Texas School Policies Violently Enforced: Police in Schools

An organizational policy, whether in an educational, religious, or business organization, is not law. Accordingly, “police tactics” are inappropriately used on people who violate policies. The proliferation of off-duty police officers in retail in more than one of the U.S. states (and perhaps in the E.U. as well), complete with lethal weapons, renders the distinction between policy and law especially relevant and even pressing. To be sure, trespassing is indeed a crime, even though some municipal police departments in Florida have refused to recognize it as such, as, for example, when a property owner illegally enters a rented apartment, but in a store, absent a decision by a manager to have a person removed from the premises, store “police” cannot legally act violently against the public as long as no crime is being committed—even if a store policy is being violated.

Since the killings at Robb Elementary School in Uvalde, Texas in 2022, school districts in Texas “spent billions of dollars to station police officers” in every school.”[1] Crucially, the intent was “to protect students from similar tragedies.”[2] It is therefore more than unfortunate that school administrations, including local school boards, have allowed even elementary-school aged children to be subjected “to heavy-handed police tactics for behavior that once would have landed them only in the principal’s office.”[3] A principal is the head of a school. “Children in elementary school, including one as young as 6, were handcuffed. Teenagers were arrested, charged with crimes and even jailed. In the most extreme cases, they would up in hospitals, bruised or concussed, after being body-slammed or shocked by Tasers, which [were at the time] prohibited in [Texas] juvenile detention facilities but allowed in public schools.”[4] Under those circumstances, parents could hardly be blamed for yanking their kids out of public schools, preferring private schools, religious or secular, instead. In one public school, a student caught with a vape at school was “smashed into a wall” by an “officer,” another kneed a student in the face for fighting with a classmate, and still another animal (i.e., “officer”) slammed a student “into a metal cart” intentionally.[5] Admittedly, the student kneed and the one slammed were in the midst of physically fighting with other students, so some physicality was justified in order to break up the respective fights; it is the excessive violence that calls into question to motives of the police in the school hallways. For instance, the intent to severely harm out of sheer anger and even the intent to instill a sense of guilt in the respective students can both be subjected to harsh critique.

In his text, On the Genealogy of Morals, Friedrich Nietzsche suggests that punishment originally arose in ancient (and prehistoric) times so the punisher could feel pleasure from inflicting pain in another person, rather than to instill a sense of moral responsibility or deter bad behavior in the future. Nietzsche argues that this original intent, or purpose, was still in force among European parents in his own adult lifetime in the mid-to-late 1800s (before he went mad in 1890).  Kneeing a student in the face and slamming a student into a metal cart are so extreme that it can indeed be wondered whether the culprits (i.e., the “officers”) were not at least partially motivated by such pleasure. Nietzsche goes on to point out that if political, economic or any other kind of elite are getting away with the exact behavior that is subject to punishment if done by other people, no sense of guilt arises from such dogmatic inflictions of pain otherwise known as punishments. Nietzsche argues that if a criminal “sees exactly the same kind of actions practiced in the service of justice and approved of and practiced with a good conscience: spying, deception, bribery, setting traps, the whole cunning and underhand art of police and prosecution, plus robbery, violence, defamation, imprisonment, torture, murder, practiced as a matter of principle and without even emotion to excuse them, . . . all of them therefore actions which his judges in no way condemn and repudiate as such, but only when they are applied and directed to certain particular ends” then no sense of guilt will arise when those actions are punished.[6] The violence of the police in the schools in Texas de facto nullifies any intended message sent by that violence qua “punishment” that violence is wrong. In fact, it might even be that the students in physical fights at school may grow up to be hired by cities as police! As such, those kids, as police “officers,” could be expected to be unnecessarily violent precisely because the use of violence in school beyond the authority of the police stationed there nullified any “lesson” that violence is wrong and therefore violent people should feel guilty, for presumably none of the police in the schools felt ashamed of themselves, and punishment inflicted on them would not have had such an effect if those police could in turn remember violence having been orchestrated by their bosses and even the impunity that those officials received from political or judicial officers of government.

