Chemerinsky’s Off-The-Wall Constitutional Ideas

January 7th, 2013

Erwin Chemerinsky made some waves at AALS where he proposed, in essence, that the Constitution requires that all private schools should be abolished (to the extent that they replace primary schooling–after-school programs could exist in Irwin’s world) and all students should be forced to attend public schools. This is the only way to abolish de facto educational segregation. He would argue that Milliken and Pierce v. Society of Sisters must be overruled. Marc DiGirolami and Rick Garnett have some comments on the religious liberty aspects of mandatory public education.

I have a few other constitutional objections.

Abolishing all public schools would be a massive taking, shutting down lawful businesses. As Rick and Mark point out, this would also be a broad infringement on religious liberties. I think someone commented that Orthodox Jewish students, who attend religious studies all day would have to leave the country. This would also represent an unprecedented infringement on state autonomy of how to manage something that historically has been within the provence of state governance. Even the Department of Education works through grants, not mandates (though what this means Post-NFIB’s is anyone’s guess).

And Erwin doesn’t just think these are good ideas. He thinks that the Constitution requires them–why else would the Supreme Court be able to overturn Pierce and Milliken but for a constitutional reason.

I know little about education policy, and do not wish to debate that issue. My focus is solely on Chemerinsky’s off-the-wall constitutional ideals on individual liberty.

You may also recall that Erwin Chemerinsky said that there would be absolutely nothing unconstitutional if the government forced people to purchase broccoli or GM cars.

Judge Vinson cited Chemerinsky’s views in his summary judgment opinion:

For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although ““what people choose to eat well might be regarded as a personal liberty”” (and thus unregulable), ““Congress could use its commerce power to require people to buy cars.”” See ReasonTV, Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful, August 25, 2010, available at: When I mentioned this to the defendants’’ attorney at oral argument, he allowed for the possibility that ““maybe Dean Chemerinsky is right.”” See Tr. at 69. Therefore, the potential for this assertion of power has received at least some theoretical consideration and has not been ruled out as Constitutionally implausible.20

Rick describes Chemerinsky’s arguments as “illiberal.” I think that is putting it mildly.