Cook On Concord: ‘Constitutionality’ sword and shield

Often, when bills are being considered, the debate centers on whether the Legislature can pass the proposal since, it is alleged, either the state or federal constitution prohibits such legislation.

When used by some legislators and lobbyists, constitutional arguments are thrown around with a lack of precision, on occasion, speculating about what a court would or would not decide about certain proposed legislation.

Recently, South Dakota legislators passed a very restrictive abortion bill with the express intent of challenging federal constitutional law as set down by the U.S. Supreme Court in Roe v. Wade. During the debate, legislators opposed to the bill pointed out that it appeared, on its face, to be unconstitutional, and proponents said it was a perfect vehicle to retest the issue before the courts. South Dakota’s legislature passed, and its governor signed, the legislation, notwithstanding the constitutional argument, and the courts will deal with it and develop the law on this subject further, assumedly.

In New Hampshire, the “parental notification law” on abortion that passed several years ago was alleged to be unconstitutional during legislative debate. The federal District Court held it to be unenforceable; that decision was upheld by the 1st Circuit Court of Appeals, but when it reached the U.S. Supreme Court, the court said that if it could be applied constitutionally, it was not invalid, and sent it back for further consideration by the lower courts.

In the current legislative session, the Superior Court has declared the most recent school-funding scheme to be unconstitutional as inconsistent with the Supreme Court’s decisions in the Claremont string of cases. This has created a lot of angst among lawmakers and produced the call for a constitutional amendment, which failed in the Senate.

On another bill, Senate Bill 131 — “The 21st Century Scholars Fund” — the issue of constitutionality has arisen. This proposal, the latest in a string of proposals in various forms that would allow state money to go for the education of New Hampshire students in private schools, has been attacked as unconstitutional by opponents because a student assumedly could use the money to attend a religious school.

There are two sections in the New Hampshire constitution which prohibit state money being spent on seminaries and schools of religions or sects. Proponents of the legislation claim that this is neutral aid for any student or family and does not aid church schools. They cite recent interpretations of the federal constitution as allowing the bill without commenting on the more restrictive state provisions. Opponents say it is a more sophisticated form of school voucher bill presumed to violate the state constitution.

Labor unions, religious groups, private school proponents, public school proponents and various other advocates have weighed in on the “21st Century Scholars Fund.” This bill has now passed the Senate and the first set of hurdles in the House of Representatives, notwithstanding these arguments.

Several general principles come to mind when viewing all of this discussion of “constitutionality” during the legislative process:

• Legislatures should not be passing unconstitutional legislation, for sure. However, the place to determine constitutionality probably is not during the advocacy of debate. New Hampshire has a mechanism to refer proposed legislation to the state Supreme Court for an “opinion of the justices” on constitutional questions.

Further, if the Legislature actually passes a bill and it goes into effect, it then can be challenged in the court. Undoubtedly, there is a different set of considerations involved when a court reviews an actual law as opposed to a proposed one. Therefore, it is often the case that bills should be passed before a constitutional determination is sought if it is a close question. (Obviously, in a clear case, an opinion of the attorney general or advisory opinion of the court is appropriate.)

• Constitutionality is often used as an excuse to avoid discussing the merits of a bill or having legislators recorded on the policy aspects. It would be interesting to see the result if the constitutional question was removed from much of this debate and legislators had to go on record on issues such as school choice, abortion, parental notification and school funding. Debate on the substance might make for more forthright discussion of issues.

In any event, the infusion of constitutional questions in the legislative process is often a strange sight to behold, especially when listening to some legislators’ views of what is and is not constitutional.

In the words of one of my favorite Constitutional law professors, “The constitution can be the last refuge of scoundrels!”

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.