In one of our earlier Letters, we concluded that there really were no effective checks and balances upon the manner in which the Justices of our Supreme Court exercise their power of judicial review (i.e., their power to declare laws unconstitutional). Although theoretical constraints, such as removal from office by impeachment or reversal of their decisions through constitutional amendments, do exist on paper, they are either too draconian to seriously contemplate or too difficult to effectuate in practice. Consequently, the only real checks upon the Court's abuse of its powers are those which the Court is willing to impose upon itself.

This necessity for judicial self-control was addressed by Mr. Justice Stone of the US Supreme Court in his oft-quoted dissent to the 1936 case of United States v. Butler:

The power of Courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books, appeal lies not to the courts but to the ballot and to the processes of democratic government.

Note that Justice Stone speaks of two separate principles. The first point that he makes - that judges should not confuse issues of constitutionality with their own policy preferences - is an aspect of a principle with which we are by now very familiar; this is the doctrine of separation of powers. His second point - that even where there may be unconstitutionality, the Court should not reach out to find it - is somewhat new to our discussions; it is called the doctrine of judicial restraint. In our earlier Letters, we discussed in great detail the degree to which our Court's Claremont decisions violated Justice Stone's first principle. Now we shall see just how badly the Claremont decisions have also violated his second principle.

There is nothing new about the concept of judicial restraint. It has to do with the proper role in our system of justice of the judge as a neutral umpire. Our judges are trained to decide only those cases which need deciding. Unlike the courts of continental Europe, Anglo-American courts have no magisterial power to affirmatively go forth like Knights of the Round Table, seeking to right the world's wrongs. For example, as part of our common law tradition, we accept the proposition that our courts have no power to commence a case sua sponte, i.e., on their own. Accordingly, even if a blatant illegality is staring a judge in the face, he must hold his tongue unless and until someone commences an action in his court. And even if a claim is brought in his court, his job is not to raise issues not raised by the parties; it is not to decide issues which are unnecessary to the disposition of the case; and it is not to decide the case at all if the parties elect to withdraw their claims and settle their dispute. [fn 1]

On a personal level, this paradigm reflects itself in that cast of mind which we call the "judicial temperament." This consists of that aggregation of personality traits which are characterized by the passive virtues, such as humility, patience, deliberation, circumspection, reflection, caution, equanimity, modesty and moderation. Accordingly, its exemplars are not Judge Roy Bean dispensing his personal brand of Law West of the Pecos, Judge Julius Hoffman suffering an apoplectic fit over the antics of the Chicago Seven, or even Judge Lance Itoh preening before the television cameras. The role model for our perfect judge is a nameless, faceless, blindfolded statue of a woman holding the scales of justice in perfect balance.

The perfect judge in such a system is re-active, not pro-active. His function is to resolve cases, not to prosecute them and not to defend them. He must remain aloof, above the fray, emotionally uninvolved. He is even-handed and impartial, favoring neither side. A judge is an arbiter; he is not a party; and he is not an advocate for any party. He seeks to avoid disputes, not to create them. And when he does resolve a dispute, he does so by making a decision, not by scoring a debating point.

This image of the reluctant judge is particularly apropos when the Court decides constitutional cases. For, in this arena, there is a definite intersection between Justice Stone's two principles, judicial restraint and separation of powers. Whenever the Court exercises its power of judicial review over the acts of the other two branches of government, it is implicitly compelled to determine the limits of its own authority as well. For example, when the Court assesses the constitutionality of a law passed by the Legislature, the Court must also analyze its own thinking on the issue to insure that it is truly acting in a judicial capacity and that it is not - as Justice Felix Frankfurter often characterized it - acting as a "super-legislature". In this sense, every instance of judicial review presents an issue of separation of powers.

To the extent that the doctrine of judicial restraint cautions the Court to confine itself to its own domain (or, as Justice Stone stated it, to be "concerned only with the power to enact statutes, not with their wisdom"), judicial restraint serves to reinforce the doctrine of separation of powers. As Justice Frankfurter put it in his dissent in the 1943 case of West Virginia State Bd. of Education v. Barnette, "the attitude of judicial humility which these considerations enjoin is not an abdication of the judicial function. It is a due observance of its limits". Or as our own Court phrased it in the 1960 case of Corning Glass Works v. Max Dichter Company , "We believe that a government of laws is best served when ... a court exercises sufficient judicial restraint so that it does not substitute its economic or sociological predilections for the judgment of the Legislature" .

In this regard, judicial restraint is simply a counterweight to the Judiciary's natural propensity to expand its own power. We have already noted the tendency of all power to corrupt. As James Madison said in a letter to Thomas Jefferson in 1788, "[W]herever the real power in a Government lies, there is the danger of oppression." And, as Jefferson knew only too well, that includes the Judiciary. For example, this is what he said on the subject in his Autobiography: "[C]ontrary to all correct example, [judges] are in the habit of going out of the question before them, to throw an anchor ahead, and grapple further hold for future advances of power." Judicial restraint, therefore, simply acts as a brake or a governor upon judicial ambition, which is itself just a reflection of the fallibility of all human beings.

Another human trait at work here is self-interest. The ancient maxim states that "no man should be a judge in his own case".[fn 2] A judge who must determine the limits of his own power of judicial review is indeed a judge in his own case.

This does not mean that the Supreme Court is disqualified from engaging in judicial review. For not only is it accepted that the exercise of the power of judicial review is the Court's constitutional right and duty, but it is also compelled by the ancient rule of necessity which states that, "when all judges would be disqualified, none are disqualified." On the other hand, the doctrine of judicial restraint at least openly acknowledges the conflict of interest which is inherent in judicial review and cautions the Court to avoid its potentialities.

If the doctrine of judicial restraint can be said to reinforce the doctrine of separation of powers in some cases, it can also be viewed as tempering it in others. Like the mythical figure of Janus, separation of powers faces in two different directions at the same time. We have just discussed its introspective side, that which counsels each branch of government to look inwards, to know the borders of its own territory and to remain within them. But the doctrine of separation of powers has an extroversive side as well. This is the face which tells the three branches to look outwards, to know the borders of their neighbors' territories, and to keep them within their borders. As Justice Brandeis once pointed out, "[T]he doctrine of separation of powers was adopted ... not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy."

By its very nature, judicial review creates friction. Because judicial review necessarily pits the Judiciary against its sister branches of government, it is bound to do this. The problem with friction, however, is that things which are subjected to it have a tendency to become worn and to break. For this reason, confrontation is not usually assumed to be in the Judiciary's best interest. Judicial restraint, therefore, cautions the Court to exercise its power sparingly. It suggests that at least as much can be achieved through cooperation as it can through confrontation.

