In Idaho, victims have rights. Article I, Section 22 of the state Constitution generally outlines those rights. Several sections of Idaho statutes spell out the details for protections and compensations due to victimization.
That is the way the law is supposed to work in a constitutional republic. The Constitution is for general statements regarding rights of individuals, limitations on government power, and the structure of decision-making. Statutes are for fleshing out how rights are to be protected and are easily amenable.
Marsy’s Law (SJR101) has three critical problems making it a bad choice for Idaho lawmakers and citizens.
First, Marsy’s Law, as stated, should be just that—a law. However, the proposed resolution, SJR101, is actually a constitutional amendment. If the proponents genuinely want to change the constitution, then they should be honest about it. Marsy’s Law is an amendment, and it should be called Marsy’s Amendment.
Second, even if sold as advertised, the Idaho Constitution is not the appropriate place for the statutes proposed in Marsy’s Law. Here’s why. It is challenging to change the constitution. It requires 2/3 vote in both the Idaho House and Idaho Senate, plus a majority vote by Idaho citizens. It is more than a year-long process. This process is precisely why statute language belongs in statutes while general statements about rights and limitations belong in the constitution.
Lawmakers regularly make little, but vital mistakes in statute language about how a law is supposed to work. Many, many, times, lawmakers come back to fix an ill-conceived word or a phrase in the law. Suppose this happens with Marsy’s Law or other statutes put into the Constitution. The hurdle to do a re-write, pass both houses, put it on the ballot, and meet the super-majority requirements makes it unworkable to do as a regular practice for our constitution. The process is long and may never be successful. In the meantime, judges are left to “interpret” the law for all Idahoans. We effectively turn to legislate over to the judiciary.
Over a century ago, there was another constitutional crusade—this one regarding religious bigotry. Senator Blaine from Maine wanted to hurt parochial schools by putting an amendment to the constitution to prevent private schools from receiving any public funds. Failing that, Blaine went to the states to have his bill added to state constitutions. He was successful in many states, including Idaho. This “Blaine Amendment” as it’s called has destroyed school choice opportunities for half a century now. It’s almost impossible to amend or delete from our constitution. Marsy’s Law is a lot like the Blaine Amendment. It comes to Idaho from a similar crusade by a wealthy “do-gooder” from California. Though the sponsor of the law has good intentions, it has bad consequences and precedence for Idaho lawmaking.
Simply put, statutes belong in statutes, and the Constitution is for more lofty goals and statements, and is intentionally difficult to change.
And third, Marsy’s law, a proposed amendment to the Idaho Constitution, threatens our 2nd Amendment rights. By loosely using language regarding protections for victims from the “accused” rather than “defendants” or those “convicted,” the law (constitution) leaves way too much room for activist judges to use the law to strip law-abiding citizens (who may be merely accused of a wrongdoing) of their important constitutional rights, such as the right to keep and bear arms. All of this is all done before any due process is afforded the “accused.”
We can and should do better than this ill-conceived Amendment. Let’s protect victims for sure, but let’s also make sure we can perfect misguided wording if needed, can keep judges from overstepping their judicial bounds, and can maintain our other constitutional rights to be afforded full due-process before losing any liberties.
Ron is a professor of economics at BYU-Idaho and an Idaho state representative (LD.34). He specializes in applied microeconomics, public economics, quantitative methods, the economics of education, poverty economics, and public choice. He has been teaching for nearly 30 years, beginning at the University of Connecticut, Ohio University-Eastern, and the last 19 years at BYU-Idaho.