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Friday, February 22, 2013

How the Federal Government Hijacked Education

“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” — James Madison, letter to W.T. Barry — 1822

In government it involves the status of the principles of right upon which our nation was built. The Declaration of Independence begins with the expression: "When in the course of human events ...." By this, it means to say that what follows is true for all time. When it goes on to mention "one people," it means to say that what follows is applicable to all people in all times and places. The idea of the "laws of nature and of nature's God" is another expression of this view.

In this question of the relationship among a college, a government, and the education system, the stakes are therefore high. They involve our understanding of the purpose of man, the nature of his rights, and the way he is to be governed.

To demonstrate how the federal government and academic masterminds hijacked our K-12 and higher education systems we have to go back to 1787 and review what our Founders believed was the proper role of education and the central government’s role in supporting education.

In 1787, two documents were written that constitute the original understanding of education in America. Today it is not easy to recall those documents and what they mean. Their memory has been effaced by changes of thought that accelerate still.

The great changes in education in the last half century have come in the name of "Progress." Progress means that we know things today, and have purposes today, that were unknown to the Founders of America. According to this way of thinking, our knowledge and our purposes are essentially different from those of the Founders. It follows from this that the institutions the Founders set up when they built both our education system and our government are obsolete, or at least insufficient.

An example can be found ready to hand in a 2008 bill passed by the United States Senate and House of Representatives regarding the "reauthorization" of something called the "Higher Education Act," originally passed in 1965. The bill is authored by several leading senators, all of the same party — the Democratic Party, aka the Party Bill. The original legislation signed into United States law on November 8, 1965, as part of President Lyndon Johnson's Great Society domestic agenda. Johnson chose Texas State University–San Marcos as the signing site. The law was intended “to strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education.” It increased federal money given to universities, created scholarships, gave low-interest loans for students, and established a National Teachers Corps. The "financial assistance for students" is covered in Title IV of the HEA.

The National Teacher Corps (NTC), made two crucial assumptions: that teaching poor urban children required a very specific skill set and that teacher preparation programs were not providing adequate training in these skills. Analysis reveals that, though these assumptions still undergird many of today’s current alternative certification programs, political and institutional issues prevented the NTC from realizing its full potential. Analysis also reveals that the NTC, because of changes, left a legacy of assumptions but never uncovered how to actually prepare teachers for urban schools.

The Party Bill begins with certain "findings." The first of them is most indicative, both of the nature of the bill and of the times in which we live. This finding is that "a college education is more important than ever." This is true, the bill "finds," because there is more demand for college educated workers (due to a "shift in the economy") and because those who have a college education make more money.

This assertion of the increased importance of education is useful not only to justify spending more money on it, but also to justify the spending of any money on it. The federal taxpayer has been spending money for education for a long time now, but still it is an innovation from the original idea of our Constitution. This innovation has been justified in considerable part by the discovery that education is more important than the Founders understood it to be. So says The Party Bill.

It being then a consequential point, we should raise the question: What did the American Founders understand to be the importance of education?

The authoritative statement regarding education from the period of the American founding is contained in the Northwest Ordinance of 1787. That document provides for the first time a way for a free government to control territory not properly part of its domain, and a way for that territory to join its domain by a regular procedure. It follows on the Land Ordinance of 1785 as the defining document for the control of the "Northwest Territory," which would eventually become the states of Michigan, Ohio, Illinois, Indiana, Wisconsin, and a portion of Minnesota. The Northwest Ordinance is still included as the third item in the United States Code. Alongside the Declaration of Independence, the Articles of Confederation, and the Constitution of the United States, it is one of the four organic laws of the United States. It should be kept in mind that the Northwest Ordinance was an act of the Congress of the Confederation of the United States, passed July 13, 1787 while our Founders were still debating the new Constitution at the Constitutional Convention in Philadelphia. The Constitution was adopted on September 17, 1787, by the Convention and ratified by conventions in eleven states. It went into effect on March 4, 1789.

On August 7, 1789, President George Washington signed the Northwest Ordinance of 1789 into law after the newly created U.S. Congress reaffirmed the Ordinance with slight modifications under the Constitution. The Ordinance purported to be not merely legislation that could later be amended by Congress, but rather "the following articles shall be considered as Articles of compact between the original States and the people and states in the said territory, and forever remain unalterable, unless by common consent.

