Let us return to first principles: judicial review is the power of the Court to declare an act of the executive or the legislative branch unconstitutional. It is, therefore, characteristic of judicial review that it is a negative act. It is the power to say "no". This may be contrasted with the power to make laws confided in the legislative branch or the power to enforce laws confided in the executive branch, both of which are characterized by acts. In a sense, these constitute the power to say "yes".

In our previous discussions, we have noted the relationship between the recognition of affirmative rights and duties and the creation of entitlements. More specifically, we have observed that recognition of a right to an "adequate" education is tantamount to the establishment of an educational entitlement. We also know that the Legislature can grant rights to an education, that it can define educational adequacy, and that it can thereby create an entitlement. The question, then, is whether the Court's traditionally negative power of judicial review may be legitimately converted into an affirmative power in order to accomplish the same thing. In other words, does the fact that the Court has the power to veto an act of the Legislature on the grounds that it infringes some constitutionally protected right give the Court the authority to put forth its own scheme for developing and protecting that right? Or, to put the question in the context of the Claremont case, if the Court doesn't think that the Legislature sufficiently "cherishes" education, may the Court do the cherishing itself?

Ironically, the notion that a negative implies a positive played a very important role in our constitutional history. During the ratification debates over the federal Constitutional in 1787-9, one of the main arguments against including a bill of rights in the Constitution was that an enumeration of the people's rights would imply that Government had been delegated some authority to regulate those rights. Alexander Hamilton made just this point in The Federalist, No. 84:

Bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted, and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is not power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power, but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power... This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by in the indulgences of an injudicious zeal for bills of rights.

Suffice it to say that such contentions did not carry the day and that a bill of rights was added to the federal Constitution in 1791. This was presumably because most people were more persuaded by the arguments of those who, like Thomas Jefferson, believed that, "A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse; or rest on inference." On the other hand, the fears about how an enumeration of rights could be misinterpreted which were expressed by Hamilton and others were referred to by our own Chief Justice Doe in the 1882 case of Wooster v. Plymouth. in rejecting the claim that the reservation in Article 15, Part I of the New Hampshire Constitution of a citizen's right to trial by jury implied that the State itself could claim a jury trial, the Chief Justice stated the federal debates proved that, "a bill of rights, including a right of jury trial, is a reservation and not a grant."

It is true that the Constitution does not contain any express prohibition upon the Judiciary's creation of entitlements. In fact, as we have previously observed, the Constitution does not define the "judicial power", Article 72-a, Part II, simply lodges it in the "supreme court, a trial court of general jurisdiction known as the superior court and such lower courts as the legislature may establish". Consequently, even the Court's negative power, it power of judicial review, rests upon implication. To suggest, however, that we can further infer a judicial power to pile implication upon implication in a way that would render the arguments against the federal Bill of Rights pale by comparison.

It also is true that many of the rights guaranteed in our Constitution are in fact stated in the affirmative, rather than in the negative. In other words, rather than always saying to Government, "Thou shalt not", the Constitution sometimes says "Thou shall". For example, Article 22, Part I, states that "free speech and liberty of the press...ought...to be inviolably preserved"; Article 12, Part I, provides that, "every member of the community has a right to be protected by it"; and Article 14, Part I, proclaims that, "every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property or character." The problem with this observation is that it proves too much. For if each of these provisions, and others like them, were construed as a warrant for the judicial establishment of entitlements, the Constitution would be a menu of entitlements and the Legislature would be superfluous. The creation of an entitlement is a uniquely legislative act. As has been noted previously, entitlement rules determine who is in and who is out. These are policy decisions and they inevitably involve the weighing and trading of various societal interests which characterize law-making, as opposed to law-interpreting.

Prior to Claremont, all of this would be taken as a given. Indeed, one would not even have to respond to such metaphysical disputations; all one would have to do is point to the Constitutions separation of powers provisions and the argument would be over. If the task was judicial, it was reserved to the Judiciary; if it was legislative, it was reserved to the Legislature. As the President of the Constitutional Convention of 1781, George Atkinson, stated in his address forwarding to the people the first draft of what eventually became the Constitution of 1784, "The three powers of government...we have thought proper to keep as separate and distinct as possible, for...if they should all be united, the maker of the law would be the interpreter thereof, and might make it speak what language best pleased him to the total abolition of justice."

