As I proceed in this very opinionated review of our constitution I will quote each piece in
Green if I think it is fully in line with the Declaration of Independence (DOI) and the good parts of the Federal Constitution.
Orange means I have some reservations and
Red means I consider it counter to the ideas expressed in the DOI and by our founding fathers.
My comments are in Black.
My purpose here is not to tear the constitution to shreds but to help the reader think about how critically every citizen must read and digest law and how to understand what core principles are necessary and which are not.
You probably never got this kind of attention to law from your public education system.
APPROVED JULY 3, 1890
We, the people of the State of Idaho,
grateful to Almighty God for our freedom,
to secure its blessings and promote
our common welfare do establish
The preamble is important as it gives us the overall goal of the document. The preamble acknowledges a creator, which is extremely important, as it delegates authority to a higher place than mankind. It is impossible to secure our freedoms without this key premise. It does not attribute our blessings to God but to “It’s” (ie: freedom’s) existence. It acknowledges that our freedom promotes our common welfare – NOT government but it also does not attribute those blessings directly to God. Lastly it places “We the People” as the establishers, and therefore, the owner’s of this constitution.
However there is a slight contradiction here in that it is “We the People OF the State of Idaho” which implies that the state came before the people. Note that State of Idaho is capitalized – it is a proper noun – a name given it by its founders but how can one be a member of a named entity before it is created?
ARTICLE I – DECLARATION OF RIGHTS
The declaration of rights comes first, implying that these rights are very important. However, keep in mind that the constitution doesn’t declare or create our rights according to our founding fathers. It “secures” these rights and they don’t all have to be specifically mentioned to be our rights. The DOI summarizes these rights as “self evident” and lists that among them are life, liberty and the pursuit of happiness. Trying to list our rights in a constitution can be good in that it makes a very clear wall to secure the rights mentioned, but at the same time, it tends to reduce the importance of any other “self evident” rights we may have that weren’t specifically mentioned. The simpler this is the better but these days our “self evident” rights are not the same as perceived back when this document was first written.
SECTION 1. INALIENABLE RIGHTS OF MAN. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.
Why are our rights Inalienable and what does that mean? Inalienable means that proper law cannot violate those rights because they come from God and not from Man. This references nature – the nature of man – it is a plea to natural law and not directly to a creator. Defending it is emphasized here, and I like that because it is usually the first piece that is taken away from us as a republic decays.
Safety is not an inherent or inalienable right – it is a state of circumstances that cannot ever be completely controlled by man. This is a false premise and a dagger to freedom. It is standard operating procedure of demagogues to invent an impossibe utopian idea and then use that as the justification for evil later on.
SECTION 2. POLITICAL POWER INHERENT IN THE PEOPLE. All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.
This clearly states the American idea that the people preside over their governments and not the other way around. However, there is an interesting juxtaposition of a completely different idea marked in orange. This implies that special privileges or immunities CAN be granted legitimately by government. It grants the legislature (the representatives of “We the People”) the right to abolish or change those privileges. This feels like a back door to me. It is not clear to me what these legit privileges might be. If our rights are inherent and unalienable, how can special privileges be granted to some individuals and not to others? Note that Section 1 emphasized “equal” rights and Section 2 emphasizes equal protection.
I put the words “for their” in orange because I would rather it have said “by them for their” which clearly states that We the People made this government for us not someone elase.
Note also that this kind of commentary I am giving was not afforded to the original delegates to the federal constitutional convention. According to the Pennsylvania Minority Report, the delegates were only allowed to vote up or down on each part of the constitution. No discussion or editing was allowed at the convention. This was a specific problem for the delegates according to the above mentioned report.
SECTION 3. STATE INSEPARABLE PART OF UNION. The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.
This squarely places Idaho with the North in the civil war, denying a state’s right to secede from the union. The southern argument would be that the federal constitution mentions the right to contract as an inalienable right. If that right is granted individually, it must be granted collectively. If a state has a right to join the federal union, it logically should have the right to leave that union, especially if the federal government or other states begin to violate the very constitution they were created under.
Note also how this is again in juxtaposition with acknowledging the Federal Constitution which itself recognizes the right to contract. This section is thus self-contradictory.
SECTION 4. GUARANTY OF RELIGIOUS LIBERTY. The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or excuse acts of licentiousness or justify polygamous or other pernicious practices, inconsistent with morality or the peace or safety of the state; nor to permit any person, organization, or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship. Bigamy and polygamy are forever prohibited in the state, and the legislature shall provide by law for the punishment of such crimes.
