By Brent Regan | Chairman, Idaho Freedom Foundation
“In our democracy, we must respect the will of the people” is a phrase we have all heard, but is it true? Is the democratic majority the ultimate standard of what is right?
Imagine there is a voter initiative on the ballot, call it Proposition 0, that specifies everyone in Idaho has one vote except people whose last name begins with R. This passes handily because everyone knows that people whose last name begins with R are retrograde raucous rapscallions and their opinions should be rebuked.
The majority has spoken in true democratic fashion and the Rs are out.
“Not so fast,” says Mr. Right “We may enjoy a democratic process but we live in a Republic where the rights of the minority are protected from the menace of the mob by our Idaho and United States Constitutions.”
Sure enough, the courts concur that the “will of the people” is limited to the bounds outlined in our constitutions. Prop 0, despite having the approval of all people whose last names don’t begin with R, is dead on arrival, null and void.
But suppose there was another initiative on the same ballot, call it Proposition 1, which reads:
“Notwithstanding any provision of law to the contrary, the secretary of state is directed to build the governor a mansion. The secretary of state is required and authorized to take all actions necessary to implement the provisions of this section as soon as practicable.”
Prop 1 passes with a wide majority because the governor needs a house, obviously. It is the right and good thing to do.
The will of the people has spoken, so the secretary of state better get to work. It should be easy because the secretary of state is not constrained by any laws, has unlimited resources, and is required “to take all actions necessary” to build the mansion “as soon as practicable.”
Plans are made. The mansion will be constructed with the best materials, have 100 rooms, be appointed with the most expensive furnishings, and decorated with the finest art money can buy. Labor will be conscripted and carpenters and artisans will be forced to work for free. Funds will come from whatever sources needed such as schools, roads, health services, wherever and if more resources are required, new taxes will be imposed.
The secretary of state is "required and authorized to take all actions necessary" to build the mansion. After all, it is the will of the people.
Furthermore, no environmental impact studies are needed, no safety regulations must be obeyed, and no building codes must be followed if they impede the construction—because the mansion must be built as quickly as practicable in spite of any law to the contrary. It’s the will of the people, you know.
Along comes Mr. Right. Remember Mr. Right and the justices on the Supreme Court? The justices remind the secretary of state that the people’s power of the initiative is the same as the power of theLegislature, with the same restrictions and limitations. They go on to remind the secretary that the power of the purse and the power to tax rest solely with the Legislature and cannot be assigned to the executive branch. That in a law the Legislature must set limits and standards because the ability to allow unfettered power does not exist.
But, the “will of the people” laments the secretary.
The truth is, through the initiative process the people have the same powers as the Legislature, including the power to pass an unconstitutional law that is struck down in the Supreme Court.
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