California's Lesson on Conservative Principles

Because of so much other political news a very important California state court decision threatening to end home-schooling nearly passed beneath my radar. This presents an opportunity to teach a core conservative ideal- the meaning of “Rule of Law”.

Essentially, the decision by California state court judge H. Walter Croskey states that parents in California do not have a constitutional right to school their children at home. Early in the written decision the court notes that many have mistakenly considered it a First Amendment Consititutional right to school their children at home. Indeed, the commentary I have heard on Houston-area talk radio concentrated on this idea, harping on how this was a "liberal" court decision. Such a notion flies in the face of two conservative fundamentals, though.

First, conservatives hold that the federal government is authorized by the states, and that the states are reserved powers (Tenth Amendment) denied to the federal government simply by virtue of their not having been specifically enumerated. In other words the states can do things the federal government is not authorized to do.

Second, the California decision rests principally in a state law dating back more than half a century (California Provisions for Compulsory Education of Minor Children). That law, which has, according to the decision of the court, been upheld repeatedly in the past, requires that children of school age be instructed by certified educators.

While many of my conservative brethren are scandalized at this decision as a work of "judicial activism" I see it as a clear example of the rule of law working as it should. Law should be made in the legislatures, not in the courts. Were the court to have upheld the prerogatives of Califoria home schoolers it would have flown in the face of the written law of the state and the court would clearly have been making law. In this instance I disagree with the law but, because I believe the rule of law is a higher principle than freedom to do as we please, I support the enforcement of this harsh statute. If the people of California also disagree with the law the solution is to get the legislature to CHANGE THE LAW.

The fundamental at work here is that if the people use the power to make law right they make their votes count for something and take responsibility for their own lives. If, on the other hand, the law is made "right" by an action of the courts the people's power is actually reduced and their capacity to make good decisions discounted.

For other stories on this decision Check out these links to the story in Time Magazine and on Fox News.

Posted by Lee Emmerich Jamison at March 12, 2008 11:28 AM
Comments
Comment #247740

Lee, excellent article. Cant even disagree with you as IMHO the rule of law is also a liberal ideal. Those that choose to teach at home in Ca. need to get the current law modified or start up a certified teacher network that would allow them to teach at home with oversight by ceertified instructors.

Posted by: j2t2 at March 12, 2008 12:07 PM
Comment #247743

Thanks for the article. It’s good to see someone from this side of the aisle challenge the idea that “judicial activism” is an acceptable synonym for “liberal decision”.

Posted by: LawnBoy at March 12, 2008 12:32 PM
Comment #247745

Scratch that. I’m not even sure that this was a “liberal decision”. I should have said “decision that conservatives don’t like”.

Posted by: LawnBoy at March 12, 2008 12:39 PM
Comment #247750

Lee, thanks for writing this up. I think this demonstrates the difference between conservative means and “conservative” ends. In this case, the means is strict interpretation of the law by courts, though homeschooling and family sovereignty are definitely conservative ends.

Whether there’s a higher law than California statute remains to be seen, however. Some would definitely argue that “natural law” or constitutional prohibitions against unwilling servitude protect homeschoolers from governments that fancy themselves in loco parentis.

Hopefully, California’s legislature will see that sending policemen to wrest children away from their parents is not socially desirable or constructive, even if it is legal, and give clear protection to homeschoolers.

(Full disclosure: I was homeschooled for most of my primary and secondary education).

Posted by: Chops at March 12, 2008 1:47 PM
Comment #247751

I would find it interesting to use these same arguments in the suit, also now before the California Supreme Court, attempting to overrule the decision made by California voters at the ballot box against same-sex marriage.

Lee says that if the public doesn’t like a law they should change it at the ballot box. Ok…that’s correct. In the case of same-sex marriage the voters in CA have spoken by huge majority in 2000 and now the court is being asked to rule that decision to be void.

Only a liberal would consider using the court to achieve their desire as acceptable in one case and not acceptable in the other.

Home schooling…bad, uphold law
Same-sex marriage…good, change law

Posted by: Jim M at March 12, 2008 2:05 PM
Comment #247754

Lee, I take it you are of the Bork persuasion that considers the 9th amendment nothing more than an ink blot?

