The dormant commerce clause doctrine has allowed the judiciary, by itself, to create and sustain a nation-wide free trade zone in the U.S.
The public schools in Detroit are infested with rodents, criminally deficient in pedagogical rudiments like textbooks, failures at their most basic educational functions, and at risk of an even greater danger to the children who attend them: supervision by the courts. A class action case on behalf of Detroit Public Schools students, currently headed to the Sixth Circuit, proves two premises. One is that the Detroit Public Schools have collapsed. The second is the peril of framing such failures in terms of rights.
Such a framework—the claim that literacy is guaranteed by the Fourteenth Amendment—is the basis of the case, which, to his credit, U.S. District Judge Stephen J. Murphy III dismissed. He could not discover even in the sweet mystery of the Fourteenth Amendment a right to literacy. The case against the Detroit Public Schools deserves to be stamped with a variant of the stupid-but-constitutional designation of Scalia fame: outrageous but constitutional.
Literacy is a good, not a right. It cannot be a right because, as Kant noted, the very definition of a right for one person is the corresponding imposition of an obligation on another. The “other” in this case is the taxpayers of Detroit and Michigan, who are indeed failing in a basic function of localities and states but whose resources are also scarce. For the courts to impose a positive right to school funding, which seems to be the case’s goal, is inherently to say the taxpayers may not choose to spend their money on another good—health care, clean water and the like—which may itself be asserted as a right.
Moreover, literacy is a right that cannot be meaningfully guaranteed. The vast failures of Detroit children on standardized tests of literacy indicate that their schools are corroded by incompetence and perhaps—indeed, by the rodent infestation it would seem—inadequate resources. But the best schools cannot guarantee literacy because literacy is primarily a function of forces beyond their control. The sociologist James Coleman’s legendary longitudinal study on the topic—undertaken to prove that inequities in funding led to inequities in outcomes—actually found that the only variable with a substantially measurable effect on outcomes was family structure.
To be sure, that is not to say school funding is irrelevant. A minimum is necessary to assure adequate educational outcomes for even the most advantaged students, and Detroit is apparently amply short of that level. But to make educational funding a right in an environment of scarce resources—which is to say an environment of economic reality—is to deprive other public goods of funds taxpayers may reasonable conclude are better allocated to them.
In this case, a reallocation of funds to education would appear to be wise. But judicial imposition of it would decidedly not be. That is true for several reasons.
One is that judges have no competence to determine the best policies for school funding, much less the best approach to teaching literacy. If judges impose specific remedies, they terminate the paths of experimentation that are crucial to revitalizing education. A second is that judicial resolution of the issue, even if successful, makes judges enablers of vapid and symbolic politics. Elected officials can proclaim they favor a variety of competing goals, education among them, but take no responsibility for real choices.
A third is that Judge Murphy is right: Not even the broadest reading of the due process or equal protection clauses of the Fourteenth Amendment can establish a right to literacy. It is possible, though questionable, that the Michigan Constitution, which “encourage[s]” education, could form the basis of a state complaint, but there is no case under the federal constitution here.
The complainants are evidently aware of this, since their novel theory is that literacy is necessary to exercise other rights of citizenship that are explicitly protected by the Fourteenth Amendment. Stamp that one “creative but not constitutional.” Imagine the implications that would cascade forth from such an argument were it broadly applied. Participating in democracy often entails financial resources. Is there a constitutional right to disposable income? Polling places are not always conveniently located. Does the right to suffrage imply an entitlement to a car?
Advocates of judicial engagement who read the Fourteenth Amendment as crowning the national government, and specifically its courts, as superintendent of state legislation might beware. They would establish negative rights by construing the Amendment broadly; this case shows a similarly expansive understanding is hospitable to positive rights.
More generally, the case illustrates the deeply problematic nature of our propensity to frame all controversies as matters of rights. For one thing, we cannot agree on what they are. An original understanding of the Fourteenth Amendment certainly cannot guarantee literacy. It was enacted at a time when illiteracy, especially in young children, was not uncommon. The Court has already held that disparate funding does not violate the equal protection clause.
It is difficult to see how even substantive due process of law—which holds that the content of some laws inherently violates due process—could establish a positive right to literacy. The complaint here, after all, is more the absence than the presence of law: It is what the state is not doing, not what it is. This is the triumph of Franklin Roosevelt’s shift from negative to positive rights, which he forecast in his Commonwealth Club Address and brought to fruition with his Four Freedoms—though even he did not imagine them being judicially imposed.
For another, rights talk is and is intended to be a show-stopper that delegitimizes competing views. It is in this sense fundamentally anti-political. Politics is rooted in the use of language to converse with others about the public good. The proliferation of rights talk suggests a refusal to engage in that work. Indeed, it represents a retreat from it—away from the public realm and into the private sanctuaries the courts provide from the citizen’s duty to engage and persuade his or her neighbors.
The fact that Detroit Public Schools are catastrophic failures should outrage the consciences of those responsible for them. But it need not—and will not—if they have judges as spotters who catch the weights legislators and taxpayers cannot, or choose not to, bear. The situation in Detroit is immoral. That does not make it unconstitutional.