Idaho’s Constitution Promotes Freedom and Common Welfare 

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

Two principles animated the drafters of Idaho’s Constitution in 1889: freedom and common welfare. The text is an expression of those principles and the evolution of the Gem State, as reflected by more than 100 amendments to Idaho’s one and only constitution. A dive into the history preceding adoption of the constitution and its unique structural and rights provisions reveals how Idahoans have attempted to preserve the state’s values and aspirations in modern times.

Religious Roots, a Gold Rush, and Finally Statehood

The nature of territorial Idaho’s demographics and industry serves as the starting point for analysis of its constitution. From a demographics perspective, missionaries were among the first white settlers to call Idaho home. Members of the Mormon faith, in particular, flocked to Idaho, and the first Mormon settlement was established in Fort Lemhi in 1855.

Five years later, the gold rush kicked off in Idaho. News of potential riches led to a surge in the state’s population, including a wave of Chinese migrants. The search for those riches spread miners across the state. Congress took note of this flurry of activity and passed the Organic Act of 1863, creating the Idaho Territory, made up of what is now Idaho, Montana, and Wyoming.

As may be expected from people who deliberately sought out the freedom and independence associated with life on the frontier, the territorial dynamic did not sit well with Idahoans. An urge to establish more localized governance drove a long push for statehood. Idaho’s bid for statehood was part of a broader wave of western territories being admitted to the union during the late 19th century as the nation sought to formalize governance and secure control over the rapidly expanding western frontier.

Idaho, though, faced hurdles in realizing its goal. At one point, there were calls to make modern-day Idaho a part of different states, but fierce advocacy for Idaho as its own political entity won the day. Still, Idaho had additional barriers to address before earning admission to the union. Congress exerted significant pressure on Idaho to align its legal framework with federal expectations, particularly in matters of civil rights and governance. Idaho had to address the controversial practice of polygamy, for example, which had been practiced by some Mormon communities in the region and proven difficult for territorial officials to regulate. The Idaho Constitution specifically banned polygamy to ensure the territory would be acceptable to Congress for statehood.

The original constitution of Idaho was adopted on July 3, 1889, and became effective when Idaho was admitted as the 43rd state a year later. The people of Idaho have stuck with this same constitution since, though they have amended it on numerous occasions to ensure its applicability to modern concerns.

Doubts over the durability of the original constitution due to anachronistic provisions such as biennial legislative sessions almost led to its replacement in the mid-20th century. In 1965, the state legislature created a Constitutional Revision Commission that was tasked with reviewing the constitution and offering various suggestions for reform. The commission operated for five years and ultimately drafted a new constitution with more than 30 key changes from the 1889 document. Though both chambers of the legislature approved the proposed constitution by wide margins, the people voted it down.

A Brief Overview of the Declaration of Rights

While the Idaho Constitution’s Declaration of Rights, contained in Article I, mirrors many of the protections found in the U.S. Constitution’s Bill of Rights, there are notable differences in content, emphasis, and specificity.

In line with a spirit of freedom, Section 10 of the Declaration of Rights includes the right of the people “to instruct their representatives,” highlighting a more direct form of democratic engagement and an expectation of consultation between elected officials and their voters. This provision speaks to the concerns early Idahoans had about their territorial representatives making decisions without having previously engaged with the people. (A provision for recall of elected officials, with the exception of judges, contained in Article VI further illustrates a desire to keep a close eye on elected officials.)

The Declaration of Rights also includes an emphasis on freedom. Section 17 sets forth a right to privacy, particularly concerning private communications. While the U.S. Constitution implies privacy rights through various amendments, it does not explicitly ensure protection of those rights.

Two sections further shield Idahoans from excessive government interference. Section 14 outlines restrictions on the exercise of eminent domain, namely a comparatively narrow definition of what may qualify for public use of land. Section 15 prohibits imprisonment of debtors, except in cases of fraud.

Idaho’s Declaration of Rights contains a stronger version of the Second Amendment, though with a specific qualification. It says that the right to keep and bear arms “shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person.” The state constitution also clarifies that the military is subordinate to civil authorities. While civilian control of the military is a principle in the United States, it’s not expressly stated in the federal Bill of Rights.

Other provisions align with a core emphasis on the common welfare. Idaho explicitly grants rights to crime victims, ensuring they are treated with fairness, dignity, privacy, and respect. These rights include being informed of and present at court proceedings. Finally, a right to education — though it appears in Article IX, Section 1 rather than in the Declaration of Rights — perhaps serves as one of most illustrative provisions related to the common welfare. Based on the “the stability of a republican form of government depending mainly upon the intelligence of the people,” the provision requires the legislature “to establish and maintain a general, uniform, and thorough system of public, free common schools."

