The Living-Large Constitution

|

Advances in constitutional interpretation from the Wall Street Journal, called out by Radley Balko at The Agitator:

This spring, at least 65,000 undocumented immigrant students, many of whom have been in this country most of their lives, will graduate from high school. The Constitution guarantees a public-school K-12 education for every child in the U.S. But after that, their future is uncertain.

NEXT: Exploitation or Expulsion

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Obviously this is justified by the “general welfare” clause. You know, the two words that justifies almost everything else.

  2. Probably referring and inferring *very expansively* to or from Plyler v Doe, 457 U.S. 202 (1982) and its use of Equal Protection:

    Held:
    A Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 210-230.

  3. hogan,

    That’s a pretty huge fucking leap right thar. All that case says to me is, if the government is going to give out free k-12 education, then they cannot discriminate when deciding who gets it. How one could construe that as “americans are guaranteed k-12 education via the constitution” is beyond me.

  4. Well, the WSJ has some pretty expansive definitions of “defense”, so it’s probably not too suprising that broad penumbras and emanations are their favored method of constitutional interpretation.

    Bread and circuses, welfare and warfare…

  5. Grating phrase of the day: “undocumented immigrant”.

    An illegal alien by any other name. . . .

  6. i just wrote an essay in my constitutional law course on art 1 sect 8 and got an A so now i’m going to very annoyingly post the part about the general welfare clause

    The first clause gives the power to congress to lay and collect taxes, “to provide for the common Defense and General Welefare,” and this seems an emminently sensible starting point, as a government must revenue before it is can be expected to carry out any other function. Ones attention, however, is almost always drawn to the phrase “to provide for the common Defense and General Welefare.” Reasonable people can generally agree on what it means to provide for the common Defense, but where does the ambiguity of “General Welefare” leave our understanding of what the extents and limits of congressional power are? Indeed, if Section 8 were stop after the first clause, we would be hopelessly adrift in any attempt to resolve this difficulty. But we immidiately stumble upon seven clauses, conviently grouped together, giving Congress very specific means for promoting the general welefare (we can treat the second clause, the power to borrow on credit, as going along with the first as it related to raising revenue).
    Regulating commerce, making uniform rules on bankruptcies, coining and regulating the value of money and punishing the counterfiting therof, setting standards of measurements, and establishing a system of patents are all mechanisms which relate to aiding and ensuring the economic prosperity of the nation. That the majority of these seven clauses focus on questions of economic activity is hardly suprising, as what is more central to the general welefare of a nation than it’s economic health? Even the provisions for establishing uniform rules of naturalization and a postal service could be related to encouraging a robust economy. Particularly in the case of immigration laws, (as we are currently well aware), we can see that the general welefare is considered in other ways, in that any nation should reasonably want to have set procedures for dealing with those who wish to join it’s ranks as citizens. The final clause addressing general welefare gives Congress the power to establish tribunals inferior to that of the supreme court. The ability to institute a justice system that can resolove disputes and punish criminals can obviously have a meritous effect on the general welefare; We need only look to the Declaration to understand the governments proper role in protecting natural rights, and the Preamble’s implication of the need for justice in order to promote the general welefare.
    Congress has thus been granted significant powers to affect the general welefare. If we return again to the first clause of section 8, we recall a second justification for Congress’s power to raise revenue: to secure the common defense. It should come as no suprise that the next seven clauses after those relating to the general welefare are all concerned in one form or another with matters of defense. Congress is given considerable control over all military affairs, it’s authority stopping only at the actual execution of war once it has been declared (by Congress, of course). At this point in Section 8 it would seem Congress has been given all the necessary tools to fully secure the common defense and significantly and successfully the promote the general welefare of the nation. It is therefore unreasonable to suppose that providing “for the common Defense and General Welefare” implies Congress has any more powers in securing these ends than those explicitly granted in such detail in the 14 clauses just examined.

    qed

  7. as a government must revenue before it is can be expected to carry out any other function

    You got an ‘A’?

