I am the Executive Director of the National Heritage Center for Constitutional Studies and have been asked to explain as simply as I can why the changes to our election laws became the basis of my lawsuit against my government. In order to understand the conflict in my case, I believe the reader must first understand our form of government. The State of New Hampshire is a constitutional republic, not a democracy. The difference is critical to understanding the basis of my suit (N.H. Supreme Court case # 2023-0097).
First, the reader needs to understand that the Constitution of New Hampshire (Const. of N.H.) must be read in chronological order as each article builds upon the previous article. This order is by design and of importance, beginning with Part I, a Bill of Rights, and then Part II, a Form of Government created specifically to protect the Rights of the people.
In socialist democracies like Canada and England, people have surrendered their sovereignty to their parliaments to make laws that govern the people. Therefore, the people of those countries are no longer sovereign because they are now subjects of their governments. That is, they are now subject to whatever rules, laws, or taxes their parliaments wish to force upon them by a democratic majority (mob rule).
But in a constitutional republic, the people retain their sovereignty. The people, not the government, create and compose the laws of the land. Part II, the Form of Government, is a specific list of duties established by the inhabitants of the State for their elected officials to act on behalf of the inhabitants, but at the same time, the inhabitants have specifically limited and restricted government powers only to those expressly delegated by the people. This means the inhabitants have enumerated specific limitations on government-actor powers.
The first and last sentence of the Constitution of New Hampshire establishes the origins of all governmental power in New Hampshire:
Part I, article 1 states
“All government of right originates from the people, is founded in consent,” and the last sentence of the Constitution established that only the inhabitants can alter or amend the Const. of N.H.
Part II, article 99 states
“Provided that no alteration shall be made in this constitution before the same shall be laid before the towns and an unincorporated places, and approve by two thirds of the qualified voters present, and voting upon the question.”
Part I, Article 2 states
“All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property;”
The sovereignty of the people is defined by the following articles.
Part I, article 7 states
The people of this State have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled.
Part I, article 8 states
“All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.” June 2, 1784
The Const. of N.H. is a social compact.
It was first established by the qualified voters of New Hampshire. It defines “Inhabitants” as persons who possess political rights in order to protect their unalienable rights.
The Const. of N.H. has two parts.
Part I is a Bill of Rights which lists all the enumerated rights of the people; and Part II is the Form of Government, which is a list of specific powers that establish mandatory duties upon our agents and representatives and to protect the rights of the people in the performance of their constitutional duties.
Those persons chosen by the people swear an oath to protect those rights in the performance of their constitutional duties. The Bill of Rights Part I and the Form of Government Part II are some of the laws of the land established by the inhabitants of N.H. in 1784.
The right to vote and the definition of a qualified voter are defined by the Const. of N.H. Part I, article 11: …
“Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.”
And the last sentence of art. 11 states
“Every inhabitant of the state, having the proper qualifications, has equal right to be elected into office.”
The word inhabitant is the only word in the Const. of N.H. that has its own definition in (see Part II, article 30),
Inhabitant defined:
“And every person qualified as the constitution provides Shall be considered an inhabitant for the purpose of electing and being elected into any office or place within the state, in that town, parish and plantation where he dwelleth in hath his home.” (1784)
It’s often instructive to look to our neighbor to the south, the State of Massachusetts, as John Adams was the author of the Massachusetts Constitution in 1780, which was used by New Hampshire as a template on which the founders improved.
In 1780, John Adams wrote.
“And to remove all doubts concerning the meaning of the word “inhabitant,” in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within this State,”
So, what does all of this mean? It means that citizens of the State of New Hampshire qualified to vote as the Const. of N.H. provides are “inhabitants” of N.H. They cannot be resident aliens currently living in N.H. It is a big difference. A resident alien is someone born or naturalized in any of the other 49 states who has chosen to move to N.H. Such resident aliens are still citizens of their home state until they apply to and become citizens of N.H. Therefore, resident aliens must vote as an absentee from their home state.
The Const. of N.H. Part I, article 11 also provides for absentee voting only for qualified New Hampshire voters:
“The general court shall provide by law for voting by qualified voters who at the time of the biennial or state elections, or of the primary elections therefor, or of city elections, or of town elections by official ballot, are absent from the city or town of which they are inhabitants, or who by reason of physical disability are unable to vote in person,”
It is a matter of settled common law in N.H. that “The legislature has no power to authorize the exercise of the right of suffrage,” … The Bill of Rights Part I, article 1, article 11, article 12, article 15; and Part II, article 5, and article 99 all prohibit the legislature from enacting any laws which are not derived from constitutional authority.
It is not an accident that Part I, article 11 is followed by Part I, article 12, and that together they fit the three elements of a legal contract at law, namely offer, acceptance, and consideration. And this is the basis of the social compact under the Constitution of New Hampshire.
