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Bar News - February 18, 2005

Book Review: The New Hampshire State Constitution By Susan Marshall


Concord attorney Susan E. Marshall has just added New Hampshire to the list of states (now 39) whose constitutions are included in the series edited by G. Alan Tarr, Director of the Center for State Constitutional Studies at Rutgers University, entitled Reference Guides to the State Constitutions of the United States. Her volume, THE NEW HAMPSHIRE STATE CONSTITUTION, A Reference Guide, is published by Praeger Publishers of Westport, Connecticut, and can be obtained at

This one-volume analysis of New Hampshire's constitution fills a much-needed gap in the available reference material on the law of our state. In accordance with the established format for this series, the book begins with a historical essay. This essay, in turn, starts with New Hampshire's 1776 Constitution (the first among the Thirteen Colonies), takes us through the several conventions which finally produced the Constitution of 1784 (described as our "permanent" constitution), details the extensive revisions which were made to the document in 1792, and concludes with a summary of the 88 other amendments which have been adopted since that date. Following this introduction is a section-by-section annotation of the Constitution which in each case, commences with a brief description of the section's specific historical derivation and concludes with a discussion of the New Hampshire Supreme Court cases (if any) which have interpreted it.

Like any good reference work, Attorney Marshall's book avoids philosophical disputation. Instead, the author takes the law as she finds it and attempts to make sense of it. Perhaps the best example of this is her discussion of the Supreme Court's three-tiered scope of review under our Constitution's equal protection clauses, [Part I, Article 1 ("all men are born equally free and independent") Part I, Article 10 ("Government being instituted for the common benefit...") and Part I, Article 12 ("Every member of the community has a right to be protected by it")], and its substantive due process clause [Part I, Article 2 ("all men have certain natural and essential rights")]. Without ever acknowledging that the Court's jurisprudence in this area is created out of thin air (which it certainly is), is internally inconsistent (which it frequently is), or is incomprehensible (which it sometimes is), attorney Marshall does an admirable job of categorizing and summarizing the relevant cases.

This book is especially useful in New Hampshire because of our Supreme Court's wholesale adoption of the so-called "new judicial federalism". That is the name which has been given to the notion that judges should look to their state constitutions, as opposed to the federal constitution, as a primary source for guarantees of our political, civil and even economic rights. The sponsor of this movement was the late U.S. Supreme Court Justice William J. Brennan, Jr. (whose seat on the high bench was filled by our own David Souter). In 1977, fearing that the Burger Court was backpedaling on work of the Warren Court, Justice Brennan wrote an article in the Harvard Law Review entitled State Constitutions and the Protection of Individual Rights (90 Harv. L.Rev. 489) in which he advocated that state courts "step into the breach". One of the first state courts to accept Justice Brennan's invitation was our own. Indeed, beginning with its 1983 decision in State v. Ball, 124 N.H. 226, (recognizing a state exclusionary rule more protective than the federal rule), it would be fair to say that the New Hampshire Supreme Court virtually sprinted into the breach. (See endnote.)

The problem, however, is that our Court has failed to articulate any principled basis upon which to distinguish its interpretation of the provisions of the New Hampshire Constitution from the U.S. Supreme Court's interpretations of the analogous provisions of the Federal Constitution. This ends-justify-the-means characteristic of New Hampshire's constitutional jurisprudence has not gone unnoticed in the academic community. For example, in his article The Failed Discourse of State Constitutionism, 90 Mich. L.Rev. 761, 802-4 (1992), Professor James A. Gardner made the following observation:

[T]he New Hampshire court's opinions are largely devoid of any kind of language which could furnish the basis for a discourse of distinctiveness - a way of explaining differences between the state and federal constitutions .... [O]ne searches the state court's decisions in vain for any indication of such differences; there is no discussion of the state's founding history, no mention of its constitution's framers, and no suggestion that the fundamental values or character of the people of the state differ in any way from those of the people of the nation.

