Idaho's Declaration of Rights

When people talk about their rights, they usually mean the federal Bill of Rights: free speech, the right to bear arms, protection from unreasonable searches. Those apply in Idaho. Since the Fourteenth Amendment, most of the Bill of Rights binds state and local governments as well as the federal government. But Idahoans have a second set of rights, written in Boise in 1889, and it does not always say the same thing.

This matters in practice. A federal court decision sets the minimum protection every American has. Idaho's constitution can add protection on top of that floor. When the Idaho Supreme Court decides that the state constitution gives more protection than the federal one, that decision is final on the state-law question, and the U.S. Supreme Court generally has no power to overrule it. This lesson walks through Article I section by section, with the real cases that show how it works.

Article I at a glance

Here are all 23 sections, using the headings on the official text, with the closest federal counterpart where there is one. The site's course on the Fourth through Eighth Amendments covers the federal side.

Sec.	Heading	Closest federal counterpart
1	Inalienable rights of man	None in the text (compare the Declaration of Independence)
2	Political power inherent in the people	None
3	State inseparable part of Union	Supremacy Clause, Art. VI
4	Guaranty of religious liberty	First Amendment
5	Right of habeas corpus	Art. I, sec. 9
6	Right to bail, cruel and unusual punishments prohibited	Eighth Amendment
7	Right to trial by jury	Sixth and Seventh Amendments
8	Prosecution only by indictment or information	Fifth Amendment (grand jury)
9	Freedom of speech	First Amendment
10	Right of assembly	First Amendment
11	Right to keep and bear arms	Second Amendment
12	Military subordinate to civil power	Third Amendment
13	Guaranties in criminal actions and due process of law	Fifth, Sixth and Fourteenth Amendments
14	Right of eminent domain	Fifth Amendment (takings)
15	Imprisonment for debt prohibited	None
16	Bills of attainder, etc.	Art. I, secs. 9 and 10
17	Unreasonable searches and seizures prohibited	Fourth Amendment
18	Justice to be freely and speedily administered	None
19	Right of suffrage guaranteed	None directly
20	No property qualification required of electors, exceptions	None directly
21	Reserved rights not impaired	Ninth Amendment
22	Rights of crime victims	None
23	The rights to hunt, fish and trap	None

Compare the 1889 engrossed text in Volume 2 of the convention Proceedings and Debates and you will see that the original Article I ended at Section 21. Several sections, including 7, 11 and 20, have since been amended; compare them with the current text and you will see the changes.

Sections 1, 2 and 21: where rights come from

The federal Constitution has no general statement of natural rights. Idaho's opens with one:

"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."Idaho Const. art. I, sec. 1

That language is unchanged from 1889. Section 2 adds that "all political power is inherent in the people" and that they may "alter, reform or abolish" government "whenever they may deem it necessary." Section 21, like the federal Ninth Amendment, says the list of rights "shall not be construed to impair or deny other rights retained by the people."

Those broad words raise an obvious question: do they protect rights that are not named anywhere in the constitution? The Idaho Supreme Court answered that question, at least in part, in one of the most important state constitutional cases in decades.

Section 4: religious liberty, with a 19th-century twist

Article I, Section 4 guarantees "the exercise and enjoyment of religious faith and worship," forbids denying anyone a civil or political right "on account of his religious opinions," bars compulsory support of any church and forbids any legal "preference" for a denomination. So far, it reads like a more detailed First Amendment.

Then it adds language found in no federal text. The liberty of conscience may not be read to "justify polygamous or other pernicious practices," or to let any organization "aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy." The section ends: "Bigamy and polygamy are forever prohibited in the state." This was written in 1889, at the same time as the voting ban on Latter-day Saints discussed in Lesson 1. That voting ban stayed in Article VI until 1982; the polygamy language in Section 4 remains.

Religion and schools are addressed separately in Article IX, Section 5, covered in Lesson 7.

Sections 9 and 10: speech and assembly

The First Amendment is phrased as a command to government: "Congress shall make no law... abridging the freedom of speech." Idaho's Section 9 is phrased as a personal right with a built-in limit: "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty." The "responsible for the abuse" clause reflects the 19th-century view that speakers could still be held liable for things like libel.

Section 10 protects 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." The phrase "instruct their representatives" has no federal twin. The founders expected citizens to tell legislators what to do.

Section 11: the right to keep and bear arms

Idaho's gun rights section has been rewritten more dramatically than almost any other part of Article I. The 1889 version, in the engrossed text, was one sentence:

"The people have the right to bear arms for their security and defense; but the legislature shall regulate the exercise of this right by law."Idaho Const. art. I, sec. 11 (1889), Proceedings and Debates, Vol. 2, Appendix A

In 1978 the section was amended. An Idaho Attorney General opinion from 1986, Opinion No. 86-5, quotes both the old language and the "1978 amendment." The current text says "the people have the right to keep and bear arms, which right shall not be abridged." It then lists what the Legislature may still do: regulate carrying concealed weapons, set minimum sentences for crimes committed with a firearm, penalize felons who possess firearms and punish the use of a firearm. It closes with two flat prohibitions: "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."

Those last two sentences go well beyond the Second Amendment's text, which says nothing about licensing, registration or taxes. In Opinion 86-5, the Attorney General applied the licensing ban to a fish and game statute about uncased firearms in the field and concluded the statute survived because it punished hunting conduct, not mere possession. For the federal side, see the site's Second Amendment course.

