Republican Congresswoman from Spokane, Cathy McMorris Rodgers, cosponsored a bill to make certain types of punishment and restraint illegal in schools.
She says in her piece on CNN.com, "It's difficult to believe, but there are no federal laws to prevent this from happening." I don't see how it is difficult to believe that there's no federal law regarding a purely state matter. While I have nothing against the aim of this legislation -- to restrict these particular practices -- it is nevertheless obvious that the law has no constitutional foundation, and further obvious that the citizens of each state -- being guaranteed a republican form of state government by the Constitution -- are fully capable of fixing the problem without federal legislation.
She never even attempts to say what justifies such an intrusion into the states. On her Facebook page -- I am on her friends list -- several people are congratulating her. They say the law is justified because "some states don't have these laws" and "states sometimes need a swift kick in the bumpus."
Last time I checked my Constitution, there was no clause that read, "the federal government can take over state functions if the states choose not to."
Even worse, many of these people are parrotting the Democratic deception that if you classify something as a "right," then that justifies federal intrusion. By that standard, almost any criminal statute can become a federal statute.
It's disheartening to see so many Republicans continuing -- in the face of the events of the last few years -- to jump on this bandwagon accelerating down the slippery slope toward tyranny.
I don't fault McMorris Rodgers' intentions, but it's obvious that good intentions are not good enough from a government. Following the Constitution and the important principles of limited government it is based on is the means by which our liberty is protected: it's what allows us to know we can speak freely, own property, purchase (or not purchase!) goods and services of our choice. McMorris Rodgers, through her misguided though well-intentioned sponsorship of this bill, is fighting against those liberty-protecting principles, and -- hopefully -- against the tide of change in her own party.
Cross-posted on <pudge/*>.
Posted by pudge at December 10, 2009 07:02 AM | Email This2010 - vote challenger!
Posted by: Shanghai Dan on December 10, 2009 07:24 AMIt's the same with the government takeover of healthcare. They can justify passing any law by using their unlimited government clause in the Constitution. Sad.
Posted by: Palouse on December 10, 2009 07:32 AMIsn't that the real 2nd amendment? "Congress shall make all laws that are for the children."
Posted by: But... on December 10, 2009 08:45 AMIf she believes that there has been a system-wide failure in direction and enforcement, just wait until D.C. gets involved. They are the model of inefficiency, incompetetence and unaccountability. It's amazing people that end up serving time in Washington D.C. end up indentifying with big government to handle everything. These people have obviously never understood a thing that our fathers have tried to convey through their writings and our historical documents. The Democrat party is already lost in that regard, we don't need to lose the Republican party too with this nonsensical thinking.
As an aside, I was driving home last night listening to KJR 950 and the host, Mike Gastineau, was commenting that congress should get involved with the freakin' BCS selection in college football so that their would be a playoff system. Now that, is complete idiocy.
Posted by: Rick D. on December 10, 2009 09:23 AMBarton, R-Arlington, said Tuesday that he would not be "one of the sycophants that says climate change is the biggest problem facing the world and we need to do all these draconian things that cost jobs."http://www.dallasnews.com/sharedcontent/dws/news/world/stories/DN-barton_09int.ART.State.Edition1.4ba97b3.html
Right, Joe. And neither is a BCS playoff system one of the "bigger problems facing" our country.
Posted by: Rick D. on December 10, 2009 10:09 AM"In a time of deep partisan divide, some may wonder what prompted strange bedfellows -- a member of Democratic leadership and a member of Republican leadership -- to team up.
It's as simple as this: Schools are places for our children to learn, grow, and thrive. As a nation we must do better."
There are intangible costs to continually haranguing the other side as anti-american. One of the costs is that it makes doing important work on important issues near impossible. One of the expected results should be understood that people and politicians will find work arounds.
A work around is what is being attempted here. For better or worse or for no effect? Time will tell.
When I say she never "justifies such an intrusion into the states," I don't mean "she doesn't explain why she wants the law." I mean she never explains why it is legally -- or practically -- justified.
I won't bother to mention the lack of legal justification, as that's been made clear, and you don't even make reference to it. As to practical justification, you quote her saying, "It's as simple as this: Schools are places for our children to learn, grow, and thrive. As a nation we must do better."
Sure. But that has nothing to do with why it should be FEDERAL. Nothing at all. Why isn't the answer "so we therefore sent a letter to all the state legislatures asking them to review the evidence and their laws and make appropriate changes if necessary"? No reason for "we need a federal law" is given.
There are intangible costs to continually haranguing the other side as anti-american.
No one did that. Stop lying.
"Why isn't the answer "so we therefore sent a letter to all the state legislatures asking them to review the evidence and their laws and make appropriate changes if necessary"?"
That's a good question. I can't answer for either Congress person, I can only speculate.
My speculation is that to the extent anyone thought about the separation of powers issue, neither thought it a viable alternative because of the fore cited "a time of deep partisan divide".
Have you any thoughts on why neither Miller nor McMorris Rodgers voiced an opinion about the separation of powers issue here?
Sorry, I missed the part of the Constitution that says "it's OK to violate the constitution for the sake of bipartisanship." Can you point it out to me?
"Sorry, I missed the part of the Constitution that says "it's OK to violate the constitution for the sake of bipartisanship." Can you point it out to me?"
No.
And I don't think either congress person said bi-partisanship was a reason to violate the Constitution, nor that they felt it necessary to violate the Constitution.
Did they?
Certainly, the preferred solution most in line with the intent of the 10th Amendment would be for state action.
But there is nothing unconstitutional in what is being proposed. The case law on this is generally well understood, and accessible to those who wish to understand.
Maybe if that was in place, they could have specified it here, or for NCLB, or for the entire Department of Education for that matter.
Posted by: Palouse on December 10, 2009 12:44 PMSo which is a more oppressive government?