Posted by: Rhinehold at March 12, 2008 2:21 PM
Comment #247757
I would find it interesting to use these same arguments in the suit, also now before the California Supreme Court, attempting to overrule the decision made by California voters at the ballot box against same-sex marriage.

I was wondering who would make this argument. There is a large fundamental difference between the two above state cases. Education is under the province and laws of the state. Equal rights, is under the laws and province of the Federal government. The state cannot pass laws that violate the constitution.

Case in point, and this is still being disputed. California’s Marijuana Medicinal law.

Posted by: Cube at March 12, 2008 2:38 PM
Comment #247759

Rhinehold,

I think that’s a bit of a reach on what Bork believes but, given his views on the right to privacy, one can understand the statement. The ninth seems to say just because some rights are enumerated does not mean unenumerated rights don’t exist.

What I think Bork is saying in his comments on privacy rights is that one can’t build a solid structure of law (a right to abortion as in Roe v Wade, for example) on a foundation of unenumerated rights. In this instance, however, one deals a right enumerated in many state constitutions (that of a free public education) versus the so-called “natural law” right of families to raise their children as they see fit. The federal Constitution really has nothing to say about education so the states have been given more or less the final say until very recently about the mechanics of compulsory education, curricula, and requirements for home schooling.

There is no question that if you believe you have an unenumerated natural right to leave your children uneducated there is no state in the union in which you will not have a hard row to hoe. From that point there are clearly big differences among the states. With that people can choose where they will live according to what rights each state protects. They can also change the laws by their influence on their legislators.

Posted by: Lee Jamison at March 12, 2008 2:59 PM
Comment #247764

Sorry, Lee, but that dog doesn’t hunt.

There is a big difference than PROVIDING an education (it is not free, no matter how many times you say it) and MAKING them accept that education that is provided by the state.

No one is saying that these people are not educating their children. There is nothing wrong with saying that these children should have to pass a test every few years to display that they are learning. No, the law instead attempts to enforce that ‘licensed teachers’ are FORCED upon the children of parents that should have the choice to accept or refuse that type of education for their children. And in doing so ensures that children of lower income parents will end up with no choice in the matter.

It has to do with forcing decisions upon people who should be making those decisions themselves. If we do not have that fundamental right, then we have no rights at all. And that you can condone those who want to violate these natural laws, you open the door to so many other violations that would have you screaming unconstitutional in a heartbeat.

And you can’t see that, because of the political motivation, mainly against abortion, that spills out into every aspect of your view on constitutionality and in the end destroys you more than saves.

BTW, I just found out that, at least in my state, that in order for a married man to get a vasectomy, he has to get his wife’s signature oking it. WHAT? Since when did ‘the right to do what you want with your own body’ get rescinded? No one would suggest that a wife have to get her husband’s signature to have an abortion…

It’s that type of inconsistency that comes from shaping your views around partisan politics.

Posted by: Rhinehold at March 12, 2008 3:18 PM
Comment #247777

Rhinehold,

In using the word “free” I was simply utilizing the wording used in the Texas Constitution. I pay school taxes and know very well education costs something. I also know a number of home schooled people and a couple of home unschooled people. The average quality of a home school education is very high, but the bottom end is pretty bad.

My understanding is that this decision may be as traumatic for the educational system in California as it would be for the families it impacts. That already strapped system may find itself, with no hope of additional revenue, forced to accept 200,000 new students. I’m guessing the law will change soon.

Whatever you may think of my partizanship I have been pretty consistent about stating that the people of the individual states should also get their legislative choice on abortion. Privacy as a natural and unenumerated right has been extended into this realm in a way that made it into a de facto enumerated right and then built structures of law outside of the purview of the people by that de facto enumeration. This has impinged on other unenumerated rights like the natural right of parents to make decisions for their minor children.

The Ninth Amendment is worded as it is precisely to avoid this sort of game of enumeration and exclusion. Once one names a right the government is empowered to compromise other unnamed rights for its protection. That is precisely why Alexander Hamilton fought so fiercely to avoid the inclusion of the Bill of Rights in the first place. He wanted it to be clear that the governmental powers not specifically enumerated simply wouldn’t exist.

