Thursday, March 25, 2021

Vouchers, the First Amendment, and the Imperial Judiciary

We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution.
- Justice Charles Evans Hughes, saying during governorship of New York.

With five votes, you can do anything around here.
- Justice William J. Brennan, oft-repeated saying.

There are numerous intense arguments in education.  From testing, teacher tenure, curriculum, pedagogy, racial integration, the appropriate level of funding, and reading instruction, the "School Wars" are a neverending conflict between people with different visions for public education.

In several of the above areas, partisans of one side have resorted to judicial intervention, but the area of education where the highest-stakes judicial fights have been waged has been school choice.  Unlike the other battles where sides seek a judicial alteration of something, in school choice, the anti-choice side has not sought a change, but abolition, under a claim that any government funding flows to a religious school, it is a violation of the First Amendment.

Thus, for proponents of school choice, the stakes in judicial battles have been existential, as they fought off a combined legal campaign by monopoly-seeking teacher unions and ultra-church-state separationist groups like the ACLU.  

Although the possibility of judicial abolition of vouchers based on the First Amendment has been foreclosed by Amy Coney Barrett's ascension to the Supreme Court, and even the possibility of state-level abolition has been reduced due to the erosion state-level Blaine Amendments in Espinoza v. Montana and a shifting of public opinion towards school choice, the issue of the constitutionality of school vouchers is still an emotional one that I want to address.

Although the outcome of the vouchers controversy is constitutionally settled in the way I want, I think that the generations-long threat that taxpayer support for private schools could be judicially abolished is an example of something that is is anomalous and undemocratic with the US Constitution, where judges have an outsize role in determining policy that should be left to the democratic branches and voters.

In this post I hope to counter the argument that vouchers violate the Establishment Clause and discuss how unfortunate it is that the ultimate fate of vouchers is determined by the Supreme Court, and not voters and the elected branches.  I believe the Supreme Court's possession of a veto power on the permissibility of vouchers is an example of the degenerate condition of the US structure of government.

The Supreme Court Contradiction

America prides itself on being a democratic country -- or else a "constitutional republic" -- but the US Supreme Court plays a role in public policy here that exceeds the roles played by supreme courts in our peer nations.  In other democracies, constitutions are newer and longer, so they specify the constitutionality of issues that are ambiguous in the United States, including the permissibility of funding for non-public schools, where it is nearly-always legal in our peer democracies.

In Canada, the UK, and Continental Europe, the supreme courts so low-profile that even political junkies don't know the names of justices.  Many countries explicitly have the principle of Parliamentary Supremacy, embodied in Canada's Notwithinstanding Clause," which allows the national parliament or regional parliaments to overrule the supreme court.  Even when there is not explicit parliamentary supremacy, European have constitutions that are flexible enough that if a supreme court decision were unpopular enough, it could be overruled by amendment in a way that has become impossible in the US.

Because the US Constitution was written nine generations ago -- in an era when today's political debates did not exist -- it is silent on numerous issues that  that most other countries' constitutions directly answer.  The vacua of the US Constitution on so many issues thus gives the US Supreme Court unrivaled latitude to create law by analogizing unlike situations of the 1790s or the 1860s to different situations of today.  By analogizing from its own recent prior decisions -- even when those precedents are controversial and could never be formally ratified as constitutional amendments -- the Supreme Court can construct constitutional law out of its own whims, and insert into, or delete from, the Constitution important principles with only only remote roots in the ratification process.  

The US Constitution contains several major contradictions, but I think the most dangerous contradiction is that amending the Constitution is the most difficult amendment process in the world, but the Constitution can be de facto amended by a 5-4 Supreme Court decision.  

Vouchers, Church, and State

The Establishment Clause is an example of how the shortness, silence, and vagueness of the Constitution allows for judicial-lawmaking that is divorced from democracy.

The text of the First Amendment's clauses on religion is this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

The term "make no law respecting an establishment of religion" is ambiguous.  The word "establishment" is never defined in the Constitution and the people of the time who were involved in the First Amendment's ratification had different interpretations of it.  There is nothing in the US Constitution about education at all, making the definitive applicability of the Establishment Clause to education even more difficult.

At a minimum, the Establishment Clause means that the United States cannot have an established church, like European countries at the time with the Church of England, Lutheran Church, Church of Scotland, and the Catholic Church etc.  It means the US government must be neutral towards all religions, as well as nonbelief.  

