Ban Private Schools CP Answers

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Ban Private Schools CP Answers

2AC — Ban Private Schools CP

1. Immediate Action Key — the plan guarantees equal access to an excellent education for everyone now. This immediately initiates aggressive reforms. Counterplan-induced change takes generations.

Benedikt 13 — Allison Benedikt, Executive Editor at Slate, 2013 (“If You Send Your Kid to Private School, You Are a Bad Person,” Slate, August 29th, Available Online at, Accessed 07-02-2017)

You are a bad person if you send your children to private school. Not bad like murderer bad—but bad like ruining-one-of-our-nation’s-most-essential-institutions-in-order-to-get-what’s-best-for-your-kid bad. So, pretty bad.

I am not an education policy wonk: I’m just judgmental. But it seems to me that if every single parent sent every single child to public school, public schools would improve. This would not happen immediately. It could take generations. Your children and grandchildren might get mediocre educations in the meantime, but it will be worth it, for the eventual common good. (Yes, rich people might cluster. But rich people will always find a way to game the system: That shouldn’t be an argument against an all-in approach to public education any more than it is a case against single-payer health care.)

So, how would this work exactly? It’s simple! Everyone needs to be invested in our public schools in order for them to get better. Not just lip-service investment, or property tax investment, but real flesh-and-blood-offspring investment. Your local school stinks but you don’t send your child there? Then its badness is just something you deplore in the abstract. Your local school stinks and you do send your child there? I bet you are going to do everything within your power to make it better.

And parents have a lot of power. In many underresourced schools, it’s the aggressive PTAs that raise the money for enrichment programs and willful parents who get in the administration’s face when a teacher is falling down on the job. Everyone, all in. (By the way: Banning private schools isn’t the answer. We need a moral adjustment, not a legislative one.)

2. Permute: Do Both. Federal guarantee plus private school ban best way to rapidly improve public schools. Avoids spending DA because private school ban transfers millions to public schools.

3. Parental Leverage Fails — wealthy parents will only lobby for their schools, not all public schools.

Munger 13 — Dave Munger, Editor of ScienceSeeker—a science news portal, former Co-Founder and Editor of—a website that collects posts about peer-reviewed research, 2013 (“No, sending your child to public school won’t save the schools. Not even if everyone did it.,” Word Munger—a blog, August 29th, Available Online at, Accessed 07-02-2017)

An Allison Benedikt article on Slate is getting a lot of attention, partly due to its provocative headline: “If you send your kid to a private school, you are a bad person.”

Benedikt’s argument is basically this: People who send their kids to private school care about their kids’ education, so if those kids were in public school, the parents would work to make that school better.

Oh, if only that were true. If only somehow the children of the wealthy (and their parents) could make schools a better place for everyone by their mere presence. Wouldn’t that be great? But you know what? They wouldn’t. Sure, the wealthy parents might spend more time volunteering in the schools. They might lobby for more money to be spent on schools and for better schools to be built.

But they wouldn’t want this for everyone. They would want this for their kids. So they wouldn’t lobby for a new school to replace the crumbling central-city school; they’d lobby for a gleaming new suburban palace in their wealthy neighborhood (but not too close — wouldn’t want to spoil their view of the golf course).

Think I’m wrong? Look, this already happens. Plenty of wealthy parents are too cheap to send their kids to private schools. So they send them to public schools, then set up PTAs to raise money for those schools, turning them into the next best thing to a private school, at a fraction of the cost. They lobby against busing. They support zoning laws restricting high-density development so that poor people can’t afford to live in their neighborhoods. They do all this even though they could afford to send their kids to private school.

These people are not benevolent. Sure, they care about their kids. To a lesser extent they care about their neighbor’s kids. But they don’t care about poor kids. They might say they care, but they certainly aren’t volunteering to put on a bake sale at the poor kids’ school. They’re not coaching the poor kids’ Little League teams, they’re not advocating for higher wages so poor parents can afford a better life for their own children.

