New Hampshire Politics
Merrimack, NH 03054
We have previously discussed how the Supreme Court in its Claremont decisions tortured the word "cherish" in order to find a duty to educate in Article 83, Part II, of the Constitution and how the Court then mechanically transformed its newly-discovered duty to educate into a right to an education. We also noted how the Court's characterization of this right as the right to an "adequate" education plunged the Court into the never-never land of deciding so-called political questions, which are called that because they are most appropriately dealt with in the political arena, not in the courtroom. Lastly, we discussed how the recognition of a right to an adequate education is tantamount to the creation of an entitlement program and how such programs are generally antithetical to our traditions of limited government.
On this final point about entitlements, we approached the issue from the perspective of Ralph Waldo Emerson, who believed that, "the less government we have, the better." Nevertheless, we did not mean to suggest that our Constitution actually prohibits the Government from creating entitlements. despite the Lockean notions of a minimalist state which informed the drafting of the New Hampshire Constitution, it contains no express prohibition of entitlements. On the contrary, at least as far as the Legislature is concerned, its granted powers are essentially "full power and authority. . . to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions. . . as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, . . . " As the Supreme Court observed in the 1936 case of Coleman v. School District of Rochester, "The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute." Therefore, although traditions of limited government may well caution the Legislature against an indiscriminate exercise of its power, it definitely does have the power to create entitlements.
But the Claremont opinions don't deal with the power of the Legislature; they deal with the duties of the Legislature and the rights of the people. To the extent that such alleged duties and rights are enforced by the Court, the issue, then, is whether the Court has the power to create entitlements. The Constitution is unfortunately much less explicit in defining the powers of the Judiciary than it is in delineating the powers of the Legislature. For example, the Constitution did not originally specify even the structure of the court system in New Hampshire. In fact, in the early years, it almost seemed s if the first item on the agenda for each new administration was to reorganize the courts. This was done by legislating the offices of all incumbent judges out of existence, creating a whole new set of judicial positions, and, of course, appointing new judges to fill the new offices. Although this type of overt politicization of the Judiciary pretty much came to a halt at the end of the nineteenth century, it was not until 1966 when Article 72-a, Part II, was added to the Constitution that New Hampshire was assured a "supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish."
But even Article 72-a did little to define the extent of the Judiciary's power. All it did was prescribe that those courts whose existence was thereafter guaranteed would be vested with "the judicial power of the state." But what is that? One can search the Constitution in vain for a definition of "the judicial power."
This is not to say that the Constitution is completely silent on the subject of judicial duties. For example, Article 4, Part II, provides that the Legislature is authorized to establish courts,
for the hearing, trying and determining, all manner of crimes, offenses, pleas, processes, plaints, actions, causes, matters and things whatsoever arising or happening within this state, or between or concerning persons inhabiting or residing, or brought, within the same, whether the same be criminal or civil, or whether the crimes be capital, or not capital, and whether the said pleas be real, personal, or mixed, and for the awarding and issuing execution thereon.
This provision clearly describes that aspect of the "judicial power" which involves the traditional stock-in-trade of the court system: the litigation of disputes. Similar references to this element of the judicial role may be found by implication in the Article 14, Part I (the right of every citizen to a civil remedy for his injuries), Article 15, Part I (the rights of one accused of a crime to notice of the charge, counsel, cross-examination and immunity from self-incrimination), Article 16, Part I (the right to trial by jury in capital cases), Article 20, Part I (the right to trial by jury in civil cases involving more than $1,500), etc.
The significance of the foregoing is that the judicial power is generally exercised in the context of what are known as "cases and controversies"; it does not extend to the issuance of legal opinions on abstract or theoretical propositions. The only exception to this is the power granted to the Supreme Court by Article 74, Part II, to issue advisory opinions upon the request of either house of the Legislature or the Governor and Council. The Court itself, however, has made it clear that no other parties, public or private, are entitled to apply for advisory opinions and that conflicts between parties whose personal legal interests have been or may be jeopardized. In summary, courts are tribunals for the adjudication of disputes, not places for the discussion of philosophy.
What, then, about "judicial review," which is the power of the Judiciary to declare an act of the Executive or the Legislature unconstitutional? It is interesting to note that nowhere in the Constitution is this authority expressly granted to the Court. Nevertheless, the Court itself staked out this territory very early in the history of our State. Most notably, in the 1818 case of Merrill v. Sherburne, the Court asserted that judicial review is inherent in the concept of a written constitution. Justice Levi Woodbury (who later sat on the Supreme Court of the United States) wrote for the Court that "it is the province of judges to determine what is the law, for they are to apply it while the [Legislature] makes it." Since Article 4, Part II, of the Constitution, in turn, prescribed that the Legislature could make only such laws as were not "repugnant or contrary to the constitution," Judge Woodbury concluded that the Court had the power to determine whether a legislative act submitted to it for interpretation conflicted with the "higher law" of the Constitution and, if he Court concluded that the statue did so conflict, the Court had the power to refuse to apply it.
