As Thomas Jefferson observed in his letter of 1816 to John Taylor, "The further departure from direct and constant control by the citizens, the less has the government of the ingredient of republicanism." Applying this formula to the Judiciary and taking into account its life tenure, Jefferson concluded: "The Judiciary [is] seriously anti-republican."

Life tenure obviously does provide the Judiciary with an extraordinary potential for the exercise of political power. On the other hand, although life tenure provides the Judiciary with the ultimate in employment security, it is still only a defensive weapon. When it comes to offensive weapons, the Judiciary's arsenal is not so nearly so well stocked. In particular, the Judiciary has neither the power of the purse nor the power of the sword. As Joseph Stalin once remarked about another institution which suffered from similar disabilities: "The Pope! How many divisions has he got?" To secure compliance with its decrees, therefore, the Court must rely upon the public's willing obedience (or at least its grudging acquiescence) and, failing that, upon enforcement by the other two branches of government. In either case, the Court's effectiveness is dependent upon the voluntary cooperation of parties who may seriously disagree with it.

Since the Court cannot compel such cooperation, the Court must earn it. At least in the long run, this means that the Court's decision and society's fundamental beliefs must generally coincide. As the constitutional scholar Alexander Bickel once commented, "The Supreme Court's law...could not in our system prevail - not merely in the long run, but within the decade - if it ran counter to deeply felt popular needs and convictions,or even if it was opposed by a determined and substantial minority and received with indifference by the rest of the country." To the extent, therefore, that the Court's legitimacy is dependent upon the eventual consonance of its decisions with public opinion, one could argue that Jefferson was wrong and that the Judiciary really is a democratic institution. Professor Bickel, for example. espoused just such a view: "This, in the end, is how and why judicial review is consistent with the theory and practice of political democracy. This is why the Supreme Court is a court of last resort presumptively only."

Such an argument, however, not only attenuates the definition of democracy to such an extent that the word is robbed of all meaning, but also sends the Court the wrong message. Judicial review is by its nature counter-majoritarian and judges, therefore, must be prepared to buck the tide of public opinion. As Alexander Hamilton noted in The Federalist, No. 78, "[I]t would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community." Consequently, the reason that the Court was granted life tenure was just so it would not have to keep one eye on the courtroom and the other on the polls.*1

On the other hand, immunizing the Court from the political process was not intended to release it from all external constraints. Although freed from any meaningful control by the electorate, the Judiciary was still supposed to be subject to our carefully crafted system of institutional checks and balances, including the doctrine of separation of powers. The problem, however, is that the Judiciary was also granted (or, in the opinion of some scholars, it simply assumed unto itself) the power of judicial review, which gives the judges the last word in matters of constitutional interpretation. To the extent that this often involves an interpretation of the doctrine of separation of powers itself, the Judiciary has become the final arbiter of the limits of its own power.

As we have previously discussed, the doctrine of separation of powers was intended to be the American antidote for the classic truism that, "Power tends to corrupt and absolute power corrupts absolutely."*2 Jefferson, for example, was very familiar with this principle; as he commented in his Autobiography, "[I]t is not by the consolidation of powers, but by their distribution, that good government is effected," However, we will have accomplished nothing if the Judiciary, which we set up to restrain the legislative or executive branches from violating the Constitution, can itself violate the Constitution. As Alexander Hamilton stated, "If [the courts] should be disposed to the exercise WILL instead of JUDGEMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." How then, is this dilemma to be resolved?

One way is to simply admit that there are no effective external controls over the Court and to turn instead to internal controls. One of the reasons that the Framers entrusted judicial review to the Judiciary was precisely because the regime of the law is characterized by certain rules of procedure which are designed to limit what judges can do. In particular, these rules attempt to promote the judicial impartiality and consistency which are the hallmarks of a system of laws, not men. This is presumably what is meant by the inscription over the front entrance of the U.S. Supreme Court building: "Equal Justice Under Law."