There are a lot of things wrong with the public schools. I may not know how to fix them, but I do know one thing: Asking wealthy folks to voluntarily stop sending their kids to private schools won’t fix the schools.

And it especially won’t help the public schools that need help the most.

4. Ban Gets Circumvented — rich families will buy out-of-school supplements so their kids retain a huge advantage. Removes their incentive to push for improved public schools.

5. Residential Clustering DA — the counterplan causes rich people to move to the suburbs. They still won’t care about urban schools.

Adler 13 — Ben Adler, Freelance Journalist who has reported for Newsweek, Politico, and The Nation, 2013 (“Even if Private Schools Didn't Exist, There Would Still Be Rich Suburbs,” The Atlantic, September 3rd, Available Online at, Accessed 07-02-2017)

"You are a bad person if you send your children to private school," argues Allison Benedikt in an article that appeared on Slate last week. Benedikt makes two points to parents: that going to a diverse public school will provide their kids with an education no less important than what they learn in the classroom, and that rich parents have a moral obligation to suffer the same frustrations with public schools as poor parents, so that they will be motivated to demand that the schools be improved. Conservatives criticized Benedikt on liberty grounds, but others have failed to point out how Benedikt's argument is not right on its own terms. Even Benedikt's usually insightful colleague Matthew Yglesias praised it. Benedikt's argument is objectionable, and not just because it is obnoxious and ignorant, but because it would lead to bad policy. Benedikt claims inner-city public schools would be better off if parents were unwilling to consider private school, but she is wrong.

The reason is the narrowness of Benedikt's view of America, as if she had just landed in New York City from Mars. She seems to think that the only types of people in America are the urban poor and the urban rich. She writes, "Whatever you think your children need--deserve--from their school experience, assume that the parents at the nearby public housing complex want the same. No, don't just assume it. Do something about it. Send your kids to school with their kids."

Benedikt bizarrely assumes that her readers are wealthy and educated but that they live near a public housing complex. From that false premise, she infers that the only choice facing the rich is an homogenous private school or a diverse public school.

What's missing from this portrait? The suburbs. You know, they're the place where a majority of Americans live. Sending their kids to private school is only one approach the affluent take to avoid sending their children to inner-city public schools. The more common choice is to move to the suburbs.

So, is someone who moves to an exclusive, wealthy suburb and sends their kids to the gold-plated public schools a good person in Benedikt's view? Implicitly, yes, since she makes no distinction between cities and suburbs, or rich school districts and poor ones.

In fact, though, the average student in a wealthy suburban public school may be exposed to no greater diversity—possibly even less, thanks to private school scholarship programs—than one finds in most urban private schools.

Consider Potomac, Maryland, which is the kind of wealthy coastal blue state community where Slate readers might live. The median household income in 2011 was $167,436. Despite being next to the "Chocolate City" of Washington, D.C., the population is less than six percent African-American. At Winston Churchill High, a public high school in Potomac, fewer than five percent of the students qualify for reduced-price or free school lunches. By contrast, elite urban private schools in D.C., such as Maret and Georgetown Day, report that their student bodies are approximately 20 percent African-American. Then there is the fact that living in many urban neighborhoods will expose a child to diversity that raising her in car-dependent fancy suburb will not.

So how does a wealthy family moving to Potomac for the fancy public schools help anyone but the family itself?

It doesn't. (For the New York region, just substitute for Potomac a town such as Scarsdale, in Westchester, where the median household income in 2011 was $220,119 and the school district is only 1.3 percent black.) If the choice you are making—and for most rich parents, this is the choice, if they consider staying in the city at all—is between living in the city and sending their kids to private school or moving to the suburbs and sending their kids to public school, the inner-city poor benefit more from the former. In that case, at least the family's income and taxes will stay in the city. While the public schools don't benefit from the family's social capital, they also have one fewer student drawing on their resources. The existence of private school options may help keep rich families in the city, and cities are undoubtedly better off with wealthy residents than without them. Just compare the fiscal health and crime rates of Detroit, St. Louis or Cleveland to New York, San Francisco or Boston.