(a) government employees abusing schoolchildren
(b) a federal law prohibiting (a)
Is this statement "The problem here in the Republican Party is not that our base has gone to the right, the problem in the Republican Party is that the leadership has gone to the left."
by DeMint today
sort of what you were getting at with your
"It's disheartening to see so many Republicans continuing -- in the face of the events of the last few years -- to jump on this bandwagon accelerating down the slippery slope toward tyranny."
in your post??
You said you did.
Certainly, the preferred solution most in line with the intent of the 10th Amendment would be for state action.
Close, but no. The ONLY solution in line with the TEXT AND INTENT of the Tenth Amendment is for the states to do it (or not).
But there is nothing unconstitutional in what is being proposed.
Obviously false.
Is this statement ... sort of what you were getting at
Sorta. I think the GOP leadership has always been about where it is now. It's moved slightly to the right here and there, but it's -- for my whole lifetime -- been about where it is now. So I would not agree with DeMint (although I do of course concede he has had a better view of the leadership than I have, so maybe I am wrong in that).
But yes, I am talking about the fact that many GOP elected officials are out of step with their own base, and in a much bigger way than, say, Obama and Larsen are angering the far left who demand single payer now, exit from Iraq now, and so on: because on some of the issues I am talking about, a majority of AMERICANS agree with me, and on almost all of them, a majority of Republicans agree with me. The far left that is angered by Obama's refusal to be as far left as they are, are not even a majority in their own party.
I don't know if a majority of Americans would agree with me that federal government has no business making school abuse a federal crime, but I am certain a majority of grassroots Republicans would, and probably a majority of self-identified Republicans, too.
McMorris Rodgers is in a very safe district, and she's a fine person, and I think this won't hurt her. But she likely knows by now that some of her base is not happy with her on this bill, and that's good.
Bruce: So which is a more oppressive government? (a) government employees abusing schoolchildren (b) a federal law prohibiting (a)
Both are bad. The latter is worse, because if accepted as valid, it gives us pervasively oppressive government, rather than being a mere instances of oppression. But there's no reason we need to have either: if your state does (a), then change your state! Why do you have so little faith in your state? Even I don't have that little faith in our state government, and that's saying something.
Does anyone know the legal status of these practices in Washington? Is there really a NEED here, for us? If not for us, then for whom?
This just seems like a very limited effort to extend some of the federal protections afforded to all American adults to minors in school.
Much ado about nothing.
Posted by: AD on December 10, 2009 01:28 PMBut if the federal government starts using its power to step in and start expanding protection of individual rights, doesn't this complaint fall apart?
Seriously, let's focus on criticizing the 99% of federal overreach that diminishes freedom. We can afford to let them slide on the 1% that is clearly enacted solely to expand it.
Posted by: AD on December 10, 2009 01:35 PM"The ONLY solution in line with the TEXT AND INTENT of the Tenth Amendment is for the states to do it (or not)."
That's an interesting point of view, but it is not in line with settled case law gong back to McCulloch v. Maryland in 1819.
"I don't know if a majority of Americans would agree with me that federal government has no business making school abuse a federal crime, but I am certain a majority of grassroots Republicans would, and probably a majority of self-identified Republicans, too.".
I think you are correct. But look at it in inverse order. A majority of the minority party think one way, and the majority of Americans may disagree. Why is that?
I think the federal solution is acceptable to the American people because the state-by-state solution is not only impractical, it really hasn't been tried. They'll accept and even support this because neither Republicans nor Democrats have offered any better solution to the problem.
If you want a ray of hope, I doubt this legislation gets passed in to law in this session, so there is time to convince McMorris Rodgers to spend time on a better approach.
"Does anyone know the legal status of these practices in Washington?"
HB 2884 - 2007-08 Requiring policies on and limiting the use of mechanical, chemical, and physical restraint of students.
Passed by the House 72-22, did not get a Senate vote.
Posted by: MikeBoyScout on December 10, 2009 02:02 PMhttp://edlabor.house.gov/documents/111/pdf/legislation/HR4247Seclusion_Restraint.pdf
NOTHING about it defies the Constitution. The only punitive elements to the Act -- as usual! -- are funding-based. States are free to comply or ignore this as they wish, and the federal government is free to allocate money to the states as they wish. No violation.
Honestly, at this point you've lost all of your credibility when it comes to calling things "unconstitutional", pudge. This has been established by the Courts as specifically being constitutional, and all of your bloviating otherwise doesn't change actual US legal precedent.
Posted by: demo kid on December 10, 2009 02:19 PMThat's an interesting point of view, but it is not in line with settled case law gong back to McCulloch v. Maryland in 1819.
Incorrect. You do not understand McCulloch v. Maryland, which did not give government blanket powers to do as it wished, but -- on the contrary -- upheld the notion that the federal government could only do what the Constitution said it could do. However, what it also said is that what the Constitution says the federal government can do includes powers that are "necessary and proper" for executing the "foregoing" powers.
What this obviously means, and what the Marshall court said, is that you can make a national bank, because even though "make a bank" is not in the Constitution, the power to tax and spend is in the Constitution, and making a national bank is a "necessary and proper" way to execute the power to tax and spend.
Indeed, Marshall explicitly said that Congress can only act within these expressed and implied powers.
So for this law against child abuse in schools to be legitimate, you have to show where that power is expressly granted to Congress (obviously, it's not), or where it is implied by virtue of another power (interstate commerce? Please. That would be a stretch even for some of the court's liberals).
And don't say General Welfare, because Marshall actually dismissed General Welfare as an actual power in McCulloch, saying, "The national government can withdraw nothing from the taxing power of the states, which is not for the purpose of national benefit and the common welfare, and within its defined powers." That means something has to be both for the national benefit AND within the defined powers, which, obviously, means "general welfare" was not one of the defined powers, according to the McCulloch decision. QED.
