The Skeleton in the Easy Chair

A news item from CNN today inspired a couple of thoughts. The story itself concerns a lawsuit brought against the federal Department of Education by the national teachers' union (NEA) and a few local school corporations. The suit claims that the DOE's implementation of the Bush administration's "No Child Left Behind" law imposes requirements without accompanying funding from DC onto the localities, contrary to the language of NCLB.

The dispute is, I think, a depressingly-routine ritual carried out between "opponents" who really don't disagree about anything fundamental. It's the hyenas arguing with the vultures about how the antelope's ripening carcass ought to be divided -- full of sound and fury, and signifying nothing beyond the disposition of the swag. But it did get me to thinking.

How would this dispute be handled in the famous, mythical Constitutional United States? I'll suggest that this dispute, like so many other problems that perpetually furrow the modern brow, wouldn't have occurred in the first place. In the absence of any constitutional text requiring (and thus authorizing) the existence of a federal Department of Education, there would be no such thing. It wouldn't exist. Without constitutional article-and-section charging the Congress with looking after children's learning, and assuring that none are left behind, I suppose the Congress would realize that it has no constitutional power to make such a law as NCLB.

But then, under those constitutional conditions, I suppose the Congress would be making very, very few of the swarms of laws that issue forth from its ample mouth every year. I suppose that the countless regulatory agencies whose existence is not explicitly authorized by the Constitution would accordingly not exist, and we wouldn't have tens of thousands of pages' worth of Federal Register every year, either.

Obviously, this is not our condition. The Constitution is a document that we're proud of; one that we're downright reverent about. But in terms of how things are actually done, the thing is completely irrelevant.

Suppose you and your parents and your old grandfather all live in one house. Your grandfather is an old, strict, stern man. He's always telling your parents not to do things they want to do. But he's getting a little feeble, and your parents increasingly do what they want anyway, and the old man can't stop them. Still, they get tired of hearing him scold and forbid. He seems shrill. So, over a period of time, they slip a little rat poison into his oatmeal. They add just a bit to his coffee. And after a while, he dies, still sitting in his favorite chair.

Your parents don't take him out and bury him, though. They know that only tyrants kill Grandpa, and burying him would make it seem that they had killed him. So, he sits there. For a while, he smells really bad, and looks pretty gruesome, too. But, as the weeks turn into months and years, he dries out into a collection of bones, and the smell goes away. Your family still talks to him. After all, good families have a grandparent in the house. He, of course, makes no reply, but that's OK -- his replies used to be so unpleasant, anyway. Once a year, you celebrate his birthday. You tell other families how important it is to have a grandfather in the house, occupying the position of honor and authority. On special occasions, you take oaths to "protect and defend" Grandpa.

That's us and our Constitution. How we do love it! It's deader than Grandpa, but we're governed by it. We must be -- we say so often enough. We killed it back there somewhere. I'm not sure just when. Not earlier than the Whiskey Rebellion, I don't suppose, and for sure no later than the War Between the States. The corpse is fairly inoffensive now; it hardly stinks at all; but it is so fearfully inert. And we surely sound crazy, patting ourselves on the back about being a "constitutional republic" when our Constitution is just dead, dead, dead.