Op-Ed: Idaho State Constitutional Convention

Over the past several months, I have written a variety of articles concerning the actions taken by the governor because of the government created crisis (The American Crisis – March 2020) — not the crisis of the virus itself but the government’s response to the crisis — the legislature’s ineptness and unwillingness to squelch the despotic actions of the governor (Charges Against Governor Brad Little) by debunking the myth of co-equal branch of government (Co-Equal Branches of Government: Not by Design), the tyranny of ballot initiatives (Tyranny by the Initiative Process) and demonstrated that an abusive government of this type requires change An Abusive Government Requires Change. As such, with the numerous evidences of an abusive government and the failures and unwillingness of our representatives to act or the inabilities to act, I believe that it is evident that Idaho needs an Idaho State Constitutional Convention.

The Flaws:

While I am sure I cannot list all the flaws of Idaho’s Constitution, as I believe that would be impossible for any one person or group of people to do, the major flaws are what is most important. As Montesquieu explained “when the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner…Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” We are witnessing this in Idaho, not just during the crisis but for many years. The crisis has only brought all the flaws to the forefront.

The inability of the legislative branch to convene itself, except annually or when convened by the governor has contributed to the present crisis. Particularly, as the virus hit Idaho at the end of the legislative session, the legislators tucked their proverbial tails and ran, adjuring sine die, without even contemplating that they might need to reconvene sometime in the intervening 9 months before they could reconvene. While the cowardice of legislators is not the flaw itself, once they came to their senses it was obviously too late to act otherwise. Emergencies such as this will always be impossible for Idaho citizen’s representatives and voices, that is, Idaho’s legislators, to provide direction and input about how government should or should not act if they cannot reconvene themselves as every other legislative body can within the jurisdiction of Idaho, except the highest legislative body, Idaho’s legislature.

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As I discussed in my article about the myth of co-equal branches of government, the legislature has supremacy over the other two branches, the executive and judicial, or should be, yet it is not. In fact, it tends to be the weakest, despite the fact that the other two branches cannot act without the legislative branch first taking action, at least in their proper roles where each branch does not trample the authority of the others or use the other branches of authority.

The people’s representatives should be deciding how the people’s money, or taxes, should be allocated, not the governor. Yet, this is not what has been occurring. The people have had no input. One person alone has decided the use of taxpayer funds, the receipt of which was unforeseen and unappropriated by our representatives.

Further flaws include the legislature abdicating its law making authority to the executive branch through bureaucratic rule making, which rules have the force of law. In my article on abusive government needing change I sited John Locke who mentioned that any rule making, law making is the responsibility of the legislature. However, legislators have no authority to make other legislators, or bureaucrats, as they are called, especially because bureaucrats work as members of the executive department. While the legislature gave themselves oversight authority, that is not the authority the people granted them. They granted them lawmaking authority and they must do their job. Giving it to bureaucrats is an abdication of authority, which abdication returns all lawmaking authority to the rightful owners, the people, not unelected, unaccountable, worthless, know-nothing bureaucrats.

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Where has this abdication led? It has led to nearly 72,000 mandates or rules found in 8200 pages of rules. While government has worked to eliminated about 75% of that, all of these rules did not originate where they ought to have, the legislature. I have been told that if the legislature had to make all the rules then they might have to work year round. Why? Maybe they need to rethink whether they ought to be passing the laws that require a plethora of rulemaking in the first place. Regardless, the point is that most of the laws or rules that the citizens are required to follow DO NOT come from the legislature but rather from the executive branch.

A governor in power, who loves the power granted to him, not only has trampled the rights of citizens but has trampled the authority of the legislature. I document this in a previously written article, Charges against Brad Little. The legislature has failed to provide for criminal actions to be taken against those in authority that infringe on the rights of citizens. Oh, yeah, they provide for civil lawsuits but not criminal. After all, what is a crime but the violation of the right of another individual? It is criminal that the governor has prohibited peaceful assembly by limiting the size of gatherings, prohibited religious worship, violated the right of people to earn a living, violated our right to due process, to travel and many other violations with impunity.

All this has trickled down to other executive branches and lesser governments under Idaho’s jurisdiction. Health boards, cities, counties, schools, and other government entities have mandated masks, social distancing guidelines, closures of businesses deemed non-essential, re-opening of businesses following arbitrary protocols, and some have provided for fines and imprisonment for violations. Mind you that only a small minority of these entities might include a health care expert who has never consulted the individuals, ordered any or referenced individual lab results nor individual health histories, nor properly diagnosed symptoms and yet have ordered medical equipment usage (PPE’s) and provided other medical mandates (a few stated above) without performing any of the previous requirements, which can be considered medical malpractice. Nor has the governor prohibited these unconstitutional and unwarranted actions, not to mention the nonsensical nature of the mandates, exemptions for preferred businesses or individuals and groups and so on, all decided arbitrarily.