And caselaw since has been against you too. You will note the large number of cases over the years, that ask whether something (like restrictions on in-state medical marijuana) really relate to interstate commerce, and are therefore legitimate exercises of federal authority. If Congress didn't need to justify its law against medical marijuana by pointing to the enumerated powers of Section 8, then this case wouldn't have been even brought. Congress could just say "general welfare" and the case would be dismissed.
Now, caselaw does imply that the Courts will let the legislature stretch Section 8 well past its breaking point, often to the point of irrelevancy. But they still recognize that a link must be made to a defined power, however tenuous it is. And "general welfare" doesn't cut it. (A few decisions, especially during the Depression, recognized general welfare as a power, but they are the exception.)
I think you are correct. But look at it in inverse order. A majority of the minority party think one way, and the majority of Americans may disagree. Why is that?
Because they haven't been taught well by our government schools, mostly.
the state-by-state solution is ... impractical
False, obviously. That doesn't make a bit of sense. We have tons of state-by-state criminal statutes. Why would you say it is impractical, when it's a system that has worked well for over 230 years?
it really hasn't been tried
Except, yes, it has been. A majority of states already have such laws.
This isn't about search and seizure; furthermore, states already have many laws protecting our Fourth Amendment rights, so even if this WERE about search and seizure, that wouldn't justify federal legislation.
furthermore, at the heart of the complaints of [Constitutionalists] is their belief that the expanding powers of the federal government diminishes the power of the states and, by extension, individuals. This is valid and absolutely correct. But if the federal government starts using its power to step in and start expanding protection of individual rights, doesn't this complaint fall apart?
It necessarily depends on the context. An obvious current example: if the federal government forces the states to recognize a right to health care, this obviously diminishes my rights, because I have to pay for it. Plus, what if we as citizens of our state do not WANT "expansion" of those "rights"? Or we want to protect those rights in other ways? Now you're taking away our democratic rights.
Seriously, let's focus on criticizing the 99% of federal overreach that diminishes freedom.
You missed the point (which is unsurprising since you think this is about search and seizure), which is that a. when we violate the Constitution in small ways it contributes to the trend, and b. this is unfortunately a well-regarded Republican who is pushing it, and it is my duty as a Republican to let the elected officials of my party know when I'm unhappy with them. We should have done more of that when Bush was President.
False, obviously.
the federal government is free to allocate money to the states as they wish
False, of course. Read the Constitution, please. In fact, the federal government can only allocate money toward one of its defined powers, or in "necessary and proper" support of one of its defined powers.
This has been established by the Courts as specifically being constitutional
And segregartion was established by the Courts as specifically being constitutional. You make a poor argument, as usual.
This is the problem with the Democrats and their fellow travelers today. They literally hate the rule of law. They can't stand it. The law is just a barrier to get around to get what they want (unless, of course, they can use it as a tool to bludgen other people to get what they want).
They are the Ends-Justifies-The-Means Party.
"I think the GOP leadership has always been about where it is now. It's moved slightly to the right here and there,..."
"I am talking about the fact that many GOP elected officials are out of step with their own base,...because on some of the issues I am talking about, a majority of AMERICANS agree with me, and on almost all of them, a majority of Republicans agree with me."
Noted far left liberal, David Frum has a different take:
" We're getting worse and less conservative results out of Washington than we could have negotiated, if we had negotiated.
As is, we're betting heavily that a bad economy will collapse Democratic support without us having to lift a finger. Maybe that will happen. But existing party strategy has to be reckoned a terrible failure. Most Republicans will shrug off that news. If polls are right, rank-and-file Republicans feel little regard for the Washington party, and don't expect much from it. But it's the rank-and-file who are the problem here! Republican leaders do not dare try deals for fear of being branded sell-outs by a party base that wants war to the knife. So we got war. And we're losing. Even if we gain seats in 2010, the actions of this congressional session will not be reversed. Shrink Medicare after it has expanded? Hey- we said we'd never do that.
I hear a lot of talk about the importance of "principle." But what's the principle that obliges us to be stupid?"
and pudge, re: McCulloch v. Maryland, "And don't say General Welfare", I did not.
Using your logic in discussing all I am required to do is say
You Lie! You Liar! :-D
but I'm not you, so let me help: Necessary and Proper Clause.
Seriously, as interested as you seem to be in Constitutional Law, why don't you take a couple of classes?
Posted by: MikeBoyScout on December 10, 2009 03:37 PM"In fact, the federal government can only allocate money toward one of its defined powers, or in "necessary and proper" support of one of its defined powers."
Sorry pudge, I missed that. More help while we wait for you to get your JD.
Justice John Marshall writing for the majority in McCulloch v. Maryland:
"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional"
If it helps to wrap your head around this, think the 55 MPH law and the minimum drinking age of 21.
While I respect your opinion in this area, it is an argument older than the nation itself, and always has been decided differently by our democratically elected legislative bodies and our courts. Opposing this bill on those grounds will neither improve the bill or change the majority's opinion of Article 1 Section 8.
Posted by: MikeBoyScout on December 10, 2009 04:08 PM@35: This is the problem with the Democrats and their fellow travelers today. They literally hate the rule of law. They can't stand it. The law is just a barrier to get around to get what they want (unless, of course, they can use it as a tool to bludgen other people to get what they want).
Pfft. Conservatives far more willing to throw out the rule of law when it suits them, as has been displayed on this board over and over and over again. Get off your high horse.
Posted by: demo kid on December 10, 2009 04:10 PMFalse. He said nothing there that disagreed with what I said.
and pudge, re: McCulloch v. Maryland, "And don't say General Welfare", I did not.
Using your logic in discussing all I am required to do is say
You Lie! You Liar! :-D
You're lying. I never said you said it.
but I'm not you, so let me help: Necessary and Proper Clause.
Sigh. I discussed PRECISELY THAT already. According to McCulloch, if you invoke "necessary and proper," you have to tell us what DEFINED power your "necessary and proper" power is based on. So ... which is it? Post roads?