What then can we expect as to how the kids in the schools were affected by the police brutality? According to Nietzsche, “Generally speaking, punishment makes men hard and cold; it concentrates; it sharpens the feeling of alienation; it strengthens the power of resistance.”[7] None of those can be favorable to being open to learning, so the activity of the police inside the schools beyond stopping mass shootings is contrary and thus detrimental to the mission of a school, which is to educate by imparting knowledge from teacher to student. Incidentally, it can’t be that the teachers feel comfortable being in the schools in which police are body-slamming students for carrying vaping equipment (perhaps a student is having trouble quitting smoking cigarettes, in which case vaping should be encouraged when the student feels very tempted to smoke). The result of such violent over-reaches on kids in Texas can be expected to include no longer feeling safe in their respective school hallways—not just because mass-killings have occurred in American schools, but also, and perhaps even more so, because the police installed in hallways have over-reached so from their purpose being to guard and protect students from external physical threats.

That school principals and even school boards have either given their consent or ignored the over-reaches renders those officials culpable as well. Prudent parents who love their children would be justified in voting to replace entire boards, which in turn would presumably be disposed to fire school principals who would rather than their respective students beaten up by police even for vaping than have teachers send students to the principal’s office. Police have no business enforcing school policies because policy is not law, and human beings with the means of greater power over other humans are too inclined to use it.

As Lord Acton famously wrote in 1887, “Absolute power corrupts absolutely.” For an organization’s management to place police rather than unarmed security guards in a position of enforcing policies is to inappropriately tempt abuses of power that cannot be said to come rightly under authority. For power sans authority can be understood to be in line with Hobbes’ description of the state of nature prior to any social contract historically. As another saying goes, give a human being an inch and a mile will be taken. Or, give someone a few centimeters and a kilometer will be taken. Take your pick, but don’t over-reach even though doing so seems to be hardwired into the human psyche, which, after all, can be said to be human, all too human. Such an innate proclivity should not be tempted whether in a managerial decision or in institutional arrangements that allow for the exploitation of an institutional or personal conflict of interest.

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1. Claire Amari, Kristian Hernandez, and Asher Lehrer-Small, “At Texas Schools, Pepper Spray and Tasers,” The New York Times, May 30, 2026.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Friedrich Nietzsche, Genealogy of Morals, in Basic Writings of Nietzsche, Trans and Ed., Walter Kaufmann (New York: The Modern Library, 1968), Second Essay, sec. 14, p. 518.
7. Ibid, p. 517.

Texas Overreaching

With enough Democratic members of the Texas House of Representatives staying in Illinois and New York as of August 3, 2025 that the legislative chamber could not reach a quorum and thus be able to hold a vote on a Congressional redistricting plan that could gain the Republic Party five more seats in the U.S. House of Representatives, Greg Abbott, who at the time was Texas’ head of state and head of the executive branch, was considering various options to bring the lawmakers back. That only one of those options was legal points to the importance of the rule of law being applied to government officials.

The most egregious option, legally speaking, had been proposed by the Attorney General, Ken Paxton, who wrote, the “cowards should be found, arrested, and brought back to the Capitol immediately.”[1] In other words, police whose jurisdiction is limited to Texas would be able to have the jurisdiction expanded by Abbot. “He has no legal mechanism,” Rep. Jolando Jones, one of the departed Texas lawmakers said; “Subpoenas from Texas don’t work in New York, so he can’t come and get us. Subpoenas in Texas don’t work in [Illinois].”[2] The Texas Supreme Court had ruled in 2021 that leaders of the House of Representatives had the authority to “physically compel the attendance” of missing representatives, but not even a decision by Texas’s Supreme Court can reach into Illinois or New York; only the U.S. Supreme Court has jurisdiction throughout the bloc.[3] Hyperextending police-power in Texas beyond even the jurisdiction of the Texas Supreme Court would set a bad precedent that could be used even to cover police brutality. That the Attorney General of Texas suggested the blatantly illegal usurping of Illinois’s retained sovereignty by extending that of Texas is itself troubling. In a federal system, it is necessary that everyone colors within the lines.

Abbott was also considering what was only “a nonbinding legal opinion issued by Republican Attorney General Ken Paxton that suggested a court could determine that a legislator had forfeited {one’s] office.”[4] Based only on Paxton’s legal opinion, Abbott said he would “begin trying to remove Democratic lawmakers from office.”[5] Presumably he would make the request to a judge rather than remove the lawmakers by his own authority, which again would be illegal even by Paxton’s reasoning.