This feature of judicial restraint which seeks to minimize institutional confrontation manifests itself in a number of subsidiary legal doctrines. The first of these directs the Court to avoid opining on issues of constitutionality if there are any alternative grounds upon which a case can be decided. For example, in the 1991 case of Britton v. Town of Chester , the Court decided that a local zoning ordinance was invalid because it conflicted with a State enabling statute. The Court observed that its refusal to deal with the question of the ordinance's constitutionality was "in keeping with our longstanding policy against reaching a constitutional issue in a case than can be decided on other grounds." Such a policy is not only ancient, but it is also typical. For example, at the Federal level, it was declared to be the rule of decision by the very architect of judicial review, Chief Justice Marshall himself:

No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of legislative acts. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed.

Another tack often taken by the Court when presented with an attack upon the constitutionality of a legislative act is to purposefully construe the law in question in a manner consistent with the Constitution. As the Court said in its decision in the 1908 case of Canaan v. District, "A construction that makes a statute unconstitutional in its operation is not to be adopted when it is reasonably susceptible of another and constitutional construction." Again, the same rule applies in the Federal system where - according to our own Justice David Souter - the U S Supreme Court's "longstanding practice is to read ambiguous statutes to avoid constitutional infirmity."

On the other hand, if the issue of constitutionality cannot be dodged by the Court, the doctrine of judicial restraint directs the Court to commence its task of judicial review by making an assumption that the challenged act is valid. This is an application of the so-called presumption of constitutionality. This notion holds that when the acts of the Legislature or the Executive are challenged on constitutional grounds, the Court is to give the actor the benefit of the constitutional doubt. Although this tradition is indeed a function of judicial restraint, it is also an acknowledgment of the wisdom of Justice Oliver Wendell Holmes' comment that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." [fn 3]

The presumption of constitutionality is very much a part of the jurisprudence of New Hampshire. For example, in the l8l8 case of Merrill v. Sherburne, the Court said that it would only declare a law unconstitutional if its invalidity were shown "in the clearest manner." Likewise, in the 1859 case of Rich v.Flanders , the Court held that "a legislative enactment is not to be declared invalid for lack of a constitutional power unless the conclusion is established beyond a reasonable doubt." And, finally, in the case of Musgrove v. Parker, the Court stated that, "It has always been the practice in this jurisdiction to follow the universally accepted doctrine that the constitutionality of an act passed by the coordinate branch of the government is to be presumed. It will not be declared to be invalid except upon inescapable grounds."

On the other hand, even if the presumption of constitutionality is overcome, judicial restraint signals the Court to do no more than declare the challenged act unconstitutional. In other words, it is not the function of the Court to put anything in its place. As Justice Frankfurter said in the Barnette case, "A court can only strike down. It can only say, `This or that law is void.' It cannot modify or qualify, it cannot make exceptions to a general requirement." Thus, the power of judicial review is only a negative power; having cast its veto, the Court's job is done. It is then the province of the Legislature or the Executive, as the case may be, to either find a new way to accomplish its intended end or to abandon the task and move on to something else.

The principle of judicial restraint, therefore, is completely compatible with the principle of separation of powers. On the one hand, it keeps the Judiciary focused upon matters of genuine constitutional dimension, as opposed to mere expediency. As reflected in the comments of the Court in the l936 case of Coleman v. School District of Rochester , judicial restraint teaches that:

The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power.

On the other hand, by keeping the Court out of the Legislature's business, judicial restraint encourages the Legislature to tend to business. In this regard, many commentators have remarked upon the fact that one of the consequences of hyperactive judiciary is a slothful legislature. Famed historian Henry Steele Commager, for example, charged that "judicial review has been a drag upon democracy and - what we may conceive to be the same thing - upon good government." Commager, in turn, took his cue from an earlier giant, Professor James Bradley Thayer, who wrote at the turn of the nineteenth century:

Great and, indeed, inestimable as are the advantages in a popular government of this conservative influence, - the power of the judiciary to disregard unconstitutional legislation - it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors.

If, therefore, a vigorous lead from the Court dampens the fires of democracy, judicial restraint has the effect of keeping those fires well lit. By not being able to pass the buck to the Supreme Court, the Legislature is compelled to accept responsibility for its actions and, if it is careless of evil, to suffer the consequences. As the Constitution says in Article 8, Part I, the officers of government are "at all times accountable to [the people]." Judicial restraint fixes accountability for the wisdom and efficacy of our laws upon the body which makes the laws, the Legislature. Consequently, by avoiding the confrontation between institutions which inevitably results from a cavalier exercise of the Court's power of judicial review, the doctrine of judicial restraint not only promotes comity among the institutions of government, but it also makes each one do its job better.

Judicial restraint also warns the Court to conserve its moral capital. But now we are talking about more than just institutional harmony; we are talking about credibility. And a due regard for credibility is particularly important to an institution such as the Court whose effectiveness depends upon the force of persuasion rather than the persuasion of force. It goes to the very heart of the Court's ability to function.

The question of credibility also implicates a different audience than simply the Court's companion branches of government; it involves that constituency to whom all institutions of government are ultimately responsible - the people. Despite the fact that judicial decisions are not supposed to be determined by plebiscites or public opinion polls, the Court cannot maintain its legitimacy, at least in the long run, if its decisions are not compatible with the essential, shared values of the general populace. US Justice John Harlan recognized this requirement when he wrote the following in his dissent to the Court's 1961 decision in Poe v.Ullman:

If the supplying of content to [a] Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive.

The threat to the Court's legitimacy is especially immanent when it ventures into areas which affect our deepest sensibilities. As Justice Frankfurter said in his dissent in the Barnette case, "As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more and not less important, lest we unwarrantedly enter social and political domains wholly outside our concern." The most obvious example of the high political price to be paid for a disregard of judicial restraint in an area of intense personal concern is the intrusion of the Federal Courts into matters of sexual practice and abortion. Regardless of how one may come down on the moral, social and religious aspects of these issues, it is acknowledged by all but the most ardent of partisans (on either side) that the literal text of the Federal Constitution says nothing whatsoever about them. This is not to say that the Court was right or wrong in divining constitutional rights in these areas; my point is simply that when the Court ventures into areas which cause it to take sides in matters of basic moral precepts, it jeopardizes its own legitimacy if it has nothing more to base its decisions upon than the mere fact that it has the power to decide. As Justice Antonin Scalia recently said about such a decision, "When the Court takes sides in the culture wars, . . it is an act, not of judicial judgment, but of political will." [fn 4]

Part II - Education

It appears that our Court was oblivious to these considerations in its Claremont decisions. Indeed, the Court exhibited a certain naivete in the boldness of its pronouncements upon educational policy. It apparently assumed that a decision which purported to state for all time what constitutes an "adequate" education would have no greater impact upon the citizens of New Hampshire than one of its typical decisions about the search and seizure rights of a criminal . The Court obviously did not understand that, as controversial as its anti-majoritarian decisions on such issues may be, they are not taken personally by most people.