The other justification for the power of judicial review stems from a notion that the Court is special guardian of the rights of the people against infringement by an oppressive state. This concept, of course, assumes that in any case or controversy in which there is a collision between a citizen's rights guaranteed by the Constitution and an exercise of governmental power over that citizen, the source of the claimed oppression will most likely be the Legislature or the Executive. Although this view of the Court's role did not really come into vogue until the twentieth century, it does have an ancient and honorable lineage. For example, in the great speech he made to the U.S. House of Representatives on June 8, 1789 in which he proposed the amendments to the U.S. Constitution which we now call the Bill of Rights, James Madison had this to say about judicial review:
It may e thought that all paper barriers against the power of the community are too weak to be worthy of attention. . . If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for the constitution by the declaration of rights.
This same sentiment was echoed by our own Chief Justice Frank Kenison in a 1976 address commemorating the bicentennial of New Hampshire's first constitution: "The institution of judicial review provides a link between the American Revolution and our present situation. The American people revolted in the 1770s against governmental action which they felt violated their fundamental rights. Judicial review provides a means of redress against such action today."
The difficulty, however, with all of these explanations of judicial review is that they include no parameters by which to measure its limits. And the fact of the matter is that the agency which possesses the power of judicial review - the Court- is the same body which claims to have the power to define its limits. The real problem with judicial review, therefore, is that the Constitution has assigned the fox to guard the henhouse.
It is true that at the time our early constitutions were formed, the branch of government most feared by men such as Madison was the legislative branch; thus he and others often warned of the dangers implicit in the "tyranny of the majority." Thomas Jefferson agreed. For example, he stated in a letter he wrote to Madison on March 15, 1789, that "This [the Judiciary] is a body, which if rendered independent and kept strictly to their own department merits great confidence for their learning and integrity." For the Framers, then, the Judiciary was considered to be "the least dangerous branch."
Little did Jefferson know at the time, however, how important was his proviso that the judges "be kept strictly to their own department." For when he became President of the United States, Jefferson himself was subjected to an egregious instance of judicial overreaching in the case whose name has become synonymous with the doctrine of judicial review, Marbury v. Madison. In that famous case, Chief Justice John Marshall declared that the newly elected President (Jefferson) and his Secretary of State (none other than James Madison) could not constitutionally refuse to honor the appointment of a Mr. Marbury to the office of justice of the peace. Marbury's commission had been signed by Jefferson's predecessor, John Adams, in the waning hours of his administration, but the commission had not been delivered by the time Adam's term in office had expired. Although Marshall ultimately decided such cases and, therefore, that Mr. Marbury was not entitled to any relief, Marshall had gone out of his way to make the gratuitous point that if the Court had been granted such jurisdiction, it could have told the President what to do. Jefferson never forgave him for the insult.
In part on account of his own experience, but more likely because of his general observations of the behavior of judges, Jefferson eventually came to appreciate the tendency of judges to constantly expand their powers. As he wrote in his Autobiography in 1821, "It is not enough that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias, add that of the esprit de corps, of their peculiar maxim and creed, that 'it is the office of a good Judge to enlarge his jurisdiction,' and the absence of responsibility," Moreover, in a contemporaneous letter to his friend William Jarvis, Jefferson noted how this habit of judicial self-aggrandizement was particularly troublesome when it occurred in the context of judicial review.
Betrayed by English example, and unaware, as it should seem, of the control of our constitution in this particular, they [American judges] have at time overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and teum and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power...[I]f the three powers maintain their mutual independence on each other, [our government] may last long, but not so if either can assume the authorities of the other.
To the extent that we must rely upon the Judiciary's self restraint in not "assuming the authorities" of the other branches, the Court's decisions in the Claremont cases demonstrates just how precarious our situation is. As we have noted before, the Court never even quotes or discusses the Constitution's one textual restriction upon its power of judicial review, the separation of powers provision. On the other hand, no one should have been too surprised about that because the Court had already taken the position in earlier cases that "the interpretation of our constitution is a traditional function of the judiciary and is not within the competence of the other two branches." The lack of respect evidenced in these comments for the institutional competence of the executive and the legislative branches - who certainly are capable of forming responsible opinions on issues of constitutionality and who in fact frequently do express such opinions in the course of executing their respective duties - goes a long way towards explaining the mindset of the Court which issued the decisions in the Claremont case.
