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Senate Joint Resolution 101 — Psychoactive drugs

Senate Joint Resolution 101 — Psychoactive drugs

Parrish Miller
January 24, 2021

Bill Description: Senate Joint Resolution 101 attempts to enshrine the criminalization of "psychoactive drugs" (most notably, marijuana) in the Idaho Constitution. 

Rating: -5

Analyst Note: Senate Joint Resolution 101 proposes an amendment to the Idaho Constitution that it claims will promote the "virtue and sobriety of the people" and "the health, safety, and welfare of the citizens of Idaho through a drug-free environment." 

This analysis of SJR 101 looks at the language of the proposed constitutional amendment only, not the practicality of banning a substance that some states have chosen to legalize despite an ongoing federal prohibition.

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?

Senate Joint Resolution 101, in and of itself, does not add or subtract from drug prohibitions in current law. Instead it fixes those prohibitions in the state constitution. Fixing such prohibitions in the state constitution, which by its nature is more difficult to change than a law passed by legislators, gives government greater power to prohibit or restrict activities in the free market now and in the future. 


Does it violate the spirit or the letter of either the U.S. 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 U.S. Constitution or the Idaho Constitution?

The language of Senate Joint Resolution 101 is problematic on several counts. Under our system of government, state statutes derive their authority from the state constitution. Statutes do not exist without being properly conceived through the constitution. This amendment proposes adding numerous references to specific sections and subsections of Idaho Code to the Idaho Constitution. 

If state statutes cannot exist without constitutional authority to exist, it would be almost paradoxical, then, for state statutes to be written into the constitution. Metaphorically, it’s like a child giving birth to his mother. Importantly, it turns our ordered system of government, wherein the constitution begets statutes, on its head.


Our constitution requires that laws be written in plain English. The idea behind this requirement is that laws should be written in a way so that the average person can read and understand what is legal and what is not legal in the state of Idaho. Idaho’s drug schedule, however, is complex and very difficult for ordinary citizens to understand. Statutes about drugs (among other topics) may already struggle to comply with the plain English requirement when they are so detailed and intricate as to identify individual substances down to the molecular level, such as "Levo-alphacetylmethadol (also known as levo-alpha-acetylmethadol, levomethadyl acetate, LAAM)." The proposed amendment adds these hard-to-understand provisions to the constitution and then locks in some components of existing law while allowing for some additions. This makes compliance extraordinarily difficult, and increasingly so over time. 

Another problem with this resolution is that some of the references in the proposed amendment refer to sections as they "existed on July 1, 2020," but others do not include this definition. Some sections are referenced as they "existed on July 1, 2020," but also defined to include other "substances added in amendments" made "subsequent to July 1, 2021." 

This structure would appear to allow the indefinite expansion of constitutionally required prohibitions by simple statutory changes but not allow for corresponding reductions or modifications in the list of prohibited substances, which violates the plain English clause. It is again noteworthy here that the Idaho Constitution is supposed to set the parameters for statute, not have its own perimeters defined by statute. The practical result of the amendment is to make the law mostly incomprehensible to the average person, very contrary to the plain English requirement. 


Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?

Senate Joint Resolution 101 also runs contrary to Idaho’s existence as a sovereign government that co-exists with the national government. The amendment references the federal Food and Drug Administration by name as well as the federal Food, Drug, and Cosmetic Act.

Using FDA approval as a standard outsources the determination of Idaho's destiny, law, and concept of justice to a federal agency run by political appointees subject to the vagaries of partisan administrations. From its beginning in the early 20th century as a Progressive Era regulatory tool to its expansion in the 1930s under President Franklin Roosevelt, the FDA has always been a political weapon wielded against the free market. 

There are multiple references in this resolution setting the determinations of the FDA and the Food, Drug, and Cosmetic Act as the standard for what is legal in Idaho. 

On principle, we believe the Idaho Legislature should adhere to the nondelegation doctrine and refrain from outsourcing its job to a federal agency or federal law. It would be especially problematic to make such delegation of power permanent by adding it to the Idaho Constitution. Were this amendment to pass, it would mark the very first time — and therefore possibly not the last — that a federal agency is named in the state’s constitution. This is both precedent setting and dangerous. 


Does it increase government spending (for objectionable purposes) or debt? Conversely, does it decrease government spending or debt?

According to the Fiscal Note for Senate Joint Resolution 101, "the approximate cost of any ballot measure is not more than $200,000." The purpose of a constitution should be to lay out the roadmap for a republican system of government and keep that government limited, not limit the people governed by it. The purpose of this proposed amendment is to convert the Idaho Constitution from a roadmap for governing into an itemized list of infringements on individual liberty. Also, the amendment itself struggles to abide by the basic principles of constructing law, as laid out by the Idaho Constitution. Given these facts, spending funds to implement the proposed amendment makes this resolution undeniably objectionable.


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