A case can be made that Claremont is a conspiracy between the judiciary and the executive to undermine the power of the legislature, the people's representatives. Rather than complain about how they "have no alternative" but to obey the court, Gov. Shaheen and the council ought to use, or threaten to use, their Article 73 power to remove the justices.
The purpose of having separate branches of government is to keep them in check, not to give full reign to one body over the other. Courts are not infallible. There must be mechanisms in place to prevent them from ruling by judicial decree. There are such mechanisms in place. We have only to use them.
The courts were not authorized to construe the laws "according to the spirit of the Constitution." That would "enable the court to mold the laws into whatever shape it may think proper" which was "as unprecedented as it was dangerous" according to Hamilton. If the judiciary were allowed to place its own meaning on laws, or to strike down laws which did not necessarily violate the Constitution but with which it disagreed, then the judiciary would become more powerful than the legislature -- a possibility repugnant to the founders. Judges must interpret the law, but they ought not to be legislators, substituting their pleasure for that of the legislature.
Thomas Jefferson predicted how this judicial increase of power might occur:
"It has long, however, been my opinion, and I have never shrunk from its expression, that the germ of dissolution of our government is in the constitution of the Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped."If we allow this judicial expansion to go unchecked, within the next few years the court will succeed in completely redefining our Constitution and will usurp the executive and legislative powers. All power will be centralized within the court.
Such centralization of powers will effectively negate the checks and balances established in our Constitution. Under the penumbra or shadow of the Constitution, the court imputes any meaning it wishes to the Constitution, resulting in the creation of brand new Constitutional "rights," which clearly do not reflect the will of the people but rather the personal values and prejudices of the judges.
These so-called "rights," discovered under this penumbra were neither explicitly mentioned nor even generally alluded to anywhere in the NH Constitution. In fact these penumbral rights repudiate the original intentions of the Constitution.
When the court creates "rights," such as those in Claremont, it promptly enshrines them in case law. After Claremont five annotations were added under Article 83 regarding education.. Subsequent courts will judge legislation, not against the Constitution, but rather against these court decisions, thus elevating judicial rulings to the level of the Constitution itself.
The original intent was that any of the three branches could interpret the Constitution. Thomas Jefferson wrote:
"Each of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question."Any branch is capable of determining constitutionality, the founders rejected the notion that the judiciary was the final voice. Thomas Jefferson did not oppose the courts expounding the Constitution, but he stressed that the judiciary was not the final arbiter.
Defenders of judicial activism assert that a judge can be impeached only for criminal acts and not for political usurpations. The founders emphatically disagreed. Alexander Hamilton declared:
Impeachment was to be used for "the abuse of violation of some public trust or for injuries done immediately to the society itself."Attempts to subvert fundamental law, to infringe upon the rights of he people, to interchange personal with public interests, to intrude upon the domain of the other branches of government and to exercise arbitrary power, are all valid grounds for impeachment.
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