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My Turn: Tea Party crowd is misreading the Constitution

The recent call for removal of 189 state representatives by Tea Party leader Jack Kimball and three Republican state legislators is an example of constitutional illiteracy at its best.

Because Kimball and Reps. Al Baldasaro, John Hikel and Lenette Peterson disagree with the legislators who voted in favor of House Bill 135, which would repeal the state’s “stand your ground law,” the accused legislators are apparently breaching the public trust of the people of New Hampshire.

Kimball and Hikel have filed petitions or criminal complaints with the U.S. attorney for New Hampshire and with two county sheriffs claiming that these legislators are violating their oath of office and should be removed from office.

Because Kimball and many of his acolytes have no understanding of the Constitution, I thought it was worth talking about why this type of childishness is a waste of everyone’s time.

First of all, Part I, Article 38 of the Constitution does not create a cause of action in court or a criminal violation if a legislator were not to be “moderate, temperate, industrious and frugal” among other things. The language of Article 38 is what is called “precatory language” and is not meant to be enforced by the unelected third branch of government.

In fact, those in the Tea Party movement are correct when they say that the courts overstepped their bounds when the Claremont decision came down several years ago. What I do not understand is why they would want to compound judicial overreaching by now asking the courts to become involved in deciding a criminal case alleging legislators have violated the “fundamental principles” of the state Constitution.

Having served in all three branches of government, I have strong aversion to an unelected branch sitting in judgment on whether people in the legislative branch have violated the standardless “fundamental principles of the Constitution.” Sometimes laws are held to be unconstitutional by the courts as part of a litigated case. But that is a far cry from saying that sitting legislators will somehow be subject to judicial involvement in how they vote on the floor of the House.

As with many issues, you win some and you lose some. In fact, the bill to repeal the “stand your ground” law probably will not pass in the Senate anyway, making this whole effort a further waste of time.

Crimes are prosecuted in a court. Does the Tea Party really think that unelected judges should be deciding when legislators, on an individual basis, violate the Constitution?

That is such a huge power grab to turn over to the judiciary that I would think Kimball and his friends would want to rethink that mission very quickly.

Yes, the House has the power to control its membership under certain circumstances, but not under the circumstances in which one group of representatives merely disagrees with how another group voted on a particular bill.

If it were otherwise, every losing vote would result in some kind of a constitutional petition to throw out everyone who voted the other way.

That is not the way a republican system works in the Anglo-American tradition. Our New Hampshire Constitution has served us well for the 200 years before Kimball and the three legislators misread it.

It is a shame that we do not have a GED program for constitutional literacy. Pulling bits and pieces out of the Constitution to create criminal charges reflects gross constitutional illiteracy, not an attempt at good government. It is this type of craziness that cost 120 Republican seats in the House last year. It is also embarrassing to my party and to the state.

(Attorney Chuck Douglas of Concord is a former congressman and state Supreme Court justice.)

Legacy Comments18

The distortion of reality is by those that feel that if you can defend yourself in public there will be shoot outs at the OK Corral. When was the last time we saw in the news that folks did that? The changes that the left want to SYG are because of the Martin case in Florida. Yet Zimmerman is not using that defense even though he could. The paranoia here is on the left. They still have not gotten the message that law abiding citizens do not abuse gun ownership. And they do not connect crime rates to places where gun laws are strict either.

"Shootouts at the OK Corral"? Not yet, but if ever more citizens see fit to arm themselves, then it may just be a matter of time. Recall that the first gun control laws in this country were enacted in the "wild, wild west." What facts there are on SYG are mixed and do not inspire confidence that the law will do what proponents claim: "A study by Texas A&M economics professors found that the adoption of stand-your-ground laws caused a statistically significant increase in the raw homicide rate, and had only a very small positive effect on deterrence of crime. The authors of the study were unable to determine what percentage of the increase was justifiable homicide, due to the reporting of homicide to the FBI often lacking notation whether the homicide was justifiable or not. Another analysis of stand-your-ground laws by economists at Georgia State, using monthly data from the U.S. Vital Statistics, found a significant increase in homicide and injury among whites, especially white males. They also analyzed data from the Health Care Utilization Project, which revealed significantly increased rates of emergency room visits and hospital discharges related to gun injuries in states which enacted these laws. In a 2007 National District Attorneys Association symposium, numerous concerns were voiced that the law could increase crime. This included criminals using the law as a defense for their crimes, more people carrying guns, and that people would not feel safe if they felt that anyone could use deadly force in a conflict. The report also noted that the misinterpretation of clues could result in use of deadly force when there was, in fact, no danger." --Wikipedia

does anybody know the weekly murder rate with Guns in heavily gun regulation Chicago?

