Substantive Due Process: Calder v. Bull 3 U.S. 386 (1798)

This is a concept in Constitutional Law which must be reclaimed:


I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the state. The people of the United States erected their constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact, and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments that no man should be compelled to do what the laws do not require nor to refrain from acts which the laws permit. There are acts which the federal or state legislature cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power, as to authorize manifest injustice by positive law or to take away that security for personal liberty or private property for the protection whereof of the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact and on republican principles must be determined by the nature of the power on which it is founded.

A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or in other words for an act which when done was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A. and gives it to B. It is against all reason and justice for a people to entrust a legislature with such powers, and therefore it cannot be presumed that it has done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; It may declare new crimes and establish rules of conduct for all its citizens in future cases; it may command what is right and prohibit what is wrong, but it cannot change innocence into guilt or punish innocence as a crime or violate the right of an antecedent lawful private contract or the right of private property. To maintain that our federal or state legislature possesses such powers if it had not been expressly restrained would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.

Clueless on Education

In a recent editorial in the Wall Street Journal, Jeb Bush and Joel Kline penned their opinion to return the American educational system to excellence.  In their initial paragraph they set forth the problem:

The success of today's students will determine our nation's destiny. America's economic strength and standing in the world economy are directly linked to our ability to equip students with the knowledge and skills to succeed in the 21st-century economy. Students are no longer competing with their peers in other cities—they are competing with students across the globe. Business leaders have become champions of education reform, recognizing the role that rigorous academic standards have on their success.

Their opinion proceeded to attribute the responsibility for education to the states and to champion the need for common core standards. They concluded with a hopeful eschatology:

It is the states' responsibility to foster an education system that leads to rising student achievement. State leaders, educators, teachers and parents are empowered to ensure every student has access to the best curriculum and learning environment. Governors and lawmakers across the country are acting to adopt bold education reform policies. This is the beauty of our federal system. It provides 50 testing sites for reform and innovation. The Common Core State Standards are an example of states recognizing a problem, then working together, sharing what works and what doesn't.

Unfortunately, Messrs. Bush and Kline’s analysis suffers from no less than three flaws. First, they misunderstand the goal of education, the need to make an economic engine out of our children. Second, they misidentify the institution responsible for education. Third, they misidentify the substance of education.

Common Core State Standards will not correct the woeful education in our government school system. Education is vastly more than a list of things to know. To their credit, they do pay lip service to the need for more when they write, “The literacy standards require students to make arguments with evidence rather than just restate their own opinions or experiences.” However, to truly understand the full import of educational reform, this simple statement is insufficient.

Education consists in teaching a person how to think and inculcating a love for learning. The ancient Greeks had the concept of making the ideal man, the paideia. The early Christian Church expanded upon this concept for the paideia of God. At the core of the paideia of God was inculcating in each person the love for learning. This classical approach to education recognized that children develop in their educational process through three phases: a grammar phase, a logical phase and a rhetorical phase, more commonly known as the trivium. Any parent can see these phases in his or her children. There is a phase during which a child enjoys and is good at simple memorization. As the child matures, he or she begins to think more abstractly and asks the question “why?” He or she begins to interrelate concepts in order to draw conclusions. An understanding of logic becomes critical at this phase. Finally, there is a stage at which a child revels in argument. The goal of education is to teach a child how to marshal all of the knowledge and logic of situation for the purpose of persuasion, to come to a conclusion for one’s self and for others. The ancient Hebrew would have referred to these characteristics as knowledge, understanding and wisdom.

This brings us to the second flaw in Bush’s and Kline’s analysis: the one responsible for education. The family is the God ordained institution for raising and educating children. This is inherent in the created order. When my wife and I brought our three daughters into the world, they were not immediately swept away to become wards of the state. They were given to my wife and me to love and care for, and to educate. My wife and I know our daughters better than anyone else in the world--at least until their marriage. They remain my responsibility to educate.

Although there has been over the course of the last century a progressive movement to make the state the caretaker of our children, it is this movement that has been the downfall of our culture. What is government? Government is an institution created to enforce rights and administer justice. Government acts through the execution of law. Law is a set of standards by which people must live. When government speaks of common core standards that is all it can speak of: “standards.” By its very nature, government is limited in its ability to provide education in that it can only speak to the grammar phase, the mere content of knowledge. It must truncate its education prior to the logic and rhetoric phase. It cannot teach the beauty of a good syllogism or a beautiful poem, because the student must meet certain “standards” of knowledge.

Some will respond that the government can and typically does go beyond teaching grammar. And I will readily admit that it does, but the question remains, can it appropriately do so. Our founding fathers, who were classically trained, understood that one primary goal of education is the inculcation of virtue in accordance with a standard of truth. An understanding of virtue and truth is critical to a right logic and a right rhetoric. However, today we live in a society of enforced relativism. Who defines virtue and truth? Can the state define virtue? Remember that there is a so called “separation of church and state” in this nation. Whose virtue and truth will the government teach? Either the government must truncate its education at the grammar phase or it must violate the separation of church and state it has so carefully built.

This brings us to the third and most significant flaw of Bush’s and Kline’s analysis. The flaw is that the purpose of education is to make our children servants of our economic machine. This concept is foreign to western civilization up until the last hundred years or so. Western civilization grew on the concept of the paideia. The Renaissance was the recovery in medieval western culture founded on classical thinking, founded on paideia. Classical learning, the Renaissance, produced the greatest works of art, literature, theology, and industry in the medieval age. Our founding fathers were great men who were classically educated in ancient philosophy as well as Christian ideas. Many of them were trained in multiple classical languages and read the original thinkers throughout history. We have rejected these characteristics in return for a smug attitude of technological, economic and utilitarian superiority.

The Missouri Constitution provides that, “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this state within ages not in excess of twenty-one years as prescribed by law.” The first part of the above proposition provides the motivation for the provision of gratuitous instruction. The motivation of the state is to maintain the rights and liberties of the people. Unfortunately, our culture has lost the greater importance of an educated people, the paideia. What should be considered as a safety net for education for the state, has been made the pinnacle of education. What should be considered a last resort has become the paradigm of education.

The paradox of education is that when you design education to achieve a goal, you lose true education. The paradox is similar to the dog and his bone. Upon seeing a reflection of himself in the lake and thinking it was another dog with another bone, he drops his bone in order to obtain the bone of the other dog. In his efforts he loses his bone. As we turn our eyes to a goal of obtaining education for some purpose other than the love for learning, we lose the love for learning and seek only self advancement. By keeping our focus on inculcating a love for learning, we disciple people to love to think. People who love to think can teach themselves to engage in any economic endeavor.

Senator Kurt Schaefer has already expressed his priority for the legislature’s budget next year on the matter of education. Education will become an increasingly significant issue in the years to come. While money is not bad, it should be used in accordance with truly worthy goals and in accordance with appropriate methods. If we are to recover an education system that works, it must inculcate a love for learning, be controlled by parents and produce thinkers, not just those who know things.