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The Constitution and Federal Jurisdiction in American Education*
It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If, to please the people, we offer what we ourselves dis-approve, how can we afterward defend our work? Let us raise a standard to which the wise and honest can repair; the event is in the hand of God.
George Washington
Address to the Constitutional Convention - 1787

I.   INTRODUCTION

When President Andrew Johnson and Congress created a Department of Education in 1867, it was not simply a matter of organization and appropriation. Congressional debate reiterated what former Presidents including Jefferson, Monroe, and Buchanan had clearly articulated: that federal interference in educational matters was unconstitutional. Congressman Rogers in 1866 noted that the formation of a Department of Education was not among the enumerated powers of Congress, declaring that "there is no authority under the Constitution of the United States to authorize Congress to interfere with the education of the different states in any manner, directly or indirectly."1

In 1979, however, when President Jimmy Carter and Congress created a Cabinet level Department of Education, congressional debate was monopolized by organizational and appropriation considerations. Absent during the proceedings were discussions of the crucial historical and constitutional limitations which clearly precluded the assertion of federal jurisdiction over education.2 A proper regard for these limitations requires withdrawal of federal jurisdiction over education and the abolition of the Federal Department of Education and its functions. Such a measure would:

    1. Strengthen the people in the exercise of their preexisting inalienable right and power over education acknowledged by the Ninth and Tenth Amendments. This includes education, both publicly and privately, directly and indirectly;

    2. Strengthen the federal government by redirecting its time, energy and resources toward those objects for which it bears express constitutional responsibility;

    3. Strengthen the national economy by acknowledging the constitutional limitations on the purpose to which the federal treasury may be directed and by reducing federal deficits;

    4. Strengthen education by encouraging educational diversity and by opposing continued expansion and centralization of educational policy.

Continued federal intervention into education, however, would only disparage historically acknowledged inalienable rights, and would further distort the constitutionally enumerated limitations on the Congress of the United States. These limitations are compelling and deserve further attention.

II.   HISTORICAL AND CONSTITUTIONAL LIMITATIONS

The Constitution of the United States is, by its terms, the Supreme Law of the Land.3 As such, the Constitution not only comports with preexisting principles of law, but also the preexisting criteria of a legal compact. Sir William Blackstone, in his famous Commentaries, identified these precepts when he wrote

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. And, consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker's will. This will of his Maker, is called the law of Nature.4

Blackstone also asserted that the law of Nature was "binding over all the globe, in all countries, and at all times; no human laws are of any validity if contrary to this; . . . "5 Thus human laws, whether constitutional, statutory or otherwise could only be valid in light of the preexisting law of nature.

The Creator also revealed law directly. Blackstone stated that the revealed law is "to be found only in the Holy Scriptures." He added that "these precepts, when revealed, are found upon comparison to be really a part of the original law of nature . . . . "6 After surveying the matter in some depth, he concluded that

Upon these two foundations, the law of Nature and the law of Revelation, depend all human law; that is to say, no human laws should be suffered to contradict these.7

Thus the Constitution, in order to be the Supreme Law of the Land, must comport with preexisting principles of law. That is, the Constitution must be lawful before it can be the Supreme Law of the Land. The Constitution (or its interpretations) may not run contrary to the foundations of law, or else it would not be lawful. Similarly, a Congressional enactment may not run contrary to foundations of law and still remain lawful and constitutional.

As the Supreme Law of the Land, the Constitution is also a legal compact. As a compact, the original parties and their posterity or successors are mutually bound to uphold the compact, modifying it only according to the limited and prescribed means therein expressed. The irrevocable nature of the instrument and its fixed delegation of limited and enumerated power also make up essential elements of a compact. Thus, the Constitution, in order to be the Supreme Law of the Land, must also comport with the preexisting criteria of a legal compact. The Constitution (or its interpretations) may not run contrary to these criteria and still remain a Constitution. A Congressional enactment may not run contrary to these criteria without it also being unconstitutional.

If Congress were to construe the Constitution based on the tenor of the times, the exigencies of the circumstances, or merely relative to human experience, it would unlawfully usurp the compact's authority as the Supreme Law of the Land. In such a case Congress would become a law unto itself. More specifically, it would employ "law" in an unlawful and unconstitutional manner.8 The whole aim, however, "of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it."9

Limited and Enumerated Powers

These legal and constitutional principles bound the Congress of 1791 and continue to bind Congress today. This is the nature of law and legal compacts and therefore the nature of the Supreme Law of the Land and the Constitution.

