Congratulations to Secretary DeVos.  She will now roll up her sleeves and work to ensure that our children receive the education they deserve, and not the education they have been receiving for a long, long time.  We know that she wants to begin by devolving a good portion of the responsibility for education from the federal bureaucracy to the states.

As noted by E. Jeffrey Ludwig in American Thinker on February 9, 2017, "Federalism in the area of education with its restored respect for state authority is the key to change and progress."  But this will just be a start, not the end.  It is time to resuscitate the Constitution of the United States vis-à-vis the responsibility for education.

There has never been a constitutional basis for any federal control over education in the states.  National government control of education is a constitutional travesty, a regulatory nightmare, a burden on the states' and the people's budgets, and a burden on the state and local education systems and institutions over which it has made itself the overseer.  Secretary DeVos is the right person to work toward the goal of removing the federal government from the educational process. 

Mr. Ludwig states that the trend of federal control over education, with its attendant uniformity, was perceived as early as 1926.  In fact, federal control, with many of its attendant problems, and the clear fact of its unconstitutionality, was perceived by members of Congress 50 years earlier.

Federal imposition into education in the states began just after the Civil War.  At the behest of the National Association of State and City School Superintendents, Congress created the first national office of education in 1866.  What the superintendents said they wanted was a bill that would:

1. Secure greater uniformity and accuracy in school statistics.

2. Bring together the results of school systems in order to determine their comparative value.

3. Assemble the different methods of school instruction and management for distribution.

4. Collect and diffuse information generated by school districts respecting state school laws, teacher qualifications, modes of heating and ventilation, and other subjects.

5. Help communities in the organization of their school systems.

6. Encourage education as a valuable object and shield of civil liberty.

The superintendents' group specifically stated that they wanted this national support "without [the federal government] being invested with any official control of the school authorities therein." 

There was neither mention of nor desire to utilize the federal treasury to fund any educational programs.  There was no hint by the superintendents that the federal office of education would do anything other than collect statistics.  In short, the department was to be an educational statistical service located in Washington, D.C.

But that's not what the superintendents got.

The 1866 bill stated, in part:

There shall be established, at the City of Washington, a Department of Education for the purpose of collecting such statistics and facts as shall show the condition and progress of education in the several States and Territories, and of diffusing such information respecting the organization and management of schools and school systems and methods of teaching as shall aid the people of the United States in the establishment and maintenance of efficient school systems, and otherwise promote the cause of education throughout the country.

The bill also provided that the Commissioner report to Congress annually "the results of his investigations and labors, together with a statement of such facts and recommendations as will in his judgment subserve the purpose for which this department is established."

This national bill was the camel's nose poking under the edge of the federal tent, and over the next 100 years, the camel came all the way in.  Though the initial educational sphere of action was small, the bill requested that Congress assert jurisdiction over the sphere of education itself, even though the Congress had absolutely no constitutional authority to do so.

In 1866, Congressman Andrew J. Rogers, a Democrat representing New Jersey's 4th Congressional District, spoke eloquently against the bill to establish a federal Department of Education.  Mr. Rogers declared that the bill:

... proposes to put under the supervision of a bureau established at Washington all the schools and educational institutions of the different States of the Union by collecting such facts and statistics as will warrant them by amendments hereafter to the law now attempted to be passed, to control and regulate the educational system of the whole country.

Rep. Rogers correctly noted that the bill was open on the question of future control but that it clearly asserted federal jurisdiction over education.  This opened the door, he stated, for control, either directly or indirectly, through funding or other means, at any time in the future when conditions proved that expediency should again be made the rule of constitutional construction.  To assert that the degree of federal jurisdiction was small and limited to statistics in no way impaired the jurisdictional claim, for once jurisdiction was established, government could assert complete sovereignty within that sphere at any time.

When expediency is the rule of constitutional construction, we will have a "living Constitution" rather than the actual Constitution we swear to protect and defend.  The battle to prevent this is being fought today, particularly in the arena of judicial appointments.  Rep. Rogers saw it coming.

Rep. Rogers also focused on the enormousness of the expense of the project and its open-ended nature, and the natural right of parents to educate their children.  He reiterated:

[N]o man can find anywhere in the letter or spirit of the Constitution one word that will authorize the Congress of the United States to establish an Education Bureau. If Congress has the right to establish an Educational Bureau ... for the purpose of collecting statistics and controlling the schools of the country, then by the same parity of reason, a fortiori, Congress has the right to establish a bureau to supervise the education of all the children that are to be found in ... this country. You will not stop at simply establishing a bureau for the purpose of paying officers to collect and diffuse statistics in reference to education.

Rep. Rogers correctly observed that power with respect to education was not to be found among those powers enumerated to Congress in the Constitution.

Looking at the Department of Education today, who can say that Rep. Rogers, Democrat of New Jersey, was wrong in 1866?  In 2014, the DoE budget was $67.3 billion, proposed to rise to $68.6 billion in 2015.  The bureaucratic state's camel, with all its attendant federal employees, is indeed thriving inside the national government tent, and American taxpayers are paying the fees to feed it.  Secretary DeVos should put Rep. Rogers's comments on the wall of her office and be inspired by them daily.

Michael S. Goldstein is an attorney in Northeast Ohio and a 30-year veteran of the Navy and of the U.S. intelligence community.  His articles appear in American Thinker.  Mr. Goldstein is the husband of, and was the campaign manager for, Dr. Beverly A. Goldstein in her race to be elected in November to represent Ohio's District 11 in Congress.