China: Mandating the Virtue of Filial Piety by Law

The founders of the United States, most notably Thomas Jefferson, John Adams, and Ben Franklin, held that for a republic to long endure, its citizenry must be virtuous and of a minimum education. Public education would be established, such that the common man could render a reasoned judgment at the ballot box. The dictum that the popular sovereign (i.e., the electorate) should be broadly educated resulted in law and medical schools in the U.S. requiring entering students to have a bachelor degree in another school before beginning the bachelor’s degree in the professional school. In short, public policy is an effective means of providing a people with the opportunity to gain an education, which at least in theory enhances the wisdom of a self-governing people. 

Virtue is another story. Law seems ill-equipped to form a virtuous people. It is one thing to outlaw vice in its outward conduct; how can legislation instill virtue within a soul?  Mandating virtuous conduct, such as in Massachusetts’ “Good Samaritan” law, may be possible where the conduct is in public and thus readily enforceable. Virtue within the home is far more difficult for the law to reach and thus foster. Even vice behind closed doors, such as incest as well as physical and emotional abuse more generally, is difficult for police to catch. To an extent, property rights enable such vice and allow people the option of not being virtuous in a family context.  Yet in countries in which an authoritarian state trumps even property rights, such as China, the question becomes whether legislation is the sort of thing that can foster or mandate virtuous conduct and even a virtuous character.[1] 

On July 1, 2013, the Government of China passed the Protection of the Rights and Interests of Elderly People law, which lists the required duties of adult children toward their parents. The duties stipulated include visiting one’s parents “often” and occasionally sending them greetings. The intent of the legislation is enforce filial piety, or Xiào 孝, by requiring adult children to meet the “spiritual needs of the elderly.”[2] Man, it would seem, does not live on bread alone.[3] This apparently includes the elderly.  

Although the government can enforce without much trouble the law’s stipulation that companies must give sufficient time off for employees to visit their parents on a regular basis, how are “greetings” to be enforced? The law itself contains no penalties. Moreover, is kinship, or what Cicero calls amicitia—friendship that is closest in the home—the sort of thing, being a sentiment, that can even in theory be nudged by a law? Not according to Guo Cheng, a novelist, who writes, “Kinship is part of human nature; it is ridiculous to make it into a law. It is like requiring couples who have gotten married to have a harmonious sex life.”[4]  Forcing gays not to have sex, mandating or outlawing birth-control, and prohibiting a person of one race to fall in love with someone of another can be added under the heading, “Difficult to Enforce” (or, “Should We Even Be Doing This?”). How do the police or a judge assess whether a son or daughter has given sufficient “mental support” to a parent?  

Should a daughter who has been sexually molested as a girl by her father give him spiritual or mental support? Even worse, should such care be obligatory as enforced by the state?  Is filial piety unconditional? An innocent girl having been sexually molested repeatedly by her father might stand in a shower for hours at night while her parents are out. She might have the mistaken sense that she is the person who must be dirty and thus in need of a cleansing. In actual fact, it is her father who is soiled by sickness from within. Further, the daughter might have the mistaken impression that she is afraid when her dad is away rather than at home. Should the state require her to do certain things for her dad when she is an adult (assuming she survives well into adulthood without self-destructing)?  
What about a grown man who as a boy had been beaten and emotionally abused by his dad? What does that son owe his father in terms of care and contact? Should the state dare even step foot into that tortured decision? What if the boy's mother had tried, albeit unconsciously, over the years to get her son to feel so bad about himself that he might commit suicide to answer for some imagined slight against her?
Any competent psychologist would advise all of those adult children to avoid their respective pathological parents rather than continue to suffer from abuse while offering care and support. Should a law mandate that the victims undergo further injury from parents who clutch out of fear and pride to their old ways or simply don't know any better?

Filial piety, one of the fundamental Confucian virtues

 Image Source: WUJIFA

What exactly is the virtue of filial piety? For six centuries in China, The 24 Paragons of Filial Piety, by Guo Jujing, has taught the importance of respecting and caring for one’s parents. Here the interior is married to exterior conduct. In 2012, the Chinese Government came out with a new edition, brought up to date with suggestions like: teach your parents how to use the internet.[5] It seems rather dogmatic, or arbitrary, to provide such specificity to the virtue. How uncomfortable would it be for the woman who had been repeatedly molested by her unjust father to sit down next to him decades latter to teach him key-strokes at such close range?  The obligatory weight of a six-hundred year-old text might push her over an emotional cliff.  