Posted by: Lee Jamison at March 12, 2008 4:20 PM
Comment #247785

On the home unschooled, my house in Florida was nearly burnt to the ground by a “home-schooler”, who was wandering around most of the day waiting for the public school kids to get home so that he would have someone to socialize with.

Posted by: ohrealy at March 12, 2008 4:56 PM
Comment #247787

A parent should have the right to homeschool their children or send them to what ever school they want to. I understand that some parents don’t appreciate the corriculum that some school districts are forcing children to take. There are organizations which help parents to homeschool at least where I come from anyway. Home school families should be monitored by the state by testing from time to time, for a reasonable fee.
Ohrealy I hope you had the parents and that kid prosecuted.

Posted by: KAP at March 12, 2008 5:38 PM
Comment #247795

“I was wondering who would make this argument. There is a large fundamental difference between the two above state cases. Education is under the province and laws of the state. Equal rights, is under the laws and province of the Federal government. The state cannot pass laws that violate the constitution.”

Case in point, and this is still being disputed. California’s Marijuana Medicinal law.
Posted by: Cube at March 12, 2008 02:38 PM

Sorry Cube, that just doesn’t work. If education is states rights, why do we have a Federal Department of Education, why are schools partially funded by the Federal Government and why do we have prayer in school banned as unconstitutional?

Equal rights for same sex marriage has not been granted or implied by the constitution in matters of marriage and if I am not mistaken, congress passed the protection of marriage act. This should properly be a province of the federal courts and not a state court.

You clearly state, “the two above state cases” and I wonder about your argument that at least one of them belongs to the federal courts. Which is properly a state case and which is properly a federal case in your opinion? I am confused.

Frankly, I believe both of these issues belong to the state and the federal government should stay the hell out of both of these issues. These decisions both belong to the individual states and their respective citizens.

The upcoming case accepted by the U.S. Supreme Court concerning individual rights to bear arms in Washington D.C. should be very interesting. I have no idea how the court will decide this thorny issue. I have read some interesting articles on both sides by noted constitutional scholars.

Posted by: Jim M at March 12, 2008 7:07 PM
Comment #247804

Excellent post Lee and excellent discussion by all. I’m not really sure where I stand here, except that the choice to keep one’s child “ignorant” could be deemed child abuse. Of course, stifling one’s child with the pablum we sometimes call education could be equally tagged abuse.


I am beginning, though, to wonder if Rhinehold’s secret identity is Dan Rather, given that dog won’t hunt line. Thanks, you made me laugh out loud.

Posted by: googlumpugus at March 12, 2008 9:19 PM
Comment #247813
I have been pretty consistent about stating that the people of the individual states should also get their legislative choice on abortion.

Yes, consistently wrong.

The right to privacy is a federal one and supercedes the ability of the states to act beond it, thanks to the 14th amendment.

Privacy as a natural and unenumerated right has been extended into this realm in a way that made it into a de facto enumerated right and then built structures of law outside of the purview of the people by that de facto enumeration.

Erm, that’s completely incorrect. Privacy is a natural right and exists as an actual right in the form of the 9th amendment. And the Supreme Court has upheld that the right to Privacy exists in that amendment.

This has impinged on other unenumerated rights like the natural right of parents to make decisions for their minor children.

No, it hasn’t. That displays a complete and total lack of understanding of what a natural right is. It is a right that exist in a natural state. If it were to impinge on another natural right, then one of them is not a natural right.

The Ninth Amendment is worded as it is precisely to avoid this sort of game of enumeration and exclusion.

Again, you are wrong, more in a bit…

Once one names a right the government is empowered to compromise other unnamed rights for its protection. That is precisely why Alexander Hamilton fought so fiercely to avoid the inclusion of the Bill of Rights in the first place. He wanted it to be clear that the governmental powers not specifically enumerated simply wouldn’t exist.

What complete horseshit.

What Hamilton and Madison made clear was that the danger of listing only a subset of the rights that a citizen enjoyed is that someone (like yourself) would one day come along and say that since the right isn’t written down it doesn’t exist.

