The Amended Amendment Procedure

I do solemnly swear, that I will bear faith and true allegiance to the United States of America and the state of New Hampshire, and will do whatever their Supreme Courts tell me to do, even when that conflicts with their written constitutions.

 

 

Article 100 of the New Hampshire Constitution outlines a few different methods by which that document can be amended.  But with election season upon us, and with school funding being such a hot topic, it’s worth taking a look at a method that isn’t included in the document itself, using Article 83 as an example.

Here’s the text of Article 83:

[Art.] 83. [Encouragement of Literature, etc.; Control of Corporations, Monopolies, etc.] 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; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people: Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination. Free and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it. The size and functions of all corporations should be so limited and regulated as to prohibit fictitious capitalization and provision should be made for the supervision and government thereof. Therefore, all just power possessed by the state is hereby granted to the general court to enact laws to prevent the operations within the state of all persons and associations, and all trusts and corporations, foreign or domestic, and the officers thereof, who endeavor to raise the price of any article of commerce or to destroy free and fair competition in the trades and industries through combination, conspiracy, monopoly, or any other unfair means; to control and regulate the acts of all such persons, associations, corporations, trusts, and officials doing business within the state; to prevent fictitious capitalization; and to authorize civil and criminal proceedings in respect to all the wrongs herein declared against.

I know!  It reads kind of like something written by William Faulkner with a hangover.  Which is why it’s rare to come across someone who’s actually read it.  Here’s how Hemingway might have written it:

[Art.] 83. [Knowledge and learning; Virtues; Competition] People can’t remain free without widespread knowledge and learning.  So government must cherish seminaries and public schools, and other private and public institutions that promote knowledge and learning of all types.  But no taxes may be granted to religious schools.

People should have virtues like generosity, honesty, punctuality, sincerity, and sobriety.  So government should demonstrate those by example.

Free and fair competition in the trades and industries is an inherent and essential right of the people.  So government should protect the people against all monopolies and other arrangements that hinder it.

Corporations that grow too large can engage in fictitious capitalization.  So government should prevent that from occurring.

Now, you might not agree with this condensation of the original language.  If not, I encourage you to take a few moments to try doing it yourself and see what you come up with.

Whatever that is, it may differ in some details from what I came up with, but I think we’ll agree on a couple of things:

(1) Whatever ‘cherish’ means, it applies equally to seminaries and public schools.

(2) The people have an inherent and essential right to free and fair competition in the trades and industries, and the state has a responsibility to protect that right.

Now, note that — like other articles in the same document — this identifies an actual right to be protected:  the right to free and fair competition in the trades and industries.

And it identifies an actual responsibility of the state:  to protect the people from monopolies and conspiracies that hinder or destroy competition.

So, in ‘interpreting’ this article, what conclusions did the New Hampshire Supreme Court reach?  It replaced the actual right — to ‘free and fair competition’ — with a newly-invented right, to an ‘adequate public education’.

And it replaced the actual responsibility — to protect competition from monopolies — with a newly-invented responsibility, to set up a monopoly to hinder competition in education.

In other words, the Court amended Article 83 so that it is now something like this:

[Art.] 83. [Encouragement of Literature, etc.; Control of Corporations, Monopolies, etc.] 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 fund, operate, and regulate 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; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people: Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination. Free and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it other than government monopolies, for example a monopoly on education to carry out the State’s duty to provide a constitutionally adequate public education and to guarantee adequate funding. The size and functions of all corporations should be so limited and regulated as to prohibit fictitious capitalization and provision should be made for the supervision and government thereof. Therefore, all just power possessed by the state is hereby granted to the general court to enact laws to prevent the operations within the state of all persons and associations, and all trusts and corporations, foreign or domestic, and the officers thereof, who endeavor to raise the price of any article of commerce or to destroy free and fair competition in the trades and industries through combination, conspiracy, monopoly, or any other unfair means; to control and regulate the acts of all such persons, associations, corporations, trusts, and officials doing business within the state; to prevent fictitious capitalization; and to authorize civil and criminal proceedings in respect to all the wrongs herein declared against.

I say ‘something like this’, because there’s no way to know what it actually means except to go back before the Court and ask, on a case-by-case basis.

And this is the de facto procedure by which the Constitution is most often amended.  Unfortunately for the average citizen, the amendments don’t actually find their way into the text of the document.  They exist in a kind of aura around it, which is visible only to the Court.

This means that a person just picking up the written document would read Article 83, look around, and quickly see that what the article actually says is about 180 degrees away from what people are claiming that it ‘mandates’.

And if that person is careful with language, he would see that — apart from the use of proceeds from the lottery — the state constitution doesn’t mandate anything about education.  It’s the Court that is doing the mandating here.  And he would note that much of what passes for discussion around the topic of schools and school funding only makes sense if ‘constitution’ and ‘court’ are treated as exact synonyms.  Which is kind of like treating ‘baseball’ and ‘umpire’ as exact synonyms.

But people do treat them that way.  And this creates a critical problem in our political system.  We have lost sight of the difference between constitutions and courts, to the point where we treat the Court as a living, breathing incarnation of the Constitution.  Which is to say, we have given the Court the kind of power that normally belongs to kings and emperors — the ability to make up laws on the fly, without being subject to review or appeal.

Sure, we have a legislature.  And our representatives take their oath of office at the beginning of each term, promising ‘support the constitution’.  But if the Constitution and the Court are the same, then those representatives are promising to do whatever the Court tells them to do.  They work for the  Court, in much the same way that the Department of Education works for the Governor (who, in the same way, also works for the Court).

And so when we fight over the details of what may or may not be a ‘constitutionally adequate education’, or the details of how the state should fund its ‘constitutionally mandated responsibility to provide an education’, we are ignoring the more fundamental issue, which is that the Court has also effectively amended Part 2, Article 2:

[Art.] 2. [Legislature, How Constituted.] The Supreme Legislative Power, within this State, shall be vested in the Supreme Court Senate and House of Representatives, each of which shall have a negative on the other.

Which is kind of like worrying about how to fix a leaky window, while ignoring a cracked foundation that threatens to cause the whole house to collapse.

Confucius said that when words lose their meaning, people lose their freedom.  When the words ‘constitution’ and ‘court’ are treated as synonyms, we put our liberty and our property entirely in the hands of judges.  And the judges know this.  In fact, they count on it:

 

 

We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution.

United States Supreme Court Chief Justice Charles Evans Hughes

 

 

 

How’s that working out for us so far?

Here’s a hint:  Since the New Hampshire Supreme Court amended Article 83 via the Claremont decisions, we’re spending about $10,000 more per student, per year in our public schools, with absolutely no increases in student achievement.

If we keep going back to the Court to make school funding ‘more fair’, who knows what they’ll find next?  A constitutional right to adequate day care?  A state responsibility to tax incomes to pay for it?  Can we afford to find out?