Education, however, is different. Decisions about education don't affect only the minority - or even only the majority; they affect everyone! And everyone has an opinion about education. Why? Because most people have children and the education of their children is a subject which is intimately related to their own moral and social beliefs. For most of us, our children are extensions of our ourselves; they are our window to the future; they are our immortality. As Jane Addams once wrote, "America's future will be determined by the home and the school. The child becomes largely what it is taught." Consequently, when the Court tells you or me that it knows best how our children should be taught, the Court takes a huge risk in terms of its own institutional credibility.

This point was not lost upon the Supreme Court of the United States when twenty-five years ago it declined to take the path chosen by our Court in Claremont. In the case of San Antonio School District v. Rodriguez, the U S Supreme Court decided that it would not intervene in matters of educational policy. In reaching its conclusion that education was not a fit subject for judicial intercession, the Court specifically took account of the depth of disagreement on the issue among persons of goodwill and rationality:

[T]his case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of intractable economic, social, and even philosophical problems. . . . On even the most basic questions in this area the scholars and educational experts are divided.. . . The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues.

The other reason that education is such a sensitive issue is because of its intimate relationship with freedom of speech and our other political freedoms. As Sir Francis Bacon said, "Knowledge is power." He who controls our education controls what we know, and what we know, in turn, has a great deal to do with what we think, what we say and, ultimately, what we do. Thus, the power over knowledge is one of the most awesome of powers - especially in a democracy. Certainly the connection between education and the exercise of our political rights is nowhere made more explicit than in the very provision of our Constitution which spawned Claremont, Article 83, Part II, where it is proclaimed that "knowledge and learning [are] . . . essential to the preservation of a free government."

Yet the irony is that the Court apparently does not perceive the inconsistency between its insistence in Claremont upon governmental control over education and the Judiciary's traditional condemnation of even the most minor interference by government with our political rights. Again, the U. S. Supreme Court in the Rodriguez case had no difficulty in recognizing this as a serious problem under the Federal Constitution:

The Court has long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities.

The New Hampshire Constitution, like the Federal Constitution, guarantees freedom of speech, freedom of religion, freedom of association and the right to vote. Pursuant to these provisions, the Court has held on numerous occasions that although the State may regulate the time, manner and occasion for speech, it may not dictate the content thereof. Under Claremont , however, the State must regulate education. According to the Court in Claremont I, the Legislature and the Governor must "fulfill their responsibility with respect to defining the specifics of, and the appropriate means to provide through public education, the knowledge and learning essential to the preservation of a free government". Likewise, in Claremont II, the Court proclaimed that "the legislature's obligation [is] ... to establish educational standards that comply with constitutional requirements."

Part III - Local Control

This certainly doesn't look like judicial restraint to me. Even if the Court had conscientiously concluded that Article 83, Part II, of the Constitution imposed a judicially-enforceable duty upon the State to provide its citizens with a system of education, there was no reason that the Court should not have held that the State could delegate that function to the cities and towns. Educational policy and funding have always been determined in New Hampshire at the local level, by elected school boards and through direct citizen participation in the democratic process at school district meetings. In one grand gesture, however, Claremont swept these 200 years of tradition aside and decreed that educational policy must be set in Concord at the Statehouse.[fn 5]

This is not to say that there is any requirement that educational policy or funding be determined at the local level. Our Court has repeatedly held that cities, towns and school districts are but subdivisions of the State and that their powers, their territories and their very existence may be altered or even eliminated by the Legislature. For example, in the l937 case of Amyot v. Caron, the Court specifically held that there was no such thing as a "constitutional right of local self-government." [fn 6] Even the addition to the Constitution in l966 of Article 39, Part I, which denies to the Legislature the power to change "the charter or form of government of any particular city or town" without the consent of its voters, has had little or no limiting effect upon the Legislature's historically plenary power over the State's municipalities. Although intended to be an affirmation of home rule, the Court has construed the amendment so narrowly as to almost render it nugatory.

Another home rule amendment, Article 28-a, Part I, which was added to the Constitution in l984, was intended to put an end to the State's not infrequent efforts to impose new burdens upon the cities and towns without providing them with the resources to satisfy their obligations. In the 1990 case of N.H. Municipal Trust v. Flynn, the Court described the amendment, which is known as the unfunded mandate provision, as being "designed to provide a safety net to save cities and towns from the burden of coping with new financial responsibilities not of their own creation, and to permit them a stronger grasp of their fiscal affairs." On the other hand, it appears that one of the unintended consequences of the amendment is actually to weaken local control in that it induces the State not to delegate responsibility. If the State has to pay for something, it wants to run the show.

Notwithstanding local control's lack of constitutional stature, its prominence among New Hampshire's most revered traditions is beyond cavil. Indeed, its place in our political culture was well established before we even declared our independence from England in l776 or adopted our first constitution as an autonomous political entity in that same year. According to Chief Justice Doe in the case of State v. Hayes, our tradition of local control extended back at least as far as l640 - and was still very much alive when he wrote about it in l88l:

Local self-government (including much administration of law, and an extensive use of the law-making powers of taxation and police), introduced not only before the organization of both the state and province of New Hampshire, but also before the extension of Massachusetts jurisdiction to the Piscataqua, and continuing in uninterrupted operation more than two hundred and forty years, has been constitutionally established by recognition and usage. Preceding all other New Hampshire legislation, and firmly fixed in the foundation of our institutions as an executed intention of the people, the local exercise of the power of making local law is an application of the principle of self-government that retains the control of local affairs in the community most interested in them.

New Hampshire's experience with participatory democracy, moreover, was typical of that of the American colonies and the early states, especially those in New England. Indeed, when Alexis de Toqueville penned his famous survey of our new nation in the mid-nineteenth century, DEMOCRACY IN AMERICA, he spoke of our system of local government as "the American system," which he contrasted to the system of centralization then extant in most of the countries of continental Europe. Thomas Jefferson made the same comparison in a letter he wrote in l816 to John Taylor of Virginia in which he extolled the virtues of political decentralization: "The further the departure from the direct and constant control by the citizens, the less has the government of the ingredient of republicanism."

On the other hand, one would have to be deaf, dumb and blind not to recognize the tendency toward the concentration of power which has characterized the two centuries that have passed since the formation of the union. Even by l8l6, in the same letter quoted from above, Jefferson was bemoaning the trend: "If, then, the control of the people over the organs of their government be the measure of its republicanism, . . . it must be agreed that our governments have much less of republicanism than ought to have been expected; in other words, that the people have less regular control over their agents than their rights and interests require. . . [However,] the golden moment is past for reforming these heresies."