An excellent example of this is the 1995 case of State v. Canelo, 139 N.H. 376, where our Court rejected the federal rule of United States v. Leon, 468 U.S. 897 (1984), which had established an exception to the exclusionary rule for searches and seizures conducted illegally, but "in good faith". Although the language of the search and seizure provision of the New Hampshire Constitution (Part I, Article 19) does differ somewhat from that of the Fourth Amendment to the U.S. Constitution, the Court did not rely upon those differences in reaching the opposite conclusion from that reached by its colleagues in Washington, D.C. Instead, the court claimed to rely upon "the history of part I, article 19". See 139 N.H. at 387. The problem is that the Court does not recite any history that supports its decision not to accept the federal rule.

Nevertheless, if there were indeed real differences between the historical background of our Part I, Article 19 and the Fourth Amendment, our Court's decision to part company with the U.S. Supreme Court could be justified. As the author points out, however, the New Hampshire provision dealing with searches and seizures was copied word-for-word from the Massachusetts Constitution of 1780, and - although she does not go on to connect these dots - it is an established fact that the search and seizure provision of the Massachusetts Constitution was one of the primary sources which James Madison drew upon to fashion what became the Fourth Amendment. In other words, the search and seizure provisions of the New Hampshire Constitution and the U.S. Constitution were cut from the same cloth; consequently, whatever they mean, they presumably mean the same thing.

If, therefore, the new judicial federalism is to mean anything more than one group of judges deciding one way for no better reason than they like result A and another group of judges deciding another way just because they like result B, constitutional history should make a difference. On the other hand, if constitutional history is to contribute to the dialogue effectively, it must be easily accessible. This, then, is where Marshall's book brings something really new to the table. Although her narratives of the Supreme Court's interpretations of the Constitution are clearly better than those in West Publishing's Volume I of the RSAs, it is the historical material which distinguishes her work from everything else that is currently available.

From a literary point of view, Marshall's book is eminently readable. It is also sprinkled with interesting bits of constitutional trivia. For example, she notes that Part I, Article 7 of the New Hampshire Constitution is, at least in part, probably invalid under the Federal Constitution. This concerns the clause in Article 7 which purports to reserve to the people of New Hampshire every power not expressly delegated to the United States. Although such language was perfectly appropriate when written in 1784 (it mirrored the language of the Articles of Confederation), the Federal Constitution of 1789 contained no such limitation upon the powers of the national government. As Ms. Marshall's namesake, Chief Justice John Marshall, so famously said in McCulloch v. Maryland in establishing the doctrine of implied federal powers, "Let the end be legitimate and all means which are appropriate are constitutional." 17 U.S. 316, 421 (1819)

The one criticism that might be leveled against Marshall's book is that the bibliography is a little skimpier than it ought to be for such a comprehensive reference work. For example, noticeably absent are citations to Elwin Page's JUDICIAL BEGINNINGS IN NEW HAMPSHIRE, John Philip Reid's biography of Chief Justice Doe, and the several publications of UNH Professor of Political Science Robert B. Dishman on state constitutions in general and the New Hampshire Constitution in particular. These omissions, however, are minor and in no way detract from the usefulness of Marshall's work.

In summary, THE NEW HAMPSHIRE CONSTITUTION - A Reference Guide is a book that every New Hampshire lawyer and judge should have in his/her library.

Without question, the member of the Court leading the new judicial federalism charge in New Hampshire was then Justice Charles G. Douglas III, the author of many of its decisions recognizing rights under our constitution unknown at the federal level. This is not surprising because Douglas, writing only months after he had been appointed to the high bench, was one of the first in the nation to jump on Brennan's bandwagon. See Charles G. Douglas III, State Judicial Activism - The New Role for State Bills of Rights, 12 Suffolk L. Rev. 123 (1978). See also, Charles G. Douglas III, The Unique Role of State Constitutions: Raising State Issues in New Hampshire, 28 N.H.B.J. 309 (Summer, 1987).

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