The Court is having a busy week. The last decisions of the term were handed down, and a confirmation hearing is underway. Time for every tea-bagger with what would have been considered a laughably naive understanding of the Constitution 200 years ago to express their ignorance.
My hometown paper, the Jamestown Post-Journal, reported on the Christian Legal Society (CLS) v Martinez case, where the Court ruled that Hastings was within its rights in denying funding to a group that excludes gays. One of the regular posters actually took the position that the federal courts shouldn’t be involved at all in the matter, since education is not a power expressly delegated to the federal government under the Constitution. See, a little bit of knowledge is a dangerous thing. I don’t know if he heard it from Glenn Beck or what, but in the tea-baggers rush to return to a pre-industrial government in a post-industrial world they seem to rush right past the Civil War. Although it lay dormant for almost 100 years, the 14th amendment is pretty specific in its requirement that states must provide equal protection and due process of the law to its citizens. States can’t discriminate any more than the federal government can. I’m pretty sure even Rand Paul gets that. That includes when it undertakes to provide public education (Hastings is part of the University of California).
It is true that a Venn diagram showing the division of powers between the federal government and the states would reserve power over education to the states; other than some failed proposals for a national university, I’m not aware of any Founding Father who envisioned an active role for the federal government in the schoolhouse. But the Republic has always had an interest in fostering pubic education as an essential part of its survival. Even before the Constitution was ratified the Continental Congress provided for pubic education in the western territories. Especially in the last 50 years, the amount of federal money poured into education has provided the feds with the power to see how it is spent, and the duty to see that it is not spent unconstitutionally. Brown v. Board. Title IX. How could anyone possibly maintain that the federal government is constitutionally barred from the field of education? It could only be through an obsessive focus on 1787 and complete disregard for all that has happened since, including amendments to the Constitution. I just wish I felt surer that all the cries to go back to the way of the Founding Fathers was limited to constitutional theory, and didn’t represent a deeper resentment of the fundamental changes our nation has gone through in the past few centuries.
Nothing explosive from the Kagan hearings. I was a little sickened to see her cheerfully endorse militarism, but under the circumstances what else could she do? She can’t appear anti-military, not in this climate. If they can trash Thurgood Marshall for opening doors for black kids, what would they do to someone who closed the door to recruiters?