A Response to Goodwin Liu
Robin L. West
Georgetown University Law Center
May 3, 2011
Yale Law Journal (The Pocket Part), Vol. 116, pp. 157-162, 2006
Georgetown Public Law Research Paper No. 11-43
Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that Congress may, within the grant of power of the Fourteenth Amendment, address educational inequality, if it sees fit to do so (thus withstanding federalism challenges). Rather, Liu's claim is that the states, and Congress, jointly must do so. The Constitution imposes a duty on government to educate, and confers a positive right to an education upon the citizenry. A decent education, Liu argues, is part of what it means to be a citizen under the United States Constitution.
I applaud the constitutional and the moral ambition of this piece. Liu's paper is a stellar example of what I hope will prove to be an emerging genre: an exploration of the possible meaning of constitutional phrases in our constitutional text and history, as viewed through the lens of legislative purposes and legislative ends. The article is a study of constitutional politics rather than constitutional law; it is a study of the effect of constitutionalism on legislative decision-making rather than the effect of constitutionalism on adjudicated constitutional law. I hope that this article proves fecund – that it inspires not only criticism but also like-minded efforts to improve other aspects of our public life through a capacious view of our representative branch's constitutional obligations. Liu's argument has two somewhat undeveloped implications that I believe are worth exploring, one jurisprudential and one practical.
Number of Pages in PDF File: 7
Keywords: Constitutional Law, Constitutional Interpretation, Public Education, Politics and Legal Theory
JEL Classification: K00, K10, I28
Date posted: May 4, 2011