Wednesday, January 2, 2013

Appeal to Celebrity

By Chet Lake

It is disturbing and embarrassing to me to think that celebrity is used as a substitute for evidence and good argumentation. We see it quite often: celebrities persuading us—even telling us in some instances—what to wear, what to eat, what to buy, and even what to think.

Take this ad as an example:

(video clip “Demand A Plan to End Gun Violence”)

Authority is an interesting concept and is a central concept in the philosophy of liberty. However, I do not intend to focus on authority as a general concept (at least not now), but I would rather focus on the logical fallacy known as appeal to authority or argument from authority.

An appeal to authority can be appropriate when the authority cited is an individual with expertise in the particular subject being discussed. It is especially helpful if this authority is reputable, i.e., knowledgeable and trustworthy. Of course, humans are fallible, so an argument with only an expert opinion isn’t as strong as it otherwise could be—experts can be biased! Ergo, it is useful to cite plenty of evidence in addition to expert interpretation(s) of that evidence.

However, appeals to authority are often abused and are used inappropriately, even fallaciously. For example, it is not appropriate to cite celebrities or use their statements or opinions as if they were from reliable, expert authorities. Since a celebrity is not an expert on anything outside his or her own profession, a claim or argument from a celebrity must then be judged on its own merit and should not be given any more weight because the person who uttered it was a celebrity. Celebrities can be astute and insightful, but unless they are backed up with strong/sound argumentation, they can be dismissed and should not be considered persuasive. Unfortunately, celebrities offer their opinions and arguments on a wide range of subjects including, but not limited to, science, medicine, history, sociology, economics, and politics
—things they often know next to nothing about—and people are often persuaded by them based on their celebrity alone (hence why they are used in ads like the one I cited).

Celebrities have a lot of influence and their influence is increasing. Therefore, it is important for people to understand that celebrities’ opinions don’t carry any additional weight because they are from celebrities and people need to be able to judge claims and arguments from celebrities on their own merits.

Friday, December 28, 2012

What's In a Gun?

By Chet Lake

One of the more controversial issues of the day involves the ownership and use of guns. Should the United States federal government introduce more gun control legislation? This question leads to other questions such as do Americans have the right to keep and bear arms? If they do, how far do those rights extend? Is that alleged right worth the social cost? And so on.

I will deal with the big question: do Americans (or humans in general) have a right to keep and bear arms?

I consider the right to keep and bear arms a more specific prima facie right derived from the more general right to self-defense, which is a part of the right to be free of aggression from other rational agents.

What do I mean by a prima facie right? A prima facie right is one that is assumed at face value. In this context, I will assume a prima facie right to liberty: an individual right to action that can only be overturned by other moral concerns, e.g., the rights of others. This general idea is commonly expressed by the phrase "my right to swing my fist ends at your nose". In the context of this blog post, it means that each individual has a prima facie right to keep and bear arms which is derived from his or her right of self-defense; and the burden of proof is upon the one claiming the authority (or that the State has the authority) to curtail that right (I recommend Michael Heumer's article for more on this right to keep and bear arms; I will be referring to it several times).

Are guns necessary for self-defense?

Guns, or weapons in general, are necessary tools of self-defense for two reasons: (1) for individuals to protect themselves from criminals, and (2) for the people to protect themselves against both political and economic powers. I will demonstrate the first point (the second will be addressed later). It is common sense to think that a weapon in the hands of a criminal gives that criminal an obvious advantage against his or her victim(s). However, some would argue that the social cost, as a whole, outweighs any particular individual's ability to defend himself, or herself, against an aggressor. It is assumed that the presence of guns is the problem and that limiting the access and number of arms in circulation will curb the problem enough (if not an all out ban). Is this claim true?