Notwithstanding Jefferson's lament, in at least one area, local control has managed to mount a stiff resistance to the "heresies" of centralized government, social engineering and statism - that is in the area of education . For, if there is one subject upon which there has continued to be general agreement that big is bad, it is the subject of education.[fn 7] And, again, one need only refer to the U S Supreme Court's decision in the Rodriguez case for a clear statement of the obvious:

In a era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means. . . the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity it offers for participation in the deciscionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. . .No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education.[fn 8]

Suffice it to say that one can search our Court's Claremont decisions in vain for any similar expressions of opinion. Although the issue of local autonomy in matters of education was not completely ignored, it might just as well have been. For example, in Claremont I, the Court dismissed the subject with the following ipse dixit: "That local control and fiscal support has been placed in greater or lesser measure through 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." Similarly, in Claremont II, the Court served up this bit of sophistry: "We recognize that local control plays a valuable role in public education; however, the State cannot use local control as a justification for allowing the existence of educational services below the level of constitutional adequacy." Finally, in Claremont IV, [fn 9] the Court delivered the following lecture in statist civics:

It should not be forgotten that New Hampshire is not a random collection of isolated cities and towns. Indeed, all of us live in a single State. The benefits of adequately educated children are shared statewide and are not limited to a particular town or district. We live in a highly mobile society such that a child may be educated in Pittsfield and, as an adult, reside in Moultonborough. That adult may serve or influence the town or State as an elected or appointed official, a business or civic leader, or in various other endeavors. The benefits of that citizen's public education and contributions to community may be felt far beyond the boundaries of the educating town or district. Therefore, it is basic to our collective well-being that all citizens of the State share in the common burden of educating our children.

The Court's decision to make education a non-delegable State responsibility was certainly not dictated by our Constitution. Article 83, Part II, says nothing whatsoever about whether or not the State can delegate its duty to "cherish" education to its political subdivisions. Indeed, in the absence of such a prohibition, judicial restraint should have caused the Court to at least look before it leaped. In this regard, it is not just the outcome of the Claremont decisions which is so disconcerting; it is the impetuosity of the Justices in getting there which ought to make us really nervous.

Part IV - Educational Adequacy

Moreover, as if enough new ground were not broken by the Court in Claremont II by withdrawing educational policy from our local school districts and placing it in the hands of the State, the Court leaped over an even bigger precipice without looking by volunteering its own views on what the content of this new State policy should be:

(i) Sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable to student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advance training in either academic or vocational fields so as to enable each child to choose and pursue life work intellectually; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.

Again, if this is judicial restraint, one shudders to think what judicial license would look like. The fact is that judicial restraint would never have countenanced such a flight of sociological fancy; on the contrary, appropriate judicial inhibition would have dictated that the Court not involve itself at all in the imbroglio over educational policy.

In fact, the real problem started back in Claremont I with the reference to an "adequate" education. This was a complete gratuity. As we have noted before, there is no mention in Article 83, Part II of the concept of adequacy. Nor was it necessary in Claremont I for the Court to have created such a concept. The case came to the Court as an appeal from the Trial Court's dismissal of the plaintiffs' novel claim that they had been deprived of a supposed constitutional right to a State-provided education. Even if the Court had conscientiously concluded that Article 83 did create such a right, it could just as well have found that the State had satisfied its obligation by the mere maintenance of some system of public schools. As far as the "adequacy" of such a system was concerned, there was no need to assume that the Constitution had anything at all to say on the matter. [fn 10]

Alternatively, even if the Court felt compelled in Claremont I to find that some concept of adequacy was implicit in the supposed constitutional directive that there be a system of public education, judicial restraint offered the Court any number of alternative ways to deal with the issue which would have been far less intrusive than the route which it chose in Claremont II. The most obvious of these was to hold that "adequacy" was essentially a matter of fact to be determined by the Trial Court on the basis of evidence adduced at a trial. This, of course, is precisely what the parties to the litigation had assumed was the import of the Court's ruling in Claremont I when it remanded the case for a trial on the merits. The problem, however, was that - after 2-1/2 more years of litigation and the expenditure of untold sums of money - Judge Manias, the Trial Judge, found that the plaintiffs had in fact received an "adequate" education. So what did the Court do about it in Claremont II? It simply ignored Judge Manias' findings and pretended that the trial had never taken place!

But even assuming that the Court had some valid reason to disregard Judge Manias' findings, nothing really explains why the Court reached out in Claremont II to pontificate upon the nature of an "adequate" education. In fact, there was no justification in Claremont II for the Court to say much at all about education. The reason for this is that Claremont II was really a tax case and the issue which the Court decided in that case did not depend upon any definition of educational adequacy. Consequently, the Court's foray into considerations of educational policy was completely superfluous to its decision.

Some digression is perhaps warranted at this point in our discussions to elaborate upon this issue. As discussed above, what the Court decided in Claremont I was that Judge Manias had been wrong in dismissing the plaintiffs' education claims because, according to the Court, "Article 83 imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in New Hampshire and to guarantee adequate funding." If the Court had decided Claremont I the other way (as it should have), these education claims would have been out of the case. Nevertheless, the plaintiffs could still have proceeded on their completely separate tax claims, which challenged New Hampshire's system of funding its schools under Article 5, Part II, of the Constitution. This requires that all taxes within the same taxing district be uniform. In other words, regardless of how Claremont I had been decided, the issues in Claremont II would have been the same - is the property tax system of funding schools a State tax or a local tax and, if the former, is it assessed "proportionally and reasonably"?

In fact, it is even possible that the result of Claremont II would have been the same. Where there is a will, there is a way and, considering the innovating spirit of the present Court, it is not unthinkable that the Court could have found a way to declare our system of funding schools through local property taxes unconstitutional even without the help of Claremont I . On the other hand, if things had happened that way, the only thing that we would be left with would be a ruling that schools can't be financed with local property taxes which vary from municipality to municipality. That would definitely have caused a major brouhaha in the Legislature, but at least the path would be clear: either fund education through some type of uniform, statewide tax or change the Constitution. Moreover, having done no more than it traditionally did in tax cases of simply declaring the tax unconstitutional and then stepping out of the picture, the Court would not have become embroiled in an ongoing debate with its coordinate branches of government about whether or not our system of education is "adequate".

But, as we all know, things didn't happen that way; the plaintiffs' educational claims were sustained in Claremont I and, for better or for worse, we were all told that we had a right to a State-provided "adequate" education. This made the tax case in Claremont II easy. Having concluded in Claremont I that there was a right to a State-funded education, the Court had no difficulty in completing the tautology in Claremont II that even though property taxes are collected locally, if they are used to fund the schools, they "are in fact State taxes." And once the Court had decided that the taxes were State taxes, the conclusion was inescapable that "varying property taxes across the State violate part II, article 5 of the State Constitution in that such taxes, which support the purpose of public education, are unreasonable and disproportionate."

