Testimony in opposition to CACR 45.
CACR 45 attempts creates a State "duty" with respect to education in direct
violation of Art. 6, Pt.I. "[T]he constitutional guarantees the political
independence of the towns." Hale v. Everett (1868)
Inalienable rights of conscience cannot be abridged or surrendered.
Sen. Rubens' amendment to CACR 45 is a significant improvement, but is
still flawed. Art. 6 already guarantees local control of education -
which the sponsors supposedly seek - without any risk to local control.
CACR 45 introduces a new State duty over education, granting the
general court "full power and authority to define and to implement"
its own duty "by appropriate legislation." Such unrestricted power is
extremely dangerous.
Art. 83, Pt. II of the NH Constitution reads:
"...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..."
In 1993 the Supreme Court determined that the intent of the word "cherish"
is not the plain meaning of the word. That our founders did
not
have a sufficient command of the English language to clearly convey their
intent. That (and I quote) "such language commands, in no uncertain
terms, that the State provide an education to all its citizens and that
it support all public schools."
The Court has misrepresented the facts. Researching the Court's decision,
the history and the early laws indicate no
substantiation for the Claremont decision.
First of all, the Court does not mention -- in their zeal to imitate the
decision of the MA Supreme Court in McDuffy 415 Mass. 545 -- that
there is any difference
in subjects for the verb "cherish" in the MA and NH Constitutions. The MA
Constitution requires the body politic (the legislature) to cherish education,
whereas the NH Constitution requires individuals (the legislators) to
undertake the task. A corporate duty is far different from an
individual duty.
In 1780 when the MA Constitution was adopted there was considerable
deliberation on the term "legislators." There was so much that it was
finally changed at the last minute to "legislatures." Then in 1784
when New Hampshire copied the MA Constitution nearly word for word, they
deliberately changed the word back from "legislatures" to "legislators."
Were these changes of no significance and unworthy of mention? Why then
did our founders take the pains to deliberate over the word to make
the requisite change? Is the Court suggesting our founders were
simpletons who lacked any wit at all?
Is it appropriate for the Court to overlook this difference in
our constitution when copying the McDuffy decision? While a legislature
might collectively be capable of defining and funding
education, an individual
legislator certainly can not be held to the same responsibility.
For example, an individual legislator can not fund
education from their own estates. How can it be their "duty" to do so?
Is our Court suggesting
again that our forefather's command of the language was so inadequate,
that they must again "adjust" or ignore the literal language of the document
in this manner?
Next, how is it that Art. 83 "commands, in no uncertain language" the funding
of only public schools when the plain language of the article
includes both
public schools and "all seminaries?"
Actually, it states "all seminaries and
public schools" placing the seminaries first. Where did the Court get the
authority to selectively interpret the constitution to suit what is clearly
their preferred outcome?
Has the Court considered the magnitude of the duty it has just fabricated?
Not only can home schoolers now claim that they are entitled to an
adequate, publicly-funded education at home -- based on
Justice Brock's
opinion in the Claremont decision and his earlier decision, the Appeal of
Peirce 122 NH 762 in 1982, but college students can theoretically sue for
a free and adequate education. In the case of State v. Evans the Court
clearly established that "seminaries" in Art. 83 refers to colleges.
Will the Court retract these previous decisions, or are the taxpayers of
New Hampshire going to give the legislature a blank check? This decision
has the potential for bankrupting more than just the poor towns of NH.
If one were to consistently apply the logic of the Court in claiming that
local taxation for local expenditure is an unconstitutional method
of providing for education, then it may be an equally impermissible
means of providing other necessary services customarily financed
largely from local property taxes, including local police and fire
protection, public health and hospitals, and public utility
facilities of various kinds. All I can say to this is to hold onto
your wallets, folks. Who knows where this quote/unquote "free" ride will end?