They further found no need to list any of them since the federal government was highly constrained from doing anything anywhere close to infringing on our natural rights so there was really no need.

They in no way ever once said that by not listing them they weren’t as important or as enforcable as those that are enumerated. That’s just wishful thinking on your part.

Posted by: Rhinehold at March 12, 2008 10:40 PM
Comment #247817

Rhinehold,

I am curious about your opinion about this situation:

A child is “homeschooled” and is wondering about the community telling people about the magical world of munchkins that control the universe and speaks to people after fasting. He is often found behaving in a bizarre manner, disconnected and talking to himself. Suddenly KAP finds his house butned down. The child was seen nearby. The police interview this child and discover this munchkin belief of the child. They ask the parents who confirm this is their way. They, however, lead quiet productive lives.

Should the police, social services or anyone intervene? Or would this be a violation of privacy?

Posted by: googlumpugus at March 13, 2008 12:07 AM
Comment #247818

In a state where the teachers union has unlimited powers, I would not say that this is a good law. It is a self serving law for the union fellowship. “Nobody but we are qualified” to teach (or screw up your kids, as the case may be)! What a load of bunk. In California, school pay is based upon attendance. Bodies count, brains don’t. Homeschooling and charter schools are a good alternative to the tenure of gov’t workers. Even the RINO Arnie, tried to fix some infrastructure probs with education but was outspent by liberal union indoctrination.

It might by the rule of law, but it is not my law. I niether voted or campiagned for this law, and I do not believe in its efficacy. I also do not believe as a conservative that I have to shut up and go along with this one.

Posted by: ScottP at March 13, 2008 12:33 AM
Comment #247821

As Lee stated, the 10th Amendment gives the State of California and its citizens the right to regulate the education system as they see fit. This ruling simply upholds the law. While I disagree with the law, it must be changed by the legislature or stuck down upon federal appeal. Frankly, I don’t see what the fuss is about. Yes, I believe the State of California has overstepped its authority, but the legal process is not complete because the federal courts have not yet had an opportunity to address this case (if a federal appeal is sought). I certainly appreciate the vigilance of my fellow citizens in decrying this law and the ruling upholding it, and again, I believe the law the should be changed. But until that time, one must trust the legal process (though slow it may be) to restore the right of California’s citizens to educate as they see fit. Otherwise, people are free to vote with their feet and move to another state which allows them to home school their children under less burdensome regulations.

Posted by: Mr. Haney at March 13, 2008 2:09 AM
Comment #247824
Sorry Cube, that just doesn’t work. If education is states rights, why do we have a Federal Department of Education, why are schools partially funded by the Federal Government and why do we have prayer in school banned as unconstitutional?

The federal government does indeed offer States funding for schools. I repeat “offer”, states can refuse this funding if they so choose. The funding is normally tied to Federal programs, such as “no child left behind”. Prayer is banned in school because of the first amendment.

Oh, and the protection of marriage act was never ratified by the Senate. Anything else?

Posted by: Cube at March 13, 2008 3:55 AM
Comment #247829
Should the police, social services or anyone intervene? Or would this be a violation of privacy?

Is there any evidence that this kid did anything wrong? If yes, he should be arrested, if not, how is he any different than the kid walking around who goes to public school and talks about Jesus all day?

Displaying a belief in a mythical creature isn’t illegal, last time I checked…

Posted by: Rhinehold at March 13, 2008 7:29 AM
Comment #247844

Rhinehold,

I agree except in the practical sense. From an idealogical perspective, your answer is the right one. On a pragmatic basis, which is where I usually come from, this make zero sense.

I personally think the Jesus analogy is apt. Children reared in households that exhibit either a Jesus or Munchkin fetish are being mistreated, IMHO.

The picture I tried to paint was a child “disconnected” and behaving in a “bizarre” manner with unproven misconduct. These are red flags to anyone who has any sense of child rearing. Failure to act might be protecting privacy, but likely failing to aid a child in distress. It’s a moral and legal delima encountered daily by police and social welfare agencies.

