Chief Justice Charles Evans Hughes of the U.S. Supreme Court once observed that, "We are under a Constitution, but the Constitution is what the judges say it is." As you obviously know by now, the judges of our Supreme Court have ruled that Article 83, Part II, of our Constitution guarantees every New Hampshire citizen the right to a State-funded adequate education. With all due deference to Chief Justice Hughes, Article 83 says nothing of the kind!

However, before we examine what the Constitution really says, it would be useful to make one structural observation. That is the simple fact that Article 83 appears in Part II of the Constitution entitled "Form of Government" rather than in Part I which is called a "Bill of Rights". In prior cases, the Court had deemed the location of a constitutional provision to be quite relevant to its meaning. For example, in the 1882 case of Wooster v. Plymouth, the Court described the rule as follows:

The division of the constitution into two parts was not make without a purpose, and the name of each part is not without significance. The first is a "bill of rights," the second is a "form of government." The second is, in general, a grant of powers, made by the people to "magistrates and officers of government," who are declared (in Part I, art. 8) to be the grantors' "agents". The first contains a list of rights not surrendered by the people when they formed themselves into a state. Part I, arts. 1,2,3; Part II, art. 1. By the reservations of these, they limited the powers they granted in the second part, and exempted themselves, to the stipulated extent, from the authority of the government they created.

since the jury trial provision appeared in the Bill of Rights section of the Constitution, the Court in the Wooster case held that all that it did was establish a right; it did not give the State any power to regulate. By the same token, since the Encouragement of Education Clause was not placed in the Bill of Rights section of the Constitution, one would have expected the Claremont Court to have found this fact to be an impediment to its conclusion that it established a right to education. However, the Court never even mentioned the issue.[footnote 1]

Also not mentioned by the Court is the fact that the Constitutional Convention of 1850 proposed a constitutional amendment to the voters which would have moved Article 83 from the Form of Government section to the Bill of Rights section. Although the proposed amendment was soundly defeated by the voters, the fact that it was offered indicates that some people of that era felt that Article 83 needed to be changed if it was to guarantee a right to education. Again, one would have expected the Court to have at least discussed the circumstance - especially since it was called to the Court's attention in the briefs.

This situation illustrates the Claremont Court's general disdain for history. Although the Court claimed that in discovering a right to an adequate education in Article 83, Part II, of the Constitution, it "placed [itself] as nearly as possible in the situation of the parties at the time the instrument was made," this statement appears to be little more than window-dressing for the Court's pre-formed conclusions. For example, in its decision in Claremont I, the Court purported to find support for its conclusion that the Constitution guarantees every citizen a State-funded adequate education in several exchanges of communications between New Hampshire's early chief executives and their legislative counterparts. But all that the authors of these exchanges do is affirm that education is a "proper object of their attention" and something which deserves their "care and attention". The Court, nevertheless, asserts that such "statement[s] [have] significant probative value as an indication that the contemporary understanding was that part II, article 83 imposed a duty on the State to provide universal education and to [financially] support the schools." This is not logic; this is alchemy.

An even more serious instance of the Court's deconstruction of the historical record involves its response to the date submitted by the defendants in the Claremont suit concerning how our schools were actually operated and funded in the period surrounding the Constitution's framing. As even the Court acknowledged, this information clearly established that "no State funding was provided at all for education in the first fifty years after ratification of the constitution." One would have thought that this would have provided some fairly persuasive evidence that the contemporaneous understanding of Article 83 was that the maintenance and funding of schools were matters of local, not State, responsibility. Nevertheless, the Court dismissed the information as completely inconsequential. According to the Court, the fact that "local control and fiscal support has been placed in greater or lessor measure though our history on local governments does not dilute the validity of the conclusion that the duty to support the public schools lies with the State." In other words, the Court had itself covered either way; if the evidence had showed that the State historically funded education, that would have proved the State had a duty; but since the evidence showed that local governments had always funded education, that just proved that the State had delegated its duty.

