I was in the audience last night at Richards School in Newport for Andru Volinksy’s dog and pony show on school funding in New Hampshire.
I got the chance to ask a question, which was, roughly: Is there any interpretation that the Supreme Court could come up with, that is so outlandish, so contrary to common English usage — like deciding that from now on, ‘green’ actually means ‘blue’, or that in Article 19, the word ‘all’ now means ‘some’ — that the legislature would be justified in saying, ‘No, we’re not going to listen to you’?
His answer: ‘That was settled in the 1700s by John Marshall.’
Now, that’s a very lawyerly answer, and a very elitist one. On the one hand, he’s admitting that the answer to the question is: No, there is nothing that the Court could say, that the legislature wouldn’t be compelled to swallow. But on the other, he’s saying it in such a way that, unless you’re familiar with the case Marbury v. Madison (1803), you won’t actually know what his answer is.
To elaborate a little on that answer: He’s saying that the question of whether the Court can do whatever it wants may be answered by the Court itself… which is like saying that the question of whether a defendant is guilty of a crime may be answered by the defendant himself… or like saying that the question of whether the police have misbehaved may be answered by the police themselves… or like saying that the question of whether a corporation has been negligent may be answered by the corporation itself… and so on.
There are a couple of phrases that can be used to describe this answer. The first is ‘absurd on its face’. The second is ‘nearly universally accepted’.
Here’s why that’s a problem. It’s clear that Volinsky’s goal is the creation of a state income tax, which could then be used to align school funding with his personal notions of fairness. When I mentioned this to one state representative after the meeting, he said it couldn’t happen, because you’d need more than 200 votes in the House, and a majority in the Senate, to make it happen.
But he’s wrong. You only need a majority — just 3 votes out of 5 — on the Supreme Court. For example, the Court could find that Article 12 not just allows, but requires, a tax on incomes… and give the legislature 18 months or so to come up with one.
Before dismissing that as ridiculous, consider that it’s exactly what happened in the Claremont cases. The Court looked at a clause of the state constitution forbidding the state from funding, regulating, or operating public schools (because they can’t do any of those things for seminaries). This clause is embedded in an article giving the state the job of protecting its citizens from monopolies. And yet, the Court found — with a little help from Volinsky himself — that somehow, this constitution requires the state to set up a monopoly to fund, regulate, and operate public schools.
In order to do this, the Court needed to redefine (in the context of that article) the normal English construction A and B to mean not A but B.
And when it was pointed out that the Court’s decision created an unfunded mandate, in violation of Article 28-a, the Court chose to simply ignore that by creating a ‘grandfathering’ exemption. Which is to say, it asserted that the best way to ensure equal protection of the law was to institute unequal protection of the law.
And the legislature choked it all down. Just as the Court — and Volinsky — knew it would. Because it’s ‘settled’ that the Court can do anything it pleases. What Marbury says is that the Court doesn’t interpret the constitution, but rather, that the court is the constitution.
State representative John Valera likes to stand at the back of the House and yell: ‘Guard your liberty and property; the legislature is in session!’ It’s funny because it’s true. But it’s even more true when the Court is in session. At least, until the legislature manages to grow a spine.