Replies

You have all stated that the 10th Amendment forbids the establishment of public education. How?

Dr. Frank: wherein does the establishment of public education by the states violate the 5th amendment? Doesn't the actions of State goverments to establish public education, and the funding of it in most states by a combination of state and local taxes created by elected officials (the local ones are usually levies that are directly voted on by the populace) represent due process?

You have all stated that the 10th Amendment forbids the establishment of public education. How?

Not the "establishment of public education" but federal involvement in it. As for "how", see Post #73 (the one right before yours).

Dr. Frank: wherein does the establishment of public education by the states violate the 5th amendment?

Again, it's not "the establishment of public education" which I was talking about, just federal involvement. Anyway, to answer your question, the 5th Amendment reads, in part, that

nor shall private property be taken for public use, without just compensation.

Consider: A single woman with no children has part of her paycheck taken away by the federal government. That government then uses some of the property they took from her to hire a Vice Grand Poohbah of the Department of Education, to fund worthless federal programs with vaguely catchy names like "Head Start", to buy ketchup to give to schoolchildren for lunch, and of course to give lotsa money with mega-strings attached to various State education departments, etc.

Remember, she has no children.

Why was her property taken away by the federal government? For "public use", of course - education of (in this case other peoples') children.

Is she compensated? I don't think so.

Doesn't the actions of State goverments

The Constitution doesn't apply in the same way to State governments, and I certainly wasn't talking about State governments. Best,

You have all stated that the 10th Amendment forbids the establishment of public education. How?

Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Seems pretty clear to me. There is nothing in the Constitution that gives the federal government any power at all to regulate education in any manner. Since such power is not specifically delegated to the federal government, it does not exist.

I would argue that as a matter of sound public policy, the power to regulate education ought not exist at the State level either. But I would not argue specifically that they are constitutionally prevented from doing so. That legitimacy of such an argument would have to depend on the specific language in the individual state constitutions.

But clearly, education is not a Constitutionally authorized federal function. Tell me. Why do you think it is (or might be)?

I agree with Maceman in #77. Further, it was thought at the time that the 10th amendment was redundant: "The amendment states but a truism that all is retained which has not been surrendered."

Since both Houses of Congress refused to insert the word "expressly" before "delegated", the courts (post-FDR) have since used that to expand the "interstate commerce" clause (Article I, Section 8, Clause 3) of the Constitution to include anything that may be even remotely associated with interstate commerce.

Certainly, education affects the ability of a state to effect interstate commerce .... so they say. Well, what doesn't? Ergo, the federal government poking their nose into everything under the cover of the notorious "interstate commerce clause". In 1995, the Supreme Court in the US v Lopez case finally put the brakes on the congressional abuse of the commerce clause. Maybe that will hold some hope for overturning some other rulings