Establishing Constitutional Intent

In 1989 a lawsuit was filed against the Wisconsin Governor et al. (148 Wis. 2d 469; 436 N.W.2d 568) charging that State funding of education was unconstitutional.

The plaintiffs claimed that school finance system was unconstitutional for the reason that it failed to meet the requirement of Art X, sec. 3 of the Wisconsin Constitution that "[t]he legislature shall provide by law for the establishment of district school, which shall be nearly UNIFORM AS PRACTICABLE. . . " Second, that the school finance system was unconstitutional because it violates the EQUAL PROTECTION PROVISION of Art. I, sec. 1 of the Wisconsin Constitution.

In that decision the WI Court explained:

"The court will consider the following in a question of constitutional interpretation:

(1) The plain meaning of the words in CONTEXT used;

(2) The historical analysis of the constitutional debates and of what practices were in existence [at the time of the enactment of the constitution], which the court may reasonably presume were also known to the framers of the...constitution...;

(3) The earliest interpretation of this section [of the constitution] by the legislature as manifested in the first law passed following the adoption of the constitution."

1. In Claremont I the NH Court: failed to use the plain meaning of the word. A "duty...to cherish" does not mean a duty to "define" and "fund" education.

Nor did the Court consider context ignoring difference of subjects of "cherish" ("legislators" vs. "legislatures") in the NH versus MA Constitution when copying the MA Court's decision in McDuffy(1993).

Had the NH Court considered the context it might not have been so eager to imitate the MA Court. The NH constitution speaks of an individual responsibility of the "legislators" to "cherish" education, not a corporate responsibility of the "legislatures" or body politic as in the MA constitution. A corporate determination of the legislature to define and fund education is inappropriate if taken in context. While it may be possible for the legislature to fund education from the public treasury, it is certainly impossible for individual legislators to fund education from their own estates.

The NH Court failed to consider context by ignoring the direct object of "cherish." The Court opined that the State has a duty to define and fund "public schools" but not the other half of the compound direct object, "all seminaries," which preceded it. To be consistent the Court should have mandated a right to an adequate seminary (college) education for every educable child in NH. Clearly this cost would be burdensome for taxpayers.

Art. 83 Encouragement of Literature...] ...it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools,...

2. The deliberations of the constitutional convention were lost in both NH and MA.

3. The NH Court made no attempt to consider the practices at the time of the adoption of the 1784 NH Constitution, nor the earliest statutes enacted after adoption.

The NH Court discussed the early laws of the Massachusetts Bay Colony, the NH Provincial laws, which preceded the Constitution, and the admonishments of the NH Governors with respect to education prior to and after the adoption of the Constitution. No where does the NH Court discuss the pertinent laws of the First Constitutional period after 1784.

Shortly after the adoption of the Constitution, the legislature repealed all the Provincial laws explicitly stating that they did not serve the ends towards which they were drafted. In 1791, An Act for Regulating Towns and the Choice of Town Officers was enacted. The town was to determine by local vote as they "may agreeably to the Constitution grant sum or sums of money as they shall judge necessary for the settlement maintenance and support of the ministry, schools, meeting houses, school houses the maintenance of the poor..." These laws are consistent with Art. 6, Pt. I of the Constitution which authorizes the towns, parishes and bodies corporate (which includes school districts) to make provision for public instruction.

Public schools were locally supported as constitutionally required by the towns and parishes "at their own expense" (Art. 6, Pt. I, NH Const.). The constitutional guarantee of the "political independence of towns" was well understood in the years after the adoption of the NH Constitution.

And the constitution guarantees the political independence of towns no more explicitly or fully than it guarantees the ecclesiastical independence of parishes. This illustration is peculiarly satisfactory, because the towns of New Hampshire were parishes nearly two hundred years, and the independence of the parochial capacity, as it was in provincial custom and law, and as delineated in the constitution of the state, is the same, whether exercised by "towns, parishes, bodies corporate, or religious societies." Hale v. Everett(1868) 53 NH 9, pg. 250

There is no evidence at all to substantiate the NH Court's claim that the State had a duty to define and fund education.

By the Wisconsin Court's standards, the NH Court failed to cover the requisite ground when making a constitutional interpretation.

The WI Court understood the value of the concept of "separation of powers." They explained that it was not the Court's jurisdiction to determine whether the funding was "uniform as practical." It was left to the WI Legislature to determine.

The NH Court usurped the Legislature's jurisdiction, ignoring "separation of powers," to conclude that funding of education was unconstitutional.

The WI Court concluded that the plain meaning of sec. 3, Art X, does not mandate absolute uniformity of an equal opportunity for education in all school districts of the state. While it may be "socially desirable," it was not for the court to decide.

The NH Court concluded it should determine the "adequacy" of both education and its funding. The 200 year old constitutionally required funding mechanism was declared "unconstitutional by the NH Court.

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