Cook on Concord: Civics 101 reminders

As the nation marks its 250th year, our state and federal constitutions are being tested

Brad Cook

 The constitutions of the United States and New Hampshire have been in the news a lot recently, with questions about the president’s war powers and ability to impose tariffs unilaterally, and state issues about school funding and the power of the Executive Council.

All of this reminds us of the importance of the respective constitutions as the basic law of the country and state, and the need for executive action to be consistent with the power granted, and the need for legislative enactments to conform to constitutional limits.

The history of the enactment of both the U.S. and New Hampshire constitutions is especially relevant in this, the 250th anniversary year of U.S. independence.

The year the U.S. Constitution was adopted was not 1776. It was the year of the Declaration of Independence and, interestingly, the year of the adoption of constitutions in several of the original colonies, including New Hampshire, arguably the first. These colonial constitutions were inspired by some of the same writings as the Declaration, notably Thomas Paine’s “Common Sense,” and other works urging personal and collective freedom and self-government.

After winning independence, the colonies adopted the Articles of Confederation, an arrangement that failed to cement them into a functioning nation. It nearly split them apart until there was a common recognition that something had to be done, the congress convened in Philadelphia, and the present constitution was proposed and adopted in the late 1780s. The words, “We the people of the United States, desiring to form a more perfect union…” was not just a wish, it was a recognition that the Articles had not created a working union.

The state constitutions adopted prior to the adoption of the federal, created systems similar to the one finally adopted for the nation, in most cases, with two houses of the Legislature, a chief executive, enumeration of rights and many other provisions.

Several of them exist to this day, including New Hampshire’s, along with those in Massachusetts and Rhode Island. Perhaps the most radical of them all, adopted in Pennsylvania, proved to be a disaster, as it reportedly did not have an executive and had a one-house legislature and many radical provisions.

When the delegates arrived in Philadelphia to consider a new federal document, even the Pennsylvania delegates cautioned them to ignore the state attempt as a guide. It was soon replaced by a more conventional system.

New Hampshire’s document, like many, was longer and more complex than the federal constitution written more than a decade later. It was somewhat based on the last governing documents for the colony of New Hampshire, agreed to by King George III, who had the power to appoint the colonial governor, and agreed to have a council of citizens vote on actions by the governor.

Our state constitution was wary of government by a powerful executive, and kept the executive council of five members elected to put a brake on the power of the governor, who originally served part time and for one-year terms. The Legislature had two houses, as it does today, with a small Senate with equally sized districts by land mass and not population. The lower House had one member elected from each community, with another for each 1,000 voters, and as the state grew, so did its size, until reaching over 400, and rounding the membership down to that huge membership.

There were provisions in the constitution that recognized hopes and aspirations, as well as specifics, and the enumeration of rights included the right to overthrow the government if it became unjust. Some of these less-precise provisions have been the basis for significant court decisions over the years, such as the Claremont school funding decisions, now being challenged by the state, reportedly.

Both federal and state constitutions had provisions allowing changes to them, and it took 10 amendments to the federal one, the Bill of Rights, to be proposed so the basic document could get sufficient state ratification votes.

Apparently, the New Hampshire constitution originally did not have an independent judiciary and that had to be added later, whereas the shortest article in the federal one, Article III, only created a Supreme Court and left it to Congress to design the rest of the judicial branch, and decisions of the Supreme Court, to define its powers and place as arbiter between the branches of government, still a source of contention and debate.

Why is this important? We need to know what we have and work to protect it.

And we need to realize that another 250 years of independence and freedom is not guaranteed unless we do.

Brad Cook is a Manchester attorney. The views expressed in this column are his own. He can be reached at bradfordcook01@gmail.com.