Congress Shall Make No Law Respecting an Establishment of an Education System
By Nancy Salvato

As an education reformer, I read about education every day.  I read about ways to hold institutions of higher learning accountable for their education curriculum, I read about how important it is to have highly qualified teachers, and I read how students not receiving an equitable education should be afforded the right to attend private schools or charter schools with the tax dollars set aside for public education.  While all of these are noble ideas, none of them address the real problem with education.

The real problem is that nowhere is it written in the Constitution or the Bill of Rights that there is freedom of education. Unlike religion, which received protection from the faction of the majority by the Bill of Rights which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” nowhere is education specifically addressed in the Constitution or the Bill of Rights. Yet, today, we have in place a Department of Education funded by the taxpayers’ money and a public education system funded by the taxpayers’ money.

I am convinced that James Madison, who fought tooth and nail against using public money for religion, would have felt the same way about education.  How can I be so certain about this? No one, especially James Madison, wanted the state to support a single system of religious beliefs.  Furthermore, against majority opinion, James Madison fought against a general assessment tax which would have given “individual citizen[s] the option of designating his taxes to any one of a number of denominations.”

James Madison refused to yield to, “What many Virginians wanted, in common with citizens in other states,” which, “was to avail themselves of what petitioners to the General Assembly repeatedly called the "Public utility" of religion, by which they meant its capacity to promote the general welfare of society.” Ibid The prevailing notion in the 1780s was that religion promoted, “happiness, prosperity, peace, order, security and safety.” The public utility of religion purported that civil society could not exist without the aid of religion. Life, liberty and property" was impossible without religion.

James Madison was very concerned about the ability of factions using their power to take away individual rights. In Federalist #10 he reveals his lack of confidence that moral or religious motives can control injustice and violence perpetrated by majorities. He doesn’t believe we can rely on the social value of religion to ensure we do what is right. Rather, he believes, “that multiple healthy sects were necessary in any polity to prevent a dominant brand of believers from oppressing or even cutting the throats of its competitors.”

In Madison's Memorial and Remonstrance, he advocates John Locke’s idea, “that any government embrace of religion violated the fundamental natural right to freedom of conscience which had been reserved by individual citizens when they left the state of nature to enter civil society.” Furthermore, “by denying the new federal government power in matters of religion, they deprived it of the authority to interfere with the peoples' faith and thus protected the freedom of religion.”

Had there been written in the Bill of Rights that Congress shall make no law respecting an establishment of a system of education, or prohibiting the free exercise thereof, we probably would have an education system that works.  Instead, we have a system that demands it is the only one that deserves government tax dollars.   It is a system that has used its power to trample on the individual right to learn about what the individuals who make up a community value; instead the teachers union and textbook manufacturers dictate what will and will not be taught in school.  Students who do not have the economic capacity to leave failing schools, or whose families need to live in a particular area, are not given the choice of learning what is important to them.

There are no agreed on standards for education.  There is no proof that a Board certified teacher can do better than a home schooling parent in educating our children.  There is nothing that says that a vocational education won’t serve one particular student better than the Socratic Method.  And certainly, there is nothing in the Bill of Rights that says there should be the establishment of a public school system.  Had there been, this notion would have been incorporated with the other rights, had a system been established at all.

Madison, by squelching the notion of “Public Utility” of religion in Virginia, pretty much squelched all the states from putting in place such a system of taxation.  Still, as Madison predicted, religion is alive and well in this nation, with no help from the taxpayers.  Charitable contributions are large and given by individuals to those they deem worthy of their hard earned money, with no help from the government.  Why, then, do we insist on funding a system of public education in this country which successfully works as a majority faction to trample on the individual rights of a large number of people making up this nation?