Another hole in Benedikt's logic is the presence of another option on the spectrum of urban public-school avoidance: magnet schools and charters. Plenty of well-off urban parents who do send their kids to public school choose selective magnets, or at least charters that require some parental involvement to apply. If you send your kids to public schools that are disproportionately wealthy and white compared to the city as a whole, are you an evil person? By following Benedikt's thinking on private schools, the answer should be yes. But since, like "suburbs," the words "magnet" and "charter" appear nowhere in her piece, she is implying sending your kid to an elite public magnet school is a morally pure choice while sending her to private school is evil.

The same goes for gifted programs and tracking. Are parents who send their kids to the local public school's gifted program evil as well? If not, how is their decision to make sure their child is challenged academically any different than that of a private-school parent?

I grew up in Park Slope, Brooklyn. My parents were among the earliest wave of the neighborhood's gentrifiers. Gentrification is now seen by many people—ironically, often gentrifiers themselves—as a dirty word connoting the arrival of Starbucks and the ejection of longtime residents. In 1979, though, when my parents bought their house, New York City was struggling with rising crime, near fiscal insolvency and rapid out-migration. The decision of any educated professionals to stay was widely viewed--including by many working-class families hanging on in the Slope--as a blessing. (As Suleiman Osman, a native Slopie and professor of American Studies at George Washington University, explains in his 2011 book The Invention of Brownstone Brooklyn, the middle-class and working-class families who did not want to leave neighborhoods like Carroll Gardens and Park Slope actively recruited gentrifiers as a stabilizing force.)

Every Slope kid I know from a middle-class or wealthy family attended a magnet school, a Catholic school, or a private school, rather than one of the locally zoned public schools. Why? Some urban public schools are so bad that parents fear more than a sub-par education if their kids go there. My local district school, Sarah J. Hale—since shut down by the city for failing its students academically—was known as "Sarah Jail" and was on the news while I was in high school because a student sliced a teacher.

If there were no private or magnet school options, the college-educated liberal parents who revived Park Slope would not all have, as Benedikt naively imagines, simply sent their kids to John Jay and Sarah J. Hale and shrugged at the thought they would have a better chance of getting stabbed than getting into a good college. They would have moved to the suburbs.

6. No “Alt Cause” — plan solves despite private schools by guaranteeing equal access to excellent public schools. Rich opt-out no longer matters.

7. Constitutional Liberty DA — the counterplan crushes it.

Volokh 13 — Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at the University of California-Los Angeles School of Law, Academic Affiliate for Mayer Brown LLP—a law firm, holds a J.D. from the University of California-Los Angeles, 2013 (“Equality vs. Liberty,” The Volokh Conspiracy—a scholarly legal blog, January 23rd, Available Online at, Accessed 07-02-2017)

The Center for Law and Religion Forum had a post a couple of weeks ago about a talk by Erwin Chemerinsky (dean of the new UC Irvine law school), in which he made a rather striking proposal. Indeed, Dean Chemerinsky has made the proposal in print several years ago, in an article titled Separate and Unequal: American Public Education Today, so I thought I’d quote that article and put the matter in Chemerinsky’s own words, because I think it more broadly illuminates the danger that excessive equality arguments pose to liberty:

My proposal is simple, although unrealistic at this point in American history. First, every child must attend public school through high school. There will be no private schools, no parochial schools, and no home schooling. Second, metropolitan school districts will be created for every metropolitan area. In each metropolitan area, there will be equal funding among the schools, except where educational needs dictate otherwise, and efforts will be taken to ensure desegregation. Third, states will ensure equality of spending among metropolitan school districts within their borders.

How could this happen? One possibility would be through the Supreme Court, though of course not with the current Court. The Supreme Court could find that the existing separate and unequal schools deny equal protection for their students, and order the creation of a unitary system as a remedy. Another way to achieve a truly unitary system is by legislative action. Congress could adopt a law to achieve these goals or state legislatures could do so within the states’ borders.

