Guest Essayist: Gary Porter

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Known as “The Gem State,”  Idaho ratified the U.S. Constitution July 3, 1890 admitting the forty-third state to the Union. The Idaho State Constitution currently in use today was adopted on the same day as the state’s admission to the Union, 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 this Constitution.” So begins the Idaho Constitution.

I’ve been to Idaho, many times. I’ve fished its waters, hiked its trails, hunted its elk (successfully), eaten its potatoes and golfed its links; it’s a beautiful state which also gave birth to a beautiful woman who would eventually become my wife. You should visit.

You may recall that, thanks to President Thomas Jefferson’s foresight and his Secretary of State, James Madison’s constitutional interpretation, the United States gained title to what was commonly called the Louisiana Territory from France in 1803, extending the United States of America all the way to the Pacific Ocean. Two years later, on their way to that ocean, Lewis and Clark entered present-day Idaho on August 12, 1805, at Lemhi Pass, bringing with them the first black man to also enter the land. In 1819, a treaty with Spain removed that country’s claim to the same land. One would think these two actions, with France and Spain, would settle the question of who owned the land that would one day become Idaho. One would be wrong; one more treaty would be required. In the 1820s, the British-owned Hudson’s Bay Company moved in and soon controlled the fur trade in the Snake River area. They encountered competition from French fur trading companies, and before too long, additional Americans. British claims to the land were settled in 1846 by the Oregon Treaty and the area became undisputed U.S. territory for the first time. Under U.S. jurisdiction over the next few years, the land mass of what would become Idaho was alternately made part of the Oregon Territory and Washington Territory.

Idaho’s gold rush began in 1860 when placer gold was discovered at Pierce, Idaho, and the industry continues to this day, 3 million troy ounces (more than 90 tons) later. Three years after the gold rush began, a silver rush followed that has produced 1 million troy ounces to date.[i]

Captivated by the thought of siphoning off some of the newfound wealth, Congress began encouraging the land be recognized as a distinct territory.

On December 15th, 1862, in the midst of the Civil War, Congressman William Kellogg of Illinois, introduced the following resolution in the House of Representatives: “Resolved, That the Committee on Territories be instructed to inquire into the propriety of establishing a Territorial government for that region of country in which are situated the Salmon river gold mines; and that they report by bill or otherwise.” Two months later, the “Organic Act of the Territory of Idaho,” passed by both Houses and signed by the President on March 3, 1863, provided a temporary government for the territory.

As created by Congress, the Territory extended across an area one-quarter larger than Texas. Today’s state is much smaller but still as large as all six of the New England states combined, with New Jersey, Maryland, and Delaware thrown in for good measure. Traveling from Bonner’s Ferry in the north of the state to Montpelier in the extreme southeast requires a trip of nearly 800 miles, only slightly shorter than a trip from New York City to Chicago.[ii]

Idaho’s Constitution,[iii] which forms the basic governing document of the state, was adopted on August 6, 1889 by a constitutional convention. After the convention concluded its work, the proposed constitution was submitted to a vote of the people with this caution:

“You will bear in mind that there has, never will be, nor is it in the  power of men to frame, a constitution that will meet the views of all. The framers of the constitution fully realizing this fact, labored  earnestly to harmonize all conflicting interests. If twenty  conventions were held it is not probable one of them would frame a constitution with as few defects as the one now submitted for your  examination, and upon which you are to vote.”

These words bring to mind similar remarks of Benjamin Franklin on September 17, 1787:

“I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others… I doubt … whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?”

Constitution-making can indeed be messy.

Back in Idaho Territory, the convention approved the proposed constitution by a hefty margin and it was ratified in a statewide vote in November, 1889. Congress approved the ratified constitution on July 3, 1890 and President William Henry Harrison signed the bill creating the state the same day, making Idaho our 43rd state, with, at that time, a population of 88,548.

The “Idaho Admission Bill” reads: “Therefore, Be it enacted by the Senate and House of Representative of the United States of America, in Congress assembled, That the State of Idaho is hereby declared to be a State of the United States of America, and is hereby declared admitted into the Union on an equal footing with the original States in all respects whatever; and that the Constitution which the people of Idaho have formed for themselves be and the same is hereby, accepted, ratified and confirmed.”