However, if there ever was any question about whether the attitude exemplified in the Claremont decisions really does represent the thinking of the Court, the recent extrajudicial remarks of the Chief Justice should have resolved all doubts on that score. In his "State of the Judiciary" speech delivered on January 22, 1998 to the mid-winter convention of the New Hampshire Bar Association, Chief Justice Brock took the opportunity to chastise those who disagreed with the Court's decisions. Justice Brock's position on this subject was essentially the same as that of St. Augustine in another context, "Rome has spoken; the case is closed." But the Chief Justice's real ire was reserved for those who dared to criticize the Court itself. To this group, Justice Brock delivered the following scolding: "Such criticism is dangerous to a free society, for it will erode public respect for, and confidence in, the judicial system and the rule of law, which are the foundations of our society."
Justice Brock was, of course, wrong on almost every account. First, public criticism of public institutions is almost never wrong in a democratic society. Secondly, public criticism of a judicial abuse of power is particularly appropriate since judges have life tenure and are therefore immune from almost all forms of political suasion except for the people's rights of free speech. Thirdly, it is especially inappropriate for the supposed guardians of the rights of free speech to be criticizing the exercise of those rights. Finally, what is truly "dangerous' about the Claremont decisions is not that they have provoked a public outcry, but that they reflect such a cavalier attitude upon the part of the Court itself with respect to the need for self-discipline in its exercise of its otherwise unrestrained power of judicial review.
We have already commented upon the internal dynamic of entitlements which favors their perpetual expansion. This centripetal force finds its origin in the perfectly natural human qualities known as greed and envy, i.e., if there is more to get, I want it - especially if you already have it. The point now being made is that there is similar internal dynamic in the doctrine of judicial review. Thus, when the compulsive expandability characteristic of all entitlements is coupled with the equally compulsive tendency of an unrestrained judiciary to enlarge upon its own powers, entitlements can completely spin out of control.
One might suggest that the tendency of the judiciary to expand entitlements is no greater than that of the administrative bureaucracy which accompanies any legislative entitlement system. While this may or may not be true, the problem with judicially created entitlements is that we get the worst of both worlds. This is because every entitlement system, whether created by the Legislature or by the Judiciary, generates the bureaucratic superstructure required to administer the code of implementing regulations which inevitably follows the creation. Consequently, if we should generally beware the establishment of entitlements, we should be especially cautious about countenancing their establishment by the Court. This, of course, is even more so the case because the Court is insulated from the political process and once it creates, it is extremely difficult for us to uncreate.
The other feature of judicial entitlements which make them so much more problematical for a democratic society than legislatively created entitlements is that they separate the law-maker from the tax-payer. The basic principle of responsible schemes of wealth redistribution is that those who do the redistributing ought to include their own wealth in the redistribution. That principle is violated, however, when the Judiciary decides that citizens have an affirmative right (i.e., entitlement) to some social welfare benefit - and then hands the problem over to the legislative and executive branches to fund it. In fact, a judicial entitlement is a perfect example of what we have come to know and hate as an "unfunded mandate".
And this is exactly what the Claremont decisions constitute: and unfunded mandate! Having made its pronouncement from on high that every citizen has a constitutional right to an "adequate" education, the Court simply passed the buck to the Legislature and the Governor to figure out how to raise the money. If this transfer had been made with no strings attached, the Claremont decisions might have been tolerable (even if they can never be intellectually defensible). However, the Court made it eminently clear in Claremont II that this was not to be the case. By its repeated assertions that the Constitution not only provides for a right to an "adequate" education, but that it also guarantees a right to an "adequately funded education, the Court let it be known that whatever level of educational funding is established by the Legislature, it will be subject to judicial review.
The watchwords of the American Revolution - "no taxation without representation" -are equally applicable to the Claremont decisions. When a legislative body - whether it be the General Court or a local school district - sets a level of "adequacy" for educational funding, the proper link between the pocketbook and the vote is maintained. It is amazing how this simple requirement of making those who pass the laws pay for the laws can have such a salutary effect upon government profligacy. When the Court, however, takes it upon itself to direct and supervise the process, that connection is severed. Herein lies the paramount evil of judicial entitlements: the tax rate for one million citizens can be set by five black robes in Concord who are responsible to no one but themselves.
Rasputin
New Hampshire Politics |
P.O. Box 1120 Merrimack, NH 03054 |