I do not minimize the radical nature of this proposal, but this may be the only way that equal educational opportunity can be achieved. If wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools. Currently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools. Moreover, as described above, desegregation can be meaningfully achieved only through metropolitan school systems, which include suburbs and cities, because white students could not flee to private schools.

The most significant objection to this proposal is that it is unconstitutional under current law. In Pierce v. Society of Sisters, the Supreme Court held that parents have a fundamental right to send their children to parochial schools. The Court based this on the right of parents to control the upbringing of their children. This right, however, like other fundamental rights, is not absolute. I would argue that strict scrutiny is met and therefore interference with the parents’ right to control the upbringing of their children is justified. There is a compelling interest in achieving equality of educational opportunity and the means are necessary because no other alternative is likely to succeed.

Parents desiring religious education for their children would claim a violation of their free exercise of religion. Of course, under the Supreme Court’s decision in Employment Division v. Smith, such a neutral law of general applicability would not violate the free exercise clause. Also, as explained above, strict scrutiny would be met by the proposal. I do not minimize the interests of parents in providing religious instruction for their children. Parents, however, could still do this through after-school and weekend programs. This is not the same as education where religion permeates instruction, but it does provide a way in which parents can provide religious education for their children.

Perhaps the Court would need to reconsider Wisconsin v. Yoder as well, to the extent that it is read as creating a right of parents to isolate their children from the influences of public education. In Yoder, the Court held that Amish parents had the right to exempt their fourteen- and fifteen-year-old children from compulsory school requirements so as to preserve the special Amish culture. Read broadly, parents could invoke Yoder to justify a right to home schooling if parents wanted to insulate their children from the influences of public education. Simply put, the courts should hold that the compelling need for equal schooling outweighs this parental right.

A clearer example of how an excessive focus on equality undermines liberty is hard to find. And the implications of this argument, if it were accepted, are striking. After all, the argument that “[i]f wealthy parents must send their children to public schools, then they will ensure adequate funding of those schools” and that “[c]urrently, they have no incentive to care about funding in public schools as long as their children are in private or suburban schools” could apply to many things. For instance, if wealthy people know that, if they or their family members prosecuted, they will have to use public defenders, then they will be more likely to ensure adequate funding of public defenders; currently, they have no incentive to care about funding of public defenders as long as they can hire pricey private criminal defense lawyers. There goes the right to choose your own lawyer, together with the right to choose a school for your child.

Likewise, one can argue that public libraries are underfunded, too. Maybe people should be limited in the number of books they can own, so that they will have to go to the public library instead, and thus have an incentive to vote to fund the libraries. Naturally, private provision of medical care would have to be forbidden, too, since only that will give rich people an incentive to vote for more funding for medical care for the poor.

And of course people in poor, high-crime neighborhoods often don’t get enough police protection, especially given the greater needs for protection in those neighborhoods; and the housing stock in those neighborhoods is often quite undermaintained. How about this: Let’s bar people from buying private housing, and instead require people to live in housing units run and randomly assigned by the government. After all, if wealthy people must live in public housing in rough neighborhoods, then they will ensure adequate funding of that housing and of policing of those neighborhoods. Currently, the rich have no incentive to care about public housing and public policing of poor parts of town as long as they and their children are in private housing in safer parts of town.

Think also of the other ways that some people find themselves “separate and unequal” — how about in the ability to reach the public? If you are a highly educated and credentialed law professor, reporters call you, talk shows want to have you on, people are more likely to read your blog, and newspapers are more likely to run your op-eds. If you are poor and not very knowledgeable or eloquent (often through no fault of your own), obviously you don’t have equal access to an audience. Sounds like a good reason to limit the free speech rights of those whose circumstances have unfairly provided them with extra credibility and status, so as to at least reduce this inequality.