Nevertheless, if the Court had only stopped at this point in Claremont II , we would still not be in the fix that we are in now. We might have been able to treat Claremont II as nothing more than a tax decision and hope that at some later time, the Court might distinguish away all of its talk in Claremont I about educational rights. But the Court didn' t stop there. Instead, in virtual defiance of any sense of judicial restraint, the Court launched into a completely unnecessary exposition into the nature of an adequate education, concluding with its curious adoption of the jargon-laden definition of adequacy from some Kentucky case.

This behavior of the Court in Claremont II was totally at odds with our tradition of a temperate, unpretentious and reserved Judiciary; if anything, it was the opposite of judicial restraint. Despite the fact that the Court attempted to sugarcoat its intrusion into the legislative process by characterizing its educational definition as a series of "guidelines" and "benchmarks", there can be no mistake about what the Court was doing. In its direction to the Legislature to "implement these guidelines" and in its retention of jurisdiction over the case "until the end of the upcoming legislative session and further order of this Court to permit the legislature to address the issues involved in this case", the Court made clear its intention to supervise the legislative process. Consequently, although the Justices claimed to understand "that we were not appointed to establish educational policy", when they promised that they would "leave such matters, consistent with the Constitution to the two co-equal branches of government" , they obviously had their fingers crossed.

Part V - Tax Equity

Indeed, even the Court's protestations of deference to the Legislature in Claremont II seem more sardonic than sincere. The respect which the Court purported to grant its supposedly co-equal branches of government was, at best, the respect that a superior shows to a subordinate. And if that was not sufficiently apparent in Claremont II, all one has to do is read the Court's sanctimonious conclusion to its decision in Claremont IV :

[W]e note the commendable steps taken by the Governor and legislature in reaching their definition of a constitutionally adequate education. The legislature's involvement of a broad cross-section of the community in the process can only lead to a definition that will serve this State's school-age citizens well as they journey toward achievement in the world around them. We applaud the Governor and legislature for the work accomplished to date and in advance for that yet to be undertaken.

These remarks of the Court remind one of the comment made by Patrick Henry after listening to the claims of the Federalists about why no one should fear adopting a constitution without a bill of rights: "When we see men of such talents and learning compelled to use their utmost abilities to convince themselves that there is no danger, is it not sufficient to make us tremble?"

And tremble is precisely what one should do after reading the Court's opinion in Claremont IV. Just as in Claremont I and Claremont II, the Court could not content itself with simply deciding the case before it; it just had to add some gratuitous philosophizing. The issue presented to the Court in Claremont IV was the constitutionality of the Governor's ABC Plan. In particular, opponents challenged its system of abatements which would be awarded to municipalities that were able, because of a small school population or a large tax base, to raise more revenue from property taxes than they needed to provide their own children with an "adequate" education. Because the Court concluded that the abatement provision was not justified by any sufficiently articulated "good cause or just reasons", it declared that the ABC Plan conflicted with the requirement in Article 5, Part II, of the Constitution that all taxes must be "proportional and reasonable" .

This was all that the Court needed to say in order to answer the questions posed to it by the Senate. But the Court apparently couldn't control itself. It insisted upon sending the Governor and the Legislature a little message about what else it might declare unconstitutional. The critical sentence comes at the end of the Court's mini-lecture on the importance of education and on how the whole of New Hampshire is greater than the sum of its parts: "Therefore, it is basic to our collective well-being that all citizens of the State share in the common burden of educating our children." What this presumably means is that no tax designed to fund education is constitutional unless it requires all citizens to contribute to the pot. In other words, when it comes to education, only a broad-based tax is constitutionally permissible. [fn 11]

Those of us who live in New Hampshire know what an absolutely incredible statement this is. Regardless of how we personally feel about the merits of a broad-based tax, it is deeply ingrained in our collective psyche that New Hampshire does not have one. So here comes the Supreme Court - after having only recently broken the news to us that we have been operating our educational system in an illegal manner for the last 200 years - and now it tells us that another of our revealed truths is a hoax. And, to top it off, no one even asked the Court to tell us about it!

It is possible, of course, that the Court really didn't mean what it said. If one takes all of its chatter about sharing the common burden seriously, no exemptions from a tax to fund education would be permissible. In other words, even a statewide, single-rate property tax would be unconstitutional if it retained the existing scheme of charitable and current use exemptions, elderly and veterans' credits and/or poverty abatements. Or perhaps the Court didn't say what it meant. Maybe its collectivist imagery was just poetic license and it was really just trying to buttress its condemnation of the specific abatement scheme proposed by the ABC Plan. After all, not even a traditional broad-based tax falls upon everyone. For example, an income tax doesn't affect the unemployed; a sales tax doesn't affect those who only buy necessaries; and a statewide property tax doesn' t affect those who live in public housing.

The point, of course, is that the reason we have to speculate about the Court's intentions is that its philosophizing went way beyond the case before it. One of the reasons that judicial restraint cautions against doing this is that when a court answers a question that no one has asked it, it is obviously trying to make some kind of a point - and that usually means that it is trespassing on someone else's turf. This is why the Claremont decisions are so much more than simply tax cases or education cases; although they are indeed tax cases and education cases, they are first and foremost separation of powers cases. We have already discussed how the Court's discovery in Claremont I and II of a right to an adequate education in Article 83, Part II, of the Constitution is tantamount to a sub silentio reversal of two centuries of precedent involving that particular provision of the Constitution. Now, in Claremont IV (assuming that the Court said what it meant and meant what it said), we have a reversal of an equally longstanding precedent concerning Article 5, Part II, of the Constitution. Nevertheless, as erroneous and as harmful as these decisions are, either or both of them can be changed through a constitutional amendment if the people become sufficiently aroused to do something about the situation. The Court's arrogation of powers reserved in the Constitution to the other branches of government, however, is much more of a problem and this, therefore, is what constitutes the really long-term evil of Claremont .

Part VI - Accepting Responsibility

What makes the Court's power grab even more ominous is the fact that its fist is wrapped in a velvet glove. As we have observed, the Claremont decisions are replete with the language of decorum and judicial self-deprecation. For example, the Court says all the right things when it proclaims, as it did in Claremont IV, that, "It is neither our task nor intent to manage the public school systems of the State, or to suggest that the State education system cannot incorporate local elements." However, since this denial comes right after the Court has just declared one legislative tax proposal unconstitutional and suggested that it will do likewise to any other one that doesn't conform to its new-found theory of everyone sharing the common burden, don't you get just a little concerned that "the lady doth protest too much"?

