Commentary: Interpreting the state constitution

By Lawrence Friedman
Constitutional text can sometimes mean more – or less – than the words alone might suggest. Courts remain the ultimate arbiters of the meaning of the constitution, and judges often interpret the text not according to its literal meaning but with regard to the other constitutional values.

For instance, while the First Amendment to the U.S. Constitution on its face seems to forbid any “law … abridging the freedom of speech,” the Supreme Court has concluded that government must have discretion to regulate speech in a variety of ways when necessary to achieve important interests, such as the protection of public safety.

So, too, the New Hampshire Supreme Court has approached the state constitution with the consequences of particular interpretations in mind.

Consider a constitutional provision that was raised at a recent hearing in which lawmakers heard a proposal to allow employees with conscientious objections to avoid employer vaccine mandates. In support of the proposal, Rep. Tim Lang relied on Part I, Article 4 of the state constitution, which provides that some natural rights are inalienable, “because no equivalent can be given or received for them,” and this includes “the Rights of Conscience.”

Like many constitutional commands, the language of Article 4 seems straightforward. Yet, the New Hampshire Supreme Court has not interpreted “rights of conscience” to include just any deeply felt objection to otherwise valid laws. The court explicated the meaning of Article 4 in a 1937 case involving, of all things, a vaccine mandate. The defendant in State v. Drew challenged his prosecution for violating a state law that required all school children to be vaccinated. The defendant had refused to have his children vaccinated, and they did not fit within any of the statutory exemptions from the requirement.

On appeal, the defendant maintained that the mandatory vaccination law violated his right to his own “individual ideas.” The court rejected this argument, explaining that the “rights of conscience” protected under Article 4 are those that involve “religious liberty,” as opposed to “mere opinions.” Because Article 4’s reach is limited to matters of religious conscience, in this instance the defendant’s views could not “affect the validity of the statute or entitle him to be excepted from its provisions.”

The court connected its understanding of Article 4 to Part I, Article 3, which provides that, when people “enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and without such an equivalent, the surrender is void.” The two provisions, side by side, suggest that the framers had in mind a universe of natural rights that can be divided between those that are “inalienable,” because they concern sincere religious belief, and all others, with only the former entitled to special protection under the constitution.

While the distinction may limit the ways in which courts can enforce Article 4, it expands the ways in which the political departments of government can address the needs of the public as a whole.

After all, as the Drew court concluded, a literal interpretation of Article 4 could risk undermining effective government entirely. If everyone “were to take the position that individual opinions are equivalent to rights,” the court reasoned, “law would be replaced by anarchy.”

The court’s interpretation of Article 4 reflects, at a fundamental level, the importance of separation of powers under the state constitution. The court endorsed the view that the framers sought to privilege lawmaking by the people’s elected representatives. By carving out a path in Drew for judicial enforcement of Article 4 that is narrower than the text might otherwise indicate, the Supreme Court effectively reduced the number of instances in which judges might be asked to weigh in on determinations by the political branches about how best to govern.

In other words, the New Hampshire court’s interpretation of Article 4 makes sense when considering the role of an unelected judiciary in New Hampshire’s constitutional scheme of government.

Decisions like Drew reflect a recognition that, for the most part, the work of ensuring the health and safety of New Hampshire’s residents should fall primarily to those institutions of state government and state officials whom the people of the Granite State can hold directly accountable for their actions.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author of “The New Hampshire State Constitution” (second edition).