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The Constitution and
It is not the purpose here to examine this Act in detail. By its own terms it demonstrates that it flows from the belief that the federal government is vested with constitutional jurisdiction over education in any degree which is expedient. Once jurisdiction was clearly usurped in 1867, the small intrusion of statistics gradually expanded to an 18 billion dollar depletion of the public treasury for philanthropy and special interests. Thus, to exhaustively detail the extent of this present federal effort on behalf of expediency would be to dwell on secondary factors and ignore the controlling jurisdictional issue.
Instead, the key focus will be on the erroneous constitutional basis upon which the Act is wholly structured, the pseudo-legal conception of federalism which "shares" power, the authoritarian nature of federal "protection" of state and parental duties, and the denigration of those parental duties from a constitutionally reserved and inalienable status to mere "traditional functions."
It need not be demonstrated that experts who packaged this Act for a constitutionally inexperienced President neglected the Constitution. It will be evident that they neither understood nor acknowledged that the Constitution was designated as a limitation on the jurisdiction and the powers of Congress. These specialists merely employed "the rule of expediency" in their construction, thereby presuming that the American people were "unfit for self-government" and therefore in need of federal 'guidance' over their minds and acts.
The federal government is a government of limited and enumerated powers. It is supreme within its own sphere of jurisdiction, but not with respect to state power which is supreme within its separate and distinct sphere. It is a fundamental truism of federalism that power is not shared between the states and the federal government, unless the Constitution specifically authorizes concurrent jurisdiction. It is also true that the general welfare of the United States is best ensured by congressional adherence to their enumerated powers.
There is one provision of the Constitution which refers to the general welfare, though the term is also referred to in the preamble. The preamble states that
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, . . . do ordain and establish this Constitution for the United States of America.117 (emphasis added)
The preamble outlines the broad purposes of the Constitution. It explains that the people are forming this government in order to achieve some purpose. One such purpose is to promote the general welfare. The preamble is not a grant of power to Congress, nor a prohibition of power. It acknowledges that the Constitution is to be understood as designed to accomplish certain purposes. The Constitution is to be interpreted consistently with the promotion of the general welfare among the people of the United States. The phrase "promote the general welfare" applies to the purpose of the instrument taken as a whole. It is not a grant of power or a bottomless void to be filled by the cleverest branch of government based on the rule of expediency.
An authoritarian Congress with broad and undefined powers is contrary to promoting the general welfare of the people. It is inconsistent with the principle of self-government upon which the Republic has always stood and is adverse to our system of dual governments and civil liberties. A Congress which is given only limited and enumerated powers is the best safeguard against tyranny. This understanding of jurisdiction is consistent with promoting the general welfare of the people.
The Department of Education Organization Act of 1979, however, states:
The Congress declares that the establishment of a Department of Education is in the public interest, will promote the general welfare of the United States, will help ensure that education issues receive proper treatment at the Federal level, and will enable the Federal Government to coordinate its education activities more effectively.118 (emphasis added)
Thus Congress, in declaring federal jurisdiction over education, identified the preamble of the Constitution as the basis on which the statute and its consolidated functions rested. The establishment of a Constitution to, inter alia, promote the general welfare, however, cannot sanction an undefined grant of power to Congress. It cannot be construed to grant Congress power to "ensure that education issues receive proper treatment at the Federal level" or enable Congress to "coordinate its educational activities more effectively." Thus, by employing this language of "promoting the general welfare," either Congress acted mistakenly, it acted negligently, or it acted intentionally and usurped the constitutionally retained jurisdiction of the people over education.119
It may be true that Congress made a mistake in placing the constitutionality of the statute on the authority of the preamble. They may have confused it with Article I, Section 8 which states,
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; . . . 120 (emphasis added)
Confusion existing between "promoting" and "providing" for the general welfare as reflected in the Preamble and Article I, Section 8, has been further heightened by judicial decisions. For instance, in Steward Machine Co. v. Davis121 Justice Cardozo continually referred to the promotion of the general welfare. In that case, the Court found that Congress' Article I, Section 8 spending power was broad enough to include the unemployment compensation scheme created by the Social Security Act of 1935. While that Article clearly articulates congressional power to provide for the general welfare, Cardozo expressly justified the measure based on the erroneous belief that the general welfare of the nation could be constitutional promoted thereby.122 Cardozo failed to acknowledge that the Preamble was not a grant of power to Congress and that congressional authority to provide for the general welfare was not intended to be an open-ended invitation for social reform.
