Education and the 20th Century’s Rights Revolution: Have We Overlooked Government by Consent? John C. Eastman1Chapman University School of Law PEPG 05-25 Preliminary draft Please do not cite without permission Prepared for the conference: "Adequacy Lawsuits: Their Growing Impact on American Education" Kennedy School of Government, Harvard University, October 13-14, 2005 1 Professor of Law, Chapman University School of Law, and Director, The Claremont Institute Center for Constitutional Jurisprudence. The author wishes to thank Chapman Law Student Kristi Collins for her stellar contribution to the research for this article, and also former Chapman Law Students Monica Edwards and Cecilia Aguayo, who collected much of the research at an earlier phase of this project.I. Introduction In 1998, I published a somewhat provocative article in the American Journal of Legal History entitled “When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education, 1776-1900.”2 Starting with the Supreme Court’s doctrinaire, positive-law holding in San Antonio Independent School District v. Rodriquez3 that education was not a fundamental right for purposes of federal constitutional analysis because there was no mandate for education to be found, either directly or indirectly, in the federal Constitution, I undertook a comprehensive review of education provisions in the constitutions of the several states. At first glance, one might have concluded that under the Rodriguez formulation, the states would be treating education—by which I mean state-financed education— as a fundamental right. The state constitutions from the outset, after all, contained pretty significant provisions addressing education. My review of the first century and a quarter of our nation’s history led me to draw just the opposite conclusion, however. As described more fully below, most of the education provisions in state constitutions adopted during the eighteenth and nineteenth centuries were only hortatory, and even those that contained apparently obligatory language were in most cases not interpreted as imposing any specific mandate on the legislature, and certainly not as conferring a judicially-enforceable right to education. Although I have not yet completed the comprehensive, 50-state review of state constitutional provisions for education across the entire twentieth century—that’s a project for next semester’s sabbatical!—my preliminary assessment indicates that the “hortatory” story 2 62 Am. J. Leg. Hist. 1 (1998). 3 411 U.S. 1 (1973). 1holds true through the first three-quarters of the twentieth century. Even states that adopted somewhat obligatory language continued to treat that language as setting legislative goals, not judicially-enforceable mandates. Not until the 1970s, following the much-ballyhooed “rights revolution” of the Warren Court, do we find courts actually starting to hold that the education provisions in the state constitutions afforded education “fundamental right” status, conferring a judicially-enforceable individual right not just to an education but to a certain level of financing for and even a certain quality of education. In most cases, these court decisions were rendered without much focus on the actual language of the particular education provision at issue, and without much consideration of the inherent policy judgment that underlies determinations of funding levels and quality. Far from enforcing a constitutional mandate, therefore, these decisions have affected a fundamental shift away from legislatures, to the courts, posing a serious threat to separation of powers and ultimately government by consent itself. It is this latter issue that is the primary focus of this paper, after a brief recap of the eighteenth and nineteenth century provisions and an assessment of their twentieth century counterparts. II. 18th and 19th Century Recap Most of the state constitutional provisions adopted during the founding period contained language that was clearly only hortatory, describing goals that the legislatures “ought”4 to pursue “as soon as conveniently may be,”5 but most assuredly not providing a judicially enforceable right to any particular level or quality of education. A few early states flirted with obligatory constitutional language, but these provisions obligated the legislature to establish schools,6 not to 4 See, for example, Vt. Const. of 1786, ch. II, § 38; Vt. Const. of 1793, ch. II, § 41. 5 See, e.g., Pa. Const. of 1790, art. VII, § 1; Ga. Const. of 1798, art. IV, § 13. 6 See, e.g., N.C. Const. of 1776, art. XLI; Pa. Const. of 1776, § 44; Vt. Const. of 1777, § 40. 2provide an individual right to education, and even these nominally obligatory provisions were quickly repealed or entirely unfulfilled. Georgia, for example, did not establish a common school system until 1873, despite language in the George Constitution of 1777 mandating that “schools shall be erected in each county, and supported at the general expense of the State, as the legislature shall hereafter point out.”7New state constitutions adopted in the early part of the nineteenth century almost uniformly followed the “hortatory” model if they made provision for education at all. Two states did open the door for a claim of educational right, but the door was quickly closed by judicial interpretation in one of them (and the mandate in the other seems to have gone un-enforced for a century and a half). The constitutions of Indiana and Connecticut in 1816 and 1818, respectively, both required that the state’s schools be open to “all” the children of the state. Indiana’s provision was mitigated somewhat by the caveat, “as soon as circumstances will permit,” but even more by a decision of its Supreme Court holding that the constitutional mandate that the state’s schools be “equally open to all” meant “all the white children resident within the district.”8 Oddly, the Indiana court relied on an Ohio court interpretation of the Ohio Constitution, which contained only hortatory language quite unlike the obligatory language of the Indiana Constitution. Of the nearly two dozen new or amended constitutions that were adopted between 1835 and 1860, more than half followed the hortatory model. Several contained obligatory language, typically requiring the legislature to establish a