constitutional-law new-hampshire
Legality of forcibly overthrowing the government of New Hampshire
<p>The <a href="https://www.nh.gov/constitution/billofrights.html" rel="nofollow noreferrer">constitution of the state of New Hampshire</a> recognizes a "right of revolution".</p>

<p>Has anyone used Article 10 as the legal justification for something they have done? In how many cases has it been successfully so used, and in how many unsuccessfully? What happened?</p>

<blockquote>
  <p><b>[Art.] 10. [Right of Revolution.]</b> Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.</p>
</blockquote>

<p>Article 10 of Part I of the Constitution of New Hampshire (Article 10, Part II relates to classification of town governments) is mentioned in five reported appellate cases in the history of New Hampshire since it was adopted in 1784 that I could locate. It has never successfully been effective to protect the rights of anyone invoking it. (It is possible that it has been argued in a trial court on a jury nullification theory, but such cases wouldn't produce reported cases as criminal acquittals cannot be appealed by the government.) The cases, and the pertinent part of each ruling, are as follows:</p>

<ul>
<li><em>Orr v. Quimby</em>, 54 N.H. 590, 619 (1874), it was held to create a moral rather than a legal right:</li>
</ul>

<blockquote>
  <p>The legal idea of a bill of rights is a declaration of private rights,
  annexed to and made a part of a constitutional grant of governmental
  power. Reservation is, in general, the purpose and legal meaning of
  such declaration. <strong>For exceptional reasons, applicable to the
  construction of article 10, the right of insurrection there declared
  is evidently a moral right, not reserved as a legal one.</strong> But many of
  the most important constitutional rights are reserved in terms much
  less imperative than "shall" and "shall not." The right of petitioning
  for a redress of grievances (the plaintiff's sole remedy, if the plea
  is good) is reserved by a simple declaration of the right, without a
  word literally signifying a command or prohibition.</p>
</blockquote>

<ul>
<li>It was also addressed in the case <em>Opinion of the Justices</em>, 144 N.H. 374, 746 A.2d 981 (1999) where it was found to not invalidate a means of raising revenue for a municipal electrical utility:</li>
</ul>

<blockquote>
  <p>Question two inquires whether HB 536 "violate[s] the constitutional
  provision that government is instituted for the common benefit,
  protection, and security, of the whole community, and not for the
  private interest or emolument of any one man, family, or class of men
  under part I, article 10 of the New Hampshire constitution?" We answer
  this question in the negative.</p>
  
  <p>Part I, Article 10 provides:</p>
  
  <p>Government being instituted for the common benefit, protection, and
  security, of the whole community, and not for the private interest or
  emolument of any one man, family, or class of men; therefore, whenever
  the ends of government are perverted, and public liberty manifestly
  [746 A.2d 987] endangered, and all other means of redress are ineffectual, the people
  may, and of right ought to reform the old, or establish a new
  government. The doctrine of nonresistance against arbitrary power, and
  oppression, is absurd, slavish, and destructive of the good and
  happiness of mankind.</p>
  
  <p>This provision of our constitution has commonly been regarded as enumerating a citizen's right to reform an ineffectual or
  manifestly corrupt form of government. See City of Claremont v.
  Craigue, 135 N.H. 528, 533-34, 608 A.2d 866, 869 (1992); Nelson v.
  Wyman, 99 N.H. 33, 50, 105 A.2d 756, 770 (1954). We have recognized
  for over one hundred years, however, that this provision is imbued
  with "[t]he principle of equality [that] pervades the entire
  constitution," State v. Pennoyer, 65 N.H. 113, 114, 18 A. 878, 879
  (1889), and as such, Article 10 provides support for the maxim that
  "[t]he law cannot discriminate in favor of one citizen to the
  detriment of another." Id. Thus, Part I, Article 10 has been
  recognized as providing for more than a "right of revolution"; rather,
  it is one of many provisions in our Bill of Rights that forms the
  basis for a citizen's right to equal protection. See, e.g., Town of
  Chesterfield v. Brooks, 126 N.H. 64, 67, 489 A.2d 600, 602 (1985)
  (zoning ordinance violated equal protection rights guaranteed by Part
  I, Articles 1, 2, 10, 12, and 14); Gazzola v. Clements, 120 N.H. 25,
  29, 411 A.2d 147, 151 (1980) (statute violated equal protection rights
  guaranteed by Part I, Articles 1, 10, 12, and 14).</p>
  