The Constitution, of course, explicitly binds Congress by enumerating which congressional powers are delegated and how they are to be lawfully employed. As a binding compact, any powers exercised by the federal government must be in accordance with that compact. Constitutionally, the federal government is a government of limited and enumerated powers. Power not delegated to the federal government by the written Constitution is reserved to the states or to the people respectively.10

Education is not found among the enumerated objects of the Constitution. Article I does not authorize Congress to establish a Department of Education much less grant it jurisdiction to encourage the education of the people in the several states. Furthermore, federal involvement in education is not an appropriate means plainly adapted to carry out an object contemplated by an enumerated power. Congress may, however, maintain voluntary educational facilities and academies if those means are plainly adopted to raising a military and the like.11

Though Congress is prohibited from entangling itself with the education of the people in the several states, it may concern itself with those objects enumerated in Article I, Section 8, Clause 17. This clause grants Congress exclusive legislative authority over the District of Columbia. With respect to the District of Columbia, Congress has legislative authority pro-tanto. It may act as a State legislature, but may not abridge any constitutionally retained right of the people over education.

As far as congressional authority over Federal Territories and property is concerned, the Constitution enumerates certain powers in Article IV, Section 3, Clause 2. This Clause grants Congress power to dispose of and make all needful rules and regulations respecting the territories or other property belonging to the United States. This proprietary function differs from the legislative function over the District of Columbia though both constitute grants of power.12

The extent, however, of congressional power with respect to education is limited to the promotion of science and arts and is provided for by Article I, Section 8, Clause 8. The means Congress may employ in the promotion of these enumerated objects is also noted. Congress may only promote these objects "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoverys." Thus both the object and the means are clearly enumerated and explicitly limited.13 If Congress exercised any other power inconsistent with these objects in respect to education, it would be pernicious both to the states and the people, and contrary to the Constitution as a legal compact and the Supreme Law of the Land.

Congress - Under the Articles of Confederation

These constitutional limitations, however, were not expressly in place when the Congress met under the Articles of Confederation in 1777. In an effort to reduce the Revolutionary War deficit, the Congress under the Articles of Confederation undertook many measures. In 1780 it requested large land states, such as Virginia, to surrender their claim over certain western lands to the General Government. The General Government hoped to dispose of these lands by sale, thereby extinguishing the deficit. To gain an understanding of the proportions of the conveyance, the states of Kentucky, Tennessee, Ohio, Indiana, Mississippi, Illinois, Alabama, Michigan, and Wisconsin were eventually formed out of these territories.14

In order to induce settlement and sale of these frontier territories now under the jurisdiction of the General Government, an ordinance for ascertaining the mode of disposing of land in the western territory was established on May 20, 1785. Among other objects, this ordinance reserved a section of every township for the maintenance of public schools. This was the first government enactment concerning land for educational purposes. On July 13, 1787, the Congress enacted another ordinance for the government of the territory of the United States northwest of the Ohio river. This became known as the "Northwest Ordinance." It not only reserved lands for educational purposes as did its predecessor, but constituted the first grant of land for those purposes .15

The legality of Congressional action pursuant to the Articles of Confederation, in selling territories with designated tracts for 'educational purposes', in no way indicates that Congress, under the Constitution, possessed any similar power with respect to states. The ordinances of 1785 and 1787 only served to demonstrate that the situation called for the expedited settlement and sale of territories. Thus subsequent congressional enactments setting aside territories or other federal lands for educational purposes, do not set a precedent for education within the several states. Education, however, was not a central object of Congress' concern, but rather an inducement for sale and settlement of territories which had been ceded to the general government voluntarily. Once land was transferred to a state, or a territory was admitted as a state to the Union, any continuing federal influence over education terminated.16

Constitutional Convention

No general congressional authority over education has ever been a part of the Constitution. Several attempts, however, were made during the Constitutional Convention of 1787 to give Congress educational powers. On May 29th Mr. Charles Pinckney presented his draft of a federal government which provided that the legislature of the United States shall have the power "to establish and provide for a national university at the seat of government of the United States." When the committee, which considered the matter reported their constitutional draft on August 6, they completely excluded this particular provision.17 During the Convention on August 18, James Madison and others proposed several items to be included within the legislative power of the United States, including the power:

    -To secure to literary authors their copyrights for a limited time.
    -To establish a university.
    -To encourage by proper premiums and provisions, the advancement of useful knowledge and discoveries.
    -To establish seminaries for the promotion of literature, and the arts and sciences.
    -To grant patents for useful inventions.
    -To establish public institutions, rewards, and immunities, for the promotion of agriculture, commerce, trades and manufactures.