The Center for Disease Control  reports a lack of evidence in support of the effectiveness of legislation. The CATO Institute published a report confirming the findings of the CDC:


"the empirical analysis presented here provides no
support for the contention that gun control reduces crime rates. In
none of the regressions for the 10 categories of crime rates in 1999
and the 10 for 2001 is the measure of gun control statistically significant.
The article tests another hypothesis, namely, that lax gun control
laws in neighboring states undermine the effectiveness of state gun
laws. It finds no support for this hypothesis. The proxy for neighboring
state gun control is never significant in any of the 20 regressions
estimated."
Gun control advocates often like to point out different countries and their allegedly stricter gun laws and lower violent crime rates. For now, I will put aside the problem (due to cultural differences, demographic differences, historical context, number of arms in circulation, etc.) of comparing different countries and entertain such comparisons. An analysis of the data (UN data as reported by Civitas) reveals some very interesting facts:

  1. In the category "Intentional Homicide", the US ranks 3rd at 5.0 per 100,000 behind Estonia (2nd at 5.2 per 100, 000) and Mexico (1st at 18.1 per 100,000) with Mexico having stricter gun control laws than the US. 
  2. When it comes to "Rape", the US ranks 4th behind New Zealand, Sweden, and Australia (Australia having the tightest gun control laws of the four).
  3. Under "Robbery", the US ranks 8th behind Belgium, Spain, Mexico, Chile, Portugal, France, and England and Wales.
  4. For "Assault", the US ranks 16th behind France, Portugal, Australia, Iceland, Netherlands, Ireland, Luxembourg, Chile, Finland, Germany, Israel, Belgium, England and Wales, Sweden, and Scotland.
  5. The US ranks 12th for Burglary.
  6. The US ranks 10th for vehicle theft.
As can be seen from the data, some countries with tighter gun control rank higher than the US in all categories and some rank lower.

The UK is a specific country that is often touted as an example of gun control success due to its relatively low homicide rates. However, it is ranked very highly in other types of violent crime as can be seen by the previously cited data. To add salt to the wound, the Daily Mail reported that the UK was the "The Most Violent Country in Europe".

Furthermore, the BBC reported in 2001 that "the use of handguns in crime rose by 40% in the two years after the weapons were banned". This piece, also from the BBC, reports UK statistics crimes involving guns. After their most recent ban in 1997, crimes involving guns increased from ~5 thousand in 1998/99 to ~9.5 thousand in 2006/07, peaking at ~11 thousand in 2005/06.

One might respond to these data by pointing out that though violent crime in the UK is relatively high, homicide (especially homicide due to firearms) is relatively low in comparison to the US. Though this is true, there are a couple of problems with this objection (aside from the ones I briefly mentioned earlier).
  1. The UK (or Britain) has historically had low homicide rates relative to other nations that are part of an overall declining trend.
  2. The US has historically had higher homicide rates, especially relative to the UK.
  3. It is difficult to establish guns as the primary reason for the disparity, especially since the UK outshines the US in several other categories.
Upon further analysis, it can be seen that the UK is not the example gun control advocates think it is.

But what about the homicide rates? 

It is true that the US has a high homicide rate compared to the UK and other countries. However, what else do we find when we examine the data?
  1. The US has a firearm related homicide rate of 3.7 per 100,000.
  2. Mexico, Brazil, and Honduras have firearm related homicide rates of 10.0, 19.01, and 50.36 per 100,000 respectively (all with tighter gun control than the US).
  3. Switzerland, with a rate of 0.52 per 100, 000, is an interesting case due to the fact it conscripts most males into the militia, and thus has one of the highest rates of militia arms ownership in the world.

What about within the US? What conclusions can we derive from the data?



From the CDC's National Vital Statistics Reports (2009) we find the following relevant statistics (pp. 39):


  1. Number of Homicides: 16,799
  2. Number of Homicides due to discharge of firearms: 11, 493
In other words, ~68% of homicides were committed with a firearm while ~32% were committed by other means. So it does seem that guns are involved in the majority of homicides. However, it is difficult to determine that more laws limiting the sale, use, and ownership of firearms will have any significant impact on reducing homicides, especially in light of the research done by the CDC and CATO institute (see links to the research above).

If we consider data from the Bureau of Justice Statistics, we see that violent crime overall has been declining (a decrease of ~64.6% for the years 1973-2009; total or overall crime includes "simple assault"; see the BJS source for a more accurate breakdown of the data) while gun legislation has varied. Also, the number of homicides by firearms has remained relatively flat (an overall decrease of ~5.0% for the years 1976-2005).

With those data in mind, it also appears that more legislation isn't as necessary as some might think (ignoring the fact that there is little to no evidence that more legislation will alleviate the alleged gun problem).