The only option backed up by extant law that Abbott was considering is fining the absent lawmakers $500 a day, though even that option was being twisted by Ken Paxton, who was running for the U.S. Senate at the time. He “suggested that lawmakers may have committed felonies by raising money to help pay for fines they could face.”[6] So it was apparently illegal to have someone one pay one’s fine. Be careful in Texas if a friend or relative, or even a charity organization, is willing to pay your traffic ticket; you may be committing a felony, which, by the way, is a type of federal law. Perhaps Paxton was actually positioning himself for, or worse, already saw himself, as the U.S. Attorney General rather than a U.S. senator.

That the options that Greg Abbott, the figure-head and chief executive of the Texas government, was considering tended to push beyond what was legal at the time is itself worthy of noticing, for such power-aggrandizement by a member-state in a federal system can, if it were to spread, doom that system as state governments turn on each other and the U.S. president takes sides, thus undercutting that presiding role.

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1. Joey Cappelletti and Andrew DeMillo, “Texas Governor Threatens to Remove Democrats Who Left State over Trump-backed Redistricting,” The Associated Press, August 4, 2025.
2. Ibid.
3. I am using a word that is popular in the E.U. for a federal system in which governmental sovereignty is split between a union and states. In truth rather than ideology, “bloc” applies neither to the E.U. or U.S.
4. Joey Cappelletti and Andrew DeMillo, “Texas Governor Threatens to Remove Democrats Who Left State over Trump-backed Redistricting,” italics added for emphasis.
5. Ibid.

6. Ibid.

Hungary and Texas: Busing Immigrants

Two years after the government of Texas in the U.S. began transferring migrants to other states and to Washington D.C., the government of Hungary announced that it too would bus migrants, but rather than transporting them to other states, the destination would be Brussels exclusively. Although the respective political strategies differ, the two policies both represent the same pressure point in federal systems. The cost of united action at the federal level on public policy is that the states are not as free as otherwise to manifest their respective ideological and cultural views in public policy at the state level. That federal policy or law is often a compromise between the preferences of the states means that political pressure exists not only between states, but between a given state and federal law. This is inherent to federalism because it provides benefits from united action and some ability of states to enact legislation reflecting their respective distinct dominant ideology. Enabling both is one of federalism’s best features, yet it comes with a cost in terms of political tension that is endemic rather than merely episodic. Simply put, no system of government is without drawbacks or downsides. The trick is perhaps in how to manage them so they don’t get so out of control that the federal system itself collapses. In 2024, Viktor Orbán, governor of the E.U. state of Hungary, was testing the limits much more than was Greg Abbott, governor of the U.S. state of Texas, even as Orbán was using Abbott’s playbook.

In June, 2024, the E.U.’s supreme court, the European Court of Justice, handed down a ruling ordering the E.U. state of Hungary to pay a fine of €200 million for breaking federal laws on asylum plus an additional €1 million per day until the state government passes a law conforming with the federal law.[1] Hungary’s requirement that people seeking asylum must first apply for and be granted travel permits violated the federal law requiring that all of the states have the same procedures for granting asylum. Setting up a confrontation with the high court, essentially challenging its very legitimacy, the Hungarian government “missed the first September deadline for paying the €200 million fine.[2] In fact, the state “also demanded compensation for the billions it says it has spent on border protection, including constructing fences protected by razor wire on its southern borders with Serbia and Croatia.”[3] In other word, the state government wanted to be reimbursed by the E.U. for costs incurred by the state to protect the E.U. border that runs along an edge of the state. Thus situated, Hungary is like Texas. Ideologically too, Hungary’s governor was quite similar to the governor of Texas at the time, Greg Abbott.

In fact, Vicktor Orbán likely got his idea to send illegal immigrants from his state to Brussels from Greg Abbott, who had spent more than $148 as of February 21, 2024 in putting more than 102,000 illegal immigrants on buses bound for other states and Washington, D.C.[4] Texas also spent $10 billion on law enforcement and constructing physical barriers at the U.S. border that runs along the edge of Texas, though reimbursement by the U.S. was not demanded.[5] At a news conference at the state capital Budapest, Hungary’s State Secretary Bence Rétvári accused the E.U. in 2024 of wanting to force the state to allow illegal immigrants into the state, and announced that the state government would “offer these illegal migrants, voluntarily, free of charge, one-way travel to Brussels.”[6] He made the announcement in front of a row of passenger buses that would be bound for the E.U. “headquarters in Belgium.”[7] He said, “If Brussels wants illegal migrants, Brussels can have them.”[8] Interestingly, Texas could have had the same strategy: instead of sending buses to lax states as well as to Washington, D.C., all of the buses could have dropped off their passengers at the Washington Mall—at the U.S. headquarters—as Abbott had been so critical of U.S. immigration policy.