A review of the Constitutional Convention, however, indicates no similar confusion. Grants of power to the national legislature were intimately discussed in relationship to the states. A proposition had been put forward for giving Congress "Legislative power in all cases to which the State Legislatures were individually incompetent."123
Mr. Pinkney and Mr. Rutledge objected to the term "incompetent" as vague. They preferred to,
see an exact enumeration of the powers comprehended by this definition. Mr. Butler repeated his fears that we were running into an extreme in taking away the powers of the States, and called on Mr. Randolph for the extent of his meaning. Mr. Randolph disclaimed any intention to give indefinite powers to the national Legislature, declaring that he was entirely opposed to such an inroad on the State jurisdictions, and that he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point.124
When the initial draft of these powers was subsequently reported on Monday, August 6 in Convention,125 neither the preamble nor the Article VII (now Article I) contained any provision with respect to the general welfare of the people. When Article VII was taken up on August 16, in Convention,126 it remained unaltered. When the committee of eleven reported the Article VII on Tuesday, September 4, 1787 it requested that the phrase "provide for the common defense & general welfare, of the U.S." be included. This was agreed to.127 There was no raging debate that "general welfare" implied some expansive power yet undefined. Precisely the opposite was true. It was added to authorize Congress "to provide for the common defense and general welfare, and for that purpose, among other express grants, they are authorized to lay and collect taxes . . . ."128
Just as the preamble noted the Constitution's purpose was to promote the general welfare, by limiting the powers of the national legislature, so too, the Article I power, to provide for the general welfare was not a grant of wide and exhaustive power. It was a grant of specific power, limited in its application in its own right and limited in its application to the objects thereafter stated. It was not a delegation of powers inconsistent with the entire instrument, the educational practices of the states, the decision of the Convention affirmatively rejecting congressional power over education, the views of the Presidents, the reports of the early congressional committees, or the Ninth and Tenth amendments' reservation of educational rights and powers to the people.
Thus the Article I, Section 8 "general welfare clause" in no way included any Congressional power over education. This power was specifically rejected at the Convention as indicated,129 and cannot be magically resurrected by the disparagement of that clause for the purposes of federal expediency. Congress may have either been negligent or guilty of malfeasance, but it is unlikely to have made a mistake in passing such an unconstitutional Act.
The Act also suggests that the federal government "shares" jurisdiction with the states. The Constitution, however, provides for the only cases of shared or concurrent jurisdiction. A simple review of the Constitution does not reveal any leeway for a "significant, but carefully restrained federal role in education."130 It does not provide that "education is and should be of concern to federal, state and local governments."131 It does not support other fictitious statements such as, "In all cases, Congress has been careful to stick to the Constitutionally-backed principle that the Federal role is limited to supplementing, not supplanting, State and local prerogatives and
Concurrent jurisdictions outlined in the Constitution do not support any rights . . ."132 These statements are gibberish and nonsense. shared federal-state presence in education. The Constitution does not permit either "supplementing" or "supplanting." These words only describe degrees of control. They are two sides of the same jurisdictional fallacy,133 contrived to distort the constitutional limitations on Congress which preclude them from intervening in education, directly or indirectly.
The Constitution does not vest in Congress the authoritarian power to protect the states and parents from their own educational choices. The proposal made in Convention giving power to the Congress to legislate in all cases where the state legislatures were individually incompetent, was not construed so as to be completely at odds with the nature of Congress' limited and enumerated powers.
Similarly, Article IV, Section 4's declaration that each state shall be guaranteed a republican form of government, prohibits the federal government from establishing a centralized government dictating policy to the states. It confirms the controlling principle of self-government, by entrusting the people with a republican government which they participate in, precisely because they can govern themselves. Any unenumerated centralization of power in the hands of Congress is at odds with this principle.