A further flaw is the legislature’s inability and unwillingness to curb the power of the judicial branch. They ask themselves whether the law will be voided, or in other words, repealed by the judicial branch. As I stated again in my article on abuses of government and again siting Montesquieu that courts can judge in this way: “I absolve, I condemn, it does not appear clear to me,” based on the law. They cannot judge the law. They can judge the guilt based on the law. That is it. Yet, the courts routinely judge the law, many times incorrectly, and declare laws repealed. Only the legislature can do that, yet they will not restrain the courts from the usurpation of legislative authority.

The ballot initiative process is yet another flaw. Just one example is the Medicaid expansion initiative that was forced on the legislature by a democratic vote. First, Idaho is not a democracy and the US Constitution guarantees that it is not, but rather that it is a republic. One of the purposes of a republic is to protect both the rights of the majority and minority and yet provide for the will of both. Only a republic can do that. A democracy can and will trample the rights of the minority. The legislature knew of the desire of some few that wanted the expansion, yet they weighed all and determined not to expand. However, a squeaky wheel tends to get the grease and the people, rather than asking themselves whether expansion tramples the rights of others, whether the program will be able to follow through on its promises, whether it forces government to usurp authority from the people, they listened to the most vocal, and followed the noise. Whereas the legislature would take the time to deliberate, to become educated thoroughly on the issue rather than to follow the passions of the people in the moment. These initiatives are purely democratic, which our Founders emphatically rejected.

It has become increasingly clear that all three branches of the state of Idaho are broken with regards to the proper interactions between the branches, the proper spheres of influence that each should have and the unwillingness of government to rectify the problems. More alarming is the trampling of rights of citizens and the inattentiveness of representatives to the voice of the people within the confines of the proper role of government. They are much more attentive to those that fill their political coffers than to their responsibility of representing the people, following the constitution, and maintaining the proper balance of power within government, which power is only that power derived from the people and specifically granted to each branch.

Possible Remedies:

As is, Idaho’s Constitution is flawed. The proper remedy is to follow the men of the Founding Era and scrap a flawed constitution, as they did with the Articles of Confederation, and, as Jefferson advised “institute new Government, laying its foundation on such principles and organizing its power in such form, as to them shall seem most likely to effect their Safety and Happiness.”

The remedy is not to fix a system that is completely broken but to scrap it and start over. Idahoans should demand a constitutional convention for Idaho and redo the Constitution. A great blueprint would be the US Constitution.

First, as Idaho’s Constitution is written currently, there would be an enumeration of rights. I would eliminate the “right to eminent domain” because that is not a right nor a power that individual citizens themselves possess and cannot, therefore, be given to government. Governments do not have rights, only powers. Thus, eminent domain is not a right (you don’t have a right to another’s property) nor is it a power government may possess (you don’t have the power to take the property of another unless BOTH parties agree to the terms). And, I would make the final right similar to what is shown currently elsewhere in the enumerated rights state similarly as it does in Idaho’s constitution and similarly in the US Constitution that “the enumeration of these rights shall not be construed to deny or disparage other rights retained by the people.”

Right of suffrage is guaranteed currently. However, multiple suffrages should be allowed where an individual has multiple jurisdictions that decide how to tax an individual. For example, an individual currently may own properties in two counties, yet he can only vote for representatives in his “residence” county or city, yet be taxed for both. Thus, in one county where he is taxed, his non-residence property, it is a case of “taxation without representation.” Thus, he would get to vote in both places. Obviously, he would be prohibited from voting for statewide offices in both places but rather could only vote for local individuals and measures that affect him in his second or other succeeding estates.

An extremely important aspect of protecting rights would be to provide for severe criminal and civil penalties for violations of inalienable rights enumerated and unenumerated both, as found in the US Constitution and those further enumerated in Idaho’s Constitution for all officials under Idaho’s jurisdiction.

Next, I would recommend a much more stringent defining of the powers of each department, making the legislative department supreme, as it ought to be and as it naturally is, with power to limit the other branches within each branch’s sphere of power. In other words, no legislative power would be granted to either the executive or judicial branch. The executive would have no rulemaking authority. The judicial would be limited to judging guilt based on the law but would be prohibited from judging the law.

