It’s been 228 years since Alexander Hamilton, seeking to
allay fears that the national judiciary would swallow up the other two branches
of government, wrote in The Federalist Number 78 that the Supreme Court, provided it observed what has come to be known as the
separation of powers, would under the
Constitution be “the weakest of the three departments of power; that it can never attack
with success either of the other two; and that all possible care is requisite
to enable it to defend itself against their attacks. It equally proves, that
though individual oppression may now and then proceed from the courts of
justice, the general liberty of the people can never be endangered from that
quarter; I mean so long as the judiciary remains truly distinct from both the
legislature and the Executive.”
The Supreme Court has long far exceeded Hamilton’s modest
expectations, and appellate courts have followed suit. A headline in the
Hartford Courant demonstrates how far courts have progressed since Hamilton’s
day: “Lawmakers Scramble To Craft Response To Judge's Education Ruling.”
Cracking his judicial whip, Superior Court Judge Thomas
Moukawsher has ordered Connecticut’s General Assembly to implement his prolix 254 page education manifesto in 180 days. Following the decision, the New
London Day observed that the judge “has ordered the state legislature to fix
everything he has concluded is wrong with the state’s public education system.
It has 180 days. And if the judge is not satisfied, lawmakers will have to get
back to work to fix it right.”
The members of Connecticut’s General Assembly, 187
thoughtless cowards in a teacup, are not at all concerned that judicial orders
of this kind impinge on legislative prerogatives, but then it has been years
since our politicians, many of whom are also lawyers, have revisited the
Federalist Papers or the Connecticut and Federal Constitutions. Consequently,
the central observation outlined by Hamilton – that a constitutionally weakened
court can never endanger the general liberty of the people, provided the judiciary
remains truly distinct from both the legislature and the Executive –
likely is of little interest to members of the General Assembly or the state’s
Judiciary.
The judge’s decision has kindled a brush fire between
Governor Dannel Malloy and Democratic leaders of the General Assembly. “Governor, speaker argue over ruling on school funding,” noted the Waterbury Republican American.
“I think the judge has pointed out the failure of the
legislature to do things that they could have done,” said Mr. Malloy. And the
things the legislature could have done were, as it happened, things recommended
by Mr. Malloy. Last April, the governor proposed a plan that would have cut
state Education Cost Sharing (ECS) grants for 28 of Connecticut’s wealthiest school
districts by $32 million and reduce funding for others – while maintaining
current funding levels for 30 Connecticut under-performing public schools. To
put the matter in plain-speak, the governor and the Democratic dominated General
Assembly, some Republicans dissenting, de-financed successful schools while
maintaining current funding levels for unsuccessful schools. Speaker of the
House Brendan Sharkey took umbrage at Mr. Malloy’s recent shot over his bow:
“It was unfortunate that the Governor chose to claim that he is the champion on
this issue and blame the legislature for not following his lead,” said Mr.
Sharkey.
It is crucial to point out here that instituting a system in
which education dollars follow students easily might satisfied the concerns of
all parties, while at the same time improving public education. If parents
rather than judges and legislators were given the opportunity to decide which
schools should be financed with their own tax dollars, the allocations would flow
to successful schools – which would engender superior performance in all public
schools, especially in urban pedagogical traps where students have been forced
for decades to endure inferior educations. Parents ordinarily would not use
their hard earned money to purchase rotten peaches for their children’s school
box lunches; why should anyone -- including governors, legislators and judges –
suppose they would be less discriminating when purchasing an education for
their children?
All political issues ultimately may be reduced to two
questions: 1) what should be done? and 2) who should decide what should be
done? Hamilton’s answer to the second question is much different that of the
average judge.
In the present case, Judge Moukawsher has decided he should
determine the allocation of educational funds, the legislature having failed to
disburse educational dollars equitably. But equitable funding does not assure
quality education. If such were the case, the under-financed Amistad Academy in New Haven and other under-celebrated Achievement
First charter schools in Connecticut and elsewhere could not
provide for inner city students an education that is by all measures much
superior to that supplied by failing schools that draw from the same pool of
students.
It’s long past time for legislators to put on their thinking
caps and do something precious and valuable for inner city students. Emoting
and political posturing is rarely helpful, whether done by preening
legislators, editorial writers or judges.
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