In its most recent education funding decision, made on September 8, 2006 in the case of Londonderry School District v. State of New Hampshire, the New Hampshire Supreme Court issued a political manifesto camouflaged as constitutional law.

The Court's stated reason for finding unconstitutional the latest school funding law was that the elected branches of the government had not reached an acceptable definition of an adequate education. But nowhere in the Constitution does it say that the Legislature and Governor must define an adequate education, let alone a definition acceptable to the Supreme Court. Article 83 of Part II of the New Hampshire Constitution, the supposed source of this duty, simply says, in relevant part, that "it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools."

The Supreme Court has never explained how this language obligates the representative branches to pass legislation defining an adequate education. The first time the notion of a constitutional right to an adequate education ever appeared in a Supreme Court decision was in Claremont School District v. Governor, issued in 1993, more than 200 years after Article 83 was ratified as part of the Constitution.

Even if it is assumed for the sake of argument that the Supreme Court is correct when it says that the constitution "imposes on the state a duty to provide a constitutionally adequate education to every child in the public schools in New Hampshire and to guarantee adequate funding," it hardly follows that this duty requires the legislature to "define an adequate education, determine its cost and ensure its delivery with accountability." From the standpoint of public policy, there are numerous ways that duty could be met. For example, rather than defining an adequate education in a one-size-fits-all manner from Concord using a top-down and unavoidably somewhat fanciful formula to determine the cost of an adequate education, the Legislature might provide that each school district function autonomously as a laboratory of education policy, and develop its own separate definition of adequacy determined by common sense and experience. Or, rather than defining an adequate education as requiring more centralized control, schools could be made accountable for the quality of the education they offer through the rigors of competition by means of parental school choice. These alternatives illustrate that how best to provide an adequate public education is a political, not a legal, question, in which those on the conservative side of the political spectrum typically want decision-making pushed down to the lowest possible level, while those on the liberal side, typically favor centralization of education policy and oppose school choice. By interpreting the Constitution to mandate a statewide definition of an adequate education, a formulaic determination of its cost, and bureaucratic accountability, the Supreme Court has made a political judgment camouflaged as constitutional law.

The recent Londonderry decision has placed us at the precipice. Having made itself a player in education funding policy by the artifice of creating mandates that are found nowhere in the Constitution, mandates that the Legislature has steadfastly refused to accept in all their implications, the Supreme Court has moved to the next logical step: threatening to define an adequate education itself, and order the massive and novel taxes to pay for it. The conventional wisdom, which unfortunately prevails in the Legislature as well as the general public, is that the Court can legally do these things; and that, in order to prevent it from doing so, an amendment to the Constitution is necessary. But in fact, no constitutional amendment is needed to enable the Legislature to exercise complete control over this subject. The Constitution already provides the Legislature with all the authority it needs. The problem is not to convince the voters to give the Legislature more authority, but for Senate and House leadership to educate their membership as to the extent and implications of the authority the Legislature presently possesses. Without acquiring and using this knowledge, the members of the Senate and House will fail in their duty to protect the prerogatives of the Legislature, and will by default allow the Supreme Court to become the Supreme Legislature.

The truth is much different from what the Supreme Court asserts and from what most of the public — and most members of the Legislature — assume. Relative to those of the federal government and the governments of the other 49 states, New Hampshire's Constitution has made its legislative branch one of the most powerful in the nation relative to its executive and judicial branches. Consider the following:

Article 8 of Part I expressly recognizes that the authority of the government is derived from the people, and must be accountable and responsive to them. The judicial branch, by design, is isolated and unaccountable. This is necessary in order to enable it to perform its adjudicatory function free of political influence. But if the people of New Hampshire have a fundamental right to accountability and responsiveness from their government, it follows that they have a right to live under the policy choices made by the elected branches, not those preferred by the judicial branch.

Article 12 of Part I states that the inhabitants of this State are not controllable by any other laws than those to which they or their representative body have given their consent. This means that no policy choice articulated by the judicial branch, no matter how artfully clothed in the raiment of the Constitution, can be enforced against the people unless the people directly, or acting through the Legislature, have consented to it. The argument sometimes heard that the judicial branch can direct the legislative branch to implement a policy preferred by the judicial branch, but not consented to by the people or the Legislature, is constitutionally and historically false.

Article 28 of Part I is even more explicit, stating that no tax "shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature, or authority derived from that body." It is impossible to be clearer than that: If the Legislature refuses to enact a scheme of taxation essential to the implementation of a policy preference of the judiciary, the judiciary's preference must yield to the Legislature's.

Article 29 of Part I reposes the power of suspending the laws, or the execution of them, exclusively in the Legislature, or by authority derived from the Legislature. The assumption held by many that the judiciary has authority to refuse to enforce laws duly enacted by the Legislature and signed by the Governor is completely contrary to this express provision of the Constitution.