Furthermore, Idaho should become more representative by following the US constitution, making Senators elected county-wide (like US Senators being elected statewide) with the house of representatives being proportioned by population, as they are now. I would even recommend that the representation be determined by population within each county, similar to within states under the US Constitution, with a minimum of 1 or 2 for each county in the house. The number of representatives in the house could be limited in one of two ways: either by total number of representatives with the minimum requirement met for each county or by population. That is, say one representative for a population of 50,000 and voted on only by the geographical district of each office, but not by the whole county. Each county, too, would also have one senator, regardless of population.

Additionally, if there are multiple candidates running for the same office and no single candidate receives a majority of votes, a run-off election would then determine a majority of the voters’ will, with the two highest vote winners having the run-off. A majority would be required for seating an officer.

Prohibition on bribery, or, in other words, political coffer filling should be included, as this has contributed heavily to the demise of the constitution. If individuals are seeking public office, they can fund their campaigns entirely themselves and/or groups, similar to PACs can do all the work to advertise or inform the electorate of the issues and candidates that are being endorsed. No direct payment to any elected official would be permitted.

The powers granted to the state should be enumerated, and those prohibited should also be enumerated, similar to the US Constitution. Additionally, those powers granted should be limited to those that “We the People” possess if no government existed, or those powers we possess in a state of nature that do not violate the rights of others. These powers will naturally include the power of the purse in the legislative branch, with no such power ever given to any other branch.

Concerning the executive branch, I would highly recommend an electoral college type election of the governor similar to the president, again determined county by county based on the number of representatives of both the house and the senate that each county has. Prohibition of “all or nothing” electoral votes county by county would be included. Splitting, if there is a good split would be required. The levels of the split could be discussed and determined in convention.

The other state-elected officials could remain as they are with some further clarifications of the responsibilities of offices. For example, the attorney general’s office should be divided into two parts. One part would be to defend Idaho against the intrusions of the federal government upon the state and its rightful powers, and the other would be ensure that citizen’s rights are maintained within the state. As it is now, the AG’s office does work to defend the state but it also works to defend government from the people rather than the people from the intrusions of the state upon the people’s rights and the powers granted the people. The AG’s office is NOT to defend the governor or other executives as their own seemingly personal attorneys.

As to the judicial branch, as previously stated, it would have power to decide guilt or the lack thereof based on the law as it is written. No power to judge the law would be allowed, except by jury. As a jury trial is vital to protect citizens against intrusions by government, juries would be first judges of the law, and, upon determining the constitutionality of the law, then determine guilt based on that determination. In other words, if a jury determines that a law is unconstitutional, then the individual is found not guilty simply because the law itself is guilty of violating the rights of individuals or that the law is a usurped authority not granted or unable to be granted by the people. On the other hand, if the law is determined to be constitutional, then the jury would determine guilt based on evidence provided by both parties in trial. This would apply from the worst possible crime to the least infraction. All determinations of an offense of any kind must be with a jury trial, including simple traffic tickets. The legislature may determine the makeup of the courts.

Finally, concerning the individual counties, for the most part each seems to be well-established with one exception — there is no executive. Commissioners may remain as the other public offices such as county clerk, sheriff, etc. However, a county executive should also be added. Call the office a county manager, county chief or other executive department name with the power to execute the laws determined by the commissioners. Whatever the case is, the office should not be part of the legislative branch, that is, the commissioners, who will make the laws.

Naturally, a convention would go into much greater detail, as the Constitutional Convention did with James Madison’s basic idea of what the new federal government might look like. Details were debated and decided upon in convention. That is part of the purpose of a convention — to brainstorm and spell out the details of a plan that will provide for the peace and safety of the society, the whole purpose of government.

We should recognize that our Fathers of the Founding Era got it right. We should follow. These are just a few of the possible ideas to discuss in convention. The current constitution is very obviously broken and broken beyond repair as is. Following our Fathers and scrapping this current Constitution, starting over, and forming a more perfect government is what Idaho needs. A system that endeavors to maintain its corruption and infringements upon citizens whose rights it was designed to protect rather than trample, a system of checks and balances that is powerless to employ a proper balance is necessarily broken. As such, new government must be instituted, founded upon the principles demonstrated by our Founding Fathers, those that will protect life, liberty, and property, rather than trample them. A system this broken and problematic needs scrapped. Idaho needs a new, more perfect constitution. Idaho needs a constitutional convention.