Education, Caesar’s or God’s:
A Constitutional Question of Jurisdiction

by Herbert W. Titus

First:   Foundation for Public Education in America
Second:   Constitutionality of Public Education in America

B.    Religion and Education in the U.S. Constitution (con’t.)
A careful examination of the legislative history reveals that the members of Congress chose the word. “religion,” not to separate one kind of subject matter from another, as if engaged in an academic enterprise or in the writing of a dictionary. Rather, they used the word, “religion,” to settle a longstanding political conflict over jurisdiction between the civil government, the church, God, and man.

The early drafts of the free exercise of religion clauses that were adopted in the several state constitutions during and after the American Revolution explicitly recognized this jurisdictional purpose. For example,. Section 16 of the June 12, 1776, Virginia Bill of Rights read, as follows:

That religion, or the duly which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience …”113 (Emphasis added.)

The First Congress rested its support for the religious freedom guarantees in the federal Bill of Rights on this very provision in the Virginia Constitution. The word, “religion,” was understood as a shorthand way of describing all those affairs that belonged exclusively to God. Other early state constitutions spelled out these non-State enforceable duties.114 The underlying principle was clear. Only those activities that were amenable to the coercive power of the state were “non-religious” and, therefore, subject to the state’s jurisdiction.115 Those activities that were not amenable to “force or violence” belonged to God and, therefore, were outside the state’s jurisdiction.116 The Establishment Clause extended this Free Exercise principle to preclude the new federal government from taxing and subsidizing activities that had already been constitutionally identified as outside the “coercive” power of most of the several states.

America’s early constitutional authorities understood this jurisdictional purpose quite well. James Madison’s famous “Memorial and Remonstrance on the Religious Rights of Man”117 was written in opposition to a Virginia law that would have financed “teachers of the Christian religion.” Madison did not object to this proposal because the subject matter to be taught was Christian. Rather, he argued that “the opinions of men, depending only upon the evidence contemplated in their own minds, cannot follow the dictates of other men …” What a man believed and, therefore, what he was taught was “a right towards men … (because it was) a duty toward the Creator.” This right was unalienable because:

(T)he duty of every man to render the Creator such homage, and such only, as he believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation, to the claims of civil society.

Madison, then, continued to explain the jurisdictional argument, as follows:

Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe, and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with the saving allegiance to the universal sovereign. (Emphasis added)

According to Madison. the “civil magistrate,” i.e., the state tax supported teacher, had no authority to “judge the truth,” because that was assigned by the law of nature to God alone.

Jefferson’s views echoed those of Madison’s. In 1779, Jefferson introduced An Act for Establishing Religious Freedom118 in the Virginia General Assembly with these remarkable words:

Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, … are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, … who, … have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; …

From these early documents we may draw two incontestable conclusions. First, our constitutional forefathers used the word, “religion,” to denote those affairs outside the jurisdiction of civil government. Second, they understood that “the law of nature and of nature’s God” determined which affairs belonged under the civil government and which belonged to the sovereign Creator of the universe.

Modern courts and legal scholars have respected neither of these objectives. Moreover, they have never given an adequate definition of religion in subject matter terms. Indeed, that has proved to be an intractable problem. Nor have they been able to define “religion” in such a way to ensure government “neutrality” about religious values in ita laws. Both courts and scholars have found it impossible to extract the religious element from law.

Examples from court opinions abound. After the United States Supreme Court upheld the Sunday Closing Laws, it summarily approved a Kentucky law that exempted Sabbatarians from the Sunday laws in that state,119 even though they had previously denied a Sabbatarian’s claim that such an exemption was required by the Free Exercise Clause.120 Likewise, the Court has approved Congressional endorsement of conscientious religious objection to all wars to the exclusion of such objection to “unjust” wars in the selective service law.121 Yet, the Court has strongly suggested that the Free Exercise Clause would not require Congress to afford any religious conscientious objection exemption.122 The point is a simple one: both the state and the United States legislatures may embrace a policy based upon a preference for or against a particular religious belief without running afoul of the Constitution. Such a policy may be “neutral in the sense of the Establishment Clause,”123 but it is not neutral in the sense that it endorses no religious value.

