Education

A Proposal on Reforming the Supreme Court

July 28th, 2015 // 8:12 am @ Oliver DeMille

by Oliver DeMille

I don’t mean it. I’m going to propose it, but I don’t really want it. Or think it’s a good idea. This proposal is meant to be ironic. But it still needs to be said, because there is far too much truth to it.

Supreme Parliament of the United States

In the wake of recent Supreme Court decisions, it’s clear that the Court doesn’t just try cases. It now writes law. It isn’t only a Supreme Court, it’s the de facto Supreme Parliament of the United States as well.

The Court uses some decisions to simply rewrite the laws of the nation, including the laws of the states. It’s been doing that for some time,[i] of course, but now it’s taking this approach to a whole new level. It has decided that the 9^th and 10^th Amendments are outdated, and it just ignores them.

For example, the Court labels Obamacare a “tax”, even though the Congress and President who proposed and passed it never called it that, and even though it skirts many state laws. The Court just makes up its own way.

Forget the actual case at hand; the Court is convinced that it has the power to create whatever it chooses out of thin air. Whatever the Court says, goes. Call it a “tax”. And call marriage a Constitutional right, even though the word “marriage” and the concept of marriage are never even mentioned in the Constitution or any of the Founder’s commentaries on the federal Constitution.

The Framers specifically left any and all decisions about marriage to the states. The Court has amended the Constitution without even using an official amendment.[ii] Many times. Just because it wants to.[iii] I’m not saying the Court got any of these recent decisions wrong, or right. That’s not my point. In fact, my point is much more important than any of these cases. I’m saying the Court has no authority in the Constitution to make many of its decisions.[iv]

It gave itself the power to do these things.[v] It just took the power. Such power didn’t come from the people or the Constitution.[vi] Such power isn’t legitimate authority. It is, to use the precise, technical word that the Founding generation used for this exact behavior: “tyranny”.

Whether you love the current Court’s decisions, hate them, or fall somewhere in the middle, the bigger picture is beyond the cases. The Court is now boldly and fully engaged in Judicial Tyranny.[vii]

The new rules of the Court: Just do whatever you want. You’re the Court, after all. Oh, and that pesky reality that the Constitution doesn’t give the Court the authority do more than half of what it now does? No problem. Since you’re the Court, just announce that the Constitution does, in fact, give you such authority. In fact, decree that the Court has the Constitutional authority to do whatever you decide to do.

Jefferson warned that this very thing was the biggest danger to the Constitution and to American freedoms. And his prediction has come true. The Legislative Court has become one of the greatest dangers to our freedoms. Five lawyers literally have the power to do whatever they want.

The Proposed Change!

So here’s the proposal. I heard it on a radio show, and it made me laugh. Then it made think. Then it made me mad. Check this out:

Since the Supreme Court now makes up any law it wants just by writing it up in a majority opinion, without bothering about what the House or Senate does, let’s balance the budget by just disbanding Congress. Why pay Representatives and Senators and their staff when the Court is just going to write up laws on its own anyway?

That’s the proposal. Let’s just get rid of Congress and let the Court keep doing its thing.

Again, I don’t really mean it. But at this rate, the Court is on pace to do this anyway. And in the meantime, it’s already behaving as the Supreme Court and the Supreme Parliament all in one.

One More Thing

By the way, the real solution is for Congress to pass legislation ending the use of precedent in the courts and limiting every Supreme Court decision to the scope of that one case. This will send many in the current generation of lawyers into a tizzy, but it’s the right thing to do. Assuming that we want to remain free. Such a change will immediately return the Court to its Article III powers.

Or, barring this solution, if we’re going to keep with the bad tradition of common law precedent,[viii] amend the Constitution so that 2/3 of the state Supreme Courts can overturn any decision of the Supreme Court. (More on Common Law in footnote “viii”.)

If we don’t do one of these, we literally might as well adopt the proposal above—because the Court is now operating as both the Judicial Branch and a Higher Legislative Branch.

NOTES

[i] See, for example: Martin v. Hunter Lessee; Cohen v. Commonwealth of Virginia; McCullough v. Maryland; Gibbons v. Ogden; Missouri v. Holland; New York ex rel. Cohn v. Graves; U.S. v. Butler; U.S. v. Curtiss-Wright Export Corp.; Wood v. Cloyd W. Miller; among others. See also: Bruno Leoni, Freedom and the Law, 3-25, 133-171.

[ii] Compare Article VI of the United States Constitution to Article III.

[iii] Some scholars and jurists will balk at this, arguing instead that the court “finds” or “discovers” the Constitutional meaning in the law. But while the Court may employ technical and/or logical language to support its decisions, it still utilizes its will. It may claim that its decisions are “findings,” and at times they are, but they are still always decisions. (If they were truly “findings,” matters of law without personal choice, all cases would be decided by 9-0 votes. Will is part of each decision.) Moreover, despite what is taught in some law school courses, the Framers clearly understood votes of the Justices to be acts of will, not mechanized requirements demanded by the laws.

[iv] Read Article III word for word. No such powers are granted.

