“The criminal laws cannot be used to suppress this revolution”
My acquaintance with New Hampshire’s Constitution began while I was incarcerated in the National Guard armory in Concord following my arrest – and that of 1414 others – at the Seabrook nuclear plant construction site in 1977. As I recall, someone passed out copies of a blue-covered booklet containing the story and text of the state’s foundation document, and said “check out Article Ten of the Bill of Rights.”
Article Ten, adopted in 1784, describes the “Right to Revolution” as follows:
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.
By definition, revolution takes place outside the law, and this provision seems to be a statement of political philosophy more than a principle of governance. But Guy Chichester used it successfully before a jury following his 1990 arrest for chainsawing down a Seabrook Station evacuation siren pole.
I made reference to Article Ten in a pre-sentencing statement before Judge William Lyons in Manchester District Court on May 17, 1999. I was then a member of a dangerous gang dubbed “the Footlocker Eight,” on trial for criminal trespass after committing the act of distributing anti-sweatshop leaflets inside the Mall of New Hampshire.
Citing the Constitution, I said “It is not only our right as citizens to assemble and speak about the common good, it is our duty as citizens of New Hampshire to actively resist oppression.”
My statement to the Judge also referred to Article 22, which states,
“Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved,”
and Article 32, which asserts
“The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.”
Now, Barbara Keshen, staff attorney for the NH Civil Liberties Union, is citing the same provisions of the New Hampshire Constitution in an elegant motion to dismiss charges against fifteen people cited with trespass and curfew violation charges stemming from Occupy New Hampshire’s encampment at Manchester’s Veterans Park last fall.
The root of Keshen’s argument is that protection for political speech trumps the city’s curfew, which prohibits people from being in Veterans Park between 11 pm and 7 am. Therefore, police had no right to arrest the Occupy protesters, whose presence in the park was clearly political in nature. And while the First Amendment to the US Constitution merely says the government shall not interfere with speech, “our constitution requires that the government act affirmatively to safeguard free speech,” she argued.
“Our constitution consciously ties free speech to a free state. It requires the government not just to refrain from abridging free speech, but to inviolably preserve free speech,” Keshen said.
Keshen goes further, and asserts that the “peaceful and revolutionary activity” in which the protesters were engaged is protected by Article Ten. “The criminal laws cannot be used to suppress this revolution,” states the Motion to Dismiss.
Unlike the Guy Chichester case, the audience for this legal argument is not a jury. It is the same Judge Lyons, still presiding at Manchester District Court 13 years after he found the Footlocker Eight guilty as charged.