On the pure rights regime

    Why should readers throughout the world be interested in the way courts are now interpreting education provisions in state constitutions in the United States?  Because it is part of a movement rejecting the health and welfare regime and installing the rights regime in power.


    By John Ryskamp


    Why should readers throughout the world be interested in the way courts are now interpreting education provisions in state constitutions in the United States?  Because it is part of a movement rejecting the health and welfare regime and installing the rights regime in power.  Abraham Lincoln once said that the United States could not remain a house divided, half slave and half free.  We are now repeating that experience in the context of these two regimes.  The United States cannot remain half health and welfare regime and half rights regime.  Although there is movement here and there to remove the health and welfare regime from power--the "adequacy" lawsuits show that--overall the conflict has produced stagnation, which has stimulated police state activity in the United States, leading toward intensified crisis. 

    For this reason, I present a response to a foreword written by Peter Bauries of the law school of the University of Kentucky.  The foreword summarizes arguments made in the 2010 volume of the Kentucky Law Journal.  The volume is devoted to articles discussing recent developments in "adequacy" lawsuits. 

    What are "adequacy" lawsuits?  State constitutions in America contain a provision for public education, usually in the form, "The state shall provide for a system of public instruction."  In a health and welfare regime, terms such as "state," "system," "public" and "instruction" are left to be defined and enforced by the state itself.  This means that individuals are not recognized as having any power to force the state to enforce any particular factual finding as regards any of these terms.  The state makes its own factual investigation, draws its own conclusions and enforces them.  It has discretion to do this.  Indeed, it has the power to choose what in fact is a WORSE argument over what in fact is a BETTER argument.  In short, health and welfare regimes stand for the proposition that 2 + 2 = 5 can be enforced.  Even in governments which provide for individually enforceable rights (freedom of speech, exercise of religion), these are always held to be WITHIN the health and welfare regime.  Meaning?  2 + 2 = 5 is enforceable with respect to those rights.

    Recently, largely in response to a middle class which feels threatened, the health and welfare regime has begun to be rejected, and the "adequacy" lawsuits are part of that process.  They seek to address whether states have adequately enforced their education provisions.  This is done through comparison of spending in rich and poor districts.  If the education provision is held to be, in FACT, one thing in rich school districts, why isn't it held to be in FACT that same thing in poor districts.  This leads to a new, mandated system of school finance.  It is an attack on the discretion exercised by the health and welfare regime.

    My response to the introduction of Professor Bauries goes to whether the remedies in these "adequacy" lawsuits are indeed an attack on the health and welfare regime, or whether their advocates still harbor some notion that "adequacy" is nevertheless subject to the health and welfare regime.

    By way of contrast, a pure rights regime, which now being agitated for in the United States, is NOT one which is based on the health and welfare regime that policy rationally relates to a legitimate government purpose.  Instead, it is based on the idea that policy only maintains important facts, where important facts are shown by the historical record to be those which are unchanging facts of human experience.

    In short, the contrast is one in which education--considered a goal under health and welfare regimes--is considered a fact in a pure rights regime. 

    And no discretion remains in the political system, and no facts lie outside important facts.  The important thing to note about the doctrine of the rights regime is the enforcement mechanism: the objective interrelation of facts.  Crucially, this involves government itself.  Of course, government has long been recognized in the United States as an important fact, an unchanging fact of human experience (that is the famous holding of Marbury v. Madison); however, in a health and welfare regime, this is subject to the regime. 

    The contrast is one in which government--considered power under health and welfare regimes--is considered factual inquiry in a pure rights regime.  It is not outside rights in any respect, it is a right itself, it is the vehicle for factual investigation, for rights enforcement and is itself subject to factual investigation.

    This is why the discussion of education provisions in American state constitutions is relevant worldwide.  The health and welfare regime and the rights regime are mutually exclusive: each is defined as, not the other.  All current regimes, whatever their tendencies, are health and welfare regimes. 

    The two regimes are inevitably in conflict: each seeks power from the other.  The email reproduced below responds the introduction, which is provided here, by asking whether advocates of "adequacy" lawsuits are really pursuing the change from a health and welfare regime, or whether they secretly feel that "adequacy" is nevertheless within the health and welfare regime.