Arguably the single most important piece of legislation passed by members of the earlier Continental Congresses other than the Declaration of Independence, it established the precedent by which the federal government would be sovereign and expand westward across North America with the admission of new states, rather than with the expansion of existing states and their established sovereignty under the Articles of Confederation. It is the most important legislation that Congress has passed with regard to American public domain lands. The U.S. Supreme Court recognized the authority of the Northwest Ordinance of 1789 within the applicable Northwest Territory as constitutional in Strader v. Graham, 51 U.S. 82, 96, 97 (1851), but did not extend the Ordinance to cover the respective states once they were admitted to the Union.

The Natural Rights provisions of the ordinance foreshadowed the Bill of Rights, the first ten amendments to the U.S. Constitution. Many of the concepts and guarantees of the Ordinance of 1787 were incorporated in the U.S. Constitution and the Bill of Rights. In the Northwest Territory, various legal and property rights were enshrined, religious tolerance was proclaimed, and it was enunciated that since "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." The right of habeas corpus was written into the charter, as was freedom of religious worship and bans on excessive fines and cruel and unusual punishment. Trial by jury and a ban on ex post facto laws were also rights granted.

The third article of the Northwest Ordinance declares: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall ever be encouraged."

Notice that these items are said to be "necessary." This is a strong term. It means that without the one, there cannot be the other. Religion, morality, and knowledge are therefore essential for the highest reasons, reasons that transcend politics-that is why "happiness" is mentioned. But "good government" is mentioned, too. Both from the political point of view and from the higher point of view-both from the perspective of this world and of the next — religion, morality, and knowledge" are indispensable.

Schools, furthermore, are means in service of "religion, morality, and knowledge," and therefore means also to "good government and the happiness of mankind." They are singled out here, the only means mentioned, although of course not the only ones existing. The mention of schools, and the failure to mention such things as families (which the Founders also saw as vital), indicates the priority given to education and also that it is a matter of special public interest.

As these high goods are said to depend upon "schools and the means of education," it makes sense that Congress would wish to encourage them. One would expect Congress to undertake something significant in this regard, and it did: In an earlier and connected fundamental law regarding the Federal Territories, the Land Ordinance of 1785, Congress had given a gift to education. It was a massive gift, a gift unprecedented and still unsurpassed. It is a gift not only of vast material meaning, but also a gift of priority.

The Land Ordinance of 1785 had provided a method for surveying and demarcating the Northwest Territory. It also indicated how the land would be disposed. Beginning at a point on the Pennsylvania/Ohio border, the land was to be marked out in townships, each of which would contain 36 "sections," a section being one mile square. Of these 36 sections, four were to be reserved to the federal government for future sale and other purposes. Thirty-one were to be made available immediately for private purchase. And one, the 16th, was to be reserved "for the maintenance of public schools within the said Township."

The bulk of the land was therefore to be transferred to private hands immediately. This would be the rule through the passage of the great Homestead Act-signed into law by Abraham Lincoln in 1862-and it would continue into the twentieth century. In the beginning the government was keenly in search of money from these transactions. It was selling land to pay its debts. This changed with the Homestead Act, which gave the land away for the price of a filing fee and a commitment to live on the land and work it for five years.

These federal lands constituted one of the most precious resources ever held by any government. Most of what is now the United States was once simply an asset on the balance sheet of the federal government. The Civil War began in large part over a question of the administration of these lands-namely whether Congress had the power to exclude slavery from them. Their final settlement and incorporation as states marked an end to the beginning of our nation. As the New World had beckoned the first settlers to America, so the Western lands represented the promise of the nation. When George Washington named his army the "Continental Army," he was referring to this land, though no American would traverse the extent of the continent for more than a quarter of a century. That the bulk of it should be placed in the private sector immediately is a proclamation of unmistakable meaning: The first priority when disposing of the greatest asset our government has ever held was that it become the property of individual citizens.

