It is more than passing interest that the Supreme Court in its Claremont decisions ultimately described the constitutional interest in education in terms of a "right", rather than merely a "duty". Article 83, Part II, of the Constitution, after all, uses the latter term, not the former. Most of your presumably saw no significance in this because you probably took it as a given that one person' duty surely corresponds to another's right and vice versa. In fact, one might have thought that once having discerned that Article 83 imposed a "duty" with respect to education, the Court had all it needed to assert its power over the subject.

Yet the Court clearly felt uncomfortable dealing with duties rather than rights. One must presume, therefore, that the distinction has some significance to the Court. I suggest that the distinction lies in the fact that "rights" in constitutional parlance are assumed to be particularly within the bailiwick of the judiciary. Indeed, it is customary to think of the courts as the place to which we go to enforce our rights. (Does it surprise you that no one goes to court to find out what his duties are; that one goes to court only to secure his rights?) It is therefore no accident of verbiage that the Court decreed that Article 83 establishes a "right" to an adequate education.

The way in which the Court got from duty to right, however, was accomplished with a peculiar lack of explanation. In fact, the transition consisted of little more than an ipse dixit: "For over two hundred years New Hampshire has recognized its duty to provide for the proper education of the children in this State. Since 1647, education has been compulsory in New Hampshire, and our constitution expressly recognizes education as a cornerstone of our democratic system. We must conclude, therefore, that in New Hampshire a free public education is at the very least an important, substantive right." (Emphasis supplied)

On the other hand, the Court's if-there-is-a-duty-there-must-be-a-right type of analysis should be familiar to any student of the Anglo-American tradition of the common law. In its primary fields of operation, torts and contracts, the common law does indeed equate a plaintiff's right to damages with a defendant's breach of a legal duty. Accordingly, the focus of common law jurisprudence is upon whether or not a legal duty exists between the parties. Once a duty has been found, the plaintiff's right to recover for injuries caused by the defendant's breach of that duty generally follows as a matter of course.

In deciding whether or not to recognize a duty at common law, judges admittedly do engage in a law-making, rather than a law-finding, enterprise. In fact, the common law is often called judge-made law. To the extent that courts of general jurisdiction in the several states possess such common law powers, they differ from federal courts, including the U.S. Supreme Court, which have no such powers. Federal Courts are generally limited to interpreting positive law as found in statutes and the U.S. Constitution. The jurisdiction of state courts, on the other hand, is plenary and state judges are thus quite used to declaring not only what the law is, but what it should be.

The problem often faced by state court judges, however, is to distinguish their common law powers from their powers of judicial review. Oliver Wendell Holmes, the preeminent common law scholar and also a Justice of the U.S. Supreme Court, had plenty of experience in performing both tasks. With respect to the former, he admitted that, "[J]udges do and must legislate." However, when it came to performing his role as an interpreter of the Constitution, his view was quite different. In response to the entreaty of one of his colleagues that he should "do justice, sir", Justice Holmes is reported to have said: "That is not my job. It is my job to apply the law."

The Claremont decisions constitute a perfect example of a court's confusion of its two roles. In its characteristically unsophisticated way, our Court looked at the case as if it were just another tort case in which the issue confronting it was whether or not the State had a legal "duty" to educate its populace. Once the Court concluded that the State had such a duty, it was axiomatic to the Court that students had a "right" to a State-provided education. Ironically, even if Claremont had indeed been just a simple tort case, Justice Holmes probably would have had some difficulty with the Court's simplistic reasoning: "The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as it if contained only axioms and corollaries of a book of mathematics."

But that is not the fatal flaw of Claremont. The real problem is that the Court failed to heed the advice of Chief Justice John Marshall that courts, when exercising their power of judicial review, "must never forget that it is a constitution we are interpreting." The differences between a garden variety judicial decision on a matter of tort or contract law and a decision interpreting the Constitution are legion. The most basic difference, of course, is that the Legislature can change a tort or a contract decision. All it has to do is pass a statute. Indeed, common law rulings by the courts are fairly regularly reversed by legislatures which disagree with the courts as to what the law should be. Constitutional decisions, however, are a different matter. Changing one of those requires a constitutional amendment, which not only cannot be accomplished by the Legislature, but also cannot be accomplished at all without a great deal of difficulty.

This, then, is one reason why the Court's exercise of its power of judicial review is limited by the doctrine of separation of powers. Outside the arena of the common law, the Constitution assigns the responsibility for law-making to the Legislature, not the Court. As a result, putting issues of the constitutional allocation of power in the context of he Court's simplistic notion that all duties create corresponding rights simply doesn't work. Indeed, so long as the enforcement of rights is seen to be the job of the judiciary, if the Constitution assigns a duty to another branch, the presumption should be that the duty does not create a right.