Article 37 of Part I expressly separates the legislative, executive and judicial functions. By definition, the judicial power is retrospective, directed towards deciding upon the legality of claims and conduct arising in the past under laws previously established. By definition, the legislative power is prospective, directed towards making new laws of general applicability for the regulation of controversies that may arise in the future. Therefore, any ruling of any court purporting to limit what laws the legislature may enact in the future would be a legislative rather than a judicial act, and thus, unauthorized and void.

Article 4 of Part II gives the Legislature "full power and authority" to "erect and constitute judicatories and courts of record, or other courts," and to establish their jurisdiction. Although Article 72-a gives the Supreme and Superior courts constitutional status, their jurisdiction is regulated by statute. Therefore, any time the Legislature and Governor conclude that the judiciary is abusing its authority on any subject of legislation, all they need do is remove, by statute, the judiciary's jurisdiction to adjudicate cases arising under that subject.

Article 5 of Part II gives the Legislature "full power and authority" to "make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof," and to "impose and levy proportional and reasonable assessments, rates, and taxes." The judiciary is not made a participant in this process. Accordingly, consistent with Article 37 of Part I, the judicial branch's opinion of the wholesomeness, reasonableness and proportionality of legislative acts, while undoubtedly instructive and worthy of consideration, is not binding on the legislative branch.

Article 56 of Part II states that no moneys shall be issued out of the treasury of this state unless in conformity to the acts and resolves of the Legislature. In practical terms, this means that in the event of a difference in opinion between the judiciary and the Legislature as to the Legislature's constitutional duty to fund any activity, the Legislature's opinion must prevail, since the judiciary has no constitutional authority to enforce its own.

Article 74 of Part II authorizes each of the House, the Senate, the Governor, and the Executive Council "to require the opinions of the justices of the supreme court upon important questions of law." Neither here, nor anywhere else in the Constitution, are the opinions of the Supreme Court made final and binding upon the legislative and executive branches. Such a concept was unknown and would have been considered preposterous in the eighteenth century; it was — and remains — axiomatic in English law both that Parliament was the sole judge of the constitutionality of its own enactments, and that any decision of any English court, even on constitutional grounds, could be reversed for purposes of future cases by a simple act of ordinary legislation. The authors of New Hampshire's Constitution would hardly have altered so fundamental a change in the allocation of power among the branches of government without directly saying so.

Most of those who take for granted a more active constitutional role for the judicial branch of this state — a role amounting to little less than comprehensive supervisory authority over the legislative and executive branches — are analogizing from the federal model; they are taking their lead from the very visible activism of the United States Supreme Court, and are attributing the same authority on the state level to the New Hampshire Supreme Court. Whether the activism of the United States Supreme Court is a legitimate consequence of the structure of the United States Constitution and the federal system, or whether it is instead an illegitimate consequence of neglect, ignorance or demoralization on the part of the United States Congress, is an ongoing subject of controversy not relevant here, because the United States Constitution, adopted in 1788, and the New Hampshire Constitution, adopted four years earlier, are not alike.

The champions of judicial activism on the state level are either not reading or not comprehending the New Hampshire Constitution. In Part I, it establishes a social contract between the people and their government through an exhaustive articulation of rights. In Part II, it describes the institutions of the government. Contrary to what the Supreme Court often asserts, Part II does not establish three "co-equal" branches. Prior to ratification of Article 72-a in 1966, our state's courts could be abolished and reconstituted within a week, and even today, our judges, though appointed to serve during good behavior, can be removed from office in mere hours, should the Legislature feel so inclined. Our Governor is given no substantive power other than a qualified veto. In short, Part II creates a strong legislative branch and weak executive and judicial branches, the most egalitarian and citizen-based form of government in the world, with emphasis time and time again on citizen participation.

The Supreme Court that has arrogated so much authority through the numerous Claremont decisions, has completely missed — or ignored — the mindset that actuated the authors of our Constitution. As a consequence, we are in the throes of a continuing constitutional crisis in this state, created by a roguish court, but perpetuated by a legislature whose members fail to understand its role in the constitutional framework, the extent of its authority, and the concept of the separation of powers. Legislative leadership, in the meantime, has been unwilling to rally the members to the defense of the Legislature's constitutional turf, preferring unnecessary, unattainable, but headline-grabbing constitutional amendments as their preferred solution.

The school funding cases are only secondarily about education. They are fundamentally about power, authority and accountability. They reach back to the arguments espoused between 1776 and 1788 in crafting the state and federal constitutions. They involve the fundamental question of where sovereignty — that is, ultimate authority to govern — lies. In New Hampshire, the answer is found in Article 1, Part First: the people, who elect the Legislature to act in their stead. It does not lie in the unelected elite of the judiciary.

Gregory M. Sorg
Attorney at Law
Member of the New Hampshire House,
Grafton District 3