Chuck Douglas: In NH, the attack of the constitutional illiterates
THE RECENT CALL for removal of 189 state representatives by Tea Party leader Jack Kimball and three Republican state legislators is an example of constitutional illiteracy at its best.
Because Kimball and Reps. Al Baldasaro, John Hikel and Lenette Peterson disagree with the legislators who voted in favor of House Bill 135, which would repeal the state's "stand your ground"law, the 189 accused legislators are apparently breaching the public trust of the people of New Hampshire. Kimball and Hikel have filed petitions or criminal complaints with the U.S. Attorney for New Hampshire and with two county sheriffs claiming that these legislators are violating their oath of office and should be removed from office.
Because Kimball and many of his acolytes have no understanding of the New Hampshire Constitution, I thought it was worth talking about why this type of childishness is a waste of everyone's time.
First of all, Part I, Article 38 of the constitution does not create a cause of action in court or a criminal violation if a legislator were not to be "moderate, temperate, industrious and frugal," among other things. The language of Article 38 is what is called "precatory language" and is not meant to be enforced by the unelected third branch of government.
In fact, those in the Tea Party movement are correct when they say that the courts overstepped their bounds when the Claremont decision came down several years ago. What I do not understand is why they would want to compound judicial overreaching by now asking the courts to become involved in deciding a criminal case alleging legislators have violated the "fundamental principles" of the state constitution.
Having served in all three branches of government, I have strong aversion to an unelected branch sitting in judgment on whether people in the legislative branch have violated the standardless "fundamental principles of the Constitution." Sometimes laws are held to be unconstitutional by the courts as part of a litigated case. But that is a far cry from saying that sitting legislators will somehow be subject to judicial involvement in how they vote on the floor of the House.
As with many issues, you win some and you lose some. In fact, the bill to repeal the "stand your ground" law probably will not pass in the Senate anyway, making this whole effort a further waste of time.
Crimes are prosecuted in a court. Does the Tea Party really think that unelected judges should be deciding when legislators, on an individual basis, violate the constitution? That is such a huge power grab to turn over to the judiciary that I would think Kimball and his friends would want to rethink that mission very quickly.
Yes, the House has the power to control its membership under certain circumstances, but not under the circumstances in which one group of representatives merely disagrees with how another group voted on a particular bill. If it were otherwise, every losing vote would result in some kind of a constitutional petition to throw out everyone who voted the other way.
That is not the way a republican system works in the Anglo-American tradition.
Our New Hampshire Constitution has served us well for the 200 years before Jack Kimball and the three legislators misread it.
It is a shame that we do not have a GED program for constitutional literacy. Pulling bits and pieces out of the constitution to create criminal charges reflects gross constitutional illiteracy, not an attempt at good government. It is this type of craziness that cost 120 Republican seats in the House last year.
It is also embarrassing to my party and to the state.
Chuck Douglas, a Republican, is an attorney in Concord. He has served as a state superior and Supreme Court justice, legal counsel to the governor, and a member of Congress from New Hampshire.