Individual Duty to Cherish


In Claremont I, the justices established a corporate, or collective, duty with respect to education. They declared that it was no longer to be the individual determination of the "legislators and magistrates" to "cherish" education, but that the State, as a single entity, has a corporate duty to "cherish," i.e., to define an "adequate" education and fund the public schools. Once the court declared it to be our collective moral duty to fund education, there was no alternative but to fund it "equitably" in Claremont II.

In its decision the court states, "Given that New Hampshire shares its early history with Massachusetts, that we modeled much of our constitution on one adopted by Massachusetts four years earlier, and that the Massachusetts Constitution contains a nearly identical provision regarding education, we give weight to the interpretation given that provision by the Supreme Judicial Court in McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545 (1993). Upon this false assumption of similarity, our court concludes:

The duty of ensuring that the people are educated is placed upon "the legislators and magistrates, in all future periods of this government," and that duty encompasses supporting all public schools:

"The breadth of the meaning of these terms ('duty . . . to cherish'), together with the articulated ends for which this duty to cherish is established, strongly support . . . that the 'duty . . . to cherish . . . the public schools' encompasses the duty to provide an education to the people of the [State] . . . [I]t is reasonable therefore to understand the duty to 'cherish' public schools as a duty to ensure that the public schools achieve their object and educate the people." McDuffy, 415 Mass. at 564, 615 N.E.2d at 526

[2] We do not construe the terms "shall be the duty . . . to cherish" in our constitution as merely a statement of aspiration. The language commands, in no uncertain terms, that the State provide an education to all its citizens and that it support all public schools. Decisions of this court are consistent with this conclusion."
The court specifically and conspicuously neglects to mention that the dissimilarity between the two state constitutions is significant, particularly with respect to the subject of the pivotal verb, "cherish."

In Massachusetts, "legislatures and magistrates," as corporate entities, have the duty to "cherish" education, whereas in New Hampshire, our constitution was deliberately written to ensure the individual consideration of all "legislators and magistrates." Each one of our legislators and magistrates, operating within the constraints of his own conscience and delegated power, must cherish education as he deems appropriate. If our founders had intended a collective duty of the bodies politic they would have simply copied the Massachusetts constitution word for word. They did not.

The Claremont decisions are a judicial power grab, usurping the power of the people and their representatives to tax (NH Const. Pt.I, Art. 28) and violating the separation of powers (NH Const. Pt I, Art. 37). Whether by ignorance or design, Claremont I ought to be ignored, as the whole decision rests upon this fallacious corporate duty.

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 the use of, their Pt. II, Art. 73 power to remove the justices.

Marbury v. Madison is irrelevant to the states: it is a federal decision. Even there, it is not binding upon the Congress or the President. Each of them, who has wished to ignore it, has ignored it. The oath to preserve and defend the constitution is a personal, individual one. It is not an oath to preserve and defend the Supreme Court's interpretation of the constitution.

Failing decisive leadership on the part of the executive, the general court should underscore the significance of Pt. II, Art. 83 by ADDING the following:
"... it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish IN SUCH MANNER AS EACH OF THEM DEEMS APPROPRIATE the interest of literature and the sciences,..."
Legislators and magistrates may well disagree on education issues. That is not a problem. 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.

Massachusetts Constitution Pt. II, Chapt. V, Sect. II. The Encouragement of Literature, etc.

"...it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially ... public schools .."

New Hampshire Constitution Pt. II, Art. 83. Encouragement of Literature, etc.;

"...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,"




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