This is a sticky one. Section 4 is actually dictating morality while saying that there is complete freedom of worship. What is a civil vs political right? And how is it that a “privilege” cannot be denied someone? Isn’t the definition of “privilege” inherently revocable? Is this saying that a privilege granted for secular reasons cannot be revoked for religious reasons? It also seems strange to refer to the “safety of the state” rather than the “safety of the people”. Denying a person the right to give any advice seems infringing on freedom of speech. How does one distinguish advice from opinion? The idea that the state has dominion over marriage is legit if it is enforcing biblical mandates based on the ideal union of Adam and Eve, but even God granted to Abraham (and many others) the option of polygamy and divorce even when God himself was dismayed at man’s hard heart. This seems like a move against the neighboring Mormons in Utah to me and really doesn’t belong in a constitution. How is polygamy a crime if all parties involved agree to it and perceive no harm to themselves or others? There is no reference to a higher authority or inherent right or specific harm to society stated here. It is again, self contradictory to me and again juxtaposes freedom of religion with specific regulations upon the same. I am simply missing what makes polygamy a “crime”. It could be that our sexual norms in society have changed so much that I have become a “liberal” on this issue.
The founders referenced the phrase “true religion” which the bible defines as supporting widows and orphans. I think that a “true religion” has to be a form of belief that does no harm to others or to society. If that is correct, then specifying how polygamy (bigamy is excluded here because it involves lying to one of the spouses) is harmful to others or society in clear terms would seem to be a requirement before banning it. Divorce and remarriage is a form of serial polygamy and is generally accepted in our society, though not so much when this constitution was written.
So to be clear, I am not pro or con polygamy, I am against any law that restricts activities that are not harming anyone. Polygamy may be harmless in one case and very harmful in another.
Note that “in the state” is not defined in this document and is a critical thing to have in any proper constitution. The state is a collective group of people defined by a physical land boundary and other requirements. Many state constitutions have had their land boundary descriptions removed since the civil war and I think the reason for this is that the state names have changed. In this case, “Idaho” is not the same thing as the “State of Idaho”. Watch for those capitalized words – they are all proper nouns in English grammar.
SECTION 5. RIGHT OF HABEAS CORPUS. The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or invasion, the public safety requires it, and then only in such manner as shall be prescribed by law.
Habeas Corpus, in my mind, is another way of saying “due process” and “innocent till proven guilty” and suspending this can only be allowed when the very life of the people (not the state) is on the line. We have seen how emergencies have been used to usurp, even temporarily, powers not granted under normal circumstances by the constitution so I see securing this idea as good to have. It is a little funny how “due process” i.e. “prescribed by law” is enforced while at the same time suspending it. All this language is ok if we have a working justice system with reasonable judges and lawyers – but we don’t have that anymore and that is, I believe, our chief problem to overcome.
SECTION 6. RIGHT TO BAIL – CRUEL AND UNUSUAL PUNISHMENTS PROHIBITED. All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted.
The only stickler here is “what is reasonable vs excessive”? Again we rely on a reasonable justice system to sort this out.
SECTION 7. RIGHT TO TRIAL BY JURY. The right of trial by jury shall remain inviolate; but in civil actions, three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of all parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court. Provided, that in cases of misdemeanor and in civil actions within the jurisdiction of any court inferior to the district court, whether such case or action be tried in such inferior court or in district court, the jury shall consist of not more than six.
Inviolate huh? Then we proceed to violate it here, waived upon consent, restricting the size of the jury in lower courts and this weird lingo on ¾ or 5/6 of a jury can render a verdict. Does this mean that a unanimous verdict is not required? Seems so. I would say that a not-guilty verdict might be ok to not need unanimous approval but a guilty verdict to me seems to have to be obvious to avoid punishing the innocent. I would always fail on the safe side here – that being, not harming the innocent.
A jury is a key check on the judiciary and just about the only one we have. The number 12 comes from biblical precedent passed on through the Saxxons to Britan and into the Common Law. 12 in the bible is considered to represent perfection and authority.
SECTION 8. PROSECUTIONS ONLY BY INDICTMENT OR INFORMATION. No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases arising in the militia when in actual service in time of war or public danger; provided, that a grand jury may be summoned upon the order of the district court in the manner provided by law, and provided further, that after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefore, upon information of public prosecutor.
“Information” is way different than “sworn testimony”. Hear-say information is normally not allowed in court but here it allows a public prosecutor to basically vouch for another’s information without himself having to swear to its truthfulness. Dispensing with sworn testimony before prosecuting anything to me seems suspect and allows the state to protect itself (or fleece the public) via false accusation too easily. Again this relies on a reasonable justice system to work.
