Verbatim Mac Private Sc… · Web viewChemerinsky 15 — Erwin Chemerinsky, Dean, ... and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School

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Explanation/Notes

This file contains a counterplan to use in debates against the Right To Education affirmative. Instead of increasing support for public schools, it proposes a federal ban on private schools and homeschooling. The negative argues that a private school ban will force wealthy parents to lobby on behalf of public schools because their children will be forced to attend them. The negative argues that this might be a way to solve the affirmatives advantage without spending any money; the net-benefit is the Spending DA. The affirmative disagrees and argues that the counterplan will just cause rich families to move to areas with great public schools not to lobby on behalf of struggling schools in other areas. The affirmative also argues that the immediate action of the plan is necessary and that the plan is able to solve without infringing on constitutional rights.

Negative1NC Ban Private Schools CPFirst/next off is the Ban Private Schools Counterplan.

The United States federal government should abolish private and parochial K-12 schools and require compulsory attendance in public K-12 schools in the United States.

Only the counterplan can remedy educational inequalities its impossible as long as private schools exist.

Chemerinsky 15 Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School of Law, former Alston & Bird Professor of Law and Political Science at Duke University, former Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science and Director of the Center for Communications Law and Policy at the University of Southern California Law School, holds a J.D. from Harvard Law School and a B.S. from Northwestern University where he is a member of the Debate Society Hall of Achievement, 2015 (Remedying Separate and Unequal: Is It Possible to Create Equal Educational Opportunity?, The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 249-250)

On May 17, 2014, the nation celebrated the sixtieth anniversary of the Supreme Courts landmark decision in Brown v. Board of Education.1 The simple and tragic reality is that American public education is separate and unequal.2 Schools today are more segregated than they have been for decades, and segregation is rapidly increasing. Wide disparities exist in funding for schools. In Brown, Chief Justice Earl Warren spoke eloquently of the importance of education and how separate can never be equal.3 More than a half century later, in an even more technologically complex society, education is even more essential.

The causes for this tragedy are easy to recite. There never has been the political will to pursue equal educational opportunity. No president since the 1960s has devoted any attention to decreasing segregation or to equalizing school funding. The Supreme Court refused to allow the needed steps to deal with the problem in its holding that metropolitan school districts can be created as a remedy only in very limited circumstances and that disparities in school funding do not violate the Constitution.4 Moreover, Supreme Court [end page 249] decisions in the 1990s have required the lifting of even successful desegregation orders, causing the resegregation of schools.5 The Courts most recent decision about school desegregation, Parents Involved in Community Schools v. Seattle School District No. 1, greatly limited the ability of school boards to pursue voluntary desegregation plans, such as by considering race as one factor in assigning students so as to enhance diversity.6

In this essay, I look behind these explanations and argue that the central problem in achieving equal educational opportunity has been the lack of a unitary system of education. Desegregation will not occur in most cities so long as parents can move their children to suburban or private schools. Adequate, let alone equal, funding for schools will not occur so long as wealthy parents can send their children to private or suburban schools, where far more is spent on education than in inner cities. A crucial aspect of Browns wisdom was the importance of a unitary system of education. Minority children are far more likely to receive quality education when their schooling is tied to that of wealthy white children. The failure to create truly unitary systems is the core explanation for the inequalities in American schools today.

Consider a simple analogy: the dual system of medical care. If wealthy people had to receive their medical treatment in public hospitals, is there any doubt that the quality of those hospitals would be dramatically different? But so long as the public hospital system is just for poor people, and often predominately racial minorities at that, they never will be of the same quality as top private hospitals. The same is true of schools.

Therefore, I propose a radical solution: the abolition of private and parochial schools in the United States and the creation of large metropolitan school districts. Under this proposal, every child will be required to attend these public schools. In this way, there truly would be a unitary system of education and, as a result, equality of school funding and meaningful desegregation. Desegregation and equalization of funding can be achieved through this approach, but probably not otherwise.

Solvency Explanation/OverviewAs long as rich parents have the option to opt-out of the public system by sending their kids to private school, there will never be the necessary political momentum to remedy opportunity and achievement gaps via desegregation and equitable funding. Banning private schools and requiring compulsory public schooling for all children immediately and dramatically alters elite interests so that the rich and powerful are committed to creating quality public schools thats Chemerinsky.

This solves the case without spending any money.

They Say: Parental Leverage FailsOnly the counterplan solves it reframes public schools as insurance, not welfare.

Chemerinsky 15 Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School of Law, former Alston & Bird Professor of Law and Political Science at Duke University, former Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science and Director of the Center for Communications Law and Policy at the University of Southern California Law School, holds a J.D. from Harvard Law School and a B.S. from Northwestern University where he is a member of the Debate Society Hall of Achievement, 2015 (Remedying Separate and Unequal: Is It Possible to Create Equal Educational Opportunity?, The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 261)

Conclusion

As Brown has now passed its sixtieth anniversary, it is easy to be discouraged by the failure to create integrated, equal public schools. All institutions share responsibility. The Supreme Court deserves a great deal of the blame for its decisions precluding metropolitan-wide desegregation efforts and for not finding that disparities in school funding are unconstitutional. Presidents and Congress deserve the blame for ignoring the issue for so long.

The underlying problem is that as long as parents can opt out of public schools in cities, by sending their children to private and suburban schools, there never can be desegregation and never will be equalization of resources for education. The only solution is to make sure that every child must attend the public schools. Then, and only then, will parents have the incentive to ensure adequate education for all. Put another way, if schools for the poor are regarded as a welfare program, they always will be inadequately funded. But if education is an insurance program, affecting and benefiting all, then their quality will be assured.

Ultimately, if American society will ever be more equal, it will be through education. But the reality is that the American educational system is terribly unequal and thus an engine for widening, not closing, the gap between whites and racial minorities and between rich and poor. And the problem of segregation and inequality in education is getting worse, not better. The Supreme Court in Brown got it right: providing equal educational opportunity requires a unitary system of schools. But the justices in Brown could not have imagined the white flight to suburban and private schools that would frustrate desegregation. Nor could they have imagined that less than two decades later the Supreme Court would hold that education was not a fundamental right. Creating equal educational opportunity requires creating school systems where all childrenrich and poor, white children and children of colorare all present. That is what I try to imagine and propose in this essay.

