CACR 45 nullifies Article 6 of the Bill of Rights, which guarantees local control of education.
The current situation has been a long time coming. In 1966 the Supreme and Superior Courts were created by Article 72-a as constitutional courts, where before they had existed at the pleasure of the people's representatives. Also in 1966, Article 41 was modified with language that never appeared on the ballot, in clear violation of the requirements of what is now Article 100. In 1968 massive changes to Article 6 were slipped in under the guise of "eliminating sectarian references." Lastly, in 1978, Article 73-a was inserted with language that also never appeared on the ballot. The cumulative effect has been to water down the original guarantee of the towns' political independence with respect to education, as well as to insulate the judiciary from oversight by the executive and the legislature. The Supreme Court took full advantage of these sleights of hand when they handed down their flatly unconstitutional Claremont decisions. And now we have before us CACR 45, which grants the State government absolute control over the exercise of a so-called "fundamental right to an education."
Freedom of religion and the corresponding necessity of local authority over education are the principles upon which this state was founded. For 184 years, Article 6 stated that the towns "shall, AT ALL TIMES have the EXCLUSIVE RIGHT of electing their own public teachers, and of contracting with them for their support and maintenance." "Adequate provision," meaning adequate in each town's collective opinion, was to be made "at the [town's] own expense," not the State government's or anyone else's.
In 1968 this 280-word article was cut down to 134 words. The ballot explanation was "the removal of sectarian references." Oddly enough, the only existing sectarian reference was a single use of the word "protestant." What about the other 145 words? Presumably, they were of no importance whatsoever. Nary a mention on the ballot of the political guarantees being thrown out with them.
The details of the history and interpretation of Article 6 can be found in the 1868 case of Hale vs. Everett. This decision, which along with others that expose the lie of the Claremont decisions, has been conveniently "overlooked" by the Court. No mention was ever given by the Court as to its contradictory positions.
The Justices undoubtedly feel much more comfortable acting the way they do today than they would have prior to 1966. At that time Article 41, nominally amended to specify more precisely the power of the executive over its own agents, was modified such that the Article 73 executive power to dismiss judicial officials for cause was effectively neutralized. Since 1978 the Justices have the power to make rules with the force of law in their courts, effectively removing all executive and legislative control over what goes on there. The Court could, for example, alter the rules of evidence, or even hand select juries to suit their pleasure. All this without any vote of the people on the enabling language.
So now we have the Senate proposing to save us from the ravages of this activist Court by taking unto themselves our exclusive right to define and fund education. Sure, the Court's out of control, hijacking the plain language of the constitution, fabricating fundamental rights out of thin air, contradicting their own previous rulings without so much as an explanation, and nullifying separation of powers by demanding that the legislature "adequately" funds education. But is this any reason to hand the power the Court's attempting to grab over to the legislature?
If education is suddenly a fundamental right, then clearly the legislature has no authority to define or curtail such a right at its pleasure. Fundamental rights are different from natural rights. They are legal constructs of the Court. From the sixth edition of Black's Law dictionary published in 1990:
Fundamental rights are "those rights which have their source, and are explicitly or implicitly guaranteed, in the Federal Constitution."
CACR 45 will not resolve the litigation generated by an activist Court. Each and every determination made by the legislature may be challenged in both state and federal courts by anyone who feels that they have not received an "adequate" education.
As hard as this legislature has tried, it has been unable to resolve the crisis created by the Claremont decision. This is understandable. It was not elected to resolve this problem. Any solution it comes up with at this point will most likely be unsatisfactory.
The people need a greater voice in this important decision. They need a petition initiative to place their own ideas on the ballot, as guaranteed by Article 32 and ignored by the legislature. They need to be asked whether or not to hold a constitutional convention to examine these questions further.
Do not throttle the people by desperately trying to devise a single constitutional amendment for the November ballot. If the people find it unsatisfactory, they must have alternatives available to them.
Please vote this amendment inexpedient to legislate. Support local control. Support the right of the people to determine and control the education of their children within the towns.
August 18, 1998