One example of these precepts is the tradition of the written opinion. By having to write and publish a formal opinion, a judge is required to explain his reasons for reaching a particular decision. If the judge's reasons are based upon irrelevant or unacceptable criteria, faulty logic or incorrect facts, the judge should expect to be criticized and, if his decision is appealed, to be overruled. On the other hand, a well-written opinion will hopefully persuade the reader that the judge was correct in deciding as he did - or at least that the judge's decision is within the realm of reason. Thus, the requirement of a written opinion not only imposes an internal discipline upon the judge who writes the opinion, but also increases the likelihood that the result will be accepted by others - even if they disagree with it.

Another internal limitation upon the exercise of judicial review is the notion of principled decision-making. By that I mean what Professor Herbert Wechsler meant when he wrote in 1959 that a principled decision was "one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved." Accordingly, a judicial decision should not be ad hoc; it should be based upon articulatable principles which are equally applicable to any other case presenting the same or similar facts. Like the requirement that a opinion be written, the necessity that it be principled not only serves as a check upon the arbitrariness of the judge, but it also cultivates the respect for the Judiciary which allows people to accept its decrees - even the adverse ones.

Finally, one of the most familiar features of the judicial process which impose some form of internal restraint upon the Court's exercise of its power of judicial review is the doctrine of stare decisis. This is the legal tradition which requires judges to follow precedent. By honoring the justifiable expectations of people who have ordered their affairs in reliance upon prior judicial decisions, adherence to precedent promotes certainty and predictability. More importantly, like the requirement of a written opinion and the concept that judicial decisions should be based upon neutral principles, the doctrine of stare decisis protects us against judicial caprice.

These characteristics of the judicial process were indeed touted by the early supporters of judicial review as sufficient safeguards against an otherwise unrestrained Judiciary. Alexander Hamilton, in particular, argued that an independent judiciary could be trusted with the power of judicial review precisely because it was bound to conduct its affairs according to established modes of decision making which, although self- imposed, would act as an effective check upon the Court's activities. In this regard, Hamilton especially commented upon the efficacy of the doctrine of stare decisis; "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point our their duty in every particular case that comes before them."

This, of course, does not mean that the Court can never reverse course. Before ascending to the U.S. Supreme Court, Oliver Wendell Holmes wrote a famous article in 1897 entitled The Path of the Law, in which he argued that change is necessary lest rules "simply persist from blind imitation of the past." In appropriate cases, therefore, prior decisions can and indeed should be overruled. As Supreme Court Justice Louis Brandeis wrote in a 1932 case, this is especially true with respect to constitutional decisions:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right....But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.

However, even if we acknowledge the possibility of change in judicial interpretations of the Constitution, that does not dictate a total abandonment of stare decisis. Principled decision-making commands that there be rules for change, as well for other things. Just recently, the U.S. Supreme Court had an occasion in the case of Planned Parenthood v. Casey (where the Court just barely decided not to overrule the controversial case of Roe v. Wade) to articulate the conditions for departing from previous decisions;

[W]hen this Court reexamines a prior holding, its judgement is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective cost of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proved to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification.

Our Court has fashioned similar rules for deviating from precedent. Although these rules - like the doctrine of stare decisis itself - are self-imposed, they nevertheless constitute a meaningful constraint upon the Judiciary's potential abuse of its power of judicial review. For if the Court must either follow its own precedents or give logical, consistent and traditional reasons for abandoning them, we have some guarantee that the Court's decision will be, as Hamilton said, an act of judgement, not will.

If there is one thing, however, that I can say without equivocation about the Claremont decisions, it is that they do not follow the Court's own precedents. Let us begin with the basic fact that the system that the Court declared unconstitutional and the provisions of the Constitution upon which the Court relied to strike that system down have existed for more than two centuries. Although one might argue that the fact that we have been doing something for 200 years doesn't necessarily mean we have been doing it right, it would seem that some smart lawyer in our litigious society would long ago have made the same claims that the Claremont plaintiffs did. Yet it was not until we had almost concluded the twentieth century that we got Claremont I and Claremont II. At a minimum, therefore, these decisions represent a departure from some pretty substantial conventional wisdom.