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional
Um. You apparently bolded "which are not prohibited" because you think Marshall was implying that was the only limitation. Not remotely. That was ONE of the conditions federal action has to meet: others are "within the scope of the Constitution," "consistent with the letter and spirit o f the Constitution," etc.
If it helps to wrap your head around this ...
I am not the one who is having difficulty understanding.
... think the 55 MPH law ...
Which was repealed, and which was justified (however weakly) based on "interstate commerce." What Section 8 power is "requiring states to prohibit school abuse in order to get funds" based on?
Stop lying pudge
If you do not point out to me where I lied -- rather than merely said something you disagreed with -- or else apologize and admit you were wrong to say I was lying, you will be banned from posting further.
If you're too dense to understand South Dakota v. Dole ...
I never implied anything that could possibly lead you to the rational conclusion that I don't understand it. Disagree with it, yes. Misunderstand it? How? Please, enlighten everyone who I don't understand it.
And in fact, South Dakota is a dangerous precedent to bring up here, because what O'Connor said in her dissent -- which the Court accepted as a valid argument, but simply disagreed with the degree -- applies even more to this bill: the Court accepted a link between highway funds and deterring drunk driving, but a link between education funds and deterring certain punishments in school is much more tenuous. It's still probably be accepted by the Court, but it's far from certain. Of course, I'd like to see South Dakota overturned, but I doubt it would be.
But you're also missing the fact that federal highway funds are generally accepted as constitutional, relating to interstate commerce and post roads, while education funds are not, being directly related to no defined power of Congress. So what we have here is not what we have with highway funds -- a requirement, for grants of funds the Congress has the power to give, related to those grants -- but a requirement, for grants of funds the Congress has NO power to give, mostly UNrelated to those grants.
No Child Left Behind, for example, is a clearly unconstitutional program. But that it exists doesn't mean I'll complain about restrictions on curriculum and other education-related matters having to do with NCLB itself. But if a requirement for NCLB funds included using certain types of paint in the school parking lot, that would be objectionable, for reasons similar to those raised in O'Connor's dissent.
You're just going to say "false" like you think you know what you're talking about, until we pretty much get sick of you.
You're going to pretend I don't back up what I say, but no one is buying it.
Pfft. Conservatives far more willing to throw out the rule of law when it suits them, as has been displayed on this board over and over and over again.
False. Certainly some on the right do it sometimes, but it is far less frequently. Liberals, literally, completely disregard the rule of law. You can't be far more willing to throw out the rule of law than a liberal, because they do it utterly and completely.
Get off your high horse.
Shrug. Even if I did, I'd still be looking down on you.
Don't forget to do what is required of you to avoid a ban.
jump on this bandwagon accelerating down the slippery slope toward tyranny.
PRICELESS! :-D
Posted by: MikeBoyScout on December 10, 2009 05:24 PMHow, in Ms. Roger's mind, is Washington D.C. more inherently vested in her constituents' education and well-being than that of the (insert school district here) whose leadership constitutes those directly accountable to and elected by the parents of the children being educated? It just doesn't pass the laugh test when you run these things through logically. The further away you are from being accountable to the people, the less effective government you can expect and WILL receive. This isn't rocket science, just good ol' fashioned common sense.
Posted by: Rick D. on December 10, 2009 06:00 PMI'll play along. You said:
NOTHING about it defies the Constitution.
False, obviously.
and then you stated:
It's still probably be accepted by the Court, but it's far from certain. Of course, I'd like to see South Dakota overturned, but I doubt it would be.
Pudge, your opinion about the law doesn't actually matter one bit. It doesn't determine "constitutionality", and it doesn't determine legal precedent. If you can show that this bill clearly goes outside of existing interpretations of the Constitution in case law, then that's fine. But you haven't done that here. You've ranted about "states' rights", but nothing in this legislation steps outside of established bounds of federal power. Therefore, saying that I'm wrong for saying that nothing in this bill is unconstitutional is incorrect. Either you don't know, which is doubtful, or you're inconsistent with your responses and confusing your opinion with reality.
Does that mean that this regulation is EFFICIENT? Hardly. It involves extra rules that ideally most states should impose on their own, as you've said. (Gasp! I agree!) Failing to comply for any reason whatsoever means that education funding is cut to a state, which is pointless and far too harsh. In addition, tying federal education funding to something that is this minor (relatively) goes back to the well a little too often with an action that should be reserved for more serious issues of policy.
But this all calls your whole argument into question, and you haven't addressed any way that this law would ACTUALLY be deemed unconstitutional by anyone that would count. Type in "false" as much as you like, but that doesn't change what actually exists.
@43: Why is it that liberals can't see the difference between private citizens, and government? They think there's no significant difference between a government business and a private business, and they think that private citizens -- who force no one to do anything -- can be guilty of tyranny. It's really odd.
Wow. That is so overly simplistic that it is completely ludicrous.
Posted by: demo kid on December 10, 2009 06:53 PMSimilarly, while no one views the Supreme Court as unerring, most people would say they disagree with a particular decision rather than that they know what is constitutional and the Supreme Court does not. Pudge just uses words like "constitutional" differently from most people. Of course, when you are communicating with the public and use words differently from most people, you invite misunderstanding, and pudge confuses that misunderstanding with stupidity. But that's his problem.
Posted by: Bruce on December 10, 2009 07:31 PMYes, and those that wrote the U.S. Constitution would more than likely, if they were alive today, have at least half of the SCOTUS horsewhipped for not interpreting their document correctly. They delivered us a brilliant literary piece outlining the limitations, boundaries and powers granted to an always incrementally tyrannous government and after 220 years of ignorance in interpreting that documents intent, we have chosen some people, far removed from the experiences of the founding fathers whom wrote it, to translate it into modern times. They've failed miserably with the latest example being the Kelo Vs. New London decision.
