This letter and its impending successors are being written in the tradition of the Federalist Papers and the other polemical tracts which formed the basis of the great public debate of 1789-91 about whether or not to ratify the Constitution of the United States. Like the document produced by the Philadelphia Convention over 200 years ago, the so-called Claremont II decision recently issued by the the New Hampshire Supreme Court poses issues of transcending political significance. The big difference between the two events, however, is that if James Madison, Alexander Hamilton and John Jay were alive today, they would be writing in opposition to, not in support of, the decision.

The issues at stake go far beyond the bottom line question of whether one agrees or disagrees with the proposition that public school education is best funded in New Hampshire through a tax system that is proportional on a statewide basis. Claremont II implicates the very structure of our tripartite system of government which is composed of a partnership between the executive, legislative and judicial branches, each of which has its own area of responsibility and competence and each of which is subject to checks and balances when it improperly interferes with its co-equal branch. Every judicial decision which purports to interpret the Constitution inevitably insinuates the Court into law-making, but there are some decisions which cross over that indefinable line that separates the judicial function from the legislative and executive functions and which raise legitimate questions about whether we truly have a government of laws, not men. Claremont II is such a decision.

The Court can hardly complain if a public debate over its decision brings it into disrepute. We reap what we sow. The Court violated every canon of judicial restraint when it reached out to lecture our duly elected officials on social policy and undertook to elevate its own views to constitutional stature. Since the Court has no army to enforce its decrees, it must rely upon its ability to persuade. The reason that court issue opinions explaining their decisions is presumably to convince their readers that their decisions carry sufficient moral weight to warrant the readers' voluntary obedience. Thus, the Court must demonstrate its faithfulness to the written word which it purports to interpret, its adherence to precedent, its attention to the political and social traditions of this State, its clarity of thought,and - perhaps most of all - its commitment to institutional integrity. The Court cannot rely upon the fact that it is a sacred cow. This is not India where they don't eat cows. We eat cows in America and, as Abbie Hoffman is reported to have said, "sacred cows make the tastiest hamburger."

There are many, however, who claim there should be no debate over the Claremont decision. After all, the Supreme Court has spoken and that is that. Moreover, they assert, the niceties of constitutional law cannot be comprehended by ordinary mortals, especially those in the Legislature. This sentiment was echoed not long ago on the floor of Congress by one of its own members, Representative David Obey of Wisconsin, who sanctimoniously chirped to his colleagues, "I dislike getting into constitutional arguments in Congress because we prove there are more Casey Stengels here than James Madisons." To begin with, we like to think that we are a little smarter here in New Hampshire than they are down in Washington. But even if we are not, Congressman Obey misses the point. The point is that although James Madison may have written part of the Constitution, and most of the Bill of Rights, he still had only one vote. The people who decided whether or not to make the Constitution the law of the land, the delegates to the state ratifying conventions and legislatures, may well have included a lot of Casey Stengels, but their votes were just as good as Mr. Madison's.

This is not to say that the debate should be left to politicians. The public ought to be involved as well. Article 8, Part I, of the New Hampshire Constitution states that "All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them." Ultimately, therefore, these issues must not be left to the institutions which are the subject of the debate. They need to have the attention of those to whom the temporary occupants of those institutions are finally accountable: the citizens of this State.

This issues presented by the Claremont decisions should also not be consigned to resolution by the lawyers. In a speech to the Bretton Woods Conference held right here in New Hampshire in 1944, the famous economist, John Maynard Keynes stated: "I have been known to complain that, to judge from results in this lawyer-ridden land, the Mayflower, when she sailed from Plymouth, must have been filled with lawyers .... Too often lawyers busy themselves to make common sense illegal. Too often lawyers are men who turn poetry and prose into jargon." Interestingly enough, this concern over the propensity of lawyers to to enshroud important concepts of political, economic and social philosophy in language unfit for ordinary consumption was a frequently registered complaint during the ratification debates of the Federal Constitution. For example, Mr. Singletary, a delegate to the Massachusetts Convention of 1787, when responding to those who advocated a swift and perfunctory review of that most-important document, charged that, "These lawyers, and men of learning, and moneyed men, that talk so finely, and gloss over matters so smoothly, to make us poor illiterate people swallow down the pill, expect to get into the Congress themselves; they expect to be managers of this Constitution, and get all the power and all the money into their own hands, and then they will swallow up all us little folks, like the great Leviathan, Mr. President; yes, just as the whale swallowed up Jonah."

These observations are not meant to serve as judge-bashing, politician-bashing or lawyer-bashing. The point is that the debate is not only about whether or not Claremont II will raise our taxes (although it surely will) or whether of not it will give us better education (although it surely won't). The point is that Claremont II challenges first principles and we all must, therefore, get involved. The Supreme Court itself state in its decision that, "Because the diffusion of knowledge and learning is regarded by the State Constitution as "essential to the preservation of a free government". ... it is only just that those who enjoy such government should equally assist in contributing to its preservation." Thus has the gauntlet been thrown down.

The debate has already begun. Those newspapers which published the verbatim text of Claremont II are to be commended for their contribution to this process. Much misinformation about the case can be dispelled by simply reading it. Indeed, it would not be waste of newsprint if that were repeated - and if Claremont I, from which Claremont II sprang, were printed alongside. I also entreat you to print these Letters to the Educators and the responses they will surely provoke. The letters will not be sound-bite length, but like all tasks worth doing, they are worth doing well.

If it is education that the Court wants, what better education than a debate over the Constitution! Let us produce our own Federalist Papers for future generations to ponder over. Although our forefathers were most concerned about the concentration of power in the legislative branch - as they called it, the "tyranny of the majority" - their basic theme was that all government power must be subject to checks and balances. Although the Framers had expected the judiciary to be the "least dangerous branch", they would not be surprised to find that absolute power has again corrupted absolutely. As Madison and Hamilton put it in The Federalist No. 51, "If men were angels, no government would be necessary." But men (and women) are not angels and government is necessary. So, in the spirit of the Great Debate, let us do it again.

The author has chosen to write under the pen name of the reputedly mad Russian monk Rasputin. This was not designed to emulate his political intrigue, but to gain strength from his capacity to withstand the repeated assaults of his enemies. Let there be no mistake about it: the stakes are high and the interested parties are powerful. Much money is at risk; the seats of those in high places are at risk; and serious principles are at risk. Hence, for those who may be so inclined, there is a great incentive to divert attention from the message by attacking the messenger.

These letters, therefore, are being published anonymously. Like Publius, Cato, the Federal Farmer and the others who sparked the Great Debate two centuries ago, I hope that my letters will focus the controversy on the issues and elevate the level of discourse. I note only that their author is - for better or for worse - a product of New Hampshire's "inadequate" system of education.

New Hampshire Politics

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