The most egregious instance of the Court's misuse (or nonuse) of history [footnote 2] however, concerns its total silence about the Constitutional Convention of 1850. We have already mentioned the Court's failure to mention the proposal to move Article 83 from the Form of Government section of the Constitution to the Bill of Rights section. But the real smoking gun was the Convention's Proposal #XI, which read as follows:

Art. 83. Strike out this article and insert in lieu thereof the following:

Art. 89 The Legislature shall make provisions for the establishment and maintenance of free common schools at the public expense, and for the assessment and collection, annually, in the several towns and places in this State, of a sum not less than one hundred and twenty-five dollars for every dollar of state taxes apportioned to them respectively, to be applied exclusively to the support of such schools.

Art. 90. The supervision of public instruction shall be vested in a state superintendent, and such other officers as the Legislature shall direct.

Art. 91. The State Superintendent shall be chosen biennially by the qualified electors of the state in such manner as the Legislature shall provide; his powers, duties, and compensation shall be prescribed by law.

We can assume from the mere fact that Proposal #XI was made that the delegates to the 1850 Convention who recommended it felt that the existing language of Article 83 was not accomplishing something which they desired to accomplish. When combined with the proposal to move Article 83 to the Bill of Rights section, Proposal #XI would have accomplished the following: (1) established education as a constitutional right; (2) established the Legislature's duty as one to "make provision for" the public schools; (3) established the right/duty as relating to "free" public schools; (4) established the duty of the State to fund the schools through uniform tax; (5) set a constitutionally adequate level of State funding; and (6) transferred operational control for public schools from the municipalities to the State.

Confirmation of the delegates' understanding can be gleaned from the Convention's records. On November 21, 1950, its Committee on Education presented two reports which explained the reasons for proposing amendments to Article 83. With regard to the mandatory State education tax, the Committee stated the following:

Such a sum, we think is needed at this time, especially by the small towns, and those of middling population; for while these remain nearly stationary others increase in both respects. The proportional valuation of the farming towns, heretofore, becomes less, even while they do not diminish in numbers or amount of property. Of course, unless by special vote they add to the sums required to be raised by law their means of education are unduly abridged. Many towns do add largely to the sums required by law. But others as appears by the reports of the State Commissions, raise no more than the law exacts. There is need, therefore, of increasing from time to time the percentage of appropriation that the children and youth in every part of the State may enjoy as nearly as may be practicable, equal advantages of education.

This, of course, is the same justification which the Claremont Court used to divine the Constitution a mandate for the State to provide every citizen with an adequate education, adequately funded. The only difference is that the delegates to the Convention of 1850 were acknowledging that such a system was not mandated by the Constitution in its then current form, and that it would take a constitutional amendment to make it so. In fact, in the Committee on Education's separate report on the provision which would have established a permanent office of State Superintendent of Schools, the Committee expressly observed that, "The resolution does not confer new power upon the Legislature, but it professes to make that permanent which is now changeable; to make that imperative which is now optional." Accordingly, it seems obvious that at least the delegates to the Convention believed that, in its existing form, Article 83 did not require a State-funded, State-operated public school system.

As we know, the proposed amendment was defeated. Because no one has to state why he votes against something, we do not know why it was defeated. Consequently, we can never know exactly what the voters' understanding of Proposal #XI was or, even less, what their understanding of Article 83 was. Perhaps some of them thought that the new State education tax was too high. Others probably thought it was a mistake to cast any tax figure in constitutional stone. Still others undoubtedly objected to a State takeover of education and/or the creation of a new office of State Superintendent to run such a system. Nevertheless, one can feel reasonably secure that the citizens who went to the polls to vote on Proposal #XI would be shocked to find that the Supreme Court in 1993 had accomplished by judicial fiat what they in 1850 had declined to do with their ballots.