Most recently the Supreme Court has affirmed this point when it rejected the Establishment Clause claim that the Hyde Amendment, which limits federal funding for abortions according to the standards of the Roman Catholic faith, was unconstitutional.124 Professor Tribe had made a similar argument in support of the Court’s opinion in Roe v. Wade,125 but he later admitted his error:

Suggestions have been advanced that the interest in fetal life is intrinsically religious, or at least that the inescapable involvement of religious groups in the debate over abortion rendered the subject inappropriate for political resolution and hence proper only for decision by the woman herself. But, on reflection, that view appears to give too little weight to the value of allowing religious groups freely to express their convictions in the political process, underestimates the power of moral convictions unattached to religious beliefs on this issue, and makes the unrealistic assumption that a constitutional ruling could somehow disentangle religion from future public debate on the question. (Footnotes omitted.)126

Not only is it impossible to chart a course of “religious neutrality” in government affairs, it was never the intention of the drafters of the Constitution to chart such a “neutral” course. Joseph Story stated that truth with unmistakable clarity in his famous Commentaries:

… (T)he right of a society or government to interfere in matters of religion will hardly be contested by any persons who believe that piety, religion. and morality are intimately connected with the well-being of the state, and indispensable to the administration of civil justice.127

The question for Story, as it was for Madison and Jefferson, was one of power or authority – not one of neutrality. While Story may have disagreed with Jefferson over where to draw the jurisdictional line, he never doubted that the law that was appropriately within the authority of the civil government embodied religious values:

One of the beautiful boasts of our municipal jurisprudence is, that Christianity is a part of the Common Law, from which it seeks the sanction of its rights, and by which it endeavors to regulate its doctrines. … There has never been a period in which the Common Law did not recognize Christianity as lying at its foundations.128

According to Story, the “error” of the Common Law that was to be rectified by the constitutional religious freedom guarantees was one of jurisdiction:

It (the Common Law) tolerated nothing but Christianity … and with unrelenting severity consigned the conscientious heretic to the stake … Thus, justice was debased … by calling in the aid of the secular power to enforce that conformity of belief, whose rewards and punishments belong exclusively to God.129

In the 19th century, the United States Supreme Court followed Story, Jefferson and Madison. In Reynolds v. United States, for example. the Court recognized explicitly that the free exercise clause raised. fundamentally, a jurisdictional question:

… (T)here never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.130

Unfortunately, the Court has not followed this early approach in its later decisions. Instead, it has eschewed absolute demarcations of jurisdiction between church and state for an ad hoc balancing technique based upon the Court’s assessment of a “compelling state interest.” For example. Amish parents have successfully kept their children out of school after the eighth grade, whereas an Amish employer has failed to keep his employees out of the social security system. Why? Because the Court believed that the survival of the social security system depended upon the allowance of no exceptions other than those legislatively prescribed whereas the public school system, and the society it serves, would survive a few Amish dropouts.131

Not only has the Court failed in the free exercise cases, it has also overlooked the historic jurisdictional purpose of the Establishment Clause. It has never examined any public school or other public financing of education case under the Establishment Clause as a question of jurisdiction. Rather, it has accepted without question the premise that the state has jurisdiction to educate. As a result, the Court has attempted to keep the state “neutral” about “religion” in its educational enterprise.

This so-called doctrine of “neutrality” is leading the courts and school administrators to excise one by one whatever remains of this country’s Christian heritage in the public school. While the Supreme Court has warned against the establishment of the religion of “secular humanism,”132 it has led the way to the ascendancy of the Humanist Manifesto as the official faith in public schools.

The truth is that one cannot be neutral about God in education. Either the fear of the Lord is openly acknowledged as the beginning of knowledge, as the writer of Proverbs has said,133 or He is not. If God cannot be mentioned as the source of knowledge – and He cannot under current Court findings – then the Christian philosophy of truth is excluded daily from every public school classroom in this nation. That state of affairs is certainly not “neutral.”

