LETTERS TO THE EDUCATORS, NO. 2

What the Constitution Actually Says

Does the constitution of the State of New Hampshire guarantee the citizens of this state an "adequate" education supported by "adequate" funding? Of course it does. Why? Because the Supreme Court in its two Claremont decisions said so. And as we all know, unless the Constitution is hereafter amended, the word of the Supreme Court is final. On the other hand, except in the sense that might makes right, the Supreme Court is not necessarily right. As Justice Robert Jackson of the United State Supreme Court once said about that institution, "we are not final because we are infallible, but we are infallible only because we are final."

Let us therefore reason together and decide for ourselves whether the Supreme Court was correct. Our obvious starting point ought to be the New Hampshire Constitution itself. The operative provision is Article 83, Part II, as follows:

Suffice it to say that Article 83 nowhere states what the Supreme Court says it states. There is no mention in this text of any right to an education (adequate or otherwise) and, as far as funding is concerned, no mention whatsoever. What the text does say is that the "legislators and magistrates" shall have the "duty" to "cherish" the interests of literature and sciences, to "encourage" public and private institutions to promote agriculture, arts, sciences, etc., and to "countenance and inculcate" the principles of charity, industry, honesty etc. among the people. Yet it out of this aspirational language, typical of Eighteenth Century declarations of its kind, that the Court has divined a judicially enforceable "right to a State funded constitutionally adequate public education."

How did the Court get from point A to point B? This is how: (1) duties are mandatory; (2) Article 83, Part I, speaks of a "duty"; (3) therefore, the duty described in Article 83 is mandatory; (4) the duty described is a duty to "cherish" education; (5) cherish means "support"; (6) therefore, the duty to cherish education is the duty to educate; (7) all duties create corresponding rights; (8) therefore the duty to educate gives rise to a right to education; (9) all rights imply remedies; (10) courts give remedies for violations of rights; and (11) therefore, the judiciary may enforce the right to education. Sounds pretty simple doesn't it, almost as if it were a mathematical equation? The thing about mathematical equations, however, is that each step builds on the other and if there is an error in one step, it throws everything which comes later out of kilter.

If you read closely, you probably noticed that there was a little leap in logic in step (6). Let us examine what happened. In Claremont I, the Court commenced its analysis with the threshold issue of whether Article 83, Part I, is "hortatory, not mandatory". This is steps (1), (2) and (3). The question was whether the language of Article 83 was only intended to exhort the legislators and magistrates to do something or whether it was intended to require them to do something. To answer this question, the Court simply looked to the phrase in Article 83, "it shall be the duty". The presumably common sense meaning of those words was enough for the Court to conclude that Article 83 was 'not ... merely a statement of aspiration" and that it "commands" the State to do something.

Having settled steps (1), (2) and (3), the Court next tackled the thornier issue of what that something is which the Constitution supposedly requires the legislators and magistrates to do. But here is where the Court ran into a problem. All that Article 83 requires is for the legislators and magistrates to "cherish" education. That doesn't sound like much of a duty.

The Court resolved its dilemma by turning to the dictionary. Referring to a 1780 dictionary in circulation at the time that the New Hampshire Constitution was written, the Court noted that the definition of "cherish" was "to support, to shelter, to nurse up". But how does this advance the inquiry? How does one get a duty to educate from a duty to "support, shelter, or nurse up" education? How does the Court accomplish step (6)?

Let the Court's words speak for themselves:

Rather than proving the Court's point, I suggest to you that this paragraph constitutes a classic example of a non-sequitur. The only way it has meaning is if the reader suspends his intellect and accepts the Court's decision as the act of a superior will. In fact, it reminds me of the comment of Humpty Dumpty in Alice in Wonderland: "When I use a word, it means just what I choose it to mean - neither more nor less." Just like Humpty Dumpty, the Court chose to make the duty to "cherish" education mean the duty to "provide" education.

Assuming that the Court had really been searching for the truth - which is supposedly what courts are all about - its foray into the dictionary could not fairly have led it to find any constitutional prescription to the legislative and executive branches to provide an education to anyone. Indeed, this exercise should have given the court some second thoughts about its resolution of steps (1), (2) and (3). In other words, is Article 83, Part I really hortatory or mandatory? What does "hortatory" itself mean? Since it comes from the same root verb "exhort", it means something which "incites" or "urges" a person to do something. Thus, the question is whether Article 83 merely encourages the legislators and magistrates to do something. The reason that the definition of "cherish" raises doubts as to whether Article 83 was meant to do anything more than encourage the legislators and magistrates is because the admonition that they "cherish" education is essentially telling them to do the same thing: encourage it. In fact, if you read further on in Article 83, you will see that the legislators and magistrates are expressly told to "encourage" private and public institutions, etc. Finally, the last clause of this section of Article 83 advises the legislators and magistrates to "countenance and inculcate" certain values among the people. Again, the language is that of encouragement.

What does all this dictionary jurisprudence amount to? Only that if one is inclined to decide constitutional questions by playing on words, the most that anyone can get out of Article 83, Part I, without rewriting the dictionary is that it directs the Legislature and the Executive to encourage education. In my book, that is just another way of saying that the provision is "hortatory, not mandatory."

The real problem with the Claremont decisions, however, is not that they were issued by people who played fast and loose with the dictionary, but that they start and end with the dictionary. As the man who invented the concept of judicial review, U.S, Supreme Court Justice John Marshall, said in the famous case of McCulloch v. Maryland, "We must never forget that is is a constitution we are expounding." If the question is whether or not Article 83 in hortatory, someone should be asking what it means to be hortatory and why some constitutional provisions are hortatory and why some are not. One can, in turn, only deal with these questions when one acknowledges that the underlying issue is the proper role of the judiciary in a system of government that divides power between three supposedly co-equal branches of government.

