Frequently Asked Questions: CACR 12 / CACR 14

Question #1: Is it true that there is no local control in New Hampshire because NH is not a Home Rule state?

Home rule means New Hampshire’s cities and towns could assume all functions not previously allocated to the state. Currently, local cities and towns do not enjoy Home Rule and only have authority granted them by the Legislature.

However, the Bill of Rights of the New Hampshire Constitution, Article 6 does guarantee the political independence of the towns in the election of their public teachers.  This is the People’s inalienable right. 

When adopted in 1784, teachers were not puppets of the state, hired to implement a state curriculum or state assessments.  State law making curriculum requirements are encroachments of the local prerogative of the towns and cities as guaranteed under the NH Constitution.

Because of the limited authority of the People in their towns and cities without Home Rule, it is absolutely crucial to protect our existing rights.

CACR 12 / CACR 14 tramples this inalienable right of the People to local control over education and grants their authority over education to the State Legislature.  

Question #2:  How does CACR 12 / CACR 14 overturn the Claremont Decisions?

CACR 12/ CACR 14 does not overturn the Claremont Decision. It enshrines it.  It grants the State power over education and eliminates local control.

If the Court had used “strict scrutiny” in its original analysis, it would have realized that its decision was unconstitutional. An activist Court will never behave “reasonably,” even with the passage of CACR 12 / CACR 14.  It has already demonstrated its willingness to ignore the NH Constitution.  That will not change.  CACR 12/ CACR 14 gives the Court all the levers it needs to confirm its objectives.

The Court admonished bar members from speaking out against Claremont. Justice Brock claimed that “criticism [of the Court] is dangerous in a free society, for it will erode public respect for and confidence in the judicial system and the rule of law, which are the foundation of our society.”

The Court is willing to trample the People’s inalienable right of free speech as collateral damage in order to obtain its goal.

The old-guard Republican leadership is now uniting behind CACR 12 / CACR 14, urging the General Court to trample the People’s inalienable right to local control as collateral damage in its battle against the Supreme Court. This too is wrong.

Remember, the Supreme Court has no Executive power to enforce its will and no Legislative power to fund its agenda.  It needs the cooperation of the other two branches of government to do so.  Without such cooperation, the Court is powerless.  Until now, the Executive and Legislature have gone along with the Court.  They have been and are under no obligation to do so.  To say that “the Claremont decisions took primary and secondary education out of local control” is to concede that the Supreme Court can order around both the Executive and Legislature.  It is a bald statement that We the People are governed by a tyrannical oligarchy that our representatives lack the courage to oppose.  That too would not change with the passage of CACR 12 / CACR 14.

The goal of CACR 12 / CACR 14 is the same as the Court’s: to trample the inalienable right of the People to local control over education.

Question #3:  What effect does CACR 12 / CACR 14 have on local control?

If CACR 12 / CACR 14 is adopted, any local decision can be successfully challenged by the State, particularly when, not if, a Legislature and/or Governor bent on centralizing power is elected.

Again, the Legislature was never and is not now under any obligation to recognize the Court's authority over education. It chose to undertake that obligation. It can choose to reverse that undertaking.

With the current anti-Claremont majority in the Legislature, Claremont could be overturned tomorrow, had leadership the will to do so.  It plainly does not.

There is no getting around the fact that CACR 12 / CACR 14 vests the State government with full “discretion” over education.  CACR 12/ CACR 14 eliminates local control.

Question #4:  Does CACR 12 / CACR 14 enshrine the Claremont Decisions in the NH Constitution?

YES. CACR 12 / CACR 14 enshrines Claremont.  The Legislature will finally have full "discretion.” Local control will be obliterated. Power over education will be centralized at the State level.

Remember what happened in 1968 when the People supposedly amended Art. 6 Pt. 1 in an effort that was advertised as “remov[ing] obsolete sectarian references.” That is what the People were uniformly told was the intention.  However, the instructors of today's legal “experts” removed 157 words when they could have achieved their stated objective by removing 3 words.  Those excised 157 words included the explicit statement of the People’s inalienable “Exclusive Right” to local control of the education of their children.  That Constitutional guarantee was written to protect the People of New Hampshire from Acts of Uniformity like they faced in England in the 1550’s and like they are now facing in 2011 with CACR 12 / CACR 14.