The same National Vital Statistics report also breaks down the data in terms of homicide and firearm injury rates by state (pp. 87). If we correlate these data with the 2009 Brady Scorecard (states are scored on a scale of 0 to 100 with 0 being no control to very lenient; in other words, the higher the score, the more gun control) we find some interesting results (note: this map does not correlate with the CDC numbers exactly, however the map can be referenced for convenience):



2009 CDC data by State and Brady Score
State (Including D.C.) Homicide Rate (per 100,000) Injury Rate By Firearm (per 100,000) Brady Score (2009)
Alabama  8.7 17.6 16
Alaska 3.7 14.9 2
Arizona 5.9 13 2
Arkansas 7.6 16.1 4
California 5.7 8.4 79
Colorado 3.9 11.6 15
Connecticut 3.2 4.9 53
Delaware 5.1 8.6 21
District of Columbia 22.5 18.5 *
Florida 6.1 12.5 6
Georgia 6.5 12.7 8
Hawaii  1.8 3.6 42
Idaho 1.4 12.7 2
Illinois 6.8 8.2 28
Indiana 5.3 11.4 6
Iowa 1.4 6.4 14
Kansas 4.5 10.7 7
Kentucky 4.9 13 2
Louisiana 12.8 18 2
Maine 2.3 9.3 11
Maryland 8 10.3 52
Massachusetts  2.7 3.1 54
Michigan 6.6 11 23
Minnesota 1.8 6.4 15
Mississippi 9.3 16.5 6
Missouri 7.1 13.7 4
Montana 3.6 17 4
Nebraska 2.7 7.3 8
Nevada 5.8 15.4 9
New Hampshire * 6.7 9
New Jersey 3.8 4.7 73
New Mexico 8.7 14.9 4
New York 4.3 4.9 50
North Carolina 6 11.9 19
North Dakota * 9.1 4
Ohio 4.7 8.6 11
Oklahoma 6.7 14.5 2
Oregon 2.7 10.9 17
Pennsylvania 5.2 10.7 25
Rhode Island 2.8 5.3 45
South Carolina 7.6 13.9 10
South Dakota 3.8 9.2 4
Tennessee 7.9 15.3 8
Texas 6.1 10.9 9
Utah 1.8 9.3 0
Vermont * 9.7 8
Virginia 4.9 10.6 17
Washington 2.9 9.3 17
West Virginia 5.1 13.8 4
Wisconsin 2.9 8.1 10
Wyoming * 17.6 10

Table 1

Injury Rate and Brady Score
Brady Score (2009) Injury Rate By Firearm (per 100,000)
0 9.3
2 14.9
2 13
2 12.7
2 13
2 18
2 14.5
4 16.1
4 13.7
4 17
4 14.9
4 9.1
4 9.2
4 13.8
6 12.5
6 11.4
6 16.5
7 10.7
8 12.7
8 7.3
8 15.3
8 9.7
9 15.4
9 6.7
9 10.9
10 13.9
10 8.1
10 17.6
11 9.3
11 8.6
14 6.4
15 11.6
15 6.4
16 17.6
17 10.9
17 10.6
17 9.3
19 11.9
21 8.6
23 11
25 10.7
28 8.2
42 3.6
45 5.3
50 4.9
52 10.3
53 4.9
54 3.1
73 4.7
79 8.4
* 18.5


Table 2



Chart 1


Chart 2 (not including the District of Columbia due to no Brady score)

As can be seen in Table 2, Chart 1, and Chart 3, there is a moderately negative relationship between the Brady score and the injury rate by firearms.


Homicide Rate v Brady Score by State
Brady Score (2009) Homicide Rate (per 100,000)
0 1.8
2 3.7
2 5.9
2 1.4
2 4.9
2 12.8
2 6.7
4 7.6
4 7.1
4 3.6
4 8.7
4 3.8
4 5.1
6 6.1
6 5.3
6 9.3
7 4.5
8 6.5
8 2.7
8 7.9
9 5.8
9 6.1
10 7.6
10 2.9
11 2.3
11 4.7
14 1.4
15 3.9
15 1.8
16 8.7
17 2.7
17 4.9
17 2.9
19 6
21 5.1
23 6.6
25 5.2
28 6.8
42 1.8
45 2.8
50 4.3
52 8
53 3.2
54 2.7
73 3.8
79 5.7
* 22.5


Table 3



Chart 4

Chart 5 (not including the District of Columbia due to no Brady score)

As can be seen from Table 3 and Chart 4, and Chart 5, there is a weak negative relationship between Brady scores and homicide rates.

