“Where law ends tyranny begins.”
John Locke
Most Americans understand the power of our government emanates solely from the “consent of the governed“. The concept of a separation of powers is also fundamentally ingrained in our national psyche.
Yet, in New Hampshire, with its public aversion to intrusive government, the judiciary has subtly usurped powers rightfully belonging to its constitutionally coequal branches and, more importantly, to the people.
A 1978 referendum, pursuant to Resolution 141 of the state’s 1974 Constitutional Convention asked voters if they favored amending their Constitution to provide, “the chief justice of the supreme court shall be the administrative head of the state courts, and that he shall, with the concurrence of a majority of the supreme court justices, make rules governing the procedure in the courts“. Voters adopted the amendment.
However, when actually incorporated into the state Constitution, Article 73(a), the amendment’s approved text had been altered!
Instead of “state” courts, the revised language declared the chief justice administrative head of “all the courts”. Further, his power to “make rules governing the procedure in the courts” was significantly expanded to permit him to, “make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such state courts.” Tragically, this tampering with the will of the people was not over as a concluding sentence was also added, “The rules so promulgated shall have the force and effect of law.”
On the surface, these changes seem innocuous, clarifying the approved amendment. However, with deliberate malice of forethought, nameless conspirators granted to the judiciary the right to not only interpret and administer the law, but also the right to make law under the color of establishing “rules” as well as creating case law.
Sadly, the public has accepted this abrogation of inherent rights and basic liberties without protest!
Illustrative of our judiciary running out-of-control is found in its application of “summary criminal contempt”. Under its self-made rules, summary criminal contempt permits a judge to immediately incarcerate an individual for behavior before a him/her in a courtroom which, in his/her sole discretion, compromises the administration of justice.
Grounds for contempt charges may range from serious disruptions of court proceedings to such arbitrary and capricious grounds as objectionable facial expressions, unwelcome body-language, types of clothing worn and even the use of forms of speech clearly protected under the First Amendment.
When charged, an accused finds themselves facing star chamber justice with a judge sitting as accuser, judge, jury and executioner. The only procedural right granted to the defendant is providing them a chance to respond to the charges before sentencing … sometimes overlooked.
This type of summary justice is repugnant to American values, and is in direct contradiction to our state and federal constitutions which guarantee those accused of criminal contempt the same rights as all other criminal defendants … including the right to a trial by jury, the right to be fully informed on the nature of their offense, the right to cross-examine their accuser, the right to counsel, the right to due process, the right to an impartial judge, the presumption of innocence and the right to have proof against them be demonstrated beyond a reasonable doubt, all of which can be denied in criminal contempt proceedings. Moreover, the legislative branch, which alone has the constitutional power to make laws, is currently denied the right to remove these contempt powers by the judiciary.
This judicial power-grab and its inherent implication order must take precedence over justice is totally repulsive to our system of government … and yet another example of our institutions of government setting themselves above the laws of the land.
The people of New Hampshire must insist on immediate return to strict adherence to the precepts of their state and federal constitutions … including their clearly delineated separation of powers and inalienable guarantees of due process other rights which have be so disdainfully usurped. Failure to do so will ensure further erosion of individual freedoms to an increasingly intrusive government.
If their government then fails to enact such changes, the people have the sovereign right and obligation to seek alternative, even if radical, remedies.