Forcing rich white parents to care about public schools is the only way to achieve sustainable funding equality.


Creating A Truly Unitary System Of Education

At this point, there seems neither the political nor the judicial will to deal with the growing segregation and inequalities in American schools. No political candidate is addressing the issue. Since court decisions are causing the problem, not solving it, it seems appropriate to begin thinking of new solutions, even if at this point they seem unlikely to ever be implemented. I believe that the only answer to separate and unequal schools is a truly unitary system, where every childrich and poor, of color and whitewill receive education in the same school system.

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.

How could this happen? One possibility would be through the Supreme Court, though certainly not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection and could order the creation of a unitary system as a remedy. Another way to achieve this would be by legislative action. Congress could adopt a law to achieve these goals, using its power under Section 5 of the Fourteenth Amendment, or state legislatures could do so within their borders.

For the Supreme Court to do this, it would need to find that there is a fundamental right to education and that equality of educational opportunity is a compelling government interest. Education is the key to the exercise of many other constitutional rights, ranging from freedom of speech to voting. The Court has held that spending money in election campaigns is speech protected by the First Amendment because money facilitates speech. But education, too, facilitates speech and communication. Freedom of the [end page 258] press is meaningless unless there is literacy, and literacy cannot occur without education.

Congress could act even in the absence of judicial decisions. Congress has broad power under Section 2 of the Thirteenth Amendment to eradicate the badges and incidents of slavery. The educational disparities between white children and black children are a legacy of slavery and racism. In fact, Congress could act to create unitary school systems through its spending power and conditions on grants, or even under its commerce power because of the dose relationship between education and the economy.

I do not minimize the radical nature of this proposal. But this is the way in which equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. However, they have no incentive to care about funding in public schools so long as their children are in private or suburban schools. Moreover, desegregation can be meaningfully achieved in metropolitan school systems that include suburbs and cities, especially if white students cannot flee to private schools.

The counterplan builds political support for public schools and reallocates private school resources.

Cook 12 John Cook, Editor at Gawker, former Reporter for The Chicago Tribune, 2012 (There's a Simple Solution to the Public Schools Crisis, Gawker, September 13th, Available Online at http://gawker.com/5943005/theres-a-simple-solution-to-the-public-schools-crisis, Accessed 07-02-2017)

The ongoing (but maybe soon to end?) teachers' strike in Chicago is being viewed by many as an early skirmish in a coming war over the crisis in public educationstagnant or declining graduation rates, substandard educations, dilapidated schools, angry teachers, underserved students. There is one simple step that would go a long way toward resolving many of those issues: Make all schools public schools.

It's an oft-noted irony of the confrontation in Chicago that Mayor Rahm Emanuel sends his children to the private, $20,000-a-year University of Chicago Lab School, which means his family doesn't really have much of a personal stake in what happens to the school system he is trying to reform. This is pretty routine behavior for rich people in Chicago, and there's a pretty good reason for it: Chicago's public schools are terrible. If you care about your children's education, and can afford to buy your way out of public schools, as Emanuel can, it's perfectly reasonable to do so. Barack and Michelle Obama made a similar decision, opting to purchase a quality education for their daughters at Sidwell Friends rather than send them to one of Washington, D.C.'s, deeply troubled public schools.

A lot of Chicago parents with the resources to do so have followed Emanuel's lead: 17% of schoolchildren in Chicago attend private schools, and so don't have to trouble themselves with whether or not their local public school has air conditioning, or a library (160 do not), or classes with 45 students. Those kids that don't attend private schools tend overwhelmingly to be from families with less political power and resources than Emanuel's: 87% of them are from low-income families, and 86% are black or hispanic.

Nationwide, where 10% of the nation's studentsand 16% of the white ones from families making more than $75,000 per yearattend private schools, the stratification is similar. White and asian students enroll in private schools at twice the rate of black and hispanic ones, according to Harvard University's Civil Rights Project. Nearly two thirds of private-school students are from wealthy families. In the nation's 40 largest school districts, one in three white students attends private school (the number is one in ten for black students).

So you can see why there's a problem. Here's the solution: Make Rahm Emanuel and Barack Obama's children go to public schools. From a purely strategic and practical standpoint, it would be much easier to resolve the schools crisis if the futures of America's wealthiest and most powerful children were at stake. Wealthy people tend to lobby effectively for their interests, and if their interests were to include adequate public funding for the schools their children attend, and libraries, and air-conditioning, those goals could likely be achieved without having to resort to unpleasant things like teachers' strikes.

This would of course be a radical and highly disruptive step. It would involve forcibly transferring ownership of all existing private schools to the school district in which they reside, and readjusting local tax schemes to capture the tuition parents currently pay (the nationwide average is $8,549 per year, which means a total of $47 billion is spent each year on opting out of the public education system). Then access to the newly "nationalized" schools would have to be distributed on some fair basis to local students, with the wealthy kids who don't make the cut into their old schools being sent to the regular ones, without air conditioning or libraries. And resources would have to be redistributed within the school districts so that the resources formerly lavished on private schools could be spent shoring up the failing public ones.

They Say: Ban Gets CircumventedThis also applies to the plan it doesnt eliminate inequalities in access to out-of-school opportunities, either.

The counterplan still solves well enough.

Chemerinsky 15 Erwin Chemerinsky, Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School of Law, former Alston & Bird Professor of Law and Political Science at Duke University, former Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science and Director of the Center for Communications Law and Policy at the University of Southern California Law School, holds a J.D. from Harvard Law School and a B.S. from Northwestern University where he is a member of the Debate Society Hall of Achievement, 2015 (Remedying Separate and Unequal: Is It Possible to Create Equal Educational Opportunity?, The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 260)

One criticism of this proposal is that it can be circumvented as wealthy parents will provide supplemental classes for their students, after school and on weekends. Certainly nothing in this proposal limits what occurs outside of school hours. But this type of inequality is not a reason to abandon unitary schools. Wealthier children always will have the chance to attend nicer summer camps, go on better vacations, and take more enrichment classes. But, if anything, all of these other inequalities make it even more important that schools be equal for all.