Commitment to Land and Natural Resources

The defining attributes of Idaho’s people and lands manifest in other provisions. Article XV, devoted to water rights, demonstrates the importance of natural resources to Idahoans. This expansive article specifies that water is for public use and subjected to state regulation. It creates a right to collect rates for water use as a franchise and outlines priority of appropriation — “first in time, first in right.” It also spells out a guarantee for continued access to water for agricultural purposes and dictates an ordering for water usage: first, domestic use; second, agricultural use; and, third, manufacturing.

The creation of a State Water Resource Agency under Section 7 further underscores the state’s dedication to protecting access to affordable, quality water. Added by amendment in 1965, this agency manages state water resources and authors and implements the state’s water plan. It is made up of eight members appointed by the governor and confirmed by the state senate.

Other provisions reflect the importance of livestock and wildlife management to Idahoans. Article XVI, for instance, calls on the legislature to protect livestock from diseases. And Article I, Section 23 explicitly guarantees the rights of the people to hunt, fish, and trap, including by traditional methods. These activities are recognized as a valued part of Idaho’s heritage and are to be preserved forever, serving as a preferred means of managing wildlife.

Notable Structural Provisions

Like a number of other state constitutions, Idaho’s has structural provisions that differ from the U.S. Constitution. Article II, Section 1 mandates the separation-of-powers doctrine that is read into the U.S. Constitution but not explicitly included. While the allocation and assignment of powers to the respective branches of the state government more or less line up with the nation’s governing document, the use of nonpartisan judicial elections is an obvious structural departure. As of a 1934 constitutional amendment, justices on the Idaho Supreme Court serve six-year terms once elected and then face reelection. Other members of the state judiciary are similarly elected by the people.

Idaho state government includes unique bodies tasked with overseeing its key resources. In addition to the Idaho Water Resource Board discussed above, the constitution creates a

State Board of Land Commissioners, made up of the governor, superintendent of public instruction, secretary of state, attorney general, and state controller. The board oversees the “direction, control and disposition of the public lands of the state.” Broad dispersal of authority over these valued lands likewise indicates a desire to avoid any excessive concentrations of power that may hinder public accountability and responsiveness.

Finally, Article XVIII contains elaborate provisions for county governance. Section 12 allows the state legislature to detail a range of options for county governance but mandates that the residents of the county approve the county’s adopted form.

Amending the Idaho Constitution

The Idaho Constitution has been amended more than 130 times. Either branch of the state legislature can propose amendments, which must then be agreed to by two-thirds of all members of each house, voting separately. The legislature must submit an amendment to the voters for approval at the next general election and publish it at least three times in certain newspapers. If a simple majority of voters ratifies the amendment, it becomes part of the constitution. Unlike 18 other states, Idaho does not permit amendments via citizen initiatives.

There is also a path to a constitutional convention, at which the entire constitution can be rewritten: If two-thirds of the legislators deem it necessary, they can recommend that voters consider a constitutional convention at the next general election. If a simple majority of the electorate supports calling a convention, the legislature must act on that during their next legislative session. The convention must consist of a number of members not less than double the number of the most numerous branch of the legislature.

Judicial Interpretation

The Idaho Supreme Court’s interpretations of key portions of the state constitution further animate the Idahoan values of freedom and common welfare.

In 1993’s Idaho Schools for Equal Educational Opportunity v. Evans, the court held that significant funding disparities between school districts violated the constitutional mandate of a “general, uniform, and thorough system of public, free common schools.” This decision led to reforms aimed at equalizing funding across school districts and emphasized the state’s duty to provide adequate education for all students.

In 2003’s In re Snake River Basin Adjudication, the court considered the allocation of water rights in the Snake River Basin under Article XV. It affirmed the prior appropriation doctrine, under which water rights go to the first person to put the water to a beneficial use, as the guiding principle for water rights in Idaho. The decision reinforced state authority over water resources and clarified issues related to access to this precious resource.

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Though amended numerous times to safeguard its founding principles, the Idaho Constitution has endured since 1889, upholding ideals of liberty and collective wellbeing that animated the territory’s earliest settlers.

Kevin Frazier is an AI Innovation and Law Fellow at the University of Texas at Austin School of Law.

Suggested Citation: Kevin Frazier, Idaho’s Constitution Promotes Freedom and Common Welfare, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 06, 2025), https://statecourtreport.org/our-work/analysis-opinion/idahos-constitution-promotes-freedom-and-common-welfare