  <p>Pursuant to the principle of equality inherent in Article 10, this court found that the raising of tax revenue to aid an electric
  utility would violate Part I, Article 10's mandate that government is
  "instituted for the common benefit ... of the whole community, and not
  for the private interest or emolument of any one man, family, or class
  of men." Opinion of the Justices, 88 N.H. 484, 489, 190 A. 425, 429
  (1937).</p>
  
  <p>Aid to a utility is forbidden except in protection of the public
  welfare and interest. And the protection must be in a needed service
  furnished the public by the utility as a condition of the aid. Without
  the condition the protective principle is inapplicable. Unconditional
  aid is not a proper charge of government to be met by the taxpayers.
  144 N.H. 382</p>
  
  <p>Id. at 488-89, 190 A. at 428. The court noted that the existing public
  utilities already provided sufficient power to service State
  customers, and that any additional supply was sent out-of-state. Id.
  at 489, 190 A. at 429. The court reasoned that because the
  transmission of additional electric energy outside the State served no
  public purpose, and thus the need for public funds for additional
  development was a private, not public, purpose, the proposed aid was
  unconstitutional. Id.</p>
  
  <p>In this case, however, the legislature is proposing to create a tax exemption, rather than directly raising tax revenue to subsidize
  private purposes. Cf. Opinion of the Justices (Mun. Tax Exemptions for
  Indus. Constr.), 142 N.H. at 101, 697 A.2d at 124 (finding
  determinative under Part II, Article 5 that there was not direct
  expenditure, but rather a uniform exemption of state-wide
  application). Moreover, even if one views an exemption as simply a
  form of direct grant, see Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 9,
  146 A. 511, 515 (1929) (exemptions are "in effect, a compulsory
  payment of money, by those who bear their shares of the common burden,
  to the privileged person who does not bear his share"), the public
  benefit gained by this legislation is sufficient to render it
  constitutional. Our constitution does not require absolute equality of
  burden in the case of exemptions. "The resulting inequality or
  discrimination against unexempted property is not fatal to the
  constitutionality of the exemption," Opinion of the Justices, 87 N.H.
  490, 491, 178 A. 125, 126 (1935), provided "it advances a public
  purpose," Opinion of the Justices, 95 N.H. at 550, 65 A.2d at 701, and
  is "properly within the legislature's discretion in acting for the
  welfare of the state," Opinion of
  [746 A.2d 988] the Justices, 87 N.H. at 491, 178 A. at 126. As stated
  above, the benefit to be gained by HB 536 is increased competition and
  customer choice, and not necessarily the need for additional power.
  Further, deregulation of the electric utility industry is "properly
  within the legislature's discretion in acting for the welfare of the
  state," id., and it is proper for the legislature to enact exemptions
  that promote the economic well-being of the State, see Opinion of the
  Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 100,
  697 A.2d at 123. Accordingly, the tax exemption is properly granted
  under the legislature's "constitutional power to provide for the
  common benefit, protection and security," Opinion of the Justices, 88
  N.H. at 487, 190 A.2d at 428, and does not violate Part I, Article 10.</p>
  
  <p>To the extent that question two implicates additional equal protection guarantees under Part I, Article 10, cf. Gazzola, 120 N.H.
  at 29, 411 A.2d at 151, we conduct our analysis concurrently with the
  next question you posed; namely, whether HB 536 improperly classifies
  taxable property such that the burden of taxation is inequitably
  distributed, cf. Rosenblum v. Griffin, 89 N.H. 314, 320-21, 197 A.
  701, 706 (1938) (constitutional issue of classification decided under
  Part I, Article 10). For the reasons stated below, this part of
  question two is answered in the negative.</p>
</blockquote>