In any case, let us leave history to the historians and go now to the language of Article 83, Part II, itself. This, of course, brings us to the Court's interpretation of the word "cherish". We have already noted that the definitions of "cherish" which were contemporaneous with the formation of the Constitution pointed in the exact opposite direction from that claimed by the Court. Just as now, the core meaning of cherish at the time our Constitution was written was to "honor", to "revere" or to "hold dear". Thus the verb was not one of action, of doing or of accomplishing; rather, it conveyed a sense of affect, of emotion or of sentiment. In this regard, it is reflective of the sense in which George Washington used the word in his relatively contemporaneous Farewell Address when he urged all Americans to "cherish pubic credit", "cherish religion and morality" and "cherish a cordial, habitual and immovable attachment to the Unity of Government". [footnote 3]

The Claremont Court makes two other assertions about the language of Article 83 which are not supported by the text: (1) that Article 83 explicitly speaks to its addresses in their institutional capacities, and (2) that the addresses of Article 83 are only the political officers of government, the members of the legislature and the Governor. As far as the first of these propositions is concerned, note that Article 83 is not directed to "the State" in its corporate capacity - as it asserted by the Court in Claremont I - but to individual "legislators and magistrates". Interestingly enough, this language is different from the version of the Encouragement of Literature Clause in the Massachusetts Constitution of 1780 from whence it came; in the Massachusetts version, the admonition is aimed at "legislatures and magistrates". Although this may be no more than a drafting preference, it may also be evidence of an intent to identify the duties being prescribed in Article 83 as personal, not institutional, obligations.

In this regard, it might be well to compare Article 83, Part II, with Article 38, Part I, which also directs the officers of government to observe and foster a laundry list of social virtues. Note the similarity of their texts, the consistency of their purposes, the identity of their aspirational qualities, and the fact that they both appear to be directed at individuals, not institutions:

It may not occur to you that the fact that Article 83 is in some ways duplicative of Article 38 and that Article 38 appears in Part I, the Bill of Rights section of the Constitution, could actually be used as arguments in favor of the Claremont Court's discovery in Article 83 of a "right to education". The problem with such an argument, however, is the Court had ruled long before Claremont that the provisions of Article 38, Part I, are non-justiciable. For example, in the 1940 case of Trustees & c. Academy v. Exeter, Exeter Academy had argued that Article 38 supported its claim that a revocation of the school's historical exemption from real estate taxes would be unconstitutional. The Court, however, flatly rejected the expansive interpretation of Article 38 advocated by the Academy:

The constitutional direction that laws shall be just and conformable to social virtues does not contemplate the laws thought by the courts to be otherwise shall be held repugnant to the instrument. The direction is a precept and not a condition of validity. The exercise of legislative good faith is not a subject of judicial review. If the precept for all agents of the State to act in justice and reason is an obligatory mandate on which the validity of legislation depends, then it is applicable to all legislation, and the cardinal rule that the legislation alone passes on all moral virtue of its enactments is disregarded. The issues of the qualities of legislation prescribe by article 38 of the Bill of Rights are not justiciable.

As we shall see, the pre-Claremont Court had said the same thing about the provisions of Article 83, Part II; like the terms of Article 38, Part I, they are not justiciable. We have previously suggested a number of different reasons why the provisions of Article 83 are properly viewed in this way. We have said that they are "hortatory, not mandatory". Alternately, we have argued they involve "political question". What we are saying now is that another reason for the non-justiciability of Article 83, Part II, is that - like Article 38, Part I - its language appears to be meant to inspire persons, not to direct governments.

we are also suggesting here that there are some strong indications that those people to whom that inspirational language of Article 93 was addressed include judicial officers as well as legislative and executive officers. In this regard, it should be noted that when the Constitution uses the term "magistrates", it does not refer exclusively to "the Governor" - as is also asserted by the Court in Claremont I. The Constitution uses the words "magistrate" or "magistrates" variously to mean executive officers (Article 41, Part II), judicial officers (Article 33, Part I) or both (Article 8, Part I). As far as Article 83, Part II is concerned, it is most likely that the use of the term there was intended to refer to both executive and judicial officers.

