September 19, 2005

Scott Defisks: HoNDA Sec. 2(2)

(2) Congress, the President, and the Supreme Court, in exercising their legislative, executive, and judicial functions, respectively, have repeatedly affirmed the rights of parents.

Chris says, “ROFLMAO.” I say, Chris, your cynicism is showing. More…

Politicians spend a lot of time kissing babies and praising Mom and apple pie. Do you doubt that the President and Congress have “repeatedly affirmed the rights of parents,” or do you doubt that these words mean anything?

The courts, including the Supreme Court, have repeatedly “affirmed” the rights of parents. Would it help if I listed some quotes and cases?

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Comments

For every case you post, my readers will easily post two where Congress or the Courts screwed parents. All of which makes my point - the idea of Congress or the Courts as a great advocate of parents rights is laughable.

Posted by: COD at September 19, 2005 09:57 PM

Chris, we're on the same wavelength here. I've written a number of briefs for the "Center for the Original Intent of the Constitution" where I argue that the federal government should do a FEW things WELL, instead of everything badly. Almost everything we are trying to change in HoNDA is something that a Tenth Amendment purist like me thinks the federal government shouldn't be doing in the first place. (Section 10, dealing with the military, is the one clear exception to that rule.)

When Congress decides to spend a trillion dollars, it's like having a hippo jump in your bathtub. No matter how well-intentioned the hippo may be, it doesn't leave much room for your rubber duckie. You and I could BOTH cite case after case where the hippo has mashed family freedom flat.

Having agreed on that point, what do we do about it? You seem to be content with mocking the hippo. I want to make it shove over a little bit. Are you saying we CAN'T persuade the federal government to back off a little? Or are you saying we SHOULDN'T persuade them to do so?

Posted by: Scott W. Somerville at September 20, 2005 11:21 AM

The law of unintended consequences is my big fear. It may be admirable to get the Feds to clarify a few issues in our favor - but what happens in 2-4 years now that we have established a precedent that the Feds can rule on these matters? From my standpoint, the status quo is not bad enough to justify the risk. I'd prefer to haggle with the states, but then admittedly, I'm not the one that has to do the haggling.

Posted by: COD at September 20, 2005 12:49 PM

Scott, if you truly are a 10th amendment purist, as you say, why push legislation that adds to the morass rather than push for the repeal of law that creates the discrimination in the first place. For example, the military section could eliminate any requirement for documentation proving the potential recruit is 'educated' in favor of simply basing enlistment eligibility and signing bonuses on performance on the ASVAB or some equally relevant measure. Fiftieth percentile and up gets in, 10th percentile and above gets a bonus. College admissions could be based solely on admissions tests or -- perish the thought -- could be determined by the individual schools. The 'rights' we are talking about here are the right to join the military (and be paid a signing bonus) or the right to go to a government subsidized college, the right of a youth to be economically productive, etc., not the right to homeschool.

And if we are creating legislation aimed at eliminating discrimination under the guise of the 14th amendment, why make law that creates distinctions for homeschoolers in the FLSA? Would it not be better to recognize that youth, however they might be educated, have a 'right' to be economically productive? Seems to me that a distinction based on how the youth's education is being provided bears little to no relevance to whether or not he should be allowed to work at any particular hour of the day. Does this not violate the "equal treatment" clause of the very amendment it is using for it's constitutional authority?

Posted by: Tad at September 21, 2005 02:55 PM

Tad, your comment is a breath of fresh air. There's nothing I would like better than to repeal the "Spending Clause" legislation that got us into this mess. Every time I see a new government spending program for education at any level, I say, "Uh oh! Here comes trouble." The power of the purse is just too great to let it mess with education.

The Fair Labor Standards Act (FLSA) was enacted pursuant to the "Interstate Commerce Clause." I wrote an amicus brief in the Alden v. Maine case that challenged the application of the FLSA to State governments. My brief is online at:

http://originalintent.phc.edu/Library/98-436_B.asp

I'm happy to say the Court ruled the way I wanted them to (5-4) and even cited one of my sources in a footnote. (My big mark on Constitutional law!) So I'm all in favor of challenging the FLSA.

