Sunday, May 8, 2011

New Jersey's Constitutional Roadblock to Reform

NJ Star-Ledger columnist Paul Mulshine has a good piece entitled “Can Christie erase the Hughes legacy? He’d better hope so
”. What is the “Hughes legacy”? Mulshine explains:

In his book, "The Life and Times of Richard J. Hughes," Seton Hall law professor John Wefing describes how Hughes tried and failed to get the Legislature to adopt an income tax during his two terms as governor in the 1960s. When he was appointed chief justice in the 1970s, however, Hughes got his wish. Wefing quotes an interview of Hughes by fellow Star-Ledger columnist Bob Braun back then. "He wanted to talk about how the Legislature had refused to give him the state income tax back in the 1960s. ‘They didn’t want the income tax then? Well, they’ll want one now,’" Braun wrote, quoting Hughes.

In 1976, Hughes [as State Supreme Court Chief Justice) ordered the schools shut in a good guy/bad guy routine that helped his fellow Democrat, Gov. Brendan Byrne, push an income tax through the Legislature. The court’s been playing politics ever since.

The Hughes & Byrne show led to a flow of state funds first to “poor” districts and then to all districts. And the income tax-funded state municipal aid scheme has grown like a cancer ever since. Municipal aid now consumes more than half
of a state budget that is $billions in the red, even as state income and sales and local property taxes have ballooned, consuming “more as a percentage of income than any other state in America”, according to Christie.

Mulshine’s reference to the court’s “playing politics” refers to the court “sticking their noses into tax policy”. Mulshine points to the latest court battle over state funding for so-called “special needs” school districts – districts that allegedly can’t generate enough property tax revenue to support their local public schools, thus short-changing poor children. These are called “Abbott” districts, and the latest case is called “Abbott XXI”. Yes, 21 state Supreme Court rulings since the original case brought in 1981. In this case, the court has been asked to restore state school aid cuts instituted by Governor Chris Christie. Mulshine asks:

But why is that any of [the court’s] business? The judges are not supposed to be sticking their noses into tax policy. That’s the proper purview of the Legislature. Or at least it was until the man whose name is on the Richard J. Hughes Justice Complex came along.

Mulshine’s right, of course. So, how did it become the court’s business? He points the finger at Hughes, calling it the “Hughes Legacy”. It was primarily Hughes who brought us the state school aid monster, which is a welfare scheme in which “wealthy” communities are drained, via the state income tax, to support “poor” communities’ public schools.

But is Mulshine drilling deep enough to find the ultimate cause. I’ve left the following comments:

I agree with thebullhorn that “the answer lies in getting rid of state-sponsored and state funded schools by constitutional amendment”.

The “Hughes legacy” traces back much further than Richard J. Hughes. The unholy Hughes Court-Byrne alliance that brought us the state income tax is rooted in the “thorough and efficient” clause of the state constitution, which 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.”

That clause dates back to 1873. The real Hughes legacy is that he understood its meaning and discovered how to use it. It empowers the courts, which must uphold the constitution. It’s true that tax policy is properly the job of the elected legislature. But as I see it, that clause gives the court the reigns over the legislature in one way or another (say, by shutting down the public schools again?).

“The legislature shall provide…” What if it doesn’t, according to seven justices? It is then in violation of constitutional law. The court is now faced with an impossible dilemma. It must either neglect its duty to uphold the constitution, or usurp the proper function of another branch of government.

But it gets worse. On what basis does the court decide how much funding is necessary, or how those funds should be spent … i.e., whether “a school district [should] fire some teachers while keeping 40 sports programs”? On the basis of competing special interest pressure groups, that’s how. It can be no other way. That’s because there is no way to objectively define “thorough and efficient” when applied to “all the children in the State between the ages of five and eighteen years”, each and every one of whom are unique individuals with his/her own needs, cognitive strengths and weaknesses, interests, pace of educational development, and so on.

The elephant in the room that few seem to want to confront is that the only solution is to get rid of the constitutional mandate for state provision of the schools. It’s a daunting task, to be sure. But to find the philosophical unpinning for repeal, look no further than America’s Founding principles. The proper purpose of government is not to provide an education (or any material product or service). It is to protect individual rights, which includes the rights of parents to educate their children as they see fit. Government-run schools violate those rights in two ways: They force people to pay for the education of other people’s children, and they put government in charge of what is taught, how it is taught, and who should pay for it.

I’m only a layman. But it seems obvious to me that the only way to get the court’s nose out of the legislature’s tax business - and, ultimately, the state out of the education business - is to repeal the thorough and efficient clause. There is no other way, as there is no way the court will relinquish its power to “have their hands in your pockets, trying to take your money” as long as the state constitution mandates it.

When you step back and look at the History of Abbott via the actual time line, it becomes obvious when and how it all began. NJ’s “thorough and efficient” clause is, of course, a complete inversion of American Founding principles. Any attempt by government to guarantee material benefits must necessarily violate individual rights, especially property rights. If education is a “right”, as the NJ constitution asserts, then someone must be forced to provide it and/or pay for it. (A good clarification of the issue is posted by The Lucidicus Project’s
’s Jared Rhoads, via FIRM
. The subject is a right to healthcare, but the same arguments apply to education, housing, jobs, etc.)

While Governor Christie battles the court, he and other advocates of free market education reforms must recognize that a much broader and deeper approach is ultimately required. The battle must be taken right up to the constitutional level. As another Star-Ledger columnist correctly states
, the proper way to fight this issue is to “press for a constitutional amendment”. It was the legislature and the voters that gave the court the power, and only they can take it away – or possibly have that state “constitutional right” clause overturned in Federal Courts.


Michael said...

Hi Mike

I was just wondering if you are going to continue with your previous posts on Title 2 of the Civil Rights Act


Mike Zemack said...


Yes, as time permits, but I'm not sure when. Sorry for the delay, and thanks for the interest.

Best regards