SECTION 9. FREEDOM OF SPEECH. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.
Except on giving advice to commit polygamy and any other caveats we might find in this document. Note also that this is worded very differently than the 1st amendment of the Bill of Rights which says “Congress shall make no law…” while this language grants a priviege in that it doesn’t even recognize free speech as a right.
SECTION 10. RIGHT OF ASSEMBLY. The people shall have the right to assemble in a peaceable manner, to consult for their common good; to instruct their representatives, and to petition the legislature for the redress of grievances.
This qualifies the reason for the assembly being necessary to exercise the right. Certainly assembly should not be restricted except for an unlawful goal to be achieved by that assembly. Religious services are not protected here and we saw how this right was abridged during the fake pandemic of 2020. Again, public safety is an impossible thing to guarantee and is an excellent excuse for abuse.
SECTION 11. RIGHT TO KEEP AND BEAR ARMS. The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.
This is pretty good and clear to me. The idea that a convicted felon can’t use a firearm is only needed if one does not allow the death penalty. Felonious crimes are serious ones but one can read the book “Three Felonies a Day” to know that today, the courts can convict a “ham sandwich” and make almost anything a crime sufficient to infringe on this key right to defend ones self.
If a person can “do his time” to pay for his crime, why is this key right denied him once that is accomplished? Sounds to me like “once found guilty, always guilty” which of course contradicts “innocent till proven guilty”.
Another way to put my point is: Don’t do harm while trying to prevent it.
SECTION 12. MILITARY SUBORDINATE TO CIVIL POWER. The military shall be subordinate to the civil power; and no soldier in time of peace shall be quartered in any house without the consent of its owner, nor in time of war except in the manner prescribed by law.
Here we have another guarantee immediately revocable by the legislature (guess who can declare war?). If one reads the UN charter you will find every single right guaranteed by that document is followed by this same phrase “unless as prescribed by law”. The same trick is found in the Russian Soviet Socialist Republic’s constitution. It’s a nice back-door to turn a “right” into a “privilege”.
SECTION 13. GUARANTIES IN CRIMINAL ACTIONS AND DUE PROCESS OF LAW. In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law.
This is perfect. Too bad it is constantly violated in practice these days and not enforced. Randy Weaver’s wife, while holding her baby, was murdered without due process and although Weaver won a wrongful death lawsuit against the Federal Government, the perpitrator was never charged for a crime.
SECTION 14. RIGHT OF EMINENT DOMAIN. The necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state. Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefore.
Lots of exceptions here and we know the IDL manages huge amounts of land for the purpose of raising money for “education”. You can write any law you like but if the judiciary does not properly adjudicate cases or the executive does not properly enforce (or not enforce) them, you have a waste of ink on paper.
Note that whenever you read a law that seems too complex, odds are there are back doors or traps therein.
SECTION 15. IMPRISONMENT FOR DEBT PROHIBITED. There shall be no imprisonment for debt in this state except in cases of fraud.
I totally agree. Does that apply to failure to file or pay taxes?
SECTION 16. BILLS OF ATTAINDER, ETC., PROHIBITED. No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall ever be passed.
So we have a right to enforce contracts, now that we don’t have a right to collectively un-join from the federal union. Note that this is enforcing the obligation of contracts and not the right to contract. A bill of attainder voilates of the right of due process by definition. It is a little redundant here but hey, it’s also in the federal constitution.
SECTION 17. UNREASONABLE SEARCHES AND SEIZURES PROHIBITED. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause shown by affidavit, particularly describing the place to be searched and the person or thing to be seized.
It is interesting that it requires a sworn affidavit of probable cause to arrest someone and take them into custody to stand trial, but a prosecutor need only supply information of a crime to the court to convict someone.
SECTION 18. JUSTICE TO BE FREELY AND SPEEDILY ADMINISTERED. Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.
This is good but the current state court rules references a “belligerent litigant list” that denies those people access to the court system. This to me is proof that our state supreme court is not following the constitution. Maybe they ruled that this particular part of the constitution could be ignored if not convienent enough.
SECTION 19. RIGHT OF SUFFRAGE GUARANTIED. No power, civil or military, shall at any time interfere with or prevent the free and lawful exercise of the right of suffrage.
I would have to say that mail-in ballots and machine counting of votes is an infringement on suffrage but I digress.