    Reader, what do you think?



    Hi Scott,

    I read your interesting introduction to articles dealing with the recent "adequacy" lawsuits, challenging the enforcement of education provisions in state constitutions.* With regard to Kentucky, the case was Rose v. Council for Better Education. The provision in the Kentucky Constitution reads simply:

    "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State."

    Although the provision went into the Kentucky Constitution in 1891, it was only made individually enforceable in 1989.

    I thought I would alert you to some developments which I noticed in writing a book on apparently different subject, eminent domain (The Eminent Domain Revolt, 2006). This was about the Kelo v. New London (2005) case, and was, as in the "adequacy" education cases, about the idea of raising the level of scrutiny for a fact ( in the Kelo case, housing, which, as you know, enjoys only minimum scrutiny under Lindsey v. Normet).

    It prompted me to look into a notion you—and the courts—adopt: the notion of "negative" versus "positive" rights. I am concerned that, by simply adopting this distinction without looking into it, the plaintiffs are limiting their possibilities of relief. It means they are operating intellectually within the health and welfare regime, and that is a mistake. We are moving—and need to move—to a pure rights regime if victims are to be fully compensated.

    It needs to be realized that "negative" and "positive" have to do with the FACTS involved. Housing and education are regarded as "positive" facts because the idea is that the courts will be dragged into a legislative or executive enforcement role if they force duties on the executive, thus violating the separation of powers. "Negative" facts are speech and voting, which are felt to be self-enforcing (if a court orders government to stop doing something, individuals will be aware if it happens anyway, and will enforce the ban by going into court).

    If you notice, the Rose Court does not go into that. Instead, it leaps over the question of "negative" and "positive" facts—and the rights attending or not attending them—because the state Constitutional allows it to do so by virtue of the presence of the education right in the Kentucky Constitution.

    In short, it never answers the question, "Why is education considered fundamental?" Thus, it never articulates a test, and never further inquires: "What other facts meet the test for ‘fundamental?’" In studying the Kelo case, I found that this tendency to leap over the question—or to consider it an insuperable block unless there is some black letter provision allowing the question to be avoided—comes from a misunderstanding of two cases fundamental to the scrutiny regime: West Coast Hotel v. Parrish (1937) and U.S. v. Carolene Products (1938). These cases provide the formulation of the health and welfare regime currently enforced by the U.S. Supreme court. If read carefully, it is clear that they do not stand for the distinction normally attributed—even by the Court—to them.

    If you notice, the legislation validated in both cases is grounded on the idea that it assists in the "maintenance" of what the Court considers important facts: income and health.

    But how strict a test is that? Does it provide for policy discretion in the political system? This goes to the heart of the matter: what is so special about income or health? That is, what is the test of an "important" fact. There you have to go to West Virginia v. Barnette (1943). The fact at issue—whether you consider it an exercise of religion or free speech—is one the Court examines in terms of importance. The test the Court uses is, is the fact

    1. a fact of human experience

    2. which history demonstrates

    3. is unaffected by attempts to affect it.

    That test is the essence of the Court's longer statement:

    "Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings."

    The Court is asking, is the fact robust and resilient in the face of attempts to affect it? Does the record show that?

    Thus, the doctrine of even supposedly familiar cases such as West Coast and Carolene Products, is not that the law rationally relates to a legitimate government purpose (what is known as "minimum scrutiny"), but instead, is the doctrine that the law does one thing only: it maintains important facts.

    We simply don’t think of education when we think of such a test: we think of free speech. For example, a speech is given, is interrupted and stopped by government, but the speaker simply goes somewhere else. Or the exercise of religion is banned, but simply occurs somewhere else. But we don’t think: education occurs, government attempts to affect it, education continues in spite of that effort. We don’t think of asking: is education simply a fact of human experience which goes on no matter what attempts government makes to stop it? We don’t consider that government is ALWAYS attempting to affect education, and that there is an irresolvable tension between the two—even though this is the way the Founders looked at the record with respect to free speech and exercises of religion. This is why I mean by advocates of "adequacy" nevertheless failing to think of education OUTSIDE the health and welfare regime. They are not encouraged to do so by the idea that even facts in which individuals supposedly have some rights, such as freedom of speech and exercise of religion, are nevertheless subject to health and welfare regulation. This means they are still within the political system, even though they have supposedly been taken out of the political system. Why haven’t they been taken out of the health and welfare regime? Because currently we cannot conceive of any other regime than the health and welfare regime.