The real cue that all is not as it seems comes from the following statement of the Court in Claremont IV: "On December 17, 1997, when Claremont II was issued, the court was conscious of the magnitude of the tasks and challenges it had passed to its co-equal branches of government .... It is in [the] spirit of union and amity that we retained jurisdiction in Claremont II." What the Court is referring to here is the fact that in Claremont II, after it had found our system of funding schools through local property taxes unconstitutional, it did not thereupon remand the case to the Trial Court for purposes of fashioning a remedy for the plaintiffs; instead, it decided to "stay all further proceedings until the end of the upcoming legislative session and further order of this court to permit the legislature to address the issues involved in this case." In essence, the Court was saying that, "Rather than us doing something bad to you right now, we will give you some breathing room to fix your problem - but, in the meantime, we will keep your file open".

This last caveat, of course, is wherein the problem lies. The fact is that the Court's retention of jurisdiction in the Claremont case is no boon; on the contrary, it is Claremont's Trojan horse.

However, before we get to the issue of the Court's retention of jurisdiction, we should note that its initial decision to delay the effective date of its decision is a device virtually without precedent in New Hampshire. It is true that the Court has on occasion warned the Legislature that if certain measures were not taken to alter a statutory scheme, the Court probably would, in the future, declare the scheme unconstitutional. For example, in the 1983 case of State v. Brosseau, the Court - acting pursuant to customary notions of judicial restraint - found a way to resolve the case before it without reaching the issue of the constitutionality of the ancient doctrine of sovereign immunity, the doctrine which prohibited a citizen from suing his own government for money damages. On the other hand, the Court served notice that, "if and when we do reach [the issue], we would be disposed to reconsider the doctrine as it exists today." "However", the Court went on to say, "we should be reluctant to do so until the legislature has been given an opportunity to correct the present procedural and financial inadequacies of the statutes relating to sovereign immunity." Duly forewarned, the Legislature did in fact propose certain changes to the laws on sovereign immunity, which it then presented to the Court in 1985 for an advisory opinion. As it turned out, the Court concluded that some of the Legislature' s changes would be constitutional and some would not.

On the other hand, the Court had never before Claremont actually held that something which it decided was unconstitutional could nevertheless continue to be enforced as "the law" until some specified date in the future when its unconstitutionality would all-of-a-sudden become effective and render it invalid. Prior to Claremont, it was the rule of decision in New Hampshire - as stated by the Court itself on many occasions - that "an unconstitutional act is not a law; it binds no one and protects no one". [fn 12] Under Claremont II, however, our supposedly unconstitutional system of funding education is still the law; it still binds us to pay our taxes and it still dictates how we educate our children - at least until "the end of the upcoming legislative session."

This notion of delayed unconstitutionality is indeed a fascinating concept if one accepts the proposition of Sir Francis Bacon that it is the office of a judge "to interpret the law, and not to make law, or to give law." It is one thing to understand that the Court's interpretation of the Constitution may change over time, but it is a very different kettle of fish to accept that the Court can interpret the Constitution two different ways at the same time and elect, at its whim, when to retire the old and when to effectuate the new. I don't mean to get into the epistemological debate about whether judges truly do "find" the law or whether there are some senses in which they "make" the law. [fn 13] On the other hand, one would have expected to hear something about that issue from a court which not only makes a radical departure from its prior jurisprudence, but also does so in a manner which has such profound implications for the way in which we view the Constitution and the role of judges in interpreting it. Suffice it to say that if the Constitution is to be acknowledged as nothing more than what the Court says it is - and when the Court says it is - there should be a frank and open discussion of how the Court came to such a conclusion and what may be its effects upon our constitutional democracy. But - as is characteristic of the Claremont decisions - all we hear from the Court on this issue is a deafening silence.

Should we assume that the Court's failure to raise this issue has some Machiavellian origin? Thomas Jefferson would not be surprised if it did: "This member of government [the Court] was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt". Was the Court intentionally "sapping and mining" at the foundations of our Constitution in Claremont II when it delayed the effective date of its decision? It is certainly possible, but frankly, I doubt it.

It is more likely that the Court, in this instance, was actually motivated by some sense of judicial restraint, albeit a misguided one. The Court's several references in Claremont II and Claremont IV to deference to the Legislature - even if condescending and even if ultimately disingenuous - do appear to reflect a belief on the Court's part that it was doing the Legislature a favor by not then and there voiding our local property tax system of funding education. As far as the larger jurisprudential implications of such a decision were concerned, my guess is that the Court never even saw the issue.

On the other hand, even if one adopts this benign explanation of the Court's decision to delay the effect of its ruling in Claremont II, one need not assume that the Court was completely naive. There was something in this for the Court as well. One thing that delaying the effective date of the decision did for the Court was to allow it to put off until tomorrow some issues which it ought to have dealt with today. Although we will discuss this topic in greater depth in another Letter, I only wish to draw your attention at this point to the fact that there is a connection between rights and remedies which the Court has severed in Claremont. By dispensing with the issue of remedies, the Court was able to evade a whole host of questions about the extent of its powers of judicial review. Since the Court had just declared our entire system of locally-determined and locally-funded education unconstitutional, issues of the Court's power to tax, its power to spend and its power to administer were obviously implicated. However, because the Court simply finessed the issue of remedies, the possibility that it had no power to enforce its decree never had to be addressed.

The other benefit which the Court reaped for itself by not immediately striking down what it found to be unconstitutional was that it was able to substantially lessen the social impact of its decision. The Court in Claremont IV claimed not to be concerned with this issue: "That all three branches of government must struggle in difficult decisions which may cause social unrest cannot be a factor in a court's constitutional review". However, the reason that the Court didn't need to be concerned about social unrest was because it had postponed the effective date of its decision! The advantage of this was to shift the public's focus of attention to the other branches of government, who then will be the ones who get blamed for the resulting social unrest if they don't fix the problem by the date set by the Court. In other words, by not taking its declaration of unconstitutionality to its logical conclusion, the Court avoided taking responsibility for its own decision.

Part VII - Supervising the Legislature

Even if one discounts all of the foregoing as speculation, the real proof of the fact that the Court's purported gift of a delayed decision in Claremont did not come without cost is found in the Court's retention of jurisdiction over the case. Recall that I said this is the Trojan horse of Claremont - and it is. If delaying the effect of its decision had truly been an exercise of judicial restraint, the Court would have done only that and, in all other respects, it would have terminated the case. But by retaining jurisdiction, the Court gets to play orchestra conductor over the legislative process. While eschewing any desire to personally control the schools, the Court gets to peer over the Legislature's shoulder to make sure that educational policy is set according to its liking. In the meantime, the Court waits in the wings, threatening to swoop in whenever it is dissatisfied with the Legislature's progress.

