Research and argumentative challenges can do amazing things. As a result of writing my first rebuttal to Mr. Farris, I have learned quite a bit about Ron Paul, the Constitution, the Bill of Rights, and the Incorporation Doctrine. I have even come to believe a couple of things that, even just a few days ago, I would have completely disagreed with (some of what I wrote in the original post demonstrates this). I am not afraid to admit when I am wrong, and I was definitely wrong about a couple of important things here. So, let me restate my argument according to what I now understand to be correct. I felt obligated to write this because I believe I misrepresented Dr. Paul’s positions on some critical points regarding constitutional authority. This was unintentional, but it’s still inaccurate, and I wanted to set the record straight.

Perhaps the biggest hurdle to overcome is to realize that the Bill of Rights was never intended to rewrite each individual state’s constitution. If it had been, the states never would have signed on in the first place, since in general they were extremely concerned with maintaining their own sovereignty. The Bill of Rights was crafted to make sure that the new federal government would not be able to exert its own control over the citizens of each state; it was not created as a universally applied set of rules which all states had to adopt themselves. If this had been the case, state constitutions would not need to include separate but similar provisions of their own, especially the states that joined the union after the Constitution was ratified. But it is easy to see that this is not what happened.

The rights recognized and protected by the Bill of Rights are important, and it would not be a bad thing if each state recognized and protected the same rights. The Incorporation Doctrine has largely allowed this to happen, and Mr. Farris thinks this is a good thing. Dr. Paul sees it as a problem because the 14th Amendment doesn’t actually say what the Supreme Court has interpreted it to say, and this has opened up the door for arbitrary laws giving power to the federal government that it was never supposed to have. The 14th Amendment’s “due process” clause was one of the primary legal bases for the Roe v. Wade ruling, and it is one of the arguments used to allow birthright citizenship for children of illegal immigrants.

The main question is whether the due process required of the states by the 14th Amendment is merely procedural, as the wording indicates, or substantive, which includes a whole lot more than just ensuring equal protection and keeping within a common and unbiased legal system. The substantive due process debate is pretty serious, and the answer has significant implications about the real scope of government power. Ron Paul virtually always tends toward the small government side of any argument, and the Incorporation Doctrine debate is no exception.

There are a number of core questions to answer here, and the simplest way to highlight the differences between Michael Farris and Ron Paul is to explore how each of them has answered these questions. The first half of the questions I’ve included below has to do with a philosophical ideals (largely irrelevant in the legal world, but important to understand their opinions), and the second half has to do with the actual legal authority. This “Should vs. Does” side-by-side comparison will demonstrate some rather critical differences in what each each of these two men believe about the optimal scope of government power.