Prior to Claremont, even the Court had never overtly claimed that its assigned task of safeguarding the rights of citizens from infringement by the political branches gave it the power to pro-actively enhance and expand those rights through some type of legislative-like activity. On the contrary, the Court had generally acknowledged that matters of policy were within the exclusive domain of the politicians. For example, in the oft-cited 1896 case of State v. Griffin, the Court expressed the traditional view of the limits upon its own institutional competence:

It is not for the court to inquire into the wisdom of legislation. Whether the act "be wise, reasonable, or expedient, is a legislative and not a judicial question. The legislature is as capable of determining the question of the wisdom, reasonableness, and expediency of the statute, and of the necessity for its enactment, as the courts. The only inquiry is whether the statute conflicts with the constitution."...The question is one of constitutional power.

On the other hand, the Court has of late displayed a disturbing tendency to expand judicial review into areas once thought to be reserved to the discretion of the Legislature. Beginning in 1980 with the case of Carson v. Maurer, the Court has developed a more stringent standard of judicial review over the legislative and executive acts which affect certain interests which the Court has seen fit to designate as "important". Under the aegis of the people's rights to equal protection of the laws (Article 12, Part I), to "a certain remedy...for all injuries" (Article 14, Part I), and to due process of law (Article 15, Part I), the Court has imposed upon the political branches the requirement that laws negatively impacting such important rights be "reasonable, not arbitrary" [i.e., have a rational basis] and "rest upon some ground of difference having a fair and substantial relation to the object of the legislation."

Applying this test to various legislative classifications, the Court has struck down numerous State laws since 1980, including a comprehensive revision of the medical malpractice liability statutes, various statutes of limitations, workmen's compensation laws, damage caps, and sovereign immunity laws. In so doing, the Court has not only failed to articulate any principled basis upon which to determine which societal interests are "important" enough to warrant this added degree of juridical oversight, but it has also become much more aggressive in its willingness to exercise it power of constitutional veto. A good example of the Court's new attitude appears in the 1981 case of Park v. Rockwell International Corp. , where the Court down a workmen's compensation law which granted one type of remedy to the estates of deceased employees who left no surviving dependants, but a greater remedy to the estates of those employees who did have dependents: "[The statute] is not only contrary to sound public policy but also violates the equal protection provisions of our State constitution." Besides the fact that the Court's discernment of a public policy argument against this statute has always been somewhat obscure, the point is that the Court's own policy preferences were placed upon an equal footing with its views on the Constitution.

Nevertheless, prior to Claremont, the Court at least felt it necessary to pay regular homage to the traditional view that the proper role of a judge in constitutional matters was to find the law, not make the law. For example, Justice Batchelder (the retired Justice who sat by special designation in Claremont II) presumably spoke for the Court in the 1990 case of In re Certain Scholarship Funds when he stated that, "we believe that the appropriate source of values for our judgment is the constitution." And, on at least one occasion, the Court had even sought to distinguish itself from its more activist colleagues in other jurisdictions, "Despite other views elsewhere, we do not sit as a continuing constitutional convention". (Grinnell v. State, 1981).

Accordingly, to the extent that the Court had in the past been presented with the necessity of ruling upon the constitutionality of an act of the executive or legislative branches, the Court had in fact generally restrained itself from doing anything more than just that. For the most part, the Court had refrained from taking the extra step of suggesting to its sister branches alternative ways in which they might refashion an unconstitutional law to make it constitutional. more importantly for present purposed, the Court had generally refrained from venturing into the types of cases which involve what we have called "political questions", i.e., those cases which inevitably insinuate the Court into an affirmative, policy-making role.

This is not to say that the issue is as simple as whether or not the Court has ever engaged in an activity which could be characterized as legislative. As the Court has observed in numerous cases, "the separation of powers provided for in the State Constitution is not absolute, but rather permits an overlapping of powers among the branches in certain areas." In this regard, certain provisions of the Constitution do expressly authorize or even require one branch of government to exercise powers which could fairly be characterized as being more traditionally within the jurisdiction of another branch. For example, except for those whose appointment is otherwise specifically provided for in the Constitution, the Legislature is empowered to appoint "all civil officers within this state" (Article 5, Part II) - an executive function; the Senate is authorized to conduct impeachment trials (Articles 17 & 38, Part II) - a judicial function; the Governor and Council have the right to adjourn or prorogue the Legislature (Articles 43 & 50, Part II) - a legislative function; the Chief Justice of the Supreme Court, with the concurrence of the majority of the other justices, has the power to "make rules governing the administration of all courts in the state" (Article 73-a, Part II) - a legislative function; etc.

Another example of such overlapping of powers applicable specifically to the Judiciary concerns what the court calls its "inherent powers". These, in turn, consist of two kinds of powers. The first of these involves the power of every court to do those things which may be considered to be the essence of the judicial function and which distinguish a court from other institutions. The earliest example of this is the famous case of Merrill v. Sherburne, in which the Court held that the power to grant a new trial in a specific case was exclusively within the purview of the Judiciary and could not be superseded by the Legislature. Similarly, in Cloutier v. State Milk Control Board, the Court held that all courts in New Hampshire have the inherent power to determine issues of law properly presented by cases pending before them, a power which cannot be interfered with by the executive branch. Because these types of inherent powers, however, have to do with the essence of a court's adjudicatory function, they do not present questions of whether or not the Judiciary is engaging in legislative or executive functions.

