Inalienable Rights of Conscience
In making its decision in the Claremont case, the NH Supreme Court
copied liberally from the MA Supreme Court decision, McDuffy 415 Mass.
545. The court argued that the similarity of the history and
constitutions of both states justifies the similar interpretation that
the State has a duty to fund education. They are wrong. The decision is
fabricated with no support whatsoever from the constitution or the
historical records of our state.
Comparing the NH Constitution to that of Massachusetts, from The Manual
of the Constitution of the State of New Hampshire, by James Fairbanks
Colby (1912):
"The sixth article, recognizing the dependence of the government's
safety upon the morality and piety of its citizens, empowered the
legislature to authorize towns, parishes, and religious societies to
select and maintain Protestant teachers of piety, religion, and
morality, with the limitation that no person should be compelled to
contribute to the support of the teacher of the denomination or sect to
which he did not belong, and that all denominations and sects should
stand on the same footing before the law. This article differed from
the corresponding article in the Massachusetts bill of rights in this:
that, by the latter, the legislature was empowered to require towns,
etc., to select and maintain such teachers, and to enjoin upon all the
subjects of the state an attendance upon their instructions. Evidently
Puritanism did not have quite so strong a hold upon the people of this
state as it did in the state it had so great a part in settling and
founding. With the exception of this article, and the articles (7, 18,
and 21) declaring the right of the people to govern themselves, the
correspondence that should exist between the punishment and the nature
of the crime to which it is affixed, and the care that should be taken
in selecting jurors, the bill of rights was substantially the same as
that of the Massachusetts constitution, although the phraseology and the
order of arrangement were in some parts slightly changed."
In 1784 parents within their local communities were expected to "make
adequate provisions at their own expense" for the support and
maintenance of public teachers.
According to our founders, religious instruction was essential to
inculcate morality and piety and ensure the security of the government.
(Pt. I, Art. 6) Similarly, "knowledge and learning, generally
diffused through a community" was considered "essential to the
preservation of a free government." (Pt. II, Art. 83) But in
no manner did our founders feel it necessary or prudent to require any
person to support public instruction against his conscience or enjoin
him to attend such public instruction.
In 1784 all teachers were religious teachers; and all public instruction
was given in religious schools. However, the funding and attendance at
public religious instruction was not constitutionally required in NH as
it was in MA. The NH constitution simply authorized "the
several towns, parishes or religious societies," to "make adequate
provision at their own expense for the support and maintenance of
public protestant teachers of piety, religion, and morality."
In 1791 the legislature enacted "An Act for regulating Towns and the
choice of Town Officers," which stipulated that "the Inhabitants of each
town in this State qualified to vote . . . 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, . . . to be assessed on the polls and estates. . ."
It should be noted that there was no substantive difference between
parishes and towns at this time; both were entitled to all the same
privileges and penalties. Both could assess and raise money by taxes
upon the polls and rateable estates of the members of their
associations. It wasn't until 1819, when the legislature restricted the
privileges of parishes, that towns alone were authorized at their
discretion to "grant and vote such sum or sums of money as they shall
judge necessary for the support of schools, [and] school houses." Public
schools were locally controlled.
Under the "free toleration clause" of Art. 6 there was to be "no
subordination of any one sect or denomination to another" established by
law. "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." (Art. 6) Rights of
conscience were inalienable.
"To compel a man to furnish contributions of money for the propagation
of opinions which he disbelieves and abhors, is sinful and tyrannical."
Thomas Jefferson
What happened to "free toleration" within public education? It is
considered enlightened to recognize the danger of establishing a state
religion, keeping separate church and state. Yet, according to the
Claremont court, parents are expected to fund public schools over which
they have no direct control, allowing the State to mold the very
character of that instruction to their children. This violates the
intent of Art. 6 by obstructing our exclusive right to elect public
teachers and contract with them for their support and maintenance.
Unless education is controlled locally, directly by parents or within
their local communities, enlightened "free toleration" will fade into
the far distant past. In Pierce v. Society of Sisters the US Supreme
Court recognized that the state could not standardize the education of
children. The Claremont decision should be ignored as it
unconstitutionally undermines local determination and our inalienable
rights of conscience.
Compare the original articles from both the MA and NH Constitutions:
Massachusetts Constitution Pt. I, Declaration of Rights, Art. III. (1780)
As the happiness of a people, and the good order and preservation of
civil government, essentially depend upon piety, religion and morality;
and as these cannot be generally diffused through a Community, but by
the institution of the public Worship of God, and of public instructions
in piety, religion and morality: Therefore, to promote their happiness
and to secure the good order and preservation of their government, the
people of this commonwealth have a right to invest their Legislature
with power to authorize and require, and the legislature
shall, from
time to time, authorize and require, the several Towns, Parishes,
precincts, and other bodies politic, or religious societies, to make
suitable provision, at their own Expense, for the institution of the
Public worship of God, and for the support and maintenance of public
protestant teachers of piety, religion and morality, in all cases where
such provision shall not be made Voluntarily.
And the people of this Commonwealth have also a right to, and do, invest
their legislature with authority to enjoin upon all the Subjects an
attendance upon the instructions of the public teachers aforesaid,
at stated times and seasons, if there be any on whose instructions they can
Conscientiously and conveniently attend.
Provided, notwithstanding, that the several towns, parishes, precincts,
and other bodies politic, or religious societies, shall, at all times,
have the exclusive right of electing their public Teachers, and of
contracting with them for their support and maintenance. [Exclusive Right clause]
And all monies paid by the Subject to the Support of public worship, and
of the public teachers aforesaid, shall, if he require it, be uniformly
applied to the support of the public teacher or teachers of his own
religious sect or denomination, provided there be any on whose
instructions he attends; otherwise it may be paid towards the support of
the teacher or teachers of the parish or precinct in which the said
monies are raised. Any every denomination of christians, demeaning
themselves peaceably, and as good Subjects of the Commonwealth, shall be
equally under the protection of the Law: And no subordination of any one
sect or denomination to another shall ever be established by
law. [Free Toleration clause]
New Hampshire Constitution, Pt. I Bill of Rights, Art. 6. Morality and Piety. (1784)
As morality and piety, rightly grounded on evangelical principles, will
give the best and greatest security to government, and will lay in the
hearts of men the strongest obligations to due subjection, and as the
knowledge of these is most likely to be propagated through a society
by the institution of the public worship of the Deity, and of public
instruction in morality and religion, therefore, to promote those
important purposes the people of this state have a right to empower, and
do hereby fully empower the legislature to authorize from
time to time
the several towns, parishes, bodies corporate, or religious societies
within this state to make adequate provision 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.
And every denomination of christians demeaning themselves quietly, and
as good subjects of the State, shall be equally under the protection of
the law: And no subordination of any one sect or denomination to another
shall ever be established by law. [Free Toleration clause]
And nothing herein shall be understood to affect any former contracts
made for the support of the ministry; but all such contracts shall
remain and be in the same state as if this constitution had not been
made.
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