Magazine article Newsweek

Judges and 'Soft Rights'; Not Everything That Lawyers Do Together in Their Various Venues Constitutes the Rule of Law, as a Democracy Ought to Understand That

Magazine article Newsweek

Judges and 'Soft Rights'; Not Everything That Lawyers Do Together in Their Various Venues Constitutes the Rule of Law, as a Democracy Ought to Understand That

Article excerpt

Byline: George Will

On Feb. 15 the New York Times carried this headline: judge orders billions in aid to city schools. The derangement of American government, and the decay of democratic sensibilities under rule by the judiciary, are apparent in the fact that such headlines do not enrage, or even startle.

In a case that began 12 years ago, and will surely run at least 12 more, Leland DeGrasse of the New York Supreme Court has decreed that an extra $5.6 billion, a 43 percent increase in the school budget, must be spent on the schools every year --presumably until he decides that the schools are delivering a "sound basic" education. And over the next five years another $9.2 billion must be spent to improve class sizes and facilities.

Why? Because the state constitution says, "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of the state may be educated" and this has been interpreted to guarantee a "sound basic" education. Those two adjectives are the slender reeds supporting this latest excess by the imperial judiciary.

In 1993 the Campaign for Fiscal Equity, a self-generated group, unelected and accountable to nobody, sued, charging that the constitution's adjectives were not being fulfilled. Between 1997 and 2003 spending on the city's schools rose $4.8 billion--54.5 percent. But DeGrasse, who apparently thinks he learned in law school how to fix urban education, believes the canard that in primary and secondary education there is a clear causal connection between financial inputs and cognitive outputs--that the best schools are the ones on which the most money is spent. Actually, New York ranks third among the states in per-pupil spending ($11,218; the national average is $7,734). The highest per-pupil spending is in Washington, D.C., which probably has the nation's worst schools.

DeGrasse's ruling is just the latest of thousands of such instances of judicial overreaching involving schools, prisons, hospitals, transportation, environmental policies and other matters. Constitutional or, more often, statutory language stipulates praiseworthy but vague goals to be enforced by courts. Then "public interest" groups, eager to wield the power of elected officials without the tiresome matter of running for office, go to courts.

The courts, with an arrogance often tacitly encouraged by elected officials eager to avoid difficult choices, wander beyond their competence. They do not merely enforce compliance with the law, they dictate in minute detail what shall constitute compliance--e. …

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