Generally speaking, law is like a thunderstorm’s wind. It does not discriminate between one light object and another in blowing through. A law is not directed to an individual; nor is law capable of discerning between individual cases. Even in common law, the law coming out of a case is meant to apply beyond the particular plaintiff and defendant. Roe v. Wade, for example, applies to any woman in the U.S. who wants to have an abortion.  

In contrast, virtue interacts with the idiosyncratic nature of the human psyche to form a unique moral character, which the person then applied to particular social situations. Filial piety in practice might mean one thing to you and something else to me even if we agree on the internal essence of the virtue. Furthermore, how we choose to express the virtue externally involves our own particular histories and situations. You might be obligated morally to visit your parents, while I face a psychological and moral obligation to avoid mine. Law is not such a sufficiently fine-tuned instrument to accommodate both of us, even as we share the same virtue.

Given the nature of human nature, law is both necessary and limited in its capacity. Even in the case of an autocratic state such as in China, the law can only do so much in touching a citizen’s interior life—the life of the soul.  Instead of having issued particular requirements to foster the virtue of filial piety in society, the Chinese government could alternatively have put resources into helping the Chinese adults having living parents assess how to apply the virtue to their particular situations rather than determine one size to fit all.

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[1] An alternative means, which I do not discuss here, involves the future possibility of scientists being able to “tweak” the human genome to make human beings less inclined to vice and more virtuous. For example, if greed is an instinct or urge to “get still more,” perhaps through genetics that instinct can be expunged from human nature. In terms of virtue, genetics might make it more pleasurable in being generous. Where such genetic treatments are available to everyone, it seems to me that a good ethical argument could be made on their behalf.

[2] Edward Wong, “A Chinese Virtue Is Now the Law,” The New York Times, July 2, 2013.

[3] Bible, Deut. 8:3. See also Matt. 4:4.

[4] Edward Wong, “A Chinese Virtue Is Now the Law,” The New York Times, July 2, 2013.

[5] Andrew Jacobs and Adam Century, “As China Ages, Beijing Turns to Morality Tales to Spur Filial Devotion,” The New York Times, September 5, 2012.

When Partisanship Takes on Science on Global Warming: The Part before the Whole

Thomas Jefferson and John Adams concurred on the following preference—namely, a natural aristocracy of virtue and talent over the artificial sort of birth and wealth. Talent here is not merely skill, but also knowledge. Hence the two former U.S. presidents agreed that citizens ought to be given a broad basic education in free schools. The corollary is that as a citizenry lapses in virtue and knowledge, decadence will show up in public discourse and consequently public policy. If kept unchecked, the tendency is for the republic to fall.
Therefore, as governor of Virginia, Jefferson proposed a Bill for the More General Diffusion of Knowledge in 1779. His rationale was that because even “those entrusted with power” who seek to protect individual rights can become tyrants, popular education is necessary to render a republic secure. Jefferson’s hope was that by teaching “the people at large” examples of despots in history, the electorate would be more likely to recognize despots in their own time and throw the bastards out on their noses. As for those whom voters put in public offices, Jefferson believed that “laws will be wisely formed, and honestly administered, in proportion as those who form and administer them are wise and honest.” Hence, “those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights of their fellow citizens.” This is why, beginning at around 1900, law schools in the American states began to admit applicants to the undergraduate degree in law (LL.B. or J.D.) who had already earned an undergraduate degree in the liberal arts and sciences. It was not as though the undergraduate degree in law had been promoted to graduate status.
Having had largely self-governing, popularly-elected colonial legislatures for much of the seventeenth century, the nascent American republics would stand on the two pillars of virtue and talent (including knowledge) instilled in the self-governing peoples themselves as well as their elected and appointed public officials. It is said that the only constant is change, as in the extent to which an electorate is virtuous and generally knowledgeable, as well as in the related rise and fall of republics. One notable example is ancient Rome, which went from being a republic to a dictatorship under the purported exigencies of war. Lest the rise and fall of republics seems a bit too dramatic to be considered realistic, I offer the more modest thesis that a decline in virtue and knowledge among an electorate renders the public policy increasingly deficient in dealing with contemporary problems. The matter of climate change is a case in point.