The dilemna is that abuse can easily be hidden in our anonymous society. In a rural or small town environment, it is more likely that someone would intervene, legally or not, although even that is changing. This is the erosion of percieved privacy in a more crowded world. Jefferson’s time of more interconnected communities was substanstially different to ours. I’m not sure the old paradigms work in the same ways.

Posted by: googlumpugus at March 13, 2008 11:00 AM
Comment #247865

The rights that people claim are no longer valid because ‘we live in different times’ are actually needed even more now that we are. For example, a right to privacy. It was never really questioned a few centuries ago, and it was seldom an issue as large groupings of people existed but not in the numbers we have now. BUT, now, when we are finding a percentage of our population (nearly half) living in large communities/cities, their right to privacy is something that needs defending even more because it is so easy to violate.

As for children who act out or behave in a disconnected manner, it has nothing to do with homeschooling, that is an issue that goes well beyond that and exists in public schools as well. It is the issue of when to do something about it. However, there is little worry about it because it is already taken care of in our society, if a person is a potential danger to others or himself, then the society can act. A judge is presented with the facts and the legal use of the government to intervene can take place. However, until that point, their rights still exist and should be respected in full…

Posted by: Rhinehold at March 13, 2008 1:13 PM
Comment #247898

Rhinehold,

Section 1 of the 14th Amendment states the following- “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.”

Now by your theory this wording applies equally to all unenumerated rights in a way that magically makes them all inviolable. OK. A right to privacy (which must, it seems, be identified to be protected, and that would seem to be a form of enumeration…) now stands on a special footing when compared to the right of parents to make choices for their minor children. Toward the end of protecting the now-enumerated right it seems expedient to violate, in spite of whatever protection you think you see in the 14th amendment, a parent’s right to make value choices for that minor child.

Voila! The end of an unenumerated right! What caused the end of the right? Identifying another right and EMPOWERING THE GOVERNMENT to protect it.

Hamilton and Madison also wanted the document that empowers government to say as little as possible because there were implications of power involved in the identification of rights. You are not wrong, but the fact of the matter is that the Ninth Amendment was necessary precisely because now that the cat was out of the bag and some rights had been enumerated rights not enumerated would obviously be deemed less important! The fact that privacy can compromise parental rights (and seeking a vascectomy can compromise privacy as in your comment #247764 above) means that once goveernment has enumerated a right GOVERNMENT is empowered by the identification.

That is what happened in Roe.

As to your comments on the 14th making privacy inviolable, how is the legislature of any state violating “due process of law” by protecting the enumerated right of “life” of an unborn infant to the extent demanded by the voting public of that state? Wouldn’t the logical extention of that “privacy” allow people who lived far enough back in the woods to kill family members at will, just so long as we didn’t get to see it?

Posted by: Lee Jamison at March 13, 2008 10:14 PM
Comment #247940

The problem, as I see it, and frankly not quite following the debate between Lee and Rhinehold,
is should there be a uniform standard of education?

To that, I think the answer has to be yes, if we are to sustain any sense of coherence as a nation.

Can parents add to or offer other sides of issues to there children? Certainly.

On a road system with two cars, few laws are needed. On a road system with a few million cars, without standards, chaos will ensue.

Posted by: googlumpus at March 14, 2008 4:20 PM
Comment #247943

Rhinehold,

BTW, I agree with your response. My example was a poor choice.

The point I was trying to make, is that we don’t want pools of people living in completely different realities within our borders.

The Mormons come to mind as a group with a different sense of morality and reality than many Americans. They were reviled and had to flee to the frontier to escape annihilation. They have since normalized their ideas to fit in with white, christian euro- American culture.

Our melting pot, cannot become a stew of solid balls, but must meld together.

Without some form of common education, I suspect that segregation would intensify.

Posted by: googlumpus at March 14, 2008 4:30 PM
Comment #247988

googlumpus,
I hope you’re still looking in because you raise a good point. I would agree on the uniform standard, but only to a point. This is not because there is not some set of things we all need to know, but beyond a certain minimum our cultural diversity should be expressed in what we expect our children to know. The culture of families is very important and it expresses itself in myriad educational ways. The preferences of families can express themselves in overt home-schooling or in choices of private or public schools. (Many people carefully consider school districts before moving into a community.)

