Monday, October 8, 2018
In my last article, The Constitutional Compromise to Guarantee Education, I examined the period immediately leading up to and following the Fourteenth Amendment and found that the ratification of the 14th Amendment and southern state's education clauses in the constitutions were inextricably intertwined. Quite simply, rewriting their constitutions and providing for public education was a condition of readmission to the Union, as was the ratification of the 14th Amendment. In other words, without constitutional guarantees of education, southern states never reenter the Union. And without southern votes for the 14th Amendment, the amendment never becomes part of the constitution. Thus, I argue that one cannot understand the rights of state citizenship that the 14th Amendment secured, nor the meaning of a republican form of government, without examining those state constitutions.
Our legal lexicon, at least as far as I know it, does not have a word to capture what occurred. For lack of a better term, I call these events a constitutional compromise. None of the major constitutional exercises of power, nor the constitutional revisions that emerge, would have occurred without the others. My conclusion is that, whatever we call it, the federal constitution did, as a matter of fact, guarantee access to public education. The article then moves on to the arguably tougher question of figuring out what, if any limits, the constitutional compromise places on states in their delivery of education.
After finishing that research and having time to further reflect on it, I began to question how exactly a modern court would deal with this history. There is no constitutional compromise doctrine, no republic form of government standard, no development of the rights of state citizenship. So I began to dig further and came upon yet additional problems and concerns. The foremost is that those who enacted the 14th Amendment thought about rights far differently than us. Their thoughts on how best to protect those rights was also far different. The main effect and purpose of the 14th Amendment was not to grant courts authority, but to give Congress authority. With the 14th Amendment, Congress's prior civil rights legislation would be on strong footing and Congress could pass far more. In short, the primary protection for life, liberty, property, due process, equal protection, and privileges and communities would come from Congress. This is not to say courts were not important too, but to emphasize that Congress power was more important.
This frame of reference is all but lost in modern doctrine. The Court has declared itself the final arbiter of 14th Amendment protections and will override Congress when it deems it appropriate. The Court has also all but read privileges and immunities out of the Constitution. On the other hand, the Court has read substantive due process into the Constitution. The reading in of that concept, ironically, operates as tool to fix the Court's other doctrinal errors. It allows the Court, albeit awkwardly at times, to bridge the gap between our modern way of thinking about rights and what the nation actually did and expected when it ratified the 14th Amendment.
With that in mind, I said "to heck with Constitutional Compromises." What would substantive due process do with the historical events I unearthed in my prior research and what additional questions might substantive due process ask? What emerged was a second article, The Fundamental Right to Education. I saw a lot of other historical events in a new light by asking those questions. I also discovered legislative action that had previously eluded my attention. My abstract offers this summary:
New litigation has revived one of the most important questions of constitutional law: is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so.
To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our constitution protects education, particularly since the word education does not even appear in the constitution. Second, the right to education implicates complex questions regarding its scope. Those questions would require the Court to determine the quality of education the constitution requires. Neither litigants nor scholars have seriously grappled with these problems, which explains why the Court has yet to recognize a right to education. This Article cures both problems.
Not only does this Article offer a compelling originalist argument for a fundamental right to education, it demonstrates that the right falls squarely within the Court’s existing precedent. It traces the fundamental importance of education from the nation’s founding principles through the years immediately following the Fourteenth Amendment. Most important, it details how, in the years surrounding the final ratification of the Fourteenth Amendment, Congress demanded that states guarantee access to public education in their state constitutions and linked these demands to the Fourteenth Amendment itself. In fact, after the Fourteenth Amendment, no state would ever again enter the Union without an education clause in its constitution. This history, due to its complexity, has quite simply been overlooked.
This Article also defines the scope of a right to education with historical evidence. It demonstrates that the original purpose of public education was to prepare citizens to participate actively in self-government. In the mid-nineteenth century, this required an education that prepares citizens to comprehend, evaluate, and act thoughtfully on the functions and policies of government.
This picture of the Northwest Ordinance of 1787, which predates the US Constitution, is worth a 1,000 words, even though it only includes less than 100. The Northwest Ordinance, moreover, is one of just a couple of foundation documents printed as the preface to the official version of the Unite States Code. It stands alongside the Declaration of Independence and the Constitution
My article is forthcoming in the Notre Dame Law Review. Get the current draft here.