According to a study at Yale in April 2013, Americans’ conviction that global warming was happening had dropped by seven percentage-points over the preceding six months to 63 percent. The unusually cold March—quite a reversal from the previous March—explains the drop, according to the poll’s authors. The cold may actually have resulted from a loosening in the artic jet-stream southward—like a rubber-band whose elasticity has been compromised—due to more open water in the arctic ocean and thus less temperature differential in the air. Even so, only 49% of Americans believed that human activities were contributing to global warming. In fact, only 42% of Americans believed at the time that most scientists had concluded that global warming is really happening. Thirty-three percent of Americans were convinced that “widespread disagreement” exists among scientists.
In actuality, a study showed of more than 4,000 articles touching on human-sourced climate change, 97% of the scientists having written the articles conclude that human-caused change was already happening. Less than 3% either rejected the notion or remained undecided. “There is a gaping chasm between the actual consensus and the public perception,” one of the study’s authors remarked. “It’s staggering given the evidence for consensus that less than half of the general public think scientists agree that humans are causing global warming. This is significant,” the author concludes, “because when people understand that scientists agree on global warming, they’re more likely to support policies that take action on it.” Going back to Jefferson and Adams, ignorance among the electorate in a republic can be sufficient to divert enough political will that legislation needed to fix a societal (or global) problem is sufficiently thwarted.
Perhaps some of the apparent ignorance on global warming in 2013 could actually have been partisan angst. If President Obama favored policies predicated on the assumption that human-sourced global warming was then already underway, just his support alone could have been enough for some Republicans to hold firm in their denial of even other-sourced global warming. In holding knowledge hostage to score cheap partisan points, citizens and their representatives do not demonstrate much respect for knowledge as well as virtue; the vice of partisanship subdues the good of the whole in preference for the good of a part.
If Jefferson and Adams were correct that a virtuous and knowledgeable citizenry is vital to the continuance of a republic, the extent of ignorance and partisan vice related to global warming in spite of the nearly unanimous scientific conclusion and the huge stakes involved may suggest that the American republics and the grand republic of the Union may be on borrowed time (and money). Moreover, that the ignorance and vice pertains to global warming enlarges the implications to include the continuance of the species. That is to say, a virtuous and educated species may be necessary for its very survival.

See this PSA on global warming: http://www.thewordenreport.blogspot.com/2013/05/global-warming-psa.html


Academic Sources:

Philip Costopoulos, “Jefferson, Adams, and the Natural Aristocracy,” First Things, May 1990.

Yale Project on Climate Change Communication, “Americans’ Global Warming Beliefs and Attitudes in April 2013,” Yale School of Forestry and Environomental Studies, 2013.

John Cook, Dana Nuccitelli, Mark Richardson, et al, “Quantifying the Consensus on Ahthropogenic global warming in the scientific literature,” Environmental Research Letters, 8 (2013) (2), pp.

Press Source:

Tom Zeller, “Scientists Agree (Again): Climate Change Is Happening,” The Huffington Post, May 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.  

Losing the Middle Class: An Educational-Industrial Policy

Beneath the headlines showing new figures on unemployment (which do not include the unemployed who are no longer looking for work or applying for unemployment compensation) is the story of the changing distribution of jobs in the American economy. That distribution in turn can give rise to cultural or societal changes. When the jobs in the economic middle are disproportionately lost, American society increasingly resembles a tale of two cities—and by this I do not mean Augustine’s heavenly and earthly cities though the realms of the “haves” and “have nots” could admittedly be called as such by materialists.

