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Tuesday, January 04, 2011

Ed Reform All the Rage But Is It Constitutional?

This issue of what Congress can fund under the Constitution seems to have finally reached public education.

If you read any comments after an education story in the Seattle Times, you always get the people who ask why we fund food for free/reduced lunch students or make food at all (bring your own lunch). They ask why the districts fund transportation. They ask why the districts fund bilingual education. I think some of this is the fear that the focus (and the money) isn't on direct teaching and learning and some may be people who feel parents are responsible to get their children fed and to school. (No matter that many of those writing probably had and used transportation and the cafeteria in their public school when they were kids.)

Justice Scalia (one of my least favorite Supreme Court justices) just came out saying that women (and for that matter men and he probably meant gay men) are not protected from discrimination under the Constitution.

"If the current society wants to outlaw discrimination by sex," he told an audience at the University of California's Hastings College of the Law, "you have legislatures."

Read more: http://www.time.com/time/nation/article/0,8599,2020667,00.html#ixzz1A5T5en4X

The tension on the Court is there with Justice Stephen Breyer writing a book, Making Our Democracy Work: A Judge's View, in which he puts forth his argument that the Constitution is a "living document" and one meant to grow as our nation grows. Justice Scala is an "originalist" wanting the Constitution to be stuck to word for word. Here's an argument Adam Cohen in Time magazine:

The drafters could have written the Constitution as a list of specific rules and said, "That's all, folks!" Instead, they wrote a document full of broadly written guarantees: "due process," "freedom of speech" and yes, "equal protection." As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution's framers created an "organism" that was meant to grow — and to be interpreted "in the light of our whole national experience," not based on "what was said a hundred years ago."

This makes sense to be given the words that our Founding Fathers used to craft the Constitution.

Mr. Cohen goes on to point out that Justice Scalia didn't have any problem in Bush v. Gore in using the equal-protection clause to help Bush win the election. Mr. Cohen's argument here:

(If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)

Another area that questions Scalia's thought pattern is corporations. How is it that women are not protected and yet corporations are under the First Amendment?

It is a strange view of the Constitution to say that when it says every "person" must have "equal protection," it does not protect women, but that freedom of "speech" — something only humans were capable of in 1787 and today — guarantees corporations the right to spend unlimited amounts of money to influence elections.

Into this swirling argument come the elected Tea Party members of the Congress. From the Seattle Times:

Congress could easily get federal spending under control if it would simply follow the Constitution, Rep. Scott Garrett says.

And spending on public education and local transportation projects are just two of the unconstitutional programs Garrett cited when asked for examples.

"I've asked this question to prior secretaries of education when they appeared before me in various committees, 'What is your constitutional authority to do what you're doing?' And they will simply say Congress authorizes us to do so. Congress can't authorize something that is not in the Constitution," said Garrett, R-N.J.

Garrett is part of a movement, cheered by the tea party and derided as "tenthers" by critics, who argue that a strict reading of the 10th Amendment prohibits much of what the federal government does every day. The amendment says that states retain any powers not specifically given to the United States government, the so-called enumerated powers such as declaring war, establishing post offices and coining money.

Now Scalia in his argument says that Congress can make any law it wants to protect women (and, by that logic, fund public education) but if we all go back to our civics class, we recall that there are checks and balances in our democracy. Meaning the Congress can make laws and the judiciary can undo them or reject them. (See Obama's healthcare law.)

So now we are going to have a certain number of Congresspersons advocating to get rid of government oversight/funding for public education? Gee, what will happen then? Oh right, the private sector will take it up and they will do better (because we all know business does better than government). Naturally there is a profit motive in here somewhere.

This actually isn't a small thing. Five member of the Senate are Tea Party members. That's a pretty big number for a new group out the gate. In the House the number of Tea Party members is larger. My feeling is that the Republicans are going to try to smile and say they are all one big family but the Tea Party candidates didn't get elected to be part of the Republican Party. I think the Tea Party candidates will go along to get along but will, at some point, draw a line in the sand and say, "vote our way on this issue or we'll show you how much you really need us on other issues".

Could this be the opening salvo in the war on public education in Congress?

2 comments:

Sarah said...

Wish my kids weren't in the middle of this mess!

Josh Hayes said...
This comment has been removed by the author.