Freedom Rings for Wrong Reasons

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The usual suspects are, of course, crying over the Florida Supreme Court’s striking down of that state’s school voucher program. Libertarians, meanwhile, are glad to see any voucher program abolished.

That said, the Florida Supreme Court’s decision is, as you might imagine, terrible. They had two ways they could have struck down the statute, and they chose the stupid way. The other way they could have gone — applying Florida’s so-called "Blaine Amendment" — would have been a fine, entirely libertarian ground for abolishing the voucher program. Indeed, as we’ll see below, the "Blaine Amendments" in various states’ constitutions — though much decried by certain self-styled libertarians — are, in fact, entirely libertarian and an excellent means of combating the voucher menace.

The Florida Decision

The grounds on which the Florida Supreme Court rested its decision are, to say the least, indubitably dubious. Florida’s voucher program allowed students in "failing" government schools to take the money that was being spent on them at their government school and spend it at a state-approved private school. The Court held that this violated Article IX, section 1, of Florida’s constitution, which provides:

The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made 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. . . . (emphasis added).

The Court held that when the legislature takes money from government schools to give it to private schools, it "undermines the system of ‘high quality’ free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida."

What a joke! First, of course, there is the doubly oxymoronic phrase "’high quality’ free public schools." And in any event, how can we know that taking a proportional amount of money away from the government schools for students they no longer have to teach will undermine the quality of the remaining students’ education? But the court was not joking; it was dead serious.

The Court also held that giving government money to private schools through the voucher program would violate the Florida constitution’s mandate for "uniform" schools. After all, said the Court, government schools are required to teach, among other things, "African-American history, the history of the Holocaust, and the study of Hispanic and women’s contributions to the United States," and private schools are not. Of course, you know what that means: next time the voucher advocates will have to make sure private schools are legally forced to teach that stuff. And isn’t that part of what their little statist stunts are about?

There was more, but you get the idea: the justices in the majority didn’t like the program to the extent that they, like the hysterical teachers’ unions, believed it would undermine the state’s education monopoly. The irony, of course, is that leftist voucher opponents are wrong — vouchers would, over the long run, turn private schools into "uniform" government schools, as I explained in "Independent Schools at Risk."

The "Blaine Amendment": The Libertarian Alternative

The plaintiffs in this lawsuit challenged the voucher program on two grounds: the silly one we’ve just discussed and the ground that the voucher program violates Article I, Section 3, of the Florida constitution — otherwise known as the "Blaine Amendment." It provides:

There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. (emphasis added).

What libertarian could possibly object to the last sentence? It simply tells the government, in no uncertain terms: no spending on this! As far as genuine libertarians are concerned, constitutions need as many spending limitations as possible.

Yet the DC faux libertarian crowd hates this provision and others like it around the country. In its brief, the Institute for Justice — which represented one of the welfare voucher recipients in the Florida case — tries to argue that the words “directly or indirectly” are somehow ambiguous and the state really can give money to “sectarian institutions,” as long as it channels it through students. But given that the students can only spend their voucher money at a state-approved list of schools — including religious schools — that sure seems like indirect aid to religious schools to me.

Elsewhere, Establishment libertarians condemn Blaine Amendments, because they’re allegedly the product of bigotry (that most heinous of all possible crimes, which we all know is worse than statism) against Catholics. And that is, to an extent, true. The man who inspired them, James Blaine (1830—1893), fought for a similar amendment to the United States constitution. The proposed federal amendment failed, but most of the states subsequently passed "Blaine Amendments" of their own. And in some cases, the Amendments were supported by anti-Catholic evangelical Protestants.

Well, so what? If Catholic schools were, in fact, trying to get their hands on government money, well, then — though I have little but admiration for the Catholic Church — thank God for Blaine Amendments.

Of course, many of the Blaine Amendments’ supporters didn’t just want to keep government money out of the hands of Catholics, but specifically out of the hands of immigrants who happened to be Catholic. And what’s wrong with that? I thought even open-borders libertarians wanted to restrict immigrants’ access to welfare benefits for obvious reasons.

Anyway, if an existing law achieves good ends, who cares what originally motivated it? It is a fallacious ad hominem argument to say that Blaine Amendments are bad because some of their supporters were bigots. Good legal interpretation is a matter of looking at a text’s plain meaning — not judging the authors’ (or, more ridiculously, the supporters’) feelings. And to have success on any political issues, libertarians will have to side, from time to time, with individuals motivated by something other than a pure love of liberty for liberty’s sake. So what? Besides, it’s not as though Blaine Amendments remain on the books because of anyone’s anti-Catholicism.

So, seriosos, get over it. Blaine Amendments are nothing if not libertarian. Rather than try to abolish them across the land — as Clint Bolick of the Alliance for School Choice has stated is his goal — libertarians should seek to enforce them and see them enacted in even more states, to curb government spending and keep the state’s hands off private schools to the maximum extent possible.

Conclusion

Florida is fortunate to be free from vouchers, even if cursed with a lousy Supreme Court. As the voucher wars move on to other states, libertarians should look carefully at what the law really says, and remember that all government spending is bad government spending.

J. H. Huebert [send him mail] an attorney and an adjunct faculty member of the Ludwig von Mises Institute. Visit his website.

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