As the saying goes, "those who fail to learn from history are doomed to repeat it". We are creeping near this stage in this country, slowly, but surely.
Posted by: Rick D. on December 10, 2009 08:09 PMWhile I agree for the most part that the federal government should stay out of education and leave it to the states (mostly because states do a p*ss poor job of abiding by federal ed law), it is nonetheless quite constitutional under the Spending Clause. Simply put: States are free to reject the money and forget about complying with federal statutes and regs which accompany the money. Unfortunately for states, some laws, such as Section 504 of the Rehabilitation Act, state that if the state receives even a scintilla of federal funding, from the most remote federal source, the state either signs a sworn assurance to comply with Section 504, or it waives its claim to ANY and ALL sources of federal funding.
In essence, is this forcing a state to accept the feds' terms? Yes. Sure it is. But in actuality is the state forced to accept the terms? No. The state is free to say, "Thanks, but no thanks."
Therefore, regarding No Child Left Behind, is is clearly NOT unconstitutional. Nor was the ESEA's predecessor, the Improving America's Schools Act, which was previous reauthorization of the ESEA under Clinton. As long as what the federal government is requiring of the states is itself not illegal (violating some other law), the federal gov't can require what it wants in order for a state to qualify to be a recipient of federal funding. Even Scalia understands and accepts the notion of the Spending Clause as a valid means of the federal government in effect legislating policy to the states that it otherwise could not do. The premise, again, is that states are free NOT to accept the money.
Now. Back to the issue of restraints. In answer to Pudge's question, restraints and seclusion rooms ARE INDEED permitted and even tacitly encouraged by WA's dept of education, OSPI. Currently, our state's RCWs and WACs allow for the use of "aversive interventions" with special education students -- but those same interventions are NOT permitted with general education, non-handicapped students. And what's more? OSPI does not keep data of which districts use them more or less frequently than others, nor which districts abuse the interventions more or less than others. Even worse? Teachers and administrators are almost always immune to suits for violations of these laws under the auspices that a student's Individual Education Plan required the use of these aversives. The parent or family of a handicapped individual purportedly mistreated or harmed by these aversives would have to turn to the civil tort arena, but first would have to clear the education law hurdles, esoterically known as "exhausting (one's) administrative remedies".
The laws governing the education of students with disabilities in WA is sadly behind most of the rest of the country's state laws. Special education in WA, for being one of the most so-called progressive states, is one of the most REgressive when it comes to the education and treatment of those in our society least able to advocate for themselves.
I would appeal to each and every one of you out there weighing in and opining on this law that you educate yourself as to the true state of affairs here in WA with students with disabilities in our K-12 school system -- but don't ask OSPI or your school district because they will not tell you the truth. Ask the parent organizations and the advocacy organizations. Ask the families of these kids.
Sorry Pudge, but it is back to school for you on this one issue. I think you are wrong on the constitutionality issue, and you are not equipped with enough knowledge to be weighing in on the issue with WA's schools. Sorry to be blunt, but on this one you appear to be out of your knowledge zone.
I love your music videos, btw. So please don't flame me.
Posted by: School Marm on December 10, 2009 09:26 PMIt matters as much as yours, at least.
It doesn't determine "constitutionality"
I never implied it did, of course. I interpret constitutionality, I don't determine it.
If you can show that this bill clearly goes outside of existing interpretations of the Constitution in case law, then that's fine
Well, no, that doesn't speak well to constitutionality. What speaks well to constitutionality is describing how well it fits with this thing I call the Constitution.
But you haven't done that here.
Actually, I did. I described McCulloch (and how it doesn't fit what MikeBS thinks), and I discussed South Dakotas (and how it doesn't fit what you think, not as well as you think it does, anyway ... at least you basically understand that case, while MikeBS didn't understand McCulloch at all).
nothing in this legislation steps outside of established bounds of federal power.
False.
Therefore, saying that I'm wrong for saying that nothing in this bill is unconstitutional is incorrect
False, obviously.
Either you don't know, which is doubtful, or you're inconsistent with your responses and confusing your opinion with reality.
False, on all counts, obviously.
Failing to comply for any reason whatsoever means that education funding is cut to a state, which is pointless and far too harsh.
Which is WHY it is -- as I said -- likely to fail the test used in South Dakota: because it doesn't well-relate to the funding itself (in your words, it's "pointless").
you haven't addressed any way that this law would ACTUALLY be deemed unconstitutional by anyone that would count.
False, of course, since I directly tied it to the precedent established by South Dakota, and highlighted how it is substantially different.
Wow. That is so overly simplistic that it is completely ludicrous.
Yes, it IS ludicrous, but most liberals believe it anyway.
Now, demo kid, in your entire explanation, you didn't even ATTEMPT to show that I lied, to back up your claim that I had done so. You argued that I was wrong, but not that I was saying anything dishonest, or with any intent to deceive. So ... buh bye.
Bruce: Demo kid, pudge is playing the same semantic game he always plays. He is saying that the Supreme Court doesn't decide what is constitutional. Technically that is true ...
... so it's therefore not a "semantic game." Don't contradict yourself so blatantly.
The ump does, however, determine whether the baserunner is officially considered safe, and likewise, the Supreme Court determines how the government is to interpret the constitution.
And the Supreme Court can change its mind later. Major League Baseball can't. Also, the people who wrote and ratified the Constitution actually made the decisions about what is and isn't constitutional in many cases that some people still question today, whereas no one decided beforehand whether it was a ball or strike.
The analogy can only be taken so far.
most people would say they disagree with a particular decision rather than that they know what is constitutional and the Supreme Court does not
What "most people" do is, of course, irrelevant. I do what normal people who do who understand and have well-considered opinions about the Constitution. I do what dissenters on the Court do, I do what legal analysts do, I do what legislators do, I do what the New York Times editorial page does.
