What’s the Matter with Kansas?


A Kansas court has just ruled that it would be unconstitutional under that state’s founding document to spend $548 million on police, infrastructure, health care or welfare. The court’s ruling does not explicitly disclose this, of course, nor will the judges on the panel admit it. But this is what happens when judges, who reside in a magical, apolitical world shorn of scarcity and therefore tradeoffs, mandate hundreds of millions of dollars in new education spending: The money comes from someplace else.In the real political world, where resources are finite, spending several hundred million dollars on education requires extracting them from either other programs or the state’s economy through taxation and borrowing. In either case, a court ordering such a decision makes the wholly political choice not to spend those resources in other areas.

This may, as a matter of policy, be a defensible choice. Schools in Kansas may be intolerably underfunded. But the month before the district court’s ruling, the state held a gubernatorial election that was largely a referendum on recent budget priorities, and the advocate of steep budget and tax cuts—Governor Sam Brownback—won. Consequently, what is at stake is not the extent of spending on education but the extent of popular control of political choices.

The district court’s ruling in the case, Gannon v. Kansas, applies an interpretation of the Kansas Constitution set forth by the state Supreme Court in the same case earlier last year. It was bad law and worse constitutionalism. The ruling hinges on the word “suitable” in this passage from Article Six of the state constitution: “The legislature shall make suitable provision for finance of the educational interests of the state,” interests earlier defined as “intellectual, educational, vocational, and scientific improvement.”

Kansas’ high court understands “suitable” to impose a substantive obligation to allocate education funds meeting standards of both “adequacy” and “equity.” These standards are themselves muddled. Adequacy is defined in terms of Kentucky’s Rose standards, which emanated from the pedagogically expert pens of that state’s Supreme Court. As to equity, might not such goals as “scientific improvement” require investing—the horror, the horror—inequitably, in the best and brightest or, conversely, in those who face the most formidable barriers?

The larger problem arises from combining this substantive obligation of “suitability” with the assumption that the authority to judge whether education funding is thus “suitable” is solely judicial. The Supreme Court of Kansas, less bashfully than its national counterpart, arrogates this authority to itself entirely. It announces at the outset of its Gannon opinion that “[d]etermining whether an act of the legislature is invalid under the people’s constitution is solely the duty of the judiciary.”

Are legislators and governors wholly excused? Apparently not, since the oath they take upon entering office pledges their fealty to “the constitution of the United States and the constitution of the state of Kansas. . . .” For his part, James Madison, commenting on Jefferson’s draft constitution for Virginia, said allowing the judiciary to pronounce last and finally on constitutional questions—precisely the power the Kansas court claims for itself—“was never intended and can never be proper.” For theirs, the justices of Kansas say that assigning themselves this duty—predictably, they are able to cite the authority of other courts citing other courts assigning themselves similar duties—say this is a matter of separation of powers. So the separation of powers, which was intended to preserve each branch in its own function, now requires the judiciary to perform a legislative one?

Even if the Kansas Constitution’s simple call for “suitable” funding implied a tall hurdle, which is unclear at best, it would not follow that the judiciary should be the arbiter of it. The mere presence of a word in a constitution does not confer all the substantive authority that word implies on the courts.

For confirmation of this, Kansas justices might look to their national forebear John Marshall, neither shy nor retiring in assertions of judicial power, who could have taken a similar tack in McCulloch v. Maryland. The issue at stake in that case was whether chartering a national bank was a “necessary and proper” exercise of Congressional authority under the language of the Constitution.

On the theory of judicial power propounded by the Kansas court with the term “suitability,” the addition of the word “necessary” to Article One, Section Eight, should confer on the courts both the right and the duty to determine which legislative powers meet that test. Marshall disagreed. “Necessary” inherently involving political discretion, and political discretion inherently being a prerogative of the legislature, he concluded:

If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

So it is, or ought to be, with “suitable.” Instead, the Kansas Supreme Court’s leap from one questionable premise—that “suitability” codifies everything from equitable financing to the Rose standards—to another, that the presence of such a standard in the Constitution makes the judiciary the arbiter of the adequacy of education funding, illustrates the particular problem of assigning judges political tasks.