1. Should the Bill of Rights in the US Constitution apply to the states?
   • Farris: Yes. That’s one the primary uses of the 14th Amendment.
   • Paul: Not as written, maintaining the correct view of separation of state and federal authority. That’s not what the states signed up for, and for the Supreme Court to use the 14th Amendment selectively as a lever to expand federal authority beyond what is clearly written (including the federal protection of some “rights” not recognized or specified anywhere in the Constitution) is a usurpation of power, even if the pragmatic outcome is favorable in some cases. “The ends justify the means” is a very dangerous line of reasoning to defend such actions.
2. Should the rights recognized and protected in the Bill of Rights also be recognized and protected in each individual state?
   • Farris: Yes, and using federal power and Supreme Court precedents is a fine way to make sure that happens.
   • Paul: Yes, but the states have their own constitutions and legal systems to bring this about. All of the rights recognized and protected in the US Constitution are good, and in many cases they are mirrored by individual state constitutions. But arbitrarily forcing federal restrictions onto state governments is outside of legitimate federal authority. If state constitutions are inadequate in some cases, they should be changed on a state-by-state basis. Alternatively, if the states wish to ratify a federal amendment that clearly applies some or all of the Bill of Rights as written to their own state governments, that is also fine. But using the 14th Amendment to this end is not safe or desirable.
3. Should homeschooling be a legal option for parents?
   • Farris: Yes.
   • Paul: Yes.
4. Should the federal government be able to specifically prohibit homeschooling?
   • Farris: No.
   • Paul: No.
5. Should the federal government be able to specifically legalize homeschooling?
   • Farris: (Unknown. He may agree with Dr. Paul here, or he may believe the federal government has more authority that what Dr. Paul believes.)
   • Paul: No, at least not without an amendment. The US Constitution is silent on the issue of education as-is, and therefore has no authority to pass laws explicitly focused on education. Any action not specifically prohibited by the Constitution is, at the federal level, already legal. To legalize homeschooling at the federal level in such a way that it has legitimate specific power over the states would require an amendment.
6. Should individual states be able to specifically prohibit homeschooling?
   • Farris: Definitely not.
   • Paul: Technically yes, but only if there is not sufficient protection against this (e.g. right to privacy) in their governing documents. If there is no such protection, this should be fixed with an amendment to the state constitution, effected by the people of that state, not through a power grab by the federal government. [Note: this opinion directly contradicts something I wrote in my original post about Dr. Paul's application of the federal 4th Amendment.]
7. Should individual states be able to specifically legalize homeschooling?
   • Farris: Yes. (Qualifiers not assumed; he may agree with Dr. Paul on this point.)
   • Paul: Yes, provided that power is specified in their constitution and there is no legitimate federal control over the states in this area (which there currently is not). For states that have no authority over education specified in their governing documents, then such a ruling would be largely pointless—since the default assumption for any action not expressly prohibited is that it is legal—but it would also be an unconstitutional expansion of state authority.
8. Does the Bill of Rights in the US Constitution apply to the states?
   • Farris: Most of it does, through the precedents established by the Incorporation Doctrine and the 14th Amendment, and this is good.
   • Paul: Most of it does, through the precedents established by the Incorporation Doctrine and the 14th Amendment, but this is very dangerous because it is an arbitrary and selective expansion of federal power by means of Supreme Court rulings, which is not the correct way to change the scope of federal authority.
9. Does the federal government have the authority to specifically prohibit homeschooling nationally?
   • Farris: No.
   • Paul: No.
10. Does the federal government have the authority to specifically legalize homeschooling nationally?
    • Farris: Yes, through clever applications of the 14th Amendment. (I believe this is an accurate representation of Mr. Farris’ opinion, based on his post.)
    • Paul: Legally yes, because of the precedents established by the Incorporation Doctrine. But this is unconstitutional and a bad interpretation of the 14th Amendment, and constitutionally this is still outside of federal jurisdiction. For or against, the federal government has no legitimate authority in the area of education.
11. Do individual states have the authority to specifically prohibit homeschooling?
    • Farris: No, the 14th Amendment means this is not possible.
    • Paul: Constitutionally yes, but practically no, due to the precedents set by the Incorporation Doctrine to fully incorporate the federal right to free speech and right to privacy to the states. If state and federal powers are separated according to the original intent, then if the state’s constitution gives them the power to control education in this way, they can do it—but not if there is no specific power given, or there is another state-level provision that more generally prohibits control of this kind. [Note: this opinion partly contradicts something I wrote in my original post.]
12. Do individual states have the authority to specifically legalize homeschooling?
    • Farris: Yes. (Qualifiers not assumed; he may agree with Dr. Paul on this point.)
    • Paul: Yes, if such provisions for specifically controlling education exist in the state constitution.

So, let’s revisit the statements that Mr. Farris makes about Dr. Paul, and analyze them in light of these new clarifications.

“Ron Paul is an enemy of the legal principles that the homeschooling movement has used successfully to defend our freedom to teach our own children.”

Analysis: Ron Paul believes that using the 14th Amendment to expand federal authority beyond what is written in the Constitution is the wrong approach, even if it has been done in the past to bring about the protection of things (like homeschooling) that he would like to see protected. Mr. Farris has used this very argument in his cases, so Dr. Paul’s view that it is technically an unconstitutional approach that actually opens the door to even bigger government does put him at odds with Mr. Farris. However, to say that Ron Paul is an enemy of the legal principles is disingenuous. He is in complete agreement with the desired outcome, but he is an enemy of an argumentative technique that by definition expands the scope of federal power beyond what was originally intended.

