Sunday, April 5, 2009

my favorite irrelevancy

I was in the process of crafting a post about the Obama spending bills and the jerks in Congress who are going to pass them. But then I just got mad, and the whole thing degenerated into a nasty bit of name calling and acrimony. I don't mind that so much; for me and my lawyer-wife that's a Friday night. But since there's no possibility I'll get lucky at the end of a nasty blog (no matter what the emails in my junkmail folder say), I decided to change the subject and start over. Before I do that, let me just summarize the points I was making before I thought better of it: Senate Majority Leader Harry Reid is an androgynous weasel, and Nancy Pelosi is the product of his having impregnated Tammy Faye Bakker by accidental cross-pollination or some other means of asexual reproduction. Unlikely, you say? Maybe. But not as unlikely as Harry Reid reproducing sexually.

Now let's move on to something else you've never heard of. Archaeologists call it the Tenth Amendment to the Constitution of the United States.

During my third year of law school, I took a class in contemporary Constitutional Law, taught by a famous scholar on the First Amendment. (Famous is a relative term, of course. He didn't defend O.J. or get custody of Britney's kids for K-Fed. But Timothy Hutton did play him in the movie he wrote about his biggest case. And he gave me an A in his class.) (Before you ask, I did nothing for that A that I should be ashamed of. Every professor needs his erasers banged, and I am not going to apologize for a few back rubs. And his marriage was in trouble long before I came along.) Unfortunately, while he may have known all about the First Amendment, he was far less versed on some other provisions of the Bill of Rights.

I found this out the day he led our class in a discussion of the tension between the First Amendment's separation of church and state (which, by the way, isn't really there. Seriously. You can look it up.) and the "freedom of speech" clause (that one's totally there). The question of the day was essentially this: does the Constitution permit the teaching of creationism in public schools? The discussion went back and forth, the lefties versus the (two lonely) social conservatives. Usually, I love a good debate, but this one proceeded without me; the question presents a false dichotomy, and relies on an underlying Constitutional error that I refuse to give implicit acceptance. And my professor would not have recognized it even if I had pointed it out.

Their error? A failure to recognize that the United States government has no role whatsoever in education. None. Or, rather, that government is not supposed to have a role, because the Constitution gave the federal government no power to act with regard to education.

That's important, since the Constitution is a document that sets forth explicitly and exclusively ALL the powers permitted to the Federal Government of the United States of America. Line by line, clause by clause, the Founding Fathers put it all on paper; each and every power that the national government was permitted to exercise. How do I know? Because they said so, right there in black and yellow.

Amendment 10 - Powers of the States and People

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.

Maybe you never read that one before. Sure, you knew there were ten of 'em, but you probably thought the other six Bill of Rights amendments--the ones you never heard of--preserved the right to health care, housing, and heterosexual marriage. Legend says that the Bill of Rights is only in the Constitution because a bunch of paranoid schizophrenics calling themselves Anti-Federalists got the crazy notion that the Federal Government might someday do things that weren't in the Constitution.(!) To prevent that from happening, Anti-Federalists demanded that the rights of the people and states be explicitly (and redundantly) carved out of the federal government's exclusive Constitutional powers by the first eight amendments to the constitution. They also inserted two catch-all provisions just to make sure the intentions of the framers weren't misunderstood.

Those last two amendments were never heard from again.

I'm serious. It's like the Tenth Amendment never existed. But just as an historical exercise, what did the Tenth Amendment to the Constitution of the United States of America actually mean? Well, I'm not a famous Constitutional scholar, I'm just a guy who knows how to read. And it's pretty clear to me that the Tenth Amendment says that if it ain't in the Constitution, the Federal Government isn't supposed to do it. Period. And if the Federal government does do something it was not empowered to do by the Constitution, that action would be what smart Constitutional scholars like to call unconstitutional.

And no, the Tenth Amendment has never been repealed. Only ignored.

Some say that's a good thing. How can a few smart guys from the 18th century know what kinds of stuff we'll want government to do in the 21st century? It's not a bad question. Inarguably, the Founding Fathers never envisioned a federal government as big and officious as ours is today. (I'm pretty sure that on quiet nights up here in Virginia you can hear a few of them spinning in their graves.) But the founders knew very well they could not think of everything, and left us two clear ways to get around the imperfections of a Constitution made up of explicit and exclusive reservations of government powers.

First, they intended that most necessary government functions could and should be performed by the states' governments. And where those state powers were insufficient, inappropriate or impractical, the Founding Fathers provided several ways to amend the Constitutional. Yeah, every method by which the Constitution can be amended is slow, ponderous, and a pain in the butt. But I guess that's the way the Founding Fathers wanted it.

Ok, so where was I? Oh yeah, in a class of thirty law students and one handsome First Amendment scholar, considering the question of the day: whether the Constitution requires that public school teachers teach that random mutation and natural selection will cause evolutionary leaps sufficient to explain multi-cellular life and diversity of species. But the question of the day should have been this: where in the hell does the federal government get the power to mandate, fund and oversee public education? The answer is, of course, nowhere. There is no public education clause in the Federal Constitution. But there is a provision that says that public education is therefore not a proper purview of federal governance. They just chose to ignore it.