Consider in contrast how the deployment of land changed during the twentieth century. Look today at a map of the United States. Find one that shades in one color the parts held by the government, and in another the parts held privately. The farther east one looks, the larger the proportion of the land held privately; the father west, the larger the proportion held by the government. That land in the west was settled later, as notions were changing about the relation between the individual and the government. This fact speaks volumes about the basic intention of the government in its first days and how it has changed in these later days. According to the New York Times in 2012 report the Federal Government owns 84.5% of the land in Nevada, 69.1% in Alaska, 57.5% in Utah, and 45.3% in California.

Similarly the reservation of a section of the land within each township for a public purpose-a single public purpose placed above all others ascribes by deed the same precedence expressed in word in the Northwest Ordinance. The fact, the manner, and the justification of this gift elucidate the Founders' understanding of both government and education.

The manner of the gift is a piece of genius. This vast public resource is reserved in each township for education "in that township." This devotion of a nationally controlled asset to the benefit of its specific locality is one of the signal operations of federalism in our history. Schools and the meal of education are to be encouraged as a national purpose. But they are 'be encouraged through the agency and under the control of local hands. The Northwest Ordinance passed in what would prove to be the waning days of the Articles of Confederation, under which the central government was weak in dealing with localities. We will see below if the changes when a much stronger federal government is built under the new Constitution.

The justification for the gift would be given two years later in the Northwest Ordinance, in the passage we have already mentioned: "religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall ever be encouraged." This provides not only the justification for the gift, but also the purpose of the schools. If they are to be useful to good government and the happiness of mankind, they must be conducive to "religion, morality and knowledge."

We think differently about the purposes of education today, to say the least. Prayer is now banned in public schools. Morality, when it is taught, is conceived as a subjective thing, or yet more commonly as a newly invented thing to be found under the heading "political correctness." The ideas of "knowledge," "good government," and "happiness" are now subjected to tender care of deconstruction and historicism.

But regardless how much we think differently today about the purpose of education and its relation to "religion, morality, and knowledge”, the Founders agree with us about one thing: They agree that education is important. It is fair to say indeed that the Founders regarded education to be of the utmost importance. They say so in the plainest language, and they say it in the most prominent of places. Moreover they support it by a gift so magnificent as to be beyond our power to emulate. By deed as much as by word, by example as much as by precept, they testify to the importance of education.

The Party Bill, then, is not at its best when it is teaching us history. Notice the difference in emphasis between The Party Bill and the Northwest Ordinance. In this modern legislation, education is important for material reasons: People can make more money if they get a college degree. The subjects in question are not students, but consumers. In other places in The Party Bill people appear not only as consumers, but also as members of a race. The Party Bill is very concerned that people of one color more commonly go to college, or are more apt to go to graduate school and become teachers, than people of another color. Material conditions such as wealth and race dominate-indeed to the exclusion of all else-this modern piece of legislation.

The Northwest Ordinance supplied material means-the 16th section of each township-for purposes that rise above the material. In the Northwest Ordinance, the human being is seen as capable of elevation in the true sense. In his relation to God and his potential for happiness through the acquisition of knowledge and morality, the human being rises above matter to partake of the divine.

It is true that the Founders of America began their revolution in part on a question of taxation, a material question. Such things are important in and of themselves, but for the Founders they are more important even more because they involve these higher elements. The Declaration of Independence ends with a pledge by its authors "to each other." They pledge their "fortunes, lives, and sacred honor" in support of the Declaration. The Declaration performs an act: the declaring of independence from Great Britain. This act is justified as a "good" thing, a moral thing. It is justified by the "self-evident truth" that all men are created equal.

These ultimate questions involved in the American Revolution questions that involve the ideas most important to the Founders-are of course the subject matter of a certain kind of education. They are specifically the questions raised and investigated in the pursuit of a "liberal education." The Northwest Ordinance is a document that takes the perspective of the "liberal arts." In contrast, The Party Bill is at best merely technical. At worse it reduces the human being to the material needs he has in common with every animal.

The Party Bill, it must be admitted, does reflect one part of the truth about education. Education is chiefly for the young, and it is time-consuming. It is mainly what young people do in preparation for, and before they begin living, their adult lives. Because it comes early, and because it is time consuming, education is not compatible with the work of making a living, at least not full-time. Thus resources must be provided from some source if the young are to accomplish the task successfully.