Both cases—that of Hungary and Texas—demonstrate what can happen when state governments in a union differ on a matter of public policy not only with each other, but also from a federal policy or law. The degree of unity that is necessary for a union to continue to exist and function viably comes at the expense of ideological differences between states. This tension is endemic to federalism, as that system of government allows for cultural or ideological diversity between states and benefits to the whole that the combined forces of an empire-scale union can provide. In the E.U., the Hungarian government was quite critical in 2024 of Germany’s more lenient practice in allowing migrants to enter the state, yet at the same time the united force of the E.U. was able to give Europeans more power in resisting Russia’s invasion of Ukraine.  In the U.S., the Texan government was critical of California’s “sanctuary cities” in which illegal aliens were not arrested by state police, yet at the same time the united force of the U.S. was also able to stand up to Russia’s president’s militaristic foray into Ukraine. Both cases demonstrate federal systems that are “living and breathing,” allowing for differences between states, such as on abortion in the U.S. and social policy in the E.U., while enabling both unions to have a significant impact internationally.

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1. Angela Skujins, “’We Never Let Them In’: Hungary’s PM Viktor Orbán Demands New Laws Tackling Migration,” Euronews.com, September 6, 2024.
2. Ibid.
3. Ibid.
4. Sergio Martinez-Beltran, “Texas Has Spent More than $148 Million Busing Migrants to Other Parts of the Country,” The Texas Tribune, February 21, 2024.
5. Ibid.
6. Angela Skujins, “’We Never Let Them In’: Hungary’s PM Viktor Orbán Demands New Laws Tackling Migration,” Euronews.com, September 6, 2024.
7. Ibid.
8. Ibid.

Can an American Member-State Exit the Union?

A war was fought over it. In early 2013, the White House made it explicit in replying to a petition. Yet still there was a sense among at least some Texans that something was amiss. Following U.S. President Obama’s re-election in 2012, citizens of Texas, Louisiana, Alabama, and five other member-states in the U.S. signed petitions for the White House to allow their respective states to secede from the Union. At the time, few people other than the secessionists themselves took the petitions seriously. Yet the underlying contending principles deserve more serious reflection even if no "exit" is anticipated. Most importantly, the matter concerns how and whether the rights of member-states (and majorities of the people, therein) are to be circumscribed in a federal union that leaves said republics semi-sovereign and with residual sovereignty.

In his reply to the petitions, Jon Carson, director of the White House Office of Public Engagement at the time, argued that the American Founders did not provide a right for states to “walk away” from the Union because it is perpetual. He cited Texas v. White, a U.S. Supreme Court case in 1869 that ruled that individual states do not have a right to secede. The republics constituting the polities within the Union have residual sovereignty yet not the most basic authority, or right, to secede. As a republic is a polity whose political system is that of representative democracy, the right denied would be that of the majority of the people. Hence, Texas v. White can be interpreted as infringing on democratic principles. 

For his part, the communications director for the Texas Nationalist Movement, Jeff Sadighi, pointed to the section of the Texas constitution that asserts Texans have the right “to alter, reform or abolish their government in such a manner as they may think expedient.”[1] To alter or reform the government of Texas refers to the governmental system there presumably by constitutional amendment. Although it is possible that an amendment could allow for a "Texit" from the U.S., typically amendments pertain to a government itself as a political system rather than to relationships with other political entities, even if governmental sovereignty is split. To abolish a standing government is to do just that. Since to avoid a brutish state-of-nature some governance is required, presumably the constitution also gives a right to create a new government. The question here is whether such a government would be bound to the U.S. even if secessionability were part of a new government of Texas.