The anti-voucher argument is that funding a religious school constitutes an "establishment of religion" and is hence unconstitutional, but the ratified version of the First Amendment says nothing about funding of any and all religious activity, nor did earlier drafts of it.  Had the ratifiers of the First Amendment wanted to ban funding of churches, they would have, as Virginia had done a few years earlier.  The Constitution's prohibition on religious requirements for office-holding, is barred in a separate section of the Constitution, in Article VI.  

Although the Constitution has the Supremacy Clause, making the federal government more powerful than state governments, the First Amendment has a unique limiting feature in the language "Congress shall make no law...," meaning that states were allowed to do certain things that the federal government cannot. At the time of the First Amendment's ratification, most states did have established churches that received tax money.  

Over the next two generations, all states disestablished their churches, with Massachusetts being the last to do this in 1833.  However, disestablishment came from ordinary legislative processes, not Supreme Court orders, and even after churches were disestablished, the nascent taxpayer-funded school system continued to include Christian education.  The federal government, for its part, did fund Christianized schools for Native Americans and Freedman at various points in the 19th century. 

Arguments against the constitutionality of vouchers and other taxpayer-funding for religious schools frequently depend on the opposition to funding of Thomas Jefferson and James Madison, even though Jefferson and Madison's opinions on church-state separation are not in the Constitution.  Thomas Jefferson's preference for a "wall between church and state" is no more a constitutional command than John Adams' preference for a "most mild and equitable establishment of religion," or George Washington's opinion, stated ex cathedra in his Farewell Address, that  religion was essential to morality.

Moreover, what Madison and Jefferson had a chance to oppose in their lifetimes was the funding of ministers and seminaries, not church-affiliated schools that would also educate in secular subjects.

Thomas Jefferson's now-famous Letter to the Danbury Baptists, which contains the line "a wall of separation between church and state," was written in response to their petition objecting to a tax they had to pay for Calvinist churches, which was then Connecticut's official church.  The Baptists' request, and Jefferson's response, had nothing to do with taxpayer funding for an indisputably secular intention like education.  Jefferson also only offered moral support to the Danbury Baptists anyway.  He did not say he would or could do anything about the Connecticut law the Danbury Baptists objected to.

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

I'm not making a straw man argument that anti-funding ideologues assert that Jefferson and Madison's opposition to church funding is in the Constitution.  Here's Chief Justice Hugo Black in the 1947's Everson v BOE case. 

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'

And here's David Souter in 2002's Zelman vs Simmons-Harris, the case directly over the constitutionality of vouchers, making his highly-selective use of the Founding Fathers.

It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme, but something has to be said about the enormity of the violation. I anticipated these objectives earlier, in discussing Everson, which cataloged them, the first being respect for freedom of conscience. Jefferson described it as the idea that no one "shall be compelled to ... support any religious worship, place, or ministry whatsoever,", even a "teacher of his own religious persuasion,"., and Madison thought it violated by any " `authority which can force a citizen to contribute three pence ... of his property for the support of any ... establishment.' " "Any tax to establish religion is antithetical to the command that the minds of men always be wholly free." Madison's objection to three pence has simply been lost in the majority's formalism.

This is also an ahistorical stance because even after eighty years after the First Amendment's ratification, it was understood that a state could fund religious schools.  

Hence the effort in the 1870s by opponents of funding, like by President Grant and Senator James G. Blaine, to pass an amendment banning that.  

The following is the version of the unambiguously anti-funding and state-applicable Blaine Amendment that passed the House of Representatives, but failed to receive a two-thirds majority in the Senate.
No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.
If Congress and U.S. Grant had understood the Constitution as already barring support to religious schools, then why did they think the Constitution needed another amendment for that?

Anti-funding Supreme Court Justices do cite Supreme Court precedents from the post-Everson v. BOE era in rationalizing their opposition.  Justices like David Souter, even cite themselves in justifying opposition.  But to me, that is an example of something that is wrong with the US Supreme Court, since the anti-funding holdings are just judicial decisions, made by fallible justices with their own ideologies.  Decisions like Everson v BOE, Lemon v Kurtzman, and BOE v Allen are not laws passed by the people's representatives, let alone constitutional amendments that went through a democratic ratification process.

The Opportunism of the Anti-Voucher Forces

The argument that vouchers violate the "separation of church and state" is also highly opportunistic, because there are numerous instances where local, state, and federal governments do fund religious organizations.