But the answer is not to put God back into public education or to give Him equal time or to camouflage His truth as “science.” Rather, the answer is to be found in an examination of the premise upon which all government aid to education rests – namely, that the government has jurisdiction to educate.

The opinions of man, his beliefs and thoughts, were affairs that Madison, Jefferson and others believed to belong to God, not man. Because education is designed to shape those opinions, it is clearly outside the jurisdiction of civil governments. That is the teaching of God’s word and, therefore, is commanded by the law of nature and of nature’s God as that term was understood by the drafters of our Declaration of Independence.

The First United States Congress recognized this truth when it enacted Article Ill of the 1787 Northwest Ordinance:

Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.134

Even before the Bill of Rights, Congress knew that religion and education were inseparable and that the government could encourage, but not establish an educational system.

We have departed from these two principles in the public education system in America. The Supreme Court should return to the historic purpose of the establishment and free exercise clauses and find the public school systems of this land as unconstitutional establishments of religion and interferences with free exercise of religion as the drafters of the First Amendment originally intended.

C.    Speech, Press, and Education in the United States Constitution

But the question of the constitutionality of public education is not limited to the religious guarantees. Rather, taxing, supporting, and operating systems of public schools also transgress the First Amendment’s free speech and press clauses. Unlike the argument that government financing of education violates religious freedom, the argument that the public school system violates the free speech and press clause fits more easily into the prevailing views about those constitutional guarantees.

While there has been, and continues to be, controversy over the historic purposes of the free speech and press clauses of the United States Constitution, there is near unanimity that their purposes relate to two oppressive practices sanctioned by the common law in England at the time of, or in the century before, the American Revolution and by the licensing, taxing, and subsidization programs that governed the press in 17th- and early 18th-century England.

First, the Free Speech and related clauses, including the treason clause of Article III, Section 3, Clause 1, prohibit the government from enacting and enforcing the common law of “constructive treason,” namely, a law the purpose of which is to prohibit a person from “compassing or imagining the death of the government.” Thus Justice Stevens recently wrote with confidence in his majority opinion in Young v. American Mini Theaters, Inc.:

A remark attributed to Voltaire characterizes our zealous adherence to the principle that the government may not tell the citizen what he may or may not say. Referring to a suggestion that the violent overthrow of tyranny might be legitimate he said: I disapprove of what you say, but I will defend to the death your right to say it.’ The essence of that comment has been repeated time after time invalidating attempts by the government to impose selective controls upon the dissemination of ideas.135

Second, the Free Speech and related clauses prohibit the government from enacting the common law of seditious libel, namely, a law that protects the government’s reputation. Thus, Justice Brennan wrote for the majority in New York Times v. Sullivan:

For good reason, no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.136

Third, the Free Speech and Press clauses prohibit the government from enacting a licensing scheme comparable to that prevailing in England to suppress some opinions and to favor others solely because of the government’s agreement or disagreement with their content. Thus, Justice Thurgood Marshall wrote for the majority in Police Department of Chicago v. Mosley:

But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content …

Necessarily, then, … government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.137

Moreover, these clauses were designed to prohibit the state from limiting access to First Amendment private forums by taxation. Thus, Mr. Justice George Sutherland wrote for the majority in Grosjean v. American Press Co.:

… (T)axes (of newspapers) constituted one of the factors that aroused the American colonists to protest against … the home government; … the revolution really began when, in 1765, that government sent stamps for newspaper duties to the American colonies.