    {sorry, couldn’t resist}

  8. What’s the big deal? After all, so many libertarians on this board have no problem with illegal immigration, so why do they get all pissy about their free, I mean tax-payer financed, K-12 education?!

  9. Excellent clarification mtc.

    Reminds me of the most important and most ignored Amendment, good ol’ number ten:

    “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.”

  10. I’ll have to agree with theonestate…misspelling Welfare, incorrectly using apostrophes…your argument must have been absolutely flooring.

  11. i just wrote an essay in my constitutional law course on art 1 sect 8 and got an A so now i’m going to very annoyingly post the part about the general welfare clause

    I wonder what grade James Madison would have received had he turned in Federalist #41

    Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the 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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

    …what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

  12. My guess is that hes referring to the NEW YORK Constitution. Which does require free public education.

  13. My guess is he was referring to the New York Constitution…

    EDUCATION
    [Common schools]
    Section 1. The legislature shall provide for the maintenance and
    support of a system of free common schools, wherein all the children of
    this state may be educated. (Formerly ?1 of Art. 9. Renumbered by
    Constitutional Convention of 1938 and approved by vote of the people
    November 8, 1938.)

    http://www.dos.state.ny.us/info/pdfs/cons2004.pdf

  14. EDUCATION
    [Common schools]
    Section 1. The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated. (Formerly ?1 of Art. 9. Renumbered by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

    http://www.dos.state.ny.us/info/pdfs/cons2004.pdf

  15. MTC,

    I don’t hate to do this… . On a somewhat tangential point, your essay and its “A” grade demonstrate a point I’m pleased to make all the time:

    The system of higher education in this country is a fraud. Judging by your e-mail address, you attend the Rochester Institute of Technology, which U.S. News & World Report ranked as the No. 6 graduate school in the North. (In the preceding sentence, note the use of “which,” which only follows a comma and is not a substitute for “that.”)

    I have no doubt that your paper deserved an “A.” That’s my point. Grammar, style, spelling and logical leaps aside, there is no doubt it was in the top 5-10 percent of your class.

    Here’s the issue: High school used to suffice for 80 percent of the U.S. workforce. Any broad-based “liberal arts” education that was desired for a well-informed citizenry could be obtained there. Then we dumbed it down, forcing people who don’t really need a college degree to do their jobs (and certainly don’t want one for the pure sake of “liberal education”) to attend college anyway to prove their ability to read and write.

    College became a “right” for all Americans. A college degree is now the equivalent of a 1955 high school diploma. Now, those who want to truly distinguish themselves from the pack must pursue a graduate degree, which (again) they don’t really need or want for any practical purpose.

    The end result is the establishment of a government-funded education bureaucracy that eats up billions of dollars and 20+ years in the lives of most students. Who does this help?

    The truly inquisitive? Go to the library (in person or online). Every week for three months, pick any book (fiction or otherwise) published prior to 1940. You’ll learn more in those three months than in four years of college.

    The job hunters? To an extent. Most respectable employers do require a college degree. But how many most also have implemented their own training programs that supercede anything taught in college. Wouldn’t an apprenticeship be cheaper, less time consuming, and more effective for everyone involved?

    No — the American higher education game benefits bureaucrats and the government. It’s the ultimate “make work” scheme. Even highly respected institutions (like the Rochester Institute of Technology) turn out a product that would have been unacceptable in grammar schools a century ago.

    This is to say nothing the possible ways for government to benefit from an intentional “dumbing down” of its citizens. When an essay like the one above represents an “A” understanding of the Constitution, the potential for misdeeds is endless. (I would also examine who stands to gain from the creation of a permanent bohemian class between ages 18-25. I have no answers here, just questions.)

    Alas, Mr. MTC, these considerations may be irrelevant to your future studies. For your benefit, I’ll list here some of the more egregious errors I would have pointed out had I been your professor:

    -Your use of the adjectives “eminent” and “meritorious” is awkward at best, if not flat out incorrect.