    However, if we ask whether a fact is important, we are no longer within the health and welfare regime, and so the terms "negative" and "positive" cease to be legal doctrines. This in turn, frees us from the concept of "adequacy."

    What is the point of that? It allows indicia of education to play a role in exercising the right—the right, and indicia of the right, take the place of "health and welfare" discretion within the political system. The fact is truly taken OUT of the health and welfare regime.

    For example, education "adequacy" stops before the idea that family income must be maintained in order for the right to education to be vindicated. Why? Because there is no individually enforceable right to maintenance. Why not? Because it is regarded as a "positive" fact. This, of course, is the holding of DeShaney v. Winnebago County (1989). The Court is quite aware, in that case, that it is keeping the maintenance notion, and the rights regime, at bay, because it clearly understands that the issue is one of maintenance.

    That is the soft underbelly of adequacy lawsuits. They clearly depend on black letter law education provisions in the state constitutions. If that language was NOT in the Kentucky Constitution, would Rose have been possible? Not on a "positive" and "negative" theory, and not on a "fundamental" theory, either, because the lawyers were intellectually incapable of arguing it. It would never have happened.

    But an individually enforceable right to education would be possible on an understanding that the basis of the state constitution is not the health and welfare regime, but instead a pure rights regime, that is, the idea that the law does one thing only: it maintains important facts.

    I feel that, no matter how far-reaching the decisions under the adequacy suits, sooner or later the question will have to be asked: what is "fundamental" about education? That question will have to be answered. Right now we are a house divided over the question of important facts. It cannot continue.

    If for no other reason, the same reasons given for saying education is fundamental, will be applied to other facts. Then people will ask: well, even if there is no individually enforceable right to medical care in the Kentucky Constitution, isn’t the real test, whether a fact is "fundamental"? If that is so, then why doesn’t medical care meet that test?

    It will be increasingly unacceptable to simply reply: medical care is not fundamental because the Kentucky Constitution doesn’t say it is fundamental. This reasoning is circular, but its presence allows the government to make bogeymen out of such notions as "scare resources" available to the state. "Adequacy" lawsuits join the state in arguing that the right is about resources. But that is a health and welfare regime point of view. The pure rights point of view demands the integration of all facts, including the "budget," "appropriations" and "taxation," to see both what they are, and how they work, with education. The bogeyman is avoided.

    In addition, the education rights themselves will be challenged on the following idea: if education is a "fundamental" right, why is it not a right with respect to adult education, or private education? It will be increasingly unacceptable to simply reply: because that is not explicitly granted by the Kentucky Constitution.

    There has been such unthinking acceptance of so much bad tradition in American law, that we cannot conceive of the health and welfare regime as simply coming to an end, falling apart. Even though adequacy lawsuits show us that that is in fact what is happening. However, you are limited in understanding that if you don’t understand that the notion of "important" facts is what underlies "fundamental" rights, as opposed to some mechanistic, explicit, black letter law in some constitution.

    Once you realize this, you get out of the straitjacket of the levels of scrutiny (minimum, intermediate and strict): you stop thinking—Gee, this is a big victory, because we’ve moved this fact from "minimum" scrutiny to "strict" scrutiny. It’s not about levels of scrutiny: it’s about important facts.

    Again, even with regard to facts which enjoy strict scrutiny, these are STILL subject to health and welfare regulation. We are far from trusting rights, far from trusting facts, and we still reach for the police state remedy. Don’t think opponents will hesitate to point out that advocates of adequacy still believe in discretion within the political system.

    This failure to comprehend what is at stake in the adequacy debate, is the Achilles’ heel of the adequacy legal movement.