Again, we should note the similarity of Article 83, Part Ii, to Article 38, Part I. The former addresses "legislators and magistrates" and the latter speaks to "lawgivers and magistrates". Who are the "magistrates" mentioned in these provisions? In a 1933 Opinion of the Justices, the Justices said that they were. Referring to the "duty of the legislators and magistrates to inculcate and constantly adhere to honesty and justice" and citing both Article 38 and Article 83 as the source fro such a duty, the Justices spoke of themselves "as magistrates, sharing that duty with the legislature". Likewise, in the 1886 case of Dow v. Railroad, the Court had also noted that these two constitutional provisions spoke to them personally:

Legislators are agents (N.H. Bill of Rights, art. 8) employed, not in the rescission, but in the performance, of the social contract...But the integrity of their principals is not to be unnecessarily impugned by other agents employed in the judicial department. The social contract requires an exact and constant adherence to justice and honesty as virtues indispensably necessary to preserve the blessings of liberty and good government. N.H. Bill of Rights, art. 38; Const. of N.H., art. 83.

These cases and others seem to contradict the notion put forth by the Court in its Claremont decisions that Article 83, Part II, specifically imposed its duty to cherish education upon only the Legislature and the Governor. The Judiciary was apparently included too.

On the other hand, if Article 83 was addressed to the court, wasn't the Court just discharging its proper duty under the Encouragement of Education Clause when it undertook to define an "adequate" education? The best answer to this question is that if something in a constitution appears to be everyone's duty, it was probably not intended to be anyone's duty - at least not in the sense of it being a legal duty. The point is that a constitution - especially one like ours which is founded upon the principles of representative government and separation of powers - is designed to allocate functions between the people and their representatives, on the one hand, and among the three branches of government, on the other hand. If the same duty purports to be shared by all three branches of government, there is by definition no separation of powers. The duty, therefore, is most likely one which is owed by all of government and/or its officers to the people. Such a duty is a political obligation, enforceable only through the political process, not the courts.[footnote 4]

As is typical of such eighteenth century tracts, the New Hampshire Constitution abounds in these types of duties. They are directed to government officials as agents of the public, not as representatives of a particular institutional entity. As we have already observed, Article 38, Part I, states that the people's "lawgivers and magistrates" should adhere to principles of "justice, moderation, temperance, industry, frugality, and all the social virtues". Article 8, Part I, states that "all the magistrates and officers of government", as the "substitutes and agents "of the people, shall operate a government which is "open, accessible, accountable and responsible". And, of course, Article 83, Part II, directs our "legislators and magistrates" to "cherish the interests of literature and the sciences" and to "countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections and generous sentiments, among the people."

Such provisions must be read in the context of the times. This was the era of Rousseau and the notion of government as the embodiment of the social contract. As Article 3, Part I, of our Constitution state: "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." Constitutional provisions such as Article 83, therefore, constitute a statement of Government's part of the bargain. And the Judiciary is just as much an obligor on the social contract as is the Legislature and the Executive. If, therefore, the contract is breached, the people's remedies lie in the political arena, not in the courts.

On the other hand, if the proper construction of Article 83, Part Ii, is that its duties are imposed upon the members of all three branches of government, you might ask one final question about the Encouragement of Literature Clause: how did the Framers intend judges to discharge their duties? Quite frankly, I doubt that the Framers ever really stopped to think about such an issue any more than they thought specifically about how a judge would discharge his duty to promote "frugality" or to inculcate "sobriety". On the other hand, I feel confident that the Framers did not contemplate that the Court would discharge these duties through the exercise of its power of judicial review. As we shall soon see when we examine the precedents, if there is one thing which comes through loud and clear, it is that virtually no one before Claremont - including the Court - assumed that it was the duty of the Judiciary to judge the "expediency" of the acts of the Legislature or the Executive.

What we tend to forget is that judicial review was only a fraction of the Court's work in the eighteenth century. The regulatory state with its explosion of statutory and administrative law is a creature of the twentieth century. The bread and butter of the judiciary system at the time of our Constitution was framed was not statutory interpretation; it consisted mostly of the resolution of common law civil claims and the disposition of criminal cases. In these areas, the constitutional admonitions to the officers of government that they foster the social virtues were just as meaningfully applied to judges as they were to legislators and executive officers.

