“The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised.”--Sen. John C. Calhoun

At the risk of appearing crude, the passage of time and the recurrence of certain philosophical debates in American politics lends credence to describing the politics du jour as “new ideas that amount to the same old s***”. Perhaps more than any other issue can this more illustratively be said than the question of American federalism and the continuing debate over the nature of “states’ rights”. This month the Congress, rather under the radar of the American people, has debated the highly controversial No Child Left Behind Act, set to expire on September 30. Passing the Congress by wide margins in 2002, the bill established federal standards for “adequate yearly progress” in reading and math proficiency as well as teacher qualifications as conditions for retaining federal funding to public schools.

Shielded by public interest over the Petraeus Report, No Child Left Behind (also known by its acronym ‘NCLB’) faces attacks from all sides of the political spectrum, a far cry from its original consideration and enactment, with Ted Kennedy (D-Mass.) standing behind President George W. Bush at NCLB’s signing. Rank and file Republicans have attacked the bill’s stringent proficiency requirements as unreasonable and possibly unconstitutional violations of the states’ authority to set its own standards of excellence and progress. Conservative opponents of the bill are joined by teacher’s unions who cite NCLB’s rigorous standardized testing requirements as “one size fits all” teaching. Many states have lamented the federal government’s failure to fully fund certain programs and adjustments implemented by the bill, and are threatening legal action against the federal government in response to these failures. Meanwhile, states that Bush solidly carried in the 2000 and 2004 elections, like Utah and Texas, are openly defying NCLB’s requirements in an attempt to restore state control over public education.

Why the revolt over what was once considered a necessary, important bill by Republicans and Democrats alike? Is the bill really as bad as its critics make it out to be? Is NCLB constitutional? And given the answers to these questions, should we really be surprised by the hand-wringing and grandstanding we are seeing from the White House and the Congress five years after NCLB’s enactment? As we will see, the answers to these questions and the reality of this generation’s greatest states’ rights conflict reveal that No Child Left Behind has set back real education reform for years and has left liberty, common sense and billions of taxpayer dollars behind, in addition to millions of America’s children in our public schools.

No Accountability: How Washington Learned to Stop Worrying and Love the Unfunded Mandate

I won’t be naïve and presume that Congresses of the past were that much less egotistical than the current batch of alleged leaders in the House and Senate these days. However, after the New Deal and the Great Society eras, the American people have come to expect their Congressmen and Senators to find ways to get the federal government to solve any problem imaginable, from erecting a bridge to a town of fifty people in Alaska to nationalizing public education. When faced with this collective voter mentality, your average Washington lawmaker is more than happy to oblige his constituents with pork projects, “reform” bills and block grants to the district or state, knowing that his reelection hopes becomes more secure and his influence on the Hill will grow.

There are some very serious consequences of this new development in how Congress works for voters and what voters expect from Congress. First and foremost, the Congress is granted carte blanche power to legislate in an unconstitutional manner by funding programs and projects defined by the Tenth Amendment of the Constitution as powers “reserved for the States respectively, or to the people”. Second, and more important from a practical standpoint, it fosters a growing sense of dependency among state and local governments on federal revenue for public education, infrastructure, healthcare and security. Finally, it results in ballooning federal budgets and feeds the so-called “culture of corruption” that greases the wheels of legislative activity in Washington today.

Consider all of these realities and we can begin to understand Congress’ love affair with the so-called ‘unfunded mandate’. An unfunded mandate is a federal law that demands the states comply with its provisions, but Congress appropriates no funds to assist the states in achieving compliance. In fact, some bills additionally prescribe penalties to states that do not comply with the laws requirements in a certain period of time, such as loss of federal aid to select programs. NCLB exemplifies unfunded mandates, requiring that schools meet ‘adequate yearly progress’ (AYP) benchmarks in standardized tests in reading and math and hire only ‘highly qualified’ faculty, otherwise after five years of inadequate progress, will lose federal funding and shut down, unless a private contractor buys out the school.

Unfunded mandates like NCLB have several guaranteed benefits for federal legislators. First, it requires absolutely no financial or political risk on the part of the Congress to prescribe them. With the burden of implementation for NCLB resting in the states, Congressmen take credit for supporting the bill and any success it brings about, and retain the right to blame the states for “gaming the system” or not meeting NCLB requirements if it fails to help their constituents as promised. Second, unfunded mandates are almost always obeyed by the states, guaranteeing Congressmen who support them a sense of “accomplishment” they can present to voters come election season. When faced with the possibility of losing potentially tens of millions of dollars in federal aid for essential educational services, state and local governments would look either arrogant or just plain stupid to flout NCLB’s provisions, even in the name of noble goals like fiscal responsibility and states’ rights.

Ripped From the History Books: The Importance of Renewing Constitutional Federalism

Federalism is not a sexy topic, and 142 years of basking in the glow of Appamattox has given terms like ‘states’ rights’ and ‘nullification’ a bad name, and not for entirely unfounded reasons. Opponents of NCLB are not too keen on being paralleled to John C. Calhoun and Orval Faubus in the fight to scrap the law. Yet there is something to be said about the legal and philosophical reasoning behind the desire to let NCLB expire and the connections that can be made with the debate over American public education and the fights over slavery and popular sovereignty. While Calhoun and his Southern allies rightly proved to be on the wrong side of history in their defense of slavery, their concern for the unchecked expansion of federal authority remains warranted and relevant in the present day and in the years to come.

President Bush can talk about America “demanding accountability” from our schools and teachers until his face turns purple. Unlike “stay the course”, it’s a message that the American people can and do get behind. But when the talk is put into action and we have to assess what went wrong, as is now happening with the No Child Left Behind Act, we need to do more than look for compromise proposals, as the Congress is doing to “save” the law. We need to face the facts about what the bill has actually done for America’s children, and what the American people need to do in a world without NCLB if such a fortunate event were to occur.

NCLB would never have been conceived in the first place if parents and school administrators were not demanding the accountability from teachers and schools that the law purports to demand. A little bit of civic engagement can go a long way in making sure schools are up to snuff, in addition to a little bit more parental engagement of our children. These are root causes of poor school performance from New York City to Elkhorn, Iowa (population <900). Social apathy is a problem that no amount of government money will ever remedy But until we as citizens, taxpayers and parents demand accountability from our schools and our politicians, we can expect Congress to keep trying to solve all of America’s problems, then blame and punish local governments for not doing what they’re told.

The Tenth Amendment gives our state governments and we the people the power to do what is right and what is best to educate children. It’s time we recognized and exercised that right, not allow the federal government to throw our local leaders over a chair every time our Congressman needs to flesh out his or her reelection platform. Our children’s education is far too important to not take responsibility for it as the Constitution requires us to. Otherwise, we surrender both our individual rights and our children’s future into the hands of the folks on Capitol Hill. And as we have seen in the five years since NCLB’s enactment, those are two things that we must never surrender, lest we grapple with an emboldened federal government, crippled and exploited state and local governments, and millions of schoolchildren and 226 years of guaranteed constitutional rights left behind.

In the next installment of this series, the practical impact of post-9/11 federal security measures on individual liberties will be examined.