But... I don't believe we will achieve any NEAR term goals by starting with a challenge to the Spending Clause or Commerce Clause. It will takes some fresh blood on the Court to start rolling back a lot of these big-government assumptions. Chief Justice Roberts may surprise me and start peeling back the New Deal next year... but I'm not going to hold my breath until he does. HoNDA's the best I've got until then.

Posted by: Scott W. Somerville at September 21, 2005 03:26 PM

An interesting brief, and it may come in handy as I discuss section 207 of the FLSA and state employee overtime rules with the Utah Senate next week.

I wasn't implying that the FLSA was enacted under the 14th amendment, but that HoNDA is proposed under it (your question to Chris about section 2(1)). And the question still stands: If the means of receiving an education bears no relevance on the right of a youth to work at some particular hour of the day, and we create a distinction between homeschoolers and everyone else that provides the homeschooler with a 'right' not given to others, have we not created an "arbitrary and capricious" distinction that would violate the equal treatment clause? Here is a scenario (and this is how I graduated from high school 30 years ago): Student can't get the courses he needs from the regular 'day' high school, but they are available from an "adult education" night school. He enrolls in the night school and wants to work during the day. Your exception still prohibits him from getting a job during school hours, but a homeschooled kid is allowed to work.

Nor am I proposing the complete repeal of the spending clause. If the current statutes relating to college admission, financial aid, working hours, or military enlistment are discriminatory, I would prefer to see legislation that eliminated the distinction creating the discrimination rather than enacting legislation that crystalizes it into code with an exception. Instead of a prescriptive solution where Congress decides how to determine whether a student is sufficiently educated to enter a college, return the decision making authority to the college. If homeschoolers really are performing 30+ points above the public school crowd, the colleges will figure it out and set policies to admit them. If the kid is smart enough to pass the entrance exam at an acredited school, then let him qualify for financial aid. Same thing with the military.

Or is it your contention that the federal government has some interest other than ensuring that college students and military enlistees be sufficiently educated to handle the work they are taking on? Does the federal government have a legitimate interest in providing incentives to obtain a public high school diploma or any other specific documentation of education?

Posted by: Tad at September 21, 2005 05:41 PM

Tad, your points are good but it may be best to take them up one by one as we deal with specific pieces of HoNDA. If you aren't objecting to the whole notion of congressional action at all, it makes sense to look at Congress's Spending Clause actions that affect higher education, and then look at Congress's Army and Navy powers as they address military recruiting, and so forth. Each body of law has its own issues and limits.

Having said that, there are some good people in this debate who object to ANY federal action at all, and they deserve an honest answer. May I use your response for the proposition that "It does make some sense to discuss amendments to federal legislation"? Or is it your considered opinion that we really shouldn't be talking to Congress at all about anything?

Posted by: Scott W. Somerville at September 22, 2005 10:42 AM

I guess I'm somewhere between those two positions. Obviously there are provisions in the existing law that need to be changed, so it makes sense to discuss making changes. But those changes are needed for a broader spectrum than just the homeschool constituency. In any legislation, I prefer to simplify and remove restrictions on personal liberty rather than codify exceptions to complex regulations. To my mind, Congress has not met the burden of proving that there is a need for prescriptive law dictating the conditions of enlistment or enrollment, etc., to the level specified and even if such a burden has been met, I would question whether the measures specified are sufficient. With the current state of public education, does a high school diploma really indicate what is purported? Will third party verification of homeschool graduation provide a valid measure in five years? is there a potential for fraud? Are there other constituencies/situations that are not covered? The very existence of these questions leads to the conclusion that further prescriptive amendment will be needed in the future. I think it better that Congress stay out of the details and leave it to the lesser authority to implement the broader objectives.

So, I don't object to discussing federal legislation to make changes favorable to homeschoolers, but I think those changes should be to remove prescriptive regulation that is unnecessary and provide a boader avenue for local authority to implement, rather than to implement further prescriptive exceptions. Or, as Jefferson put it, "He who governs best, governs least."

Posted by: Tad at September 22, 2005 11:28 AM

Fair enough. I'm still working through the general "findings" and "sense of Congress" sections of HoNDA, so let's discuss the pros and cons of the specific provisions of HoNDA when we get to those sections.

I think you'll like the part on Special Education evaluations: it fits in exactly with what you are saying.

Posted by: Scott W. Somerville at September 22, 2005 12:35 PM

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