The genius of the American political system lies in its resolution of the problem posed by James Madison in The Federalist, No. 51: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." The American solution, of course, is its system of checks and balances. As Madison put it, "Ambition must be made to counteract ambition."

Our Constitution has two type of checks and balances built into it, vertical ones and horizontal ones. The vertical lines of control are those which run between the institutions which do the governing and the people who are governed. The horizontal controls are those which the three supposedly co-equal branches of government exercise over each other. Checks and balances are also direct and indirect. Direct checks are those wherein one person, group or branch of government can reverse or alter the specific act or decision of another, such as the Governor's power to veto a bill passed by the Legislature. Indirect checks consist of those grosser devices by which pressure can be brought to bear upon an institution in a more general way, such as the voters' power to elect the Legislature.

We have learned that the Supreme Court's power of judicial review, (i.e., its power to declare the acts of the other two branches unconstitutional), while quite plausibly implied in the Constitution, is nowhere expressly mentioned therein and, and therefore, is effectively an invention of the Judiciary. Even to the extent that judicial review is deemed to be constrained by the Constitution's express recognition of the doctrine of separation of powers, the "final arbiter" (as the Court is so fond of calling itself) of the interpretation of the separation of powers clause is the same institution which decides how far its own powers of judicial review extend.

The problem with the Supreme Court's power of judicial review, therefore, is that there is no effective counter to the Court's ambition. To begin with, there is no horizontal check which directly counteracts the Court's power of judicial review; neither the Governor nor the Legislature have any power under the Constitution to alter a decision of the Court which purport to interpret the Constitution. Accordingly, the limits of judicial review are essentially only those which the Court chooses to impose upon itself.

On the vertical plane, the only potentially meaningful direct control upon the Court's power of judicial review is the people's reserved power to amend the Constitution. Article 100, Part II, of the Constitution, however, makes the process of amendment extraordinarily (but quite appropriately) arduous. First, a proposed amendment must be approved by three-fifths of the entire membership (i.e., not of just those present and voting) of each house of the Legislature. Alternatively, the Legislature may by majority vote convene a constitutional convention, which such body may propose amendments by a three-fifths vote of its entire membership. If the proposal successfully runs either of these gauntlets, it must then be approved by two-thirds of the State's voters at a general election. Despite the fact that our Constitution has reputedly been amended some 140 times since 1784, suffice it to say that amendment process provides a rather cumbersome method of exercising popular control over a judicial power-grab. [footnote 1]

Since there is no effective direct check or balance on the Court's power of judicial review, we are left with the question of whether or not the indirect checks upon the Court are sufficient to restrain it from straying out of its proper territory. The first thing to note with respect to indirect checks upon the Court is that the checks (legislative or executive vetoes) are nonexistent and direct vertical checks (constitutional amendments) are ineffectual at best, in the realm of indirect checks and balances, it is the vertical ones which are essentially nonexistent and the horizontal ones which are ineffectual.

The most extreme vertical check upon the Government's abuse of its power is a citizen's right of revolution, which is specifically preserved in the New Hampshire Constitution by Article 10, Part I. At the opposite end of the spectrum are a citizen's right of free thought, free speech and free press. In theory, both revolution and free expression are devices which are available to restrain the power of any one of or all three of the branches of government. On the other hand, when it comes to the Judiciary, we can substantially discount the efficacy of free speech as a control device because - for better or for worse - the Court considers itself immune from public criticism. As far a the right of revolution is concerned, we can presumably exclude that as well, simply on the grounds that it is not productive to spend our time considering remedies designed only for doomsday scenarios. (Although the Claremont decisions are horrific, no one has yet suggested that they rise to the level of a breach of the social contract.)

Between these two extremes lies the most important and most effective vertical device to control the general behavior of government: a citizen's right to vote. The problem, however, is that this is a control mechanism from which the Judiciary is expressly exempt. In fact, the framers of our constitutions deemed independence from the political process, secured by life tenure, to be one of the necessary attributes of the judicial branch of government. For example, in his discussion in The Federalist, No. 51 of the principle that government should be subject to the consent of the governed, James Madison took the following position:

Some deviations ... from the principle must be admitted. In the constitution of the judicairy department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select the mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

In the of the virtual immunity which life tenure gives the Judiciary from any vertical control upon its general behavior, one might have assumed the Constitution would make up the difference with horizontal controls. Although this is perhaps theoretically the case, the devices provided by the Constitution for the legislative and/or executive branches to exercise control over the judicial branch (i.e., the horizontal checks and balances) are more likely in the current era to be reserved for cases of personal, as opposed to institutional, misconduct.