    -You shift in one sequence to three points of view (one’s, people and our).

    -“tribunals inferior to that of the Supreme Court” implies that the Supreme Court has a tribunal.

    -“Reasonable people can generally agree on what it means to provide for the common Defense.” Are you familiar with the tea party currently taking place in Iraq (or the debate about “entangling alliances” that began in the 1790s and continues to the present)?

    -“We can see that … any nation should reasonably want to have set procedures for dealing with those who wish to join it’s [sic] ranks as citizens.” This is presumptuous and needs more substantiation.

    With all that said, sir, congratulations on your “A.” You’re still in the top 10 percent (whatever that means for the future of this erstwhile Republic).

  16. Prick:

    I think we’ve all learned a valuable lesson today.

  17. The substantive portion of Balko’s post is two words long.

    There are libertarian bloggers all over the place who are writing real blogposts with real analysis.

    Why does H&R debase its currency like this?

  18. Since when is the merit of an argument directly proportional to its length? If anything the opposite is true (compare Jesse Walker’s short, sweet recent post quoting vintage Glenn Reynolds to Instapundit’s painstakingly involved reply).

    Which libertarian bloggers (aside from Balko) caught and called out this astonishing WSJ quote? Commenter “Someone,” feel free to link to them.

  19. A lot state constitutions contain something to that effect.

    But the way the author appears to cite the federal Constitution to support such a specific program – not “grades 1-12,” not “through high school,” not “from childhood to adulthood” – is a little weird.

  20. An illegal alien by any other name. . . .

    Would work just as hard?

  21. well in my defense prick regarding your tribunals remark / thats how the constitution reads so bitch to the framers

    as for most other comments profs don’t really grade grammar mistakes (i really do know the difference between its and it’s even if i don’t catch it when i’m thinking about what i’m typing rather than how i’m typing it) not because our republic is in peril but because we type essays at midnight on there hours of sleep because we’re actually engineers who will soon make far more money then the likes of Prick
    no one seemed to disagree or find fault with my essay actually addressed the arguments i wonder why

  22. MTC wites, “It is therefore unreasonable to suppose that providing “for the common Defense and General Welefare” implies Congress has any more powers in securing these ends than those explicitly granted in such detail in the 14 clauses just examined.”

    Just out of curiosity, what about the necessary and proper clause? “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

    Hamilton points to it for the FBUS.
    Jefferson screams bloody murder, until Napoleon offers him a land deal, at which pont Jefferson is all to willing to shout “necessary and proper!”

    FWIW, and I don’t know about engineering, many disciplines consider it to be in exceedingly bad form to speak for the reader. (IOW, third person prose only, but Thoreau et. al. would know better for the sciences.)

  23. “[P]rofs don’t really grade grammar mistakes … because we’re actually engineers who will soon make far more money then the likes of Prick…”

    I have to agree with our friendly neighborhood prick here. Writing and speaking properly is necessary for any occupation whatsoever — even if you think you’re just “crunching numbers” — and all professors ought to grade accordingly. Their doing otherwise sends the message that it’s okay for engineers to be semi-literate, and hurts those of us who take the time to proofread.

    I’m not saying you’re semi-literate. I have every confidence that you would have caught most if not all mistakes had you suspected that they actually mattered to your prof. I’m saying that it SHOULD matter to him.

    Anyway, the real lesson here is not to preface good comments with “I got an A on this.” 😀

    Disclaimer: There’s probably a terribly ironic little error in this post somewhere, and I humble myself accordingly.

  24. MTC,

    Let’s review:

    “well in my defense prick regarding your tribunals remark / thats how the constitution reads so bitch to the framers.”

    Aside from the logical leaps I cited, I’m not criticizing the central thrust of your argument. I would agree that the functions of “general welfare” are clearly enumerated.

    The bulk of your argument, though, isn’t an argument at all. You demonstrate that commerce and defense dominate the section in question (as they indeed dominate the entire Constitution). I’m not sure anyone would disagree with that. Those issues were, after all, almost entirely responsible for the flurry of debate that led to the crafting of the Constitution (and the unfortunate scrapping of the Articles of Confederation).