Pudge just uses words like "constitutional" differently from most people.
Perhaps. I don't know. But it's certainly not differently from most educated people, including a particular (liberal) Supreme Court justice who said the touchstone of constitutionality is what the Constitution says, and not what the Court says about it. So you think Justice Felix Frankfurter uses the word "constitutional" differently from most people and thereby "invites misunderstanding."
And no, I don't confuse misunderstanding with stupidity very often, and when I do, I apologize. I strive for understanding. But it's a two-way street. I am usually very clear up front in my word usage, and if there's any confusion I explain myself immediately. I consistently use the word "constitutional" as most people educated on the subject do, and everyone in this discussion knows how I use it, and I have no need to apologize for my proper usage of the word.
No, School Marm, it's not. This is a common misunderstanding, but the Spending Clause is not a blanket permission for the federal government to spend money however it wishes: it still can spend money only in ways that relate to its defined powers (none of which are about education). As John Marshall said a couple of centuries ago, "The national government can withdraw nothing from the taxing power of the states, which is not for the purpose of national benefit and the common welfare, and within its defined powers." (Emphasis added.) Education spending is not within its defined powers (nor do any of its defined powers imply any such power).
Of course -- for clarification -- we're talking about two separate things here. One is whether general federal spending on education is constitutional. It's not, because there's no power defined in the Constitution to allow it. The other is whether, irrespective of the constitutionality of that spending, this particular tying of federal funds to particular requirements is constitutional. I maintain that it's not, because it does not relate significantly to the object of the spending in question (as demo kid agreed, not that you have to).
Therefore, regarding No Child Left Behind, is is clearly NOT unconstitutional.
Yes, it is, because there is no power defined in the Constitution that gives the federal government the power to generally spend money on education.
As long as what the federal government is requiring of the states is itself not illegal (violating some other law), the federal gov't can require what it wants in order for a state to qualify to be a recipient of federal funding.
The Court precedent restricts it more than merely being "not illegal": the mandate has to promote the general welfare, it has to to be unambiguous, it has to relate to the federal interest in the spending, and it has to respect other Constitutional restrictions. I contend in this case, it doesn't pass the third part of that test.
The laws governing the education of students with disabilities in WA is sadly behind most of the rest of the country's state laws.
And we are capable of changing those laws if we wish them to be changed, obviously.
I think you are wrong on the constitutionality issue
OK. And I am quite convinced that you're wrong on that issue.
... and you are not equipped with enough knowledge to be weighing in on the issue with WA's schools
Oh, come now. The only thing I said about WA schools is that we are capable of changing our laws if we want them to be changed. I do have sufficient knowledge to make that claim, and I stand by it.
As to flaming, it is a rare failure on my part when I flame someone who doesn't flame, or otherwise act like a jerk toward, me or someone else first. It is a common failure on my part when I flame people who do flame first, a failure that is sometimes hard to correct because no one, including myself, feels sorry for the people being flamed in such cases.
The legislation in question, however, merely conditions federal educational funding (a very powerful tool, since it is a major percentage of education funding in every single school district) upon schools not using abusive or even deadly forms of discipline on students (especially helpless special needs students!). It is similar in approach to numerous civil rights measures, as well as the 21 year old drinking age and the former nationwide speed limit.
By contrast, the federal law on partial birth abortions actually makes it a federal crime, punishable by years in a federal prison, to perform one. We could, of course, try to compare the value of a seven month old unborn baby, with that of a helpless retarded 14 year old child. Or you could praise McMorris Rodgers for choosing to carry her Downs syndrome child to term, while turning a blind eye to older Downs syndrome children facing abuse and death in the public school system.
But how can you support the constitutionality of a federal law making partial birth abortions a serious felony crime, while condemning a law as unconstitutional that denies funding to school districts that abuse and kill disabled children?
Sounds pretty hypocritical to me! You are one of those hypocritical Republicans who say you are pro-life, but only support the right to life during the first nine months and the last six months of an individual's lifespan.
Posted by: Richard Pope on December 11, 2009 02:01 AMPope: The legislation in question, however, merely conditions federal educational funding (a very powerful tool, since it is a major percentage of education funding in every single school district)
Yes, withholding education funds is a "powerful tool" for exerting undue influence over the states, which is why a Republican should be extremely loathe to use it. Statists like you think exerting power over others is a great thing. People who love liberty don't believe that.
But how can you support the constitutionality of a federal law making partial birth abortions a serious felony crime, while condemning a law as unconstitutional that denies funding to school districts that abuse and kill disabled children?
Sometimes your daftness is boggling. Those of us who believe that abortion is murder believe -- as with slavery -- that it is a federal issue because it denies the essential human rights of an American citizen. That is, obviously, not the case with these practices in the schools, which are at best simple criminal matters. No one is denying the human rights of the students, they are just engaging in practices that (perhaps) should be outlawed.
How did you ever pass the bar that you cannot see the obvious differences?
Sounds pretty hypocritical to me! You are one of those hypocritical Republicans who say you are pro-life, but only support the right to life during the first nine months and the last six months of an individual's lifespan.
And how have you ever been allowed in front of a judge when you cannot see the difference between saying that something should not be federal, versus saying it should not be done at all?
So then, what should McMorris Rodgers and like minded people who are opposed to school personnel using restraint and seclusion in abusive ways on children do to ensure the abuse stops and is not permitted?
In Washington State, was HB 2884 - 2007-08 Requiring policies on and limiting the use of mechanical, chemical, and physical restraint of students also too broad and far reaching?
Are there limited (non-federal) government solutions? What are they?
Who other than McMorris Rodgers is championing the issue of preventing school personnel using restraint and seclusion in abusive ways on children in WA?
Generally when people who oppose one solution path on principle or pique, it buttresses their argument to champion an alternative they believe is viable and better.
Pass a state law. Get local school districts to make rules. Obviously.