“In the 1920s, the State of Oregon banned all private education. This Oregon law was challenged as a violation of the 14th Amendment. The Supreme Court ruled that the 14th Amendment’s Due Process Clause prohibited states from banning private education because this overrode parental rights in an unconstitutional fashion. If Ron Paul’s philosophy were applied to this case, then Oregon’s law would have prevailed under the 10th Amendment.”

Analysis: Ron Paul’s view of the US Constitution would indeed have prevented the 14th Amendment from overruling the 10th Amendment, and based only on that argument, the Oregon law would have remained intact. However, what’s to say that a different challenge based on the limited authority of the state government wouldn’t have succeeded? I am not a lawyer, but a cursory search through relevant sections of Oregon’s state constitution does not indicate that they have the right to impose such a law, particularly in light of the rights guaranteed by Sections 1, 3, 8, 9, and 20, which respectively guarantee natural rights of citizens over their government, freedom of religion and conscience, freedom of speech, privacy, and equal protection under the law. Are these really not enough? Is it truly necessary to run to the arbitrary and dubious expansion of federal authority to get what you want?

Mr. Farris lists two more examples of court cases that leveraged the 14th Amendment to protect homeschooling, one in Michigan and one in California. Although the state constitutions are different, the fundamental argument is the same. When something is going wrong within a particular state, the constitutional and safe long-term solution should not involve using arbitrary interpretations of a specific clause as a wedge to get just enough extra federal power to force the state to comply with rules that were originally written specifically for the federal government alone.

“Home schooling would be legal in about 3 states in this country today if Ron Paul’s view of the Constitution was actually practiced by the Supreme Court.”

Analysis: Mr. Farris is engaging in blatant hyperbole. There is absolutely no way of knowing that what he predicts would happen, little evidence to suggest it, and a great many arguments to be made for the opposing view. A comprehensive understanding of Ron Paul’s view of the Constitution combined with his obvious desire to remove government from education wherever possible suggests that Mr. Farris’ frightening hypothesis is, at best, extremely unlikely.

“Do you agree with Ron Paul that the states have the exclusive authority over the legality of homeschooling and the 14th Amendment provides no constitutional right to homeschool?”

Analysis: Ron Paul does believe that the 14th Amendment provides no constitutional right to homeschool, or at least that it shouldn’t, since I’m sure he recognizes the legal precedents already in place along these lines. This much I will readily admit now, in stark contrast to what I wrote before. But on this topic, I cannot come to any other conclusion in light of a strict reading of the Constitution, combined with a firm belief in small government on all levels. However, Ron Paul does not automatically believe that the states have exclusive authority over the legality of homeschooling. He only believes that the federal government has no authority over it, for better or worse. It is simply outside of federal jurisdiction.

But just because the federal government doesn’t have the power to legalize (or prohibit) homeschooling, that doesn’t mean that states by definition do have that power. As in the case of Oregon, most states have their own significant list of rights recognized and protected within in their own constitutions. Whenever a legal issue arises concerning education in a particular state, that is where the battle should be fought.

Running to the federal government for protection when doing so requires an inherent expansion of power is the epitome of nanny-statism. This concept is diametrically opposed to Ron Paul’s entire platform.

“How can you support a candidate who denies the very constitutional principle that our movement used to win our freedom?”

Analysis: if that candidate decries this “constitutional principle” on the grounds that it’s not actually constitutional but is instead a dangerous move towards expansive federal power, it’s actually not that difficult. Mr. Farris’ position on this, right or wrong, is not a settled issue. Ron Paul’s argument against it is completely consistent with the rest of his views on the Constitution. He believes that the ends do not necessarily justify the means, and the means in this case are legitimately worrisome.

“Supporting Ron Paul in the name of homeschooling is like supporting Barack Obama in the name of reducing the national debt.”

Analysis: that’s just low. Straw man, guilt by analogy, and invalid premise all in one sentence. It’s entirely unfair and he must know it. Obama has demonstrated very little desire, absolutely no ability, and no reasonable intent to reduce the national debt (though a tremendous ability to do the opposite).