They Say: Constitutional Liberty DANo link and benefits outweigh.


The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools, declaring unconstitutional an Oregon law that prohibited parochial school education.45 The Court based this on the right of parents to control the upbringing of their children and thus to send their children to a religious rather than a secular school.

However, this right, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and that therefore interference with the parents right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity, and the means are necessary because no other alternative is likely to succeed.

Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Courts decision in Employment Division v. Smith, the free exercise clause would not be violated by such a neutral law of general applicability.46 I do not minimize the interests of parents in providing religious instruction for their children. However, parents could still do this through afterschool and weekend programs. This is not the same as education where religion permeates [end page 259] instruction, but it does provide a way in which parents can provide religious education for their children.

Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education.47 In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this right of parents.

No spillover to other constitutional rights. The counterplan only affects private schools, not housing or healthcare. Durable neg fiat prevents rollback.

The counterplan is justified under the Fourteenth Amendment it doesnt violate constitutional rights.

Tushnet 91 Mark Tushnet, Professor of Law at Georgetown University Law Center, holds a J.D. from Yale Law School, 1991 (Public and Private Education: Is There a Constitutional Difference?, University of Chicago Legal Forum, Volume 1991, Article 4, Available Online at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1089&context=uclf, Accessed 07-02-2017, p. 54-55)

2. Prohibiting private schools.

The next question is whether a state could prohibit private schools. Here there appears to be a definitive answer. Pierce v Society of Sisters squarely held unconstitutional a state effort to eliminate private schools.54 Without attempting to undermine the authority of Pierce entirely,55 I would note that it arose in a context of nativist hostility to Catholics, and that the police power justification for prohibiting private schools was quite attenuated. 6 In addition, Pierce relied on the doctrine of substantive due process.57 According to the Court in Bowers v Hardwick,58 [t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.59 In consequence, according to the Court, "[t]here should be . . . great resistance to expand the substantive reach" of the due process clause.60

It is difficult to imagine contemporary contexts in which legislatures might actually abolish private schools, and thus it is difficult to assess what the balance would be between the interest protected in Pierce and the goals the government was trying to attain. [end page 54] Consider, however, the possibility that Congress, acting pursuant to its power under section five of the Fourteenth Amendment, concluded that the availability of private schools interfered with society's ability to reach a point of social integration where judgments about people's worth are made solely on the basis of individual merit, and therefore prohibited the operation of private schools.61 That justification is more substantial than the one offered in Pierce, and it might be sufficient to overcome the weakened protection given substantive due process rights by the Court's analysis in Bowers.

In short, there is no reason to believe that governments would try to abolish private schools. Yet, despite Pierce, the doctrinal materials are available to uphold such an abolition under certain circumstances. Under those circumstances, the difference between public and private schools would of course disappear as well.

Private schools are immoral turns their freedom impact.

Cook 12 John Cook, Editor at Gawker, former Reporter for The Chicago Tribune, 2012 (There's a Simple Solution to the Public Schools Crisis, Gawker, September 13th, Available Online at http://gawker.com/5943005/theres-a-simple-solution-to-the-public-schools-crisis, Accessed 07-02-2017)

And while it would have the practical effect of forcing school boards and municipalities to be accountable to their privileged elite as well as their poor families, there's also a moral argument for banning private education. Put simply: Equality of opportunity demands that children should not be penalizedor advantagedby the accident of their birth. Educational benefits, which are the most crucial resource when it comes to determining the life-outcomes for children of all backgrounds, shouldn't be distributed based on how rich your parents are. They should be distributed equally. Even if we stipulate that radical inequality is OK for adultsonce you are out in the world, you rise or fall by the work of your own handswhen it comes to children, it's perverse to dole out educations based on arbitrary circumstances completely beyond their control.

And that's what private education does: It allows parents to purchase better life-prospects for their kids simply because they can afford it. (The real estate market and the property-tax-based funding model for public schools do the same thingbeing able to afford a home in a good school district, which is then funded by taxes levied on that valuable home, is structurally very similar to paying tuition for a private school.) Of course, the act of simply raising children in a wealthy home is a form of purchasing them better life-prospects than poorer children. And attempting to equalize that dynamic would be impossible without unacceptable governmental intrusions into the child-parent relationship.

But educational benefits are something that we as a nation have long held should be afforded to all children, irrespective of their backgrounds. And we've further held that withholding access to those benefits based on race or ethnicityin other words, on morally arbitrary circumstances over which the children have no controlis wrong. Our current system of private and public education effectively distributes the best educations to those who were born into the right families, like Rahm Emanuel's. He shouldn't be able to buy his kids a better shot at life than his constituents can afford.

The Constitution is an open-ended framework, not a side constraint.

Litchwick 11 Dahlia Lithwick, journalist covering courts and the law for Slate, 2011 (Read It and Weep, Slate, January 4th, Available Online at http://www.slate.com/articles/news_and_politics/jurisprudence/2011/01/read_it_and_weep.single.html, Accessed 04-30-2012)

This newfound attention to the relationship between Congress and the Constitution is thrilling and long overdue. Progressives, as Greg Sargent points out, are wrong to scoff at it. This is an opportunity to engage in a reasoned discussion of what the Constitution does and does not do. It's an opportunity to point out that no matter how many times you read the document on the House floor, cite it in your bill, or how many copies you can stuff into your breast pocket without looking fat, the Constitution is always going to raise more questions than it answers and confound more readers than it comforts. And that isn't because any one American is too stupid to understand the Constitution. It's because the Constitution wasn't written to reflect the views of any one American.

The problem with the Tea Party's new Constitution fetish is that it's hopelessly selective. As Robert Parry notes, the folks who will be reading the Constitution aloud this week can't read the parts permitting slavery or prohibiting cruel and unusual punishment using only their inside voices, while shouting their support for the 10th Amendment. They don't get to support Madison and renounce Jefferson, then claim to be restoring the vision of "the Framers." Either the Founders got it right the first time they calibrated the balance of power between the federal government and the states, or they got it so wrong that we need to pass a "Repeal Amendment" to fix it. And unless Tea Party Republicans are willing to stand proud and announce that they adore and revere the whole Constitution as written, except for the First, 14, 16th, and 17th amendments, which totally blow, they should admit right now that they are in the same conundrum as everyone else: This document no more commands the specific policies they espouse than it commands the specific policies their opponents support.

