Ah, but it is rapidly becoming relevant, because none of the language in queston references 'the government.' This was just a colloqualism that we have decided to dwell on. So far, we have 'Congress' and 'State' which would seem to denote specific aspects of the government. It would require more wording and some hefty clarification to argue that the same clause that specifically references the Congress of the United States applies to the local school board. And probably significant sedation.
Not really. You just have to look to the 14th Amendment.
"And the school board is a little of both. It makes policy with regard to schools and enforces it."
And yet the vital step, at least in the language here, is connecting the school board as being the 'state.'
As you said yourself, they derive their authority from the State.
"But there is no federalism at the state level."
I think you miss my point. The very same argument that says the school board is a state entity allows one to say that the state itself is only a Federal entity. The law is supposed to be a place for precision, but this is all bubblicious.
Actually,
you have missed the point. You really have to understand what federalism is all about. The States do NOT derive their authority from the federal government. The US Constitution grants authority to the federal government and the States as separate entities. But there is no such US Constitutional recognition of local governments. As far as the US Constitution is concerned States are unitary systems. So, from a US Constitutional perspective, States could abolish local governments. States could abolish school boards. The federal government, however, cannot abolish State governments (or local governments for that matter).
"So local entities, as extensions of the State, are bound by any part of the US Constitution that binds the states."
Which is to make my point. According to this argument something in the Constitution referencing the Congress applies to my local mayor. That's bizarre. In theory, you'd think at the very least that it would require a reference to the executive branch, but this argumentation is destroying all distinctions.
Again, you look at the 14th Amendment. Mayors exist because States have authorized them to exist. The State could abolish mayors, if it wanted to. As for your executive branch argument, a mayor isn't solely executive if he exercises legislative powers.
"Did you mean to say that states derive their power and authority from the federal government? They don't, though. That's what federalism is all about."
Ah, but they do, especially if the 14th amendment really means what you say it means. But we'd have to extend it one more step, to the Constitution itself.
The P & I clause of the 14th Amendment extends the Bill of Rights to the States (first nine amendments, under SC precedent using the Due Process Clause, it is most, but not all of those provisions). That the Bill of Rights now applies to both the federal government and the States does NOT mean the federal government and the States are the same. They are still different entities under the US Constitution. And there are real, practical consequencs of that. Congress is limited in what it can do to the provisions outlined in Art. I, Sec. 8. If it is not in there, Congress can't do it. Congress has made broad use of its interstate commerce power, but especially in recent times, the SC has recognized that there limits to that authority. By contrast, the States can do anything that is not prohibited to them. There are some things the federal government can do that the States cannot. Coin money, for example (Art. I, Sec. 10).
"No, but we have the 14th Amendment."
Which really makes my argument. On the one hand you want to appeal to 'Federalism' but by saying the 14th amendment takes the rules that apply to the Federal level (I guess that's what 'congress' means?) and applies them also to the state level, you have a de facto derivation of authority of the states that is dependent on the Constitution's treatment of the Federal.
The 14th Amendment does not apply ALL the rules from the federal level to the State level. There are a good many rules that have nothing to do with the Bill of Rights, due process, or equal protection.
I wonder what your views are regarding the Department of Education are in these matters.
What the federal government can do in the area of Education is rather limited. It cannot directly impose educational requirements on the States. What it often does is use its money to achieve those objectives. If the State wants to use federal money, there are strings attached. If the State is willing to forego federal money, they can forego the strings as well.
"I disagree. See above."
I don't know what part you disagree with. You don't think the Consitution is a legally binding document? You dont' think it has been emasculated?
I have articulated the disagreement elsewhere. You are fundamentally misunderstanding the federalism issue.
"It is already there. Local school boards are extensions of the State."
Its there by argumentation, not by 'writing,' which is what I said you need to do. I think your argumentation is flawed, even as it relates to the words that are actually in the amendments in question. Something as important as this should not be settled by argument in a court room, it should pass muster with the American people, through legislation. The failure to do this has produced this great muddle we see now.
It has passed already in the form of the 14th Amendment. Local governments have no authority absent the State. They have no independence from a US Constitutional perspective.
"Should minority rights be protected in a democracy?"
"But minority rights often do trump majority rights. The first nine amendments to the Constitution are all about preventing the majority from doing certain things."
Hence, those would not be majority rights.
In a sense, that's so, and our disagreement on this particular point may be semantical, but majority rights are phrased in terms of being able to do something in general, and the trumping minority right says, but you cannot do that with regard to this particular subject. The majority right is not phrased with the exception built in -- a separate trumping provision is involved.
""1. The state is targetted, and specifically its making and enforcing of laws. Does a school board selection of curriculum count as 'making law'?""
"Yes. Just as if the State Legislature had set the policy, which BTW, the State Legislature could do, and often has done."
