We left off our last discussion with the observation that the doctrine of separation of powers prescribed by Article 37, Part I, of the Constitution had essentially been ignored by the Supreme Court in its two Claremont decisions. The provision bears repeating:

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with the chain of connection that binds the whole fabric of constitution in one indissoluble bond of union and amity.

Indeed, the Court was apparently activated more by its concern with being on what they considered to be the politically correct side of the education funding debate than by the niceties of the doctrine of separation of powers. The fact is that the propriety of the exercise of judicial review over matters of educational policy got totally lost in all the sound and fury about the importance of education. In this regard, our court failed to heed the admonition of the U.S. Supreme Court in the 1979 case of Bell v. Wolfish:

Judges...have a natural tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. But under the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan.

Let us, therefore, try to do the job that the Court didn't do; let us examine the separation of powers issue. To do this, we must return to the question with which the Court started: is Article 83, Part II, "hortatory, not mandatory"? Unlike the Court, however, we shall analyze that issue in terms of whether or not the subject matter of the provision, public education, is suitable for the exercise of judicial oversight.

On the other hand, before we do that, let us briefly attempt to catalog the types of constitutional prescriptions which do not contemplate judicial enforcement. A review of the Constitution reveals that it contains a number of provisions which fall into this category. For example, Article I, part I, states that, "All men are born equally free and independent: Therefore, all government, of right, originates from the people, is founded in consent and instituted for the general good." This is what those "whereas" clauses we often find at the beginning of a legal instrument. These provisions are not directive of anything and are merely meant as an affirmation of accepted values or as a statement of an assumed factual predicate for something that comes afterward.

The Supreme Court does not deny that constitutional provisions such as these are not judicially enforceable. For example, in the 1985 case of State v. Evans, the Court examined Article 18, Part I, of the Constitution which provided in part that, "[T]he true design of all punishments [is] to reform." A prisoner in the New Hampshire State Prison had brought suit against the State under the theory that this provision guaranteed him a judicially enforceable right to rehabilitation. The Court, however, stated that, "we believe that the language of article 18 is best read as a general statement of principle rather than as a mandatory standard which creates imprimatur" upon the goal of rehabilitation, the Court ruled that the inmate plaintiff was not entitled to any judicial relief.

Another type of provision which is not judicially enforceable is a directive which is aimed specifically and exclusively at another branch of government. An example of this is Article 31, Part I, which provides that, "The legislature shall assemble for the redress of public grievances and for making such laws as the public good may require." Not only is this provision specifically directed to the Legislature alone, but the directive is also so open-ended that the Court could not possibly enforce it without substituting itself for the Legislature. For example, if the Legislature failed to meet for six months, would that violate the directive? What about a failure to meet for a year? What about two years? And so on. Moreover, even if the Court could set a schedule for the Legislature, what if it didn't meet the schedule? What could the Court do about it? Redress the people's grievances itself? Pass its own laws for the public good?

Finally, there is a component of the doctrine of judicial review which holds that some issues are, by their very nature, so standardless as to be substantively inappropriate for resolution by the judiciary. These are known as "political question". By that, it is meant that their disposition can effectively be accomplished only through the political process, and not by the courts. Professor Lon Fuller of the Harvard Law School described these as "polycentric" issues because they inherently involve so many competing considerations that they are not suited for determination by the traditional methods of dispute resolution employed by the courts. The judicial process is characterized by the adjudication, which contemplates the resolution of a focused dispute, known as a "case or controversy", between a plaintiff and a defendant or between the state and a person accused of a crime. Accordingly, the judicial process typically results in a winner and a loser.

Polycentric issues, however, have a myriad of winners and losers, as well as lots of in-betweens. Legislation is the classic example of the resolution of a polycentric dispute. The word "polycentric" means having many centers, a concept which fairly well describes the process by which laws are made. All legislation is the product of competing interests which are balanced off against and traded for each other. In colloquial terms, we have come to call this phenomenon "horse trading" or "log rolling". It is what we mean when we say that politics is the art of compromise.

The value judgments made by the participants in this process and the cost-benefit calculations by which they individually and collectively make their determinations are inherently subjective. In the same sense that every legislator's vote is equal to everyone else's, so are his value judgments. Thus, nobody's opinion on a legislative matter is intrinsically any better or worse than anyone else's. What holds true for the value judgments of individual legislators also applies to the values expressed by the legislation which results from their collective judgments. In the constitutional sense of the terms, there is no way to distinguish a "good" law from a "bad" law. Nor is there any constitutional standard for an "adequate" a law or an "inadequate" law.

On occasion, the Supreme Court has evidenced its understanding of this issue. For example, in the case of Caspersen v. Town of Lyme, decided in 1995, the owners of certain real property in the Town of Lyme challenged the town's fifty acre minimum lot size requirement in its zoning ordinance. The plaintiffs claimed that requiring fifty acres was a violation of due process of law. in rejecting their claim, the Court held that, "There is no arbitrary maximum lot size controlling a substantive due process analysis." In other words, the Court was not capable of determining how big was too big.

