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US Department of Education

Forums: Constitution, 10th Amendment Education
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jc9464
 
Reply Mon 23 Dec, 2013 12:57 pm
A simple specific question. How can the US Department of Education be Constitutional ? It's existence is not enumerated in the Constitution, therefore, according to the 10th amendment, it's powers belong to the states.
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Type: Question • Score: 5 • Views: 1,222 • Replies: 11

 
maxdancona
 
  3  
Reply Mon 23 Dec, 2013 01:00 pm
@jc9464,
Read for yourself.

http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution
0 Replies
 
Brandon9000
 
  1  
Reply Mon 23 Dec, 2013 01:22 pm
After the Constitution was written, the states had misgivings about ratifying it, some more than others. To allay their fears, they were promised that they would retain a considerable amount of autonomy.
0 Replies
 
Frank Apisa
 
  2  
Reply Mon 23 Dec, 2013 01:35 pm
@jc9464,
jc9464 wrote:

A simple specific question. How can the US Department of Education be Constitutional ? It's existence is not enumerated in the Constitution, therefore, according to the 10th amendment, it's powers belong to the states.



A simple specific answer to your simple specific question:

It can be Constitutional by virtue of the fact that the Supreme Court has not ruled that it is not Constitutional.


That power of the court, by the way...is not found in the Constitution either.

I wonder...

...would SCOTUS accept a case contesting its right to rule on the Constitutionality or non-Constitutionality of the laws the congress passes...or departmental creations and administrators of departments the Executive branch creates?
0 Replies
 
boomerang
 
  1  
Reply Mon 23 Dec, 2013 05:18 pm
The best explanation I've found is this:

Quote:
The Tenth Amendment to the United States Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Since education is not mentioned in the Constitution, it is one of those powers reserved to the states. Of course, the United States Supreme Court can declare that something not mentioned in the Constitution is so closely related to something that is mentioned in the Constitution that the unmentioned power is a fundamental interest, which rises to constitutional protection. So far, the Supreme Court has not declared that education is a fundamental interest. Thus, states have plenary, or absolute, power in the area of education.

However, the Constitution still has an effect upon public education in the United States. The Fourteenth Amendment to the Constitution, which was ratified in 1868, contains both the due process and equal protection clauses, which concern state action in these two areas. The effect of the due process clause is described in Basic Due Process for Pennsylvania Students and Basic Due Process for Pennsylvania Educators. The equal protection clause is involved in issues of race, ethnicity, national origin or sex when there is a question of discrimination. The United States Supreme Court has also used the Fourteenth Amendment to apply other amendments to action by the fifty states. The most important amendments concerning public education, which are applied to state action under the umbrella of the Fourteenth Amendment, are: (1) the First Amendment in terms of the religion clauses, speech and assembly; (2) the Fourth Amendment in terms of search and seizure; and, (3) the Eighth Amendment in terms of cruel and unusual punishment. A student or teacher who feels that one of these rights guaranteed by the U.S. Constitution has been infringed may bring an action in a federal court.


I have heard some rumblings that Common Core might be challenged under the 10th amendment.
maxdancona
 
  2  
Reply Mon 23 Dec, 2013 05:59 pm
@boomerang,
The Education Department exists under the Commerce clause, Article 1 Section 8.

This is an old fight.
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Jack of Hearts
 
  1  
Reply Thu 26 Dec, 2013 06:17 pm
@jc9464,

U.S. Constitution - Article I, Section 8,
Clause 1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Congress shall have Power To...provide for the...general Welfare of the United States.

Yes, a catch-all phrase - abused to no end.
OmSigDAVID
 
  2  
Reply Sat 28 Dec, 2013 09:30 pm
@Jack of Hearts,
Jack of Hearts wrote:


U.S. Constitution - Article I, Section 8,
Clause 1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Congress shall have Power To...provide for the...general Welfare of the United States.

Yes, a catch-all phrase - abused to no end.





Jack of Hearts wrote:


U.S. Constitution - Article I, Section 8,
Clause 1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Congress shall have Power To...provide for the...general Welfare of the United States.




Yes, a catch-all phrase - abused to no end.
Parse the sentence accurately:
it grants power to TAX not authority to control
the citizens, for the general welfare.

The American Revolution was a LIBERTARIAN Revolution.
Thay cared about liberty
and thay knew that it comes from domestically feeble government.





David
Jack of Hearts
 
  1  
Reply Sun 29 Dec, 2013 02:29 pm
@OmSigDAVID,

David, if that were the case, we couldn't use conscription to provide for the common defense.
OmSigDAVID
 
  1  
Reply Wed 1 Jan, 2014 08:49 pm
@Jack of Hearts,
Jack of Hearts wrote:


David, if that were the case, we couldn't use conscription
to provide for the common defense.
No. That is a separate and distinct power "To raise and support Armies"
set forth elsewhere in Article I Section 8.
Jack of Hearts
 
  1  
Reply Thu 2 Jan, 2014 10:31 am
@OmSigDAVID,

Article I Section 8 - Last line: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,
David, do not laws "control" people force them to act in a certain way?
OmSigDAVID
 
  1  
Reply Thu 2 Jan, 2014 10:41 am
@Jack of Hearts,
Jack of Hearts wrote:
Article I Section 8 - Last line: To make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers,
David, do not laws "control" people force them to act in a certain way?
Thay can do it in furtherance
of a specific delegated power, e.g. the power to tax.

Some libertarians question and pose a challenge to the
power to raise armies by conscription (as distinct from enticement).
I do not know what was in the minds of the Authors
when thay wrote that. I can see that either way.
I have no opinion qua the historical merit of the challenge.





David
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