This multi-part series is used with the permission of the original author,
State Representative Steven J. Winter (Merrimack County District 2).
State Representative Winter may be reached at: PO Box 1097, New London, NH 03257-1097.
He is currently serving on the House Education Committee.

"If once [the people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions." — Thomas Jefferson to Edward Carrington, 1787.

After settling into my first term in the legislature last spring, I began this weekly column for the express purpose of keeping my constituents "attentive to the public affairs". I have tried to be informative and instructive while keeping the style light. I’m told that the column has been a moderate success.

In last week’s column I said I would spend some time reviewing the issues surrounding the NH Supreme Court’s Claremont decisions. I believe the decisions were wrong and I want to explain why I believe so. It may take a few weeks to cover it all.

For those who are new to the area, Claremont I, the initial Claremont decision, was delivered by the court on December 30, 1993. It said that the state had an obligation, in fact a "duty", to provide a "constitutionally adequate education" to every educable child and "guarantee adequate funding". It went on to say that a free public education is, at the very least, "an important, substantive right".

This guaranteed right to an adequate education was derived from the following clause taken from Article 83 of Part II of the state constitution which was written in 1784: (Legislators and magistrates shall) "cherish the interest of literature and the sciences, and all seminaries and public schools".

Does it not seem strange that the founders, according to the court, intended that public education was a right which was to be satisfied and funded by the state and yet such was never the case during the lifetime of those founders, nor for 200 years after? Did it take 200 years for someone to discover the intent of the founders?

The constitution of New Hampshire is divided into two sections — Part I is the Bill of Rights and Part II is the Structure of Government. If the founders had meant for public education to be a "substantive right" to be funded by the state, why was this right not included in Part I, the Bill of Rights? Does it not seem strange that the founders, according to the court, did not understand the structure of the constitution they wrote?

In an earlier column, I said that, "we need to be able to get past the impediments which are constantly thrust at us by the courts." The major impediment is the issue of adequacy. Because it is nowhere mentioned in Article 83, the only article cited by the court, constitutional adequacy is unobtainable except by legislation.

But the court said it was up to the legislature to determine adequacy only "in the first instance". Unfortunately, that means that after decisions regarding adequacy are made by the legislature, they will then be judged by the court, which sets itself as the final arbiter of this legislative prerogative.