Moreover, to state - as the Court did in Claremont I - that the "decisions of this court are consistent with [our] conclusion" is pure bunk. Contrary to the Court's representations, the New Hampshire precedents interpreting Article 83, Part II, of the Constitution are essentially inconsistent with the Claremont decisions! As reflected in the summaries of the relevant cases in the Appendix which is attached to this essay, the following was the state of the law on educational rights and duties before Claremont.

1. Article 83, Part II's imposition upon the Legislature of a "duty" to cherish education is a grant of power which authorizes, but does not require, the Legislature to pass laws in furtherance of education.
2. Article 83, Part II, does not confer "rights" upon parents, students, teachers, or voters, either to an education or to direct the educational process.
3. Article 83, Part II, of the Constitution does not grant the Court any general power to interfere with or supervise the Legislature's educational policies.

When one reads reports of the Claremont case which claim that the Court's decision concluded that New Hampshire's current educational system is "at odds with two centuries of case law" (a statement which appeared in a recent New Hampshire newspaper editorial), one can only admire how the Court has managed to make black appear to be white. As the foregoing review of prior case law demonstrates, the Court's discovery of a constitutional right to an adequate education constitutes a complete break with the past. Yet you would never know that from reading the Claremont opinions.

Another thing that you would not know from reading the Court's opinions in Claremont is that the Court had at least once before passed up an opportunity to declare the local property tax system of funding New Hampshire's educational system unconstitutional. In 1971, in the case of Laconia Board of Education v. City of Laconia, the Laconia school board brought a petition to compel the Laconia city council to either approve the school board's submitted budget or to approve a budget in an amount sufficient for the board to meet its statutory obligations to educate Laconia's school children. The Court held that (a) under the N.H. statutes and the City of Laconia charter, the city council, not the school board, had final say in appropriations for education; (b) although the City did not have to appropriate at least enough money to satisfy statutory and Board of Education mandates, (c) there was insufficient evidence that the budget which the city council had approved would fail to satisfy those mandates. As a result, the Court denied the school board's petition. Moreover, the Court specifically declined to rule upon the school board's contention the "the present system of financing the Laconia school system by a property tax is a violation of the equal protection clause of the fourteenth amendment of the United States Constitution". The Court's refusal to deal with the issue was purportedly by the trial court or briefed by the parties. Nevertheless, the Court did discuss it and there is no mention in the Court's discussion of any possible relevance to this claim of Article 83, Part II, of the New Hampshire Constitution - nor does it appear that such a connection ever occurred to the school board. Suffice it to say that the Laconia case is not cited or discussed by the Court in either of its Claremont decisions.*3

Finally, you would not learn from reading the Claremont decisions that the Court had, at least once and perhaps twice, decided that the Constitution does not guarantee and affirmative right to a State- supported education. First, there was the Opinion of the Justices issued by the Court in 1978 concerning the constitutionality of a bill pending before the House of Representatives which proposed to excuse local school districts from any duty to provide a public school education to the residents of military installations located within the boundaries of such districts unless the districts were reimbursed by the Federal Government. The Court held that the bill denied the military residents of the affected school districts the "equal protection of the laws" guaranteed by Part I, Article I of the Constitution because not one could offer the Court any reasonable basis for their discriminatory treatment. Despite having been asked whether the bill violated "any provision of the Constitution of New Hampshire", the Court made no mention of Article 83, Part II, of our Constitution. More importantly, by even hinting that the State could have completely denied a free public education to some segment of the population if there had only been a rational basis for the law, the Court was certainly not acting as if it recognized any constitutional right to an education, much less an "adequate" one.

