A Tax on Tea

When my daughter Rebecca was in fourth grade, we studied New Hampshire history. The family made field trips to historic sites throughout the state. We visited the New Hampshire State House, cooked colonial food, and acted out historical plays. It was a good review for me too.

Do you remember the Townshend Acts that taxed tea sold in America? The British Parliament needed to pay off its debts from fighting the French and Indian Wars. It is only right, the majority said, that American colonists pay part of the cost. After all, the war was fought to protect those yokels' interests too. The tea tax was just pennies, but New Hampshire colonists called it intolerable. They would submit to no taxation without representation. It is a sacred principle, a fundamental right. The first meeting of the New Hampshire Assembly in Exeter in 1774 defied the royal government.  

"Live Free or Die," they said. Those were heady times. I tried to teach my daughter about the natural tendency for even good governments to grow self-assured and abusive of the rights of citizens.  If I had known, I could have given Rebecca a perfect example that very year by attending the New Hampshire Legislature's debates on RSA 622:7-b, which provided, "Every commissary in a state prison operated for the sale of commodities shall collect a surcharge of 5% of the sales price of every item sold. All funds collected pursuant to this section shall be deposited in and continually appropriated to the "Victims' Assistance Fund."

The Legislature wanted to fund services to victims of crime. Who better to pay for those services than the ones responsible for creating the victims in the first place? The New Hampshire State Prison canteen sold about $140,000 of food, toiletries, stamps, and, yes, tea to prisoners every month. That's a lot of sales. And 5% is such a small tax, a “surcharge” the Legislature called it. Who would complain except the prisoners? And, they can't vote.

And there is the problem. When you are sent to prison in New Hampshire, you lose the right to vote. That in itself would not make a sales tax on goods sold in the prison canteen unjust. The Legislature could have funded victims' services through a proportionate tax - a sales tax on all goods sold anywhere in the state, including the prison. But the citizens of New Hampshire will not tolerate a sales tax no matter how worthy the cause. How much easier it is to tax the non-voting convicts. They have, after all, violated the law and deserve whatever consequences they get. The legislative history of RSA 622:7-b records not one voice raising any constitutional objection to the proposed tax.

But a tax on tea sold to disenfranchised prisoners is no better than a tax on tea sold to disenfranchised colonists. Sadly, neither New Hampshire’s citizen legislature nor a lower court judge, who dismissed a prisoner's challenge of the tax, was troubled by taxation without representation - an evil every fourth grader should learn to recognize.

On July 19, 2002, three years and nineteen days after the enactment of this intolerable act, the New Hampshire Supreme Court reversed a lower court's decision, and ruled the 5% surcharge unconstitutional. It eventually ordered that several hundred thousand dollars already collected from prisoners be refunded. The debt had to be repaid with funds obtained through just taxation.

Perhaps we should thank the legislature for this contemporary object lesson in good intentions gone awry. It has given New Hampshire's fourth grade teachers, if they chose to consider it, new material for telling their students about the revolutionary principles upon which our republic was founded. It illustrates the need for constitutional protections against the tendency of the majority to discount the rights of disfavored minorities - be they Japanese, or communists, or convicted felons, or sex offenders.  As always, it is good to remind our children and ourselves that the price of freedom is eternal vigilance.