For an answer, we must locate the term "perpetual union" at the federal level, for the Texas v. White decision relies on the federal insistence that the Union is perpetual--meaning that it cannot be abolished and that member-states cannot secede, or "exit" as per twenty-first century parlance. In 1777, The Articles of Confederation and Perpetual Union were proposed to the 13 sovereign member-states. Ratification concluded in 1781. The treat did not establish a federal government; there was only the Continental Congress wherein delegates from the republics met. Article XIII states that "the Union shall be perpetual." In Texas v. White, the U.S. Supreme Court took this to mean that a member-state could not leave the union. I submit that this inference is fallacious. For the Union itself to be perpetual does not require that no member-state leave the Union; it would not be abolished were a state to "exit." Even had the member-states in the Confederate States of America had succeeded in exiting in the 1860s, the U.S.A. could have continued to exist, minus those states. In short, perpetual does not imply that something remains as it is; rather, perpetual means that the thing itself cannot be abolished.

The most blatant error in Texas v. White is that the Court assumed that The Articles of Confederation were still valid. In 1789, that treaty was replaced by the U.S. Constitution, and no reference to perpetual is in that ongoing document! 

In contrast, the argument against the Texas v. White decision rests on constitutional language. In particular, the 10^th Amendment explicitly refers to the residual (i.e., unspecified, and thus unlimited) powers being held by the states and the people, rather than to the federal government, which includes the U.S. Supreme Court, the Congress, and the U.S .President. The "people" refers both to roles as citizens of the respective states and U.S. citizens. The former implies that the majority of a state's electorate have just as much residual sovereignty as does a majority of the U.S. electorate; the notion of popular sovereignty as the ground of a representative democracy gives a majority foundational authority. So it makes sense that residual sovereignty ultimately belongs to majorities of electorates. In federalism, each citizen is one of two polities--her member-state and her federal government. That the amendment assigns residual sovereignty to the states along with the people implies that the latter have residual sovereignty especially in so far as a person is a citizen of a state. Moreover, the residual sovereignty of a member-state and the people more than outweigh the limited, or enumerated, authority of the U.S. Government, and especially the historical treaty that since 1789 has not been in effect.

The U.S. Supreme Court, a branch of the federal government, reached its Texas v. White decision in spite of the fact that it is so obviously without an ongoing constitutional basis; the Court went instead merely on the stretched assumption that what had been stated in the Articles is somehow to be implied in the U.S. Constitution, which replaced the Articles. The explanation may lie in the Court being caught in an institutional conflict of interest. In short, the head of a branch (or arm, as per The New York Times' terminology on the E.U., which in turn seeks to distinguish itself from the U.S. in part by having arms rather than branches) has an institutional interest in protecting the government or level of government that has the branch or arm over being a level (i.e., unbiased, and thus fair) adjudicator of constitutional conflicts between a member-state (or even the member-states) and the government in which the Court is a part. Americans, and even the world, miss this conflict of interest whose support is in the U.S. Constitution.

It may be that the E.U.'s constitutional language allowing states to secede reflects a more balanced federal system with respect to the states and the Union. In fact, the E.U.'s Supreme Court, the ECJ, has cleverly evaded the conflict of interest that plagues its counterpart in the U.S. by having a given state nominate a state jurist to be confirmed by all of the states. With such a state-based process, the inherent bias of the European Court of Justice toward the E.U. level is institutionally (here, in terms of process) countered such that the state and federal levels have weight. That the U.S. has not learned this point from looking at the ECJ is troubling, as this implies that the U.S. Constitution may not be flexible enough even to be improved.

For more on such conflicts of interest, see Institutional Conflicts of Interest, available at Amazon. For more comparisons of the E.U. and U.S., see Essays on Two Federal Empires, also available at Amazon.

1. Manny Fernandez, “White House Rejects Petitions to Secede, but Texans Fight On,” The New York Times, January 16, 2013.

Luring Business: “Job Creators” in Texas

As of December 2012, Texas was giving out more financial incentives—mainly in the form of tax breaks and subsidies—to business than was any other American state. The government was handing out around $19 billion annually, while at least $80 million was being spent in the U.S. overall, according to the New York Times. Although at the time Texas had half of all the private-sector jobs created in the U.S. during the preceding decade, the Times points to “a more complicated reality behind the flood of incentives.” It cannot simply be assumed that good jobs will be created.