    Also, the Constitution reads “tribunals inferior to the Supreme Court.” Note the absence of “that of.” My comments on that front still stand.

    Finally, congratulations on your entrance into the engineering profession. It’s unfortunate that your future employer couldn’t have simply established an apprenticeship program rather than forcing you to complete four years of college. That’s my real point. As I said, I’m sure your paper does represent “A” work — hence the problem.

    (You might also be surprised to learn how far a smart mouth and a few well-crafted sentences can advance one’s career and salary).

  25. You had better learn to write and speak well all by yourself, Mr. Engineering Aspirant. They don’t hire overeducated, underpaid English majors like me to serve your coffee and massage your PowerPoint anymore.

    (pauses to enjoy totally unintentional but delicious double entendre)

  26. As an “engineer” type – I’ll say that while the ability to communicate clearly and effectively is very important, we tend to laugh off minor grammer [sic] and spelling.

  27. Prick,

    RIT is a very, very tough school. Students in engineering majors have to make it through a liberal arts concentration, including several upper-level liberal arts courses, in addition to their major’s upper-level courses, in order to graduate.

    Throw in the fact that courses are only a quarter long, instead of a semester, and you understand why us alums call it RIP. That place will eat the unprepared for lunch.

  28. [M]any disciplines consider it to be in exceedingly bad form to speak for the reader. (IOW, third person prose only, but Thoreau et. al. would know better for the sciences.)

    Until relatively recently, science writers scrupulously avoided first-person perspectives and also most second-person address of the reader — both “the author” and “the reader” (or something similar) existed in third-person. Passive voice was often made use of. These days, use of the first-person is the standard way of representing the authors/researchers, because it is considered more honest, efficient, and natural. As for the reader, there is not often any need to address him directly, except perhaps to refer him to another part of the publication — e.g. “see Fig. 3” — and this form of brief second-person address has been long been used. More extended address of the reader can vary, depending on the context, which brings us to the next topic:

    To be fair, speaking of “science” writing is a huge oversimplification. College theses, technical journals, general-audience journals, technical books, general-audience books, policy/governmental reports/recommendations, persuasive Op-Ed essays in newspapers, and the various other forms of scientific writing all have different conventions, and within the sub-categories conventions can vary widely.

    Oh, and I was gratified to see someone mention a distinction of usage between that and which. Very few bother with such things.

    P.S. While we’re in a nitpicking mood, I’ll mention that the phrase et al. has only one period, not two. Because “al” is abbreviated from “alii,” “aliae,” or “alia” (depending on gender, not that we English speakers would care about that), it gets a period, but “et” is not shortened from anything else so it stands as-is.

  29. Well, as long as they are here, would you prefer that they remain ignorant unemployables or that they acquire skills to fill jobs that are needed?

    Education is not just something nice that you do to people. It is also nice that they do to you, learning how to become useful members of society and how to do jobs that need doing.

  30. “Well, as long as they are here, would you prefer that they remain ignorant unemployables or that they acquire skills to fill jobs that are needed?

    Education is not just something nice that you do to people. It is also nice that they do to you, learning how to become useful members of society and how to do jobs that need doing.”

    If you provide welfare state benefits to those that are here, then many, many, many more will come. At some point, the taxpayers of America will be unable to carry the burden of the world’s poor. Then what will happen?

    It’s better to stem the tide of illegals now, but the borders should have been closed to illegals long ago.

  31. “RIT is a very, very tough school.”

    I’m sure that correct in relative terms. It seems that the whole argument here rests on the idea that even at today’s “very, very though” schools, the bar is actually quite low relative to past expectations.

  32. wayne:

    Who is talking about welfare? Education is a way to make sure that they are productive, not welfare recipients…

    Or do you object to adding to the number of productive workers?

Please to post comments

Comments are closed.