Patently Napoleonic statements such as,
It is the intention of the Congress in the establishment of the Department to protect the rights of States and local governments and public and private educational institutions . . . 134
reflect a vast and irresponsible usurpation, denigrating the Constitution from which limited Congressional authority is derived.
Historically, "every standard writer on the subject of either laws or morals proclaims with one voice that parents are bound by the natural law to feed, clothe, and educate their children."135
James Kent in his famous Commentaries on American Law, observed this universal precept, stating that:
The duties of parents to their children, as being their natural guardians, consist in maintaining and educating them during the season of infancy and youth, and in making reasonable provision for their future usefulness and happiness in life, by a situation suited to their habits, and a competent provision for the exigencies of that situation.136
Kent also acknowledged that "the rights of parents result from their duties."137 In a clear exposition of these rights, he concluded that as parents,
are bound to maintain and educate their children, the law has given them a right to such authority; and in the support of that authority, a right to the exercise of such discipline, as may be requisite for the discharge of their sacred trust.138
Francis Wayland, a prominent political writer and one time President of Brown University, wrote in 1841 that several duties devolved upon a parent to secure to their children a physical, intellectual and moral education. He stated that this "obligation requires that it be done either by a parent himself, or that he procure it to be done by another . . . But, let it be remembered it can be done only in part" by the parents' delegee.139 Furthermore, Wayland clearly pointed out that the "teacher is only the agent; the parent is the principal,. The teacher does not remove from the parent any of the responsibilities of his relation."140
Reiterating the exclusive and original jurisdiction of parents in general and a father in particular, Wayland concluded that "while he discharges his parental duties within these limits, he is, by the law of God, exempt from interference both from the individual and from society" until the child achieves the age of majority.141 Commenting on the breach of this jurisdiction, Montgomery wrote,
The law of nature and nature's God, which ordains that it is both the right and duty of parents to educate their children 'in such manner as they believe will be most for their future happiness' is utterly disregarded and set at naught by the State, which ordains that it is neither the right nor the duty of parents, but of the State, to say when, where, by whom, and in what manner our children shall be educated.142
Rather than promoting the general welfare, governmental usurpation of parental authority, either on a state or federal level "has always been found one of the surest indications of the decline of social order, and the unfailing precursor of public turbulence and anarchy."143
If there was any thought that Congress could utilize the general welfare clause as an open invitation to assume power, it was affirmatively denied and negated by reference to the natural right and duty of parents to direct the education of their children. These inalienable prerogatives were also reiterated in principle by the Ninth and Tenth Amendments.
The Ninth Amendment states that: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people ."144 The right to educate one's child is not specifically enumerated, except indirectly, in the religious liberty, speech, press and assembly clause of the First Amendment. Thus, as an inalienable and natural right of every parent, it is retained undenied and undisparaged, by parents as a function of the nature of the right itself as well as by the Ninth Amendment.
The Tenth Amendment provides that: "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."145
Congress was affirmatively denied power over education at the Convention. It was not delegated to the United States by the Constitution, nor prohibited to the States by the Constitution. As an inalienable right, however, the civil power to execute this right, was reserved to the people. Parents retained the power to execute their natural right as parents. Education is not the natural right of any state or government, nor within their constitutional sphere of power.
The congressional findings upon which the federal Department of Education Act of 1979 rested, however, rewrote the Tenth Amendment to suit the expedient objectives of influence and control. They introduced unconstitutional distinctions between private and public rights and further suppressed the meaningful exercise of that parental duty. While stating that "parents have the primary responsibility for education of their children, and States, localities, and private institutions have the primary responsibility for supporting that parental role,"146 they implicitly limited the parental right to the private sphere. Thus within the private sphere the state and voluntary institutions are to support parents. But the Congress continued, "In our Federal system, the primary public responsibility for education is reserved respectively to the States and the local school systems and other intrumentalities of the State."147 Thus in the public sphere the states, rather than parents, are awarded educational custody of children. In both instances, however, Congress made an intentional effort to share educational jurisdiction alongside either the States and parents, or the State and its instrumentalities. This unauthorized distinction between public and private, and primary and secondary, has no precedent in the Ninth and Tenth Amendments. Similarly, concurrent power over a child's education is not given to the Congress or the state, and is repulsive to the inalienable and natural rights of parents to educate their children, publicly and privately, directly and indirectly. It is also repugnant to our form of constitutional and limited government.
