Mike Farris, chairman of the Home School Legal Defense Association, says Ron Paul is a bad choice for homeschoolers, because he doesn’t support the legal reasoning by which homeschooling has in some cases made gains in the states. Farris endorses the use of the 14th Amendment and “substantive due process.”
Kevin Gutzman, author of The Politically Incorrect Guide to the Constitution, counters that this very approach has yielded results that ought to appall social conservatives like Farris, though Farris himself never acknowledges this. Kevin’s remarks follow:
Mike Farris of the Home School Legal Defense Association recently criticized Ron Paul’s constitutional position. Conservatives, particularly homeschoolers, should reject Ron Paul’s position, said Farris, because Farris’s court victories for homeschoolers rested on a contrary position.
Farris is wrong on two scores. First, Ron Paul’s constitutional position is not based on the results it would yield. His view is that one enforces a constitution as the people intended when they adopted it, and if dissatisfied with the results, one amends it. To rely on judges to change cases’ outcomes in the absence of amendment is the opposite of constitutionalism, but is instead what the great Harvard legal historian Raoul Berger called “government by judiciary.”
Secondly, and coincidentally, Farris is wrong about the outcomes yielded by his preferred position. It may be that he has won a few cases on the basis of a theory different from Ron Paul’s, but that theory has also generally yielded a cascade of socially and economically radical judicial decisions for well over a century. In order to understand this claim, a little history is in order.
The key court decision on which Farris relies is Pierce v. Society of Sisters of the Holy Names of Jesus and Mary. In that 1925 case, the United States Supreme Court said that the state of Oregon could not require all children to attend public schools. In doing so, it relied on the concept of substantive due process first enunciated in Dred Scott v. Sandford (1857).
In Dred Scott, the Court considered the constitutionality of the Missouri Compromise’s provision excluding slavery from certain of the western territories. Relying on the Fifth Amendment’s Due Process Clause, the Court held that part of the Missouri Compromise unconstitutional. The Due Process Clause, according to the Court, meant that slavery must be allowed in every part of the territories, regardless what either Congress or the territories’ residents wanted.
The Fifth Amendment’s Due Process Clause says, “nor shall any person … be deprived of life, liberty, or property, without due process of law.” One might assume, if he had not been subjected to reading case law, that this provision guaranteed that one would not be punished without an adversary hearing. So it always had been held to do — prior to Dred Scott.
Many historians say that the Dred Scott decision was at the root of the political dissension that ultimately resulted in secession and the Civil War. To deal with the social and political results of the war, the 14th Amendment was added to the Constitution. Section 1 of the Amendment includes a Due Process Clause applicable against state governments.
In the late 19th and early 20th centuries, a right-wing majority on the Supreme Court elaborated a notion called “liberty of contract.” According to this theory, this procedural provision of the Fourteenth Amendment empowered federal courts, as one dissenter famously put it, to enforce “Mr. Herbert Spencer’s Social Statics” — that is, laissez-faire economics. On this basis, the Court struck down a plethora of state economic and social regulations.
With the Revolution of 1937, however, the Court abandoned that project. From that point on, it allowed both Congress and state governments to impose whatever economic regulations came to mind. Freed of the burden of enforcing laissez-faire, the Court instead began to carve out numerous new rights under this substantive due process rubric.
So, are you appalled at the Court’s recent decision inventing a right of child rapists not to receive capital punishment? Substantive due process. Are you amazed that a constitution that says no person can be deprived of life without due process was said for years to mean that capital punishment was disallowed in every case? Substantive due process. Do you think states ought not to be disallowed to ban flag burning? Substantive due process. Do you think that states ought not to be disallowed to regulate pornography? Substantive due process. Are you surprised that while your teenage daughter needs your permission to get her ears pierced, she has a right to an abortion without your knowledge? Substantive due process. Do you think that if any government should be involved in defining marriage, it is the state governments, not the federal government (and certainly not federal judges), that should have that role? Substantive due process. And on, and on.
Even if you approve of some or all of the lines of court decisions I have just mentioned from a policy point of view, as I do, recall Ron Paul’s chief contention: that these decisions are wrong because the legitimacy of republican government depends on popular consent, and no one ever consented to a system in which federal judges exercise veto power over state laws in all of these areas, as well as others.
Michael Farris may well be right, from a policy point of view, in the arguments he makes in court. He certainly is not right in relying on the judicial legerdemain rolled out in Dred Scott v. Sandford and since put to such noxious use in a slew of other cases. Ron Paul is right: the Constitution leaves these matters to citizens to work out in their respective states through ordinary state-level republican politics, not to federal judges unaccountable to anyone to decide according to their own whims in Washington.