The notion of a court retaining jurisdiction in a case such as this is foreign to New Hampshire. But is not unknown elsewhere in the Nation. If you want to know about it, just ask those who experienced Judge Arthur Garrity's use of it in the Boston desegregation case or those who have lived under its regime in the many Claremont-like school cases around the country. Suffice it to say that it is the very antithesis of judicial restraint.

Perhaps the worst example of the harmful effects of a court retaining jurisdiction in order to supervise a legislature's remediation of an alleged unconstitutionality is the twenty-plus-years of "occupation" of the Kansas City, Missouri, school system by a single Federal judge in the Kalmia Jenkins desegregation case. Finally, in 1995 - after the case had come to it three times - the US Supreme Court put the clamps on the judge's interferences with the State of Missouri's educational and tax structures, all of which had been accomplished under the questionable guise of attempting to achieve racial balance in the Kansas City schools. In his concurring opinion, Justice Clarence Thomas made special note of the role which the trial court's retention of continuing jurisdiction had played in this incredible saga:

The District Court's remedial orders are in tension with two common-sense principles. First, the District Court retained jurisdiction over the implementation and modification of the remedial decree, instead of terminating its involvement after issuing its remedy .... This concept of continuing judicial involvement has permitted the District Courts to revise their remedies constantly in order to reach some broad, abstract, and often elusive goal. Not only does this approach deprive the parties of finality and a clear understanding of their responsibilities, but it also tends to inject the judiciary into the day-to-day management of institutions and local policies - a function that lies outside of our [constitutional] competence.

The Claremont case has not got to the stage that the Jenkins case did - at least not yet. However, all the warning signs are there. The Governor and the Legislature are already floating trial balloons about extensions of the Court's deadline for compliance with Claremont II ; counsel for the plaintiffs regularly issue threats to return to the Court for relief if they are not satisfied with the Legislature's remedial measures; newspapers are writing editorials which call upon the Court to allow a phase-in of any new education funding plan; and the Court in Claremont IV has already sent a message to the Governor and the Legislature that Big Brother is watching what they do. All of these things are reflections of what the Court's retention of jurisdiction in the Claremont case will inevitably bring: interference by the Court in the business of the Legislature and interference by the Legislature in the business of the Court.

The Court's retention of jurisdiction over the Claremont case does indeed create an atmosphere of impending judicial interference with the political branches. For example, by congratulating the Governor and the House of Representatives in Claremont IV upon their efforts to date in defining an "adequate" education - by proposing the ABC Plan, which was, merely a piece of legislation-in-process not yet enacted into law - the Court gave aid and comfort to one side of the public debate on educational policy, at the expense of all others. Volunteering such an opinion clearly insinuated the Court into the affairs of the Legislature. This is not healthy for the politicians. It encourages Legislators to feel that they are accountable to the Court, not their constituents. Although some might argue that this is a good thing because the politicians can "vote their consciences", the Constitution suggests otherwise; it provides that our representatives in government shall be "accountable to the people".

Retention of jurisdiction in constitutional cases is, in my opinion, violative of the doctrine of separation of powers and, therefore, itself unconstitutional. However, even if that view overstates the situation, retention of jurisdiction in such cases is simply a bad idea. If the Court can't heed the advice of Professor Thayer that "the judiciary ... in dealing with the acts of their coordinate legislators, owe to the country no greater or clearer duty than that of keeping their hands off these acts wherever it is possible to do it," it ought to at least have the courage of its convictions and act like a Court, not a mediator. This means that if the Court concludes that a law is unconstitutional, it should strike it down, grant the plaintiffs whatever relief they are entitled to - and leave it to the Legislature and the Governor to decide what the future will bring.

In the long run, the Court's retention of jurisdiction over the Claremont case may not be healthy for the Justices either. The Court's retention of jurisdiction seemingly invites a dialogue between the Court and the Legislature. To the extent that this encourages people to view the Court as an institution which is amenable to negotiation and compromise, it will only serve to further politicize the Court. While this will not have any adverse effect upon those cynics who already hold that law is nothing more than politics, it will eventually damage the Court's credibility with the vast majority of us who still cling to belief that we are governed by law, not men. [fn 14]

Part VII - Opening Pandora's Box

As we discussed above, it is the job of the courts to resolve disputes, not to create them or to invite them. For our last example of the Court's complete lack of self-discipline in this area in Claremont, we turn to a little-noticed portion of the decision in Claremont II which may end up being the most consequential of all of the Court's reckless remarks in this case. You may recall that the Court held in Claremont I that even though the educational rights which it divined in Article 83 were "rights held by the public", they are enforceable by "any citizen." Referring in Claremont II now to these private citizens as the "beneficiaries" of Article 83, the Court then embarked upon one of its typically gratuitous discussions, on this occasion involving what these private enforcers of the public's rights could expect when they brought their claims. In this regard, the Court ruled in Claremont II that it would "accord fundamental right status" to any claim based upon a denial of one's right to an adequate education.

Although the significance of this holding may not be readily apparent to all readers, it is potentially the most dangerous precedent coming out of the Claremont case. In the jargon of the Judiciary, designating a right as "fundamental" means that it is entitled to review under a standard of "strict judicial scrutiny." Strict scrutiny, in turn, is a term of art which refers to the highest level of judicial oversight which the Court exercises in its review of a governmental action which is challenged on constitutional grounds. In the metaphysical world of judicial review, the Court has developed three levels of oversight: (1) the rational basis test; (2) the so-called "middle-tier" test; and (3) the strict scrutiny test. The rational basis standard, as its name implies, simply requires that a law must be "rationally related to a legitimate state interest." The middle-tier test - which applies to "important" rights - requires that a law must be rational and "have a fair and substantial relation to the object of the legislation." Finally, the strict scrutiny test - which applies to "fundamental" rights - requires that a law be rational, that it be reasonably related to its objective, and that it be "necessary to achieve a compelling State interest."

In Claremont I, the Court had specifically noted that "in New Hampshire a free public education is at the very least an important substantive right." This, as is noted above, is Court-speak for imposing the so-called middle tier level of judicial review. In Claremont II , however, we are informed - completely out of the blue - that since Article 83, Part II, of the Constitution supposedly charges the Legislature with the duty to provide everyone with a public education, "this fact alone" grants "fundamental status" to the so-called right to an adequate education. We are, of course, not informed of what it is that has caused this elevation in the jurisprudential stature of educational rights between Claremont I and Claremont II. Unless there is something that the Court is not telling us, it would appear that the only thing which has changed in the interim is the Court's view of its own power.

