Guest Essayist: The Honorable Bill O’Brien

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New Hampshire has a glorious history of national firsts.

While the Sons of Liberty gathered around a tree in Boston before the Revolution, the glory of New Hampshire was that in 1772 we had the Pine Tree Riot.  Three years before Paul Revere’s midnight ride, the Pine Tree Rioters in Hillsborough County rebelled against paying the British King’s taxes on trees.  Then the rioters’ neighbors added insult to royal injury by refusing the governor’s order to come out as a militia and quell the rioters who had taken to tarring and feathering the king’s agents.

In a similar fashion, before the Minutemen fought the British redcoats in Concord and Lexington in the Spring of 1775, the King’s army was subject to ongoing harassment and attack in New Hampshire.  As early as 1757, the early day contributors to New Hampshire’s continuing libertarian tendencies opposed British troop recruitment in the town of Brentwood.

This tension grew over the years before the Revolution and finally led to what should be recognized as the first armed conflict of the Revolution.  On December 14, 1774 the indefatigable Paul Revere brought alarming news north from Boston that the King’s government was sending troops and was going to forbid the import of arms into America.  In response, that afternoon 350 New Hampshire men attacked the royal fort of William and Mary in New Castle on the coast near Portsmouth.

Under fire from the troops defending the fort, these New Hampshire patriots captured the fort and its garrison, took down the British colors, seized most of the gunpowder and departed.  When the royal governor the next day regarrisoned the fort and ordered the return of the gunpowder, the insurgents went back to Fort William and Mary and took the remaining gunpowder, plus 16 cannons and all the muskets.

But it was not only in pre-revolutionary rebellious behavior that New Hampshire set a national example.  It has also come to lead the nation in many important aspects of state governance.

In 1916, clean-government New Hampshire set an example for the other states by establishing a presidential delegate selection primary over backroom choice of national convention delegates. This delegate selection primary turned into a direct presidential candidate selection primary in 1952, a move that has caused many states to now have their own primaries and voter caucuses.  New Hampshire’s reform has led other states to replace their own backroom deals for choosing presidents in favor of a transparent process relying on voter selection.

While this electoral reform has extended across our country, New Hampshire’s primary remains an important quadrennial feature of presidential politics.  In every presidential election cycle, for now almost 70 years, New Hampshire has ensured that its initial presidential primary remains the First-in-the-Nation Presidential Primary.  As a result, while some states might be known for making such things as ethanol for our cars and bacon for our breakfasts, “New Hampshire makes presidents.”[1]

New Hampshire has many other firsts of national distinction and many of those include what it has brought to the development of constitutional law in America.  It could not be other for the first of the American colonies to declare its independence and have the first state constitution.

On January 5, 1776, the then provincial Congress of New Hampshire recognized that with the royal governor and British troops having been chased out of the state, the time had come to adopt a state constitution derived not from royal prerogative or British parliamentary grant, but rather from the free suffrage of the people.[2]  In doing so and by means of that very first constitution, New Hampshire became the first of the 13 original colonies to declare its independence from the Great Britain – six months before the Declaration of Independence was signed.[3]

Perhaps setting the stage for constitutional brevity in the later federal, and some of other state constitutions, this first-in-the-nation state constitution was only two and a half pages long.  Unlike most other state constitutions, however, and perhaps reflecting its origins in a legislative body comprised mostly of the members of a provincial assembly that the royal governor had attempted to discharge for countenancing an attack on the King’s fort and other wrongs, the 1776 New Hampshire constitution established the legislature as the superior branch of government.

Under this “First-in-the-Nation” state constitution a chief executive officer was referenced, but that office titled as “President” was merely the leader of a council chosen by a House of Representatives.  This council, and therefore the President, was not only chosen by the House of Representatives, but together the House and council formed the Legislature.

This 1776 enactment of what came to be a New Hampshire wartime constitution further provided that all other government officials were to be appointed directly or indirectly by the Legislature, except for certain county officials.  Otherwise only the members of the House of Representatives were directly elected by the people.

