July/August 2006

Remember the Constitution?

A front-page article in the Wall Street Journal erroneouslytold millions of readers that "theConstitution guarantees a public-school K-12education for every child in the U.S." Two weekslater the Journal's usually reliable editorial page deploredthe "states' rampant noncompliance with the 2002 NoChild Left Behind Act" and the "lax enforcement ofNCLB" by Education Secretary Margaret Spellings.

Meanwhile, the Heritage Foundation is endorsingfederal education vouchers for children in low-performingschools as proposed in President Bush's America'sOpportunity Scholarships for Kids initiatives. Both theJournal and the Heritage Foundation seem to have forgottenthat the U.S. Constitution grants no authorityover education to the federal government. Education isnot mentioned in the Constitution of the United States,and for good reason. The Founders wanted most aspectsof life managed by those who were closest to them, eitherby families, businesses, and other elements of civil societyor by state or local government. Certainly, they saw norole for the federal government in education.

Once upon a time, not so very many years ago,Congress understood that. The History of the Formation ofthe Union under the Constitution, published by the UnitedStates Constitution Sesquicentennial Commission, underthe direction of the president, the vice president, and theSpeaker of the House in 1943, contained this exchangein a section titled "Questions and Answers Pertaining tothe Constitution'':

Q. Where, in the Constitution, is there mentionof education?
A. There is none; education is a matter reservedfor the states.

Not only is the Constitution silent on the subject ofeducation, but the U.S. Supreme Court has also refusedto recognize any right to a taxpayer-funded education. AsTimothy Sandefur, author of Cato's forthcoming bookCornerstone of Liberty: Property Rights in 21st-CenturyAmerica, points out, in San Antonio Independent SchoolDistrict v. Rodriguez (1973), the Court specifically declaredthat education, though important, "is not amongthe rights afforded explicit protection under our FederalConstitution. Nor do we find any basis for saying it isimplicitly so protected." Nine years later, in Plyler v. Doe,the Court held that if a state chooses to give such an educationto citizens, it must also offer it to the children ofillegal aliens. But it has consistently recognized that taxpayer-funded education is a privilege, not a right.

The case against federal involvement in education isnot based simply on a commitment to the originalConstitution, as important as that is. It also reflects anunderstanding of why the Founders were right to reservemost subjects to state, local, or private endeavor. TheFounders feared the concentration of power. Theybelieved that the best way to protect individual freedomand civil society was to limit and divide power. Thus itwas much better to have decisions made independentlyby 13–or 50–states than to have one decision made forthe entire country. Each state can innovate and canobserve and copy successful innovations in other states, and just as important can avoid failed policies tried inother states. As the country gets bigger and more complex,and especially as government amasses more power,the advantages of decentralization and divided powerbecome even greater.

That's why it was a mistake to further centralize thecontrol of our local schools in the No Child Left BehindAct. And why conservatives, who are usually committedto the virtues of federalism and decentralization, shouldbe applauding the several states' resistance to federal intrusion,not calling for a crackdown.

The Constitution has few friends in Washington thesedays. As Gene Healy and Tim Lynch demonstrate in theirimpressive paper "Power Surge: The Constitutional Recordof George W. Bush":

In its official legal briefs and public actions, the Bushadministration has advanced a view of federal powerthat is astonishingly broad, a view that includes...

• a president who cannot be restrained, through validlyenacted statutes, from pursuing any tactic he believesto be effective in the war on terror;... and

• a federal government with the power to supervise virtuallyevery aspect of American life, from kindergarten,to marriage, to the grave. President Bush's constitutionalvision is, in short, sharply at odds with the text,history, and structure of our Constitution, whichauthorizes a government of limited powers.

Liberals long ago dismissed the Constitution'srestraints on government. Conservatives are now aggressivelyignoring them. So who still speaks for theConstitution? Well, the Cato Institute and its Centerfor Constitutional Studies, of course. That's why we'vedistributed more than three million pocket copies of theDeclaration of Independence and the Constitution,and why we consistently ask that embarrassing question,"Where in the Constitution is the exercise of thispower authorized?"

And now that the Bush administration "has repeatedlysought to strip out the limits the document places onfederal power," as Healy and Lynch put it, some liberalsare—mirabile dictu!—rediscovering the benefits of constitutionalgovernment. Two writers in the left-wing Nation magazine recently proposed the establishment of aleft-right-and-libertarian Constitutional ProtectionLeague, modeled after the broad-based early-20-centuryAnti-Imperialist League. That's a fine idea. But we wouldremind our friends on the left that in 1997 and 2000Cato published critical studies on the Clinton administration'sabuse of the Constitution. Where were theythen? And will they join us a few years hence shouldanother Clinton administration engage in similar abuses?

My friend Fred Smith of the Competitive EnterpriseInstitute likes to say, "The Constitution isn't perfect, butit's a lot better than what we've got now." The good newsis that if the American people still want it, we've still gotit. All we have to do is enforce it.

This article originally appeared in the July/August 2006 edition of Cato Policy Report

David Boaz is the executive vice president of the Cato Institute and has played a key role in the development of the Cato Institute and the libertarian movement.