To be sure, some people (Justice Scalia is one) have indeed argued against parental rights, on the grounds that they — like abortion rights and sexual autonomy rights — aren’t mentioned in the Constitution, though I expect that many of those people would nonetheless say that limits on private schooling (or requirements that children go to government-run school 30 hours a week) would violate the freedom of parents to hire people to speak to their children. But Chemerinsky is not taking this view. He is acknowledging that there is a constitutional right to control the upbringing of one’s children, but is saying that this right, “like other fundamental rights, is not absolute,” and can be trumped by acompelling interest in achieving equality of educational opportunity.” It follows that other fundamental constitutional rights, such as the right to counsel, the freedom of speech, and the right to choose where one lives (to the extent that it’s recognized as a constitutional right) would likewise have to yield to the “compelling interest in achieving equality.”

1AR — Parental Leverage Fails

Parental leverage is not unique and doesn’t solve because of geographical separation.

Gach 13 — Ethan Gach, Freelance Writer, 2013 (“The Problem with the Public vs. Private Distinction in Education,” Ordinary Times, August 29th, Available Online at, Accessed 07-02-2017)

Today, Allison Benedikt is berating parents who send their children to private schools. As she sees it, the self-serving act might make you a good parent, but it makes you a bad citizen–or at least that’s my reading of her main thesis.

It’s not entirely clear whether Benedikt thinks that a mediocre public school education is just as good as one from an expensive private school, so I’ll focus instead on her claim that public education won’t get better until wealthier families have more skin in the game.

Basically, if you want someone with power, money, and influence to take an interest in a failing public school, force their kids to go there and watch the transformation begin.

I agree in theory with where this argument is coming from. Enclave politics and the fragmenting of public society into groups defined by race, class, and culture is no doubt responsible for some of the lack of political will when it comes to widespread public re-investment. Why care about the budget shortfalls for public transportation if not you or anyone you know uses it? What does it matter if unemployment is double digits in a community you never have to drive through, let alone actually engage with?

But situating the conflict between public and private schools is a side-show. As Michael McShane at AEI points out,

[P]ublic schools are by and large residentially assigned, the rich have their totally awesome (and essentially private due to the home price in the school’s catchment area) public schools and poor people are trapped in failing schools because they can’t move away. That’s what leads to Balkanization. You choosing to send your kids to a suburban public school does nothing for the kids in SouthEast.”

Benedikt is under the illusion that engaged parents is one of the major resources that “good” schools have and “bad” ones don’t. “Parents have a lot of power,” she writes. “In many underresourced schools, it’s the aggressive PTAs that raise the money for enrichment programs and willful parents who get in the administration’s face when a teacher is falling down on the job.”

Recently, parents, teachers, and students have been battling the school council, city hall, and the governor’s office over massive budget shortfalls plaguing the school district of Philadelphia.

If you follow the struggle at all you can tell there are plenty of active parents who are involved and fighting for their kids’ futures. While I have no doubt that it would help, I fail to see how having the wealthy and mostly liberal elites in Rittenhouse Square send their children to one of the city’s public schools will solve the budget crisis.

What would help? A lot of things no doubt, but not least of all the public resources necessary to make up for the poverty and joblessness that plagues so many of Philadelphia’s neighborhoods.

To McShane’s point, Lower Merion School District on the other side of City Line is part of the public school system, yet it spends more than twice the amount per student that Philadelphia does.

The issue is less about private vs. public than the class privilege that’s tied to geography. Benedikt argues that “We need a moral adjustment, not a legislative one,” and yet no amount of moral shaming is going to change where people live and the material condition which follow from that. The problem isn’t that the rich person next door has no stake in your child’s education—it’s that the person next door is most likely just as poor.

1AR — Residential Clustering DA

Families will movenot advocate for high-need schools.