On the other hand, Ron Paul clearly believes that homeschooling not only should be legal, but is actually desirable. He clearly believes that parents have the ultimate right and responsibility to train their children. He clearly believes that getting the government completely out of education, and parents back into it, is the best solution. But he also clearly believes that the government “solution” to any problem of this nature usually just makes a bigger problem, and looking to the federal government to solve a state problem is not only unconstitutional, but it is also dangerous. Mr. Farris does not hold this view, and seems content to manipulate a vague federal law to exercise authority over states—as long as the argument agrees with his morality, anyway. I’m sure he is not happy that the same line of reasoning was used to allow abortion on a federal level.

Michael Farris is still wrong about Ron Paul.

I just came across this particular Facebook post from Michael Farris of the Home School Legal Defense Association (HSLDA) and Patrick Henry College. It doesn’t surprise me at all given his previous posts regarding his belief that Ron Paul is dangerous and unsuitable for the presidency. While he has done great things for home schooling in this country, Farris is someone who believes that Lincoln was justified in his position and actions against the southern states before and during the Civil War (which seems difficult to comprehend in light of the way Lincoln trashed the Constitution, judicial system, due process, and the 10th Amendment during his presidency). I say this based on personal correspondence that my dad had with him a few years back, along with his own published writings.

[1/12/2012 @ 10:45pm: I have learned some new things about Ron Paul, the Constitution, and my arguments over the last 72 hours. If I were to write this article right now, I would change some of it in a few significant ways. But since a couple thousand people have already read this and many have linked to it, it wouldn't be fair to simply modify the article, even if I no longer agree with everything I wrote. So, for the most complete view of my argument along with its history, feel free to read this including the two updates at the bottom, but please also read the revised analysis and rebuttal, Michael Farris, Homeschooling, and Ron Paul Redux. It is more thorough and deals with other underlying legal issues. I do still believe Michael Farris is wrong about Ron Paul on Homeschooling.]

Now, I am admittedly a very big fan of Ron Paul, and I think he is consistent, honest, and full of integrity. But lest you think I am blindly biased or only trying to kill the messenger, let’s look thoroughly at Mr. Farris’ argument.

The core of Dr. Paul’s supposed heresy is this:

“Ron Paul is an enemy of the legal principles that the homeschooling movement has used successfully to defend our freedom to teach our own children. He recently said that he does not believe that the 14th Amendment trumps the 10th Amendment. He said this is an abortion context (which proves that he is not politically pro-life) but, let’s examine what this means in a homechooling context.”

He then explains that this means that Dr. Paul believes that the 10th Amendment gives states the right to prohibit or regulate homeschooling, by virtue of the fact that Farris has leveraged the 14th amendment to win some of his cases:

“The case I won before the Supreme Court of Michigan for homeschooling freedom was based on the 14th Amendment. The federal constitutional principles of religious freedom and parental rights overrode the power of Michigan to require homeschoolers to all be certified teachers.”

Then, he makes this patently false claim, presumably to scare us:

“Home schooling would be legal in about 3 states in this country today if Ron Paul’s view of the Constitution was actually practiced by the Supreme Court.”

And finally, he asks this very loaded question, which sums up the straw-man argument:

“Do you agree with Ron Paul that the states have the exclusive authority over the legality of homeschooling and the 14th Amendment provides no constitutional right to homeschool?”

Yikes. How could any self-respecting homeschooler, or any advocate of civil liberties for that matter, support such a horrific concept? (I say “loaded question” in this case because the wording only allows him to be correct, and he’s actually asking us whether or not we are misguided idiots.)

The problem is that he has either twisted or misunderstood what Ron Paul actually believes and clearly says. First, let’s examine the particular part of the 14th Amendment in question, known as the “due process” clause:

“No state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

And here’s the full text of the short and sweet 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

And now, Dr. Paul’s 10th vs. 14th Amendment quote that serves as the basis for the argument:

“The Fourteenth Amendment was never intended to cancel out the Tenth Amendment. This means that I can’t agree that the Fourteenth Amendment has a role to play here, or otherwise we would end up with a ‘Federal Department of Abortion.’ … We should allow our republican system of government to function as our founders designed it to: protect rights at the federal level, enforce laws against violence at the state level.”

