"I know of no safe depository of the ultimate powers of the society but the people themselves. If we think them not enlightened enough to exercise that control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion." — Thomas Jefferson

This column is the second in a series of columns devoted to an explanation of the New Hampshire Supreme Court’s Claremont decisions and their ramifications. The purpose is, as Jefferson says above, to "inform your discretion".

In last week’s column, we looked at the salient clause of Article 83 of Part II of this state’s constitution, on which the NH Supreme Court based its initial Claremont decision. That clause says, (Legislators and magistrates shall) "cherish the interest of literature and the sciences, and all seminaries and public schools".

We questioned how the court could derive from this clause a duty for the state to usurp the local education prerogatives in order to provide and fund education at the state level and why no one had ever noticed that obligation previously.

How do we know no one ever noticed it? Well, obviously, funding of education was not a state obligation for our first 200 years of existence. In addition, attempts have been made in the past to change that situation. It had been claimed by some over the years that, although the state had no mandate to fund education, it should.

At the Constitutional Convention of 1850, a measure was passed to change Article 83 to order the legislature to make provisions for the establishment and maintenance of free common schools at the public expense. The convention delegates obviously thought there was no such obligation in the constitution at that time. The Constitutional Amendment failed passage by the voters at the next regular election.

Closer to our time, there was an effort at the 1974 Constitutional Convention to change Article 83 to provide the maintenance and support of a complete system of public elementary and secondary schools. They also wanted to add a new Article 83-A to say that all legislation relating to education would have to be funded by the state. Finally, a new Article 40 for Part I (the Bill of Rights) would be added to provide a right for free access to the essential elements of education which would be state provided. All three of the proposals failed to pass the convention.

While the failure to accomplish a state funding provision in our constitution is significant, the more important point is that apparently everyone recognized that there was no such provision existing in the constitution as written — until it was incredibly "found" by the NH Supreme Court in 1993.

It is therefore astounding to me how anyone, even if convinced that the outcome of the Supreme Court’s decision was correct, could ignore the failure of previous historical attempts to change the constitution to make it say what the court "found" it said since 1784. The failure to take this history into account by both the court and its supporters is an omission which makes this decision by the NH Supreme Court fundamentally tainted and flawed.