So, which is it, class? Do we teach the children we force into classrooms that God made everything in a single work-week and a little overtime, or do we give them Darwin's tautology as the sole explanation for the existence of multi-celled intelligent life on earth? I, for one--maybe the only one--refuse to be goaded into picking sides. It's my opinion that neither "survival of the fittest" nor "let there be light" should be taught to students in a federally funded classroom, because the Tenth Amendment forbids the establishment of a federally funded classroom. If we are going to be governed by the Constitution, the people must either educate their kids in the schools of their choice on their own dime--or maybe on the dime taken from them by the state in which they live--or else they must amend the constitution so that the federal government can do it for them. If not, then our courts will continue to address the same scientific and philosophical issues that the greatest minds of three millennia have been unable to resolve, and force whatever answer they come up with down our children's collective throat.

I am well aware that despite the spectacular and expensive failure of the public education system, some of you recoil in shock from the idea of a separation of education and state--even if the Tenth Amendment requires it. You like the freedom of speech, religion, and even the press, but are dubious about the prospect of getting government out of the educational system. We can't have it both ways, however. Either we are governed by the Constitution, or we are not. Isn't it intellectually dishonest to sit in a classroom, or in a court house, or in a legislative body, bleating about one inviolable Constitutional right or another, while at the same time ignoring the parts that are inconvenient?

I realize this might be a tough sell. But if I am all alone here, could you at least be consistent? If you demand that the Federal Government teach your kids that God created man in His own image, or else that man was a fortuitous happenstance, don't be so hypocritical as to make your demand on Constitutional grounds. Don't say that your child has a Constitutional right to be free from unreasonable search of his public school locker if you aren't going to object to the fact that the Federal Government bought the locker for him in the first place. And don't assert a Constitutional right to free speech or religious practice as a justification for having your Bible study group or your gay alliance meeting in the public school library, if you also support the construction of that library in clear contravention of the Constitution's less-popular provisions.

And, please, when you advocate that the federal government run education, argue that it's more practical than complying with the Constitution. Point out that it's easier for parents not to have to worry about finding cheap education in a free market. Whine about the children. Put your fingers in your ears and recite over and over that it has always been done that way, and you simply can't imagine it being done any other. Just ignore the Constitution; I promise you aren't the first one to do so.

And the next time you complain about the sorry state of public education, try to remember whom you put in charge of it.


  1. I'm glad you changed subjects - I wanted to pull my kids out of school anyway. The classrooms here in Arkansas have a thing called 'classroom coats'. I know this because the teacher sent my daughter home in one when my daughter explained that she didn't have a coat. It was 50 degrees, sunny and she has a walk home of one whole block. I was so proud that she carried it, insisting that she would be okay 'coatless'. I put her directly in the van, marched up to the teacher and explained to her, calmly and politely, that I, as the parent, am capable of providing for and taking care of my daughter. Do not interfere. Man, when did the teachers/administration get a power like that? Teach her to do long division. I'll handle everything else, thanks.

  2. Are you thinking of home school? I would LOVE to do that. I am in negotiations with my wife to split up the law firm and my taking a new position as a full-time stay-at-home teaching daddy. Negotiations have stalled on the issue of salary, but I remain hopeful.

  3. Hold out, Eric, the kiddos are worth every best effort...

    I don't honestly know if I could homeschool five kids and them the service they deserve. That's a lot of hats to wear. Maybe if I had a housekeeper and cook, too...(put that if your negotiations)

    But, yes, I think we will pull them out individually, according to their abilities and temperments. I really beleive that they need school to learn a lot of skills that studying around the dinning room table doesn't provide. They have to live in this world. After about ninth grade (still middle school here in AR) I'm thinking I would pull them home. We're looking into the options. Our oldest is in fifth grade now. High school is no place for the tenderhearted; maybe you remember? We didn't turn out so bad, though, huh?

  4. Absolutely your best post so far! I love how you turned it from an apparent discussion on the material taught in public schools to a discussion of the constitutionality of public schools in the first place. And darn right! I don't understand how such an important part of the constitution can be so blatantly ignored!!

    btw, I looked it up, and I think the movie you meant was Deliberate Intent. But who was your professor? I've never seen the movie.

  5. Your site has won a Blog of the Day Award (BOTDA)

    Your award will go live sometime on April 15, 2009

    Award Code
    Thank you,

    Bill Austin

  6. Rob and I have had this discussion MANY-O-TIMES about how government should not be governing (excuse the pun) public school systems, and how a voucher program would be SO much better.

    P.S. I know the Professor you so fondly speak of.

  7. Hey Eric - Do you take requests? I would like to read a post on the liberatarian spin on Earth Day. Quickly, the Ball Spin is this - I was listening to the radio today and some fool was droning on with "fun" facts about how to save the earth. I decided to save electricity by turning off the radio...