These duties were quite commonly characterized as taxes on knowledge,’ … (and) had, and were intended to have, the effect of curtailing the circulation of newspapers …

… (T)he dominant and controlling aim was to prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect to their governmental affairs. … (T)he aim of the struggle (against these taxes in England and America) was not to relieve taxpayers from a burden, but to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government …

In 1785, only four years before Congress had proposed the First Amendment, the Massachusetts legislature, following the English example, imposed a stamp tax on all newspapers and magazines. … (The tax) met with such violent opposition that … (it) was repealed in 1788 …

The framers of the First Amendment were familiar with the English struggle … and the then recent Massachusetts episode…. It is … impossible to believe that it (the Amendment) was not intended to bring within reach of these words (freedom of press) such modes of restraint as a (licensure tax on newspapers)….138

Finally, the drafters of the United States Constitution carefully avoided sanctioning government subsidization of speech and press when it drafted Article I, Section 8, Clause 8 of the United States Constitution:

The Congress shall have Power … to promote the Progress of Science and Useful Arts, by securing for limited times to Authors and inventors the exclusive Right to their respective Writings and Discoveries.

This is the only grant of power to Congress with a statement limiting the means of exercise of that power. The drafters deliberately chose language to exclude any possibility that this grant authorized Congress to “subsidize” the sciences and the useful arts and thereby to repeat the 18th-century English experience where the government subsidized with tax revenues favored authors and artists.139 The word “securing” was sufficient insurance that the copyright law of the early part of the 18th century was to be within the jurisdiction of the new federal government, but not the efforts of the English government to substitute a system of taxation and subsidization for that of licensing in order to control the press by promoting the opinions that it desired.

What is remarkable about the system of public education in light of this summary is that it rests upon a policy that contradicts each of the two fundamental free speech principles and that it utilizes each of the three forbidden techniques of controlling speech and press, namely, licensing, taxing, and subsidization.

The justification for the public school system that has been given by all legal scholars and judges is this: To ensure that the State’s young people are educated to become good citizens.140 Thus. Chicago education professor, Newton Edwards, has stated that “(t)he state … can prohibit the teaching if doctrines which challenge the existence of the state and the well being of society.”141 State legislatures and boards of education have consistently adopted laws and regulations that require certain points of view to be taught to the exclusion of others.

The underlying assumption of public education is that the government has authority to control the thoughts and the minds of its youth. This is not a phenomenon of 20th-century Big Brotherism, but, rather, it was built into the very foundation of public education by its first and foremost proponent, Horace Mann:

As for public control, it was at the very center of the common school idea … Public control – through the legislatures, the Board of Education, local school committees, and other civil agencies – was the means by which the public could participate in defining the public philosophy taught its children.142 (Emphasis added.)

With the ultimate purpose of government control lying at its very foundation, no system of public education should be able to withstand constitutional scrutiny under Court standards such as the following:

… (A government) may not select which issues are worth discussing or debating in public facilities. There is an equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.143

The United States Supreme Court has recently held that the public school classroom is a public forum available for free speech activities. In Tinker v. Des Moines School Dist., Justice Fortas concluded for the majority that the public school official could not enforce a policy that singled out for prohibition the expression “of one particular opinion” when other opinions were allowed. While Justice Fortas acknowledged that bona fide discipline and other “time, place, and manner” policies were constitutional, those legitimate concerns did not include “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.144

According to Tinker, the school officials have “comprehensive authority … to prescribe and control conduct in the schools,” but not the subject matter or points of view presented in the classroom.145 Even Justice Harlan, in dissent, argued that it would be illegitimate for a school official purposefully to “prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.”146

But Justice Fortas’ majority opinion was even more forceful:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are persons’ under our constitution. … In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.147

In the public classrooms across America government officials prescribe the subject matters taught and the points of view taught, they select the textbooks and the teachers both with an eye to the content and to the philosophy presented. Public education is designed to “foster a homogeneous people,” the very thing that Justice McReynolds repudiated as permissible in the case of Meyer v. Nebraska.148 While the Court in Meyer expressly noted that no challenge of the State’s power to prescribe a curriculum for institutions which it supports had been made, it affirmed a principle that could be easily applied to dismantle the public education system as it is currently operated.