    Finally, I point out some other things you will find in the earlier cases, including the very interesting Euclid v. Ambler (1926) case allowing residential zoning, which is a pre-West Coast case and also grounds the decision explicitly on "maintenance":

    "This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded."

    What is the test for "maintenance?" In the Court’s view, it is the "community." That the Court defines as the objective interrelation of important facts and indicia of important facts, with no discretion in the political system to choose what is, in fact, the worse argument.

    Contrary to what is normally concluded about these cases, the Court does not sustain a worse argument on the basis that there are some facts to back it up. That is what is usually regarded as the test under "minimum scrutiny." But that is not the holding at all. If it turns out that a worse argument has prevailed, that is only because a better one has not, in fact, been found. There is no sense in any of these cases that an individual cannot litigate the better argument. Relying on the worse argument is a reliance on prejudice, because the worse argument is not sustained by the facts.

    Also, the Court has a very strong notion of what I call "indicia" of important facts. These are facts which are litigable because they shown to be, in fact, maintenance of an important fact. Thus, income, or employment, seem to be considered, even by the courts themselves, to be indicia of the individually enforceable right to education, even when they are not considered to be individually enforceable rights themselves.

    What I am trying to do is to eliminate the pernicious health and welfare regime mentality, and introduce a new intellectual rigor based on a pure rights regime. This is the most difficult and demanding regime, but I am prompted to it by the tendency I see—even among advocates of enhanced individually enforceable rights—to let the health and welfare regime thinking continue to rattle around in their thinking, making them vulnerable to attacks by the police state. What it means is that even these advocates FEAR THE FACTS. Don’t be afraid of letting the facts take you where they take you. Resist the temptation to reach for discretion in the political system, which the facts land you in unfamiliar territory.

    Finally, here is another issue which I see developing in opposition to adequacy lawsuits, and you might want to explore it. It is the idea that Federal minimum scrutiny for education is a not merely a restriction on the power of individuals; it is also a positive grant of discretion to the states. It creates a floor of state discretion, through which states cannot be permitted to fall simply because the state supreme court decides that education enjoys a higher level of scrutiny, even if that is a black letter provision of the state constitution.

    Opposition to adequacy lawsuits has been very fumbling—that is why they have lost. In particular, they seem to accept the "more or less" view of raising the level of scrutiny for a fact when it is done by state courts. State constitutions can give "more" rights even if the Federal Constitution grants "less." This in particular was Justice Brennan’s view—but it is still a health and welfare regime view.

    The argument of the health and welfare regime is that a finding of minimum scrutiny for education, limits what states can do to limit their own powers. Again, this is the problem of seeing the regime as being basically a health and welfare regime—or, a "minimum scrutiny" regime—but with a few exceptions carved out. It turns out that the exceptions really aren’t exceptions, and are not considered exceptions even by their advocates. If that is the point of view, inevitably the question becomes, "Then what is the Federal system?"

    I see this developing as the state of New Jersey keeps trying to assert itself in the Abbott adequacy cases, and indeed in all adequacy cases, since these cases remain under the jurisdiction of the court for years because the state litigates every little issue in an attempt to preserve its power. New Jersey is moving closer and closer to posing a question of its own role in the Federal system, as the adequacy cases—which continue to expand their investigation of education as an "important" fact (although it is not formally discussed as such, and the "importance" notion continues to be explored on an ad hoc basis)—bring more and more state policies in different areas, under the "adequacy" umbrella.

    Indeed, sooner or later there will be some state assertion of discretionary power expressed as a question by the state to the litigants: is the relief you are requesting related to discretion qua discretion? Then the litigants will have to argue against the state that the issue sounds in the health and welfare, but that the higher level of scrutiny for education carves out an exception to discretion. Then the state will argue that the issue is NOT one of discretion AT ALL. At which point the issue becomes: is the Federal system the West Coast Hotel scrutiny regime or not?

    Ultimately, I think this is the question "adequacy" advocates will have to answer.

    Note that the Kentucky Constitution says this:

    "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State."

    Does it mean that the Kentucky Constitution says the following? And if not, why not:

    "The General Assembly shall, by appropriate legislation, provide for an efficient system of housing throughout the State."


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