Similarly, in an Opinion of the Justices, rendered in 1931, the court advised the Legislature that a bill proposing to establish a system of pauper relief to be administered by the probate courts, which would require those courts to establish a comprehensive system of rules, procedures and enforcement devices in order to put the system into effect, would unconstitutionally impose upon the judiciary functions of the executive branch which the judiciary was unqualified to perform. As the Court noted, "[T]he judicial department is confined to courts of justice established to interpret laws and decide disputes."

Perhaps the most instructive case in this area is the aforementioned case of State v. Evans. As reported above, the Court held that Article 18, Part I, of the Constitution was simply "a general statement of principle" and did not create a judicially enforceable right to rehabilitation for prison inmates. The Court, however, went on to discuss whether or not prison inmates had such a right under New Hampshire's statutes governing the Department of Corrections, including the section requiring the department to adopt rules relative to "standards for the management and operation of rehabilitation related programs, including but not limited to . . . Education."

In rejecting the plaintiff's claim that this statute authorized the Court to order the warden of the State Prison to provide him with college-level educational courses, the Court demonstrated that it could be sensitive to the separation of powers issue: Removed from the actual operation of the prison and lacking expertise in correctional and rehabilitative methodologies, the judiciary is ill-suited to assume the responsibilities of prison administration. Moreover, an ad hoc approach to the assignment of rehabilitative or educational opportunities would require disproportionate allocation of limited resources among inmates: At best, this arrangement would simply substitute the judgment of a court for that of the legislature and prison officials, with no guarantee of net benefit.

This, however, is precisely the point which the Court did not make in its Claremont decisions. Don't education and rehabilitation present the very same impediments to judicial review? In fact, isn't rehabilitation just a form of education directed at a special population?

The point is that there simply is no objective standard by which to measure the "adequacy" of any social welfare or public works program. Saying that there is a judicially enforceable right to adequate education or to adequate rehabilitation begs the question: what is adequate? By what standard can the Court determine adequacy? This is inherently a political question to which there is no objective answer.

In fact, the "adequacy" of an educational program - or any other social program - is the quintessential example of a political question: It is like asking how much is enough. The question simply cannot be answered in the abstract. To begin with, it depends upon how one defines education: is it the three-R's or does it include the social sciences, vocational training, home economics, etc., etc.? Then there is the problem of how long it must last: is it only grammar school or does it include nursery school, kindergarten, college, etc., etc.? How about the means to accomplish it: are teachers and textbooks sufficient or do we need audio-visual aids, computers, field trips, etc., etc.? Then we need to decide whether education is limited to the mind or does it include training for the body and the spirit: are academics enough or must there be an athletic program, and what about courses in "values"?

It should be obvious that even the foregoing does not exhaust the list of issue-centers that comprise this polycentric subject we call education. Moreover, unless education is to trump all other government spending programs (a subject with which we will deal later), adequacy of education must be measured against the needs of the other social welfare and public works programs that compete with it for the available pot of public dollars. In other words, any reasonable evaluation of the adequacy of an educational program must take into account the worthiness of opposing demands for police protection, fire protection, public health, highways, environmental regulation - and even a court system.

Finally, when adequacy of education is defined - as it is defined in the Claremont decisions - to include adequacy of funding, we introduce the question of how big the pot of dollars available for public expenditure needs to be. In other words, what proportion of people's wealth should be dedicated to funding public projects and what proportion may be reserved by them to satisfy their private needs? How much should we pay in taxes and how much should we keep for food, shelter, clothing, entertainment and the like?

There is no objective standard by which any court can judge these issues. For the judiciary can no more determine educational adequacy than it can judge the constitutional adequacy of the minimum wage. Again, how much is enough? Is five dollars per hour adequate? How about ten dollars per hour? How about fifteen? The same is true for an adequate rate of return on capital. Can the judiciary create a usury law to place a constitutional limit on interest rates? Here the question is how much is too much. Is five percent per year too much? How about ten percent? How about fifteen?

When it comes to our Great Rights like freedom of speech and freedom of religion, there are no issues of "adequacy" and we expect the Court to close its eyes to public opinion and strike down even the most minor abridgements of our rights. That is why Supreme Court Justices have life tenure. What constitutes an "adequate" education, however, is very much in the eye of the beholder. And here the vision of the Supreme Court is no better than that of the Legislature. on the contrary, it is worse. Since there is no objective measure of the adequacy of social welfare programs, our republican (with a small "r") system of government delegates the task of making the decisions on such matters to the branches most responsive to the electorate. Accordingly, when it comes to splitting up the social and economic pie, we expect to have some say in the matter and we expect the political branches of government to do our bidding. And if they don't give us what we think is an adequate system of education, we don't need the Supreme Court to tell us what to do about it.

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