Sections 6, 7, 8 and 13: rights of the accused

Several sections track federal criminal procedure rights, with Idaho twists:

• Section 6 guarantees bail "by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great," and bans excessive bail, excessive fines and cruel and unusual punishments.
• Section 7 says jury trial "shall remain inviolate," but allows three-fourths of a civil jury to return a verdict, lets the Legislature allow five-sixths verdicts in misdemeanor cases and caps misdemeanor juries in lower courts at six. The federal Seventh Amendment has no such details.
• Section 8 allows felony charges by grand jury indictment or by a prosecutor's "information" after a magistrate's commitment, and says that once a grand jury has refused to indict, the prosecutor may not proceed by information. The federal Fifth Amendment, by contrast, requires a grand jury indictment for serious federal crimes.
• Section 13 guarantees a "speedy and public trial," compulsory process for witnesses, the right to appear "in person and with counsel," protection from double jeopardy and self-incrimination, and that no person shall "be deprived of life, liberty or property without due process of law."

Section 13's due process clause uses nearly the same words as the Fifth and Fourteenth Amendments. When a claim depends on an unnamed fundamental right, though, the Planned Parenthood decision points the analysis to Section 1 and its 1889 history.

Section 17: where Idaho goes further

Article I, Section 17 reads almost like the Fourth Amendment: "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." (Note one difference: the federal text says probable cause "supported by Oath or affirmation"; Idaho's says "shown by affidavit.") Despite the similar words, the Idaho Supreme Court has repeatedly read Section 17 to give more protection than the federal courts give under the Fourth Amendment.

No "good faith" exception: State v. Guzman (1992)

In United States v. Leon, 468 U.S. 897 (1984), the U.S. Supreme Court created a "good faith" exception to the exclusionary rule: evidence seized under a warrant later found invalid can still be used if officers reasonably relied on the warrant. In State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992), a Twin Falls County case in which officers found about 36 pounds of marijuana in a locked freezer, the Idaho Supreme Court refused to follow Leon under the state constitution. Justice Bistline's lead opinion called the exception "ill-conceived" and said it "cannot be reconciled with art. 1, § 17 of our state constitution." The court also abandoned an earlier Idaho decision that had embraced Leon.

Twenty years later the State asked the court to reconsider. In State v. Koivu, 152 Idaho 511, 272 P.3d 483 (2012), the court unanimously declined: "Because the State has not shown any ground for doing so, we decline to overrule that case." Evidence found after an arrest on a mistakenly issued warrant stayed suppressed.

Notice the method in Clarke. It is the same historical approach the court used in Planned Parenthood: ask what the words meant in 1889. In Clarke that history expanded a right; in Planned Parenthood it defeated a claimed right. The method is consistent even when the results point in different political directions.

Sections 14, 18, 19 and 20: Idaho-specific guarantees

Section 14 requires "just compensation" when private property is taken for public use, like the federal takings clause. But it also declares a long list of uses to be public uses, including reservoirs, irrigation canals, mine drainage, tramways and "any other use necessary to the complete development of the material resources of the state." That reflects the mining and irrigation economy of 1889 (Lesson 1).

Section 18 promises that "courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character." Section 19 forbids any power, "civil or military," from interfering with "the free and lawful exercise of the right of suffrage." Section 20 bars property qualifications for voting or holding office, with exceptions for school elections, elections creating debt and irrigation district elections, where the Legislature may limit voting to landowners. The irrigation district exception was not in the 1889 text; it was added later.

Section 22: crime victims' rights (1994)

Idaho added Section 22 by a vote of the people. According to an article by Ada County Prosecutor Jan Bennetts published by the Idaho State Bar, the Legislature adopted House Joint Resolution 16 in 1994 (the House on February 21 and the Senate on March 9), and voters approved it on November 8, 1994, with 79.3 percent of the vote. The Attorney General's office describes the measure as the Victims Rights Amendment ratified in November 1994 in its guide to victims' rights.

Section 22 gives a crime victim, "as defined by statute," ten rights, including to be "treated with fairness, respect, dignity and privacy," to timely disposition of the case, to notice of and presence at criminal proceedings, to be heard at plea, sentencing and release proceedings, to restitution and to refuse an interview requested by the defense. It also contains important limits. A violation does not let a court dismiss a case or set aside a conviction, and it does not create a lawsuit for money damages. The section is "self-enacting," and the Legislature may pass laws to "define, implement, preserve, and expand" the rights.

Section 23: hunting, fishing and trapping (2012)

The newest section came from House Joint Resolution 2 of 2012. The House adopted it 63 to 4 (with 3 absent or excused) on March 22, 2012, and the Senate 31 to 3 (1 absent or excused) on March 27. Voters approved it that November; Boise State Public Radio reported about 74 percent support in early returns.

Section 23 declares that 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 that public hunting, fishing and trapping "shall be a preferred means of managing wildlife." Read the limits as carefully as the right. The section does not create a right to trespass, does not affect water rights or require minimum stream flows, does not diminish other private rights and does not stop the state from suspending or revoking a license under a statute. It also says these activities are "managed through the laws, rules and proclamations" of the state, so Fish and Game regulation continues.