February 27, 2004,
I've been reading various press releases and analyses from conservatives (and, to a lesser extent, libertarians) about the Supreme Court's Locke v. Davey ruling. At issue was whether a state government can exclude, from a scholarship program, a student who was planning to study devotional theology. The Court ruled that it can do that without violating the free-exercise clause, and it can do the opposite without violating the establishment clause. So, in other words, states have free rein to do as they wish. Conservative litigators are trying to contain the damage of the ruling to their larger goal of getting the Court to strike down states' "Blaine amendments." These are constitutional amendments, often motivated by anti-Catholic sentiment, that prohibit state aid to religious schools (and sometimes prohibit even indirect aid). Those amendments, found in 39 states, obviously impose a big obstacle to school choice.
Most conservatives everyone I've read, actually opposed the Court's decision to let Washington state exclude this student. They may be right, for all I know. I don't claim to understand the Supreme Court's church-state jurisprudence (and I'm not completely sure that it is truly comprehensible to the human mind). I am a little surprised at a reaction I have not heard. There was a time, I think, when many conservatives would have had a gut instinct to applaud when the Supreme Court told a state that courses of action were neither prohibited nor required; that the choice was up to it. There was also a time when many conservatives held, almost as an article of faith, that the First Amendment was not binding on the states.
For years, conservatives railed against the doctrine of "incorporation": the idea that the Fourteenth Amendment somehow applied the guarantees of the Bill of Rights against the state governments and made those rights enforceable in federal court. (This description, although pretty common, is actually somewhat misleading, in that most of the cases in which "incorporation" was accomplished involved the discovery, or invention, of rights that had previously not been enforced against the federal government, either, but were now applied against the states.) This was held to be a kind of judicial activism, and one which transformed the Supreme Court from an agent of decentralization to one of centralization. It went from being a check on federal power to a source of it. All of this analysis was something of a right-wing chestnut.
On that older understanding, conservatives would have had to deal with Blaine amendments state by state. University of Virginia law professor James Ryan has surveyed these varying laws in an essay for Education Next, the Hoover Institution's indispensable journal. In Ohio, where the relevant amendment said only that "no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of the state," this would be comparatively easy. It's reasonable to conclude that this language does not bar a voucher program including religious schools, and so indeed the courts have found. Ditto for Wisconsin ("nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries").
In Florida, the obstacle would appear to be greater. "No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly... in aid of any sectarian institution": That sure sounds on its face as though vouchers are verboten. Then there are the states that have constitutional provisions banning aid to any private school. Colorado's constitution says, "No appropriation shall be made for... educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association." On the no-incorporation understanding of the Constitution, the federal courts would presumably have to say to school-choice litigators: You can't have a robust school-choice program in these states until you amend your own state's constitution. That would be a terrible result for a lot of school kids in Florida. The Supreme Court would have to say: Tough luck. We won't prohibit school choice as a violation of the U.S. Constitution; but we won't force a state to allow it, either.
Conservatives have abandoned the no-incorporation doctrine for a lot of reasons. There has been historical work suggesting that the public that ratified the Fourteenth Amendment did indeed intend by ratifying it to apply the Bill of Rights, or at least some of its provisions, against the states. But I suspect that as least as important a reason conservatives have abandoned the older view is that it's just so far away from where we are now. Nobody now challenges the older liberal applications of the incorporation doctrine; indeed, that they were originally considered liberal is now lost in the mists of time. You would have to be a pretty flinty old-school conservative not to use the doctrine yourself in a cause with as much practical urgency as school choice. And there aren't many such conservatives left.