Christie's "War on the Court"

As I stated in my post of 5/7/10, New Jersey Governor Chris Christie continued to rile political feathers when he ousted a sitting state Supreme Court justice in favor of another nominee. This was Christie's first of four opportunities he will have to nominate new justices, thus giving him the ability to ideologically reshape the seven-member court to his liking.

Christie and the GOP have attacked what they believe is an "activist" court which "legislates from the bench". There is some truth to this. Their decisions have resulted in the imposition of affordable housing quotas on towns and the creation of the state income tax. Proceeds from that tax are used for what I call municipal welfare, but what is officially called state "aid", whereby revenues are raised from taxpayers in some towns to fund services in others, mostly for public schools.

The court's deep interference into education financing is the biggest bugaboo. Beginning in 1973, the high court began systematically imposing state financing for certain local public school districts known as "Abbott", along with a state income tax to pay for it – by judicial fiat. State funding was ultimately expanded to include all school districts. Municipal welfare now consumes more than half the state budget – almost all of it for public schools. But was the court really resorting to activism by mandating statewide funding of public schools? Or was it simply applying constitutional law? I believe the latter, which exposes a major flaw in the GOP's political strategy. They have declared what columnist Paul Mulshine has called a "war on the Court". But they have declared the wrong war.

In a recent column, Paul Mulshine focuses on the loud political tussle between Christie and state Senate President Stephen Sweeney, who vows not to hold confirmation hearings on the governor's new nominee. Mr. Mulshine believes Christie will prevail in this confrontation, and writes:

"I don’t believe the governor truly intended to end up over here with us angry right-wingers. But the longer he hangs out here, the more he might come to like it."

In my posted comments to Mr. Mulshine's 5/6/10 article, I identified what I believe to be the right strategy ... albeit a more difficult one:

Posted by zemack
May 06, 2010, 6:30PM

While I applaud Governor Christie’s gutsy move to remake the court, we on the Right must come to grips with the fact that the fundamental source of the problem is the “thorough and efficient” clause in the NJ constitution. That clause reads:

“The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.”

Article VIII, Section 4 puts the state on a collision course with individual rights – specifically, the rights of parents to control their own children’s education. The philosophical root of that clause is the idea that every child has a “right” to an education. But a right, under American principles and the laws of nature, is a guarantee to freedom of action, such as freedom of speech or freedom of religious faith and practice. Rights are not an automatic claim to products or services that must be provided by others. Parents have a right to pursue an education for their child, not demand that someone else provide it. Yet, parents forcing others to provide for their own children’s education is exactly what the NJ constitution sanctions. This leaves parents who don’t want to turn control of their children over to the state increasingly out in the cold.

Whenever a government attempts to enforce a right to a material benefit, it must ultimately force people to pay for and/or provide it. This means wealth redistribution and government control. There is no other way. The state must ultimately control every aspect of that industry. We see that process playing out in healthcare. Education is no different.

Republicans have been losing the national healthcare battle for decades because they won’t challenge the idea that there is a right to healthcare. The result will ultimately be totalitarian socialized medicine. Likewise, the GOP will lose the education battle in NJ as well, unless it challenges the principle of a right to an education. In his column of 3/29/09, Mr. Mulshine wrote, “…the Republicans are ready for a bench-clearing brawl. The two most conservative contenders in the GOP gubernatorial primary have declared war on the court.” Now, as he predicted might happen, so apparently has Chris Christie.

The “war on the court” is a good and necessary opening salvo, but that is not where permanent victory will be achieved. The court’s education power grab rests on the “thorough and efficient” clause. Debating the exact meaning and application of article VIII, section 4, or of its original intent, won’t cut it. The problem is not one of interpretation, but of the very existence of the clause. As long as it remains it will have to be enforced, either legislatively or through the courts, regardless of any temporary respite a Christie remake of the court will engender. The court is indeed a cause of today’s fiscal crisis and of the bloated and tyrannical education establishment. Its decisions led to the creation of the income tax-funded municipal welfare scheme, which now consumes more than half the state budget. But the court is not the ultimate cause. The ultimate cause is the NJ constitution.

I submit that the fight must be taken to the constitutional level, which means to the philosophical battleground. The fight is over the nature of individual rights, and the proper function of government. It is a daunting task to amend the constitution and repeal that clause. I acknowledge that. But it is the only real course of action, I believe. This is a civil rights battle, and the question is: Who has the basic right and responsibility to educate the child – the state or the parents who brought the child into the world? As long as the “thorough and efficient” clause remains, the state will win at the expense of the individual rights of the parents and of the taxpayers.

New Jersey needs this ideological debate.