Then in 1985, in the case of State v. Evans, a prison inmate claimed that he had a right under Article 18, Part I, of the Constitution (which stated that, "[T]he true design of all punishments [is] to reform") to be provided with a free college education. In addition to holding that this provision of the Constitution was merely horatory and, therefore, did not convey any rights upon anyone, the Court also held that it had no business involving itself in the operations of the prison system, even under a statute requiring the Department of Corrections to set up an educational system for inmates. Moreover, even though the question specifically presented to the Court was, "Does an inmate at the New Hampshire State Prison have a [i.e. any] constitutional or statutory right to a State-funded college education", the Court nowhere cited or discussed Article 83, Part II of the Constitution. Finally, the Court did not equivocate in answering the question presented to it in the negative: "A talented law-abiding citizen of the State of New Hampshire has no right to a State-funded college education. A talented inmate of the New Hampshire State Prison has no greater right." Again, it goes without saying that there was no mention of the Evans case in either Claremont I or Claremont II.*4

What is at issue here is not the court's miraculous transformation of the Legislature's duty to cherish education into a citizen's right to obtain an education; it is the Court's failure to acknowledge that its conclusions constitute a major deconstruction of 200 years of case law and conventional wisdom. At a minimum, it was shoddy craftsmanship for the Court to have omitted any reference to the Laconia case, the 1978 Opinion of the Justices and/or the Evans case in its Claremont opinions. Even worse, it was downright disingenuous for the Court to affirmatively state that its prior decisions were "consistent" with the conclusions it reached in Claremont. In this regard, the Court's sin lies not so much in its disregard of history, but in is lack of candor.

If the test, therefore, of whether or not the Claremont decisions represent a threat to democracy is based upon what those decisions can tell us about where the Court may go in the future, we may well have reason for concern. To the extent that the Court created a constitutional right to an adequate education out of whole cloth, one would not feel as uncomfortable about the future if the Court had at least admitted it. By purporting to rely upon a provision of the Constitution which neither textually nor historically supports the Court's decision, the Court raises the specter of a shift to result-oriented jurisprudence. If the words of the Constitution don't mean what they say and if contrary precedents are made to vanish into thin air, upon what principled basis does the Court intend to decide constitutional questions?

The irony of the Claremont decisions is that they are as bad as they are because the Court was not as bold as it could have been. Since the Court apparently felt compelled to break new ground and fashion a right to education, it would have been on firmer ground if it had simply acknowledged that it was recognizing a new substantive right not specifically enumerated in the Constitution. The New Hampshire Constitution does not purport to identify each and every substantive right which is retained by the people. For example, Article 2, Part I states that, "All men have certain natural,essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and in a word, of seeking and obtaining happiness." Relying upon this express provision of the Constitution, upon general references in the Constitution to due process of law and upon theories of natural law, the Court has on several occasions recognized the existence of unenumerated substantive rights, such as the right of self-defense, the right to live where one chooses and the right to travel. Consequently, if the right to an education is a "fundamental" right of every citizen - which the Claremont decisions claim is so - the Court would have been better off if it had discovered it among the unenumerated "natural, essential, and inherent" rights protected by Article 2, Part I, of the Constitution rather than by inventing the contrived explanations which were required to place it under Article 83, Part II.*5

By saying this, I don't mean to retract any of my disagreements with the Court's establishment of a constitutional right to an adequate education. Adequacy is still a political question and the creation of constitutional entitlements is still a mistake. Nevertheless, a principled decision is indefinitely more acceptable than an unprincipled one. And it is because the Claremont decisions are not only wrong, but because they are also unprincipled, that they are so dangerous.

A decade ago, Professor David Shapiro addressed these issues in an article entitled In Defense of Judicial Candor. Although he was writing more generally, his remarks almost seem to have been prepared with foreknowledge of our Court's Claremont decisions:

A requirement that judges give reasons for their decisions - grounds of decision that can be debated, attacked, and defended - serves a vital function in constraining the judiciary's exercise of power....In the absence of an obligation of candor, this constraint would be greatly diluted, since judges who regard themselves as free to distort or misstate the reasons for their actions can avoid the sanctions of criticism and condemnation that honest disclosure of their motivation may entail. In a sense, candor is the sine qua non of all other restraints on abuse of judicial power, for the limitations imposed by constitutions, statutes, and precedents count for little if judges feel free to believe one thing about them and to say another. Moreover, lack of candor seldom goes undetected for long, and its detection only serves to increase the level of cynicism about the nature of judging and of judges.

