judges are as honest as other men and not more so. They have with others
the same passions for party, for power, and the privilege of their
corps." Their power is "more dangerous as they are in office for
life and not responsible, as the other functionaries are, to the elective
Constitutional Amendment Concurrent Resolution 12 (CACR 12) will come before the NH General Court, the legislature, early in 2012. What is it? What does it do? Why is it necessary?
This constitutional amendment is to be put forward to take the policy of education funding away from the unelected and unaccountable NH Supreme Court and put it back into the hands of the elected and accountable NH General Court.
How did the Supreme Court get control of education funding? Claremont I, the initial Claremont decision, was delivered by the court on December 30, 1993. In that decision and the subsequent Claremont II decision it said that the state had a "duty", to provide a "constitutionally adequate education" to every educable child and to "guarantee adequate funding". It went on to say that a free public education is a "fundamental right."
The right to an adequate education was derived from the following clause taken from Article 83 of Part II of the state constitution which was written in 1784: "(Legislators and magistrates shall) cherish the interest of literature and the sciences, and all seminaries and public schools".
Does it not seem strange that the founders, according to the court, intended that public education was a right which was to be funded by the state and yet such was never the case during the lifetime of those founders, nor for 200 years after? Why did it take over 200 years for someone to discover the intent of the founders?
The constitution of New Hampshire is divided into two sections – Part I is the Bill of Rights and Part II is the Structure of Government. If the founders had meant for public education to be a "fundamental right", why was this right not included in Part I, the Bill of Rights? Does it not seem strange that the founders, according to the court, did not understand the structure of the constitution they wrote?
We must to be able to get past the impediments which are constantly thrust at us by the courts. The major impediment is the issue of adequacy. The words "adequate" or "adequacy" are nowhere mentioned in Article 83, the only article cited by the court. "Adequacy" is a fiction without constitutional basis.
Finally, the court admitted it was up to the legislature to determine adequacy but only "in the first instance". Unfortunately, that means that after decisions regarding adequacy are made by the legislature, they are then judged by the court, which sets itself as the final arbiter of this legislative prerogative.
Future columns will discuss further the legitimacy of the Supreme Court’s Claremont decisions, a past attempt to reverse these decisions, and the effects of CACR 12.
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