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.
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
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
“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.”
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.'
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.
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.
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.
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:
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
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.
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.
- Vouchers, Integration, and Educational Choice: My Case for Vouchers
- Vouchers, the First Amendment, and the Imperial Judiciary
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- The Democratic Senators Represent More People than the Republican Senators
- The Need for Shared Control Over the Congressional Calendar