In that regard, I direct your attention to a provision in the Constitution which is cited only once and not quoted anywhere in either Claremont I or Claremont II: Article 37, Part I, entitled "Separation of Powers":

How this separation of powers should have applied to the Claremont decisions shall be the subject of the next Letter to the Educators. For present purposes, however, let us see how the Court might apply it, rather than dictionary jurisprudence, in an area near and dear to the Court's heart: its own power.

One of the criticisms that has been leveled at Claremont II is the fact that retired Justice Batchelder sat in place of Justice Thayer, who had recused himself on account of his wife's prior involvement in the case as a member of the State Board of Education. The claim is that Justice Batchelder should have been disqualified because he was 70 years old at the time and because Article 78, Part II, of the Constitution states that, "No person shall hold the office of judge of any court ... after he has attained the age of seventy years." (Footnote 2)

Despite the fact that the Claremont II decision carried by a 4-1 majority and that dropping Judge Batchelder off the case would therefore not have changed the result, (Footnote 3), some critics are nevertheless contending that the alleged constitutional violation completely vitiates the decision. Others clamor that it provides grounds for the impeachment of Chief Justice Brock, who appointed Justice Batchelder to sit. Let us assume that the General Court chose the latter tack and preferred articles of impeachment against the Chief Justice charging him with "maladministration in office", as provided for in the Constitution. Let us further assume that the Senate convicted the Chief Justice.

According to Article 39, Part II, of the Constitution, conviction by impeachment results in removal from office. Let us finally assume, however, that the Chief Justice refused to step down and that the rest of the Court had to opine on at least the following questions: (1) was Judge Batchelder "holding the office" of a judge when he sat on the Claremont II case and therefore disqualified because he was 70 years old? (2) even if he was so disqualified, was Chief Justice Brock's appointment of him an impeachable act of "maladministration in office?"

I would venture to say that the dictionary would hardly find its way into the Court's opinion. The case would be decided - as it should be - on the basis of the Court's views as to the competency of the judicial versus the legislative branch to resolve the issues, whether the issues are ones which peculiarly affect one branch and therefore can reasonably be assumed to have been assigned to its exclusive jurisdiction and , finally, whether or not a branch which has the competency and jurisdiction to decide an issue has the power to enforce its decision.

This is exactly the kind of decision the Court did write several years ago in the case of State v. LaFrance. There the Court was determining the constitutionality of a statute which provided that "law enforcement officers shall be permitted to wear firearms in any courtroom in the state." (emphasis supplied) The case arose when a judge of the Superior Court enforced a local court rule to the contrary and the Laconia Chief of Police, who was the subject of the judge's attention, refused to testify. Although the issue in the case would appear to be somewhat of a tempest in a teapot, the opening line of the Supreme Court's opinion set the stage for something much bigger: "This case presents the question which branch of government controls the actual conduct of trials in our courts." The Court then launched into a dissertation on the history and purposes of the doctrine of separation of powers, with a particular emphasis upon the right and power of the judiciary to control its own domain. Not unexpectedly, the Court struck the statute down as an unconstitutional encroachment upon its powers.

One would have expected the Court to devote similar attention to the separation of powers issue in the Claremont cases which, after all, deal with the adequacy of our system of public school education, an issue of infinitely greater consequence than whether or not police officers can pack their pistols when they testify in court. There is, however, almost no flavor of the important issues of institutional competence and jurisdiction in Claremont I and very little of it in Claremont II. There certainly is no opening line in either decision to the effect that, "This case presents the question of which branch of government controls the actual conduct of the schools in our cities and towns." Instead, the Court just skirts around the issue and takes control. When the Court in Claremont II finally makes its disingenuous offer of the olive branch the the Legislative and Executive ("we leave ... matters [of educational policy] ... to the two co-equal branches of government"), it comes after the Court has already decided on the basis of dictionary jurisprudence that the Constitution guarantees every citizen with a judicially enforceable right to an adequately funded adequate education. To put it mildly, this is closing the barn door after the horse is long gone.

If all of this is reminiscent of the concept of "doublethink" and its ilk in 1984 and Brave New World, be aware that judges have been doing this for centuries. In a 1717 sermon he was preaching before King George I, Bishop Hoadly of England observed that, "Whoever hath an absolute authority to interpret written or spoken laws, it is he who is truly the lawgiver to all intents and purposes and not the person who wrote or spoke them." Consequently, all that the Supreme Court was doing in the Claremont cases was acting within this ancient (although nor particularly venerable) tradition of rule by judicial fiat. Once that is understood, it becomes clear why the Court feels so confident of our blind obedience. Perhaps it is time for us to challenge the conventional wisdom.

Rasputin

Footnotes

1. Actually, the Court didn't even use its own words. It simply quoted the Massachusetts Supreme Court decision in the case of MacDuffy v. Secretary of Executive Office of Education which interpreted the nearly identical language in the Massachusetts Constitution. This just goes to show that when a New Hampshire court quotes a Massachusetts court on an issue which affects taxes, you should hold on to your wallet.

2. For those who think this is a real issue, which I, Rasputin do not, you might be interested in this factoid: retired Justice Grimes, who sat for Justice Thayer in Claremont I, was 82 years old at the time.





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