Madison drew a distinction between a national university, seminaries for the promotion of literature, arts and sciences, and other public educational institutions. A national university implied a university which taught all branches of learning, owned and/or operated by the federal government. Seminaries referred to any school, academy, college, or university, in which young persons were instructed in several disciplines, including theology. It did not merely connote a school of theology as it does today. After considering these provisions, they were rejected. Only the patent and copyright provisions were found among the national legislature's authority when the matter was reported out of Committee.18

On September 12, 1787 the "Committee of Stile and Arrangement" reported a Constitution which, apart from a few changes, became the present Constitution less amendments. That version contained no specific, enumerated, or expressed power in Congress to legislate concerning education, nor did it provide for Congressional encouragement of education or the advancement of useful knowledge and discoveries, directly or indirectly.19

On September 14, Mr. Madison and Mr. Pinckney, during debates on the submitted draft, moved once again to vest Congress with power "to establish an University, in which no preferences or distinctions should be allowed on account of Religion."20 The proposal was again lost on the Convention as a whole. On September 17 the Constitution, void of congressional power over education, was ratified. Almost a year later on June 21, 1788, the ninth state ratified the Constitution. On April 30, 1789, General George Washington was inaugurated as President of the United States.21

It is certain that Congress was denied the power to establish a national university. The establishment of seminaries promoting literature, arts and sciences was also denied Congress' jurisdictional sweep, as well as establishment of other public educational institutions. The only encouragement and advancement of useful knowledge and discoveries granted to Congress was the exception of the patent and copyright provisions of Article I, Section 8, Clause 8.22 It was wisely considered that the federal government should have no greater constitutional power to encourage education among the several states beyond this particular enumerated object. If the specific power was not enumerated in Congress, Congress failed to obtain it. The Tenth Amendment ratified in 1791 reaffirmed this well known principle.23

Thus, when Washington came to office, the only real question regarding education was whether Congress, acting like a State pursuant to its Article I, Section 8, Clause 17 powers over the District of Columbia alone, could establish a national university within the exclusive geographical confines of the District of Columbia, and whether Congress could constitutionally appropriate movies from the federal treasury for such a purpose.24 As a practical matter, "education was left where it had always been, in the hands of the states or of the people." 25

ENDNOTES

*   Copyright © 1985, 2006 Kerry L. Morgan. Used with permission. Excerpted from The Constitution and Federal Jurisdiction in American Education.
     1.    U.S., Congress, House, Representative Rogers noted the unconstitutionality of the proposed Federal Department of Education, 39th Cong., 2nd sess., 5 June 1866, The Congressional Globe, 2968. Opponents of the Department also predicted that the original budget of $1,678.67 would eventually become expensive and unduly burdensome. One hundred and eighteen years later, that budget reached almost 18 billion dollars. In short, the fruit from this unconstitutional sowing has ripened into an unchecked federal presence in education.
     2.    See Rufus E. Miles, Jr., A Cabinet Department of Education (Washington, D.C.: American Council on Education, 1976) and U.S., Congress, Senate Committee on Governmental Affairs, Hearings- Department of Education Act of 1977, pts. 1-2, 95th Cong., 1st sess., (Washington, D.C.: Government Printing Office, 1977). These key sources are inordinately devoid of any jurisdictional understanding which is consistent with the Constitution or history. See Miles, Id. at 38.
     3.    U.S., Constitution, art. VI, sec. 2 states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme law of the Land . . . ."
     4.    St. George Tucker, Blackstone's Commentaries, 5 vols. (Philadelphia: William Birch & Abraham Small, 1803; reprint ed., Buffalo, N.Y.: Dennis & Co., 1965), 1:39.
     5.    Tucker, Blackstone, supra note 4, at 1:41.
     6.    Tucker, Blackstone, supra note 4, at 1:41.
     7.    Tucker, Blackstone, supra note 4, at 1:42.
     8.    The view that law was relative to time and circumstance and rooted in the evolutionary dogma of the times, was expressed by Oliver Wendell Holmes, Jr. in an essay entitled Natural Law. Holmes stated,

The Jurist who believes in natural law seems to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.

        Oliver Wendell Holmes, Jr. Collected Legal Papers, contained in The Common Law & Other Writings (Birmingham, Alabama: The Legal Classics Library, Special Edition, 1982), 312. If acceptability was the test, then that which is familiar today would become equally suspect according to Holmes analysis.
        Critical of the duties and rights which flow from natural law, Holmes substituted his own view declaring:

For legal purposes a right is only the hypostasis of a prophecy - the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it . . . . Id. at 313.

        Such a position is completely contrary, however, to the immutable prerogatives guaranteed to free men and embodied in such landmark charters as the Magna Charta. See also Aleksandr I. Solzhenitsyn, A World Split Apart, (New York: Harper & Row, 1978). Solzhenitsyn states: "we have lost the concept of a Supreme Complete Entity which used to restrain our passions and our irresponsibility." Id. at 57.
   9.    See Home Building and Loan Assn. v. Blaisdell, 290 U.S. 398 at 453 (1934) (Sutherland, J., dissenting). Mr. Justice Sutherland also noted:

A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. Id. at 448-49.

