New Hampshire: Constitutional amendment would prohibit all judicial review of legislation, allow legislature to determine constitutionality of its own acts

Legislators often have a problem with courts striking down the laws they enact as unconstitutional. Several members of the New Hampshire House, however, believe they have struck on a solution: end judicial review of laws.

CACR 28 is a constitutional amendment that provides the legislature alone shall determine the constitutionality of legislative acts. It does permits the state supreme court to exercise judicial review as to the constitutionality of “judicial acts”.

To decide upon the legality of claims and conduct made in the course of determining cases in controversy between persons arising under laws previously established is a judicial act. The supreme court shall have final authority on the constitutionality of judicial acts. To make a new general rule of prospective effect for the regulation of new controversies for the general benefit and welfare of the state is a legislative act. The general court shall have final authority on the constitutionality of legislative acts.

This is not the first time such an effort has been attempted in the state, but it may be the best chance such a bill has had. When first introduced in 2005 (CACR 16) it failed 8-13 in committee and 67-259 in the full House. It did better when reintroduced in 2007 (CACR 2) failing 5-15 in committee but by only 104-208 in the full House.

A similar, but not identical effort was also lodged in 2003. CACR 11 of that year would have declared

Every act of the [legislature] enacted in accordance with the procedures set forth in this constitution and the rules of the senate and house of representatives shall be conclusively presumed to be constitutional as the expression of the will of the sovereign people of this state, and every court of this state shall enforce every such act faithfully in accordance with its terms and intent, and shall neither make any order nor establish any rule contrary thereto or in hindrance thereof.

That version failed 2-13 in committee and never made it to the floor.

10 thoughts on “New Hampshire: Constitutional amendment would prohibit all judicial review of legislation, allow legislature to determine constitutionality of its own acts”

  1. The next thing you know they’ll be wearing wigs reciting the Magna Carta while brandishing guns. All perfectly legal when you are judge & jury. What a mess the republican legislature has made of this state. I hope all that voted for these idiots are happy with the mockery they are making of New Hampshire’s government. Good going. Elect some more for the same outcome.

  2. “The next thing you know they’ll be wearing wigs reciting the Magna Carta while brandishing guns.”

    Well, something close. HB 1580 would require legislation introduced in the New Hampshire legislature contain a reference to the Magna Carta.

    All members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived.

  3. You are aware that it was the democrats who first proposed it, right? So, if your logic follows the Democrats are a mess too, who would have made a mess of the state if it were passed too.

  4. I would prefer democratic tyranny to judicial tyranny for that reason I see nothing wrong with this.

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