Academic journal article Journal of Law and Education

School Vouchers and the Problem of the Recalcitrant Constitutional Text

Academic journal article Journal of Law and Education

School Vouchers and the Problem of the Recalcitrant Constitutional Text

Article excerpt

It is hard being a constitutional textualist. On one hand, the theorist who argues in favor of absolute fidelity to the literal meaning of the constitutional text is fighting a losing battle against the long AngloAmerican tradition of common-law adjudication. In this tradition texts are not mere templates. The common understanding of the legal process is that the words used in legal texts should not be interpreted literally, but rather should be read in context. Textualists generally define the context of a legal document by the overall structure of the relevant legal document, past judicial interpretations, social and legal traditions, and changing social mores and understandings. On the other hand, textualists are sometimes hoisted on their own petard by a text whose unmistakable meaning leads them where they do not want to go. Interpretive textualism tends to be associated with political conservatism. However, politically conservative textualists are occasionally confronted with legal texts that directly contradict the conservative policy objectives that tend to motivate proposals for literalist readings of constitutional texts. In such cases, textualists must ultimately resort to the same subjective and contextual interpretations of language that they claim to eschew.

The distress expressed by proponents of school voucher programs regarding state court rulings invalidating such programs under state constitutional provisions illustrates the textualists' dilemma. School voucher programs have foundered on several state constitutional grounds. Most prominently, several state courts have found voucher programs incompatible with state constitutional provisions prohibiting state financial aid to religious institutions.1 More recently, the Horida Supreme Court invalidated a voucher program under a state constitutional provision requiring the state to provide a uniform system of public education. In Bush v. Holmes,2 the Florida Supreme Court struck down the Florida school voucher program known as the Opportunity Scholarship Program ("OSP").3 The textual question in this case involved the meaning of the constitutional term "uniform." The Florida court held that the voucher program violated the Florida constitutional uniformity requirement because the program "diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children."4

In his article "Lost Opportunity: Bush v. Holmes and the Application of State Constitutional Uniformity Clauses to School Voucher Schemes,"5 Jamie Dycus argues that the Florida Supreme Court's Holmes decision is wrong because it misinterprets the crucial constitutional term "uniform." Mr. Dycus contends mat the court should have ascribed a more flexible and open meaning to the term "uniform." He argues that the Florida court should have gone beyond the literal meaning of the word "uniform," and looked to a range of other reference points to define the relevant constitutional policy. These other reference points would include the constitutions of other states, decisions of other state courts interpreting their own constitutions, and general historical materials relating to the creation of the modern public school system.

The problem with Mr. Dycus's argument is that it both flies in the face of basic textualist precepts and simultaneously demonstrates the major flaws of textualism. His analysis ends up misconstruing the key provision of the Florida constitution interpreted by the court in Bush v. Holmes, dragging into the interpretive process a hodgepodge of irrelevant materials and policies, and ignoring fundamental policy choices made by those who drafted and ratified the Florida constitution. The simple fact is that Floridians adopted a state constitution that provides special treatment to and protection of public schools. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.