James Madison’s Case for Federal Education “Mandates”

November 19, 2008


If you’re looking for an education secretary, Mr. Obama . . .

(Guest post by Greg Forster)

In a letter to Wall Street Journal on Friday, Pete Hoekstra follows the well trod path of populist conservatives who demonize “federal” interference in education and demand that power be handed back to “local schools.” (To his credit, Hoekstra also mentions school choice.)

Populist right-wingers need to learn that teachers’ unions and their allies laugh all the way to the bank when conservatives demand “local control” and romanticize the “local school.” The unions have a hammerlock on local school politics. The further you go down the chain geographically, the more power they have. Nobody votes in school board elections except school employees and their families and friends. They hold the elections at inconvenient times precisely to produce this result. Thus, local communities typically have little practical control over their own school boards. The school boards consider the staff unions representing teachers and other school employees to be their primary constituents. When the demands of school staff interfere with the needs of students, the school boards favor the staff.

If you want to know why so many of our schools are run as jobs programs and don’t produce a decent education, “local control” is how it’s done.

There are worthy criticisms of NCLB. Interference with local control isn’t one of them.

The “mandates” of NCLB aren’t even mandates. They’re conditions for funding. The federal government gives states tons of (my) money to participate in NCLB. Doesn’t it – don’t I – have a right to ask states to provide transparent data reporting and measurement of outcomes in return? And if the states are getting a bad deal, they can stop taking the money.

Whenever I point this out, the critics respond that states can’t be expected to turn down federal money no matter what terms it’s offered on. Well, if so, then the problem here isn’t with the federal government, is it?

But there’s a larger philosophical issue here. People think that pure, unsullied federalism requires not only that the federal government excercise no coercive power over areas of state authority, but that it exercise no form of influence whatsoever.

This is false, and for my authority I appeal to the original “federalists”: the authors of the Federalist Papers.

Federalist #47 and #48 take up an argument advanced by “the more respectable adversaries to the Constitution” – namely, that the Constitution fails to create a true separation of powers among the legislative, executive, and judicial branches because it allows each brach to influence the others. The president can veto legislation, the Senate gets to vote on cabinet members, etc.

Madison points out that there can be none of those crucial “balances and checks” between the separate branches if they exercise no influence over one another. A proper separation of powers not only permits but requires that each branch have some substantial beachhead of influence within each of the other branches:

Unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim [that powers must be separated] requires as essential to a free government can never in practice be duly maintained . . . . It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it . . . . Will it be sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?

This passage is the indispensible context – the “backstory,” as they say in Hollywood – for understanding the much more famous Federalist #51.

In #47 and #48, Madison shows that “pure” separation of powers is insufficient. In #49 and #50 he considers and rejects Jefferson’s position that government encroachments can be resisted by frequent appeals to the people. In #51, he draws the conclusion: true separation of powers requires not that powers be totally separate but precisely that they must be separated and then mixed or blended:

As all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places . . . . The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.

Whereupon he launches into the famous passage about ambition counteracting ambition, etc.

The real argument of Federalist #51 is not that we need a separation of powers – that argument comes in #47 - but that we need a certain kind of separation of powers. Specifically, the kind that allows each branch to have some power over the other branches.

Now, obviously this is all in the context of the separation of legislative, executive, and judicial powers, not the division of powers among local, state, and federal governments. But it seems obvious to me that the same principle applies – it would be dysfunctional for each level of government to have no influence over the others.

Of course, most of the founders did not envision the federal government influencing states and localities by offering them money. But it was always one of the very few great weaknesses of the original Constitution that it failed to clearly deliniate the boundaries of local, state, and federal responsibilities, and to provide institutional mechanisms to shore them up. It seems to me that in the phenomenon of what might be called “conditional federal subsidies,” like NCLB, we have stumbled unwittingly into a not-too-bad mechanism for allowing the federal government to influence states without directly taking over their operations.

As I said, there are legitimate criticisms of NCLB. The 100% proficiency promise is absurd. My own position has always been that the really valuable contribution of NCLB has been the mandate for transparent data reporting and testing.

But to say that it violates federalism to have the federal government attach conditions when it offers subsidies strikes me as not only incorrect, but an open door to unchecked power for “local” constituencies like the unions.


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