Another fascinating aspect of the Court's designation in Claremont II of the right to an adequate education as "fundamental" is the total absence of any discussion of the basis upon which the Court decides which rights are to be favored for inclusion in this select category and which are not. Examples of rights which have warranted the Court's denomination as fundamental prior to Claremont include such things as the right to live where one chooses, the right to just compensation for a taking of one's private property, and the right not to have one's children taken away without just cause. What the right to an adequate education has in common with these other "fundamental" rights is not revealed to us in Claremont II . Accordingly, because there does not appear to be any principled basis for distinguishing one right from another, one can only assume that the Court' s decision to upgrade the status of educational rights was based upon pure judicial whim.

This conclusion is substantiated by the fact there was nothing in Claremont II which required the Court to even raise this issue. As we noted above, Claremont II decided that property taxes which were used to fund education are State taxes and, as such, they must be levied uniformly throughout the State. There was no issue in Claremont II concerning the proper scope of the Court's review in cases in which citizens claim a deprivation of their so-called right to an adequate education. As in so many other instances in Claremont, therefore, the Court's decision to recategorize educational rights from important-right status to fundamental-right status and to announce that it would henceforth determine all such cases under the standard of strict scrutiny was entirely gratuitous.

If you want proof of the incalculable harm that adoption of the strict scrutiny standard can wreak upon the balance of power between the Court and the Legislature over matters involving educational policy and funding, just read the U.S. Supreme court's 1973 decision in the case of San Antonio School District v. Rodriguez. In the course of rejecting the proposition that there is a right to education under the Federal Constitution and that such a right is "fundamental", the Court noted that if it were to espouse and apply a strict scrutiny standard of review, "the Texas financing system and its counterpart in virtually every other State will not pass muster." The Court in Rodriguez described the application of the strict scrutiny test to an educational law as follows: "[A] State must demonstrate that its educational system has been constructed with `precision', and is `tailored' narrowly to serve legitimate objectives and that it has selected the `less drastic means' for effecting its objectives ..." Since this is the standard which our Court has announced it will apply to the State's response to its Claremont decisions (and to the implementation of that response in every local school district), it doesn' t take a seer with a crystal ball to predict the torrent of litigation that this will unleash.

It is as if the Court had announced: "the floodgates are now open; let the litigation begin." The Court has in fact issued an invitation to every disgruntled parent to sue not only the State, but also the local school district, the school board, the superintendent of schools and the principal of his child's school. Do you think that I am exaggerating? If so, witness the Court's own words in Claremont II: "[W]hen an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny." This unprincipled and gratuitous expansion of the scope of judicial review for the benefit of those who wish to second-guess our public officials with respect to educational policy is truly shocking.

The result of Claremont II is that we have the worst of all worlds. First, we are saddled with the fact that any private citizen - without your or my consent - can sue the State to enforce what he construes to be the Legislature's public duties with respect to education. Secondly, we can expect that this will include suits not only against the State, but also against every local school district and official. Finally, the decisions of these duly elected local school officials will be reviewed by unelected judges who have been instructed by the Supreme Court to apply a standard of strict scrutiny. I suggest that we get ready to change the State's motto. How about: "Live Free or Litigate!"

Part IX - Conclusion

In his concurring opinion in the most recent US Supreme Court decision in the Jenkins case, Justice Thomas commented upon the institutional consequences of the wanton judicial intrusion into matters of educational policy which occurred in that case:

In this case, not only did the district court exercise the legislative power to tax, it also engaged in budgeting, staffing, and educational decisions, in judgments about the location and aesthetic quality of the schools, and in administrative oversight and monitoring. These functions involve a legislative or executive, rather than a judicial, power ....[J]udges cannot make the fundamentally political decisions as to which priorities are to receive funds and staff, which educational goals are to be sought, and which values are to be taught. When ... judges undertake such local, day-to-day tasks, they detract from the independence and dignity of the federal courts and intrude into areas in which they have little expertise.

The primary reason that Claremont represents such a palpable likelihood that we are headed in the same direction as Missouri and the other states which have been subject to school desegregation orders and educational orders is that our Court - like so many others - chooses to get involved in issues that it shouldn't. Rousseau wrote in THE SOCIAL CONTRACT that "Liberty is obedience to the law which one has laid down for oneself." Judicial restraint requires just such a conscious imposition of self-discipline. Our Court, however, has elected not to place any limits upon its appetite for power.

The Justices of our Supreme Court apparently do believe that they are endowed with a wisdom denied to Legislators and other ordinary mortals. They have concluded that New Hampshire's system of education is in need of "reform", and that it is their destiny to blaze a trail to the new millennium which, as they put it in Claremont IV, "will serve this State's school-age citizens well as they journey toward achievement in the world around them." Unfortunately, such inflated egos are not likely pay heed to the admonitions of Justice Ingersol, who said in a speech he gave in 1883, "We must remember that we have to make judges out of men, and that by being made judges, their prejudices are not diminished and their intelligence is not increased."

As Judge Robert Bork wrote in his recent polemic on law and culture, SLOUCHING TOWARDS GOMORRAH, "It is now clear that it is the courts that threaten our liberty - the liberty to govern ourselves - more profoundly than does any legislature". According to Judge Bork, our courts are out of control - either by themselves or by us:

We are no longer free to make our own fundamental moral and cultural decisions because the Court oversees all such matters, when and as it chooses. The crisis of legitimacy occurs because the political nation has no way of responding. The Founders built into our government a system of checks and balances, carefully giving to the national legislature and the executive powers to check each other so as to avoid either executive or legislative tyranny. The Founders had no idea that a Court armed with a written Constitution and the power of judicial review could become not only the supreme legislature of the land but a legislature beyond the reach of the ballot box.

Judge Bork, of course, was referring in this passage to the Supreme Court of the United States. However, his comments are just as applicable to our Court and, in particular, to its Claremont decisions. Our challenge, therefore, is the same one which he posed in his book: will it be enough to do something about the Court's decisions, or must we also do something about the Court?

What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the respect of the people. If enough people do not care or do not know, that can be construed as a kind of negative consent, but it is not what the American people were taught to call government by the consent of the governed. We hope that more people know and more people care than is commonly supposed, and that it is not too late for effective recourse to whatever remedies may be available.

A realistic, understandable approach to the law that explains its operation and social role must acknowledge the fundamental conflicts in society; the class, race, and sex basis of these conflicts; and the dominance of an ideology that is not natural, scientifically determined, or objective. The discretionary nature of court decisions, the importance of social and political judgments, and the dominance of the ideology of advanced capitalism characterize our judicial process far better than any notions of justice, objectivity, expertise, or science.

Ours is a government by people, not law. Those robed people sitting behind orate oversized desks are not controlled or bound by law; regardless of their honest self-appraisals or their pretensions, they are in the business of politics.

New Hampshire Politics

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