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The Bill of Rights is the code we usually think of as protecting our rights. But the New Mexico Constitution also has a bill of rights. Comparing the two is a way to review the rights we have and don’t have, and what they mean.

New Mexico’s bill of rights is in Article II of our constitution. If you want to follow along, the state constitution is on the secretary of state’s website. The United States Constitution is on the National Archives website.

The state bill of rights starts with a declaration of who we are: “The state of New Mexico is an inseparable part of the federal union. …” It goes on: “All political power is vested in and derived from the people: all government of right originates with the people, is founded upon their will and is instituted solely for their good.” That sounds like the statement of “We the People” in the Preamble to the national constitution but, in fact, we New Mexicans have less legislative power than in states that have initiatives and referendums. At least we get to vote on constitutional amendments.

Section 4 says: “All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.” If that sounds familiar, it’s loosely copied from the Declaration of Independence. Unfortunately, there’s nothing like it in the national Constitution.

A common trend in state constitutions is to restate national rights, but with more clarity and detail. It’s not surprising that a constitution written for statehood in 1912 and amended frequently uses more modern language than the 1787 Constitution. 

Our state constitution lists 23 rights, not the 10 of the Bill of Rights. That’s because it includes rights from the main Constitution and the amendments. Also, some rights combined in the U.S. Constitution are separated in the New Mexico Constitution. For example, the First Amendment rights of freedom of speech and freedom of religion are covered separately and in considerably more detail in Sections 17 and 11, respectively.

On the other hand, Section 18 combines parts of the federal 5th and 14th Amendments: “No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person.”

“Our state constitution lists 23 rights, not the 10 of the Bill of Rights. That’s because it includes rights from the main Constitution and the amendments.”

The last line is from the Equal Rights Amendment, which was ratified by New Mexico but not by enough other states to become part of the U.S. Constitution. Sex-based discrimination may be allowed in the United States, but not in New Mexico, and equality hasn’t had the dire effects opponents of the ERA predicted.

Section 6 protects a right to bear arms, but without the controversial militia wording of the Second Amendment: “No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.” 

It also says local government can’t override state gun laws. Reserve and Albuquerque have to follow the same state gun laws, despite their different circumstances. However, a constitutional amendment recently introduced — Senate Joint Resolution 12 — would allow municipalities and counties to make gun laws more restrictive than state laws. I hope we get to vote on it.

New Mexico has other rights not found in the Constitution. First, Section 8 says: “All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The U.S. Constitution says that voting can’t be denied based on race (15th Amendment), sex (19th), failure to pay a poll tax (24th) or age, over 18 (26th). But it doesn’t say citizens can’t be denied the vote for not being a property owner, not passing a crooked literacy test or not having a certain type of ID — all of which have been done in our history. New Mexicans have legal grounds to appeal if unfairly denied the vote.

Here are some other constitutional rights that we enjoy in New Mexico, but not in the United States. Section 21 protects against prison for debt; Section 14 guarantees a right to have charges and testimony interpreted in a language you understand; Section 24 guarantees rights for victims of crimes.

Our bill of rights isn’t finished. Legislators have proposed environmental rights (House Joint Resolution 4 and Senate Joint Resolution 8) and rights for children (Senate Joint Resolution 17). Amendments are difficult, but at least some legislators see our rights as a work in progress.

The views expressed here are those of the author and do not necessarily reflect those of the Southwest Word Fiesta™ or its steering committee.

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Bruce McKinney

Bruce McKinney is a Silver City business owner, close observer of local government and occasional troublemaker. In his column, which appears every other Wednesday, he tries to address big questions from a local perspective. Send comments and ideas to
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We respectfully acknowledge that the entirety of southwestern New Mexico is the traditional territory, since time immemorial, of the Chis-Nde, also known as the people of the Chiricahua Apache Nation. The Chiricahua Apache Nation is recognized as a sovereign Native Nation by the United States in the Treaty of Amity, Commerce, and Friendship of 1 July 1852 (10 Stat. 979) (Treaty of Santa Fe ratified 23 March 1853 and proclaimed by President Franklin Pierce 25 March 1853).

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