If this is a natural phenomenon, and if education is important, one wonders then why the Founders would not wish to support education directly, in the same way that The Party Bill does. Indeed one wonders why they would not support it as the top priority, if it is so terribly important to such high and vital things. The answer to this question is to be found in Philadelphia in the summer of 1787.

The Northwest Ordinance was passed by Congress on July 13, 1787, in New York City. Beginning on May 14, and continuing until September 17 of the same summer, another body was meeting in Philadelphia. It met to amend the Articles of Confederation under which the Northwest Ordinance was passed. In fact, it set quickly about the job of drafting a new document that would eventually become the Constitution.

The Articles of Confederation and the Constitution differ drastically in the power given to the central government. Under the Articles there was, for example, no federal power to tax individual citizens directly or to coin money. States could impose their own duties and imposts on foreign goods. Voting in the Congress was by state, and it took nine votes — more than two — thirds-to pass most things. Amendment of the Articles required unanimity.

Under the Articles, states were not always careful with the rights of their citizens or of the interests of the Union. Rhode Island devalued its currency and forced creditors to accept that currency in payment of debts, in effect expropriating assets from some for the benefit of others. States passed tariffs on each other's goods and held negotiations of their own with European powers, particularly the British. The Union could do nothing to prevent these abuses of rights at home or to maintain a strong and united front to the world.

Concerned about this, those who called the Constitutional Convention intended to make a much stronger central government. The arguments for and against this, especially as they are found in The Federalist and in Anti-Federalist responses, are classics of political argument worthy of any age. The plan that was reached in the Convention went far short of a complete centralizing of government. Probably no one had aimed for this in any case, although the supporters of the Constitution were accused of it.

Hamilton did move in the Convention that the federal government be granted "power to pass all laws whatsoever." Serving on Washington's staff during the Revolutionary War, Hamilton had struggled, along with Washington, to get the Army paid from a Congress that had neither funds nor means to get them. He had watched generals appeal around George Washington directly to Congress, the many-headed beast, for advancement. He was concerned when, after the war, states interrupted trade, devalued debts, and inflated their currencies.

This broad suggestion by Hamilton for the scope of federal power found little support in the Convention. There were two reasons for this. The obvious one was the jealousy, or perhaps justified suspicion, of the states. They had banded together to fight against a despotic central power, and now they enjoyed great power of their own. Both conviction and interest suggested they should not give it up. But these thoughts are related to a higher and a positive reason, a reason central to the idea of constitutionalism as it was born in America.

Like separation of powers, federalism is a method for the division of power, both to prevent tyranny and to increase the chance of good government. It grew in part from the historical accident that the colonies were established and developed independently, that their dispute with the mother country proceeded for a time at different rates, and that they came together in steps or stages leading up to the Declaration of Independence. It grew also from the thinking that power must be divided in ways that permit its vigorous use but protect against abuse. The states, which were stronger than the central government under the Articles, inherited English common law police power. This gave them the authority to legislate “in all cases whatsoever" for the “health, safety, and general welfare of the people." A stronger federal government, divided into branches and possessed of wide but enumerated powers, could restrain the power of states and diversify the places where authority is exercised.

James Madison, the "Father of the Constitution," describes this division of labor with his usual clarity in Federalist 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

One cannot help emphasizing here that "the powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State." Education is of course a prime example of the kind of thing reserved to the states.

The authors of the Constitution had deep reasons for organizing power as they did. Above all, their purpose was to achieve a government of majority rule that would protect the rights of all. They understood that aristocracy or monarchy on the one hand, and democracy on the other, had been consistently ineffective at this in the past. Rare indeed — or rather nonexistent — was the government that operated from generation to generation according to the popular will and protecting the rights of majority and minority alike.

The men meeting in Philadelphia in 1787 thought they understood the reason for this problem. Several passages in The Federalist, for example, form a commentary upon or an elaboration of the key doctrines of the Declaration of Independence. In particular they addressed the question of what it means to declare, under the authority of the "laws of nature and of nature's God," that "all men are created equal, and endowed by their Creator with certain unalienable rights."