Are there limited (non-federal) government solutions? What are they?
Pass a state law. Get local school districts to make rules. Obviously.
Generally when people who oppose one solution path on principle or pique, it buttresses their argument to champion an alternative they believe is viable and better.
Pass a state law. Get local school districts to make rules. Obviously.
Obviously you are researching your answers to:
"In Washington State, was HB 2884 - 2007-08 Requiring policies on and limiting the use of mechanical, chemical, and physical restraint of students also too broad and far reaching?"
and
"Who other than McMorris Rodgers is championing the issue of preventing school personnel using restraint and seclusion in abusive ways on children in WA?"???
ECD when you'll address the obvious difficult questions?
Posted by: MikeBoyScout on December 11, 2009 07:50 AMWhy would I? They are -- obviously -- irrelevant to my point.
I apologize.
Obviously your point and you are far more important than the issue of mechanical, chemical, and physical restraint of students.
I should have realized that. I apologize.
Posted by: MikeBoyScout on December 11, 2009 08:06 AMYou see, BS, in these things we call "discussions" between "people," there are "topics" and "points." You'd do well to realize this.
Posted by: pudge on December 11, 2009 08:12 AM"in these things we call "discussions" between "people," there are "topics" and "points." You'd do well to realize this."
Certainly. I apologize. Certainly your broader points of states rights and constitutional foundations regarding this submitted legislation with no schedule for hearings are of far more interest and importance than the any actual or specific problem encountered by the people of Washington.
In the future I hope that our government officials and Republican leaders will utilize what they've learned from you on this post and first seek and rely upon your expert advice regarding the constitutionality of any proposed legislative solution.
Thank-you for your post and pointing out to me and other readers the obvious irrelevance of preventing school personnel using restraint and seclusion in abusive ways on children in WA in comparison to the topic and points of your post and comments.
Posted by: MikeBoyScout on December 11, 2009 08:32 AMI think banning people should be reserved for cases where they are dominating the thread with garbage, not contributing substantive comments that annoy you. It's (partly) your blog, so of course you have the power to ban anyone, but such bullying just makes it clearer that you are thin-skinned and incapable of responding to arguments from the few opponents who are willing to put up with you.
Posted by: Bruce on December 11, 2009 08:34 AMWe can disagree with South Dakota v. Dole all we want, but nonetheless it remains the law of the land. Saying now that the feds' imposition of new restrictions on the treatment of disabled students with regard to restraints and seclusion rooms is unconstitutional, if true, would likewise make ALL federal restrictions on how states educate students with disabilities unconstitutional such as the right to have access to their ed records in advance of a meeting, their right to have a hearing if they disagree with the school's plan, their right not to be penalized for behavior that is caused by their disability, and their right to be educated in a manner that is most suitable to that particular disability. You might as well toss out the entire IDEA.
Know what? I'd actually agree with that. States and schools don't fully comply with IDEA anyway (IDEA a federal statute designed to give states addition funding not to discriminate against kids by virtue of their disability, when in actuality the non-discrimination provisions of Section 504, the ADA and the Civil Rights Act of 1964 require the same things in public K-12 education withOUT any additional funds) and the extra funding has never made anything (speaking in broad, general terms here) better. Just look at the stimulus funding for IDEA (ARRA IDEA funds). Most districts in WA are using that money to fund general ed, siphoning it away from the very kids the money was intended to help (ARRA IDEA funding has effectively doubled sped funds -- making sped fully funded for two years) and doing what they please with it instead.
Posted by: School Marm on December 11, 2009 08:38 AM
Bruce: Pudge, you are being arrogant, juvenile, and ironic to ban demo kid because he said you lied.
None of the above.
He told you to stop lying.
And yet he refused to identify a single lie I told. Shrug.
Personally, I use the word "lie" only when someone lies about indisputable facts
Me too.
That's just not true. As I've pointed out elsewhere in this discussion, it is the exception that the Court recognizes "general welfare" as a defined power of Congress. Even to this day, the norm is for the Court to require that a power of Congress fall under actual defined powers, such as interstate commerce. Again, this is how the power to restrict medical marijuana was justified.
It is -- for the most part -- not whether my view holds in the Supreme Court, because it does, as we've seen time and time again: what is at issue is how much the Court allows those powers to be stretched to cover all manner of unrelated powers.
We can disagree with South Dakota v. Dole all we want, but nonetheless it remains the law of the land.
Again, my argument about South Dakota was based on the actual decision in South Dakota: that precedent says that the restriction on the state must be related to the funding itself, and -- in keeping with South Dakota -- I maintain that it is not.
Saying now that the feds' imposition of new restrictions on the treatment of disabled students with regard to restraints and seclusion rooms is unconstitutional, if true, would likewise make ALL federal restrictions on how states educate students with disabilities unconstitutional
Well -- again, setting aside the constitutionality of the funding itself -- no, because my argument there was about the relationship of the funding to the restriction. That said, I see no federal interest whatsoever in the other items you mentioned, but my argument does not exclude restrictions, as long as they meet the test in South Dakota.
Pudge, you said:
"Those of us who believe that abortion is murder believe -- as with slavery -- that it is a federal issue because it denies the essential human rights of an American citizen. That is, obviously, not the case with these practices in the schools, which are at best simple criminal matters."
So Pudge, I have a question for you:
Do you believe that there are any actions towards or treatment of people other than murder that also "denies the essential rights of an American Citizen"?
Posted by: School Marm on December 11, 2009 08:55 AMNot the first time. He and others like to get out of line, and for the sake of discussion I remove them when they do. Demo kid in particular is on a tight leash, and I make no apologies.
Do you believe that there are any actions towards or treatment of people other than murder that also "denies the essential rights of an American Citizen"?
No, you didn't quite get what I said. It is not "murder" that makes abortion unique, it is the government's denial of essential human liberty to a whole class of people, as it had done with slavery, that makes it a federal issue.