There are two things to keep in mind while interpreting these data: (1)while there is a moderate, negative relationship between firearm injury rates and Brady scores, the category includes suicides and accidents, so the actual relationship is most likely weaker than the data suggest; and (2) homicide rates include non-gun related homicides, so this relationship is also likely to be weaker.

These data in light of other research suggest very little evidence for the effectiveness of more gun legislation (for other examples, click here).

Many other people contend that the very least that should be done is reinstating the assault weapons ban. The justification for this is that Assault weapons are not needed for self-defense and are able to kill too many people too efficiently. What do the data have to say?

According to the Bureau of Justice Statistics, handguns are used in more than half of gun related homicides. The rest fall under the category "other guns" which would include "assault weapons" among other types of weapons. So why not a call to ban handguns?

If legislation cannot be shown to be effective, if gun ownership is a prima facie right related to self defense, and assault rifles are not even involved in a majority of homicides, then what reason(s) do we have to ban them? Remember, the burden of proof is upon the one calling for the abrogation of liberty in the form of legislation.

What about tyrranny and oppression? The people's ability to keep the government in check via the right to keep and bear arms is perhaps more important than the ability to defend one's self against criminals. However, more often than not, this is the reason that brings on the most scorn and ridicule. The counter-argument is that people who think this are paranoid, conspiratorial, or just plain nuts. Not so. History has demonstrated repeatedly the ability of governments to oppress and exploit the people. The right to keep and bear arms helps safeguard against tyranny and ensure social justice.

Possible Objections

"You haven't really shown that we have a right to own weapons like assault rifles."


If you still do not think I have made a good argument for a prima facie right (I admit I was very brief on this point and relied heavily on the reader at least skimming the article I linked), please read Michael Huemer's article if you already have not done so.

"Michael Huemer does concede that liberty can be limited in some situations, but what about self-ownership?"

Again, if you have not done so, read Huemer's article. If you still have problems with Huemer's arguments for certain limitations then I would invite you to reexamine your Rothbardian/Anarcho-Capitalistic assumptions. Matt Zwolinkski has written a symposium examining and critiquing some of the most fundamental concepts in  Murray Rothbard's "Ethics of Liberty".

Just as a preview, Zwolinski argues that Rothbard's natural rights theory is foundationally based on an is-ought fallacy, that Rothbard's view is too narrow and neglects other relevant moral concerns, and that he fails to establish what exactly self-ownership and property rights imply.


"Correlation is not Causation!"

This is likely in response to the data I presented. I agree with this sentiment; correlation is not causation and I briefly gave reasons against making international comparisons before I went and did just that to make a point: even if such comparisons were reliable, they do not establish a very clear trend that we should expect to see if the gun control advocates were correct.

However, I think domestic comparisons are more reliable because more variables are controllable. Though correlations do not necessarily establish a cause and effect relationships, they are good indicators that call for further examination.

If critics still insist that correlations are not enough, then that is fine. Either way, an evidence based argument for more gun legislation cannot be made and the prima facie right to own a gun still remains firmly established.

"There are still a lot of gun related homicides! We need to do something!"

Again, I agree. I just disagree with the notion of using legislation for curing social ills, especially when they are not shown to work.

"But banning large clips and magazines still makes sense to me."

Your intuition is more reflective of reality than hard evidence? Good for you.


"What about all the mass shootings that are on the rise? Think of the children!"

It only seems like there are more shootings because our brains have evolved to immediately recall the scary things in life and to forget the boring stuff. It is simply not the case that mass shootings are on the rise.  


Conclusion

Now that I have established (1) a prima facie right to own weapons for reasons of self-defense, (2) that there is no need to for more legislation due to falling violent crime, and (3) that legislation has not been shown to be effective, the Statist now must show why my arguments are flawed and present better evidence than I have presented sufficient enough to make the case for abrogating liberty (and as Huemer argues, it will take quite a bit of hard evidence showing substantial social costs for not abrogating liberty).