A perfect example of this is the recent case of Marguay v. Eno, which was decided in 1995. The Court was faced in that case with the question of whether or not it should recognize a new common law tort in favor of sexually abused school children against school officials who either knew or should have known that the children were being abused by other school employees. Relying in part upon "the importance to society of the learning activity which is to take place in public schools", the Court held that such officials did have a duty to protect the children entrusted to their care and they could be sued for damages for breach of that duty. By recognizing this new cause of action, therefore, the Court was arguably discharging its own duty to cherish education.

Cases such as Marguary, however, do not deprive the Legislature of its superior role in law-making, in general, or within the field of education, in particular. Judge-make law is still subordinate to statutory law. The fact remains that the Legislature could reverse the rule of the Marguary case by simply passing a statute which eliminates the tort liability of the school officials. [footnote 5] In other words, the mere recognition of the possibility that the precepts of Article 83, Part II, were intended to guide not only the legislative and executive branches within their domains, but also the judiciary within its domain, in no way contradicts the proposition that the wisdom and efficacy of the acts of the Legislature are non-justiciable.

And - until Claremont - that is exactly the way the Court itself had interpreted Article 83. So let us now review those precedents. The least relevant of the cases are those in which the Court has interpreted the so-called Monopoly Clause of Article 83, which was not added to the Constitution until 1903:

Free and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it. The size and functions of all corporations should be so limited and regulated as to prohibit fictitious capitalization and provision should be made for the supervision and government thereof. Therefore, all just power possessed by the state is hereby granted to the general court to enact laws to prevent the operations within the state of all persons and associations, and all trusts and corporations, foreign or domestic, and the officers thereof, who endeavor to raise the price of any article of commerce or destroy free and fair competition in the trades and industries through combination, conspiracy, monopoly, or any other unfair means; to control and regulate the acts of all such persons, associations, corporations, trusts, and officials doing business within the state; to prevent fictitious capitalizations; and to authorize civil and criminal proceedings in respect to all the wrongs herein declared against.

Although the Monopoly Clause is not directed to the "legislators and magistrates", the provision is a part of Article 83, Part II, and the Court has had a lot to say about its role in enforcing the provision. For example, in the 1948 case of McIntire v. Borofsky, certain merchants argued that the Unfair Sales Act was unconstitutional because it supposedly conflicted with the prohibition upon monopolies in Article 83. The Court, however, made it clear that this was not a matter for judicial determination:

The expediency and wisdom of such legislation is by the constitution 'hereby granted to the general court' (Art. 83) and it is not for the judiciary to compete with the Legislature in matters of opinion upon points of * * * expediency.' Since the enactment of [the] Unfair Sales Act is within the power of the Legislature granted to it by the Constitution, its wisdom, effectiveness and economic desirability is not a judicial question.

Likewise, in the 1960 case of Corning Glass Works v. Max Dichter Co., New Hampshire's Fair Trade Law was challenged on the grounds that it violated the Monopoly Clause. The Court again refused to get involved: "We believe that a government of laws is best served when, in such situations as the present, a court exercises sufficient judicial restraint so that it does not substitute its economic or sociological predilections for the judgment of the Legislature."

Another clause in Article 83 directs the legislators and magistrates "to countenance and inculcate the principles of...sobriety ...among the people". This clause was not added by amendment, but was a part of the original 1784 version of Article 83. In the 1908 case of State v. Roberts, two defendants who had been convicted of violating the State's liquor licensing laws claimed that such laws were unconstitutional under this provision. The Court, however, declined to enter the fray: "Whether the public good requires the sale of liquor as a beverage should be entirely or partially prohibited is for the legislature to determine, in the exercise of its discretion. The court does not inquire into the expediency or wisdom of such legislation."