Judges judge. They decide cases in front of them, one at a time, each on its merits. They do not have to worry that spending a dollar here requires a cutting or raising a dollar there. Indeed, they do not even have to worry about the fact that, say, the Kansas Constitution requires “suitable” financing for education but also that the state “shall” foster and support “[i]nstitutions for the benefit of mentally or physically incapacitated or handicapped persons” and that its counties “shall provide, as may be prescribed by law, for those inhabitants who, by reason of age, infirmity or other misfortune, may have claims upon the aid of society.”

Amid conditions of scarcity, which is to say amid the human condition, these goals conflict. A dollar spent on education is unavailable to those whose misfortune creates claims on society’s aid. One allocated to people with disabilities is one unavailable to education. Judges are neither competent nor democratically authorized to balance these allocations, and the state’s Constitution cannot conceivably be meant to have transferred such choices to them.

Nor are judges, whose expertise is the law, competent to assess the intricate economics of school finance, the particular tradeoffs interior to school funding (page 44 of the district court’s opinion worries about the insufficiency of professional development funds in areas outside reading, writing and arithmetic), or ascertaining the relationship between school funding and learning.

Of course, it helps if judges are contemptuous in addition to commandeering, as in this gem from page 91 of the district court’s opinion, which asserts the inadequacy of current school funding in Kansas: “[N]o evidence, other than that previously rejected by us, was offered to the contrary.”

The rejection of evidence with which they disagree might spare the judges consideration of facts such as the irony that two events coincided in 1966: Kansas amended its state Constitution to require “suitable” education funding, and James S. Coleman published his definitive study (link no longer available) shredding the relationship between school resources and academic achievement.

Never mind: The court has determined that per-pupil spending is inadequate. The cost of a remedy has been estimated at between $548 and $771 million, at a time when the state is already looking at a $648 million deficit. This is tantamount, again, to a declaration that spending that money on anything else—including items also constitutionally mandated, such as care for the needy—would be unconstitutional.

This is different from saying what may be true, which is that spending those sums on anything else would be unwise. Current levels of financing may well shortchange Kansas children. As Walter Olson has argued, that is up to their parents, not judges, to decide.   Their parents, acting through their representatives, can make tradeoffs, set priorities and gauge the level of taxation the state can bear. Judges, acting in the isolation of each case, are freed from those burdens.

The situation in Kansas, which could be rectified by a proposed constitutional amendment clarifying that suitability is a legislative question, supplies a reminder that one of the most indispensable skills in politics is losing gracefully in the political realm—where one can live to fight another day—rather than running to the judicial sphere for relief. It is a lesson that should caution libertarians and many conservatives against overindulging the growing appetite for judicial resolution of political questions.

Reader Discussion

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on January 06, 2015 at 10:54:19 am

Why should anyone be surprised by this? This is the same court that *imposed* higher taxes upon the citizenry in order to fund its vision of "suitable" support for education back in the late 1980's.

In my own state, the Washington supreme court has embarked upon a similar "mission" to assure that the state meets its goal of providing for education.

" the “paramount "duty” of the state, K-12 education takes precedence over other state spending" (so say the Black Robes of Washington)
–Education, however, is not the only constitutionally obligated expenditure.

And now for some much needed Judicial ARROGANCE:
–“The ultimate power to interpret, construe, and enforce the constitution of this state belongs to the judiciary.”
–“The effect of a judicial interpretation of the constitution may not be modified or impaired in any way by the legislature.”

And how is this for bastardizing Marshall's approach and overextending it!
"•Principle extends back to Marbury v. Madison (1803):
–“It is emphatically the province and duty of the judicial department to say what the law is.”(cited in School Funding I and Brown)"

And the dear Black Robed figures have seen fit to hold the legislature in contempt (or are in the process of doing so).
Oh well, I suppose when one elects Constitutional eunuchs to the Legislature, one is grudgingly forced to admire those with gonads!

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Image of gabe
on January 06, 2015 at 10:59:35 am

Left untouched is the root of the political and social problem here:

The ruling hinges on the word “suitable” in this passage from Article Six of the state constitution: “The legislature shall make suitable provision for finance of the educational **interests of the state,** ”

Once a people begin by accepting that the (or a) State has interests, the game is up.