Here are a few examples:

PreK Education
College Education
Services for people experiencing homelessness
Foster home settings
Nursing homes

It's cradle to grave taxpayer-funded religious support, with the exception of the K-12 years.  A child could be born at a taxpayer-funded religious hospital, attend a taxpayer-funded church-owned preschool, go to a taxpayer-funded religious college, work at a taxpayer-funded religious non-profit, go to a taxpayer-funded religious nursing home, and then get a taxpayer-funded funeral at a religious cemetery.

Why is it that people only lose their sh*t about funding religious K-12 schools?

Not all of the above government services involve much education, but PreK and college indisputably do.  In New Jersey's Abbott PreK program, houses of worship can own, house, and operate PreKs at government expense.  For college, it is legal to use Pell Grants at religious colleges, including pervasively religious ones.    

Jefferson, the US Constitution, and Judicial Review

Even if one allows, for the sake of argument, that Jefferson and Madison's opposition to taxpayer-funded churches can be analogized to opposition to taxpayer-funded religious schools, what's strange about this is that there are numerous opinions that Jefferson and Madison had that today are morally repugnant and would never be cited as wise by anyone today with a conscience.

Thomas Jefferson and James Madison believed that white people had a right to enslave Black people.  They believed that white people had a right to steal land from Indians.  They thought women should be restricted to domestic activities.  Jefferson opposed Haitian independence and, as president, did everything he could to undermine the Haitian Revolution.  Jefferson had sexual relations with an enslaved woman who was, by law of the time, his property, and where consent cannot be assumed.  

Although someone can hold odious views on one subject and enlightened views on another, giving automatic deference to Jefferson and Madison is unwarranted.

Even Jefferson's 1800 presidential victory in the electoral college (73 - 65) which gives his utterances so much weight, is morally dubious, since it was allowed by the 3/5ths Compromise, there enslaved people were counted towards a state's electoral votes, even though they had no influence over the choice of electors.  Had the Southern states not gotten electors corresponding to enslaved persons, John Adams would have won a majority in 1800 and references to the wisdom of Jefferson, as a failed presidential candidate, would carry less weight.  Had Adams won, his pro-establishment opinions, would carry more weight.

Jefferson Opposed Judicial Review:

Declaring that the (putative) opinions of people who lived 200 years ago are legally binding on Americans today is an anomaly of the US government.  In no other democracy would judges say that the opinions of people of the 1790s should determinative in the present.    

Thomas Jefferson himself, with incredible foresight, worried that constitutions were too rigid and would allow the dead-hands of the past rule the present.  

Jefferson said in a letter to Madison that the "earth belongs, in usufruct, to the living: the dead have neither powers nor rights over it" and argued that 
the US Constitution to require re-ratification every 20 years.  

In 1816 Jefferson wrote to a friend:
Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of its country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions ... but I know also that laws and institutions must go hand in hand with the progress of the human mind ... we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Thomas Jefferson opposed judicial review, and believed in state autonomy.  Even if Jefferson would have opposed taxpayer funding for religious schools, he would not have wanted judges to prohibit it, and would not have wanted the Supreme Court to order states what to do.  

Although judicial review was not as strong in Jefferson's time as it would become in the 20th century (having only been used once, Marbury v Madison) Jefferson opposed it, calling it an "act of suicide."  

 In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scarecrow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. 

The Remote Choice of the People: The Supreme Court and Democracy

Given how little use the Supreme Court makes of the actual ratified text of the Constitution versus their (highly-selective) use of precedents, the only real democratic principle defending the US Supreme Court is that it is appointed by the president and Senate, both of whom are elected.  As Madison wrote in Federalist 39:

"Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves."  

Of course the Federalist Papers were written at a time when the electoral college was expected to be a deliberative body and Senators were chosen by state legislators, but calling the Supreme Court a "remote choice" is still apt even if the people are more directly involved in choosing president and their Senators.  Madison, after all, probably didn't envision the remoteness of time that now afflicts us, as the average Supreme Court Justice now sits on the court for 27 years.

But what is scary about the electoral-appointive relationship is that a Supreme Court majority corresponds to random mortality, random ideological drift, and sequential presidential victories, not popular support

The randomness of mortality and resignation has been well-covered.  In 1968-69, the Democrats fumbled the resignation of Earl Warren and separately Abe Fortas was sank by a sordid corruption case.  Thus Richard Nixon got to replace two Supreme Court liberals.  Additional resignations occurred during Nixon's tenure, and in six years, Richard Nixon got to name five to the Supreme Court, the most of any president since FDR.  Jimmy Carter, in four years, got zero nominations.  