Last I checked, NH isn't Chicago. But if you're interested in stats about strictness of gun regulations and gun death outcomes in New England or NY, it's interesting to compare the gun death rate per capita in heavily gun regulated MA, CT or NY vs. NH. In MA, it's 3.1%, CT = 4.9%, NY = 4.8% whereas NH = 6.2%.

This is no different from folks attacking Ayotte or being upset about Citizens United because it does not meet their ideological agenda. Progres and sive mis-read the second amendment constantly and try to twist it to meet their beliefs. Now, that said Kimball was wrong but so are progressives misreading the Constitution and claiming that it is a "living, breathing" document.

And no different from "being upset about" passage of the ACA? As for the 2nd Amendment, a little investigation would show that those who claim the amendment was intended by the Founders to protect citizens from the government are the ones misreading it.

The proposed revision to the “stand your ground love” will do nothing good for public safety! 1st) even the state legislator who most ardently supports the revision to the standard ground law-admits there has never been a problem resulting from the stand your ground law. 2nd it will make it easier for an assailant who is stored by law-abiding citizen with a weapon-to tie that citizen up in court for years and cripple them economically. 3rd it would enrich the legal community with assailants bring lawsuits and law-abiding citizens having to defend themselves (for second time) from the legal system that supposed to protect them. This is not about public safety but merely another example of pure partisan politics. This proposed revision would only empower criminals and burden the law-abiding citizens. If a law-abiding citizen is taken to court by an assailant misusing our laws-any legislator who voted for should never enjoy another night’s rest

Agree. I have no desire for a lawyer to decide if I could have fled safely. He was not there and had no clue how I felt if I decided to defend myself. And then we have the the families of folks who harm you who will sue because they felt you shot their family member unfairly. Only folks who benefit from changing stand your ground are the lawyers. The rest of us might save our lives by defending ourselves, but then we get sued for it.

Nonsense. The "Castle Doctrine" is based on long-standing tradition. There is nothing in it that prevents a householder from defending herself/himself and family. The radical Tea Party legislature overturned settled law and tradition in pursuit of an ideological dream--to turn the nation into an armed camp and public spaces into free-fire zones. Statistics show that "Stand Your Ground" results in more homicides in those states where it has been enacted. The push for "Stand" type laws comes from ALEC/NRA gun rights absolutists, ironically when the overall crime rate has been in decline for the better part of 2 decades. It's a problematic "solution" that will do more harm than good--in both the short term and in the long term, by making everyone feel less safe in the public square, never knowing when a fire fight might break out.

Bruce, The word homeowner is strategic. yes, in you home you have the protection of law if forced to confront a violent criminal. However, this law-abiding citizen criminalization act would would put you at legal risk if forced to defend self/family outside of your home. may the violent criminal will not allege 'criminal threatening". Maybe the prosecutor is in a good mood or not running for re-election and decide not to bring charges against you for being forced to defend your self/family. The law was supposed to protect citizens so did not have to rely on someone's subjective/parochial whims. and you want to go back to that? As to S.Y.G. laws causing problems - please read again - the most ardent NH support of criminalizing citizens admits there has never been a problem in NH due to S.Y.G. citizen protection legislation.

You have it backwards. Stand Your Ground repealed the Castle Doctrine so it is backers of Stand Your Ground like you who ought to cite ANY case in which our prior law (like the Castle Doctrine) failed to protect the right of self-defense of even a single law-abiding citizen. None exists. Ordinarily when something ain’t broke you don’t fix it. Just because Stand Your Ground supposedly has yet to result in a tragic shooting is meaningless where it has only been in effect for about a year. Our prior law had been in effect since the beginning of our State’s history, without a single reported case showing it was inadequate to protect the right to self-defense.

Nice Orwellian touch there--calling the repeal of SYG the 'law-abiding criminalization act." SYG makes it seem as if there is danger around every corner whenever one ventures out, and that one must be armed in order to "defend your self/family" when you go to the supermarket. Suffice to say this is a serious distortion of reality even in places like Chicago. It makes me wonder how much such people get out, and whether they stay bunkered down in their fortress glued to Glen Beck and Alex Jones, save for the occasional foray out in their armored Humvee, locked and loaded. As for your last sentence, the only reason "there has never been a problem in NH due to SYG" is because the law is barely a year old--it passed in 2011.

Now when those Republicans in control last session were busy "changing" the laws at the time, were they not doing the exact same thing as these members. Why are all those responsible people not turning themselves in and pleading guilty to their crimes. The writer sums it all up in one sentence, "every losing vote would result in some kind of a constitutional petition to throw out everyone who voted the other way".

Great column Chuck! You nailed the hypocrisy of the TP crowd. When Constitutional overreach works against their interests, they despise it. When it works in their favor, they're all for it. Thus, they are not the party of the Constitution but the party of the historical and civic flunky.

HD, Now that you have that out of your system; what are your thoughts about the Issue?

Did you mean "tissue"?

Huh? The Toilet Paper crowd?


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