Technically, The Const. of N.H. is a trust indenture (a.k.a. a social compact), and Part I, article 12 (Taxation and Protection clause) are reciprocal and provide to the citizens, inhabitants, and taxpayers of the State legal standing to challenge any act of the state government that is contrary or repugnant to the Const. of N.H. Legal standing has been a highly contentious political barrier to most of the 2020 election lawsuits filed across America, as judges issued preliminary rulings to have thrown out (before hearing or denied filing) over five dozen court cases challenging the election process and election outcomes. Political judges ruled that all parties filing election challenges “lack standing” to sue. So, they rule there is no case, and the court challenges filed are frivolous. So, let’s look at the New Hampshire Constitution for provisions about who has standing and can sue to protect their voting rights in a court of law.
The first part of art. 12 is the offer to contract: “Every member of the community has a right to be protected by it, (Part II, the Form of Government), in the enjoyment of his life, liberty, and property;” …
The second part of article 12 is the acceptance (the binding) of the offer to contract: “he is therefore bound to contribute his share in the expense of such protection, and to yield his personal service when necessary.”
The third part is the consideration we, the people, receive from our government by paying our fair share of the expense of such protection (taxes).
The first reciprocal benefit (consideration) we, the people, receive from Part I, article 12, is the guarantee that only the taxing authority established by the people in the Constitution of N.H. Part I, article 28, and Part II, Articles 5 & 6 may be enacted by the legislature because Part I, Article 12 prohibits the General Court from establishing new taxes not approved of by the inhabitants. It reads:
“But no part of a man’s property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people.”
The second reciprocal benefit (consideration) guaranteed by Part I, article 12, in aforesaid sentence, is also part of the protection the inhabitants receive in exchange for paying their fair share of the expense (taxes) is the fact that the legislature’s taxing power can only be altered or amended by the consent of the inhabitants detailed in Part I, art. 1, Part II, art. 99.
The third reciprocal benefit (consideration) guaranteed by Part I, article 12, is the prohibition upon the legislature from enacting any laws, not founded in the Constitution of the people established by its inhabitants in the Constitution of New Hampshire:
“Nor are the inhabitants of this State controllable by any other laws than those to which they, or their representative body, have given their consent.”
All six of the complaints in my lawsuit brief are allegations regarding the legislature’s bad faith abuse of power, by the exercise of un-delegated powers using corrupted state actors who have exceeded their authority.
I want to add also the Opinion of the NH Supreme Court in 1818, a case holding which still stands today. It is a court opinion that upholds and reinforces my arguments about the mandatory limits on state actors imposed by the State Constitution. It is binding precedent in NH courts today. The language is magnificent and talks about the essential character of duty and sound social principles followed according to the laws of the land.
“From these, and similar circumstances, therefore, it has happened, that questions of this nature have not always been examined with that coolness, and patience, which their importance deserved; and that since the adoption of our constitutions, courts of justice, as well as legislative bodies, have furnished [201] some complaints, that their jurisdiction has been violated, when those complaints were not founded upon sound principles or respectable precedents. Conscious of the force of these considerations, we have in the present cause, experienced considerable embarrassment: but duty has compelled us to act, and it hardly need be repeated, that we have attempted to divest ourselves of every feeling, except an earnest desire to perform what duty dictated.” It must be admitted that courts ought to decide, according “to the laws of the land,” all cases, which are submitted to their examination. To do this, however, we must examine those laws. (2) Federalist, No. 78; [Dash v. Van Kleeck,] 7 Johns. 494 [, 5 Am. Dec. 291]; 3 Cook 7; 6 Bac. Stat.H. The constitution is one of them, and “is in fact, and must be regarded by the judges as a fundamental law.” (3) Federalist, No. 78. It was created by the people, who in our republics, are “the supreme power,” (4) Bill of Rights, art. 8, and, it being the expression of their will, their agents, as are all the branches of government, (5) Bill of Rights, art. 8, can perform no act which, if contrary to that will, should be deemed lawful. To deny this, would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of power may do, ‘not only what their powers do not authorize, but what they forbid.’ Their oaths of office too, prohibit, and the constitution itself, in express terms, prohibits the legislature from making “laws repugnant or contrary to the constitution.” If then there should happen to be an irreconcilable variance between the constitution and a statute, that which has the superior obligation and validity ought of course to be preferred: in other words,” “the intention of the people ought to be preferred to the intention of their agents.” [55] “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes, that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges [202] ought to be governed by the latter, rather than the former. They ought to regulate their decision by the fundamental laws, rather than by those, which are not fundamental. Our Confidence, also, in the liberality of the legislature is such, that when, through inadvertence of mistake, they passed an unauthorized act, we believe that, should the unpleasant task of adjudging it void devolve upon us, they would think the task is performed only from a conviction that the act is in the clearest manner unconstitutional, and the right and duty so to pronounce it are both unquestionable… Merrill v Sherburne 1 N.H. 199 (1818).
