TL;DR:
- A battle between the Executive and Judicial branches
- The State’s opening argument is misleading
- Totally incompatible with the Court’s claim
- It ignores our inalienable rights of conscience
- An individual personal “duty,” not a collective “duty”
- Education in NH was protected against State interference
The NH Attorney General has submitted a 125-page legal brief to defend the State of New Hampshire Executive branch’s position on overturning the NH Supreme Court’s Claremont decision and its progeny. It’s a battle between the Executive and Judicial branch for control over public education. It’s a Statist argument: it does not restore or protect local control or rights of conscience in any way, though the attorneys try hard to make their arguments look reasonable.
The NH AG argues that
“Bill of Rights, Part I, Article 6 provides in part:
As morality and piety, rightly grounded on high principles, will give the best and greatest security to government, and will lay, in the hearts of men, the strongest obligations to due subjection; and as the knowledge of these is most likely to be propagated through a society, therefore, the several parishes, bodies corporate, or religious societies shall at all times have the right of electing their own teachers, and of contracting with them for their support or maintenance, or both. …
“(emphasis added). This section, by reserving to the bodies corporate (i.e., the cities, towns, and school districts) the “right of electing their own teachers, and of contracting with them for their support or maintenance, or both,” reflects a controlling policy choice to keep control of education at a local level.” (John Rand v. State of New Hampshire, p.34)
The State’s brief continues to state that:
“Part II, Article 83 exists near the end of the Form of Government and provides in relevant part: Knowledge and learning, generally diffused through a community being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; 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, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; … .
(emphasis added). (Rand, p. 35)
The State’s opening argument is misleading. Art. 6 P1 and Art. 83 P2 were written in 1784, yet the AG compares a 1968 amended version of Art. 6 P1 to the 1784 original version of Art. 83 P2. That does not provide the proper context for interpreting its meaning.
Consider the highlighted sections below from the original Art. 6 P1 that were never mentioned. These sections annihilate both the Judicial and Executive branch’s arguments completely.
Original 1784 Article 6, P.1:
VI. As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection: and as the knowledge of these, is most likely to be propagated through a society by the institution of the public worship of the Deity, and of public instruction in morality and religion; therefore, to promote those important purposes,
the people of this state have a right to impower, and do hereby fully impower the legislature to authorize from time to time, the several towns, parishes, bodies-corporate, or religious societies within this state, to make adequate provision at their own expence, for the support and maintenance of public protestant teachers of piety, religion and morality:
Provided notwithstanding, That the several towns, parishes, bodies-corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. [Exclusive Rights clause]
And no portion of any one particular religious sect or denomination, shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect or denomination.
And every denomination of christians demeaning themselves quietly, and as good subjects of the state, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another, shall ever be established by law. And nothing herein shall be understood to affect any former contracts made for the support of the ministry; but all such contracts shall remain, and be in the same state as if this constitution had not been made.
In 1784 Art. 6 P1 required the local bodies corporate, towns and parishes to make “adequate provision at their own expence, for the support and maintenance of public… teachers.” Additionally, these bodies “shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance.” That was written to protect against State interference.
The authority designated to NH inhabitants in the original Art. 6 P1 is totally incompatible with the Court’s claim in its Claremont decision that created a State “duty” to control and/or fund “an adequate public education.” Both the Judiciary and the Executive branch misinterpret Art. 83 P2 and the term “cherish.” An honest comparison needs to be made between the original texts of both Art 6 P1 to Art 83 P2 to understand the original intent of “cherish” back in 1784.
You may argue that Art 6 P1 was gutted in 1968, removing: (1) the “exclusive right” clause, (2) the “at your own expense” clause, (3) the prohibition against forcing citizens to fund public instruction of “another persuasion” in violation of their inalienable rights of conscience, and (4) the empowerment of the legislature to authorize local bodies to collect taxes to make adequate provision for public instruction.
Yes, our rights in Art 6 P1 were gutted without any open public discussion or debate, as none can be found in the records of the 1964 Constitutional Convention or any of the state newspapers regarding these four critical issues prior to the 1968 ballot question being voted upon. You can try to find debates but it appears that none ever happened publicly.
The explicit constitutional authorization to assess and collect local education property taxes was removed without debate! There is no longer any constitutional authority to collect property taxes to fund public education.
The description in the state’s 1968 Voters Guide fell short by not explaining any of these four issues to be removed. Voters were told that they were removing “obsolete sectarian language.” Yes, four sectarian words were removed along with about 150 other words, which were far more critical. Voters could not give informed consent as the relevant information was withheld from them.
The State’s brief goes on to say:
“This [NH Supreme] Court believed in 1871 that the local school system extant since New Hampshire’s founding, delegating down as it must to towns and school districts, was met the duty Part II, Article 83 imposes. It further believed that the inhabitants of those school districts had no vested right in any of the corporate functions of the district that could be asserted in opposition to this legislative control.” (Rand, pg. 41)
This statement is profoundly false, as it ignores our inalienable rights of conscience and the prohibition against compelling inhabitants to fund teachers of “another persuasion.” 1871 is prior to the 1968 amendment; our rights were still clearly enumerated in Art 6 P1, yet trampled.
All education promotes values. Whose values? The State’s values or the local community’s values? Inalienable rights of conscience don’t disappear because the State decrees it to be so, because they are inalienable. Nor can voters consent to remove the “inalienable” rights of conscience of others (protected under Art. 4 and Art. 6 P1) even if they were fully informed. Inalienable rights adhere in the individual. No majority vote can terminate inalienable individual rights.
Gutting and ignoring Art. 6 P1 has been going on for a long, long time. The State’s brief goes on:
“In 1936, this Court considered the question of whether a local school board could declare individuals disqualified from serving as teachers despite the State Board of Education having determined them qualified.
“Coleman v. School District, 87 N.H. 465 (1936). In considering this question, this Court opined that the scope of the legislature’s authority to set rules for public education “is virtually untrammeled and unhampered” and noted that “[t]he constitution[,] recognizing the subject of education as one of paramount public importance,’ merely enjoins that it be ‘cherished, regulated and controlled by the State.” (Rand, 42).
The inhabitants of NH still had constitutional protection for their “exclusive right” of electing public teachers in 1936, yet again the Court openly trampled and hampered our rights.
“…Legislature, and not the judiciary, is the arbiter of the wisdom, fairness or reasonableness of the means chosen to accomplish” the public purpose of ensuring an adequate education for pupils in this state “provided they do not violate some constitutional provision”).” (Rand, pg. 42)
Inalienable rights of conscience should be always respected, as written in 1784, as well as respecting the “exclusive right” of local bodies corporate and towns over public education. These rights go hand in hand. One is useless without the other.
Moreover, Art. 83 P2 delegates an individual personal “duty of the legislators”, not a collective “duty of the legislature” as written into the MA State Constitution in 1780, to “cherish” public education. The NH founders were literate men who modeled our constitution after the MA constitution, but deliberately changed language with which they disagreed. Yet our Court copied the MA McDuffy decision in order to deliberately misinterpret “cherish” to their liking and usurp our rights!
Our NH founders feared Acts of Uniformity, which had been enacted in England. They worked hard to prevent State interference or indoctrination from occurring in NH, but almost immediately the State started abrogating our rights.
Education in NH was protected against State interference by designating it as an “exclusive right,” one that comports with our inalienable rights of conscience and is funded in our local bodies corporate “at our own expense.” The legislature’s duty to cherish education is an individual, not collective, duty. The State has no right or constitutional authority to fund or regulate public education in any way.
For more detail please read Stolen Rights – Electing and Funding Public Teachers and how to Restore Art. 6 P1 .
