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Editorial: Amending the Constitution

2 Minds, 2 Questions, 2 Bad Ideas

That the New Hampshire Legislature is of two minds on important questions will come as a surprise to those who regard the past two years as little more than an exercise in legislative mindlessness. The fact remains, though, that there is a certain schizophrenic quality to the two constitutional amendments proposed by the Legislature that appear on Tuesday’s general election ballot.

The first of these would forbid the Legislature from imposing a tax “upon income earned by any natural person.” As we have said previously, policy preferences have no place in a constitution, which ought to be reserved for enunciating basic principles and structures of government.

Nobody would think of enshrining in the constitution the right to gamble at an in-state casino, would they? … Well, maybe we won’t go there.

Anyway, what is intriguing about this question is that if approved, it would remove from the Legislature one of its most fundamental powers — the power to tax. Revolutions have been fought to place the taxing power in the hands of duly elected representatives. It is curious that a body whose Republican majority was so determined to assert its authority in so many areas during the past session feels the need to tie its own hands. Apparently they just don’t trust themselves, which, given their recent performance, is entirely understandable.

Having made a bid in Question 1 to divest themselves of powers properly reserved to the Legislature, lawmakers in Question 2 move to expropriate powers properly belonging to a separate and equal branch of government, the judiciary. This amendment would allow the Legislature by statute to trump the authority of the state Supreme Court to make “rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts.” This proposition clearly contravenes the doctrine of separation of powers upon which the American political system is founded, and in important ways reduces the judiciary to a junior role in government. The courts are intended to be insulated from political influence precisely because of the enormous powers they exercise. One can easily imagine a case in which the Legislature manipulates the rules to produce a particular outcome congenial to its prevailing political philosophy, and then changes the rules back again when that prevailing philosophy changes. That is no prescription for the consistent and coherent administration of justice in New Hampshire.

Moreover, because the courts provide independent review of legislative acts, this constitutional amendment would produce an inherent conflict of interest between judges and their new bosses in the Legislature.

For good reason, the constitution sets a high bar for amendments to be enacted. The approval of two-thirds of those voting is required. Both of these amendments are toxic, and we urge voters to act accordingly: Handle with care and dispose of properly.