Idaho’s Declaration of Rights, forming the Constitution’s Article 1, borrows heavily from that of Virginia, which, as a Virginian, I find flattering. There are also many features copied from the U.S. Bill of Rights.

Some unique and interesting features of the Declaration include:

In Section 7, dealing with juries, only three-fourths of the jury is needed to render a verdict in civil actions, and in misdemeanors cases five-sixths of the jury can render a verdict.

Section 9 holds citizens responsible for abusing their right of free speech.

Section 11 prohibits any confiscation of firearms except when they are used in the commission of a felony.

Section 15 provides that there will be no imprisonment for debt in the state except in cases of fraud (i.e., no debtors prisons needed!).

In Section 19, the right of suffrage is guaranteed. “No power, civil or military, shall at any time interfere with or prevent [its] free and lawful exercise.”

Section 20 prevents any property qualification from being imposed on the citizens in order to vote “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.

Section 22, added in 1994, contains an extensive list of the rights of crime victims. I couldn’t determine when this was added to the Constitution.

Finally, Section 23 of the Declaration of Rights, its final section, guarantees Idaho citizens the right to hunt fish and trap. “Public hunting, fishing and trapping of wildlife shall be a preferred means of managing wildlife.”

In the main body of the Constitution we find a few unique features.

Article 3, Section 20 prohibits gambling in the state, it being “contrary to public policy.” This prohibition does not extend to Indian tribal lands.

Section 24, entitled “Promotion of Temperance and Morality,” is interesting. It reads: “The first concern of all good government is the virtue and sobriety of the people, and the purity of the home. The legislature should further all wise and well directed efforts for the promotion of temperance and morality.” Wouldn’t it be nice if all states did this?

And in Section 28 we find the now ineffective statement: “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

The Governor, Lieutenant Governor, Secretary of State, State Controller, State Treasurer, Attorney General and Superintendent of Public Instruction all hold their offices for a four year term. The Governor enjoys a line-item veto on appropriations bills, joining 43 other U.S. governors with similar powers.

Interestingly, the legislature must maintain a balanced budget and is prohibited from incurring any debt unless they do so by law and provide, in the authorizing legislation, a plan to pay off such debt within 20 years.

Article 9, dealing with education and school lands, begins with the declaration: “The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” (Emphasis added)

Idaho was early settled by Mormons, especially in its southeast sections. We may detect a bit of Mormon backlash in Section 6 of Article 9, when we read: “No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.” Compulsory attendance is mandate between the ages of 6 and 18.

Article 10 provides that Boise shall be the state’s capitol, at least for the first 20 years, after which the state legislature can vote to move it elsewhere, something they have yet to get around to do. Incidentally, ever mindful of their natural resources, Idaho’s State Capitol building is the only one in the nation to be heated by geothermal water from a source 3,000 feet below the ground.[iv]

Article 14, dealing with the Militia makes “all able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years,” a member of the militia, and requires that they “perform such military duty as may be required by law;” unless they have “conscientious scruples against bearing arms.”

Idaho has abundant streams and rivers, but getting precious water to arable lands takes an extensive network of irrigation canals. Not surprisingly, there is an extensive section of the Constitution devoted to “Water Rights.” (Article 15)

Taken in the whole, Idaho’s is a well-constructed Constitution, perhaps explaining why it has remained in force (albeit extensively amended) since 1890.

On March 25, 2016, the state carried on its tradition of being a gun-friendly state by legalizing the carry of concealed firearms without a permit.[v]

Oh, and Idaho’s Great Seal was designed through a contest won by Emma Edwards Green, apparently the only woman to design the official seal of a U.S. state.[vi]

Idaho’s current 1,754,208 residents[vii] wait to welcome you.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[i] https://www.goldmapsonline.com/idaho-gold-rush-history-and-districts.html.

[ii] https://www.idaho.gov/about-idaho/history/.

[iii] https://sos.idaho.gov/elect/stcon/index.html.

[iv] https://www.history.com/topics/us-states/idaho.

[v] http://concealednation.org/2016/03/permitless-concealed-carry-in-idaho-passes-takes-effect-july-1st-2016/.

[vi] https://en.wikipedia.org/wiki/Flag_and_seal_of_Idaho.

[vii] https://en.wikipedia.org/wiki/Idaho.

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