Thus, under the 1776 New Hampshire constitution, the office of the chief executive was not fundamentally separate from the Legislature.  Most all elements of the state government derived their existence and office holders at the sufferance of the Legislature.  In the first state constitution in America there were no co-equal branches of government.  There was no balance of power.  The Legislature was supreme.[4]

Based on this 1776 grant of state constitutional authority in New Hampshire, Meshech Weare was chosen as the first President of New Hampshire and he served in this capacity until the end of the Revolution.  Further reflecting the judiciary’s junior role in the government,[5] Weare was also appointed to head the state’s highest court, the “Superior Court of Judicature.”  He served there from 1776 to 1782. During that time, the executive branch and the judicial branch in New Hampshire had the same person as their chief officers. Nonetheless, the real power existed in the Legislature.[6]

Following our War of Independence, New Hampshire took up the task of replacing the wartime constitution.  The resulting New Hampshire state constitution was adopted in 1784, five years before the federal constitution.  As amended, this constitution continues as the basic law for the State of New Hampshire today and is second only to Massachusetts in being the state constitution with the longest tenure in the country.

The 1784 New Hampshire Constitution continued to name the Chief Executive as President.[7]  It did, however, make that position a separately elected office.  In doing so, it established the executive administration as a separate branch of state government along with a legislature consisting of a Senate and House of Representatives.

The 1776 council that had been the senate was not lost now that there was a separately designated senate.  Rather, the 1784 Constitution shifted the council from being part of the Legislature to becoming an independent body within the executive branch.  There it was placed to serve as a check on the Chief Executive.  In fact, each of the Chief Executive and the elected, five-member Council could veto the acts of the other.

Thus, the drafters of the 1784 Constitution overcame their pre-revolution distrust of governors, who had been royally appointed, and recognized the necessity of having a chief executive.  Having done so, however, they followed what was the lead of the 1780 Massachusetts constitution and put in place a substantial check on the chief executives’ authority.  The check they developed was so substantial, in fact, that it could deadlock the chief executive.

Similar to this capability of the Chief Executive and the Council to stalemate each other, when establishing the Legislature (the “General Court”), the 1784 Constitution included the same type of checks and balance for the Senate and the House of Representatives each of which is to have a strong veto right over the other.[8] Moreover, the chief executive was given an overridable veto over the Senate and House acting together.  Thus, in a choice that continues to underlie our federal and state constitutions today, the drafters of New Hampshire’s constitution favored liberty over efficiency.

Even as the New Hampshire constitution continues through the third century following its adoption, its essential checks and balances have not been changed.  As a device to avoid executive or legislative tyranny, this approach certainly served as an example for those in other states, and the federal government, who later brought the concept of “checks and balances” to their basic laws.

One noteworthy additional provision in the New Hampshire Constitution is an article that expressly recognizes the right of revolution.[9]  Though, of course, recognition of the existence of a right of revolution is fundamental to the American national experience, [10] although a provision of that nature did not find its way by language or concept into the later federal constitution or, for that matter, many other state constitutions.

Nonetheless, as the New Hampshire drafters of a state constitution adopted shortly after the Revolution understood, the existence of an inalienable right of revolution underlay both the New Hampshire and American declarations of independence.  They no doubt knew that their recognition of its existence was based on ancient examples existing only in faded recollections,[11] and therefore it was important to expressly ensure that as the Revolution faded into distant memory, government did not forget the lessons so painfully taught to the British oppressors.

So, forcefully recognizing this right in the New Hampshire constitution’s bill of rights was almost unique in American constitutional law.  It is one thing, however, to recognize this right as a justification when being a perpetrator of a rebellion and quite another when drafting a fundamental law that is intended to have permanence.  Yet, the drafters of the New Hampshire 1784 Constitution, enacted mere months after the adoption in Congress of the Treaty of Paris, that brought the suffering and horrors of the Revolution to an official end, had the courage to do so.  They wanted it preserved in the State’s memory, that in the face of arbitrary governmental power and oppression, revolution is not just an option, but should be repeated.

