The Constitution vs. The Will of the People

The Constitution vs. The Will of the People


The Petition for Review

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 for the moment that 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 a person whose last name begins with R is a retrograde raucous rapscallion 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 Supreme Court concurs that the “will of the people” is limited to the bounds agreed in our Constitution. Prop 0, despite having the approval of all people whose names don’t begin R, is dead on arrival, null and void.

Now imagine 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 an Executive 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 been granted unlimited resources and is required to take all actions necessary to build the mansion as soon as practicable, because that is what the will of the people demands.

Plans are made. The Executive 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 that is not enough, new taxes will be imposed.

The Secretary of State is REQUIRED to take ALL ACTIONS NECESSARY to build the Executive 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 Executive 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 his friends on the Supreme Court? Mr. Right’s friends remind the Secretary that the people’s power of the initiative is the same as the power of the legislature, 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 that the 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. All intelligent people understand this to be true.

Now imagine that you replace the words “Executive Mansion” with “Medicaid Expansion” and our imaginary Proposition 1 becomes the very real Proposition 2, the one that was just approved by ‘the will of the people’.

The poorly written Proposition 2 assigns legislative powers to the executive branch, and it fails to set limits and standards, and in doing so is in clear violation of our State and Federal Constitutions. Case law supports this conclusion

Proponents of Proposition 2 will argue that the ends justify the means, that helping people is a noble cause and that in this case, the ‘will of the people’ is more important than that pesky Constitution.

One has to then wonder, if the ‘will of the people’ can randomly override the Constitution then why have a Constitution at all?

Text from Proposition 2 (emphasis added)


(1) Notwithstanding any provision of law or federal waiver to the contrary, the state shall amend its state plan to expand Medicaid eligibility to include those persons under sixty-five (65) years of age whose modified adjusted gross income is one hundred thirty-three percent (133%) of the federal poverty level or below and who are not otherwise eligible for any other coverage under the state plan, in accordance with sections 1902(a)(10)(A)(i)(VIII) and 1902(e)(14) of the Social Security Act.

(2) No later than 90 days after approval of this act, the department shall submit any necessary state plan amendments to the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services to implement the provisions of this section. The department is required and authorized to take all actions necessary to implement the provisions of this section as soon as practicable.