On the other hand, there is a second category of inherent powers which clearly does implicate the Court in non-judicial activities. First and foremost, this category includes the power of the Supreme Court to exercise a general power of superintendence over the entire judicial system. Although the Court's authority in this area is now clearly authorized by Article 73-a, Part II, of the Constitution, that amendment was only passed in 1978. On a number of occasions prior to that time, the Court had already held that it had the inherent power to superintend the judicial system, which included not only the power to discipline the system participants on a case-by-case basis (In Re mack M. Mussman, 1972 - judges; Bryant's Case, 1851 - lawyers), but also the power to issue comprehensive rules for such purposes (In Re Unification of the New Hampshire Bar, 1968). Over the years, the Court has exercised its power in this regard by issuing codes of evidence, rules of trial procedure, rules for judicial conduct, and rules governing the practice of law, including the recent adoption of rules establishing a fund to reimburse clients for losses caused by the dishonest conduct of attorneys. Finally, the Court has stated that all New Hampshire judges have inherent powers to control their courtrooms - which includes power to issue orders regulating witness behavior (State v. LaFrance, 1983) and the power to punish violators of such orders with the sanction of contempt (Opinion of the Justices, 1933).

The fact that the concept of inherent powers allows the Court to claim a legislative-type authority for matters within its own special domain does not negate the doctrine of separation of powers or render it superfluous. Although artful explanations have been constructed by legal theorists to make the Judiciary's involvement in these types of activities consistent with the doctrine of separation of powers, it makes much more sense to simply accept the Court's domestic rule-making authority as an exception to the rule.[footnote 1] But it is the exception that proves the rule. The fact remains that the Constitution does have a specific separation of powers provision and, despite some indications by the Court that the provision is less applicable to it than to the other two branches of government, the doctrine does apply to the Judiciary as well. As the Court itself has said, "Separation of powers is an integral part of our governmental system of checks and balances: each branch of government acts as a check on the other, protecting the sovereignty and freedom of those governed by preventing the tyranny of any one branch of the government being supreme."

As we have previously discussed, the Court has occasionally applied the separation of powers doctrine to itself and, in most cases before its Claremont decisions, the Court has exercised an appropriate level of restraint. For example, in 1931, the Court issued an advisory opinion to the Senate that a proposed law granting the probate courts of the State the power to develop rules for and to administer a comprehensive system for the relief of paupers would be unconstitutional. Likewise, in 1885, the court declined to exercise the authority which a joint resolution of the Legislature purported to give it to review and pass upon the propriety of a manual of rules and forms for the operation of the State's public school system. In each of these cases, the Court held that the power which the Legislature purported to convey upon it would have inappropriately involved the Judiciary in functions reserved by the Constitution to another branch of government.

In many jurisdictions around the country, zoning cases have afforded courts the opportunity to engage in legislative-type functions. But not so in New Hampshire. We have already remarked upon the 1995 case of Caspersen v. Town of Lyme in which the Court declined to substitute its judgement for that of a municipality with respect to the appropriateness of building lot size requirements. More to the point is the 1991 case of Britton v. Town of Chester, where the Court sustained a trial court's finding that the Town of Chester had violated the State's enabling legislation by adopting regulations which excluded persons of low and moderate income. The Court, however, refused to remedy the situation by substituting a regulation of its own. Speaking again through Justice Batchelder, the Court observed that, "It is not...within the power of this court to act as a super zoning board. Zoning is properly a legislative function, and courts are prevented by the doctrine of separation of powers from invasion of this field."

Indeed, New Hampshire has been fortunate that its courts have generally stayed out of the business of running its political and administrative institutions. Unlike the courts of many other states and unlike some federal courts, our Supreme Court has not involved itself in running our prisons, our public hospitals, our mental institutions or - until Claremont - our schools. The closest that the Court has come to crossing over this line has been its expressed willingness to become involved in the reapportionment of voting districts. In 1964, in the case of Levitt v. Maynard, a resident of the Town of Hancock attempted to invoke the Court's jurisdiction to declare unconstitutional New Hampshire's statutes establishing the geographical division between the State's two Congressional districts. noting that the Legislature was about to convene and was expected to address the reapportionment issue, the Court declined to intervene at that time. Similarly, in the 1982 case of Monier v. Gallen, the Court was requested to get involved in the redistricting of the New Hampshire Senate. Again, the Court deferred to the legislative and executive branches in the hopes that they would resolve the issue (which they did). Although the Court claimed on both occasions that "we have jurisdiction to resolve reapportionment cases", it has never had the occasion to exercise its asserted power and to directly involve itself in the essentially political act of reapportionment. [footnote 2]

