22. January 2006 · Comments Off on How Bush v. Holmes Screws Florida Kids · Categories: General, Politics

This from Richard A. Epstein at the UChiLaw blog:

The battle between [free market and socialist] points of view, and the interest groups that they represent, took an odd turn recently n Bush (as in Governor Jeb) v. Holmes. There the Florida Supreme Court held that the state constitutional provision requiring the state to provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education” knocked out the state’s Opportunity Scholarship Program that allowed students in failing schools to use state funds to pay for a private education. The case shows what bad interpretation can do for unwise constitutional provisions.

On the question of constitutional design, Florida’s uniformity clause teaches many unhappy lessons. The first of these illustrates the danger of adopting hortatory constitutional provisions that promise particular level of state services as opposed to the allocation of powers and responsibilities that are the traditional fare of most constitutions. These Soviet-style provisions of positive rights are always honored more in the breach than in the observance, for there is no way that any constitutional document can guarantee the supply of the need level of resources or expertise, let alone the desired level of services.


Second, the Constitution provides no hint of what should be done in the event that this guarantee is not kept, so that in most cases it operates solely on a precatory basis.


The last feature of Bush v. Holmes that is so distressing is its ready embrace of the story that the use of voucher programs necessary diverts needed resources from the public school system.

Read the whole thing. It is popular fallacy among liberal commentators to claim that conservatives are, by definition, rigidly doctrinaire, while they “have the flexibility” to change course, and choose the best path. Their fealty to the public school plantation gives lie to this. Across the nation, voucher programs have proven to provide better education for more children.

Hat Tip: David Bernstein at Volokh

Comments closed.