This was a written statement offering clarification, included as an addendum to his recent signature of the Personhood Pledge. It was clearly written with respect to abortion and not homeschooling, though at least Farris does admit that much. Ron Paul clearly believes that life begins at conception and therefore that abortion is killing a child. The individual rights of the unborn are no different from the individual rights of any other person. Abortion ought to be subject to the exact same laws that “regular” killing is, and these laws are written and enforced on a state level. However, the federal government DOES exist, as he stated, to protect rights, including the right to life. Therefore, no state can make a law that allows murder.

Farris would have us believe that Ron Paul thinks the choice for whether to allow homeschooling should be left up to the states. Nothing could be further from the truth. Here’s Dr. Paul’s official position.

Notable excerpts:

“Ron Paul believes no nation can remain free when the state has greater influence over the knowledge and values transmitted to children than the family does. … Congressman Paul wants parents to have the freedom to choose the best educational options for their children, and his commitment to ensuring homeschooling remains a practical alternative for American families is unmatched by any other Presidential candidate. As President, he will veto any legislation that encroaches on homeschooling parents’ rights. Returning control of education to parents and teachers on the local level is the centerpiece of Ron Paul’s education agenda.”

This is consistent with the volume of material written and spoken by Dr. Paul. Remember that he wants to (and has always wanted to) completely shut down the Department of Education, without delegating any of its roles to the states (as he would do with some other federal departments).

In Ron Paul’s view of the Constitution, contrary to what Farris says, any attempt whatsoever by either the state governments or the federal government to try to limit or otherwise control the legality of homeschooling is a clear violation not of the 14th Amendment, but of the 4th Amendment: the right to privacy. While the 14th Amendment is not bad, the 4th Amendment makes it mostly irrelevant in the case of homeschooling. The Constitution provides absolutely zero authority for the federal government to affect education. Presumably, individual state constitutions do not either, but if they do, that is a separate issue to be addressed as that would put states in violation of the 4th Amendment as well.

The 4th Amendment provides a strong foundation for keeping government entirely out of our personal lives until and unless we violate the rights of someone else (which, as Dr. Paul states, it is the role of the federal government to prohibit nationally and of the state government to punish locally).

Simply stated, with respect to homeschooling, the 14th Amendment says this:

“We can’t tell you not to teach your kids at home unless we do it in a way that maintains equality under the law.”

…while the 4th Amendment says this:

“We can’t tell you not to teach your kids at home.”

Which one is more reassuring?

As to Farris’ claim that, with Dr. Paul’s interpretation, homeschooling “would be legal in about 3 states,” it is easy to see that with Dr. Paul’s interpretation homeschooling would be legal in every state, with zero government restrictions. The 4th Amendment is extremely important to Ron Paul.

And as for his final question:

“Do you agree with Ron Paul that the states have the exclusive authority over the legality of homeschooling and the 14th Amendment provides no constitutional right to homeschool?”

Ron Paul clearly does not believe that the states have any authority, let alone exclusive authority, over the legality of homeschooling. And, strictly speaking, the 14th Amendment provides no such right to homeschool. That’s what the 4th Amendment does, combined with the utter absence of educational authority specified in Article 1, Section 8. The 14th Amendment, on the other hand, merely says they can’t take away any rights without due process. [Note: see Updates #1 and #2 below for further discussion of this point, which I would clarify differently, having done more research.]

However, I believe that Mike Farris also opposes Ron Paul on his drug policies, which indicates that perhaps he does not appreciate such a comprehensive, all-encompassing understanding of the 4th Amendment in the first place.

