%20Corners%20area%20is.

Zimmer, Amy. “Jefferson’s Legacy in Colorado.” www.coloradovirtuallibrary.org. Colorado Virtual Library, April 11, 2013. https://www.coloradovirtuallibrary.org/resource-sharing/state-pubs-blog/jeffersons-legacy-in-colorado/.

by Jery Payne

1. Is Adam a Burglar?

Adam worked at a truck shop. His duties included delivering clothes to the other workers’ lockers. Although it was possible to secure the lockers using a padlock, none of the workers actually used locks. The workers should have used the locks, however, because several workers noticed money missing from their work lockers. Suspecting theft, one of the workers installed a small video camera in the room. The camera recorded Adam looking through the lockers and taking items from them. This led to Adam’s arrest for burglary and theft.

At trial, Adam was found guilty of the burglary charge. Here’s the law, section 18-4-204, C.R.S., forbidding burglary:

A person commits third degree burglary if with intent to commit a crime he [sic] enters or breaks into any vault, safe, cash register, coin vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other apparatus or equipment whether or not coin operated.

Adam appealed the guilty verdict, but the appeals court affirmed the conviction because he “entered or broke into what is tantamount to a vault.” The Colorado Supreme Court, however, reversed the appeals court because of ejusdem generis.

Ejusdem generis is a Latin phrase that means “of the same kind or class.” This doctrine of statutory interpretation holds that, when a catchall phrase follows a list, the catchall phrase should be read to apply only to persons or things that are of the same kind as the items on the list. This means that the catchall phrase should not be read to cover everything that it says it covers. Instead, the catchall phrase should be limited to covering persons or things that are similar or in the same class as the things on the list.

Ejusdem generis is actually a specific application of another rule of statutory interpretation: Every word in a statute must be given effect. When, for example, a statute applies to raspberries, strawberries, or other fruit, the words raspberries and strawberries are redundant with the word fruit. Therefore, reading fruit literally to mean all fruit means that the words raspberries and strawberries don’t do anything, and they don’t have any effect. So courts have decided that, to give every word meaning, we have to use the redundant items on the list to narrow the meaning of the catchall.

Returning to Adam’s burglary case, the Colorado Supreme Court reasoned that all the items in the statutory list “are almost always used to contain money or valuables exclusively: vaults, safes, cash registers, coin vending machines, product dispensers, money depositories, safety deposit boxes, coin telephones, and coin boxes.” Therefore, the list doesn’t include equipment that holds mere property; the list includes only equipment that holds money and valuables. “Thus, whether any given container falls within the purview of the statute depends on whether the apparatus or equipment is merely a storage receptacle or is of the same kind or class as those items enumerated in the statute, that is, whether the container is designed for the safekeeping of money or valuables[.]” So, the Colorado Supreme Court held that Adam had not committed burglary.

2. Ejusdem Generis Is Squirrely.

Imagine that you’re a court interpreting a statute that reads:

To be imported into Colorado, cherries, tomatoes, cranberries, and other fruit must be inspected by the commissioner of agriculture.

The statute has three fruits and the catchall of other fruit, so this statute should be read in light of ejusdem generis. The catchall word, fruit, presumably shouldn’t be read to cover all fruit, so you must decide what types of fruit aren’t covered. Here are some options:

• The listed fruit, cherries, tomatoes, and cranberries, aren’t citrus, so no limes;
• The listed fruit have skin that is normally eaten, so no pineapples;
• The listed fruit are red, so no blueberries; or
• The listed fruit are spherical, so no bananas.

Which of these options is the right class? Which do you choose? Do you choose all of them?

Wouldn’t it be better to avoid this guessing game?

Sutherland’s Statutory Construction explains that ejusdem generis “expresses a meaningful insight about language usage that can be a relevant aid, if not a simple and certain exponent….”[1] When it passes a law, the General Assembly is trying to achieve a goal. Doesn’t this mean that the body wants as much certainty as possible?

The concern isn’t whether the rule makes sense; the concern is that the rule is a wellspring of uncertainty.

In Adam’s burglar case, the appeals court believed the statute applied to lockers, but the Colorado Supreme Court held that it didn’t. Regardless of what the General Assembly wanted, two courts came to opposite conclusions. Wouldn’t it be better to draft the statute so that both courts read the statute the same way?

3. Don’t Shroud the Law in A Mist; Do Away with The List!

How should we improve the burglary statute? We can avoid the issue by not using a list:

• If the intention is to make the burglary statute apply to lockers, then forgo the list. Write something like, “A person commits third degree burglary if, with intent to commit a crime, the person enters or breaks into a container used to store property.”
• If the intention is, as the Colorado Supreme Court held, to apply only to a container that is used to store valuables, write something like, “A person commits third degree burglary if, with intent to commit a crime, the person enters or breaks into a container used to store money or valuable property.”

The ambiguity is removed by redrafting the provision to get rid of the list.

4. Sometimes, A Belt and Suspenders Are Necessary.

I imagine that every drafter at the Capitol has heard from a bill’s proponents that “We need a belt­-and-suspenders” provision. This is legislative shorthand for “we may need some redundancy.” In stakeholder negotiations, it is sometimes necessary to list an item or two in a statute to assuage the concerns of a nervous stakeholder.