If Antonin Scalia had died before 2014, the Democratic Senate could have confirmed a liberal to replace him.  If Ruth Bader Ginsburg had lived another five months, the Democrats would have gotten to replace her as well.  

Allowing massive changes in public policy "the Meaning of the Constitution" to depend on the heartbeats of octogenarians is not something a modern state should rest on.

There is also the problem of judges changing their ideologies so that they are not congruent with the electorate that emplaced them on the court.  David Souter, in particular, changed his ideology significantly per the number of years he was on the court.

Madison said Supreme Court justices were a "choice, though a remote choice, of the people themselves," but the choice is remote in that it's done through the president and the Senate, and remote in that a Justice may have been appointed decades ago.  However, once on the bench, Justices actually vote against the electorate that "remotely" put them on the bench, "remote choice" is a joke and we are ruled by the ideological whims of the lawyers who get put on the bench.

Some people praise this as "judicial independence," but the flip-side of judicial independence is a lack of accountability.

There is also the issue of a party having the luck of sequential presidential victories and thereby gaining a Supreme Court majority that is disproportionate to its share of the electorate.  If a party were to gain a third term with victories of ~50%, it would likely possess six or seven Justices and then move policy much farther to the right or left than the electorate wants.

The Two Party System and the "Remote Choice."

Even aside from ideological drift which badly unmoors the Supreme Court from public sentiment, a further problem with seeing the Supreme Court as a democratic "remote choice" is that it is wrong to infer that everyone who votes for a particular presidential candidate agrees with that candidate on everything.  

Many voters aren't even motivated by policy views.  Presidential elections are usually won on the economy or by the swing-voters' propensity to want a change in power after eight years.  A candidate's persona and physical attractiveness matter too, as does snappy campaigning.
School vouchers is a good example of this issue.  Credible polling, such as from Gallup, shows strong support among Democrats, so does a Federation for Children poll.

Because the American two-party system forces people to vote for candidates with whom they have disagreements, a presidential victory doesn't necessarily mean that all of that candidate's judicial nominees will have votes that the majority supports.  James Madison's supposition that the voters have a "remote choice" affecting the Supreme Court is wrong.

I've written before about the electoral college and egregious Senate malapportionment allow non-majoritian policies to be enacted by the judiciary, but even aside from that (highly important) malapportioned reality, in our two-party system, voting for a particular presidential candidate can't be inferred as support for that candidate's judicial appointees, nor even every single decision those judges will make.  

More Judicial Interference on the Way?

For most of the past 75 years the threat to school choice came from liberals who believed in a boundless interpretation of the Establishment Clause so that any trivial government support for a religious school constituted an "establishment of religion."  

That specific threat has disappeared, but conservative judicial decisions also create problems for school choice.

One problem is that wholly independent religious schools have a right to discriminate in hiring and retention based on the principle of a "ministerial exception."   The "Ministerial Exception" even applies in cases of employment where the staff member is primarily a secular-subject teacher, and not clergy at all.  

The Supreme Court has not yet ruled on whether or not a religious organization that receives government money may exercise such discrimination, but the Fulton vs Philadelphia case, involving a Catholic foster agency that refuses to place children with gay couples, may one day apply to voucher schools.

Should the adoption agency triumph, the principle could be extended to voucher schools and prevent a state from establishing a voucher program that has anti-discrimination criteria.  

If states could not set non-discrimination standards, it would be a political problem for school vouchers and even a moral problem for pro-voucher people like me (though I believe that health & safety help is an absolute that should be given to every school)

The Imperial Judiciary

In light of how intense fights over Supreme Court nominations have gotten lately many people say that we should establish term limits for justices, perhaps 18 years.  

I think term limit are a good idea in its own right, but it would not solve the institutional problems of the Supreme Court and that a 5-4 majority can rule something unconstitutional when there is zero consensus that such a policy is unconstitutional and the policy enjoys popular support.  If five  Justices with 18 year terms rule something unconstitutional, without a consensus from the legal establishment, support from the states, or support from any of the elected branches, I think it's just as much a monstrosity as if life-tenured Justices did that.  

Unfortunately there are many contenders for "most undemocratic feature of the US government," but in my opinion, it's the Supreme Court.


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