McArdle 13 — Megan McArdle, Columnist at Bloomberg View, former Bernard L. Schwartz Fellow at The New America Foundation, holds an M.B.A. from the Booth School of Business at the University of Chicago, 2013 (“Is It Evil to Send Your Kids to Private School?,” Bloomberg, August 29th, Available Online at, Accessed 07-02-2017)

However, I think that Benedikt isn't thinking through what would actually happen if everyone felt a moral obligation to send their kids to public schools. What would actually happen is that Allison Benedikt wouldn't live in Brooklyn, because New York, like most of the rest of the U.S.'s cities, would have lost all of its affluent families in the 1970s – the ones who stayed largely because private school, and a handful of magnet schools financed by the taxes of people who sent their kids to private school, allowed them to maintain residence without sending their kids into middle- and high-schools that had often become war zones. Anyone with any choices left that system, one way or another. But because New York had a robust system of private and parochial schools, they didn't necessarily need to leave the city to leave the violence behind.

The chaos that those families were fleeing seems unimaginable today. Here's Vincent Cannato, in "The Ungovernable City," describing what happened in Franklin Lane High School, on the border of Brooklyn and Queens:

Franklin Lane had 5,600 students enrolled in 1969 -- though the issue of overcrowding was a problem only on paper, since attendance at Lane was never more than 60 percent. Fights between black and white students were common in the school, and the school administration was unable to keep control. As one Village Voice journalist wrote of Franklin Lane: "Every day there is a riot on the subway or a fight in the bathroom or an arrest in the halls or a brawl in the cafeteria or a suspension of more black students...Lane is a time bomb, and everyone -- blacks, whites, teachers, Board of Ed -- admits it could explode any day. Yet no one has marshaled the power or imagination or trust to head off disaster."

The school's neighbors resented the influx of black students into their neighborhood and formed the Cypress Hill-Woodhaven Improvement Association to protest student disorders. (The group was headed by Michael Long, who later became the powerful head of the New York State Conservative Party.) The worst incident at Franklin Lane occurred on January 20, 1969, when a teacher, Frank Siracusa, ran down the stairs to see who had thrown a rock through his window. In the stairwell he was confronted by three black youths who sprayed him with lighter fluid, kicked and punched him, and then set him on fire. After the attack the school was shut down for several days. When the school reopened, fifty New York City policemen were stationed inside the school to maintain order, but their presence only exacerbated tensions.

I've read quite a bit about the school disorders of the period, and this still floors me. Cannato presents it as a product of integration, but I don't see how even really nasty racial tensions cause kids to set a teacher on fire. The long-time residents who resented the new black students were prone to put this down to something wrong with black people. That's of course ludicrous, both because white kids were also getting out of hand and because kids in all-black schools weren't setting teachers on fire in 1962 -- or in 2002. Something went deeply wrong in the city's school system in the late 1960s, and it's hard to say what it was. Maybe it was environmental lead, or maybe it was a series of public policy failures. Whatever it was, it was devastating.

Now, Benedikt could lecture you until the cows came home about your moral obligation to public schooling, but you still wouldn't leave your kids in a school where the teachers were being set on fire (and neither, I imagine, would Benedikt). If you couldn't send your kids to private school, you'd just move. That, in fact, is what happened to most urban school systems; any resident who had any means at all picked up and moved outside the city's borders, beyond the legal limits of busing so that there could be no question of bused students importing these problems to their kids' schools.

In the outer boroughs where residents had been dependent on public schools, that's in fact what happened. But in much of Manhattan – and in Catholic and Jewish neighborhoods where many parents sent their kids to parochial schools anyway – many stayed. Those neighborhoods provided enough of a tax base to support the magnet schools that kept a thin layer of middle-class parents in the city. By the time I went to public school in New York, in the early 1980s, any kid in a regular New York City high school in Brooklyn or the Bronx or even Manhattan was pretty much definitionally a kid whose parents could not afford better. If that had been the only option, the middle class and wealthy families would have left the city entirely – and the schools would have been even worse, because the tax base to support them would have eroded even more dramatically than it did.

And as the great crime wave of the 1970s and 1980s receded, those places formed the base from which gentrifiers such as Benedikt spread out. They kept New York City's middle-class urban culture alive, along with the network of services that supported it. They loved New York passionately. But they loved their kids more.