Whether the Claremont decisions signify such a change in the Court's own perception of its role as to warrant a modification of its power is a matter which at least deserves some discussion. Even though the judicial excesses which provoked Jefferson's concerns were far less than those which have become familiar to us in the 20th century, Jefferson was of the opinion that the judges of his era were abusing their power and that something needed to be done about it:

I do not charge the Judges with wilful and ill-intentioned error; but honest error must be arrested, where its toleration leads to public ruin. As, for the safety of society, we commit honest maniacs to Bedlam, so judges should be withdrawn from their bench, whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the Republic, which is the first and supreme law.

The remedies proposed by Jefferson to curb the power of an out-of-control Judiciary included a relaxation of the constraints upon judicial impeachment and a substitution of fixed terms for life tenure. Such measures would indeed materially curtail the power of the Court and they may well be more draconian than necessary. In our last discussion, I raised the possibility of subjecting the Court's power of judicial review to a veto by a combined, supermajority vote of the legislative and executive branches of government. Like Jefferson's suggestions, this proposal may also be to extraordinary to be worthy of serious consideration. However, what type of remedy is appropriate for the damage wrought by the Claremont decisions depends upon what they bode for the future. If they constitute only an aberration in our jurisprudence, their specific holdings may be simply reversed by a narrow constitutional amendment directed to them alone and life can go on as before. If, however, they signal a change in the Court's philosophy which is likely to lead New Hampshire down the path of a more generalized judicial control over our political institutions, more drastic remedies may indeed be required.

[footnote 1] Unfortunately, our own Court has begun to evidence a disconcerting preoccupation with public opinion. The Chief Justice's widely publicized diatribe against the critics of the Claremont decisions at the N.H. Bar Association's mid-winter meeting has already been mentioned. Soon thereafter, the Court created a new internal staff position for a Public Relations Director. In announcing the appointment of a person to fill the position, the Chief Justice stated that the appointee had "a keen awareness of the need for better communications with the public and the media concerning the work and role of the judicial branch." This is presumably code-speak for "We know we have a PR problem; the problem is that people are questioning our decisions." One can only wonder if the Court's next gambit will be to have the Justices themselves appearing as guests on radio and television talk shows or hosting press conferences to advocate for their decisions.

[footnote 2] The quoted form of this famous aphorism was not known to the Framers of our 18th century constitutions because it was not uttered until 1887, by Britain's Lord Acton. His words, however, were a paraphrase of an earlier speech which was indeed well-known to the Framers. This was the speech delivered by William Pitt to the House of Lords in 1770 in the notorious seditious libel trial of John Wilkes: "Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my lord, that where laws end, tyranny begins."

[footnote 3] The Court also made no mention of the case of Jesseman v. State of New Hampshire, which some of the same plaintiffs in the Claremont case had brought in 1982. Although this case was settled before it even reached the Supreme Court, it also challenged the constitutionality of funding public education. Like the claim belatedly raised by the school board in the Laconia case, the constitutional basis for the claim in the Jesseman case was equal protection of the laws.

[footnote 4] Note that the Evans case cannot be explained on the grounds that Article 83, Part II, only applies to grammar and secondary schools and, therefore, was irrelevant to a claim to a free college education. In cases involving Dartmouth College and the now defunct Mount Saint Mary College, the Court had specifically held that the reference in Article 83 to the Legislature's duty to cherish all "seminaries" referred to colleges. Indeed, in light of those cases, it will be fascinating to watch the Court bob and weave when it is faced with the inevitable claim by some University of New Hampshire student that the Evans case should be overruled and that the free and adequate education to which he is entitled under Article 83, Part II, of the Constitution and the Claremont decisions includes his college tuition.

