3-Minute Civics: The components of constitutions

For the Monitor
Published: 6/20/2021 10:00:05 AM

‘You are infringing on my First Amendment rights.” “I exercise my Second Amendment right.” “I invoke the Fifth.”

These phrases are shorthand for important constitutional liberties: freedom of speech, the right to bear arms and the right to refuse to answer when questioned by the police. All are enshrined in the first ten amendments to the United States Constitution, known as the Bill of Rights.

What many people don’t realize is that New Hampshire had its own constitution before the United States did. And New Hampshire’s Bill of Rights is in many ways far more explicit and expansive in its protections of individual freedoms than the national Bill of Rights.

New Hampshire was the first of the 13 states to establish its own constitution, with the adoption of an initial temporary constitution on January 5, 1776. That original New Hampshire Constitution did not contain a lot of detail, and in 1784, voters replaced it with the current version. The state’s revised constitution included a list of fundamental human freedoms. New Hampshire voters adopted the state constitution with its own Bill of Rights seven years before the Bill of Rights became part of the United States Constitution.

While the U.S. Constitution provides all Americans the same minimum rights, state constitutions set forth freedoms that people who live and work within that state have. In some cases, including New Hampshire’s, state constitutions guarantee greater liberties than those in the U.S. Constitution. This helps eliminate doubt about what rights people of this state enjoy. In our case, those expanded or more explicit rights include gun ownership, privacy, open access to government and protections from unreasonable searches.

Much ink has been spilled over the Second Amendment to the U.S. Constitution, namely whether it protects an individual’s right to own firearms. The U.S. Supreme Court addressed that question as it relates to the federal constitution in District of Columbia v. Heller in 2008, but it remains the focus of national public debate. New Hampshire, however, was far more explicit in 1982 with the addition of Article 2-a to its Bill of Rights. That provision reads, “All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.”

The right to privacy has also generated much public debate. In a number of cases, the U.S. Supreme Court has recognized a right to privacy from government intrusion in certain aspects of people’s daily lives. The word “privacy” however, appears nowhere in the U.S. Constitution. The Supreme Court reasoned that the right to privacy, which underpins protections for gay marriage, abortion and even married couples’ right to use contraception, is embedded in various provisions of the federal constitution. Because there is no explicit protection for privacy, these decisions are the subject of vigorous public debate and a perennial focus in judicial confirmation hearings in the U.S. Senate.

New Hampshire voters on the other hand overwhelmingly approved an amendment to the state’s Bill of Rights three years ago that establishes an explicit right to privacy. While the boundaries of this amendment have yet to be tested in court, by approving Article 2-b, New Hampshire voters have enshrined the principle that an “individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”

A right to hold public officials accountable doesn’t appear in the U.S. Constitution at all. But New Hampshire recognized the importance of that right in 1784 with Part I, Article 8 in the state’s Bill of Rights, which says “Government, therefore, should be open, accessible, accountable and responsive.”

In 1976, voters expanded this concept, adding language that guarantees “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.” This passage is often cited in right to know requests seeking access to local and state public records.

In contrast, the U.S. Constitution does not guarantee citizens the right to inspect government records. The Freedom of Information Act is a statute passed by Congress, which provides access to some records of the federal government. Because the right to inspect public records is not protected by the U.S. Constitution, however, Congress could just as easily restrict public access to government documents by passing a new law.

Even where the state and federal constitutions contain parallel provisions, such as the right to be free from “unreasonable search and seizure,” the New Hampshire Supreme Court has had a long and proud tradition of interpreting our state’s constitution to have broader protections than those recognized by the U.S. Supreme Court.

For example, in 1988, the U.S. Supreme Court decided the police do not need to apply for a warrant to search through garbage left on the curb. In contrast, in 2003, the New Hampshire Supreme Court determined that law enforcement must seek judicial approval to rummage through a person’s trash. The state court reasoned, “Clues to people’s most private traits and affairs can be found in their garbage. Almost every human activity ultimately manifests itself in waste products, and any individual may understandably wish to maintain the confidentiality of his refuse.”

With these independent protections in our state constitution, we distinguish ourselves and demonstrate our values. On the anniversary of the Battle of Bennington, Revolutionary War Gen. John Stark ended his letter to the veterans by reminding them of the importance of the sacrifice they made for American freedoms, writing, “Live free or die: Death is not the worst of evils.” Gen. Stark’s words eventually became the famous motto of our state, but nowhere does that principle have a more enduring legacy than in the New Hampshire Constitution.

(Will Delker was appointed to the New Hampshire Superior Court in 2011 and currently sits in Hillsborough County Superior Court—Northern District in Manchester.)

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