As we're here today to discuss a constitutional amendment, it's
interesting to note that prior to 1964 all proposed amendments to
the constitution had to be made in constitutional conventions. It wasn't
until the constitution was amended in 1964 that the general court was
allowed to proposed amendments. Thus it was relatively
easy to research the proposed amendments to Art. 83, Pt. II which
specifically asked for the authority which the Claremont decision
has fabricated out of thin air.
As early as 1851 the people of New Hampshire rejected the Claremont
decision. They were asked to amend the constitution to allow for
State funding of public schools. That proposal was rejected.
Again in 1974 the people rejected the Claremont decision in three separate
proposals. The delegates to the sixteenth constitutional convention
rejected proposals which would have eliminated local autonomy in the control
and funding of education.
The first proposal was to require state funding for all legislation enacted
relative to education. The proposal failed in the convention.
Another proposal was nearly identical to the Claremont decision's
interpretation of the word "cherish." It proposed State support of
elementary and
secondary education. It was also rejected, but it would have amended
Art. 83 as follows:
"...; it shall be the duty of the legislators and magistrates, in all future
periods of government, to create an educational opportunity of equal
quality
for the children of the state by providing for the maintenance and support
of a complete system of public elementary and secondary schools,..."
If this wasn't quite clear enough, the next proposal was the Claremont
decision's fabricated constitutionally guaranteed right to
a free education,
with respect to "essential" subjects as designated by the State.
Again the people rejected this proposal, which was to modify the Bill of
Rights.
Why would the people repeatedly attempt to add language to the
constitution starting in 1851 if they felt these provisions were already
contained within the Constitution? Clearly they were not.
(I have brought copies of the text of all these proposals for the
committee to review.)
The people of New Hampshire have spoken clearly and unequivocally on
the issue of State control and funding of education. The people want
local control and funding of education. They have said no to State
control over and over again. The only remaining question is ---
Do the people rule?
Going back to the Claremont decision, the Court investigated the
history
of NH to substantiate their claim of a constitutional State duty towards
education.
The Court states (and I quote) "The Puritans who settled here were deeply
committed to education. They emigrated" (now quoting Nathaniel Bouton in
The History of Education in New Hampshire, page 3 ) "chiefly to enjoy
and propagated their religion; but next to this...(part omitted)
to educate their children."(unquote) I've learned that whenever the
Court omits anything to investigate further.
Their failure to distinguish between "legislators" and "legislatures"
could only be caught by investigating the words eliminated and replaced
with an abbreviated "...".
Looking at Bouton's work you'll find the omitted words were
"but next to this and subsidiary to it," indicating that
education was secondary to religious freedom and more
importantly wholly to be controlled by these beliefs.
If you continue to read, Bouton describes why the Puritans
left Europe: they weren't allowed to educate their children in
accordance with their religious beliefs. Many sought refuge in NH
when they dissented from the established church in the other colonies.
Does the Court deliberately or unwittingly neglect to mention
this? It conflicts with the Court's idea that these settlers
came to NH to enjoy State education of their children. It's not
only absurd, but it's the complete opposite of the truth.
The Court also fails to mention is that in 1680 there were
only three towns in the entire Province with enough legal voters to
be required to keep a school. Moreover, Dover was exempt from this
requirement for a number of years during a war. There were other
provisions for exemptions for those settlements which were
"uncapable" of raising the funds for schooling. The legislature tried
to enact penalties for negligent towns; then they repealed them;
then they reinstated them with exemptions; and then they shifted
the penalties onto the personal estates of the selectmen. But
enforcement proved extremely difficult. Even 100 years later many
towns, including Merrimack, didn't bother to fund schooling for many
years. Towns would regularly dismiss the warrant articles to fund
schooling at their town meetings.