One might argue that the answer to these constitutional objections is to require that all points of view be presented in the public school classroom or that “content” and other impermissible discriminatory standards be prohibited in the operation of the public schools. That would, perhaps, be the conventional response. For example, Mr. Justice Douglas has suggested that the Corporation for Public Broadcasting, a federal government agency, should be required to afford equal time to all points of view and all constitutionally protected subject matters.149 This view was most recently endorsed by four dissenting Justices in Lehman v. Shaker Heights150 when Justice Brennan argued that a city-owned bus could not afford advertising space for the League of Women Voters and deny that apace to a candidate for public office.

If Tinker has established that the public school classroom is a First Amendment forum, is the constitutionally mandated equal time solution, as suggested by Justices Douglas and Brennan, the answer to the free speech problem posed by current government policies discriminating on the basis of content and point of view? Public educators would promptly oppose that proposition as unworkable and chaotic. No public school system could possibly function under such a constitutionally required order. Rather, their attorneys would argue that the Government has complete editorial control over the subjects and points of view officially presented in the classroom. In support of this proposition they might rely on Justice Douglas’ suggestion in his concurring opinion in Lehman v. Shaker Heights that the city-owned bus in that case was more akin to a city-owned newspaper and that, as owner, the city had the same right to deny access – to the bus for political advertisements as did the Miami Herald to deny access to its newspaper to a political candidate whose views the newspaper publisher and editor opposed.151

In effect, the Government’s position would be that their authority over public school educational policy is commensurate with the authority of the owners of private schools. Hence, they would contend that their First Amendment rights are the same, namely, to dictate what is to be taught, and how it is to be taught.

This argument, if accepted, would turn the free speech clause on its head. That clause is a limitation on the power of government, not a grant of power to government. Moreover, the free press clause specifically prohibits any government program of licensing, taxation, and subsidization of a First Amendment forum, the sole purpose of which is to present or to teach certain subjects and points of view favored by the government.

Like the religious clauses in that Amendment, the Press Clause, to be properly understood, must be interpreted in light of the history of the adoption of the Bill of Rights. Before the ratification of the first Ten Amendments, Congress had authority under Article I, Section 8, Clause 8 to promote science and the useful arts by enacting copyright and patent laws. Under either the taxing and spending clause or the necessary and proper clause, Congress might supplement those laws by taxing and spending programs or other acts for the same purpose.

One of the leaders in the struggle for the Bill of Rights, Richard Henry Lee, believed that the “general welfare” clause threatened the freedom of the press. In his Letters from the Federal Farmer, Lee wrote the following:

… (I) am not clear that Congress is restrained from laying any duties whatever on printing, and from laying duties particularly heavy on certain pieces printed … should the printer say, the freedom of the press was secured by the Constitution of the state in which he lived, Congress might, and perhaps, with great propriety, answer, that the federal constitution is the only compact existing between them and the people….152

While Alexander Hamilton attempted to refute Lee’s contention in Federalist Paper Number 84, his views did not prevail. James Madison’s original proposals triggering the first Ten Amendments included the following:

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments: and the freedom of the press, as one of the bulwarks of liberty, shall be inviolable.153

The House committee report, while bringing the language more in conformity with the text of the First Amendment, reaffirmed the Madisonian principle “that these rights belonged to the people.”154

At the heart of the constitutional free press guarantee, then, is that the government has no jurisdiction to tax the press as press, to subsidize the press with tax revenue, or to enter the press business, itself. The right to own and operate the press is outside the jurisdiction of the government. To establish a Washington, D.C., version of PRAVDA would encroach upon the exclusive right of the people to engage in journalism.

But the right of free press is not a special privilege held only by newspapers and other traditional media enterprises. Rather, the press principle extends to the amateur pamphleteer, the private school, and even to the ordinary homeowner.

That principle grants exclusive jurisdiction over access to those private First Amendment Forums to their owners or occupiers. Thus, the United States Supreme Court has observed in Miami Herald v. Tornillo:

A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.