No matter how "defined," States qua States have NO interests; only people have interests. We observe they conflict or can be brought into cooperation. When "assigned" or ceded to a political body such as a State, the resolution of conflicts result in absurdities at the least and destruction at the extremes.

The issues are not those of "suitability," "equity," etc. they are those of interests and their divestment from the public's responsibilities and control.

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Image of R Richard Schweitzer
R Richard Schweitzer
on January 06, 2015 at 11:53:26 am

This authoritarian decision - the kind of thing one would expect from the frankly autocratic Israel Supreme Court - illustrates the futility of the notion treasured by many conservatives that the leftist tendencies in American government and society can be thwarted by transferring power back to the states from the federal government. In just about every state of the union, regardless of the balance of power between the parties or between Right and Left, the judiciary is firmly under the control of the Left as a result of rules limiting the governor's choice of nominees for the highest court to a list put together by committees dominated by bar associations and the existing judiciary. Thus, for example, if Roe v Wade were overruled, 45 or so state Roes would ensue with alacrity. Rather than change the education provisions of the Kansas constitution, Kansas should change the method for the selection of its Supreme Court justices. But it is unlikely that the nonideological public can be induced to care about such an arcane matter, and the Republicans' risk-averse business donors would probably oppose any attempt at change.

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Image of djf
on January 06, 2015 at 12:51:07 pm

Quite right! - e.g., recent reports from California indicate the approximately 85% of "educational" funds go to salaries, benefits and pensions. Hardly a *state interest* - unless of course one accepts the now popular belief that only state employees are the State.

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Image of gabe
on January 06, 2015 at 12:55:44 pm

Pretty much correct. In my state, Supreme Court Justices are elected by the voters. don't know which is worse - as not many voters actually know anything about the Black Robes anyway!

However, let's not let the Legislature off the hook here - they have it within their power, should they find the will, to force a confrontation with the Black Robes and insist that funding levels are a POLITICAL decision. Yet, they do not. This is true of both parties.

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Image of gabe
on January 06, 2015 at 13:01:16 pm

And how do Supreme Court justices get on the ballot in your state? Judicial "elections" are usually just a pantomime of democracy.

That the legislators do not take on the state Supreme Court just illustrates my point that the same dynamic that keeps the Left in control at the federal level is at work in the states. The idea that the left can be effectively combatted through transfer of power to the states is a chimera.

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Image of djf
on January 06, 2015 at 13:13:51 pm


I don't dispute at all the effect of the left's monopoly on judicial selection. I agree wholeheartedly.
Typically, our Black Robes are nominated by party. However, there is no will on the part of the *right* elements to insure that *right* thinking folks are able to make it through the process. And in those rare circumstances when they do, the media immediately tears them up either before the election or after they make a correct decision on the court.
As I said, I do not know which is worse.
However, the ultimate issue may be this:
That the Legislature has no b*lls. It is all well and good for one branch to assert "Supremacy" - it will only work if another branch allows it.

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Image of gabe
on January 06, 2015 at 13:14:16 pm

Gabe--Thanks. Would just note, re: "It is emphatically the province and duty of the judicial department to say what the law is": Louis Fisher is terrific on this. He notes that nothing about this precludes it *also* being the province and duty of Congress to say what the law is. That is, "emphatically" doesn't mean "exclusively." If it's "emphatically the province and duty" of my academic department to teach its classes, that doesn't mean it isn't also the province and duty of the Math, English, etc. departments to teach theirs. Marshall is actually reasonably modest here compared to today's black robes.

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Image of Greg Weiner
Greg Weiner
on January 08, 2015 at 10:31:04 am

"Consequently, what is at stake is not the extent of spending on education but the extent of popular control of political choices."

Interesting, but largely irrelevant. A while back the voters of Alabama made the political choice to elect a governor that stood in the door of Foster Auditorium at the University of Alabama in order to block two African Americans from registering for classes. The fact that the voters made the chose didn't make Wallace's actions right or legal. Relying on the voters for the authority to do something doesn't necessarily provide a solid foundation.

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Image of Jerry Vandesic
Jerry Vandesic

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.