ARGUMENTS OF EXPEDIENCY
The principal objections to withdrawal of federal jurisdiction over education are based on expediency. To that extent, they are not objections, but attempts to improperly dissolve or blur constitutional lines of jurisdiction. For that reason alone they should be rejected because they ignore the preexisting jurisdictional limitations on congressional power and the option to properly amend the Constitution.
ARGUMENTS OF ECONOMICS
Objections indicating that states and local governments will wither up if federal influence and monies are withdrawn are equally invalid. Constitutionally, parents retain the original jurisdiction over the education of their children. Statistically, the federal government supplies only about 8 percent of monies used in the public school cartel. States and local governments supply the balance. The NEA and other political unions, however, want to increase the federal government's share to 33 percent. This would not only solidify their influence, but disparage state and local responsiveness to parental directives.148 It would also compound federal deficits which are already unmanageable. Acknowledgment of the proper jurisdiction of parents and the private sector, however, would eliminate the need for substantially more than the present federal subsidy. Once a proper jurisdictional understanding is obtained, the financial objections can be properly handled.
ARGUMENTS BY EDUCATIONAL UNIONS
Objections that parents will not execute their educational trust presume that teachers' unions, and the state and federal governments, have executed their trust appropriately. Apart from recent findings that the United States is a "Nation at Risk" due to union and governmental 'assistance,' 149 these entities are hardly in a position to discuss tr-s proper execution of an educational trust. If an honest observance of the constitutional compact cannot be had by Congress, it need not be expected anywhere else. If Congress undertook its governmental trust seriously, it would provide a first step towards rekindling the self-government of the people. Practical effects such as returning to the people self-government over local educational matters, the advantages of constitutionally non-enumerated expenditures, and freeing up the federal government to attend to its proper spheres of jurisdiction would provide decentralized control, the reduction of federal deficits by eliminating the necessary leadership for others to follow suit and improve education rather than strengthen control. Parents on the whole are competent in the proper execution of their educational trust. If they were incompetent, then nothing could be said of their ability to execute their elective franchise with any integrity.
The original jurisdiction of parents and individual adults over education both public and private, is certain and universal. Consistent with that jurisdiction is the delegated authority of the private sector to assist parents or provide educational service on a voluntary basis.
Congressional usurpation of parental jurisdiction is contrary to the law of nature and constitutional restraints on legislative power. Congress may not embrace the rule of expediency in constitutional construction of their power. They may not discard the liberties, freedoms, and constitutional heritage of the people with respect to education under the pretext of general welfare.
When self-government is revived and constitutional limitations observed, all may then enjoy the free exercise of inalienable rights. When such limitations are honored, a constitutional government of limited and enumerated powers acts consistently with the general welfare and happiness of the people.
The unlawful and unconstitutional exercise of congressional power over education, however, is contrary to the rule of law under God, the freedom of the mind from all usurpers, and the Supreme Law of the Land. Education, therefore, is not lawfully or constitutionally subject to federal jurisdiction.150
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* Copyright © 1985, 2006 Kerry L. Morgan. Used with permission. Excerpted from The Constitution and Federal Jurisdiction in American Education.
117. U.S., Constitution, preamble.
118. Legislative History, supra note 116, at 1:3.
119. See U.S., Constitution, art. VI, sec. 3 which states, "The Senators and representatives . . . and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;" (emphasis added).
120. U.S., Constitution, art. I, sec. 8, cl. 1. See note 11 supra.
121. 301 U.S. 548 (1937).
