A state representative from Rindge wants to amend the N.H. constitution to allow local governments to enact laws the state and federal governments could not override.
Proponents of the N.H. Community Rights Amendment, proposed by Rep. Susan Emerson, R-Rindge, argue the amendment would not create new law. Instead, they say, it would protect residents and the environment at the local level.
“The amendment is needed because when it comes to protecting the inalienable rights of citizens in our local communities, neither they nor their local governments should be told they cannot enact local laws to do just that,” Emerson said in a news release from the N.H. Community Rights Network.
Emerson, at a Maryland hospital for a broken hip, was unavailable for further comment.
Her proposed amendment comes at the urging of the community rights network, which describes itself as a group of Granite Staters who advocate for expanding residents’ rights to “realize sustainability on a community scale and then expand that protection outward to the state level.”
Michelle Sanborn, coordinator for the network, said the amendment pushes against a notion that’s becoming commonplace — that corporations’ rights supersede the rights of average citizens.
While saying no one project was the impetus for the amendment, Sanborn cited several as examples: the proposed Northern Pass transmission line, plans for the Northeast Energy Direct pipeline, and the Spruce Ridge industrial wind project, which have tried to get footing in the state.
She also noted the U.S. Supreme Court’s Citizens United ruling in 2010, which gave corporations the ability to spend unlimited money on candidates for elected office, treating their free-speech rights as the same as human beings’ rights.
Sanborn said the amendment would put power back in the hands of the people, but not absolute power. The amendment, she said, attempts to guard against potential abuses by limiting the kinds of laws local governments can enact.
To do that, the proposed amendment includes language prohibiting towns and cities from making laws that would restrict the fundamental rights of “natural persons, their local communities, or nature.”
“Natural persons” refers “specifically to human beings, not corporations, or any other business entity claiming to be people,” Sanborn said.
It further prohibits laws that would weaken protections for “natural persons, their local communities, or nature” that are already provided by state, federal or international law.
The route to an amendment
There are two ways the N.H. constitution can be amended.
The Legislature can refer an amendment to a ballot vote by N.H. residents, if it is approved by a 60 percent vote in the House and in the Senate. It can also be amended by calling a constitutional convention.
Via ballot, a proposed amendment must get a two-thirds majority among N.H. voters to become part of the state’s constitution.
The question of whether to have a constitutional convention can be put on the ballot through a simple majority vote in both houses of the N.H. Legislature. It also goes on the ballot automatically every 10 years, and must get majority support from voters to pass.
If it does pass, delegates to the constitutional convention can propose amendments by a 60 percent vote, but it takes a two-thirds super-majority of N.H. voters to adopt them.
“It’s not uncommon to propose (amendments),” said Andrew E. Smith, associate professor of practice in political science and director of the University of New Hampshire Survey Center. “It’s very uncommon that they make it through the House and Senate because it requires a three-fifths vote of both houses. Once they get to ratification stage it requires a two-thirds vote of the electorate. So there are very, very steep hurdles.”
In 2012, an amendment to ban an income tax garnered 57 percent of the vote, but failed because it wasn’t a two-thirds majority, Smith said.
But in 2006, two amendments passed — one that curbed the use of eminent domain and another that changed the way House districts are drawn.
Smith predicted Emerson’s amendment will have a tough time getting passed, primarily because he doesn’t think it will be able to make the three-fifths vote in the Legislature.
Moreover, it’s unenforceable, Smith said, beginning with the idea that local law could trump international law.
“I’m not an international lawyer, but international law only applies in the U.S. if we were a signatory to a treaty that created it,” Smith said. “Then, national law — a treaty becomes U.S. law — supersedes state or local law.”
The reason for that is, according to the U.S. Constitution, federal law automatically supplants all local laws, said Frank S. Cohen, assistant professor of political science at Franklin Pierce University in Rindge. This is set up in both the Sixth Amendment — the Supremacy Clause — which establishes that the federal law is the supreme law of the land, and the 14th Amendment, which says no government below the federal government can preempt the rights established in the constitution.
“The amendment is ridiculously worded,” Cohen said. “It’s unenforceable.”
The Community Rights Network, however, argues that the right of local community self-government can be found in the Declaration of Independence, the U.S. Constitution and in the principles of the N.H. Constitution.