This should all have been good news. The fact that the Constitution is sufficiently open-ended to infuriate all Americans almost equally is part of its enduring genius. The Framers were no more interested in binding future Americans to a set of divinely inspired commandments than any of us would wish to be bound by them. As Justice Stephen Breyer explains in his recent book, Making Our Democracy Work: A Judge's View, Americans cannot be controlled by the "dead hands" of one moment frozen in time. The Constitution created a framework, not a Ouija board, precisely because the Framers understood that the prospect of a nation ruled for centuries by dead prophets would be the very opposite of freedom.

Affirmative2AC Ban Private Schools CP1. Immediate Action Key the plan guarantees equal access to an excellent education for everyone now. This immediately initiates aggressive reforms. Counterplan-induced change takes generations.

Benedikt 13 Allison Benedikt, Executive Editor at Slate, 2013 (If You Send Your Kid to Private School, You Are a Bad Person, Slate, August 29th, Available Online at http://www.slate.com/articles/double_x/doublex/2013/08/private_school_vs_public_school_only_bad_people_send_their_kids_to_private.html, Accessed 07-02-2017)

You are a bad person if you send your children to private school. Not bad like murderer badbut bad like ruining-one-of-our-nations-most-essential-institutions-in-order-to-get-whats-best-for-your-kid bad. So, pretty bad.

I am not an education policy wonk: Im just judgmental. But it seems to me that if every single parent sent every single child to public school, public schools would improve. This would not happen immediately. It could take generations. Your children and grandchildren might get mediocre educations in the meantime, but it will be worth it, for the eventual common good. (Yes, rich people might cluster. But rich people will always find a way to game the system: That shouldnt be an argument against an all-in approach to public education any more than it is a case against single-payer health care.)

So, how would this work exactly? Its simple! Everyone needs to be invested in our public schools in order for them to get better. Not just lip-service investment, or property tax investment, but real flesh-and-blood-offspring investment. Your local school stinks but you dont send your child there? Then its badness is just something you deplore in the abstract. Your local school stinks and you do send your child there? I bet you are going to do everything within your power to make it better.

And parents have a lot of power. In many underresourced schools, its the aggressive PTAs that raise the money for enrichment programs and willful parents who get in the administrations face when a teacher is falling down on the job. Everyone, all in. (By the way: Banning private schools isnt the answer. We need a moral adjustment, not a legislative one.)

2. Permute: Do Both. Federal guarantee plus private school ban best way to rapidly improve public schools. Avoids spending DA because private school ban transfers millions to public schools.

3. Parental Leverage Fails wealthy parents will only lobby for their schools, not all public schools.

Munger 13 Dave Munger, Editor of ScienceSeekera science news portal, former Co-Founder and Editor of ResearchBlogging.orga website that collects posts about peer-reviewed research, 2013 (No, sending your child to public school wont save the schools. Not even if everyone did it., Word Mungera blog, August 29th, Available Online at http://wordmunger.com/?p=1822, Accessed 07-02-2017)

An Allison Benedikt article on Slate is getting a lot of attention, partly due to its provocative headline: If you send your kid to a private school, you are a bad person.

Benedikts argument is basically this: People who send their kids to private school care about their kids education, so if those kids were in public school, the parents would work to make that school better.

Oh, if only that were true. If only somehow the children of the wealthy (and their parents) could make schools a better place for everyone by their mere presence. Wouldnt that be great? But you know what? They wouldnt. Sure, the wealthy parents might spend more time volunteering in the schools. They might lobby for more money to be spent on schools and for better schools to be built.

But they wouldnt want this for everyone. They would want this for their kids. So they wouldnt lobby for a new school to replace the crumbling central-city school; theyd lobby for a gleaming new suburban palace in their wealthy neighborhood (but not too close wouldnt want to spoil their view of the golf course).

Think Im wrong? Look, this already happens. Plenty of wealthy parents are too cheap to send their kids to private schools. So they send them to public schools, then set up PTAs to raise money for those schools, turning them into the next best thing to a private school, at a fraction of the cost. They lobby against busing. They support zoning laws restricting high-density development so that poor people cant afford to live in their neighborhoods. They do all this even though they could afford to send their kids to private school.

These people are not benevolent. Sure, they care about their kids. To a lesser extent they care about their neighbors kids. But they dont care about poor kids. They might say they care, but they certainly arent volunteering to put on a bake sale at the poor kids school. Theyre not coaching the poor kids Little League teams, theyre not advocating for higher wages so poor parents can afford a better life for their own children.

There are a lot of things wrong with the public schools. I may not know how to fix them, but I do know one thing: Asking wealthy folks to voluntarily stop sending their kids to private schools wont fix the schools.

And it especially wont help the public schools that need help the most.

4. Ban Gets Circumvented rich families will buy out-of-school supplements so their kids retain a huge advantage. Removes their incentive to push for improved public schools.

5. Residential Clustering DA the counterplan causes rich people to move to the suburbs. They still wont care about urban schools.

Adler 13 Ben Adler, Freelance Journalist who has reported for Newsweek, Politico, and The Nation, 2013 (Even if Private Schools Didn't Exist, There Would Still Be Rich Suburbs, The Atlantic, September 3rd, Available Online at https://www.theatlantic.com/national/archive/2013/09/even-if-private-schools-didnt-exist-there-would-still-be-rich-suburbs/279295/, Accessed 07-02-2017)

"You are a bad person if you send your children to private school," argues Allison Benedikt in an article that appeared on Slate last week. Benedikt makes two points to parents: that going to a diverse public school will provide their kids with an education no less important than what they learn in the classroom, and that rich parents have a moral obligation to suffer the same frustrations with public schools as poor parents, so that they will be motivated to demand that the schools be improved. Conservatives criticized Benedikt on liberty grounds, but others have failed to point out how Benedikt's argument is not right on its own terms. Even Benedikt's usually insightful colleague Matthew Yglesias praised it. Benedikt's argument is objectionable, and not just because it is obnoxious and ignorant, but because it would lead to bad policy. Benedikt claims inner-city public schools would be better off if parents were unwilling to consider private school, but she is wrong.