Benedikt's dictum makes sense only if parents can't move. If they can – and bid up the value of real estate in good school districts – then making parents send their kids to the local schools probably doesn't mean that all the parents in mixed-income neighborhoods will put their children, and their effort, into the local school. It probably means that they'll leave the mixed-income neighborhood, taking their tax dollars with them.

This is nominally public schooling, but in fact, as I once remarked, parents who think that they are supporting public schooling by moving to a pricey district with good schools are actually supporting private schooling. They're just confused because the tuition payment comes bundled with hardwood floors and granite countertops.

To actually achieve what Benedikt wants, her moral rule needs to be much stronger: something like "if you can afford private school for your kids, you have a moral obligation to put your kids in the worst school within range of your workplace." This is unworkable for a dozen reasons, most importantly, because no one would do it. Even if they endorsed it in theory, they'd come up with all sorts of excuses as to why they need to move to Montclair even though really, they are avid supporters of urban public schools ... it's just that little Silas's asthma is exacerbated by bus exhaust, and Andromache's ADD makes urban noise pollution intolerable. This is, in fact, just the sort of moral gymnastics you currently hear about vouchers or private people who are shopping for homes in "good" (pronounced "affluent") school districts.

In short, while Benedikt is right about the problem, she's wrong to think that there's an easy solution. Humans are too wily to let a moral precept short-circuit a more primal instinct to grab as much as possible for their kids.

1AR — Constitutional Liberty DA

Protecting constitutional rights is a moral decision rule. Ends-based impacts can’t outweigh.

Bayer 11 — Peter Brandon Bayer, Lawyering Process Professor at the William S. Boyd School of Law at the University of Nevada-Las Vegas, former Assistant Professor and Director of the Legal Research, Analysis, and Writing Program at St. Thomas University School of Law, holds an LL.M. from Harvard Law School, a J.D. from New York University School of Law, and an M.A. in Sociology from New York University, 2011 (“Sacrifice and Sacred Honor: Why the Constitution is a ‘Suicide Pact’,” William & Mary Bill of Rights Journal (20 Wm. & Mary Bill of Rts. J. 287), December, Available Online to Subscribing Institutions via Lexis-Nexis)


To be a true constitution, that which a society calls its constitution must enforce values so imperative, so fundamental, that the constitution comprises not only a way to live but more profoundly, a reason to die. Customarily through, for example, military service, individual citizens or groups of citizens may be required to risk their lives to preserve their constitution and the nation over which it presides. However, a true constitution rightfully demands that the entire constitutional order—the whole society regulated by that constitution—risk its own demise rather than betray the essential precepts that the constitution embodies. Only principles of such magnitude warrant inclusion in the supreme document of a particular people. n1 [*290]

Simply believing that a particular constitution is worth dying for, however, is not enough. To be a legitimate constitution—to actually be worthy of such communal sacrifice—the given constitution must be moral; that is, both designed to enforce and actually capable of enforcing the abiding moral duties that demarcate legitimate from illegitimate governments.

Pursuant to the character of true and legitimate constitutions, the Constitution of the United States defines who we are, what we are and, most importantly, why we are. Our Constitution purports to set the governing minima without which no society may be legitimate. Accordingly, and quite deliberately, while a legal document, the Constitution is a profoundly moral thesis as well. It could not be otherwise because the Constitution's overarching endeavor is enforced morality, specifically "fundamental fairness" via due process of law n2 which, as Justice Felix Frankfurter aptly enthused, is "ultimate decency in a civilized society . . . ." n3 America's validation stems from the morality of the Constitution and how steadfastly we maintain it. n4

In contravention of our constitutional duty is the long-standing chestnut: the Constitution is not a suicide pact. n5 Of course, no one would argue that the Constitution is literally a "suicide pact," meaning the Constitution requires those governed thereunder to kill themselves. n6 Nor would reasonable theorists claim it to be a suicide pact [*291] "in the sense that the Constitution was meant to fail." n7 Rather, commentators apply the not a suicide pact metaphor to support the Constitution of necessity, the premise that if circumstances raise significant jeopardy and lesser measures appear unavailing, government may do virtually anything—abridge or suspend any liberty—both to preserve the nation and to ensure the well-being of its institutions. n8

