Until 2017, New Hampshire had a concealed carry law similar to New York’s, which the U.S. Supreme Court struck down as unconstitutional last week.
And until last year, the state, like Maine, did not explicitly allow recipients of town tuitioning dollars or other school choice grants to spend their education aid at a religious school. The U.S. Supreme Court struck down Maine’s law as unconstitutional last week.
How did New Hampshire manage to anticipate by a few years two upcoming U.S. Supreme Court rulings on significant constitutional issues?
New Hampshire did it the way the framers of the Constitution intended: By getting the details right, crafting strong arguments, and focusing on persuasion.
There’s a serious policy lesson to be had here, no matter where one stands on the particular issues.
In each case, the winning side started out as the losing side. The prevailing law held up the left-of-center position. Gun owners had to get a government official’s permission before carrying a concealed firearm in public, and school choice programs excluded religious schools.
Changing those laws took years’ worth of legal scholarship and serious policy work. Both times, advocates knew they couldn’t win by making a purely moral or philosophical case. They needed hard data and sound legal reasoning.
On concealed carry, proponents studied the laws of other states, researched crime statistics, and worked with lawyers and legal scholars to show that their position was well within the legal mainstream and was consistent with sound constitutional scholarship.
School choice and religious freedom advocates did the same when working to prevent the state from discriminating on the basis of religion in school choice programs.
Last year, advocates succeeded in removing the prohibition on purchasing educational services at religious schools. They did it by coming to the Legislature armed with extensive histories of education funding, and with legal arguments and case law that detailed how the Supreme Court had come to treat such laws as violations of the First Amendment right to free expression.
In short, the winning sides did their homework. Sure, they made moral and philosophical arguments too. But their cases didn’t rest on those abstract ideas. They rested on thoroughly researched, well-reasoned arguments crafted to persuade the mind, not enflame the passion.
Emotional appeals still work in politics, of course. But coming to a policy debate armed with nothing more than passion is like bringing a karaoke machine to a gunfight.
New Hampshire was able to get ahead of the Supreme Court on these issues because smart and savvy legislators and activists spent years crafting policies that were aligned with a growing consensus in these areas of constitutional law.
Ranting and venting can be useful for signaling displeasure. But They’re generally no substitute for a well-reasoned, heavily researched, carefully prepared argument. The framers of the Constitution would be gratified.