The reason is the narrowness of Benedikt's view of America, as if she had just landed in New York City from Mars. She seems to think that the only types of people in America are the urban poor and the urban rich. She writes, "Whatever you think your children need--deserve--from their school experience, assume that the parents at the nearby public housing complex want the same. No, don't just assume it. Do something about it. Send your kids to school with their kids."

Benedikt bizarrely assumes that her readers are wealthy and educated but that they live near a public housing complex. From that false premise, she infers that the only choice facing the rich is an homogenous private school or a diverse public school.

What's missing from this portrait? The suburbs. You know, they're the place where a majority of Americans live. Sending their kids to private school is only one approach the affluent take to avoid sending their children to inner-city public schools. The more common choice is to move to the suburbs.

So, is someone who moves to an exclusive, wealthy suburb and sends their kids to the gold-plated public schools a good person in Benedikt's view? Implicitly, yes, since she makes no distinction between cities and suburbs, or rich school districts and poor ones.

In fact, though, the average student in a wealthy suburban public school may be exposed to no greater diversitypossibly even less, thanks to private school scholarship programsthan one finds in most urban private schools.

Consider Potomac, Maryland, which is the kind of wealthy coastal blue state community where Slate readers might live. The median household income in 2011 was $167,436. Despite being next to the "Chocolate City" of Washington, D.C., the population is less than six percent African-American. At Winston Churchill High, a public high school in Potomac, fewer than five percent of the students qualify for reduced-price or free school lunches. By contrast, elite urban private schools in D.C., such as Maret and Georgetown Day, report that their student bodies are approximately 20 percent African-American. Then there is the fact that living in many urban neighborhoods will expose a child to diversity that raising her in car-dependent fancy suburb will not.

So how does a wealthy family moving to Potomac for the fancy public schools help anyone but the family itself?

It doesn't. (For the New York region, just substitute for Potomac a town such as Scarsdale, in Westchester, where the median household income in 2011 was $220,119 and the school district is only 1.3 percent black.) If the choice you are makingand for most rich parents, this is the choice, if they consider staying in the city at allis between living in the city and sending their kids to private school or moving to the suburbs and sending their kids to public school, the inner-city poor benefit more from the former. In that case, at least the family's income and taxes will stay in the city. While the public schools don't benefit from the family's social capital, they also have one fewer student drawing on their resources. The existence of private school options may help keep rich families in the city, and cities are undoubtedly better off with wealthy residents than without them. Just compare the fiscal health and crime rates of Detroit, St. Louis or Cleveland to New York, San Francisco or Boston.

Another hole in Benedikt's logic is the presence of another option on the spectrum of urban public-school avoidance: magnet schools and charters. Plenty of well-off urban parents who do send their kids to public school choose selective magnets, or at least charters that require some parental involvement to apply. If you send your kids to public schools that are disproportionately wealthy and white compared to the city as a whole, are you an evil person? By following Benedikt's thinking on private schools, the answer should be yes. But since, like "suburbs," the words "magnet" and "charter" appear nowhere in her piece, she is implying sending your kid to an elite public magnet school is a morally pure choice while sending her to private school is evil.

The same goes for gifted programs and tracking. Are parents who send their kids to the local public school's gifted program evil as well? If not, how is their decision to make sure their child is challenged academically any different than that of a private-school parent?

I grew up in Park Slope, Brooklyn. My parents were among the earliest wave of the neighborhood's gentrifiers. Gentrification is now seen by many peopleironically, often gentrifiers themselvesas a dirty word connoting the arrival of Starbucks and the ejection of longtime residents. In 1979, though, when my parents bought their house, New York City was struggling with rising crime, near fiscal insolvency and rapid out-migration. The decision of any educated professionals to stay was widely viewed--including by many working-class families hanging on in the Slope--as a blessing. (As Suleiman Osman, a native Slopie and professor of American Studies at George Washington University, explains in his 2011 book The Invention of Brownstone Brooklyn, the middle-class and working-class families who did not want to leave neighborhoods like Carroll Gardens and Park Slope actively recruited gentrifiers as a stabilizing force.)

Every Slope kid I know from a middle-class or wealthy family attended a magnet school, a Catholic school, or a private school, rather than one of the locally zoned public schools. Why? Some urban public schools are so bad that parents fear more than a sub-par education if their kids go there. My local district school, Sarah J. Halesince shut down by the city for failing its students academicallywas known as "Sarah Jail" and was on the news while I was in high school because a student sliced a teacher.

If there were no private or magnet school options, the college-educated liberal parents who revived Park Slope would not all have, as Benedikt naively imagines, simply sent their kids to John Jay and Sarah J. Hale and shrugged at the thought they would have a better chance of getting stabbed than getting into a good college. They would have moved to the suburbs.

6. Constitutional Liberty DA the counterplan crushes it.

Volokh 13 Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at the University of California-Los Angeles School of Law, Academic Affiliate for Mayer Brown LLPa law firm, holds a J.D. from the University of California-Los Angeles, 2013 (Equality vs. Liberty, The Volokh Conspiracya scholarly legal blog, January 23rd, Available Online at http://volokh.com/2013/01/23/equality-vs-liberty/, Accessed 07-02-2017)

The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought Id quote that article and put the matter in Chemerinskys own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.

How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states borders.

I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. Currently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools. Moreover, as described above, desegregation can be meaningfully achieved only through metropolitan school systems, which include suburbs and cities, because white students could not flee to private schools.

The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools. The Court based this on the right of parents to control the upbringing of their children. This right, however, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and therefore interference with the parents right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity and the means are necessary because no other alternative is likely to succeed.

Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Courts decision in Employment Division v. Smith, such a neutral law of general applicability would not violate the free exercise clause. Also, as explained above, strict scrutiny would be met by the proposal. I do not minimize the interests of parents in providing religious instruction for their children. Parents, however, could still do this through after-school and weekend programs. This is not the same as education where religion permeates instruction, but it does provide a way in which parents can provide religious education for their children.

Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education. In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.

A clearer example of how an excessive focus on equality undermines liberty is hard to find. And the implications of this argument, if it were accepted, are striking. After all, the argument that [i]f wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools and that [c]urrently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools could apply to many things. For instance, if wealthy people know that, if they or their family members prosecuted, they will have to use public defenders, then they will be more likely to ensure adequate funding of public defenders; currently, they have no incentive to care about funding of public defenders as long as they can hire pricey private criminal defense lawyers. There goes the right to choose your own lawyer, together with the right to choose a school for your child.

Likewise, one can argue that public libraries are underfunded, too. Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries. Naturally, private provision of medical care would have to be forbidden, too, since only that will give rich people an incentive to vote for more funding for medical care for the poor.

And of course people in poor, high-crime neighborhoods often dont get enough police protection, especially given the greater needs for protection in those neighborhoods; and the housing stock in those neighborhoods is often quite undermaintained. How about this: Lets bar people from buying private housing, and instead require people to live in housing units run and randomly assigned by the government. After all, if wealthy people must live in public housing in rough neighborhoods, then they will ensure adequate funding of that housing and of policing of those neighborhoods. Currently, the rich have no incentive to care about public housing and public policing of poor parts of town as long as they and their children are in private housing in safer parts of town.

Think also of the other ways that some people find themselves separate and unequal how about in the ability to reach the public? If you are a highly educated and credentialed law professor, reporters call you, talk shows want to have you on, people are more likely to read your blog, and newspapers are more likely to run your op-eds. If you are poor and not very knowledgeable or eloquent (often through no fault of your own), obviously you dont have equal access to an audience. Sounds like a good reason to limit the free speech rights of those whose circumstances have unfairly provided them with extra credibility and status, so as to at least reduce this inequality.

To be sure, some people (Justice Scalia is one) have indeed argued against parental rights, on the grounds that they like abortion rights and sexual autonomy rights arent mentioned in the Constitution, though I expect that many of those people would nonetheless say that limits on private schooling (or requirements that children go to government-run school 30 hours a week) would violate the freedom of parents to hire people to speak to their children. But Chemerinsky is not taking this view. He is acknowledging that there is a constitutional right to control the upbringing of ones children, but is saying that this right, like other fundamental rights, is not absolute, and can be trumped by a compelling interest in achieving equality of educational opportunity. It follows that other fundamental constitutional rights, such as the right to counsel, the freedom of speech, and the right to choose where one lives (to the extent that its recognized as a constitutional right) would likewise have to yield to the compelling interest in achieving equality.

1AR Parental Leverage FailsParental leverage is not unique and doesnt solve because of geographical separation.

Gach 13 Ethan Gach, Freelance Writer, 2013 (The Problem with the Public vs. Private Distinction in Education, Ordinary Times, August 29th, Available Online at http://ordinary-gentlemen.com/2013/08/29/the-problem-with-the-public-vs-private-distinction-in-education/, Accessed 07-02-2017)

Today, Allison Benedikt is berating parents who send their children to private schools. As she sees it, the self-serving act might make you a good parent, but it makes you a bad citizenor at least thats my reading of her main thesis.

Its not entirely clear whether Benedikt thinks that a mediocre public school education is just as good as one from an expensive private school, so Ill focus instead on her claim that public education wont get better until wealthier families have more skin in the game.

Basically, if you want someone with power, money, and influence to take an interest in a failing public school, force their kids to go there and watch the transformation begin.

I agree in theory with where this argument is coming from. Enclave politics and the fragmenting of public society into groups defined by race, class, and culture is no doubt responsible for some of the lack of political will when it comes to widespread public re-investment. Why care about the budget shortfalls for public transportation if not you or anyone you know uses it? What does it matter if unemployment is double digits in a community you never have to drive through, let alone actually engage with?

But situating the conflict between public and private schools is a side-show. As Michael McShane at AEI points out,

[P]ublic schools are by and large residentially assigned, the rich have their totally awesome (and essentially private due to the home price in the schools catchment area) public schools and poor people are trapped in failing schools because they cant move away. Thats what leads to Balkanization. You choosing to send your kids to a suburban public school does nothing for the kids in SouthEast.

Benedikt is under the illusion that engaged parents is one of the major resources that good schools have and bad ones dont. Parents have a lot of power, she writes. In many underresourced schools, its the aggressive PTAs that raise the money for enrichment programs and willful parents who get in the administrations face when a teacher is falling down on the job.

Recently, parents, teachers, and students have been battling the school council, city hall, and the governors office over massive budget shortfalls plaguing the school district of Philadelphia.

If you follow the struggle at all you can tell there are plenty of active parents who are involved and fighting for their kids futures. While I have no doubt that it would help, I fail to see how having the wealthy and mostly liberal elites in Rittenhouse Square send their children to one of the citys public schools will solve the budget crisis.

What would help? A lot of things no doubt, but not least of all the public resources necessary to make up for the poverty and joblessness that plagues so many of Philadelphias neighborhoods.

To McShanes point, Lower Merion School District on the other side of City Line is part of the public school system, yet it spends more than twice the amount per student that Philadelphia does.

The issue is less about private vs. public than the class privilege thats tied to geography. Benedikt argues that We need a moral adjustment, not a legislative one, and yet no amount of moral shaming is going to change where people live and the material condition which follow from that. The problem isnt that the rich person next door has no stake in your childs educationits that the person next door is most likely just as poor.

1AR Residential Clustering DAFamilies will move not advocate for high-need schools.