*UPDATE*

For further analysis concerning the empirical evidence and its implications, I highly recommend this review published in the Harvard Journal of Law & Public Policy. The authors of the review make a similar argument to the one I made:

"This Article has reviewed a significant amount of evidence from a wide variety of international sources. Each individual portion of evidence is subject to cavil—at the very least the general objection that the persuasiveness of social scientific evidence cannot remotely approach the persuasiveness of conclusions in the physical sciences. Nevertheless, the burden of proof rests on the proponents of the more guns equal more death and fewer guns equal less death mantra, especially since they argue public policy ought to be based on that mantra. To bear that burden would at the very least require showing that a large number of nations with more guns have more death and that nations that have imposed stringent gun controls have achieved substantial reductions in criminal violence (or suicide). But those correlations are not observed when a large number of nations are compared across the world."

Tuesday, December 18, 2012

Civil Rights and Education: This Isn’t Gonna Work



By Mike Xidis

Education is the foundation upon which our society is built.  It teaches our citizens not only the facts of history, math, and other subjects, but how to act in society and what behaviors are acceptable.  These norms may not be taught in the classroom, but they are certainly gained from the experience.  It is understandable then that the Supreme Court grants special protections to government schools that often limit the freedom of the students within those schools.  However, understanding the rationality behind why the Supreme Court decides what it decides does not make those decisions any more correct or legal.  Often, the rationality tests that the Court creates in order to justify these decisions are simply excuses that allow extra-Constitutional powers to government schools. First, I will establish a Constitutional limit of what kind of things can be controlled by the national and state governments as it relates to education.  Then I’ll look at previous Court decisions and apply that limit to reimagine what government schools would look like if treated as any other government agency ought to be treated.  Finally, I will show that the national government[1] is unfit to run any type of school in it’s current state, and suggest a possible remedy.
It is clear at the drafting and ratifying of the Constitution that the Federal government was to have no part in administering education.  James Madison, while speaking on the general welfare clause said, “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.”[2] Clearly, Madison, as well as many of the drafters and ratifiers of the Constitution understood that the education of children was a power left to the states or the people as outlined in the 10th Amendment.  The Constitution was never meant to apply to an educational system and allowing governments bound by the Constitution to do so creates a poor system of education. 
If the original position was that a Constitutionally bound government was not meant to administer education then what could current politicians and justices claim as a basis for interfering with local control of education? One must look no further than the Reconstruction and Civil Rights Eras.  The Fourteenth amendment granted all citizens of the United States equal protection of the laws regardless of the level of government within the United States.  This gave Congress and Federal judiciaries the Constitutional power to interfere with what was before a purely local or state power, administering education.  Don’t get me wrong, the federal branch did not administer the education.  However, the judiciary began to determine which local practices were violations of what were previously only national rights. 
This new interference is evident in many cases but I’ll pick one: Davis v. Monroe County Board of Education.[3]  The Court held that Title IX, which puts strings on Federal education money, implies a private right to education.  The Ninth Amendment supports this kind of thinking. However, one must understand that there is a difference between positive and negative rights and then must logically discern which positive rights immorally interfere with the negative rights of others.[4]  While the Ninth amendment can protect positive rights, it “protects ‘positive rights’ that ha[ve] their source in the common, constitutional, and statutory law of the States.”[5] That is, it was originally meant to protect the sovereignty of the people and the States from infringement of the Federal government. The amendment was written by Madison as an appeasement to anti-federalists who feared the Federal government would “fill in the blanks” that the Constitution did not expressly fill.  It was not meant to imply justification for positive rights that infringe on the property or the negative rights of other individuals.  A right to education implicitly requires the state to take wealth or property[6] from individuals to provide.  If this power were to be under the purview of the Federal government, would not the framers have expressly said so as they did with such trivial things as the Incompatibility Clause?[7]
If it is true that the original intent of the Constitution was to leave education to the States or localities before the 14th Amendment incorporated the Bill of Rights on the state level, I imagine it was done for a reason. If those Constitutional qualifications kept the Federal government from competently running an educational system[8], then applying them to the states and localities would keep those entities, which previously enjoyed broad police powers, from competently doing the same.  Let’s look at some cases and see where pre-14th Amendment Federalism would have helped the Supreme Court reach good decisions.