        The Court in Ex parts Milligan, (4 Wall. 2, 120-121, 18 L. ed. 281, 295, 296) also stated:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended doctrine leads directly to anarchy or despotism . . . . Id.

        Sutherland observed that without such a perspective as expressed in during any of the great exigencies of government. Such a Milligan, that:

The Constitution would cease to be the 'Supreme Law of the Land,' binding equally upon governments and (the) governed at all times and under all circumstances, and become a mere collection of political maxims to be adhered to or disregarded according to the prevailing sentiment or the legislative and judicial opinion in respect of the supposed necessities of the hour. 290 U.S. at 449-50.

   10.    U.S., Constitution, amend. X states: "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."
   11.    U.S., Constitution, art. I, sec. 8, states in part:

(1) The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

(3) to regulate Commerce with foreign Nations, and among several States, and with Indian Tribes;

(5) To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

(8) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

(13) To provide and maintain a Navy;

(14) To make Rules for the Government and Regulation of the land and naval Forces;

(15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

(16) To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

(17) To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; - And

(18) To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vest by this Constitution in the Government of the United States, or in any Department of Officer thereof.

U.S., Constitution, art. 4, sec. 3, cl. 2 states: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
        See also McCulloch v. Maryland 17 U.S. (4 Wheat) 316 (1819). "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (Marshall, C.J.) Id.
   12.    U.S., Constitution, art. IV, sec. 3, cl. 2, supra note 11.
   13.    U.S., Constitution, art. I, sec. 8, cls. 8, supra note 11.
   14.    See George B. Germann, National Legislation Concerning Education (New York Columbia University, 1899, Library of American Civilization 15623), 13-14.
   15.    See Germann, National Legislation, supra note 14, at 17-20.
   16.    For a general discussion of state sovereignty see Hinsdale, U.S. Education, infra note 25 at 1268-74. Today there is no longer the vast expanse of territories which the federal government could feasibly sell to raise revenue. Furthermore, the Congress acknowledged it had no authority to interfere with the educational policy of any parent or state, and confined its actions to territories alone. President Buchanan was to later note in 1859 that numerous congressional land grants for education, "have been chiefly, if not exclusively, made to the new states as they successively entered the Union" (citing the language of the Ordinances of the Con-federate Congress of 1785 and 1787). He resolved that, "It cannot be pretended that an agricultural college in New York or Virginia would aid the settlement or facilitate the sale of public lands in Minnesota or California." J.D. Richardson, ed., Compilation of the Messages and Papers of the Presidents, 1789- 1897, 10 vols., (Washington, D.C.: Government Printing Office, 1896), 5:547, Veto Message, February 24, 1859. He knew that the original rationale for a land designation provision was to induce settlement of territories. Deviation from that rationale would be by pretext and unconstitutional. Thus when Congress reaffirmed the principles of the Northwest Ordinance during its first Session, it did so with respect to territories, not states.
   17.    Documents Illustrative of the Formation of the Union of the American States, 69th Gong., 1st sess., House Document No. 398 (Washington, D.C.: Government Printing Office, 1927), 119, 471-82. Jonathan Elliot, comp., The Debates in the Several State Conventions on the Adoption of the Constitution, 5 vols. (Philadelphia: J.B. Lippincott Co., 1891), 1:147 & 226.
   18.    Documents Illustrative, supra note 17, at 563-64. Elliot, Debates, supra note 17, at 1:247.
   19.    Documents Illustrative, supra note 17, at 702-12. Elliot, Debates, supra note 17, at 1:297.
   20.    Documents Illustrative, supra note 17, at 725. Mr. Gov. Morris noted in response to Madison, that he was of the opinion that : "It is not necessary. The exclusive power at the Seat of Government, will reach the object." Id.
   21.    Documents Illustrative, supra note 17, at 1024.
   22.    U.S., Constitution, art. I, sec. 8, cl. 8 supra note 11.
   23.    For instance, when the Delegates of the people of Virginia ratified the Constitution, they did so with the understanding that "the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will:" Documents Illustrative, supra note 17, at 1027.
   24.    U.S., Constitution, art. I, sec. 8, cl. 17, supra note 11. U.S., Constitution, art. I, sec. 9, cl. 7 states in part: "No Money shall be drawn from the Treasury, but in Consequences of Appropriations made by Law . . . ."
   25.    B. A. Hinsdale, comp., U.S. Office of Education, Documents Illustrative of American Educational History, 53d Cong., 2d sess., 1892-93, House ex. doc. 1, pt. 5, 2 vols. (Washington, D.C.: Government Printing Office, 1895, Library of American Civilization 10588), 2:1293-94. See also U.S., Constitution, amend. X, supra note 2.

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