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Constitutional Interpretation and Education Policy

3/2/2018

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Society has changed since the writing of the constitution, and there's little doubt that the framers recognized the need for periodic review of its standing in a modern society.  In fact, the framers intentionally wrote mechanisms for change into the document itself.  However, (and this is, perhaps, where I'm getting a bit into semantics, here) I wholly disagree with the idea that the constitution should be 'read' differently today than when it was ratified in 1788.  

The sentiment 'the constitution needs to be interpreted differently' seems increasingly prevalent.  It's also wrong.  Acting upon such sentiment sets a very dangerous precedent.  Imagine, for example, if one is a landlord, business owner, or client who enters into a contract with another party, then at some point one party says, "Well, my circumstances have changed, I now have a different opinion, family structure, etc. so therefore, the original contract we entered into no longer applies." and subsequently requests fees to be changed, stakeholders and participants to be altered, or whatever.  (I wish I could do that with my credit card companies!) This is obviously not how contracts work. 

A constitution is a contract between the government and its citizens.  Yes, times and circumstances have changed since the writing of the US Constitution, however, contracts are (nearly) always interpreted as they are written.  This is why lawyers get paid the big bucks to write them so precisely and argue every minutiae.  Consequently, so long as the constitution is written as is, it should be interpreted as written.   With regards to education policy, this means the federal government does not have any legal authority over education policy, because the 10th Amendment affirms the rights of the states to govern all aspects of society which are not explicitly reserved to the federal government - education being famously (infamously?) not one of the constitutionally enumerated authorities of the federal government.  
​
To circumvent this delimitation of authorities, the federal government has utilized its alternate authorities under the commerce clause.  The U.S. Department of Education cannot create rules or regulations about education which must be enforced by law.  Instead, the commerce clause - through vary loosely defined terminology and authorities - allows the federal government to tie tax breaks, subsidies, grants, etc. to the adherence of federal education policy.  Effectively, states are not breaking any laws by failing to adhere to federal education policy, but they end up losing a significant amount of money if they don't.   

The federal government has found a loop-hole in its contract with the American people.   It is a loophole which allows a significant influence by way of funding, but does not go so far as preventing an equally significant level of local control as per the 10th Amendment.  
Now, if one feels that there should be federally mandated and legally binding education policy, then I would argue that a constitutional amendment should take place.  This is re-negotiating the contract between the government and its citizens, rather than re-interpreting it.  
It is a woeful day when it is has become acceptable to simply re-interpret the most foundational laws of a country rather than re-negotiate them.  If those foundational laws are subject to re-interpretation, then surely lesser laws may be subject to re-interpretation as well.  What protections, then, does any contract, at any level, really serve if a country's paramount contract  with its citizens may be re-interpreted at will? 
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