In 1771 Gov. Wentworth addressing
the assembly wrote that "nine-tenths of your towns are wholly without schools
or having vagrant teachers . . .worse than none . . .unknown in principle
and deplorably illiterate." (VII N.H. Provincial papers, 287)
The Court, in its elaborate but superfluous accounting of Provincial laws
prior to the Constitution and the uplifting speeches of the Governors of
the State, fails to mention that the laws most relevant to a proper
interpretation of the constitution are those enacted immediately
after
the adoption of the Constitution in 1784 , not before. By these laws
we can see the intention of the founders. The Court is mute
on this score. They mention none of these laws, relying
instead on the
selective details of laws irrelevant to the our further understanding
of the intent of the Constitution itself.
The first education law enacted after the constitution
was adopted repealed
all Provincial education laws. The reason cited in the preamble of the
statute itself was that they they did serve the ends towards which they
were made.
Of what use is the Court's discussion of all of these Provincial
laws if they were immediately repealed as being ineffective?
Let me read a section from the second education law passed in 1791.
". . And be it further enacted that the Inhabitants of
each town in this State qualified to votes as
aforesaid at any meeting duly and legally warned
and holden in such town may agreeably to the
Constitution grant and vote such sum or sums of
money as they shall judge necessary for the
settlement maintenance and support of the ministry,
schools, meeting houses, school houses the
maintenance of the poor, for laying out and repairing
Highways for building and repairing bridges and for
all the necessary charges arising within the said
Town to be assessed on the polls and estates in the
same town as the Law direct--"
The intent was to authorize the towns to
determine by themselves the amount they may,
agreeably to the Constitution grant to be raised for schooling.
It was according to what the towns shall judge necessary,
not the State. Does this sound like State defined and funded education
to you? I sat for three hours in the town hall of Merrimack pouring
over the town records from 1754 onwards and saw that school funding was
clearly a function of the local voters.
From the earliest attempts to legislate on education
the State acted as the servant of the Church. It was clear that education
was a domain of the family and a matter of conscience. The early settlers
organized around the parish structure. There was to be no distinction between
towns and parishes as the Act of 1791 indicates, allowing adjoining parishes
within the town to operate with the full privileges and penalties of the
town. Parishes were able to assess their members for the support of
the ministry which was collected by the town officers. Art. 6 of the
Bill of Rights stands in testimony to their strong belief that morality
and piety were the foundation and security of government.
Another important distinction between the MA and NH can be
found in the comparison of the original 1784 Art. 6., Pt.I.
In NH, the legislature
"authorize[d] ...the towns, parishes,
bodies corporate, or religious societies within this state to
make adequate provisions at their own expense for the
support and
maintenance of public protestant teachers of piety, religion and
morality. Provided, notwithstanding, that the several towns,
parishes, bodies corporate, or religious societies,
shall, at all times have the exclusive right of
electing their own public teachers, and of
contracting with them for their support and
maintenance. [Exclusive Right clause] And no
person of any one particular religious sect or
denomination shall ever be compelled to pay
towards the support of the teacher or teachers of
another persuasion, sect, or denomination."
This article differed from the corresponding
article in the Massachusetts Bill of Rights.
The MA legislature was empowered to require towns,
and parishes to select and maintain such teachers,
and to enjoin upon all the subjects of the state an
attendance upon their instructions. The autonomy of
the towns and parishes was not constitutionally
guaranteed in the same manner in MA as it was in NH.
The inalienable right of "the several towns,
parishes, bodies corporate, or religious societies" to
elect their own public teachers was the issue in
Hale v. Everett in 1868. The court was asked
to settle a dispute between various members of the
First Unitarian Society of Christians in Dover. The
disgruntled minority was opposing the decision of
the majority to elect a particular teacher. The
Court remarked:
"And the constitution guarantees the
political independence of towns no
more explicitly or fully than it
guarantees the ecclesiastical
independence of parishes. This
illustration is peculiarly
satisfactory, because the towns of
New Hampshire were parishes
nearly two hundred years, and the
independence of the parochial
capacity, as it was in provincial
custom and law, and as delineated
in the constitution of the state, is
the same, whether exercised by
`towns, parishes, bodies corporate,
or religious societies.'" Hale v.