For example, a stakeholder may be worried that the word fruit won’t be read to include tomatoes and peppers. This is frequently what leads to phrases like tomatoes, peppers, and other fruit. Recall that ejusdem generis applies when a catchall follows a list, so the word fruit may be limited in some way to not apply to all fruit. Maybe a court will hold that the phrase tomatoes, peppers, and other fruit applies only to less-sweet fruit or, maybe, only to fruit that’s native to North America. If all fruit is meant to be covered, the phrase should be rewritten.

This is when it makes sense to use the word including:

To be imported into Colorado, fruit, including tomatoes and peppers, must be inspected by the commissioner of agriculture.

This is better than tomatoes, peppers, and other fruit because courts usually hold that the words includes and including enlarge or extend rather than limit the general term. Here are some examples:

• Colorado Common Cause v. Meyer: “The word ‘includes’ has been found by the overwhelming majority of jurisdictions to be a term of extension or enlargement….”
• Arnold v. Colorado Dept. of Corrections: “The word ‘including’ is ordinarily used as a word of extension or enlargement….”
• Southern Ute Indian Tribe v. King Consol. Ditch Co: “A statutory definition of a term as ‘including’ certain things does not restrict the meaning to those items included. The word ‘include’ is ordinarily used as a word of extension or enlargement.”

One note of caution: it is possible to find cases where an including phrase has been held to be limiting out of a desire to give every word effect. An example is Shelby Cnty. State Bank v. Van Diest Supply Co. This case dealt with a lien on

[A]ll inventory, including, but not limited to, agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor ….”[Emphasis added.]

In this case, the 7^th circuit explained that:

[I]t would be bizarre as a commercial matter to claim a lien in everything, and then to describe in detail only a smaller part of that whole. … But if all goods of any kind are to be included, why mention only a few? A court required to give “reasonable and effective meaning to all terms” must shy away from finding that a significant phrase (like the lengthy description of chemicals and fertilizers we have here) is nothing but surplusage.

So the court did interpret the word including as limiting, and the judges didn’t care that the contract used the phrase but not limited to. Therefore, it is better to avoid using a list. But if that isn’t an option, then use an including phrase.

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[1] N. Singer, 2A Sutherland Statutory Construction § 47.07 (Seventh Edition)

by Faith Marcovecchio

It’s Friday morning, and the Committee of the Whole is hearing the second reading of bills. As you glance at the next bill up, you realize you need an amendment. Quick—to the amendment clerk!

But what is the amendment clerk?

You’ll find this helpful person at the front of each chamber, at a small desk to the left of the dais. The amendment clerk is a nonpartisan staff member who can, in consultation with the drafter of the bill, draft quick, nonsubstantial amendments for members during second or third readings.

In Colorado, the amendment clerk is an employee of the Office of Legislative Legal Services and can be either an attorney or a legislative editor who has other drafting and editing responsibilities. In other states, the position is similarly filled by an attorney from the state legislature’s drafting office, but amendment clerking is that attorney’s primary responsibility during session, not something he or she does in addition to drafting bills. And then there are states where floor amendments are drafted exclusively by the bill’s drafter—there is no amendment clerk at all.

The Office of Legislative Legal Services took over staffing the amendment clerk desk in 1999. Previous to that, part-time House and Senate staff filled this role. However, it made sense for year-round staffers who were already drafting and editing legislation to also sit in this hot seat because of their understanding of the Colorado Revised Statutes and the General Assembly’s procedures, drafting style, and software.

The amendment clerk desk can be a hive of activity during debate of complex or controversial bills, with legislators and staff vying for the amendment clerk’s time to draft member amendments, contact bill drafters, prepare Committee of the Whole amendments, or contact an attorney to clarify rules. It may be necessary, at times, for the amendment clerk to prioritize requests from legislators. For example, during second reading, the amendment clerk must prepare second reading amendments before Committee of the Whole amendments.

With so many people tugging at the amendment clerk’s sleeve, there are several things legislators can do to get what they need from the amendment clerk in a timely fashion. If at all possible, members should contact the drafter of bill before the bill is on second reading to request and discuss the amendment. When making an amendment request on the floor during debate, members should provide as much time as possible for the drafter of the bill and the amendment clerk to prepare the amendment to ensure that the language and law are accurate. If there isn’t enough time, members may need to request a short recess while the amendment is being prepared. Another option to allow for the proper time to draft floor amendments, especially when multiple floor amendments are in play, is to ask the Majority Leader to lay the bill over until later in the day’s calendar or a later date.

Beyond drafting short amendments, amendment clerks can assist members in several other ways. Need to speak to your drafter about a more complex amendment to a bill? The amendment clerk can quickly connect you to the attorney in question. Need a copy of one your bills? The clerk can print one for you. Wondering about particular language in existing statute or legislative rule? The clerk has the full Colorado Revised Statutes and legislative rules on hand and can look up what you need, provided it’s not too extensive. And throughout the proceedings, the amendment clerk is communicating what is happening on the floor in emails to the Office of Legislative Legal Services, Legislative Council Staff, and the Joint Budget Committee to help staff members from those agencies assist legislators in the chambers.