To begin with, some of the horizontal control devices which were historically available in 1784 have been eliminated by subsequent constitutional amendments of judicial decisions. For example, the power to reorganize the court system and to thereby legislate Supreme Court justices out of a job - a tactic that was used quite frequently by opponents of the Court in the nineteenth century - was canceled when Article 72-a, Part II, was added to the Constitution in 1966. Likewise, the Legislature's power to tinker with the judicial salaries was curtailed by the Court itself in a 1995 Opinion of the Justices which held that a judge's salary may not be legislatively suspended or reduced during his/her tenure in office.

The most awesome power which the legislative and executive branches have over the judicial branch is the power of impeachment. Article 35, Part I, provides that the Supreme Court judges shall hold their offices "so long as they behave well". To the same effect is Article 73, Part II, which provides that all judicial officers "shall hold their offices during good behavior". While these provisions establish the Judiciary's life tenure, the reference to "good behavior" establishes the grounds for their removal by impeachment. Article 38, Part II, provides that impeachment commences through the presentation of articles of impeachment in the House of Representatives and is concluded by a trial in the Senate. The grounds stated by the Constitution for impeachment are "bribery, corruption, malpractice or maladministration, in office". Finally, an accused judge is granted full procedural rights to notice of the charges, the assistance of counsel and the production of witnesses in his behalf.

Not surprisingly, no justice of the New Hampshire Supreme Court has ever been successfully impeached. On the other hand, that may well be due more to the availability of an alternative removal process known as "address" than to the difficulty of prosecuting an impeachment. In that regard, Article 73, Part II, of the Constitution provides that, "the governor with the consent of the council may remove [judicial officers] upon the address of both houses of the legislature." According to a 1959 article by lawyer-historian Richard F. Upton in the N.H. Bar Journal, "removal of members of the judiciary ... by address requires no investigation or trial. Based on past precedents, it does no appear that charges need to be stated or approved. And only such hearing will be given as is naturally incident to the legislative process."

Mr. Upton reports that four separate attempts to amend the Constitution to limit the power of address to cases of incapacity or misconduct or to prohibit the exercise of the power "for political reasons" have all failed. Nevertheless, although new administrations in the nineteenth century frequently availed themselves of the political use of address to sweep the old guard from office in order to replace them with members of the new ruling party, address has been used to remove a judge only once in the twentieth century, and that concerned a municipal court judge who was the subject of numerous complaints of personal misconduct.

It should be noted that the appropriateness of address as a vehicle to control the Judiciary's exercise of its power of judicial review does have some historical authority. For example, in 1813, a petition was presented to the Legislature requesting the repeal of the act by which it had completely reorganized the court system and legislated all of the incumbent justices out of office. The Legislature rejected the petition and adopted a report of a committee of the House which, among other things, noted that the power to abolish courts was a necessary check on the Judiciary's authority to declare laws unconstitutional.

On the other hand, removal of judges, either through a wholesale reorganization of the court system (which is now constrained by Article 72-a, Part II) or by deposing individual judges through impeachment or address, does nothing to reverse the ill effects of an unacceptable judicial decision. The same thing can probably be said for the mirror image of judicial removal: court packing. Since the Constitution does not prescribe the number of Supreme Court justices, the Legislature could indeed increase the current membership from five to seven, or to nine, or to any other number. Packing the Court, however, does not itself change any of its previous rulings. Furthermore, the practical difficulties in actually accomplishing an impeachment, an address or a court-pack, together with the lack of recent precedent for any of these schemes, means that the threat of their use probably exerts very little control over the Court's exercise of its powers of judicial review.

In summary, then, the Court's powers are subject to very few indirect controls, either on the vertical scale or on the horizontal scale. When combined with the lack of direct controls upon the Court's power of judicial review, it should be apparent that there is precious little that anyone can do when the Court makes a bad constitutional decision. Consequently, although the New Hampshire Constitution proclaims that "the legislative, executive and judicial [powers], ought to be kept separate as the nature of a free government will admit" (Article 37, Part I) and that "all the magistrates and officers of government are [the people's] substitutes and agents, and at all times accountable to them" (Article 8, Part I), our Supreme Court has effectively become exempt from both of these requirements.

Thomas Jefferson believed that "the natural progress of things is for liberty to yield and government to gain ground." As reflected in a letter he wrote in 1816 to Joseph Cabell, he also believed that government would gain its ascendancy over liberty all the more easily if power were not dispersed among competing agencies: "What has destroyed the liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating of all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate." This is exactly the same point that Madison had made in the Great Debate over the ratification of the Constitution in 1787-9: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." (The Federalist, No. 47)