For example, Texas had the third-highest proportion of hourly jobs paying at or below minimum wage. In fact, Texas had the 11^th-highest poverty rate in the union. “While economic development is the mantra of most officials, there’s a question of when does economic development end and corporate welfare begin,” Dale Craymer of the Texas Taxpayers and Research Association said. In other words, one might ask how much the benefits from the financial incentive extend beyond the recipients themselves to the general public and Texas. Even though businesses cite “job creation” as a benefit of government help, one might ask what kind of job as well as how many?

That the government may have been relying on the businesses themselves or their “consultants” even as they would stand to gain suggests that a conflict of interest may have blurred the line between decision-maker and beneficiary. Indeed, political contributions from companies to re-election campaigns may have exacerbated the problem.

For example, Brint Ryan, a tax consultant specializing in finding incentives for large companies, was “a familiar presence at the state comptroller’s office . . . which must sign off on many tax breaks”—potentially blurring the line between beneficiary (agent) and decision-maker. He also donated $250,000 to Gov. Rick Perry’s ill-fated run for the White House. Texas had been largely bereft of financial incentives for big business when Perry became the head of state in 2001. He had smarted when Texas lost out to Illinois on a new Boeing plant and he was not going to repeat that mistake. Years later, he could point to expansions by Facebook, eBay and Apple in Texas. “They’re coming because it is given, it is covenant, in these boardrooms across America, that our tax structure, regulatory climate and legal environment are very positive to those businesses,” he said. This does not mean, however, that they deliver on well-paying jobs for Texans. There is also the opportunity cost to the government. As Texas spent more to lure big business, the education budget took a hit. Brint Ryan may have had Gov. Perry’s ear when students and even the poor probably did not.

In short, government officials engaged in industrial policy would be wise to distinguish corporate welfare from “economic stimulus.” The influence of money in the American political system doubtless created a conflict of interest blurring the line between the beneficiaries and the decision-makers. The temptation for policy makers might therefore be to lapse into corporate welfare at the expense of basic services. CEOs who are looking for financial incentives from the government as a way to make more money may claim that their respective companies are “job creators,” but the reality is that those companies are “profit creators” with jobs being a byproduct of sorts. The case of Texas suggests that market equilibrium may naturally be well short of full-employment. If so, government officials should not go overboard with the financial incentives in the mistaken belief that some full-employment market utopia is possible, even if providing corporate welfare does not hurt their own political welfare either.

Source:

Louise Story, “Lines Blur as Texas Gives Industries a Bonanza,” The New York Times, December 3, 2012.  

Assessing a “Funded Right” to Education as Constitutional in the U.S.

According to the Texas constitution, the government must provide funds for a “general diffusion of knowledge.” This is a worthy purpose in a representative democracy, as an educated electorate is generally presumed better able to self-govern by voting for candidates and even on policy-oriented referendums. Thomas Jefferson and John Adams had their differences to be sure, but they both believed that an educated and virtuous citizenry is vital to a republic. Accordingly, the “Texas constitution imposes an affirmative obligation to provide adequate financial resources for education, whatever the economic cycle,” according to Mark Trachtenberg, an attorney who represents more than seventy school districts that sued the government of Texas.[1] Altogether, four funding suits were pending in Texas as of January 2012. Five hundred districts, which together educate more than half of all public school students in Texas, were involved in those suits at the time. In 2010, the Texas legislature had cut more than $5 billion from school district budgets. In the wake of the cuts, the districts claimed that they lacked the resources to provide the level of education required by the constitution. One major question is whether the courts are the proper venue for this matter.

Critics of the lawsuits say it is the prerogative of legislatures to make the call on school funding. From a democratic standpoint, the representatives of the people should decide, rather than a few unelected judges. “There are more-appropriate venues for a vigorous and informed public debate about the state’s spending priorities,” according to Colorado’s head of state, John Hickenlooper.[2] Meanwhile, Washington’s Supreme Court ruled that the Washington legislature must come up with a plan for additional educational spending. The ruling can be interpreted as an indictment ultimately against Washington citizens, as they had elected the legislators who had insufficiently (in the justices’ view) funded general education. It is ironic that unelected justices would find the people as having been insufficient in seeing to it that the republic of Washington would remain viable with respect to “government of the people” and “government by the people.”