The Claremont case, therefore, stands alone. Is there any principled basis upon which to justify its unique status? Suffice it to say that nothing is forthcoming from the Court to justify it because the Court does not even acknowledge that the case constitutes a deviation from its previous jurisprudence. What, then, is so special about the Claremont case? Is it because education is singled out in the Constitution for special mention among the subjects consigned to the Legislature? Is it because it involves education and education is so important?

The answer to these rhetorical questions is clearly "no". As important as it is, education is certainly no more important than food, shelter or personal safety. And what about a clean environment, an efficient highway system, good public health, etc., etc.? Although one could argue that education is the sine qua non for a citizen's opportunity to obtain his/her fair share of these other social benefits, a full stomach, a roof over one's head and a safe environment would appear to be just as essential to one's opportunity to obtain a decent education.

Education, moreover, is not the only one of these social benefits which is expressly mentioned in the Constitution. For example, Article 2, Part I, states that, "All men have ... rights... [of] acquiring, possessing and protecting, property". Better yet, what about Article 12, Part I, which provides that, "Every member of the community has a right to be protected by it, in the enjoyment of his life, liberty and property"? Do these rights of protecting one's property and being protected by the community imply a grant to every citizen of the State of a right to an "adequate" police force? Even Article 83, Part II, from whence supposedly comes the right to an adequate education, also admonishes the legislators and magistrates "to countenance and inculcate the principles of...public and private charities". Does Article 83, Part II, give every citizen an constitutional right to a tax exemption for charitable gifts?

Suffice it to say that if one has the requisite motivation and a sufficient facility with the English language, one can enlist the aid of the New Hampshire Constitution in support of virtually any social welfare agenda that one desires to advance. This is proved in spades by the recent publication by Yale and Columbia Law School scholar Charles L. Black, Jr. of a book entitled A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED. Relying upon the "inalienable right" in the Declaration of Independence to "the pursuit of happiness", Professor Black embarks upon a jurisprudence excursion into fantasyland. After he somehow gets the words of the Declaration of Independence into the U.S. Constitution, he constructs a theory of rights and duties not unlike that of our Court in its Claremont decisions. By the time he finishes his exposition, he has divined in the Federal Constitution a duty upon the part of Government to provide every American with a "decent livelihood" and, correspondingly, an affirmative, judicially-enforceable "right to welfare". [footnote 3]

I suggest that the only feature about education which distinguishes it from other, equally worthy, social benefits is that the members of our Court are particularly interested in educational "reform" and are apparently enamored with their own views about how to accomplish it. And, of course, the advantage that the Court has over the rest of us who may have our own concerns about educational policy is that the Court is capable of bypassing the normal channels for social change - electing people who agree with us or amending the Constitution so that they must agree with us. Unfortunately, the Court has failed to heed the caution which George Washington left with us in his Farewell Address:

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 in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

If we should have learned any lesson from our own history, it is that the ends do not justify the means. Although the pet of today's Court may be education, the favorite of tomorrow's Court may be something else. As Oliver Wendell Holmes once said in response to the suggestion that the Federal Constitution had memorialized a theory of economics popular in his era: "The [Constitution] does not enact Mr. Herbert Spencer's Social Statics." Neither does the New Hampshire Constitution enact anyone's particular definition of an "adequate" education - including the one supplied by our Supreme Court.

The Constitution also does not grant the Court a monopoly on political wisdom or social conscience. Judges have no special competence in discerning good social policy, whether it be in the field of education or otherwise. As the Supreme court of the United States put it in the case of San Antonio School District v. Rodrigiez, which held that education is not an affirmative right under the Federal Constitution:

In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of "intractable economic, social, and even philosophical problems," The very complexity of the problems of financing and managing a statewide public school system suggests that "there will be more than one constitutionally permissible method of solving them," and that, within the limits of rationality, "the legislature's efforts to tackle the problems" should be entitled to respect.

In other words, judges don't know any more about education than anyone else does. And, contrary to suggestions of some historians such as Eugene Rostow that judges should be "teachers in a vital national seminar", judges are also not educators. The Constitution does not establish the Court as panel of philosopher-kings. Accordingly, the Court would do well to leave philosophy to the philosophers, education to the educators and legislation to the legislators. In the immortal words of Judge Learned Hand, "For myself, it would most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

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