122. 301 U.S. at 587 & 589. See also United States v. Butler, 297 U.S. 1 (1936) (Article I, Section 8, Clause 1, case invalidating the Agricultural Adjustment Act of 1933.)
123. Documents Illustrative, supra note 17, at 129.
124. Documents Illustrative, supra note 17, at 130.
125. Documents Illustrative, supra, note 17, at 471-75.
126. Documents Illustrative, supra note 17, at 552-57.
127. Documents Illustrative, supra note 17, at 659-660.
128. James Kent, Commentaries on American Law 4 vols. (New York 0. Halsted, 1826; reprint ed., New York: Da Capo Press, 1971), 1:222.
129. See text accompanying notes 17-25 supra.
130. Legislative History, supra note 116, at 1:518. (Report No. 96-49, Calendar No. 54, 96th Cong., 1st sess., p. 1).
131. Legislative History, supra note 116, at 1:519. (Report No. 96-49, Calendar No. 54 96th Cong., 1st sess., p. 2).
132. Legislative History, supra note 116, at 1:532. (Report No. 96-49, Calendar No. 54 96th Cong., 1st sess., p. 15).
133. See generally, U.S., Constitution, Art. I, sec. 16; Art. IV, and Art. V for some examples of express concurrent authority of federal and state governments.
134. Legislative History, supra note 116, at 1:3. See also 20 USC 3403.
135. Zach Montgomery, comp., The School Question from a Parental and Non- Sectarian Stand Point, 4th ed. (Washington: Gibson Bros., 1889; reprint ed.; New York Arno Press, 1972), 50.
136. Kent, Commentaries, supra note 128, at 2:159. He states: The next domestic relation which we are to consider, is that of parent and child. The duties that reciprocally result from this connection, are prescribed, as well as those feelings of parental, home and fetal reverence which Providence has implanted in the human breast, as by the positive precepts of religion and of our municipal law. . . . The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. the laws and customs of all nations have enforced this plain precept of Universal law. Id.
137. Kent, Commentaries, supra note 128, at 2:169.
138. Kent, Commentaries, supra note 128, at 2:169.
139. Francis Wayland, The Elements of Moral Science, 4th ed. (Boston: Gould, Kendall and Lincoln, 1841), 318.
140. Wayland, Elements supra note 139, at 318.
141. Wayland, Elements, supra note 139, at 324.
142. Montgomery, Question, supra note 135, at 52.
143. Wayland, Elements, supra note 139, at 315.
144. U.S., Constitution, amend. IX.
145. U.S., Constitution, amend. X, supra note 10.
146. Legislative History, supra note 116, at 1:2. See also 20 USC 3401.
147. Legislative History, supra note 116, at 1:2. (emphasis added). See also 20 USC 3401.
148. Legislative History, supra note 116, at 2:1150-1156. Honorable L.H. Fountain stated,
149. See National Commission on Excellence in Education, "A Nation at Risk The Imperative for Education Reform," (Washington, D.C.: U.S. Government Printing Office, No.065-000-00177-2, 1983).
One important proponent (of the Federal Department of Education) is the National Education Association, which testified that "the Federal Government ought to be paying as much as one-third of the cost of public education." The NEA's goal of a one-third share stands in sharp contrast with the approximately 8 percent the Federal Government presently contributes, through all its programs, to public education. Id. at 1151.
150. For contemporary examples of how federal jurisdiction over education is justified on the basis of expediency reflecting a liberal executive agenda, see Keppel, Revolution, supra note 114. See also Califano, Governing, supra note 114. For a contemporary example of how federal jurisdiction over education is justified on the basis of expediency reflecting a conservative executive agenda, see Stuart M. Butler, ed., Mandate for Leadership II (Washington, D.C.: The Heritage Foundation, 1984), 49-62. The Foundation's recommendations explain the 'necessity' of federal funding, statistical record keeping and moral pressure in "reasonably accommodating the nation's interest in education." Inc. at 54-56. A conservative agenda is no different, however, than a liberal one if law and the Constitution are suppressed in the process. See also text accompanying notes 3-10 supra.