McArdle 13 Megan McArdle, Columnist at Bloomberg View, former Bernard L. Schwartz Fellow at The New America Foundation, holds an M.B.A. from the Booth School of Business at the University of Chicago, 2013 (Is It Evil to Send Your Kids to Private School?, Bloomberg, August 29th, Available Online at https://www.bloomberg.com/view/articles/2013-08-29/is-it-evil-to-send-your-kids-to-private-school-, Accessed 07-02-2017)

However, I think that Benedikt isn't thinking through what would actually happen if everyone felt a moral obligation to send their kids to public schools. What would actually happen is that Allison Benedikt wouldn't live in Brooklyn, because New York, like most of the rest of the U.S.'s cities, would have lost all of its affluent families in the 1970s the ones who stayed largely because private school, and a handful of magnet schools financed by the taxes of people who sent their kids to private school, allowed them to maintain residence without sending their kids into middle- and high-schools that had often become war zones. Anyone with any choices left that system, one way or another. But because New York had a robust system of private and parochial schools, they didn't necessarily need to leave the city to leave the violence behind.

The chaos that those families were fleeing seems unimaginable today. Here's Vincent Cannato, in "The Ungovernable City," describing what happened in Franklin Lane High School, on the border of Brooklyn and Queens:

Franklin Lane had 5,600 students enrolled in 1969 -- though the issue of overcrowding was a problem only on paper, since attendance at Lane was never more than 60 percent. Fights between black and white students were common in the school, and the school administration was unable to keep control. As one Village Voice journalist wrote of Franklin Lane: "Every day there is a riot on the subway or a fight in the bathroom or an arrest in the halls or a brawl in the cafeteria or a suspension of more black students...Lane is a time bomb, and everyone -- blacks, whites, teachers, Board of Ed -- admits it could explode any day. Yet no one has marshaled the power or imagination or trust to head off disaster."

The school's neighbors resented the influx of black students into their neighborhood and formed the Cypress Hill-Woodhaven Improvement Association to protest student disorders. (The group was headed by Michael Long, who later became the powerful head of the New York State Conservative Party.) The worst incident at Franklin Lane occurred on January 20, 1969, when a teacher, Frank Siracusa, ran down the stairs to see who had thrown a rock through his window. In the stairwell he was confronted by three black youths who sprayed him with lighter fluid, kicked and punched him, and then set him on fire. After the attack the school was shut down for several days. When the school reopened, fifty New York City policemen were stationed inside the school to maintain order, but their presence only exacerbated tensions.

I've read quite a bit about the school disorders of the period, and this still floors me. Cannato presents it as a product of integration, but I don't see how even really nasty racial tensions cause kids to set a teacher on fire. The long-time residents who resented the new black students were prone to put this down to something wrong with black people. That's of course ludicrous, both because white kids were also getting out of hand and because kids in all-black schools weren't setting teachers on fire in 1962 -- or in 2002. Something went deeply wrong in the city's school system in the late 1960s, and it's hard to say what it was. Maybe it was environmental lead, or maybe it was a series of public policy failures. Whatever it was, it was devastating.

Now, Benedikt could lecture you until the cows came home about your moral obligation to public schooling, but you still wouldn't leave your kids in a school where the teachers were being set on fire (and neither, I imagine, would Benedikt). If you couldn't send your kids to private school, you'd just move. That, in fact, is what happened to most urban school systems; any resident who had any means at all picked up and moved outside the city's borders, beyond the legal limits of busing so that there could be no question of bused students importing these problems to their kids' schools.

In the outer boroughs where residents had been dependent on public schools, that's in fact what happened. But in much of Manhattan and in Catholic and Jewish neighborhoods where many parents sent their kids to parochial schools anyway many stayed. Those neighborhoods provided enough of a tax base to support the magnet schools that kept a thin layer of middle-class parents in the city. By the time I went to public school in New York, in the early 1980s, any kid in a regular New York City high school in Brooklyn or the Bronx or even Manhattan was pretty much definitionally a kid whose parents could not afford better. If that had been the only option, the middle class and wealthy families would have left the city entirely and the schools would have been even worse, because the tax base to support them would have eroded even more dramatically than it did.

And as the great crime wave of the 1970s and 1980s receded, those places formed the base from which gentrifiers such as Benedikt spread out. They kept New York City's middle-class urban culture alive, along with the network of services that supported it. They loved New York passionately. But they loved their kids more.

Benedikt's dictum makes sense only if parents can't move. If they can and bid up the value of real estate in good school districts then making parents send their kids to the local schools probably doesn't mean that all the parents in mixed-income neighborhoods will put their children, and their effort, into the local school. It probably means that they'll leave the mixed-income neighborhood, taking their tax dollars with them.

This is nominally public schooling, but in fact, as I once remarked, parents who think that they are supporting public schooling by moving to a pricey district with good schools are actually supporting private schooling. They're just confused because the tuition payment comes bundled with hardwood floors and granite countertops.

To actually achieve what Benedikt wants, her moral rule needs to be much stronger: something like "if you can afford private school for your kids, you have a moral obligation to put your kids in the worst school within range of your workplace." This is unworkable for a dozen reasons, most importantly, because no one would do it. Even if they endorsed it in theory, they'd come up with all sorts of excuses as to why they need to move to Montclair even though really, they are avid supporters of urban public schools ... it's just that little Silas's asthma is exacerbated by bus exhaust, and Andromache's ADD makes urban noise pollution intolerable. This is, in fact, just the sort of moral gymnastics you currently hear about vouchers or private school...by people who are shopping for homes in "good" (pronounced "affluent") school districts.

In short, while Benedikt is right about the problem, she's wrong to think that there's an easy solution. Humans are too wily to let a moral precept short-circuit a more primal instinct to grab as much as possible for their kids.

1AR Constitutional Liberty DAProtecting constitutional rights is a moral decision rule. Ends-based impacts cant outweigh.