… Compelling editors or publishers to publish that which ” reason’ tells them should not be published” is what is at issue in this case …

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forego publication of news or opinion by the inclusion of a reply, the Florida (right to reply) statute falls to clear the barriers of the First Amendment because of its intrusion into the function of editors.155

Likewise, the Supreme Court has held in a long line of cases that the government cannot intrude upon the homeowner’s function as editor of what he will hear at the door of his home. That principle has been recently affirmed in Justice White’s majority opinion in Village of Schaumburg v. Citizens for a Better Environment.156 As Justice Black wrote tor the majority of the Court in Martin v. Struthers:

The right of freedom of speech and press has broad scope …. This freedom embraces the right to distribute literature … and necessarily protects the right to receive it …

…(This) ordinance does not control anything but the distribution of literature, and in that respect it substitutes the judgment of the community for the judgment of the individual householder….

… The National Institute of Municipal Law Officers has proposed a form of regulation… which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs – with the homeowner himself.157

What of the parent’s function to educate his children, a constitutionally recognized right in a long line of cases beginning with Meyer v. Nebraska? May that function be assumed by the government so that instead of a parent’s making the decisions about subject matter and point of view, the government does? Does the right of parents to send their children to private schools adequately meet the constitutional standards under the Press principle of the First Amendment? I think that the answer is “No.”

May the government use its taxing and spending power to subsidize competing newspapers, pamphlets, schools, and other such enclaves to counter the views expressed in those private forums? To allow the government to do so would be to ignore history.

After all in the early 18th century, after the English government failed to control the views of political dissidents by its licensing system, it turned to a taxing and subsidization scheme to promote those who favored views compatible with those of the government.158 Surely the free press clause was designed to halt the repetition of that despised practice.

Today, the federal, state, and local governments tax the people to license teachers and schools, to sponsor research, to aid public and private schools, and to support other educational programs to promote the views of these governments on subject matters ranging from politics to science. Since education is clearly a free speech activity, all such programs unconstitutionally usurp the right of the people to choose freely the educational programs that they desire to support financially.

Just recently, the United States Supreme Court faced a similar issue in Abood v. Detroit Board of Education. Striking down a Michigan statute that required its public teachers to contribute to a teacher union’s political activities, the Court observed:

The fact that the … (teachers) are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.159


In summary, government support of education at the federal, state, and local levels is unconstitutional. Education is an unalienable right of the people and, consequently, it is a duty owed to the Creator, not the state. Both the Establishment and the Free Exercise clauses preclude the civil government from exercising jurisdiction over the education of the people. Moreover, public education fails every free speech and press rule and violates the right of the people to be free from taxes that support any government-run program that is designed solely to support the government’s views.

Taking these contentions seriously, even if one is sympathetic to them, may appear, upon initial consideration, unthinkable. Would a court seriously entertain a lawsuit to dismantle the government-supported schools that exist in every community in this nation? Before shrinking back from the enormous odds against a successful challenge to the public education establishment, one ought first to consider the impact of a well-documented Brandeis brief cataloging the violence, the failures, the disobedience, the waste, and the frustrations that are the everyday experience of taxpayers, parents, students, teachers, and administrators in public schools across the nation.

Moreover, one ought to take courage to do what is right, regardless of the prospects of success. One of the great Old Testament prophets, Samuel, must have had second thoughts when he first challenged King Saul’s authority to make the offerings to God before going into battle against the Philistines. Alter all, what match was Samuel against Saul? Yet, Samuel did not fail in the task that God had assigned him:

Thou has done foolishly: thou hast not kept the commandment of the Lord thy God, which he commanded thee: for now would the Lord have established thy kingdom upon Israel forever. But now thy kingdom shall not continue: the Lord hath sought him a man after his own heart … because thou hast not kept that which the Lord commanded thee.160

Because Samuel dared to do right, King Saul lost his kingship and David became king. The time has come to challenge the illegitimate government-financed and operated schools and return education to its rightful place – to the people, to the family, and to the church, where it belongs.