For some additional arguments and perspectives, check out these posts from others:

• Mary Pride’s response to Mr. Farris
• Bojidar Marinov’s excellent rebuttal to Mr. Farris
• Bojidar Marinov’s follow-up response to Mr. Farris
• Nathaniel Darnell’s response to Mr. Farris
• Ron Paul Campaign Names New ‘Homeschoolers for Ron Paul’ Nationwide Coalition Members

Update #1 – 1/9/2012 @ 8:30am

Michael Farris makes the following argument against using the 4th Amendment:

“The 4th Amendment prevents unreasonable searches and seizures. It is the 4th Amendment that we use to stop social service agencies from invading people’s homes. But, like the rest of the Bill of Rights, the 4th Amendment does not apply directly to the states. It only applies through the 14th Amendment. Anyone who claims that the 4th Amendment will protect homeschooling against state governments but that it is improper to use the 14th Amendment is simply and totally wrong and demonstrates that they know absolutely nothing about this area of law. Moreover, the 4th Amendment has nothing to say to any level of government about issues arising from compulsory attendance laws. That is straight up 14th Amendment issues with a bit of 1st Amendment thrown in on the side.”

This is misleading, particularly with respect to homeschooling. The 4th Amendment has indeed been incorporated against the states. Much, but not all, of the Bill of Rights are forced against the states via the Incorporation Doctrine. This is not the same as using the 14th Amendment as a legal basis (let alone the only legal basis) for applying the 4th Amendment to the states. From the linked page about the Incorporation Doctrine:

Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States. The U.S. Supreme Court subsequently declined to interpret it that way. Until the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers’ intent should control the Court’s interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham’s congressional testimony. Although the Adamson Court declined to adopt Black’s interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights.

This is not at odds with Ron Paul’s position on the 4th, 10th, and 14th Amendments with respect to either homeschooling or abortion. However, it is at odds with Mr. Farris’ position on the 14th Amendment.

However, it is admittedly true that a plain, logical reading of the 4th Amendment does not indicate anything about compulsory attendance. This is a separate issue. The federal government has no Constitutional authority in the realm of education, and so cannot force you to attend school any more legitimately than they can force you to purchase health insurance. However, there may be room in this area for individual state constitutions to require some kind of compulsory public education, as long as that is clearly specified as part of that state’s authority. They still may not prohibit homeschooling (the core of the argument here), but if the state does include compulsory public education as part of their governing document, then it is up to the citizens of that state to change that legally, or move to a different state where there is no such requirement.

On a different note, Mr. Farris has said that he is pursuing a possible debate/discussion directly with Dr. Paul, which is an excellent way to resolve (or at least clarify) this whole thing. I hope they actually do it.

Update #2 – 1/9/2012 @ 1:15pm

I am continuing to learn here, and I have to be up-front with what I have discovered about the previously mentioned Incorporation Doctrine. Ron Paul apparently does not believe this is a wise approach to expanding federal power, even though in many cases it has been used in ways where I (and he) would agree in principle with the outcome. If individual rights (life, liberty, property ownership, free speech, privacy, etc.) are universal and unalienable, then it seems like a good thing to enforce them universally. But doing so by reinterpreting the federal Bill of Rights so as to apply them to the states, which the states clearly did not sign up for in the beginning, may not be the right way to do it. It is still an expansion of federal authority beyond what was written, effected by the Supreme Court. I believe this is not allowed, given logically and thoroughly consistent reading of the Constitution as written.

It seems that many of the states have their own equivalent Bill-of-Rights-style language in their governing documents, and this is where the true authority is. The federal government has limitations on itself, while it has virtual no limitations on the states from a strict literal reading. The Incorporation Doctrine is a bit dangerous in this light, since it allows for an expansion of federal powers beyond what was written—even if, in many cases, this has been used in an arguably good way.

This does not change the constitutionality of federal interference in education, but it does affect the scope of what individual states can theoretically do (depending on their own respective state constitutions). My argument is largely the same, but leaves more potential for fighting battles on the state level. Federal legislation regulating, allowing, or prohibiting homeschooling still has no constitutional authority.

This is largely a moot point at this time, since the Incorporation Doctrine is alive and well—whether or not it should be from my or Ron Paul’s perspective. But it is important to note that this doctrine will not be used as a central part of a Ron Paul administration, at least not if he has anything to do with it. Given his strong pro-homeschooling perspective, the precedents that already exist, his desire to eliminate the Department of Education, and the growing social acceptance in general of homeschooling, I don’t believe this will be a significant problem.