Madison provides a key to understanding equality in Federalist 51, one of the most insightful and brilliant of his writings:

“But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

This is in the first place a piece of plain good sense. Anyone who has been to a committee meeting knows that people are not angels. Especially acting in committees, they are not to be trusted with arbitrary power. But more than a piece of good sense only, this passage is a statement on human nature and, specifically, on the sense in which each human being is "created equal." It is in comparison to other creatures that the meaning of human equality becomes clear.

By mention of angels, Madison contrasts the nature of the human being with the divine. His friend Jefferson mentioned God four times in the Declaration of Independence, once as each of the three types of rule. As the maker of the laws of nature and of nature's God, He is the legislator. As the Supreme Judge of the World, He is the judge. As the protector, Divine Providence, He is the executive. In His hands alone are all the powers of government to be concentrated. God and his angels, say the authors of the Declaration and the Constitution, can be trusted in ways that humans cannot.

As the angels are above us, below us are the beasts. At the end of his life Thomas Jefferson was invited, along with the still-living John Adams, to attend ceremonies marking the fiftieth anniversary of the Declaration. These ceremonies were to be held in Washington. Both men were too ill to attend, and indeed both of them would die on the very day of the celebration. In responding with regret to the invitation, Jefferson wrote to Roger Weightman about the meaning of the document:

“All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the Grace of God.”

If men are not angels, neither are they beasts. They have a special nature, which requires a form of government proper to them, and different from the form proper to angels and to beasts. According to the Founders, it is in this special nature that one finds both the need for government and the need for government to be limited.

The understanding of human nature also carries implications for the purpose of the governing structure of education. Liberal education is the study of ends-of the things for the sake of which choices are made and lives are lived. The Founders in their political understanding point up toward the permanent, the final, and the divine, in the same way that liberal education does. On the other hand, they do not give specific instructions for education in the way that the most famous of the classical founders did. Lycurgus, for example, prescribed precisely how Spartan children, especially the males, were to be taught. Although the Founders of America have a view of man that does imply an approach to education, they do not seek to control the administration of it. That is left to the modern cadre of academic and governmental masterminds.

The Founders did not seek administrative control of education because the nature of man is, in their view, best able to flourish under a regime of limited government. And if the government is to be limited, then control of even vital things like education must be decentralized. The elevation of their view of the human being limits the dictates they give in every subject, including education.

In our constitutional system many vital things are specifically excluded from federal control, and many other vital things are excluded from any form of government control whatsoever. Property is to be in private hands, and therefore food is to be grown on private farms. Churches are to be run by private people, attended by those who are willing to go. Children are to be conceived and raised by private people, who join in families for the purpose, and when they decide to do it. These things are matters of the first importance. Some of them are vital to the simple functioning of society and the survival of its members. None of them are subjected to federal control.

In constitutional terms, this idea is enshrined in the principle of enumeration. Article 1, Section 8 of the Constitution contains 17 clauses that give specific grants of policy authority to the Congress. Of course, the 18th contains the statement that the Congress may do all things "necessary and proper" to achieve the first 17. Some of the Founders took an expansive view of this. Some took a restrictive view. None thought that the "necessary and proper" clause was or should have been a new grant of power that would permit Congress to do whatever it wished.

See Prof. Randy E. Barnett, "The Original Meaning of the Necessary and Proper Clause," University of Pennsylvania Journal of Constitutional Law  (2003): 183-220.

Education, mark the point, is not mentioned in Article 1, Section 8. Recall that the Northwest Ordinance was passed by the Confederation Congress in the very summer of 1787 in New York City that the Framers were meeting in Philadelphia to write the Constitution. It was the big political news of that summer that the Ordinance had been passed. Part of that big political news was the mention of education in the third article of the Northwest Ordinance. It is not possible that education was omitted by oversight from the Constitution.

We have seen that the Founders considered education to be of a massive importance, of the highest importance. We have seen that they found ways to subsidize it on a huge scale, but ways that preserved the ability of people engaged in education-ultimately parents, students, and teachers-to manage it themselves. They did this for reasons having to do strictly with education itself. They did it also for the sake of the central reasons behind the American Revolution.

In the next part of this essay I will move on to the 19th century and how the academic masterminds began ignoring the Constitution and Northwest Ordinance as they began to exert more and more control over our education system.

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