Download Excerpt of Remarks by Neal McCluskey on the Federal

Testimony
Excerpt of Remarks by Neal
McCluskey on the Federal
Government’s Role in Education
APRIL 26, 2011
Excerpt of Remarks by Neal McCluskey, 4/13/11 Forum
First, I want to thank the American Action Forum for inviting me today, and for putting
together an event that asks the first question that federal legislators – and all Americans –
should ask themselves when contemplating federal action: Is it constitutional?
When it comes to federal involvement in education, for the most part the answer to that
question is unequivocally “no, it is not.”
And with that I offer what should be, but sadly isn’t, a basic civics lesson.
First and foremost, the federal government is given only specific, enumerated powers, and
they are found in Article I, Section 8 of the Constitution. Among them you will find nothing
about education, meaning the federal government has no authority to make education laws.
But what about the “general welfare” clause?
It confers no authority, it only helps to explain why the federal government is given the
specific powers that follow it. As Madison states in Federalist no. 41:
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.
AMERICANACTIONFORUM.ORG
Okay, what about the Hamiltonian notion that the federal government can do anything that is
in the national interest, and is empowered to do so by the taxation and “necessary and
proper” clauses?
Sorry again: Hamilton himself had rejected such arguments in Federalist no 33, and Congress
rejected Hamilton’s 1791 “Report on Manufactures” in which he changed his tune on whether
the federal government has only specific, enumerated powers.
Here’s what Hamilton wrote in Federalist no. 33:
t may be affirmed with perfect confidence that the constitutional operation of the intended
government would be precisely the same, if the clauses were entirely obliterated, as if they
were repeated in every article. They are only declaratory of a truth which would have
resulted by necessary and unavoidable implication from the very act of constituting a federal
government, and vesting it with certain specified powers. [Italics added] Notably, that the feds have no authority in education does not come from the 10th amendment
– sorry “tenther” bashers – education is simply one of countless areas in which Washington is
prohibited from meddling because the Constitution does not give it explicit authorization to
get involved. The 10th amendment just reiterates this by stating that “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.” Notably, this understanding of the federal government’s role – or lack thereof – in education
was acknowledged at least until 1943, when the United States Constitution Sesquicentennial
Commission, under the direction of President Franklin Delano Roosevelt, published The
History of the Formation of the Union under the Constitution. It had the following question
and answer:
Q. Where, in the Constitution, is there mention of education?
A. There is none; education is a matter reserved for the states.
There are two arguments based in neither the specific wording of the Constitution nor the
Framers’ explanation of the Constitution that are often proffered to rebut objections to federal
AMERICANACTIONFORUM.ORG
education involvement. The first is that the Land Ordinance of 1785 and Northwest Ordinance
of 1787 required that a portion of all proceeds from the rental of federal lands be reserved for
education. The second is that federal laws such as the Morrill Act of 1862 got the federal
government involved in education long ago.
Neither of these holds any water.
Both Land and Northwest Ordinances were enacted under the Articles of Confederation, not
the Constitution. What they tell us about what the Constitution authorizes is, as a result,
nothing.
For the Morrill Act, it is critical to note that it was passed during the Civil War, when the
section of the country that had most consistently opposed federal action was no longer part of
the union. The Act’s passage also has no bearing on what the Constitution actually allows – a
violation of the Constitution is no less a violation just because it occurred a long time ago.
So the federal government may in almost no constitutional way govern American education,
even if it is in exchange for money as currently occurs under such laws as the No Child Left
Behind Act. It can, though, be involved in two very specific instances: Under the 14th Amendment, the federal government has a duty to prohibit
discrimination in provision of education by states and districts Under Article I, Section 8, the federal government is given jurisdiction over the District
of Columbia and federal installations such as military post. So, unlike almost everything
else the federal government does in education – and that President Obama, congressional
Democrats, and many congressional Republicans support – the DC voucher program that
the President and most Democrats oppose is actually constitutional!
AMERICANACTIONFORUM.ORG
Unfortunately, we live in a time when you can make the clearest, most unimpeachable case
that the Constitution prohibits a federal action and most people will just smile politely and
move on. But the Framers didn’t restrict the feds to just a few, specific jobs because they were
reflexively anti-government. They did so because they knew that government is best that
governs least, and that a national government is the most prone to hurting the masses for
narrow gain.
This is exactly what we’ve seen in federal education policy, with concentrated benefits and
diffuse costs at work. We have massive expenditures that enrich and empower education
special interests – teachers unions, administrators associations, university employees – who
are the people most motivated to be involved in education politics and the easiest to organize.
But that spending has done little educational good. Indeed, real, per-pupil federal spending on
K-12 education has well more than doubled in the last 40 years while producing nary a blip in
17-year-olds’ achievement, while massive increases in student aid have largely just translated
into astronomical tuition inflation.
And now, despite the clear wording of the Constitution and failure of federal policy, we are on
the precipice of a complete federal takeover of our K-12 schools. Not just do we have No Child
Left Behind dictating to states and districts how their education systems will be structured –
what subjects they will test, when they will test them, and how schools will be dealt with that
underperform – but we are on the verge of Washington dictating specific curricula.
President Obama’s so-called Race to the Top program started this final move, requiring states
to sign onto “Common Core” curriculum standards if they wanted to compete for part of $4
billion in federal “stimulus” dough, and underwriting the development of national tests. Plans
to reauthorize the No Child Left Behind Act promulgated by the Obama White House, which if
enacted would link national standards to Title I funds – a $14.5 billion pot of money — would
cement the takeover.
Don’t, by the way, expect such changes to improve education. For one thing, there is no
meaningful empirical evidence that national standards produce better outcomes, despite the
promises of would-be national standardizers. Moreover, even if we can get tough standards
and accountability passed initially, they will almost certainly be watered down over time by
AMERICANACTIONFORUM.ORG
the special interests who would be held accountable. Once again, inescapable concentrated
benefits and diffuse costs will be at work.
Constitutionally, there is es
sentially no legitimate federal role in education. And that is for a reason we have,
unfortunately, learned all too well: Federal involvement is doomed to be a bankrupting failure.
Thank you.
AMERICANACTIONFORUM.ORG