As we have previously noted, Jefferson was one of the few Framers who had the foresight to anticipate a concentration of power in the hands of the Judiciary. On the other hand, it is doubtful that nay one of them would have predicted the activist courts of the twentieth century. One need only turn to the opinion of our own Court in the early case of Merrill v. Sherburne (1816) to get a flavor of the type of judicial review that was contemplated by those who wrote the America's eighteenth century constitutions, including New Hampshire's. Although the Court did declare a statute unconstitutional, look at how it addressed its co-equal branch of government:

we have in the present cause, experienced considerable embarrassment: but duty has compelled us to act, and it hardly need be repeated, that we have attempted to divest ourselves of every feeling, except an earnest desire to perform what duty dictated ... If then there should happen to be an irreconcileable variance between the constitution and a statute, that which has the superior obligation and validity ought of course to be preferred: in other words, the intention of the people ought to be preferred to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes, that the power of the people is superior to both; ... Our confidence, also, in the liberality of the legislature is such, that when through inadvertence or mistake, they have passed an unauthorized act, we believe that should the unpleasant task of adjudging it void, devolve upon us, they would think the task is performed only from a conviction that the act is in the clearest manner, unconstitutional, and that our right and duty so to pronounce it are both unquestionable. (emphasis in original)

The almost apologetic quality of the Court's Merrill opinion is a far cry from the decisions written by today's philosopher-king judges. The Court's decision in Claremont II simply could not have been written in 1784. Whereas the Merrill decision was a model of institutional deference, Claremont II virtually oozes with condescension. For example, after making the obligatory ritual promise that it does not "intend to intrude upon the prerogatives of other branches of government", the Claremont Court proceeds to do just that:

"We anticipate that they [the Executive and the Legislature] will promptly develop and adopt specific criteria implementing these guidelines [for an 'adequate' education] and, in completing this task, will appeal to a broad constituency."

It is hardly nitpicking to observe that the Court's assignment of a "task" to the Legislature and the Executive which they must complete "promptly" sound somewhat like a schoolmarm addressing her students. In addition, the Court's own specification of "guidelines" for educational adequacy leaves the other two branches of government with no job to do except to rubber-stamp what the Court has already done. Finally, by its direction to the Governor and the Legislature that they "appeal to a broad constituency", the Court takes it upon itself to lecture its equals as to how they should do their job.

If the Claremont decisions are a harbinger of the future, perhaps it is time for a change. No less a figure than George Washington accepted the possibility that experience might reveal that one branch of government was insufficiently restrained by the Constitutions original system of checks and balances and that the system might have to be altered in order to restore the balance. In fact, this was one of the thoughts that he left with his fellow Americans when he took leave of his political career in his famous Farewell Address:

It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.

To the extent that the Claremont decisions have provoked consideration of a constitutional amendment designed to reverse the specific holdings of those cases, perhaps the Legislature ought to give some serious thought to offering the voters of this State a constitutional amendment which deals with the broader problem of judicial abuse which created the Claremont crisis. One of the proposals which has been bandied about on the federal level in the backlash against the excesses of the Warren and Burger Courts is an amendment to the Federal Constitution which would make any decision by the Supreme Court reversible by (1) a supermajority vote (2/3, 3/5 or 3/4) of both houses of Congress and (2) the concurrence of the President. If the Court is hell-bent upon participating in the legislative process, perhaps the Constitution should be amended to have the Executive and the Legislature participate in the judicial process.

Such a proposal is not as far-fetched as you might think. On several different occasions, none other than James Madison advocated that the Philadelphia Convention incorporate a provision into the Federal Constitution which would accomplish the reverse of this proposal. In particular, on August 15, 1787, Madison introduced an amendment to the draft constitution which would give the Court the same veto power over legislation s the President had, subject to being overridden by a two-thirds vote of both houses of Congress in the case of only a judicial or an executive veto and a three-fourths vote in case of a veto by both the Court and the President. In supporting Mr. Madison's motion on the Convention floor, Mr. Mercer of Maryland commented as follows:

It is an axiom that the judiciary ought to be separate from the legislative; but equally so, that it ought to be independent of that department. The true policy of the axiom is, that legislative usurpation and oppression may be obviated. He disapproved of the doctrine, that the judges, as expositors of the Constitutions, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontrollable.

Although Madison's proposal was not adopted, his approach to the problem is quite instructive to our current situation. What is most relevant is the notion that judicial review need not be the absolute power that it has become in order to function effectively. Adjustments to the Court's power of judicial review can indeed be made without throwing the baby out with the bath.

[footnote 1] Interestingly enough, there has been a great hue and cry in the aftermath of Claremont II about how it is supposedly inappropriate to pass a constitutional amendment for the purpose of reversing a judicial decision. One can understand such drivel being issued by those who support the result reached by the Court in its Claremont decisions and who justify the means by the ends achieved, but it is frankly most peculiar to see this position being espoused by so many newspaper editors who ought to know better. The fact of the matter is that the judiciary's abuse of its powers to determine what is constitutional and what is not presents the paradigmatic occasion for a constitutional amendment!

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