Bayer 11 Peter Brandon Bayer, Lawyering Process Professor at the William S. Boyd School of Law at the University of Nevada-Las Vegas, former Assistant Professor and Director of the Legal Research, Analysis, and Writing Program at St. Thomas University School of Law, holds an LL.M. from Harvard Law School, a J.D. from New York University School of Law, and an M.A. in Sociology from New York University, 2011 (Sacrifice and Sacred Honor: Why the Constitution is a Suicide Pact, William & Mary Bill of Rights Journal (20 Wm. & Mary Bill of Rts. J. 287), December, Available Online to Subscribing Institutions via Lexis-Nexis)

Introduction

To be a true constitution, that which a society calls its constitution must enforce values so imperative, so fundamental, that the constitution comprises not only a way to live but more profoundly, a reason to die. Customarily through, for example, military service, individual citizens or groups of citizens may be required to risk their lives to preserve their constitution and the nation over which it presides. However, a true constitution rightfully demands that the entire constitutional orderthe whole society regulated by that constitutionrisk its own demise rather than betray the essential precepts that the constitution embodies. Only principles of such magnitude warrant inclusion in the supreme document of a particular people. n1 [*290]

Simply believing that a particular constitution is worth dying for, however, is not enough. To be a legitimate constitutionto actually be worthy of such communal sacrificethe given constitution must be moral; that is, both designed to enforce and actually capable of enforcing the abiding moral duties that demarcate legitimate from illegitimate governments.

Pursuant to the character of true and legitimate constitutions, the Constitution of the United States defines who we are, what we are and, most importantly, why we are. Our Constitution purports to set the governing minima without which no society may be legitimate. Accordingly, and quite deliberately, while a legal document, the Constitution is a profoundly moral thesis as well. It could not be otherwise because the Constitution's overarching endeavor is enforced morality, specifically "fundamental fairness" via due process of law n2 which, as Justice Felix Frankfurter aptly enthused, is "ultimate decency in a civilized society . . . ." n3 America's validation stems from the morality of the Constitution and how steadfastly we maintain it. n4

In contravention of our constitutional duty is the long-standing chestnut: the Constitution is not a suicide pact. n5 Of course, no one would argue that the Constitution is literally a "suicide pact," meaning the Constitution requires those governed thereunder to kill themselves. n6 Nor would reasonable theorists claim it to be a suicide pact [*291] "in the sense that the Constitution was meant to fail." n7 Rather, commentators apply the not a suicide pact metaphor to support the Constitution of necessity, the premise that if circumstances raise significant jeopardy and lesser measures appear unavailing, government may do virtually anythingabridge or suspend any libertyboth to preserve the nation and to ensure the well-being of its institutions. n8

Several critics challenge that theory's empirical bases arguing, for example, that the definition of "necessity" is overinclusive. n9 Critics further argue that the Constitution of necessity betrays pivotal American principles of law, rights, dignity and separation of powers. n10 However, criticism usually stops well short of accepting the Constitution as a metaphorical "suicide pact," averring instead that necessity is the ultimate "compelling state interest," overpowering liberty if the exigency is dire enough. n11

I join the very few n12 who respond that, even if limited to situations of actual imminent danger to the very continuation of American society, necessity as the Constitution's "first principle" defies the Constitution's true moral nucleus that explains and justifies our nation: due process of law. While many articles challenge the Constitution of necessity as anathema to the inherent nature of American government, n13 such arguments alone cannot explain why, under sufficiently urgent circumstances, we ought not to abandon all constitutional liberty if that is what it takes, for however long it takes, with the earnest intent to restore liberty the very moment the danger has passed. n14 [*292]

Accordingly, this Article proposes a deeper grounding to explain why the Constitution is a suicide pact. Specifically, morality, the very fabric of the Constitution, forbids us from abandoning our basic moral-societal precept of due process, even when faithful abidance is extraordinarily dangerous. We must understand that more than simple liberty is essential to our constitutional government. Rather, we must appreciate that government ensures liberty as integral to its unalterable duty to be moral. Liberty is not an end in itself, but a means; preserving morality is the end, the absolute goal of government. Thus, in a unique figurative sense, the Constitution must be a suicide pact, for as the prominent ethicist Immanuel Kant nobly appreciated regarding morality's overarching context, "Let justice be done even if the world should perish." n15

The proof takes several steps. Part I undertakes a thorough review of deontology, the philosophy arguingcorrectly, I believethat morality is transcendent, a set of a priori principles discernable through reason. Morality, then, does not care what the possible outcomes of a particular moral problem may be. n16 Pursuant to deontological philosophy, the "sacrifice," to which the title of this Article refers, is the duty to abide by morality no matter what the cost. n17

Thereafter, Part II argues that this Nation's originators were deontologists who declared in the Nation's founding document that government is legitimate only insofar as it safeguards morality derived from "the Laws of Nature and Nature's God," manifested as "unalienable Rights that among these are Life, Liberty and the pursuit of Happiness." n18 For the preservation of those moral principles, the Founders pledged their "Lives," "Fortunes," and "sacred Honor," n19 meaning that it is the duty of all Americanstheir "sacred Honor"to sacrifice, if necessary, their lives and property to defend legitimate government. We thus discover an interesting, informative and useful provenance linking the sacrifices attendant to deontological morality with the birth of the United States. n20

The Founders understood that their appreciation of, and dedication to, morality was incompletea confession analysts find apt as evinced by the presence of slavery, [*293] along with several other strikingly unethical political and pragmatic arrangements surrounding both the Declaration and its later legal iteration, the Constitution. Indeed, the Founders expected future generations to enrich the moral bases of America, including repudiating ideas and practices that the Founders themselves accepted. n21 Part III asserts that the ethical theory of Immanuel Kant, as contemporarily understood, presents the improved moral philosophy hoped for by the Founders. Written shortly after the American Revolution, Kant's theory of dignity explains why obeying morality is more important than life itself; n22 a principle applicable not only to persons and groups, but also to nations and societies. Kantian ethics, therefore, explicate that the highest principle is not survival but, rather, moral rectitude.

Kant's ideas should control the understanding of the Constitution, most particularly the commands of due process of law, as Part IV explains. Although never explicitly cited as authority, Kant's dignity principle informs modern due process jurisprudence, which is sensible because the Constitution was drafted to enforce the moral quest commemorated in the Declaration. The comfortable application of Kantian ethics to constitutional due process demonstrates that, in the singular sense described above, the Constitution should be, must be and is a suicide pact.

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Verbatim Mac Private Sc… · Web viewChemerinsky 15 — Erwin Chemerinsky, Dean, ... and Raymond Pryke Professor of First Amendment Law at the University of California-Irvine School