Everett (1868) 53 NH 9, pg. 250
Electing one's teachers and contracting with them
is constitutionally recognized as an inalienable
right. It is not something in which the State has
authority to interfere.
In 1784 the understanding was that public teachers
taught that which they saw fit to teach, also based
upon their conscience. If the parents in the town or
parish didn't like what a teacher taught, they could
elect a new one. The State government had no right
to interfere in this contractual arrangement. Art. 6
was written for the explicit purpose of guaranteeing
the political independence of towns and parishes
from State interference.
"The rights of conscience are not only
natural, essential, and inherent (Art. 2, bill of rights)
rights but are also unalienable, and
not capable of being surrendered
voluntarily or taken away or
abridged by the government,
because no equivalent can be given
or received for them. (Art. 4, bill of rights), are set
forth and declared specifically in Art. 5 of the bill of rights;
and nothing contained in Art. 6 of the bill of rights, or in any
other article of the constitution, was intended to conflict or
interfere with, or to modify the declaration of the rights of
conscience there made."Hale v. Everett
Article 6 was written to guarantee rights
of conscience with respect to religion and subsidiarily
with respect to education -- regardless of one's
beliefs or non-beliefs.
This separation of town/parish and State was constitutionally
guaranteed in 1784. Yet within a space of a relatively few
years the intent of Art. 6 of the Bill of Rights was
completely distorted and circumvented.
The dissenters from the prevailing town/parish,
being small in number and divided among themselves, were seldom strong
enough to support a ministry of their own. The 1791 law,
undoubtedly established with good motives and for
the public benefit, quickly became an engine of
oppression.
Here are some quotes from History of New Hampshire
by George Barstow (1842):
"It was not directly a
union of church and state; but it operated most
oppressively. Each town could select a minister of
a particular persuasion, and every citizen was
compelled to contribute toward the support of the
clergyman and to build the church, unless he could
prove that he belonged to a different persuasion
and regularly attended public worship elsewhere
on the Lord's day."
"Were it not for the general intolerance of that day, it
might be a subject of wonder that the people should
submit to a law thus unconstitutional and void, as
well as oppressive, for the space of twenty-eight
years. Yet such was the period of their submission
and such the provisions of the law. But they
manifested an increasing dissatisfaction. They had
seen the poor man cast into prison, and the
obstinate man after spending his fortune in a
fruitless resistance to the claims of the selectmen,
overpowered at last, when perhaps the destitute
wife and children needed the little fortune he had
thus squandered in an unsuccessful contest."
"It was a favorite maxim with the
anti-tolerationists, that `every man ought to be
compelled to pay for the support of religion
somewhere.'" (Hubbard's Speech)
The advocates for toleration
maintained that the law of 1791 was an attempt to
compel uniformity of religious faith, and that such
attempts were destructive to liberty and disastrous
to religion.
Is not the Court's attempt to mandate a State education
system another attempt
to compel uniformity, destructive to liberty and
the rights of conscience? I encourage the committee members
to read this Barstow's brief account of our state's history
wherein constitutional intent could be so completely
manipulated in opposition to the founders intent.
The toleration act of 1819 was enacted to restore rights of conscience
separating the towns from the parishes over the desperate fear-mongering
of the anti-tolerationists that removing the compulsory
support of the ministry would unleash rampant immorality
and the desertion of the churches . . .if not the government itself.
Education is subsidiary to this very same issue. The laments
of the vested interests (teachers unions and lobbyists)
and the distorted intent of the Court
indicate we are on a similar destructive course.
Is the Court so fanatical in its bent that it can not
learn a lesson from history that it must repeat it?
In the interests of education, this legislature should be
encouraged to slowly and carefully study this issue
rather than be hurried to judgment. There are important constitutional
questions which deserve our attention and thorough investigation,
issues which the Court failed to address in their Claremont decisions.