Not only is the Constitution silent on the subject of education, but the U.S. Supreme Court has also refused to recognize any right to a taxpayer‐funded education. As Timothy Sandefur, author of Cato’s forthcoming book Cornerstone of Liberty: Property Rights in 21st‐Century America, points out, in San Antonio Independent School District v. Rodriguez (1973), the Court specifically declared that education, though important, “is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” Nine years later, in Plyler v. Doe, the Court held that if a state chooses to give such an education to citizens, it must also offer it to the children of illegal aliens. But it has consistently recognized that taxpayer‐funded education is a privilege, not a right.
The case against federal involvement in education is not based simply on a commitment to the original Constitution, as important as that is. It also reflects an understanding of why the Founders were right to reserve most subjects to state, local, or private endeavor. The Founders feared the concentration of power. They believed that the best way to protect individual freedom and civil society was to limit and divide power. Thus it was much better to have decisions made independently by 13 — or 50 — states than to have one decision made for the entire country. Each state can innovate and can observe and copy successful innovations in other states, and just as important can avoid failed policies tried in other states. As the country gets bigger and more complex, and especially as government amasses more power, the advantages of decentralization and divided power become even greater.
That’s why it was a mistake to further centralize the control of our local schools in the No Child Left Behind Act. And why conservatives, who are usually committed to the virtues of federalism and decentralization, should be applauding the several states’ resistance to federal intrusion, not calling for a crackdown.
The Constitution has few friends in Washington these days. As Gene Healy and Tim Lynch demonstrate in their impressive paper “Power Surge: The Constitutional Record of George W. Bush”: