The recent lawsuit about which Cato’s Neal McCluskey has been writing asks the court to create a school voucher program in New Jersey as a remedy to the state’s deficient public school system. Right ends, wrong means. Courts are for legal interpretation; legislation is for legislatures.I’m not so sure. While I’m sympathetic to the separation-of-powers argument for keeping courts out of the policy-making business, that argument makes most sense when the constitution places primarily negative obligations on the legislative and executive branches – e.g., don’t pass laws restricting freedom of speech, don’t perform searches without probable cause, etc. In those cases, the courts can simply slap down a legislative or executive action, and then let those branches decide what to do instead. There’s no need for a court to create a new policy to replace the one struck down.
There’s little doubt that New Jersey is failing to live up to its constitutional promise to provide a “thorough and efficient” education. Should the court so rule, it will be up to the legislature to fix the problem, and introducing a universally accessible free education marketplace is certainly the best solution they could implement.
But it’s their job to implement it, not the court’s.
But in this case, New Jersey’s constitution creates a positive obligation – to provide a “thorough and efficient” education to the state’s children. Other state constitutions contain similar clauses. For instance, the Texas Constitution says that “it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” How should such a provision be enforced? If the court finds that the legislature hasn’t met its constitutional duty, a recalcitrant legislative branch can simply sit on its collective hands. In such a case, the court’s only options are (a) to allow the violation of a constitutional provision to persist indefinitely, or (b) to create a policy of its own, while allowing the legislature the option of replacing the court-ordered policy with a constitutionally acceptable policy of its own. Even if the court waits for the legislature to act, the evaluative terms of the state’s constitution (like “thorough” and “efficient”) may require the courts to pass judgment on the efficacy of the chosen policy.
There’s probably a good argument here for not including such positive duties in a constitution at all. But there they are, and they’re not getting repealed any time soon. That means the courts will inevitably be pressed into crafting policy from time to time. The usual opponents of school choice have not been shy about pushing their own policy views in the courtroom. As Neal McCluskey notes, so-called educational equity suits have been used all over the country to force states to give more funding to poor school districts, via reallocation or higher taxes. Texas’s Robin Hood plan is just one notorious example, with notably unpleasant results. If (possibly unwise) constitutional provisions put courts of law in the position of making policy, shouldn’t we at least make sure there are some good policy ideas on the table?