In truth, the question of whether the duty to cherish education articulated in Article 83, Part II, of the Constitution creates a right to an education is just another form of the question which the Court posed at the outset of Claremont I about whether Article 83 is "hortatory, not mandatory". The Court asserted that it had found a negative answer to this question in the mere fact that Article 83 used the word "duty" to describe what the legislators and magistrates were supposed to do. Whether a duty of one creates a right in another, however, is not simply a matter of text. It is also a matter of context.

The Court makes much of the fact that "article 83 is only one of two places in the constitution where a duty is affirmatively placed on the legislature." The other place, so reports the Court, is in Article 5-A, Part II, where it is provided that, "the general court, ... in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices". Although the Court may well be correct that the word "duty" is found in only Articles 5-A and 83, Part II, of the Constitution, the point is interesting, but hardly constitutionally significant. If anything, the fact that the word "duty" is used in Article 5-A in connection with the Legislature's responsibility to provide means to fill positions in the executive departments on account of vacancies created by enemy attack reflects that the word cannot be used to imply a right which is judicially enforceable. For only the most rabid advocate of government by the judiciary would suggest that if the Legislature failed to pass a law providing for executive succession that the judiciary could do so itself.

More importantly, it is eminently clear that the Constitution imposes what are obviously duties upon the Legislature in many places, albeit without using that word. For example, Article 31, Part I, provides that, "the legislature shall assemble for the redress of public grievances and for making such laws as the public may require." (Emphasis supplied) Likewise, Article 11, Part I, provides that, "the general court shall provide by law for voting by qualified voters who . . .are absent from the city or town of which they are inhabitants". (Emphasis supplied) To the extent, therefore, that the Court finds magic in isolated words snatched out of their context, it is difficult to see how the Constitution's "shall"'s are any less obligatory upon the Legislature than its prescription of "duty"'s.

In order to provide anything but a mechanistic answer to the question whether a constitutionally prescribed duty is meant to create a constitutional right, one must acquire some understanding of the nature of the duty under consideration. General Robert E. Lee described "duty" as "the sublimest word in the language." For example, is the duty a standard of conduct or is it merely an aspirational goal whose achievement is desire, but not necessarily expected? What about the Court's own duties? Chief Justice Marshall said that, "It is emphatically the province and duty of the judicial department to say what the law is". Is this a standard of conduct and, if so, by whom is it to be enforced? General Lee's personal definition was that, "[Y]ou can never do more than your duty; you shall never wish to do less". Suffice it to say that this could hardly be a standard of conduct or we would all be in jail.

Applying this test, I suggest to you that Article 83, Part II, of the Constitution is patently nothing more than what it purports to be: an ideal; a goal; an aspiration. Although it is admittedly more than merely a grant of power to pass and enforce laws relating to education, one would be hard-pressed to see anything in its prescription of a "duty" to "cherish" education but a counsel of excellence. In this regard, the message of Article 83 is rather like the recent pronouncements of the Governor that the Legislature should not be satisfied with providing the "adequate" education required by the Supreme Court; on the contrary, its goal should be to provide every New Hampshire student with a "world-class" education. Like the Constitution, the Governor presumably does not intend the Court to construe her words as creating a "duty" that creates judicially enforceable "rights".

The Court, of course, makes no note in its Claremont decisions of the simple fact that Article 83 nowhere mentions anyone's "rights". Moreover, it does not discuss the fact that Article 83 appears in Part Ii of the Constitution, which describes the "Form of Government", rather than in Part I, which is labelled as the "Bill of Rights". Indeed, the Court fails to mention that in 1850 a resolution at a constitutional convention proposed to move the clause from the Form Of Government section to the Bill of Rights section, but as defeated. It is dangerous to draw too many conclusions from a negative, but one can only assume that some people thought that the reference in the existing Constitution to a duty to cherish education did not create a right to education and that a change was required to make it do so.

When all is said and done, therefore, the Claremont decisions are nothing more glorious than the decisions of a common law court which thought it was deciding another tort case. Although dressed up in constitutional clothing, the right to an adequate education is merely an expression of the personal views of a majority of the Justices of the Supreme Court on a matter of public policy. As such, the decisions should command no greater respect than a decision in any other common law case. Consequently, although a constitutional amendment will be required to restore matters to the status quo ante, the Legislature and the Governor should have no compunction about recommending this course of action to the voters.

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