Memorandum to the Supreme Court from the
Libertarian Party of New Hampshire
To the Honorable Justices of the New Hampshire Supreme Court:
The Libertarian Party of New Hampshire appreciates the
opportunity the Court has afforded it to comment on the pending
judgment as to the compliance of Governor Shaheen's "ABC Plan"
and Senator Rubens' "A Plan" with the terms of its decisions
regarding Claremont School District & a. v. Governor & a.
It is the conviction of the Libertarian Party of New Hampshire
that the Court was underserved by both plaintiffs and defendants
in Claremont I and II; and further that, until now, there has
been no avenue by which to approach the Court with our concerns.
In both Claremont I and II we would have been limited to filing
an amicus brief in favor of one party or the other. It is our
contention that both parties to the suit were incorrect in an
assumption they shared, that either local or state government
must necessarily have constitutional authority to control and
fund schools.
We hold that this assumption pushed the Court into an either/or
decision that required the discovery of such constitutional
authority on behalf of either the plaintiff or defendant.
Neither party argued the case against such constitutional
authority, and thus failed to provide the Court with arguments to
support a decision more in keeping with the intent of the framers
of the Constitution: that no legislative plan for publicly funded
and controlled schools can pass constitutional muster.
Had the Libertarian Party been in a position to advance arguments
as to the constitutionality of schools funded and operated by
government, it would have urged the Court to consider the
following:
The Constitution of the State of New Hampshire is based on the
principles of individual self-ownership and the inherent right to
pursue one's life in accordance with one's own conscience
(Articles 1, 2, and 4). Article 3 reads, "When men enter into a
state of society, they surrender up some of their natural rights
to that society, in order to ensure the protection of others;
and, without such an equivalent, the surrender is void."
The article refers to the protection of the rights of
individuals, not to the protection or promulgation of society.
Intending to ensure that such surrender could never be forced,
Article 4 states, "Among the natural rights, some are, in their
very nature unalienable, because no equivalent can be given or
received for them. Of this kind are the Rights of Conscience."
There can be no higher matter of conscience than the upbringing
and instruction of one's children. Parents have an unalienable
right to choose the form and manner of their children's
education, including the right not to send them to schools
provided or approved by the state. Even considering Article 3,
parents could be asked to relinquish their right to educate their
children only if there were a corresponding, equivalent
protection of other rights. No such compensatory equivalent
exists. Therefore, the State has no authority to interfere with
the choices of parents with regard to their children's education.
The Bill of Rights was written specifically to enumerate rights
of citizens. Nowhere does it refer to a right to government-run,
taxpayer-funded education, nor for that matter, education as a
government service. None of the enumerated rights requires that
any other party pay for the exercise of it. Nor is there any
mandate that any right must be exercised. The people have always
reserved the most basic of all rights -- not to exercise them.
The historical fact that over the course of 215 years parents
have incrementally delegated their right and responsiblity to
educate their children (first to the churches, then to the towns,
and then to the legislature) does not negate the rights of
control and supervision of their children secured by the
Constitution. Prior misinterpretations, no matter how abundant,
do not invalidate the original document, to which we must return
for clarity.
We must regretfully concede that public education has evolved
into a taxpayer-funded entitlement conferred by the legislature.
Entitlements always involve taxpayer funding and delivery of
charitable services. Even as an entitlement, however, public
education is unique: no other entitlement mandates participation.
No one is forced to accept welfare, yet mandatory-attendance
laws force children to attend government-run schools, or
alternatives approved by the state.
Children are ordered to be in specific places for specific
periods of time, and ordered to perform functions designated by
the state until certain results are ostensibly achieved. The
only other persons subject to such unremitting state direction of
their lives are those who have been judged to have acted in
violation of others' rights, and incarcerated. The very act of
forcing children into unsafe, unsolicited association with other
children of the state's choosing is contradictory to the most
basic principles of the Constitution.
Legislation and case law may support an entitlement to education,
but they cannot confer rights. Nor are rights dependent on case
law for their validity. Rights exist in and of themselves.
Constitutions may enumerate them, legislatures may enact laws to
secure them, executives may act to protect them, and courts may
hand down judgments to defend them, but rights themselves are not
creatures of government. Rights are inherent in each individual,
and cannot be created, altered, or revoked by any branch of
government.
The Court has legitimately expressed its concern for the future
of New Hampshire's children, and for the adequacy of their
education. We believe it must forcefully articulate a judgment
that the Constitution recognizes that the only persons rightfully
competent to judge the adequacy of any child's education are that
child's parents or legal guardians.
We therefore recommend that the Court reject both Senator Rubens' "A Plan"
and Governor Shaheen's "ABC Plan" on the basis that any educational plan
which contains any of the following elements is in violation of both the
spirit and the letter of the Constitution: (1) taxpayer funding; (2)
mandatory attendance; (3) mandatory testing; (4) state certification of
curricula, schools, or teachers; (5) any definition of adequacy that confers
authority for assessment thereof on anyone other than parents.