According to CNBC, a “report looked at 366 occupations tracked by the Labor Department and clumped them into three equal groups by wage, with each representing a third of American employment in 2008. The middle third — occupations in fields like construction, manufacturing and information, with median hourly wages of $13.84 to $21.13 — accounted for 60 percent of job losses from the beginning of 2008 to early 2010.” The job market turned around since then, but those fields represented only 22 percent of total job growth. “Higher-wage occupations — those with a median wage of $21.14 to $54.55 — represented 19 percent of job losses when employment was falling, and 20 percent of job gains when employment began growing again. Lower-wage occupations, with median hourly wages of $7.69 to $13.83, accounted for 21 percent of job losses during the retraction. Since employment started expanding, they have accounted for 58 percent of all job growth. The occupations with the fastest growth were retail sales (at a median wage of $10.97 an hour) and food preparation workers ($9.04 an hour).” By mid 2012, each category had grown by more than 300,000 workers since June 2009.

Essentially, the job expansion in the wake of the 2008 recession proceeded on two fronts—the high and low ends, rather than in the middle. Microsoft, Google, and Facebook represent high-end employers, while McDonalds, Walmart, and Starbucks hire at the lower end. The wealthy increasingly shopped at Whole Foods while the service industry employees bought their food at Walmart. This rendering is of course simplistic, but separation of two distinct cultures based on wealth is clear as gated communities were becoming increasingly popular among the upper middle-class and the rich in the first decade of the twenty-first century.

In terms of education, the wealthy can send their kids to an Ivy League college, while the pro-profit colleges give a training-based inferior education to the service employees. In actuality, those employees are being trained rather than educated. The lack of education can be seen by the reliance on scripts for employees at many retail establishments. The unthinking herd mentality can be observed from the ubiquitous “have a good one!” which is grammatically incorrect and generally vacuous in meaning. A good what? The antecedent is never specified. The sheer reliance on scripts suggests that were the customers to gleam the true condition of the employees, there would be shock and awe, as in, how could we as a society have so failed the younger generation? Put another way, the centralized training of the chains (we are born free but chained to the culture invented by retail) supplants the education (not training!) that every young person should have. The eclipse of the value of education is a salient though invisible feature of the earthly city, while the inhabitants of the heavenly city make sure that their kids are well-educated. In the earthly city, the blind are leading the blind, and nobody believes he or she can be wrong. Yet how different is the actual condition on the ground!

In the post-industrial society, government policy can emphasize education for the masses, such that the higher-end vocations are “filled to the brim” and the lower-end jobs minimized. The United States can and should orient its citizenry to areas of comparative advantage rather than simply relying on the labor market to assign the distribution of jobs. For example, after its import-substitution policy, India stressed “home grown” computer science and engineering vocations in line with the view of G.D. Birla and J.N. Tata that British India needed to replicate British industry rather than be dependent on it (Gandhi opposed this strategy). In the United States of the twenty-first century, expanding excess to college and university education that is not immediately eclipsed by training would ironically enable people entering the workforce for the first time to go into the higher-end professions. In short, America needs an industrial policy that highlights education such that the upper- and middle-income professions expand proportionately at the expense of the lower-end jobs.

Source:

Catherine Rampell, “Majority of New Jobs Pay Low Wages, Study Finds,” The New York Times, August 31, 2012.

Analysis of Inferences and Assumptions: A Homework Assignment for “We the People”

Thomas Jefferson and John Adams both strongly believed that the continued viability of a republic depends on an educated and virtuous citizenry. Public education and even the practice of some of the professional schools (e.g., medicine and law) since at least the early twentieth century to require a degree in another school (e.g. Liberal Arts and Sciences) before being admitted to the undergraduate program (i.e., the M.D. and J.D. or LLB, respectively). This lateral move is unique to the U.S.; entering medical and law students in the E.U. need not already have a college degree. I submit that the Founding Fathers’ firm political belief in the importance of an educated electorate concerns the value of not only having a broad array of knowledge, but also reason being able to assess its own inferences, or assumptions; for inferences, or leaps of reason, go into political judgments. Ultimately, voters make judgements, whether concerning the worthiness of candidates on a ballot, their policies, or proposals on a referendum. To the extent that subjecting assumptions to the “stress test” of reasoning is not a salient part of secondary education, an electorate is likely to make sub-optimal judgements, resulting in suboptimal elected officials, public policies, and laws.