Constitutionally speaking, whether basic law (i.e., a constitution) should contain substantive funding requirements is an interesting question. If so, then the courts have every right to intervene, as part of their role is to interpret constitutions. The underlying question may be whether substantive rights, such as the right of free speech, should be expanded to what we might call “funded rights,” such as the right a funded education. In a “funded right,” the funding itself is moved up from being a matter of policy to being a function of government. Other “funded rights” could be “access to funded health-care,” food-stamps and guaranteed housing. Such “funded rights” can be justified as basic in terms of human rights. Furthermore, the “funded right” to a job, which may be implied in the Full Employment Congressional Act of 1946, could be written into a constitution.

In short, “funding rights” can be oriented to a “floor” of sorts below which neither a republic nor a human being can survive. Taking such rights out of the policy arena by elevating them to basic law constitutionally would protect the vulnerable from the momentary selfishness of the “haves”—particularly, the “one percent.” That is to say, a social contract that is not a mere reflection of the wealthy can perhaps exist and be protected even when under moneyed political pressure. After all, the courts are supposed to protect the rights of the individual (and minority) against the tyranny of the majority (Madison). Whereas it is clear that humans need medical care, food and shelter to survive, perhaps part of the dispute in Texas is whether a republic really needs an educated citizenry to be viable—or is it just a cherry on the sundae? Relative to medicine, food and shelter, a general education is certainly not necessary, even if it is important. The question is perhaps whether constitutional protections extend to the latter—or even whether they include that which is necessary but not necessarily in the foreseeable interests of the “haves.”

1. Nathan Koppel, “Schools Sue States For More Money,” The Wall Street Journal, January 7-8, 2012. 
2. Ibid.

Achieving Balance in American Federalism: On the Crusade of Texas’ Rick Perry

As the governor, or head of state, of Texas, Rick Perry has been on a crusade to reinvigorate American federalism. Referring to the efforts of officials in the U.S. Government to secure the Mexican border, Perry said, “It is part of that frustrating paradox where Washington neglects their responsibility for areas clearly within their purview, while interfering in other areas in which they’re neither welcome nor authorized.”  The chief executive was pointing to a little-noticed point concerning the expansion of the domains in which the federal government is active.

The complete essay is at Essays on Two Federal Empires.

See Rick Perry, Fed Up! and the critique of Perry's book, Skip Worden, American and European Federalism: A Critique of Rick Perry's 'Fed Up!

Is the Moneyed Interest Oriented to Ending American Federalism?

James Madison wrote in Federalist #10, “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union, than a particular member of it.” That is to say, it is in the interest of the wealthy (and especially creditors) that federalism be replaced by a consolidated central government.

In the case of Shays' Rebellion in 1786 in Massachusetts, the debtors were soldiers who had not been paid by the Continental Congress yet still faced payments on their farms. Under such conditions, was stopping such payments an "improper or wicked project"? Moreover, in a republic wherein each citizen of age has one vote, is a tendency to equalize property (as opposed to a concentrating of wealth) so very improper or wicked? Perhaps whether such things are wicked depends on where one stands, though I suspect the good of the whole--the public interest--does not reduce to a partisan position based on self-interest.

Given the diversity that naturally exists in an “extended republic” the size of an empire, such as the U.S. or E.U., the one-size-fits-all interest of the rich is ultimately suffocating. Diversity over such a number of republics in a union must be allowed its breathing room or the pressure from the consolidation will prompt some of the republics to secede. In 2010, for example, there was a movement in Texas to leave the union because the sense was that law from Washington D.C. was not fitting for that republic.

The question is perhaps whether the financial elite can be oriented to the long term, and, thus public interest in the pursuit of a more paricular interest. Moreover, is the public good simply the aggregation of everyone following his or her own particular interest? Even if that works in an Adam Smith economy of competitive markets, does the same logic work for polities?  It could be argued, for example, that unlike a market, a polity requires leadership. The U.S. President can say the U.S. will move against Libya, but does it make sense to say that the American economy is moving as an entity when the market is simply the individual buyers and sellers? Furthermore, nations can explicitly stand for certain principles, whereas a market's principles such as efficiency are given, or inherent.

In the case of the United States, a decision is needed by the citizens on whether to continue to allow the propertied interest to enervate federalism or to reinvigorate the checks and balance in federalism wherein one government checks another. In the end, it is the public's comfort with concentrated power that is at issue. Historically, that comfort was pretty low, but may have subtly changed over decades wiithout being made transparent. One function of leadership in a polity is to act on behalf of such transparency and proffer a directionality.