[footnote 5] Note that Chief Justice Brock had already gone on record as recognizing an unenumerated right of parents to educate their children. In a concurring opinion which he and then Justice Charles Douglas wrote in 1982 case of Appeal of Peirce, a homeschooling case, the Chief Justice stated that the "fundamental rights of parents to the custody, care and nurture of their children" protected by the due process provisions of the State and Federal Constitutions meant that the State "does not have the unlimited power to require they be educated in a certain way at a certain place." The problem with this type of reasoning, however, is that it treats education as a traditional, negative right, i.e. something which sets limits upon the power of Government. To justify the Claremont decisions, the Court needed to fashion an affirmative right to education. Consistent, therefore, with the Court's general treatment of precedent in its Claremont opinions, there is no mention therein of the Peirce case. The Chief Justice's concurrence in Peirce, however, will ultimately come back to haunt the Court when the inevitable suit is brought by some parent that his child is entitled to an adequate, publicly-funded education at home.

1. Trustees of Dartmouth College v. Woodward (1817) - In order to induce a change in the educational policies of the trustees of Dartmouth College, the Legislature passed an act which increased the size of the College's board of trustees to a size sufficient to allow the new appointees to outvote the old trustees. The old trustees' sued, claiming that the Legislature's packing of the board was unconstitutional. The old trustees' counsel, Daniel Webster, argued that the College, as a trust, was subject to supervision only by the courts. Noting that educational institutions "should be fondly cherished by the best affections of the people" and that, in Article 83, Part II, of the Constitution, "the people have most emphatically enjoined [the Legislature] 'to cherish the interests of the literature and the sciences and all seminaries and public schools", the Court rejected Webster's argument and held that the Legislature was authorized to direct the governance of the College. In response to Webster's contention that the Court should never- the-less be able to second guess the wisdom of the actions of the Legislature, Chief Justice Richardson wrote as follows: "In forming my opinion in this case..., I have given no weight to any considerations of expediency. I think the legislature had a clear constitutional right to pass the laws in question." (Note - Mr. Webster was more successful in this case in the Supreme Court of the United States, which reversed the decision of our Court. However, the reversal was based on a provision of the Federal Constitution and, therefore, does nothing to detract from the precedential effect of our Court's interpretation of Article 83, Part II, of the New Hampshire Constitution.)
   
   
2. Farnum's Petition (1871) - Citizens of the Concord School District challenged the constitutionality of a statute passed by the Legislature which authorized any 10 or more voters of a school district to petition the county commissioners to determine the location of schoolhouses in the district. A group of voters in Concord had availed themselves of this procedure and convinced the Merrimack County Commissioners to site a school house in a location different from that determined by the local school committee. After specifically acknowledging that Article 83, Part II of the Constitution "enjoins the duty, in very general and comprehensive terms, on magistrates and legislators as one of paramount public importance", the Court held that the State had the unlimited power to discharge its said duty and that, "the inhabitants of a school district have no rights in the existence or in any of the corporate functions of the district, which can be regarded as vested rights, or which can be set up as beyond legislative control." As far as the Court's power to review the appropriateness of the statutory scheme set up by the Legislature was concerned, the Court observed that, "We are not...to inquire into the motives of the legislature, or to judge the wisdom of their acts." In response to the specific claim that the Legislature could not create a local school district committee and then deprive it of the power to determine the location of its own school houses, the Court stated that, "however convenient and beneficial to the people of the State, we are unable to see wherein the legislature transcended their constitutional power in repealing it anymore than they did in bringing it to existence."
   
   
3. In Re School-Law Manual (1885) - The Legislature passed a joint resolution authorizing the Governor and Council to appoint a commissioner to compile the public statutes of the State relating to schools and to "frame rules and forms of proceeding in towns under said statutes, which rules and forms, when approved by the supreme court or a majority of the judges thereof, shall be deemed valid and sufficient." Such a commissioner was appointed and he submitted a set of rules and forms to the Court for its approval. The Court, however declined to pass upon the manual on the grounds that to do so would be exercising a legislative function not within the scope of the Court's jurisdiction. Specifically quoting the Constitution's separation of powers provision, the Court noted that, "a prospective determination of the validity of these rules and forms, without notice and opportunity of hearing given to persons whose interests may be involved in the facts and the law of a particular case, would not be an exercise of judicial power".
   
