State Con Law Case of the Week: A Gem of Man and State from the Gem State

Anthony Sanders · August 27, 2021

Earlier this week, the Idaho Supreme Court issued a fascinating decision about the relationship between the state’s people and its legislature. In finding unconstitutional recently enacted restrictions on placing initiatives and referenda on the ballot, the court dug into core issues of “man and state” that seem to spring straight from the pages of John Locke’s Second Treatise of Government. Here I briefly summarize the issues and also note where the court seemed to have taken an unnecessary step in achieving its result. But it’s an incredibly interesting decision that I encourage you to read for yourself.

The historical background and facts of the case, Reclaim Idaho v. Denney, are gripping but of no surprise to students of legislatures and their motivations. Idaho’s constitution came into force when it became a state in 1890. In 1912, the people voted to amend the constitution to add the power of initiative and referendum. The second and third paragraphs of the following were therefore added to the original first paragraph of Article III, Section 1 of the constitution:

The legislative power of the state shall be vested in a senate and house of representatives. The enacting clause of every bill shall be as follows: “Be it enacted by the Legislature of the State of Idaho.”

The people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, demand a referendum vote on any act or measure passed by the legislature and cause the same to be submitted to a vote of the people for their approval or rejection.

The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection.

There’s a lot of interesting language here. First, note that “the people reserve” the powers of initiative and referendum. This implies that “the people” have these powers in the first place. In other words, at one time “the people” had all of “the legislative power” mentioned in the first paragraph, gave that away in 1890 but in 1912 took back and reserved some of it. That sounds a lot like social contract theory that Locke and Thomas Hobbes are famous for, and which I discussed here a few months ago. Second, although the people reserve these powers from the legislature, the exercise of them still depends on the legislature passing enabling legislation—thus, the people depend on the very body they are reserving their powers from in order to exercise those reserved powers. The legislature sets forth the “conditions” and “manner” under which initiatives and referenda can come about. You wouldn’t be alone if you thought this sounds like the fox guarding the henhouse.

Turns out it very much was. After this language was adopted in 1912, it wasn’t until 1933 that the legislature passed implementing legislation. That still required a pretty substantial effort to get an item on the ballot: signatures from the equivalent of 10% of voters in the last gubernatorial election. The legislature had proposed legislation in 1915, but the governor successfully vetoed it because of its onerous requirements: signatures from 10% of voters for referenda and 15% for initiatives from each county. Thus, if only 9% or 14% of the voters in any of Idaho’s counties (it currently has 44 of them) signed a petition, the effort would fail, no matter how many did elsewhere.

Over the years, as the court detailed in its opinion, the legislature has repeatedly tinkered with these “conditions” and “manner” to make it harder to get an item on the ballot, often directly following a rare successful passage of a measure. As a result, Idaho has had relatively few initiatives and referenda for voters to vote on, only 37 altogether (and of course not all of those were, in turn, passed by a majority of voters). Many, many more have been circulated but failed to make it after receiving too few signatures.

The latest legislative tinkering came after a couple recent successful initiatives, one concerning public teacher bargaining rights and the other forcing Medicaid expansion. In response, in 2020 the legislature delayed when a measure would take effect, so if one were adopted in a November election it would not become law until July of the next year. This, said its critics, gives the legislature the chance to undo the initiative or referendum (which is permissible under Idaho law) before it even takes effect. The other, just adopted in 2021, raised the current signature requirement of 6% of all registered voters, including 6% from 18 of the state’s 35 legislative districts, to 6% statewide plus 6% from all 35 legislative districts.

Those challenging these new barriers claimed they would make it much harder to effectuate the people’s “right” (more on that word in a moment) of initiative and referendum, especially because the voters of one single district could, in effect, veto the rest of the state’s attempt to exercise that right. Further, the delay of when an initiative or referendum would take effect—which before just depended on what the particular measure said—meant the legislature was treating laws enacted by the people differently from laws it itself passed, which goes against the equality of the different methods that Article III, Section 1 dictates.

All of the court’s justices agreed on the result, a pretty striking rebuttal to the legislature. They only disagreed on the standing of one of the plaintiffs and what standard to apply. (The standing disagreement is a very interesting dispute, and worthy of its own blog post. Essentially, the lead opinion applied the federal standing test even though the Idaho Constitution has different relevant language, and the concurrence said the court should reexamine its standing law. But for now, read the case to find out!) Further, the court left open for a later case the question of whether the previous signature requirements might be unconstitutional.

The state’s primary defense was that the “conditions” and “manner” language gave the legislature total discretion on how to enable “the people” to have initiatives and referenda. The court rejected this for several reasons, most especially because this cannot be what the Idaho Constitution means, considering the whole point of the 1912 amendment was to keep certain powers away from the legislature. In other words, the amendment didn’t aim to give the fox total control over the entrance to the henhouse.

There’s a lot more in the various opinions as well. I take no position on the merits of the case but encourage you to read it because of the truly fundamental ideas of political power and democracy that it explores. I do have one criticism, though. As you can see from the text of Article III, Section 1 of the Idaho Constitution, quoted above, the “legislative power” was originally “vested” in the two houses of the state legislature, but with the 1912 amendment the “people reserve[d] to themselves the power” to legislate independently of the legislature as well. As I’m emphasizing, it repeatedly says what “the people” exercise is power. It does not say this is a “right” of the people.

Generally, when the U.S. Constitution and state constitutions refer to “rights” they mean individual rights, not rights that “the people” exercise collectively. There are exceptions, and, indeed, in Section 2 of Idaho’s Bill of Rights it mentions “the people” and says “they have the right to alter, reform or abolish” the government “whenever they may deem it necessary . . . .” But “the people” when paired with “rights” is usually used in an individual rights sense, as it is in the U.S. Constitution’s Bill of Rights. And, even though the language from Section 2 of the state’s bill of rights was already in the constitution, the framers of Article III, Section 1 didn’t chose to use “right” in 1912 but plainly, and repeatedly, chose “power.”

Why does this matter? Two answers, one just applying to this case, one more broadly. Specifically, it matters because the court interpreted the 1912 amendment to guarantee a “fundamental right,” and given that it was a fundamental right then applied strict scrutiny, the highest level of constitutional protection. Now, generally I like protecting rights with strict scrutiny. But only if what is at issue is a “right.” And, indeed, here the court didn’t need to find a fundamental “right” to come to its result. If it had stuck to the text and found that “the people” had “the power” (and a pretty darn fundamental power, of course) to have initiatives and referenda without the legislature placing unreasonable (or bogus, or pretextual, or whatever adjective you want to use) barriers to the exercise of that “power,” the court could have ruled the same way. But then it wouldn’t have had to import the tiers of scrutiny and methodology of individual rights into an area to which the very drafters of the constitutional text didn’t even intend for them to apply.

The broader reason “right” versus “power” matters is it is dangerous to use “rights” terminology when government “power” is at issue, because then other exercises by the government (whether by “the people” or the legislature, or even the police) may be transformed from “powers” into “rights.” And we don’t ever want to be in a position where the legislature or the police have a “right” to exercise authority—perhaps protected by strict scrutiny!—that somehow infringes on actual rights of individuals.

This division of “rights” and “powers” is most famously found in the Ninth and Tenth Amendments, where the Ninth refers to “rights . . . retained by the people” and the Tenth refers to “[t]he powers” of the United States, the states, and “the people.” Perhaps the framers of the 1912 amendment had the Tenth Amendment in mind when yanking back the “powers” of initiative and referendum? It seems to me they very well could have. And it’s best to keep that distinction in mind, lest the government itself start acquiring too many “rights.”

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.