I don’t want to talk about “Common Core.” Neither did I want to talk about “No Child Left Behind.” It seems to me that we are surrendering a critical part of the entire education debate without a fight if we even discuss a federally mandated program. That is putting the cart before the horse. How about we back up and first discuss whether any program coming from the US Department of Education (DOE) is legal. I am not mincing words here; it is my firm belief that there is no constitutional basis for the existence of the entire federal DOE. Therefore, anything they do is illegal…and we should ignore it.

At a minimum we certainly have a basis for asking the question: what article of the constitution establishes the legal foundation for the federal government to be involved in education? My reading of the document is that it says clearly the only power given to the federal government is enumerated, spelled out, and what is not is “left to the states and to the people.” Show me where it says education is a prerogative of the federal government? Simply put, you can’t. Anyone would be hard pressed to make a legal argument justifying the federal DOE by connecting dots back to the Constitution.

This is a serious matter that the Progressives have managed to slide by the masses since 1979 when then President Jimmy Carter established the department. There was a debate at that time about this issue; with Republicans giving voice to the objections that no constitutional basis existed that justified having a federal role in education. As they often do when they have control, the liberals (Democrats) did what they wanted and the Constitution be damned. That success re-enforced such behavior and it found full bloom in the Affordable Care Act (“Obamacare”) when Democrats forced it through without a single Republican vote in favor. Lord Acton was right, “Power tends to corrupt….”

President Carter and the Democrats in Congress in 1979 made some lame argument that having a federal DOE could be justified under the Commerce Clause of the Constitution. Whatever the merits of that or any other argument that might be advanced to justify educational power being vested in Washington, DC it is merely conjecture, at best. Until if and when a challenge is made on a legal basis against the very existence of the DOE and a ruling is made by the Supreme Court (SCOTUS) we are acting like lemmings to accept whatever mandates are forced on us.

It was Eleanor Roosevelt, wife of FDR, who once said, “Nobody can make you feel inferior without your consent.” No parent should give their consent to Common Core, if only because the bureaucrats in Washington do not know how better to educate your children. No state should acquiesce to the façade of legitimacy foisted on them by the Obama administration and its overt attempts to exercise power through the mechanism of education. It is a pursuit of no real consequence to argue Common Core on its merits. What must happen first is to force a decision on the legality of the DOE itself.

So who has standing to bring a law suit to challenge the constitutional basis for a DOE and by extension Common Core? It seems the entity with the resources to do so and the legal expertise available to do it is the state, meaning South Carolina. Any candidate for Governor should be asked whether they would initiate a law suit in federal court and pledge to take it all the way to the Supreme Court if necessary. Saying you are against Common Core is not enough; to kill a snake you cut off the head.

In the mean-time South Carolina should take action, advocate for its rights; among those rights are nullification. This legal concept is well established in case law that a judge, a jury and a state can nullify a verdict or law by overruling it. There are two elements that support such a path: precedence and common law. In writing legal opinions judges at all levels from municipal, county, state, federal and the SCOTUS have cited both such elements on more than one occasion.

The Declaration of Independence, circa 1776, said it best… all government must rely on “the consent of the governed.” We still prefer “Don’t tread on me.”

At worse South Carolina should spend some of our money and once again take a stand against those who believe power is vested in Washington, DC.


David W. Thompson is a former State Representative in Alaska. He was a Township Administrator in New Jersey until he recently escaped. He has also been an Adjunct Professor at several colleges including Lees-McRae College in Banner Elk, NC. A graduate of Westminster College, New Wilmington, Pa. and the JFKennedy School of Government, Harvard University, he now resides in Easley, SC.


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