Ch. 5: Public Funding of Religious Schools

George Ricker

Rosemary: No. More what I am saying is that many of the Bill of Rights were written to protect the states from federal involvement. The states are supposed to have decision-making powers free from federal encroachment. So states rights to spend educational dollars as they see fit does not trump the Bill of Rights, they're actually protected by the Bill of Rights. Obviously, after the Civil War and the Fourteenth Amendment much of that power was taken. But I'm not sure if those powers should include how a state utilizes its own tax dollars, particularly with regard to education. If the federal government, through SCOTUS, wants to eliminate those rights, I think we need a better explanation than we got.

Well, SCOTUS is sometimes cryptic in reaching its decisions. I think Roe v Wade is a classic example, though I have no complaint about the outcome.

Section one of the Fourteenth Amendment says: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I take that to mean several things. First, there is an explicit recognition of what had been implicit since the founding of the nation, that the citizens of the United States enjoy a kind of dual citizenship. We are citizens of the individual states in which we reside and also citizens of the nation. Second, there is the establishment of a new principle, that no state may pass or enforce laws that violate the rights guaranteed to a citizen of the nation without due process of law. Finally, that states are to regard all persons within their jurisdiction as being entitled to equal protection of the laws.

You may have a different interpretation of the Fourteenth Amendment than I. To me it says the fundamental individual liberties guaranteed in the amendments contained within the Bill of Rights (I word it that way because I do recognize that some of the amendments dealt with states' rights and not individual rights) may not be abridged by the states.

At that point in the process, I think those rights had already been incorporated against the states. Now it took some decades for SCOTUS to begin to acknowledge the fact of incorporation. But I would argue that equal protection of the laws is a judicial fiction if individual states can encroach on those rights.

While I have no quarrel with the idea that individual states should have the right to control their educational budgets within constitutionally prescribed limits, I think the notion that such areas should be left entirely to the states is dangerous. One of the chief arguments in favor of segregated schools in the South was the notion of local autonomy and the right of local jurisdictions to control their educational systems.

I realize you have already said you have no problem with SCOTUS declaring segregated schools unconstitutional because such schools were inherently unequal, but I submit that the very same protections extended to blacks under that application of the due process clause of the Fourteenth Amendment are part of the incorporation of fundamental individual rights already alluded to.

When it comes to establishment clause cases, I think part of the problem stems from SCOTUS's inability to find clarity on the issue. The court has tried to avoid the appearance of undue hostility to religion by muddying the water on these questions.

Now you and I both agree, I think, that ultimately the protection of individual rights is up to the citizenry acting through their elected representatives and through whatever other legal venues are open to them. However, the court's interpretation of the establishment clause has great importance because it's much harder to amend the Constitution than it is to pass a state law. I would be loathe to yield the sole power to determine what does and does not constitute establishment of religion to the states. I think by so doing we would create a situation in which one's religious rights -- both the right to free exercise and the right to be free of any government religious establishment -- would be in peril. It's very difficult to freely exercise one's rights of conscience in an environment in which the state obviously favors a particular sect or religious denomination.

It's all well and good to say the individual citizens of the state will have to be more diligent. But one of the most important features of our system is that we as individuals are protected from the tyranny of the majority. That protection, in large part, is due to the individual rights guaranteed us in the appropriate amendments included in the Bill of Rights and the incorporation of those rights by the due process clause of the Fourteenth Amendment.

Suppose a particular state decides to fully fund Christian schools but no others? Should SCOTUS have a right to say "no" to such an arrangement by declaring it unconstitutional? On what basis?

When it comes to the expenditure of educational tax dollars to establish or even support religions or religious enterprises, I think the rules need to be standard throughout the nation. I'm not comfortable ceding such powers to state governments.

Of course, I do live in Florida, after all. Maybe that explains it. ::204

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker


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