So I do believe in standards, but standards that express what society insists we should know (even hard core religious fanatics should understand the concepts of Evolution whether they believe in the process or not, for example), not ones wherein society tells us what we WILL know.

I personally do believe in evolution and that diversity of ideas and information makes possible greater flexibility for the facing of new challenges as the world changes around us.

Posted by: Lee Jamison at March 14, 2008 11:29 PM
Comment #248000

Standards are fantastic, in fact a minimum of understanding is truely important. Local, general and national concerns should be taught thru out the land. The three R’s are the basis. Then the true nature of competition should take over. If a school district, county, state, etc. wants to concentrate on a specific cirriculum, super. Not everyone is good to go to college, someone has to build a house, fix a car, assemble a device etc., I am a swimming pool maintenance technician with a degree in economics. My work does not need a degree, it is great, but a general understanding of hydro and electro technologies is all that is really needed.

The self important credential is a formality. I can teach my kids, I can coach there little league, I can’t impart my years of experience without some sort of credential. Yeah right!

I would love, and be good at teaching High school business, govt. etc., but I can’t afford the time off from income earning to get the all vaunted credentials to help kids learn about small business, corparate life, home ownership etc.

So instead, they learn from a college grad, whose only life experience is that of summer jobs as a lifeguard, and years of being a teacher, never having held a job without tenure, running a business without a safety net etc.

Even the kids of the MEK tribe on the discovery channel are taught by the elders who have experience in what they teach. The shame comes from the unionized protectionism of there jobs over the satisfaction and measurement of performance. At least in this state.

Posted by: Scottp at March 15, 2008 1:03 AM
Comment #248149

Thank You, Lee.

Scottp,

You raise valid issues as well. My father was a non degreed eclectronics tecnician. He taught vocational electronics in Ohio for two years. He was not degreed, or certified.

While he was a smart man, and perhaps even a good teacher, he lacked the patience to be in this profession long term. Teaching is a skill or maybe a talent. Understanding how to teach is not the same thing as knowledge. My sister and brother in-law are both teachers. They make a modest income and work hard, as do most teachers.

Teachers are an easy mark, in my opinion. I don’t know the current state of Ohio vocational programs, but they did exactly what you suggest in the seventies.

Posted by: googlumpus at March 16, 2008 2:29 PM
Comment #248160

There is another element of this concerning the vocational school issue. Whoever says everyone should go to college is just dreaming. A master plumber or master carpenter or mechanic in this country who works hard an handles his money well can easily retire a millionaire (as long as we don’t illegally import people who will do their jobs for nothing). I’m not just talking off the top of my head, either, because I know numerous examples of people who have done very well for themselves in these fields.

It is ridiculous not to train our people to take advantage of these opportunities. College is important for the society as a whole, but not even for most of the people in that society individually. People do need to know basic business stuff and basic personal finance and how to take care of children, but most people in their twenties neither need nor care to know the essentials of the liberal arts. They’ll develop an acquired taste for some of it with maturity.

Society does not rest on a foundation of intellectuals. That population, sodden with their own glory, is usually aghast to discover the foundation of the world is ordinary folk who go about their lives quietly accomplishing things rather than thinking about things and then congradulating themselves on what they realized.
We aren’t going to make the dollar worth more by thinking it is worth more. We will make it worth more by making more of what it is worth. To do that we need schools to teach practical people practical things.

Posted by: Lee Jamison at March 16, 2008 5:49 PM
Comment #248189

Lee,

While I agree that many people need vocational training rather than college preparation in High School.

I don’t think the real problem in college is liberal arts. My biggest gripe is the lack of science requirements in college degrees. I think it would be bad for a college grad not to know some literature, be exposed of classical music, or have an appreciation of fine art, but by far the biggest dearth of learning that I see in college is in the sciences. Sadly many people get through high school without basic mathematic skills, and thus cannot cope with college level science.

Many engineering and science majors make fun of non-science degrees as quasi-degrees for their lack of critical thinking skills. There is some justification in this opinion. The major advances in society in the last 200 years haven’t been literary, artistic or musical.

Posted by: googlumpugus at March 17, 2008 4:48 AM
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