   
4. State v. Jackson (1902) - This case involved the appeal of a person from a criminal conviction for having violated the State's compulsory education laws by keeping his sickly daughter our of school on account of perceived threat to her health. Although the Court ultimately reversed the conviction on the ground of self defense (the father's right to protect his daughter's health), the Court rejected the father's claim that compulsory education laws were unconstitutional. Noting that Article 83, Part II, of the constitution imposed a duty upon the Legislature to diffuse knowledge and education through the community, the Court held that, "it must be within the constitutional power of the legislature to enforce school attendance to that end." In response to the father's contention that the Court should determine whether or not the statute in question was reasonable, the Court stated that this "is a question over which the court has no control."
   
   
5. Fogg v. Board of Education of Littleton (1912) - A resident of Littleton who lived over 4 miles from the nearest school brought an action to compel the Littleton School District to transport his nine year old son to school at the District's expense. The District responded that an expenditure of funds to transport one isolated student would be "wholly out of proportion to the amount which could properly be extended per scholar in the district, thereby depriving many other scholars of the advantages they now have." In the course of discussing the responsibilities of the State and local school districts, the Court stated that the maintenance of a free public school system prescribed by Article 83, Part I, of the Constitution, "is not so much a right granted to pupils as a duty imposed upon them for the public good." Although the Court ultimately held that the District was required to provide transportation to the plaintiff's son, it did so on the basis of an existing statute which required local school districts to "give to all scholars of the District as nearly equal advantage as may be practicable".
   
   
6. Coleman v. School District of Rochester (1936) - Several married female teachers brought an action in the Strafford Superior Court challenging a regulation of the Rochester School District which "directs that no married woman shall be nominated or elected to any teaching position in the city". The Court ruled that, "Contrary to the plaintiffs' assertion, no constitutional issue of personal rights is involved...the legislature, if it saw fit, might enact that teachers should be elected by popular vote or subject to dismissal at pleasure. The scope of legislative authority in the premises is virtually untrammeled and unhampered. The constitution recognizing the subject of education as `one of paramount public importance,' merely enjoins that it be `cherished, regulated and controlled by the state.' (citing Farnum's Petition)...[T]he courts may not declare acts of the legislature void on the sole issue whether they are `wholesome and reasonable.' The legislature is to judge whether they are for `the benefit and welfare' of the state."
   
   
7. In re Davis (1974) - This is a case like State v. Jackson, in which parents were charged with failing to secure the attendance of their minor children in the public schools. Although the court ultimately found that the parents had been charged under the wrong statute and therefore could not be convicted, the Court noted that the State could legitimately require compulsory school attendance pursuant to its "duty of providing for the education of its citizens" imposed upon it by Article 83, Part II of the Constitution.
   
   
8. Opinion of the Justices (1978) - The House of Representatives applied to the Court for an advisory opinion concerning the constitutionality of a proposed act of the Legislature, which had been vetoed by the Governor and which purported to subject certain executive agencies to a so-called "sunset" provision by which the existence of all State agencies would automatically terminate in accordance with a prescribe time-schedule set forth in the act. Although the issue before the Court involved the distribution of powers between the legislative and executive branches, the Court embarked upon a general discussion of separation of powers doctrine. Noting that, "The three branches of government cannot be completely separated and in the nature of things there must be some overlapping", the Court undertook to enumerate the various provision of Part II of the Constitution in which some blending of the legislative executive and judicial powers was provided for: "Articles 5, 17, 33, 38, 40, 43, 44, 45, 49, 50, 52, 63, 67, 93, 94, 95." The Court did not include Article 83, Part II, in this list.
   

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