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I had intended to read some cases to get this chapter started, but I had my last wisdom tooth pulled last night and haven't been able to concentrate. (I hope my lack of concentration is not due to my being wisdomless. )

Anyway, I am ill-prepared to make any kind of complete argument but I figured I would get the ball rolling. The reason I made such a fuss about Fourteenth Amendment incorporation was largely because of this chapter. Incorporation occurred without ceremony, without justification and, most importantly, without explanation; it just happened. George, earlier, made a salient point that it is appropriate that citizens from various states, as far as the First Amendment is concerned, are equally protected. And for the most part, I concur.

But for some reason, incorporation with regard to the states' school systems doesn't sit well with me. In fact, I think federal involvement in state funds directed at education is unwise, and is often reflected in SCOTUS's demonstrated reluctance to get involved in local district decisions. States make many decisions regarding their educational systems, and these decisions are usually independent of federal involvement. That is why state to state, even district to district, school systems can radically vary. It is not unusual for new parents to choose residences based on the school systems offered. Townships and states make individual choices (through the polls) on how much they wish to spend to support those schools. And districts either flourish or suffer because of those voting choices. For a federal court to remove from the states the power to decide how and where they spend their tax dollars, particularly in many of the gray area cases, seems to me to be an egregious overstepping of federal power. And trust me, I would not have been an anti-Federalist.

As I said I have to read the caselaw to decide if my gut instinct can be legally and constitutionally supported. And I am not claiming that the precedent that has been set can be or should be reversed. I think it is good that public monies are not funneled to religious schools. But for those who don't agree, I think perhaps their beef may be justified-that possibly the decision should have been left to the individual states.

I don't have my book on me right now. When I read the quote you're referring to, I'll answer your question, if I can.

Julian, I didn't think I was going to get any resistance to my above statements. I'm glad you jumped in.

I agree that government money to private schools violates the First Amendment. And with incorporation of the Fourteenth Amendment the violation would hold for states as well as Congress. I just don't necessarily think that the federal government should be in the business of making these decisions for states.

I see public education as predominantly and almost wholly a state responsibility. Fiscally and logistically it is the state's responsibility to provide free public education. Where the responsibility lies, the power should also lie. It often becomes a problem when power and responsibility become skewed, where one entity holds the power, while the other entity holds the responsibility. The exercise of such power by the federal government on the states is warranted where civil rights are at issue. But I'm not sure that utilizing tax dollars to help support the education of the state's children at private schools, even sectarian private schools, equates to an egregious breach of civil rights, if a state decides to do so. And likewise, if a state decides its taxes should not be used to support private schools, the federal courts should, again, have no say. I know a position like this would therefore hold for all federal involvement in all states' choices to include religion in their government. But for some reason the argument seems to stand on more solid ground for me when talking about state schools. (And, yes, I know that's not reasonable.) Either way, I think anti-incorporationists have a legitimate gripe with Fourteenth Amendment incorporation of establishment (and therefore free exercise), if they so choose. It's never been adequately explained or justified, as far as I can see. And one result is federal regulation in one of the very institutions where there should be no such regulation, state-provided public education.

Garicker: So I don't think anti-incorporationists have a stronger argument for state funding of religious schools than they have for state requirements for religious exercises.

No I didn't mean to argue that. Only, the regulation of state taxes by the federal government is a more egregious overreaching of federal power in the context of public education. Or so it seems to me. If an anti-incoporationist wished to argue that incorporation should not necessarily apply to the religion clauses of the First Amendment, I think their most powerful argument would be in the federal regulation of state-raised tax dollars for public schools.

garicker: In my view, privatizing the public school system will have disastrous consequences.

I agree. And so you and I could vote in our states against state subsidies for private schools, and against politicians who support those subsidies. There are very few government institutions that I feel should be free of the overarching reach of the federal government, education is one such institution. One of the states' few remaining powers is in how they choose to educate their children; for me, it should have remained a state decision. Incorporation, without explanation or justification, removed much of that financial decision from the states-on both sides of the debate.

But as you say, this is not necessarily germane to the discussion. It is perhaps more theoretical than useful. I'll drop it.

garicker: Would you apply the same rationale to the desegregation of schools?

Absolutely not. Brown v. Board of Education appealed directly to the Fourteenth Amendment. I don't have a problem with the Fourteenth Amendment or the protections to the individual it provides. I am solely talking about the unexplained, and perhaps unquestioned, incorporation of the Fourteenth Amendment into the Bill of Rights-specifically the religion clauses in the First Amendment-as many of the Bill of Rights were meant to protect the state from the federal government, not the individual from the state. If there was an explanation, or a conscientious decision, that permitted incorporation into all aspects of the Bill of Rights, I could probably get behind that. But, as far as I know, that never happened.

garicker: My point is that, although I agree in principle about state and local control of education, I don't see that as an impediment to applying fundamental protections.