Government ultimately by “We the People” can be risky business, especially if any plank of a constitution can be changed by amendment. Were a super-majority of Americans intent on bringing back slavery, the constitutional-amendment process would enable the people through their elected representatives to repeal the 12^th Amendment to the U.S. Constitution. The constitutional amendment prohibiting the sale, production, importation, and transportation of alcoholic beverages was repealed in 1933 after thirteen years. Clearly, the assumptions that had gone into the passage of the Eighteenth Amendment turned out to be faulty. Had the American electorate have subjected those assumptions to better critical-analysis  when that amendment was being debated in the first place, perhaps organized crime would not have prospered and grown as much as it did. My assumption here is in need of critical analysis, however, as I know very little about the history of Prohibition. Yet I just made the assumption nevertheless. I contend that such a making of assumptions—out of very, very imperfect information yet made nonetheless—is a huge problem that remains largely invisible in representative democracy as a form of government. My aim here is to improve it by making one of its fault-lines transparent, and thus potentially treatable.

Speaking recently with a construction worker—a man of about 30 years old—I was impressed with his knowledge of how to put windows on buildings. “If you use a finger to smooth out the caulking around a window, you are getting chemicals such as the oil on your finger on the caulk, and this could diminish the sealing ability.” I was stunned that something I would admittedly do without a thought would be in his eyes an elementary error. “Even some of the guys who do residential windows don’t know this,” he said. He worked on office buildings. He went on to complain that the company, with his union’s consent, takes as much out if his paycheck for health-insurance as from the paychecks of workers who have families insured. “It’s just me,” he lamented, “so I’m subsidizing my union brothers whose health insurance covers their wives and kids.” I agreed with him that the arrangement seemed unfair.

Then, unfortunately, he turned to politics. It was as though he was suddenly on drugs. “I’m for Hillary,” he asserted. “Bill Clinton was one of the best presidents, and if Hillary were president, the two of them would talk in bed about stuff. Bill would be president again. Hillary had influence when Bill was president.” I asked why Bill Clinton was such a good president, to which my interlocutor replied, “Unemployment was low, the economy was humming, and the [federal] government had a [budget] surplus.” Exhausted just from contemplating the guy’s leaps in reasoning alone, I did not comment.

I could have added that Bill Clinton had signed off on legislation repealing the 1933 Glass-Steagal Act forbidding commercial banks to do investment-bank work and vice versa. The risk taken on by many of the largest banks in the U.S. would play a significant role in freezing up of the commercial paper (i.e., overnight inter-bank lending) market in September 2008. Additionally, Clinton’s Treasury Secretary, Robert Rubin, played a significant role in lobbying Congress to keep financial derivative securities, such as the bonds that are based on risky home-mortgages, unregulated. With Larry Summers, also in the Clinton Administration, and Alan Greenspan, chairman of the Fed, Rubin lobbied members of Congress to ignore the pleas of Brooksley Born, chair of the Commodity Futures Trading Commission, to give her agency oversight of the off-exchange markets for derivatives.[1] She resigned in 1999, just after Congress passed legislation prohibiting the CFTC from regulating derivatives.[2] As a result, Treasury Secretary Henry Paulson and Fed chair Ben Bernanke had no idea how many subprime-mortgage-based bonds existed when so many of them defaulted in 2008. In that financial crisis, the U.S. Government was flying purblind, as if the Titanic in the North Atlantic at night.

Viable assessments of Bill Clinton’s presidency would have to include the above, whereas the impact of his administration on unemployment and GNP-growth is more questionable. That the dot.com bubble collapsed in 2000 may suggest that any impact Clinton may have had on the U.S. economy was not necessarily good in the long-run. Even so, my interlocutor simply assumed that Bill Clinton was largely responsible for the economic boom.

Even to assume that Clinton should get the credit for the federal government’s budget surpluses ignores the vital role that the Speaker of the U.S. House of Representatives, Newt Gingrich, played. Furthermore, to the extent that a president does not have an appreciable impact on the U.S. economy as a whole, any surplus due to increased tax revenues from the economic boom could also not be credited to Bill Clinton. In fact, that he decided to spend half of the surpluses rather than use all of the extra money to reduce the government’s accumulated debt—perhaps under the assumption that the boom would continue for decades—can be said to be problematic, or at least short-sighted.

