ARE PUBLIC SCHOOLS CONSTITUTIONAL?

NewsWithViews ^ | 1/20/03 | Lynn M. Stuter

[uncbuck]

You can count my vote.

[goodnesswins]

FLY your flags (and a British one, too)....and put up your BUSH/CHENEY signs, (and the BIG W's on your SUV's) for the STATE of the UNION next Tuesday, if you support the President and the United States of America. PSST....pass it on.

[El Gato]

There are many things which the concept of sovereignty allows the government to do because of implied powers. Read Hamilton's essay on the constitutionality of National Bank for an explanation by one of our greatest political thinkers. Essentially it describes how a government may do anything not forbidden by the constitution or not against its spirit. Example: the constitution does not mention a national mint but there is no doubt that a nation has the right to create one.

It doesn't mention a mint, but the power to create one is indeed implied, but not because the Congress can do anything it wants that isn't expressly foridden. Art. I, section 8 reads in part:

Section. 8. The Congress shall have Power To ...

To coin Money, regulate the Value thereof

So the way that Congress may exercise it's Power to coin money is to establish a National Mint. It could have contracted the coining out to private mints if it chose.

However, the 10th amendment, which BTW, Hamilton was agasint passage of, along with the rest of the Bill of Rights, reads:

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.

No power over education, public or otherwise, is delegated to the federal government in the Constitution. Therefore the power belongs to the states and/or the people. State constitutions do in general delegate such powers to the state government. Public education is Constitutional, if one means the federal Constitution, or the constitution of the state in question delegates power over it to the state. The states are sovereign too, except in areas where the federal government was granted sovereignty.

[Libertina]

Thanks for the ping Free, and interesting comments W.A. It seems all the water is over the dam as to whether schools are constitutional - besides the words "for the public good" are twisted enough to even excuse taking taxes to pay for public art in city dumps!

I would say the trick now is to take back "control" of our childrens' education. It seems to me best done with tax rebates for home schooling. If there are vouchers there will next come government "strings" in the form of regulations - as sure as I am FReeping! And we had better set up city/state rules too, because as our side gains more control of our own educational process and materials, the NEA will go ballistic and try to make homeschooling virtually illegal. They are already doing a pretty creditable job of this in CA.

[f.Christian]

bttt

[Technogeeb]

Great post, but I would like to add to your comment:

However, the 10th amendment, which BTW, Hamilton was agasint passage of, along with the rest of the Bill of Rights

that the reason Hamilton opposed a Bill of Rights was that he considered it unnecessary and potentially dangerous, in that it would enumerate rights of the people that government could not violate, when no power was granted to government to violate them in the first place (in other words, his opposition to the bill of rights was the existence of enumerated powers only).

The best discussion of this issue was in Federalist 84, where he stated that

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

[ppaul]

To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical. -- Thomas Jefferson

[wideawake]

Hank, I'm on your side. All I'm saying is that parents who can afford it can opt out of the system and pay for private education and in some cases homeschooling.

There should be no such thing as public schooling at all - but at least the state has left us a few crumbs.

[yendu bwam]

bttt

[justshutupandtakeit]

Many of the founders including Washington and Hamilton who agreed on almost everything believed that the nation should establish a national university. Jefferson believed so much in public education that he considered the founding of the University of Virginia to be his greatest act. You can find a J. quote to support almost any position so you have to look to what he DID not what he said.

Home schooling should be excellent since it is so costly. If all students had the time and money committment that hs ers do they would undoubtedly do much better than they do. However, those public schools which are excellent (and their are many) provide unparalleled educations. A well earning parent ($40,000^/ yr.) withdrawing from the work force to educate a child has an opportunity cost higher than the tuitions of the finest of private schools. It ain't cheap and the nation could ill afford much of it.

Lenin believed in electrification so that must mean we should destroy all our tramisssion systems by the logic behind you quoting Marx. Silly.

[justshutupandtakeit]

One of the reasons there is no reference to education in the Constitution is because there was little public involvement in education at the time it was written. Public education started in New England and was almost totally in local hands not States. There was no State or Federal involvement in those days mainly just church and township or county. Neither States nor Federal government had the resources to undertake educational programs even had they wished to do so.

[Remedy]

This should clear up your misconceptions about homeschool.

Volume 10 Number 26 Bauman: Home Schooling in the United States A peer-reviewed scholarly journal

Editor: Gene V Glass, College of Education, Arizona State University

[justshutupandtakeit]

1) There is no federal "control" of education. Apparently you are unable to distinguish between "involvement" and "control"

2) Perhaps if you were to read the source document referenced you would not presume to correct that which does not need correcting. The opinion on the constitutionality of the National Bank supercedes the Federalist coming 4 or 5 yrs later. You will also note Hamilton's use of the term "evidently exclude" in the phrase you quoted. He really meant that this exclusion was only evident.

3) There is no necessity that the mint be owned and operated by the Federal government in order to create a money supply.

4) There is no "unlimited" federal power I described. Federal power is limited both by the letter and spirit of the constitution. Had you cared for honest discourse you would not have clipped the rest of my comment which refered to the unconstitutionality of federal acts against the spirit of the constitution. But by ignoring that you look more accurate (to the unaware or biased) claiming falsely that I was advocating "unlimited" federal power. Don't try that crap with me. It doesn't work.

[justshutupandtakeit]

Lots of people are doing more than blinking at the NEA's power.

"Sectarian" as used in those acts refers to religious sectarianism not secular. A sect was initially a religious group. In this century the communists started using it as synonymous with "faction" or group.

It is impossible to prevent all non-religious sectarianism.

[justshutupandtakeit]

If you believe science and math education is worse than in 1950 you prefer to ignore reality rather than confront it. Believe the mythology if you like but you will convince no one but the ideologically biased and the deliberately ignorant.

[justshutupandtakeit]

Ummm, no. He was CHALLENGED by Burr not the other way around.

[justshutupandtakeit]

Not only was Hamilton opposed to a Bill of Rights so was Madison. But you need to note the reason. It was not as you imply because he wanted to deprive people of their rights but because he didn't want an enumeration of rights to imply they had no others not listed. They both agreed that the constitution was itself a bill of rights.

BTW the 10th amendment has played an insignificant role in the developement of American constitutional law. All who claim it important are challenged to show me where it has ever been the basis of a successful challenge to a federal law or even an unsuccessful challenge. All it ever meant was that states had the power over local law enforcement, health codes and issues which affected ONLY state residents.
It certainly was not designed to cover public education since most of the states at that time had no state involvement in education either. Education was locally controlled (when it existed at all)and closely tied to the religious establishments of the day.

State sovereignty is another myth which never had any practical meaning. Other than as a political slogan.

[justshutupandtakeit]

I have no misconceptions about home schooling and am no more against it than SUVs.

[freeeee]

the 10th amendment has played an insignificant role in the development of American constitutional law

Is it your position that parts of the Constitution can be legitimately ignored if the government so chooses?

[justshutupandtakeit]

No, the government has never invoked them but neither have plaintiffs or states in suit against the feds. Everybody has ignored them. My position is that that amendment never had any real meaning and was essentially rhetoric put in to reassure the Slavers.

I have not said that the amendment is good or bad but have challenged those who believe it to be significant show how it has played a role in American law. Even the secessionists didn't claim it to cover secession. While I don't believe it would make secession legitimate I do wonder why none of the movers for disunion claimed it as sanction.

So what has it meant to American history? That one and the 9th seem to be the bastard stepchildren of constitutional law. If they are easily ignored why are they still there?