Bill Description: House Joint Resolution 3 would amend the Idaho Constitution to require a 2/3 vote by the legislature to legalize "drugs, substances, or chemicals with no legal medical use."
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Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?
House Joint Resolution 3 would amend Section 26, Article III of the Idaho Constitution, which currently gives the Legislature expansive power to regulate liquor. The proposed amendment would expand this section to deal with "unlawful drugs."
It would say, "An unlawful drug in the state of Idaho can be made lawful for purposes of growing, producing, manufacturing, transporting, selling, delivering, dispensing, administering, prescribing, distributing, possessing, or using only if such lawfulness is approved by at least two-thirds (2/3) of all members of each of the two (2) houses of the legislature, voting separately, and enacted into law, the vote not being subject to the majority vote provisions of section 15 of this article."
It would provide exceptions for "research on any lawful or unlawful drug as provided by law; the provision of an investigational drug to a terminally ill patient as provided by law; or a law enforcement agency, testing laboratory, court, or prosecuting attorney from holding an unlawful drug in evidence with proper documentation for purposes relating to a criminal prosecution."
It would define "unlawful drugs" as "drugs, substances, or chemicals with no legal medical use pursuant to Idaho law."
There are several problems to address with this proposal, beginning with the definition above. Every kitchen, garage, and laundry room contains substances and chemicals that have "no legal medical use pursuant to Idaho law," because most substances and chemicals are not named or regulated in law and have no explicit legal status. Under this proposed constitutional amendment, virtually every substance and chemical known to man would be presumed to be an illegal drug unless Idaho law explicitly declares it to have a medical use.
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Beyond the problems with this definition, it is concerning that a substance could be made illegal by a simple majority, but a two-thirds majority would be required to make it legal again. If 51% of legislators voted to make a substance illegal and later realized they had made an error, those same legislators could not reverse their decision without convincing supermajorities in both chambers to support the correction.
Giving government more regulatory power by a simple majority vote while requiring a supermajority vote for deregulation fundamentally shifts the balance away from the people and toward greater government control.
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Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?
House Joint Resolution 3 presents a challenge to the nature and structure of a constitution. The state constitution is the vehicle that establishes the environment for statutes that define regulations and the things being regulated. Attempting to create constitutional carve-outs with supermajority thresholds for amending regulations for specific substances presents significant challenges. Should a carve-out in the constitution prove problematic, the Legislature could not change it with the same ease with which they change a statute. Instead, another constitutional amendment would be required.
Constitutions should define principles. Statutes should define particulars.
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