The first case I want to analyze is probably the most effective at proving my point. United States v. Virginia[9] centered on the Virginia Military Institute’s policy of being exclusively male.  This was held as a long-standing tradition and Virginia, as a response to a Federal Circuit court ruling, created a parallel school for women.  The Supreme Court ruled that Virginia’s admissions policy was unconstitutional because it violated the 14th Amendment by needlessly discriminating between men and women. I agree.  However, Justice Scalia’s dissent brings up the issue that the Supreme Court just can’t remedy.  How does the Court justify applying strict scrutiny for cases involving race, but only mild scrutiny for cases involving gender?  Imagine if the Court applied this type test to the Third Amendment: “We shall allow the government to force you to quarter soldiers in your living room on your hide-a-bed, but they may not enter your bedchamber.” or “You must quarter national guardsmen(and women) but it is clearly unconstitutional to quarter a full-time soldier.” These types of tests leave too much wiggle room for legislatures and the judiciary to just ignore the Constitution altogether and make up their own rules as the social standards or political necessity dictates. 
One of Virginia’s arguments is centered on the idea that the all-male policy was absolutely necessary. Several members of the School and the Military felt that this was true.[10] Let’s assume for the moment that their claim is correct.  In their view it is necessary to clearly violate the 14th Amendment to properly educate the people that they will eventually hire. In our hypothetical situation the VMI would by necessity need to privatize in order to keep providing the high quality education for which it had become known. The Supreme Court applied strict scrutiny and ruled that the VMI could not discriminate because they had not provided “substantial proof” that the discrimination was necessary.  What Constitutional clause allows the Supreme Court to protect civil rights strictly in some cases and not so strictly in others? Is it becoming apparent how the Constitution and providing education could be considered incompatible?  The Court could have resolved the important arguments from both parties by forcing any institution bound by the Constitution from funding the VMI or other institutions that violated the Constitution.[11] [12] If this were the case, the school could continue providing the type of students that so many military industry people wanted while stopping the Constitutional violation.
Let’s look at Brown v. Board of Education.[13]  It seems pretty cut and dry.  Black children were denied admission to schools with white children because of laws that established segregation.  The facilities were in a theoretical sense equal, but Justice Warren and the Supreme Court decided that the long held belief of ‘separate but equal’ was inherently unequal when it comes to public education. I believe the Court got the principle of the decision correct.  However, they applied remedial force in the wrong direction.[14]  Instead of declaring that the schools could no longer be associated with any government that is bound by the Constitution, they forced the schools to desegregate. 
The 14th Amendment prohibits government institutions from being exclusively established for one race or another.  The guiding principle is that the government must treat citizens as citizens regardless of their race, religion, etc.  The Court established that this prohibition on discrimination only applies to the public realm, which means public government institutions as well as private goods that exist to service the broad public, in The Civil Rights Cases.[15] I don’t see any valid Constitutional reason, outside of convenience, that allows the Supreme Court to extend discrimination protection to some privately held goods and services and not to other privately held goods and services.  If I own a bus company and I don’t like people that are taller than six feet, then I should be able to prevent them from boarding my buses. There’s nothing prohibiting the people taller than six feet from starting their own bus company, and chances are I’ll lose too much money to keep discriminating and stay in business.  While ignoring that practical argument, there is still no Constitutional justification to protect some, and not all, private property in favor of discrimination. 
One may ask, “What does this have to do with education?” These cases show that the judiciary has taken the power upon itself to decide when the Federal government, or more localized governments violate the individual rights of others.  However, many of these decisions are based on the idea that the Court knows “the good,” and applies that standard to schools.  However, “the good” is not a uniform experience and cannot be taught uniformly through education.  “The good” is a personal view of how one wishes to live one’s life in order to pursue happiness; and it is a parent’s right to pass on that view even if it involves traditions that society has determined are taboo.[16] [17]  Public education under the Constitution simply does not allow some of the individuals involved to practice their view of “the good”; it was the original intent of the Founding Fathers[18] to allow as many people as possible to continue practicing individual views of “the good” while still creating a federal state that would be strong enough to unite the States in areas like defense and trade.  That original view cannot be ignored when making decisions about government institutions of education.
The Court has had to flatten diversity[19] in education in order to protect civil rights.  As a result society has flattened too.  The Court has taught our students through holdings and rulings in public education cases involving civil rights and the policies that were adjusted to abide by those rulings, which behaviors are the social version of “the good” and which behaviors should be shunned.  The Supreme Court is exercising an Ex Post Facto[20] power of education over an extended period of time by arbitrarily protecting civil rights in government schools.  This is not true in other public areas involving consenting adults like government forums or public services like defense. 
