Article 83

In November 2023, Rockingham County Superior Court Judge David Ruoff ruled that New Hampshire's education adequacy funding is unconstitutionally low, in a case filed by the Contoocook Valley School District. The case is just the latest in a string of school funding lawsuits spanning over 30 years.

In 1991 the Claremont School District sued the State, challenging the constitutionality of the New Hampshire allocation of school funding. That case was eventually appealed to the NH Supreme Court, which ruled in 1993 that Article 83 of the New Hampshire constitution imposes a duty on the State to provide free public education. Below is the relevant portion of Article 83:

... 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 ...

This is the only place in the New Hampshire constitution that's been interpreted to imply a positive right. In order for libertarians to implement the classical liberal government we want, we'll need to amend Article 83 in some way.

An Impossible Task

The Claremont decision required the legislature to do three things: define what is a constitutionally adequate education, determine the cost of that education, and implement legislation to fund that education. The fact that the issue is still unresolved after 30 years leads me to believe the task is impossible. Over and over, the legislature has made a good faith effort to comply, only to have the judiciary rule that the new legislation is unconstitutional.

Even in the years 2007 through 2010 when Democrats had a trifecta, they couldn't find a satisfactory solution. For example, SB539 in 2008 added a provision in RSA 198:41(III)(a) that was deemed unconstitutional in the 2016 ruling from a case filed by the Dover School District.

It would be an interesting exercise to have the NH Supreme Court review the laws that were in effect each year, starting with 1784 and continuing through 1992, to determine in which years the State met its constitutional obligation, and in which years it didn't. I'm truly curious whether the State has ever met its obligation in their view.

For example, in 1789 the legislature passed a law entitled An Act for the Better Regulation of Schools within this State; and for Repealing the Laws Now In Force Respecting Them. In his paper What Did They Mean By "Cherish?", Doug Hall emphasizes that this law demonstrates the intent of the founders in regard to schools and their funding. So it's instructive to see how this law managed to avoid defining a constitutionally adequate education.

The 1789 law required each town to raise money for its schools via a separate component of its property tax. The amount of this separate component was set at the rate of five pounds for every twenty shillings of their proportion for public taxes. Since twenty shillings = one pound, this meant the education property tax rate was exactly five times the state government property tax rate.

In effect, education in 1789 was funded by a statewide property tax, except that funding was distributed to towns in proportion to taxable property values. (In reality, the money never left the town.) Was this constitutionally adequate? I imagine today's NH Supreme Court would say yes only if the cost of each town's schools was in proportion to its taxable property values. But surely even in 1789, there were some property-rich towns and some property-poor towns. In other words, school funding in 1789 had the same inherent deficiency it has today.

Amending the Constitution

Once enough libertarians have moved to New Hampshire, we'll want to amend the constitution so that education is no longer classified as a positive right. Republicans might agree to work with us on this, but if not, we'll need a supermajority of libertarians.

What might this amendment look like? CACR12 from 2012 tried to amend article 5 to say that in fulfillment of the provisions with respect to education set forth in Part II, Article 83, the legislature shall have full power and authority and the responsibility to define reasonable standards for elementary and secondary public education .... But I'd prefer to amend article 83 itself. CACR39 from 2000 tried that approach, but all it would have done was add a second paragraph spelling out what cherish means.

For me, the problematic word is duty rather than cherish. I would replace the duty with a goal, so that the relevant portion would read as follows:

I. ... it shall be a goal 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 ...

I would then add a second paragraph as follows:

II. Nothing in paragraph I of this article shall be construed to imply a duty or obligation of legislators and magistrates to provide an adequate education. Any funding of public education is at the discretion of the legislature.

In arguing for this amendment, we wouldn't be denying that the founders intended education as a positive right. Instead we'd be saying the population of New Hampshire has changed, becoming more libertarian through concentration, and we now want to wind down positive rights including the one that was previously in Article 83.

I still want to grandfather current residents who are not libertarian into the education funding they have now. And I'm open to the idea of incorporating this grandfathering into the CACR. But that would make the amendment quite a bit more complicated, so I'll leave that discussion for another day.