<ul>
<li>In another case, <em>City of Claremont v. Craigue</em>, 135 N.H. 528, 608 A.2d 866 (1992), it was argued unsuccessfully, that voter approval cleansed an improperly adopted budget of the taint of improper steps taken prior to the vote:</li>
</ul>

<blockquote>
  <p>Finally, the respondents cite part I, article 10 of the New
  Hampshire Constitution, known as the right of revolution, as a general
  right to self-determination. Part I, article 10 provides in pertinent
  part that "whenever the ends of government are perverted, and public
  liberty manifestly endangered, and all other means of redress are
  ineffectual, the people may, and of right ought to reform the old,
  [135 N.H. 534] or establish a new government." Without in any way detracting from the
  continuing validity and truth of part I, article 10, we find that none
  of [608 A.2d 870] the conditions specified in that article have been
  met in this case. Prohibiting voter ratification of a city's budget
  hardly "perverts" the ends of government or manifestly endangers
  public liberty, so long as the city's voters retain the right to elect
  their local representatives. Moreover, the defendants have not
  exhausted all other legal means of redress, since, as we noted above,
  the legislature has set forth a statutory procedure for charter
  revision, and that option remains available to the voters of
  Claremont.</p>
  
  <p>Therefore, the respondents' proposed revisions to the Claremont 
  city charter are invalid, and of no effect.</p>
</blockquote>

<ul>
<li><p>It was brought up, without success, in <em><a href="https://www.courtlistener.com/opinion/2334700/in-re-town-of-bethlehem/?" rel="noreferrer">In re Town of Bethlehem</a></em>, 154 N.H. 314, 911 A.2d 1 (2006), but I don't have access to that particular opinion in which an environmental regulation was challenged.</p></li>
<li><p>It was raised in <em>Nelson v. Wyman</em>, 99 N.H. 33, 105 A.2d 756 (1954) where the court concluded that it did not invalidate a McCarthy era law:</p></li>
</ul>

<blockquote>
  <p>It is also strongly urged by the plaintiff that the Legislature of
  this state cannot proscribe activities looking to the overthrow of
  government by force or violence because of Article 10 of the Bill of
  Rights which provides, in part, that ‘whenever the ends of government
  are perverted, and public liberty manifestly endangered, and all other
  means of redress are ineffectual, the people may, and of right ought,
  to reform the old, or establish a new government. The doctrine of
  nonresistance against arbitrary power, and oppression, is absurd,
  slavish, and destructive of the good and happiness of mankind’. With
  this interpretation we cannot agree. The right reserved to the people
  by this Article is not such a broad and unlimited right of
  insurrection and rebellion as to permit any group which is
  dissatisfied with existing government to lawfully attempt at any time
  to overthrow the government by force or violence. It is not claimed by
  the plaintiff that ‘the ends of government’ are now ‘perverted’, ‘public liberty manifestly endangered, and all other means of redress *
  * * ineffectual’ but it is only when those conditions prevail that the right to resist and to ‘reform the old, or establish a new
  government’ exists. The right possessed by the people of this state as
  a protection against arbitrary power and oppression cannot be utilized
  to justify the violent overthrow of government when the adoption of
  peaceful and orderly changes, properly reflecting the will of the
  people, may be accomplished through the existing structure of
  government.</p>
  
  <p>99 N.H. 51</p>
  
  <p>Dennis v. United States, 341 U.S. 494, 501, 549, 71 S.Ct. 857, 95
  L.Ed. 1137. To require a government representative of the people, in
  the face of preparations for revolution by force, to refrain from
  acting to curb the [105 A.2d 771] outbreak of violence and to confine
  itself solely to holding answerable those persons who have committed
  crimes of violence and terrorized the community in the name of
  revolution must result in anarchy. Dennis v. United States, supra, 341
  U.S. 501, 71 S.Ct. 857. Article 10 was not intended to accomplish this
  result.</p>
  
  <p>So far as the circumstances of this case have required an examination of the 1951 act, we conclude that it is constitutional
  upon its face, so as to furnish a basis for the resolution of 1953.</p>
</blockquote>