The special function of educational institutions acts as a catalyst and morphs the Court’s decisions into a type of governmental power.  Developing young people’s minds while adhering to the Supreme Court’s decisions in the “flattening” civil rights cases teaches young people what is socially accepted, and while that may be beneficial to developing a more liberal and accepting society, parents have a right to rear their children as they see fit.[21]  For example, the Court determined in the Civil Rights Cases that the government cannot regulate private discrimination. So what allows the government to educate discrimination away? 
Let’s look at one more example before we try and remedy the problem.  Northside Independent School District (NISD), located in San Antonio, Texas, created a tracking program to ensure that enrolled students were actually on school grounds. The school district’s motivation is financial; since most of its funding is provided by the state on a per-student basis, they have a substantial interest proving that their students actually attend during school hours.  So they “began issuing the RFID-chip-laden student-body cards when the semester began in the fall. The ID badge has a bar code associated with a student’s Social Security number, and the RFID chip monitors pupils’ movements on campus, from when they arrive until when they leave.”[22]  This is a clear violation of the students’ privacy under the Constitution and would be declared unconstitutional if any other governmental agency were practicing a mass-tracking system like that of the NISD.  However, the school district may have a good case if they appeal to the Supreme Court. 
In Board of Education v. Earls the Court ruled on privacy in schools saying that a school can require drug testing on all students because it serves the school’s important interest in detecting and preventing drug use among its students.[23] Once again the Court created a test that allows a government institution to violate civil rights based on “substantial interest.” What, other than an arbitrary Supreme Court distinction, makes preventing drug use more of a substantial interest than securing proper funding? It seems apparent that the Supreme Court decided that drug use was not “the good.” Therefore it should not be allowed in schools at all even though teaching this requires a clear violation of privacy.  I am not espousing the use of drugs; I am simply showing that an individual’s civil rights under the Constitution prevent schools from pursuing “substantial interests.” The Supreme Court has remedied this dissonance by allowing schools to violate the Constitution as long as it’s not completely nuts.[24] However, as I inferred at the top of this rant, ruling rationally does not always equate to ruling Constitutionally.
It would seem that this conundrum must continue to occur.  It is apparent that the sole body that has been self-charged[25] with determining the constitutionality of governmental acts will continue to allow rationality to govern schools while arbitrarily ignoring the Constitution.  We must turn elsewhere, then, to resolve this riddle. Perhaps the States could reassert their rightful place in administering education by invoking the nullification doctrine.  Nullification is the principle by which States can prevent the Federal government from instituting clearly unconstitutional laws and mandates by legislative resolution.  Most legal scholars giggle a bit whenever somebody mentions the principle seriously, but that doesn’t change the fact that most of the Founding Fathers, especially Thomas Jefferson, supported nullification.[26]
Nullification stems from the Contract Theory of Constitutional history.  That is the States were sovereign entities prior to the ratification of the Constitution.  They expressly ceded a portion of their sovereign power to the Federal government by means of a written Constitution; therefore, the Federal government cannot legally exercise any power that is not expressly written in the Constitution.  If the Federal government did exceed its expressed powers in any way, it would be the primary responsibility of the States, the creators of that government, to reign in that government. That act could be accomplished through a resolution in a State Legislature stating that a Federal Act or exercised power is clearly unconstitutional and should not be recognized by the citizens or agents of the State.
 How does nullification apply to Supreme Court rulings? Didn’t Jefferson and others use it as a tool to override Federal legislative acts?  Earlier I showed that the Court was exercising a power of social education by forcing educational institutions to abide by some of its civil rights decisions.  By identifying long term social education as a governmental power, and showing that the Federal Supreme Court was exercising that power without Constitutional authorization, a State could nullify those decisions within the boundaries of that State.  I recognize that this might only be tricky wording to justify greater State’s rights, but aren’t Supreme Court rationality tests simply tricky wording to justify greater Federal control over State institutions?
In summary: Individuals have a right to discriminate, or a right to privacy, or any of the other civil rights that the Supreme Court protects.  Parents have a right to teach their children what “the good” life is according to their individual conscience.  The Supreme Court infringes upon that parental right when it flattens public schools through some of its civil rights rulings.  The Supreme Court also exercises a long-term power of social education by forcing government educational institutions to follow the Court’s desired view of “the good.”  States can resist this by recognizing a governmental power of long-term social education and nullifying the Federal exercise of it in State legislatures.  I understand this might cause mass confusion as to what government can do what, but I believe it’s about time we asked that question again. Don’t you?