First:   Foundation for Public Education in America
Second:   Constitutionality of Public Education in America


*     Copyright © 1982, 2021 Herbert W. Titus. This article originally published in Journal of Christian Jurisprudence, Vol. 3 (1982). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.
113.    Constitution of Virginia, Section 16 (1776), reprinted in Sources Of Our Liberties 312 (R. Perry, ed. 1972).
114.    Constitution of Pennsylvania, Section II (1776), reprinted in Id. at 329.
115.    See Romans 13:4(b), “… (The civil government) is the minister of God, a revenger to execute wrath upon him that doeth evil.”
116.    See Acts 5:28-29, “… Did we not straitly command you that ye should not teach in this name? … Then Peter and the other Apostles answered and said, We ought to obey God rather than men.”
117.    Basic Documents Relating to the Religious Clauses of the First Amendment (Americans United for Separation of Church and State) 7-14 (1965).
118.    T. Jefferson, Papers 545 (1950). Unfortunately, Jefferson did not act consistently with this statement of principle. See text, supra, note 84.
119.    Arlan’s Department Store v. Kentucky, 371 U.S. 218 (1962).
120.    Braunfeld v. Brown, 366 U.S. 599 (1961).
121.    Gillette v. United States, 401 U.S. 437 (1971).
122.    Id. at 461-462.
123.    Id. at 453.
124.    Harris v. McRae, 448 U.S. 297, 319-20 (1980).
125.    410 U.S. 113 (1973).
126.    L. Tribe, American Constitutional Law, supra, note 110, at 928.
127.    II J. Story, Commentaries On The Constitution of the United States 628 (5th ed. 1891).
128.    Story, “Discourse Pronounced Upon the Inauguration of the Author As Dane Professor of Law in Harvard University, August 25th, 1829,” reprinted in The Legal Mind In America 178 (P. Miller, ed. 1982).
129.    Id. at 178-179.
130.    96 U.S. 145, 165 (1879).
131.    Contrast Wisconsin v. Yoder, 406 U.S. 205, 221-229 (1972) with U.S. v. Lee, 455 U.S. 252, 50 L.W. 4201, 4203-4204 (1982).
132.    Abington School District v. Schempp, 374 U.S. 203, 225 (1963).
133.    Proverbs 1:7.
134.    Northwest Ordinance, Art. III, reprinted in Sources Of Our Liberties 396 (R. Perry, ed. 1972).
135.    427 U.S. 50, 63 (1978).
136.    376 U.S. 254, 291 (1964).
137.    408 U.S. 92, 95-96 (1972).
138.    297 U.S. 233, 246, 247, 248 (1936).
139.    See F. Siebert, Freedom of the Press In England 1476-1776, 323-45 (1952).
140.    See text at notes 32-38 supra.
141.    N. Edwards, The Courts and the Public Schools, supra note 32, at 24.
142.    Cremin, “Horace Mann’s Legacy,” in The Republic and the School 19-20 (L. Cremin, ed. 1957).
143.    Police Department of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
144.    393 U.S. 503, 509 (1969).
145.    Id. at 507.
146.    Id. at 528.
147.    Id. at 511.
148.    262 U.S. 390, 402 (1923).
149.    C.B.S. v. Demo Nat. Comm., 412 U.S. 94, 149-50 (1973) (Douglas concurring).
150.    418 U.S. 298, 315-322 (1974). The majority rejected this argument only because they found that the city bus was not a “First Amendment forum.” Id., at 304.
151.    Id., at 306.
152.    I Schwartz, supra, note 94, at 474.
153.    II Schwartz, supra, note 94, at 1026.
154.    Id., at 1090.
155.    418 U.S. 241, 256, 258 (1974).
156.    444 U.S. 620 (1980).
157.    319 U.S. 141, 143, 143-144, 148 (1943).
158.    E. Barrett and W. Cohen, Constitutional Law 1105-1108 (6th ed. 1981).
159.    431 U.S. 209, 234-35 (1977).
160.    I Samuel 13:13-14.