The basic organizational principle of the constitutions of governments, including that of New Hampshire, patterned after the British model, is majority rule through popularly elected representatives. They contain, however, a glaring anomaly: the judiciary, whose members are not elected, but appointed by the executive, to serve, not for a short period, but “during good behavior.”
This feature of our constitutional arrangement, known as “judicial independence,” originated with the British Act of Settlement of 1701. It was a typically practical British response to the experience of the constitutional struggles of the 17th century, in which Parliament was always at a disadvantage in legal controversies against a King who not only appointed all the judges, but could remove them at will.
Being exempted from periodic accountability to any other person, group or entity, judges appointed to serve during good behavior are enabled to render judgments strictly on the merits of the controversies brought before them, free of political pressure. The benefit to the judiciary of this constitutional arrangement carries, however, a countervailing burden: the judicial branch must refrain from involvement in politics, and it must be candid – that is, intellectually honest – in its opinions.
In the Claremont series of school funding cases of the past 30 years, the New Hampshire Supreme Court has failed in the performance of its share of the constitutional quid pro quo.
In its 1993 and 1997 decisions in the cases that have become known as Claremont I and Claremont II, the Supreme Court attributed to the authors of Article 83 of Part 2nd of the state constitution a mandate that the state define and provide, entirely at state expense, an “adequate” public education for all educable New Hampshire school children. The sole source for this conclusion was the single word “cherish” contained in a very short portion of a very long run-on sentence, that portion reading “[I]t shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of…all seminaries and public schools…”
I have too much faith in the intelligence and educational attainments of the judges comprising the Claremont majorities to believe that they did not know that the views on state-provided and state-funded public education they attributed to the 18th century authors of the studiously vague aspirational language of Article 83 did not come into fashion anywhere in the United States or the British Isles for more than two generations, and were not first enacted into law for a generation after that. They also must have known that any intended departure from previous practice, whereby education had always been provided and funded locally, would have been clearly stated. Finally, they must have known that any intention to make a state-provided and state-funded education a right of the citizen would have been placed in Part 1st of the Constitution (“Bill of Rights”) and not Part 2nd (“Form of Government”).
How, then, could the Claremont judges’ discovery of such a right and such a mandate be anything other than the product of deliberate falsification of history in order to impose the judges’ personal views of sound public policy? How else can it be explained, and how can it be defended by any lawyer who subscribes to the rule of law and who takes an oath to uphold the Constitution?
The Claremont decisions were classic examples of judicial activism, and provide a stark lesson of its baneful effects on a system of government premised on rule by consent of the governed. They have created a constitutional impasse: The judiciary has created a huge state financial obligation on the basis of an invented constitutional right, and the legislature has balked at accepting that dubious obligation on the basis of its undoubted right to impose taxes and establish policy in accordance with their duty as its members perceive it in their capacity as agents of the voters.
This impasse is finally coming to its inevitable head. In the most recent iteration of the Claremont saga – the case of Contoocook Valley School District. v. State of New Hampshire – the petitioner school districts have called upon the Supreme Court to order the Legislature to fund public education in the amount, and to apply that funding in the manner, that they demand, the rights of the Legislature and the preferences of the voters be damned. This case was argued last December 10, and a decision could be issued at any time.
If the Supreme Court does not stand down from and overrule its Claremont decisions; if the court stubbornly persists in the perilous uncharted course on which it set out in 1993 and presumes to dictate to the 424 New Hampshire state legislators the content of their duty, we will have a constitutional crisis unprecedented in our history.