CACR 12 / CACR 14 will be viewed as enabling or requiring the Legislature to fund education.  It will certainly be viewed that way by the Supreme Court, at which point we'll be right back to where we are now, except that the State government will have full power to enforce the Court's rulings where it now has no such constitutional authority.

Again, the Court never had and does not now have the authority to command the Executive or the Legislature.  The Legislature retains the right to fund education however it pleases, regardless of what the Court says.

Please protect the People’s inalienable rights.  It is far safer to empower the People than to empower the State.

Question #5:  Doesn’t CACR 12 / CACR 14 guarantee centralized control of education from the state level?

YES. The State will finally have the constitutional authority to do what the Claremont Court wished it to do, but for which is lacked a legitimate  constitutional argument. CACR 12 / CACR 14 grants the State full "discretion” to implement Claremont.

What part of this undivided "discretion” is a delegation of power to the towns and cities?  The answer is: none.  A future legislature may well decide not to delegate any of its centralized power to the towns and cities.  Once power is centralized, it will be a practical impossibility to reverse it.  Such is the nature of power.

Where is the protection for the People against an unfavorable Legislature?

It is safer to empower the People, not the State. Protect local control and avoid centralization of power at all costs.

Question #6: Who was involved in crafting CACR 12 / CACR 14?

This is an argument from authority.  The inclusion of legal "experts" in the crafting of CACR 12 / CACR 14 does not guarantee that the outcome of their collaboration will achieve their nominal ends.  Legal expertise certainly did not prevent the gutting of Article 6 in 1968, indeed it did the opposite.  Why should we believe that legal expertise will protect today what it failed to protect then?

It’s up to each and every Representative to use his or her own personal judgment to determine whether CACR 12 / CACR 14 will be good for the People of New Hampshire.

If adopted, the Supreme Court will continue to command the General Court to tax based upon CACR 12 / CACR 14 and then these same legal experts will claim that they tried but failed.  What then?

Question #7: Why not pursue an absolute purist Constitutional Amendment?

This is a straw man argument as well as an argument from expediency.  When proposing to amend the NH Constitution, which is the sacred document of the People, arguments based upon principle are needed, not expediency.

There is no purist Constitutional Amendment on the table.  A true “purist” amendment would indeed do something like repeal Article 83.  No one, no one is proposing that.  The most “extreme” proposed amendment, CACR 8 would restore the non-sectarian language of Article 6 to its pre-1968 guarantees. There is no prohibition in CACR 8 against state funding for education or against any strings the State might wish to attach to that funding.  Leadership has, however, seen fit to recommend that CACR 8 be retained in committee.   It thus reveals its true agenda, which is centralization in the State government of power over education.  To say that “we will not pass any amendment, ever” if CACR 12 / CACR 14 fails this year is disingenuous in the extreme.  At a minimum, there's always next year.

Question #8:  What happens if CACR 12 / CACR 14 fails?

This statement and the long list of hardships described by leadership is a classic example of the tactics of Fear, Uncertainly and Doubt. First, the carrot (the mirage of Legislative control over education without Court interference), then the stick (we’ll be plagued by financial ruin and you’ll be stuck with Claremont forever if you don’t roll over on CACR 12 / CACR 14).

The reality is that there’s no getting around the fact that “Eternal vigilance is the price of Liberty.”

If CACR 12 / CACR 14 fails, the People win.  The People will keep the local control defined in Article 6 and the Court will not be able to enforce Claremont, just as it cannot do so today without the full agreement of the Executive and Legislature.

Again,neither the Executive nor the Legislature is under any obligation whatsoever to comply with any attempt by the Supreme Court to make affirmative law.

At most, the Court has a case-by-case veto on the Executive and Legislature.  It has no power to make affirmative law, no power to enforce it when it tries, and no power to impose taxes to pay for it.

The legislation enabling the Claremont decision could be repealed by this Legislature tomorrow and the Court could do nothing about it.  The Court has no police force and no power to tax.

The threat from leadership to shut down anything to do with Claremont if CACR 12 / CACR 14 doesn’t pass is a scare tactic, pure and simple.  The truth is that the State will face Court involvement in education “in perpetuity” or until the Legislature has the courage to reject it.That courage has been lacking and will not magically appear just because CACR 12 / CACR 14 passes.

If CACR 12 / CACR 14 fails, so much the better.  In the process of “moving on … [to] balancing the budget without tax or fee increases,” perhaps the Legislature will consider repealing funding for the Claremont decision.  That would take true courage, and give control over education back to the towns and cities where it belongs.