In terms of Bill and Hillary’s relationship, I must confess complete and utter ignorance. In the movie Dave, the fictional U.S. president and his wife hate each other and thus perpetuate the illusion that they are sleeping in the same bed. The assumption itself of any knowledge of the Clinton’s relationship, and more specifically even who would “be president” were Hillary elected in 2016, is a red flag. In other words, that the construction worker presumed so much on a matter so private, and so very distant, told me just how carried away people can get in making assumptions and yet be wholly unaware of how deeply problematic the sheer making of the assumptions is. In other words, I saw no evidence of an internal feed-back corrective in the man’s mind, such that he might beg off his declaratory asseverations. 

Moreover, I realized that his faulty chain of inferences would play a key role in the construction worker’s eventual vote for U.S. President in 2016. I contend that he is by no means alone. In fact, bad assumptions may play a very significant role the American—and indeed any—electorate’s votes.

Consider, for example, how many Americans have declared that Barak Obama is a Muslim. The very ideational act of presuming to know the faith of a person so distant is itself a red-flag. If the assumption played a role in how some of the electorate voted in 2008 and 2012, and if the assumption is wrong, then the phenomenon of unchecked assumptions really does play a significant role in how an electorate—the popular sovereign—does as the “We the People” of a representative democracy. In other words, popular sovereignty itself, to which governmental sovereignty (i.e., governments) is, theoretically at least, an agent, has a rather basic downside, or vulnerability.

If I am correct, then public education in any representative democracy should include assumptional analysis, wherein students are taught how to assess their assumptions and any “supporting” inferences. As a result, the future electors should be able to get a better grip on how far they go in making inferences based on no or scant information. I contend that representative democracy would be a much better form of government were the human, all too human, assumptional “brain sickness” made transparent and treated.

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[1] Peter S. Goodman, “The Reckoning: Taking a Hard New Look at a Greenspan Legacy,” The New York Times, October 9, 2008.

[2] Michael Hirsh, Capital Offense: How Washington’s Wise Men Turned America’s Future Over to Wall Street (New York: John Wiley and Sons, 2010).

On a Central Federal Policy in Education in the U.S.: Implications for American Federalism

In a speech in January 2015, U.S. Education Secretary Arne Duncan urged a continued central role for the federal government in education policy. He said the president was proposing to increase federal spending on elementary and secondary schools by $2.7 billion; Congress had appropriated $67 billion to the U.S. Department of Education—with $23.3 billion for the Elementary and Secondary Education Act—in the 2015 budget.[1]  Typically, debate on the federal government’s role had focused on the use of standardized tests in holding schools accountable. I submit that a self-governing people has a duty to consider the wider implications, such as the impact of a greater role on the federal system. Otherwise, unintended consequences may show up after it is too late to do anything about them.

Federalism is rarely on the media’s radar screen in the U.S., yet this dimension can be detected in statements made by public officials. For example, in his speech, Duncan said, “If we walk away from responsibility as a country—if we make our national education responsibilities somehow optional—we would turn back the clock on educational progress, 15 years or more.”[2] In positing a responsibility as a country to education, he is claiming that national education responsibilities exist. This implies that the U.S. Government has a legitimate role. This is a contestable claim.

Under the U.S. Constitution, the powers of the federal government are limited, or enumerated, whereas those of the states are both enumerated and residual. Education is not explicitly listed among the federal government’s enumerated powers, but that government can spend money for the general welfare. Education certainly contributes to that. In fact, so many things do that reading “the spending clause” so broadly eviscerates (i.e., wipes out) the enumerating itself because the federal government could get around the list simply by spending money on an additional policy domain. Put logically, a broad reading of the spending clause contradicts the very notion of enumerating powers, so both in original intent and practically, the spending clause must surely apply to the general welfare via any of the enumerated powers. Spending on education is the task of the several states.