SECTION 20. NO PROPERTY QUALIFICATION REQUIRED OF ELECTORS – EXCEPTIONS. No property qualifications shall ever be required for any person to vote or hold office except in school elections, or elections creating indebtedness, or in irrigation district elections, as to which last-named elections the legislature may restrict the voters to land owners.
This idea of universal suffrage is not in the federal constitution – it used to restrict the vote counts of black people. Land ownership is a clear test of a skin-in-the-game voter and requiring it would seem to me to be a good check on a welfare state. If a person wants to vote or hold office, just buy a square foot of land from somebody and you’re in. Land ownership clearly would exclude illegal aliens as well or at least make it more difficult for those to vote.
When a republic is converted into a democracy, historically, it grows into socialism until the day the welfare recipients realize they can vote themselves anything they want to, at which point, the democracy collapses.
Our founders specifically warned us about this on many occasions.
SECTION 21. RESERVED RIGHTS NOT IMPAIRED. This enumeration of rights shall not be construed to impair or deny other rights retained by the people.
Yes! We have other rights not delineated here and we aim to keep them.
SECTION 22. RIGHTS OF CRIME VICTIMS. A crime victim, as defined by statute, has the following rights:
(1) To be treated with fairness, respect, dignity and privacy throughout the criminal justice process.
(2) To timely disposition of the case.
(3) To prior notification of trial court, appellate and parole proceedings and, upon request, to information about the sentence, incarceration and release of the defendant.
(4) To be present at all criminal justice proceedings.
(5) To communicate with the prosecution.
(6) To be heard, upon request, at all criminal justice proceedings considering a plea of guilty, sentencing, incarceration or release of the defendant, unless manifest injustice would result.
(7) To restitution, as provided by law, from the person committing the offense that caused the victim’s loss.
(8) To refuse an interview, ex parte contact, or other request by the defendant, or any other person acting on behalf of the defendant, unless such request is authorized by law.
(9) To read presentence reports relating to the crime.
(10) To the same rights in juvenile proceedings, where the offense is a felony if committed by an adult, as guaranteed in this section, provided that access to the social history report shall be determined by statute.
Nothing in this section shall be construed to authorize a court to dismiss a case, to set aside or void a finding of guilt or an acceptance of a plea of guilty, or to obtain appellate, habeas corpus, or other relief from any criminal judgment, for a violation of the provisions of this section; nor be construed as creating a cause of action for money damages, costs or attorney fees against the state, a county, a municipality, any agency, instrumentality or person; nor be construed as limiting any rights for victims previously conferred by statute. This section shall be self-enacting. The legislature shall have the power to enact laws to define, implement, preserve, and expand the rights guaranteed to victims in the provisions of this section.
I’m bleary eyed after reading this one. I would say this is ok provided we have a reasonable justice system. I would have to assume that violating victims’ rights gives the victim the right to sue or otherwise convict the offender – the state – in a due process court. Yet apparently, he would have to do such a counter-suit from prison in many cases as it appears from the final paragraph that the criminal action cannot be stopped by violation of these rights.
There is another provision in this document that does not allow one to recieve remedy when suing the state. Remedy can only be granted in federal court. So much for enforcing this one.
SECTION 23. THE RIGHTS TO HUNT, FISH AND TRAP. The rights to hunt, fish and trap, including by the use of traditional methods, are a valued part of the heritage of the State of Idaho and shall forever be preserved for the people and managed through the laws, rules and proclamations that preserve the future of hunting, fishing and trapping. Public hunting, fishing and trapping of wildlife shall be a preferred means of managing wildlife. The rights set forth herein do not create a right to trespass on private property, shall not affect rights to divert, appropriate and use water, or establish any minimum amount of water in any water body, shall not lead to a diminution of other private rights, and shall not prevent the suspension or revocation, pursuant to statute enacted by the Legislature, of an individual’s hunting, fishing or trapping license.
So we have a “right” to hunt and fish unless the legislature chooses to revoke our “license” to exercise these “rights”. Further, the state can restrict this right to preserve future hunting, fishing and trapping. We have these rights forever except not necessarily now. Recall that a license is permission to do something that is normally illegal.
A lawyer clearly wrote this.
So that does it for Article 1. I did not expect to see so many problems so quickly. Friends, not only are our constitutions hanging by a thread in that they are not upheld as written, but even as written, our rights are contingent and tenuous in many cases. When combined with judges and legislators and executives that don’t really even care about the constitutions we have, it makes one very worried for our future as a free nation.
For now I will stop there and write future installments based on any feedback I get from this first installment.
Enjoy and please make your opinions known in your comments!
Sanford Staab, webmaster and chief pontificator for the Idaho Citizens for Good Government.