I guess that's where I am having a hard time. I don't necessarily see federal regulation of state-raised taxes as a "fundamental" protection. State taxes are under their own purview. If a state chose not to provide public education at all would there be any federal recourse? (This isn't rhetorical, I really don't know.) If not, how is there federal recourse if a state chooses to assist private education; or on the reverse refuses to give any money, supplies, bus rides, etc. for privately educated students? George, the argument would go both ways. So in a state like Oregon, or possibly New Jersey, there would likely be no financial support going to private schools, while in a state like Massachusetts I would imagine the state's citizens voting for some aid. The federal government would have no influence on either decision.

I think there is a misperception that SCOTUS is this last bastion of separation protection. However, some states have much higher standards of separation than SCOTUS would be likely to affirm. And SCOTUS has often found, in either affirming or reversing lower courts, for aid to private schools. As you can see through many of the 5-4 decisions and the panoply of concurring and dissenting opinions, touching on countless interpretations of establishment, the issue is soundly lodged in gray area. I think the individual might be better represented if the states held the power in these decisions.

So for instance, after the debacle of the 2000 election, where Florida couldn't get their act together (j/k), the country was left with a President who appointed federal judges that will likely rule in support of financial aid to private schools. As a result, all states, after a few cases go through federal appeals courts and SCOTUS, will be held to that standard, even states that wish to not grant financial support to private schools.

garicker: There's no good reason to allow for incorporation of other protections but not allow it for the religion clauses.

Oh no, I'm not saying incorporation should only be questioned in the religion clauses, I just think that the religion clauses offer the most obvious examples where incorporation may be unjustified, because of the resulting federal regulation of state dollars for public education.

garicker: If I'm reading you correctly, the state's right to spend its educational tax dollars as it sees fit would trump the Bill of Rights.

No. More what I am saying is that many of the Bill of Rights were written to protect the states from federal involvement. The states are supposed to have decision-making powers free from federal encroachment. So states' rights to spend educational dollars as they see fit does not trump the Bill of Rights, they're actually protected by the Bill of Rights. Obviously, after the Civil War and the Fourteenth Amendment much of that power was taken. But I'm not sure if those powers should include how a state utilizes its own tax dollars, particularly with regard to education. If the federal government, through SCOTUS, wants to eliminate those rights, I think we need a better explanation than we got.

George, you know I love SCOTUS and I am in awe of many of their decisions. But I don't necessarily hold them up as a power to supersede state power in all situations. In fact, I think with the random decisions SCOTUS has made with regard to establishment, the states would be better served to decide for themselves how to spend their own tax dollars on education. A state that wishes to hold 100% separation and not give any money to private schools; a state that wishes to grant bus rides for both public and private school students; a state that wishes to supply books to both public and private school students, should be free to do so without federal involvement. The policing will be through the states' own constituents. I don't think the losers on either side of the argument suffer from an egregious trampling of their rights as U.S. citizens. If some of my tax dollars go to private schools, sure that sucks and perhaps I should work harder to get government officials in office who would stop funneling public taxes to private schools. But, in truth, there is no true or, as you stated above, fundamental violation of my rights. I pay taxes for a world of things that I don't support; and one such payment, capital punishment, I feel is in direct violation of the Constitution. None of this would be new ground. And on the flip side, if I want to send my child to private school and live in a state that does not give any support to private schools, I am not suffering from any fundamental violation of my rights. There are educational opportunities for my child, and I could easily send her to public school, or home school her. If I want the state to support my child's private education then I would have to work harder on the state level to get political support for such a movement.

I just think this particular issue is safer to be left on the state level, and I don't think there is a sufficient justification why state power and control was removed.

George, Julian and anyone else who wants to participate, if you want this discussion moved to another thread, I'm perfectly willing to do so. This isn't terribly topical to Haiman's book. But I do think it is an interesting discussion and, personally, have no hesitation in continuing it here. Obviously, this is just the seed of an idea for me. I haven't completely worked out my thoughts on the matter, though this conversation is helping me to do so. Anyway, just let me know if you want it moved.

JtA: For that matter, arguments about state rights remind me of Southern racists claiming that the US government couldn't challenge laws discriminating against blacks.

I think this is an unfortunate, but inevitable, aftermath of using state right claims for slavery, and against civil rights. But I do think state rights are essential. Where the responsibility lies, so should lie the power.

Garicker: Of course, I do live in Florida, after all. Maybe that explains it.

I think it probably does.

George, I need to start working on the actual text again. I intend to reply to you, but it won't be today and it will probably be in a new thread. I'll give you a heads up.