Several critics challenge that theory's empirical bases arguing, for example, that the definition of "necessity" is overinclusive. n9 Critics further argue that the Constitution of necessity betrays pivotal American principles of law, rights, dignity and separation of powers. n10 However, criticism usually stops well short of accepting the Constitution as a metaphorical "suicide pact," averring instead that necessity is the ultimate "compelling state interest," overpowering liberty if the exigency is dire enough. n11

I join the very few n12 who respond that, even if limited to situations of actual imminent danger to the very continuation of American society, necessity as the Constitution's "first principle" defies the Constitution's true moral nucleus that explains and justifies our nation: due process of law. While many articles challenge the Constitution of necessity as anathema to the inherent nature of American government, n13 such arguments alone cannot explain why, under sufficiently urgent circumstances, we ought not to abandon all constitutional liberty if that is what it takes, for however long it takes, with the earnest intent to restore liberty the very moment the danger has passed. n14 [*292]

Accordingly, this Article proposes a deeper grounding to explain why the Constitution is a suicide pact. Specifically, morality, the very fabric of the Constitution, forbids us from abandoning our basic moral-societal precept of due process, even when faithful abidance is extraordinarily dangerous. We must understand that more than simple liberty is essential to our constitutional government. Rather, we must appreciate that government ensures liberty as integral to its unalterable duty to be moral. Liberty is not an end in itself, but a means; preserving morality is the end, the absolute goal of government. Thus, in a unique figurative sense, the Constitution must be a suicide pact, for as the prominent ethicist Immanuel Kant nobly appreciated regarding morality's overarching context, "Let justice be done even if the world should perish." n15

The proof takes several steps. Part I undertakes a thorough review of deontology, the philosophy arguing—correctly, I believe—that morality is transcendent, a set of a priori principles discernable through reason. Morality, then, does not care what the possible outcomes of a particular moral problem may be. n16 Pursuant to deontological philosophy, the "sacrifice," to which the title of this Article refers, is the duty to abide by morality no matter what the cost. n17

Thereafter, Part II argues that this Nation's originators were deontologists who declared in the Nation's founding document that government is legitimate only insofar as it safeguards morality derived from "the Laws of Nature and Nature's God," manifested as "unalienable Rights that among these are Life, Liberty and the pursuit of Happiness." n18 For the preservation of those moral principles, the Founders pledged their "Lives," "Fortunes," and "sacred Honor," n19 meaning that it is the duty of all Americans—their "sacred Honor"—to sacrifice, if necessary, their lives and property to defend legitimate government. We thus discover an interesting, informative and useful provenance linking the sacrifices attendant to deontological morality with the birth of the United States. n20

The Founders understood that their appreciation of, and dedication to, morality was incomplete—a confession analysts find apt as evinced by the presence of slavery, [*293] along with several other strikingly unethical political and pragmatic arrangements surrounding both the Declaration and its later legal iteration, the Constitution. Indeed, the Founders expected future generations to enrich the moral bases of America, including repudiating ideas and practices that the Founders themselves accepted. n21 Part III asserts that the ethical theory of Immanuel Kant, as contemporarily understood, presents the improved moral philosophy hoped for by the Founders. Written shortly after the American Revolution, Kant's theory of dignity explains why obeying morality is more important than life itself; n22 a principle applicable not only to persons and groups, but also to nations and societies. Kantian ethics, therefore, explicate that the highest principle is not survival but, rather, moral rectitude.

Kant's ideas should control the understanding of the Constitution, most particularly the commands of due process of law, as Part IV explains. Although never explicitly cited as authority, Kant's dignity principle informs modern due process jurisprudence, which is sensible because the Constitution was drafted to enforce the moral quest commemorated in the Declaration. The comfortable application of Kantian ethics to constitutional due process demonstrates that, in the singular sense described above, the Constitution should be, must be and is a suicide pact.

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