[1] ...and State and local governments by extension of the 14th Amendment’s incorporation doctrine.
[2] Woods. Jr., Thomas E. (2010-06-23). Nullification: How to Resist Federal Tyranny in the 21st Century (p. 23). Perseus Books Group. Kindle Edition.
[3] Davis v. Monroe County Board of Education. Supreme Court. 24 May 1999. Print.
[4] Positive rights are usually rights to receive some benefit, such as a right to an education or accessible health care (both of which are controversial types of positive rights).  Positive rights differ substantially from negative rights.  First, negative rights are usually based on something about the bearer.  Humans have a negative right to autonomy because humans are the sorts of creatures that make choices that matter to them.  But positive rights are often not based on things about the bearer.  Some positive rights, like a right to be paid for work that you do, are based on agreements.  Other positive rights are based on idealized conceptions of human interaction, such as a right to health care or clean water. (Source: http://everyday-ethics.org/2009/05/positive-and-negative-rights-what%E2%80%99s-the-difference-and-why-does-it-matter/)
[5] Conley, Patrick T., and John P. Kaminski. "The Bill of Rights and the States." The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties. Madison, WI: Madison House, 1992. 509. Print.
[6] A clear example of a negative right.
[7]No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
[8] See Madison’s quote from the second footnote
[9] United States v. Virginia. Supreme Court. 26 June 1996. Print.
[10] Amstein, Julie M. "UNITED STATES v. VIRGINIA: THE CASE OF COEDUCATION AT VIRGINIA MILITARY INSTITUTE." American University. Washington College of Law, n.d. Web. 10 Nov. 2012. <http://www.wcl.american.edu/journal/genderlaw/03/amstein.pdf>. pgs. 100-105
[11] The VMI contemplated privatization after this ruling, but decided the Federal dollars were too sweet.
[12] Again, this would not be a problem had the 14th Amendment not incorporated Constitutional limits on State governments.
[13] Brown v. Board of Education. Supreme Court. 17 May 1954. Print.
[14] I know race is not the best subject to argue this point on, but facing the problem at its subject of origin helps us get to the root of the problem instead of always dealing with the politically correct branches that came later. That, and I like coming off like a complete jerk.
[15] The Civil Rights Cases. Supreme Court. 15 Oct. 1883. Print.
[16] Pierce v. Society of Sisters. Supreme Court. 1 June 1925. Print.
[17] Like racism, sexism, or just a general attitude of hate, like that old man in the neighborhood who turns his hose on children at play...
[18] With the possible exception of Alexander Hamilton
[19] Oddly enough this flattening often occurs in the name of protecting diversity.
[20] I know what you’re thinking, and the answer is, “yes.” I do speak Latin.
[21] Pierce v. Society of Sisters. Supreme Court. 1 June 1925. Print.
[22] Kravets, David. "Student Suspended for Refusing to Wear a School-Issued RFID Tracker." Wired. N.p., 21 Nov. 2012. Web. 22 Nov. 2012. <http://www.wired.com/threatlevel/2012/11/student-suspension/>.
[23] Board of Education v. Earls. Supreme Court. 27 June 2002. Print.
[24] Does this remind anyone else of the Supreme Court rulings on the Administrative Procedure Act (APA 1966)?
[25] Marbury v. Madison. Supreme Court. 23 Feb. 1803. Print.
[26] Jefferson, Thomas. "Kentucky Resolutions of 1798." The Tenth Amendment Center. N.p., n.d. Web. <http://tenthamendmentcenter.com/kentucky-resolutions-of-1798/>.