The Constitution protects the rights of "the people," and defines those people. In one case it defines those people as having been "born," but in most cases, not. So I think the proper federal response is not legislation against abortion, but a constitutional amendment, because -- again, as with slavery -- the Constitution, while guaranteeing rights, does not define who gets those rights: some people, insanely, have deluded themselves into believing a 9-month old "fetus" is not included in "the people," while a one-minute-old born child is. So the Constitution should define it more clearly, via amendment.
If you want to amend the Constitution to give the federal government the power to regulate the behavior of teachers in schools, be my guest. I'd fight it of course, but passing such an amendment would likely eliminate my claims of unconstitutionality.
Should we not expect a member of the Snohomish County Republican Party Executive Committee, as the elected chair of the 39th Legislative District to do more to fight the unconstitutional distribution and use of this spending than simply blogging about it?
Or is your belief in this principle so tenuous as to not require your action at your local level?
when might we expect a Snohomish County Republican platform plank which calls for and demands Snohomish County governments to stop accepting and spending unconstitutionally distributed federal dollars?
That is, essentially, a straw man fallacy. Ron Paul has spoken often on this topic, as had William F. Buckley (who got public dollars -- that he opposed -- for his longtime PBS series), and the answer is simple: we oppose this collection and distribution of tax dollars, but as long as those tax dollars are being collected and distributed in this manner, we taxpayers have a right to those tax dollars, and there's no logical grounds for rejecting them on principle.
When you say my views should lead to a rejection of those dollars, you are misinterpreting and misrepresenting my views.
That said, of course, I am not saying we should accept all federal dollars, along with whatever strings are attached to them. But there is no general principle I've expressed that would imply a rejection of such dollars. It's the federal government violating the Constitution here, and we in the states are just getting back what's ours.
"Again, my argument about South Dakota was based on the actual decision in South Dakota: that precedent says that the restriction on the state must be related to the funding itself, and -- in keeping with South Dakota -- I maintain that it is not."
South Dakota v. Dole - Further Readings
First, such exercise "must be in pursuit of the general welfare,"
Second, if Congress wants to put conditions on the states' receipt of federal funds, it should do so in an unambiguous way that makes the states fully aware of their choices and the consequences.
Third, these conditions should be related "to the federal interest in particular national projects or programs."
And fourth, of course, the spending regulations could not violate the Constitution.
pudge, are you contending that "funding" and "interest" are synonymous in the 3rd question? Or where is your citation for "funding" as part of the SD v Dole test?
Posted by: MikeBoyScout on December 11, 2009 11:04 AM"But there is no general principle I've expressed that would imply a rejection of such dollars. It's the federal government violating the Constitution here,"
No. Because obviously aiding and abetting is not a general principle worth considering let alone expressing in a discussion about unconstitutional behavior.
Seriously pudge, take some classes.
Good day. Good luck.
... has nothing to do with what I described, in fact. Again: the federal government is, literally, according to my view, stealing my money, by taking it by force for the purposes of illegal expenditures. For me to accept some of my stolen money back is not reasonably considered to be aiding or abetting the crime.
That's like saying that a kidnap victim is "aiding and abetting" his kidnappers if he watches TV or reads a book or does any other expression of liberty while in captivity.
It's not the 1st grader with mild dyslexia who's being held; it's the ODD/Conduct Disorder 6th grader who is taller than his teacher and just punched out his parapro.
The idea that a better decision can be made in Washington D.C. than can be made by a teacher in a school in Washington is troubling.
Posted by: Ryan on December 13, 2009 10:52 AM"it's the ODD/Conduct Disorder 6th grader who is taller than his teacher and just punched out his parapro. ... "
Funny, how right there in the article pudge linked to at the beginning of his post says:
"Cedric's teacher delayed his lunch for hours to discipline him for refusing to do his work. When he wouldn't comply, his teacher put him in a face down restraint and sat on him in front of his classmates. Cedric said repeatedly that he could not breathe. He died minutes later on the classroom floor."
Guess known and documented incidents of abuse leading to death are less important than hypothetical musings, cuz that way it is easier to rail on the big guberment.
Attempts to prevent child abuse in public schools should only be discussed in context of obtuse constitutional legal theories, also too.
We need a new breed of GOP that are not progressive, but instead small government and real conservatives to stem the tide of large government progressivism that is not indigenous to Democrats.
Posted by: KDS on December 13, 2009 07:38 PMUh.... You do know that the GOP nominated and supported "Bush, Delay, Rove and McCain", that "Bush, Delay, and Rove" were elected with the majority of their votes coming from the GOP, and "the mess that WE have" was primarily left by them, and not a mess created by Democrats.
Your comment is a lot like that of Conor Friedersdorf, but I'm certain there are significant differences.
"Why can't I muster any enthusiasm for the Republican Party? The core reason is my suspicion that were they returned to power tomorrow, things would turn out exactly as they did when the Republicans last controlled Congress and the White House."
"The late-is-better-than-never laments about George W. Bush never seem to acknowledge that the missteps of the last 8 years were also the fault of people like Tom Delay, a guy you'd never hear called a "compassionate conservative" or a RINO, but who bears significant responsibility for the fiscally reckless prescription drug benefit,"
"Unlike the base, I don't think politicians who are squishy on substance did in Republicans. I think what brought down the right is a corrupt conservative movement, without insufficient capacity for constructive criticism, and beset by heretic hunters who denounced anyone engaged in critical thinking. Long live the dissidents. Long live debates. Long live partisan and ideological disloyalty if it means routing out corruption."
The traditional conservatives should not have been lumped in with the corrupt ones, as they did not advocate the Iraq War after it was discovered there were no WMD's and did not advocate growing government. The traditional conservatives mostly reside in the House of Representatives.
Posted by: KDS on December 14, 2009 11:38 AM