This is another example of the difference between what's actually happening and what should happen. I think its absurd to think that the framers of the 14th amendment would have ever wanted curriculum selection to count as 'making law.'
The framers of the 14th were suspicious of states in general. That's why they wanted the Bill of Rights to apply to them, as well as due process and equal protection. And I think they understood that those provisions could sweep broadly. Surely you're not going to say that mandating inferior education to blacks in the public schools, for example, is not something the 14th Amendment was designed to protect against.
By this reasoning, if my local public librarian says that you're going to pay a dime a day for late fees instead of a nickel, they've done something specifically covered by this clause in the 14th amendment.
There would not be a violation of the 14th Amendment in such a practice, unless we're talking about a librarian imposing a different fee if the student was black or if the book had religious significance.
Its such a broad interpretation that it literally allows the parts of the US Constitution that apply specifically to the Federal goverment to apply all the way down to the late fee policies of the local librarian. Its a waste of language. The 14th Amendment could simply say: "Everything that speaks to the Federal government speaks to every public decision, everywhere, at all levels."
But as I said earlier, the 14th Amendment does not extend every limitation on the federal government to the States. There is a lot more to the power and limitations on power of the Federal Government and the States than the Bill of Rights addresses.
That statement, besides being concise, actually conveys the thing being derived. It also moves all arguments to the US Congress, because if this were really going to be treated consistently (which thank God, it isn't), its far more important to settle every matter in the Congress than it is in our local school board. ID or Evolution? Never mind what the locals think- what matters is what Congress thinks.
As I said earlier, there are limitations on Congress that have nothing to do with the Bill of rights.
""3. WITHOUT DUE PROCESS OF LAW.""
"Again, not under the privileges and immunities clause."
I was summarizing my over all argument, not speaking back to that clause. Explain to me how having an elected school board who itself elects for a certain curriculum is not exercising 'due process.'
I don't have to, since I can hang my hat on the P & I clause. (What the Courts have done by backdooring the Bill of Rights through the due process clause is to say a violation of the bill of rights is a violation of due process. Basically the Courts have said there is substantive due process and procedural due process. You may not agree with the substantive due process approach, but with the P & I Clause, I need not anchor my argument in substantive due process).
"They are part of the State from the US Constitutional perspective, but the State constitutional perspective they could be different."
Ah, but not too different! How can they be, if fundamentally a limitation of the Congress is a limitation also of the state which is also a limitation of the local school board? This is a very simple chain of reasoning.
It is flawed reasoning. You're saying:
P1. The federal government has limitation X
P2. State governments have limitation X
C. Therefore State governments are the same entity as the federal government.
The conclusion does not follow from the premises.
The 14th amendment, by the position you are defending, is trumping the State constitutional perspective, is it not?
The Fourteenth Amendment does trump the State constitutional perspective for subjects the Fourteenth Amendment covers. For subjects not covered by the federal constitution, the State constitutional perspective would control.
"Oh come now. Surely you know I would never say that."
But that is the implications of the argument.
How does it come that the first amendment rule prohibiting the Congress from establishing a religion (or prohibiting the free expression thereof, let's not forget that) applies to the State, and therefore the local school district, without obliterating any distinctions between them all at all?
There is a lot more to the law than the First Amendment. Or the Bill of Rights, for that matter.
The Congress=The State
According to the argument you are making, as derived from the 14th amendment and applied to the 1st Amendment.
No, they simply share a particular characteristic: being limited by the First Amendment. There are plenty of characteristics they do not share.
And yet, you are also arguing:
The State=The Local School Board.
From the federal constitutional perspective, local school boards are part of the State.
The formulation is very simple.... I'm sure you can see it...
Congress=State=School Board.
But Congress does not equal the State.
That is why I said you are not allowed to make distinctions NOW, but not earlier. If they are distinct, then they are distinct when we first encounter them in the documents, too.
Your failure to recognize the distinctions is based on your fundamental misunderstanding of either the nature of the federal system or of my references to it.
The Congress refers to the Congress and the word denotes the Congress which is the Congress we all know and love. The state is NOT the congress. The state is a real entity agreeing to work with other states in a federation and it has its own laws and legislative body and executive body and constitution.
That's true.
The school board, etc etc.
The school board is not separate and independent of the State from a federal constitutional perspective.
But if you want to call them all 'the government' then any advantage you had in thinking of them separately disappears, as well. It is not 'the government' that cannot establish a religion, or prohibit the free exercise thereof. It is not 'the government' that cannot take away life, liberty, or property, without due process. Specific words were used- we can guess that this may have been because specific meanings were intended... and not others?
Specific words were used, and it is important to keep that in mind. But the 14th Amendment covers the States, and that includes local governments, because, from a federal constitutional perspective, local governments are not independent of the State.
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