Perhaps not with such forceful language, this courage to express the right to further conflict and rebellion was demonstrated not in many, but certainly in some subsequent state constitutional enactments.  Included among those were the constitutions of Kentucky, Pennsylvania, Tennessee, North Carolina and Texas.  Indeed, the North Carolina constitutional language tracked much of what is found on this concept in New Hampshire’s constitution.[12]  This right of revolution has additionally found expression in the Universal Declaration of Human Rights.[13]  While limited in expression elsewhere, the right of revolution is a necessary, inescapable and, in New Hampshire, enshrined human right.

This first constitutional expression in New Hampshire of the logic that all who are oppressed have the right to revolt to regain their liberty has at least continued, if not promoted, the concept of universal freedom.  In this, perhaps as much as its protection of the retail politics enabled by its presidential primary and continuing to point the way to checks and balances of governmental power, New Hampshire has been at the forefront of the states.

New Hampshire has truly been First-in-the-Nation in more ways than one.

Bill O’Brien served for five terms in the New Hampshire House of Representatives where he was Speaker from 2010 to 2012.

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[1] McCaughey, Betsey, Democracy at Its Best (Washington Times, April 24, 2015) (https://www.washingtontimes.com/news/2015/apr/24/betsy-mccaughey-democracy-its-best/; accessed March 17, 2019).

[2] See January 5, 1776 NH Constitution at http://avalon.law.yale.edu/18th_century/nh09.asp (accessed March 15, 2019) (“WE, the members of the Congress of New Hampshire, chosen and appointed by the free suffrages of the people of said colony, and authorized and empowered by them to meet together, and use such means and pursue such measures as we should judge best for the public good; and in particular to establish some form of government, . . .”);  See also New Hampshire General Court, Documents and Records Relating to the State of New Hampshire. pages 36 and 37  (E. A. Jenks, state printer 1874) (accessed March 15, 2019 at https://www.library.unh.edu/find/digital/object/propapers%3A0008).

[3] And months before the first independence declarations claimed for other of the American colonies, in particular North Carolina and Rhode Island.

[4] Thereafter, other states continued with the concept of legislative supremacy over other branches.  See, e.g., 2006 article on North Carolina constitutional history by John V. Orth, accessed on March 17, 2019 at https://www.ncpedia.org/government/nc-constitution-history.

[5] This subservient role of the judiciary continued on in the 1784 constitution until amendments as late as 1966 were intended to make the Judiciary in some respects a co-equal branch of government.  N.H. CONST. pt. 2, art. 72-a (November 16, 1966).

[6] The primacy of the Legislature was often graphically illustrated in the 19th century when the Legislature, having become dissatisfied with the then current state of Judiciary, dissolved the then existing courts and reconstituted others to serve as the judiciary.  See Wines, Michael, Judges Say Throw Out the Map.  Lawmakers Say Throw Out the Judges (NY Times, February 14, 2018) (https://www.nytimes.com/2018/02/14/us/pennsylvania-gerrymandering-courts.html; accessed March 17, 2019) (“As far back as the 1800s, New Hampshire’s legislature disbanded the state’s Supreme Court five times, said Bill Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Va. . . .”).

[7] The title later became “Governor.” N.H. CONST. pt. 2, art. 41(as amended, 1792).

[8]The Supreme Legislative Power, within this State, shall be vested in the Senate and House of Representatives, each of which shall have a negative on the other.” N.H. CONST. pt. I, art. 2 (June 2, 1784).

[9] “… [W]henever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.” N.H. CONST. pt. I, art. 10 (June 2, 1784).

[10]We hold these truths to be self-evident… –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,”  Quoting, The Declaration of Independence (July 4, 1776).

[11] See, e.g., Declaration of Arbroath (April 6, 1320) (“for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom – for that alone, which no honest man gives up but with life itself”), quoting in part Sallust, The Conspiracy of Catiline (circa 50-35 BC).

[12] See generally, Wikipedia, Right of Revolution, https://en.wikipedia.org/wiki/Right_of_revolution#cite_note-37.

[13]Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by rule of law.” The Universal Declaration of Human Rights, UN General Assembly resolution 217 A (December 10, 1948) (http://www.un.org/en/universal-declaration-human-rights/index.html; accessed March 17, 2019).

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