Finally, we come to the Encouragement of Literature Clause itself. This provision of Article 83, Part II, was very much at issue in the famous case of Dartmouth College v. Woodward decided by the Court in 1817. The issue presented by the case was the constitutionality of a statue which increased the number of members on the board of trustees of Dartmouth College. The Court held that the law was constitutional because Dartmouth was a public trust and because the Legislature had the power to regulate the affairs of such entities. Rejecting the argument that the college should be deemed a private trust, which would have made it subject to the superintendence of only the court system, the Court concluded that judicial control would yield insufficient protection for education. In that regard, the Court observed that, "Courts of law cannot legislate. There may be many abuses which can be corrected by the sovereign power [i.e. the voters] alone." As to whether or not the Court, in turn, could safely leave the "cherishing" of education to the Legislature, Chief Justice Richardson said as follows:

I am aware that this power in the hands of the legislature may, like every other power, at times be unwisely exercised; but where can it be more securely lodged? If those whom the people annually elect to manage their public affairs, can not be trusted, who can? The people have most emphatically enjoined it in the constitution, as a duty upon "the legislators and magistrates, in all future periods of the government, to cherish the interests of literature and the sciences and all seminaries and public schools." And those interests will be cherished, both by the legislature and the people, so long as there is virtue enough left to maintain the rest of our institutions. Whenever the people and their rulers shall become corrupt enough to wage war with the sciences and liberal arts, we may be assured that the time will have arrived, when all our institutions, our laws, our liberties must pass away, when all that can be dear to them, must be lost, and when a government and institutions must be established, of a very different character from those under which it is our pride and our happiness to live.

In one of our other Letters, we posed the question as to whether education was too important to be left to the politicians. The point made by the Court in the Dartmouth College case is precisely the point that has got lost in most of the discussions about the Claremont case: education is important; in fact, it is so important that its nurture has been placed in the hands of the institution which is most responsive to the body politic, the Legislature. On the other hand, if We The People don't care enough about education to see to it that the Legislature properly cherishes it, we will have a problem far too great to be fixed by the Judiciary.

The fact is that the Judiciary was not given the mission of curing all of society's ills. Judge Learned Hand gave a famous speech in 1942 called "The Contribution of An Independent Judiciary to Civilization". Although Judge Hand was not taking specifically about educational policy, he made the same point about judicial review and democracy that Justice Richardson had made in the Dartmouth College case:

[Judges] should not have the last word in those basic conflicts of "right and wrong - between whose endless jar justice resides." You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know - that a society so riven that the spirit of moderation is gone, no court can save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

In a democracy, judicial review has its limits. If we believe in democracy, we must trust it. It may not work as quickly as we like or in just the way we would like, but it will work if we just give it a chance. It is unfortunate that our current crop of Supreme Court Justices appear to be non-believers. In a letter that he wrote in 1824 to Henry Lee, Thomas Jefferson said that, "Men by their constitutions are naturally divided into two parties: 1. Those who fear and distrust the people and wish to draw all powers from them into the hands of the higher classes. 2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise, depositories of the public interest". If only the Justices of our Court had fallen into Jefferson's second category of men; they might not have felt compelled to substitute their own social policy predilections for those of the Legislature - and the Claremont case would have been decided the other way.

Rasputin

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[footnote 1] This is not to suggest that the location of a provision in Part I versus Part II of the Constitution is determinative of its status as the reservation of a right versus the grant of a power. There are in fact several instances of mismatching of rights and powers in the Constitution. Compare, e.g., Article 6, Part I (granting power to the Legislature to authorize the towns to hire teachers of religion) with Article 91, Part II (guaranteeing the right to habeas corpus and prohibiting its suspension by the Legislature).

[footnote 2] This not to suggest that the authors of the Claremont decisions are unique in their use of history for forensic purposes. Lord Acton - who also coined the phrase about absolute power corrupting absolutely - wrote that, "Writers the most learned, the most accurate in details, and the soundest in tendency, frequently fall into a habit which can neither be cured nor pardoned - the habit of making history into the proof of their theories."

[footnote 3] On the other hand, we don't want to get trapped into agreeing with the Court that the proper way of interpreting the Constitution is by resorting to the dictionary. As Judge Learned Hand once cautioned, "[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary."

[footnote 4] And it may also be a moral obligation, which is not enforceable in any sense other than through one's own conscience or a concern for one's reputation in the community.

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