Sen. Lamar Alexander (R-TN), chairman of the Education Committee, brought federalism to the surface in his remarks at the time, but without presenting a coherent alternative. Referring to the “No Child Left Behind” law passed while George W. Bush was president, Alexander said, “My goal is to keep the best portions of the original law and restore to states and communities the responsibility for deciding whether teachers and schools are succeeding or failing.”[3] In other words, he wanted to retain the federal government’s role—making it better—even as he wanted to restore to the states and localities their responsibilities. Such cooperative or shared-competency federalism, while common in the E.U., runs up against the enumerated feature of federal power in the American system. Put logically, returning to the states their respective responsibilities would mean taking the federal government out of the education business. Practically speaking, retaining a role for the federal government risks further encroachment on the states.

Generally speaking, the more the enumerated feature of the U.S. Constitution is blurred or distended, the less the states will be able to act as a check against federal encroachment. The check feature of federalism can protect not only the states as viable republics in their own right, but also citizens from abuses of power on the federal level. Likewise, keeping the states from encroaching on the federal enumerated powers can enable the U.S. Government (e.g., the Department of Justice) to protect citizens from abuses of power from state officials. Civil rights during the 1960s is a case in point.

Therefore, the implications of education policy may be more important than the educational issues that pertain more directly to education. Keeping the implications on the system of public governance on the public’s radar screen is thus part of the responsibility of a self-governing people and its elected representatives.

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[1] Caroline Porter and Siobhan Hughes, “Education Secretary Presses Central Federal Policy Role,” The Wall Street Journal, January 13, 2015.

[2] Ibid.

[3] Ibid.

No State Left Behind: American Education Eclipsing Federalism

Facing a federal requirement that every student be proficient in math and English by 2014, the member-states in the U.S. rushed to apply for waivers in 2011 and 2012. In 2010, 38 percent of the schools had failed to meet their goals for annual progress toward the 2014 goal. The U.S. Secretary of Education thought that figure could soar to 80 percent. When a school fails to meet such goals, the No Child Left Behind law requires “a series of interventions by the district and the state that can culminate in a state takeover. With so many schools failing, “that threatened to create an impossible burden on states and districts,” according to Chester Finn, director of an institute that studies education.[1] The waivers did not come without strings, however. The Obama administration pushed the governments to measure teacher performance, and put increased emphasis on low-performing groups as well as on the lowest-performing schools.

While the waivers can easily be seen as an effort to put the Obama administration’s own priorities on legislation from a prior administration, the Secretary of Education, Arne Duncan, claimed that his aim was to get out of a bad law that could overwhelm states that don’t measure up. “Our goal with this waiver process, frankly, has always been to get out of the way of states and districts,” he said.[2] If this were so, however, he would not insist on negotiating for better terms in granting the waivers. Beyond this extent of intervention, that of the No Child Left Behind law requiring “interventions by the district and the state” with failing schools interlards the U.S. Government in a domain that is constitutionally reserved to the states. Absent the enumerated (i.e., listed) powers of the federal government, the fifty republics are sovereign states. While the Congress can spend in the general welfare of the political and monetary union, strings beyond the general purpose trigger a breach of the constitutional design, which should give the republics enough power to act as a check on the other system of government—that of the union itself. That is, specifying down to district intervention meddles inordinately in a state’s system of government to implement federal law.

In terms of education, the role of the U.S. Government should be oriented to regulating the interstate aspects, such as making sure that students are not deprived of equal protection (e.g., not discriminated against) and that out-of-state students are not gauged at the university level. Any spending should come attached to a general purpose (which I believe must be within an enumerated power, especially if there are any strings attached), rather than with requirements for implementation (or penalty). Should a republic not spend the money in line with the purpose (especially if that purpose lies within one of the sovereign domains of the member states), the federal government could sue to get the money back. If this seems to restrict Congressional power unduly, it may be that the federal power had gone so far beyond what is consistent with a federal system that what seems drastic is merely what is necessary to get back in line with it. In terms of failing schools, the underlying problem may be that Americans (i.e., including parents of school children) do not value self-discipline (i.e., at the expense of instant gratification) or education itself enough. Imposing federal requirements and penalties are doomed to fail against such societal disvalues. In other words, we are trashing federalism for nothing.

1. Richard Perez-Pena, “Waivers for 8 More States from ‘No Child Left Behind,” The New York Times, May 30, 2012.

2. Ibid.