[v] Review the cases listed in footnote “i” above. See also: John E. Nowak, Ronald D. Rotunda (Thompson-West), Constitutional Law, Seventh Edition, pp. 1-16, 138-156, 397-398.

[vi] Article III.

[vii] See how Raoul Berger warned of this a generation ago: Raoul Berger, Government by Judiciary.

[viii] Many in the legal profession argue that the Framers preferred Common Law to the other alternatives. Certainly there are a number of quotes from prominent founding leaders that on face value seem to support this view. In reality, most of the Framers preferred Common Law to Romano-Germanic Codifications. This was the major legal debate of the era, in Europe at least. Thus the Justinian model was soon to be followed by the Napoleonic Code. So when the Framers sided with Common Law over the Romano-Germanic model it was taken as a blanket endorsement of the Common Law. However, some of the top Founding Fathers, including both Jefferson and Madison, preferred a third model, the Anglo-Saxon code and system, over Common Law. For excellent background on these competing systems, see: Rene David and John E. C. Brierley, Major Legal Systems in the World Today; John William Burgess, The Reconciliation of Government with Liberty; Theodore F.T. Plucknett, A Concise History of the Common Law. In short, common law builds on precedent; the Constitution the Framers wrote didn’t require the use of precedent by the Judiciary. In the Framer’s model, the Court was “supreme” in deciding any one case. Period. This keeps the Court separated in the judicial realm. It is an independent judiciary, unlike in Britain, because it has sole authority to provide the final determination in any one case. But separation of powers gives it no authority to use dicta or precedent to influence later cases. Any allowance of precedent creates the need to explain a decision, and moves into the realm of legislation. Common Law was not the intent of the Framers. Once the Constitution was ratified, however, the attorneys of the era, trained in the Common Law, simply kept practicing their system without change. The Anglo Saxon code and model was quickly lost, to the detriment of American freedom. Most attorneys are unaware of this. Even a lower percentage of non-attorney citizens understand this. We lose our freedoms in many cases simply because we don’t know better.

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TJEd & COLLEGE PART II “Titanic Education”

June 1st, 2015 // 6:04 pm @ Oliver DeMille

by Oliver DeMille

(To read TJEd & College Part I, click here)

Needing Greatness

Higher education is incredibly important for today’s rising generations. As the middle class dwindles and the divide between the affluent and others widens, many of the old education/career options are becoming less viable. Today’s parents and young people simply must understand what is changing and how it affects them, or they will likely fall behind.

To understand what is happening, we need to step back and look at today’s education/career economy for what it actually is, not what it was twenty or thirty, or even ten years ago. Consider the following:

1-For most people in our current world higher education has become “hire” education. The idea of colleges as the place of truly great leadership education for our future community, national, business and cultural leaders has been almost entirely replaced with another view: college as career training, period. There are, of course, pros and cons to this change.

2-College majors that train for careers certainly have an important place in a successful society, but now even “hire” education is experiencing widespread and increasing mediocrity. When over half of recent college grads find themselves jobless and need to move back in with their parents, the economic reality has clearly been altered.

3-Some have argued that we should stop promoting higher education to most youth and instead emphasize tech training or simplified community college requirements with direct career prep rather than broad education. But this path will only hurt our nation. We don’t need such anti-college views to spread. Quite the contrary. We very much need “great” college views to spread. We need a lot more anti-mediocrity (and truly “great” higher education) views to go far and wide.

4-This is more than just philosophy. It has a direct economic impact on young people and their careers.

Let’s spend some time understanding how this all shakes out. First, a seismic shift is occurring in the economy, though not everyone realizes it yet. Specifically, in 2009 the United States had 18% of the world’s middle class, but it is on pace to have only 7% by 2030. (“Globalization Bites Back,” The Atlantic, May 2015) This is causing some big changes. It also has important ramifications for what kind of education we should be providing for our youth right now.

How does this apply to your family? Let’s start from the beginning.

There is much more to this article – including where the American standard of living came from and where it’s heading; where today’s parents and youth should be looking for education and jobs; why education is sinking and how to fix it; and more!

Click here to continue reading >>

Category : Blog &Education

TJEd & College PART I: A Report on the Growing Importance of Higher Education

May 19th, 2015 // 6:40 am @ Oliver DeMille

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Will College Get in the Way of Your Kids’ Education?

April 28th, 2015 // 4:05 pm @ Oliver DeMille

by Oliver DeMille

Will College Get in the Way of Your Kids’ Education?

What a controversial question!

In fact, it’s downright politically incorrect. For many in the current generation of parents, this is akin to cultural heresy. But let’s think about it. The top colleges depend on the SAT, or in a few cases, the ACT, and later, once students are accepted and enrolled, these schools frequently employ multiple-choice exams of the same ilk.

If such testing is our national educational scoreboard—and it is—we have a problem. As you know if you’ve read my articles on “Homeschooling and Testing: Parts I and Part II” I’m not a real fan of the multiple-choice test as our national standard.

Actually, I readily embrace multiple-choice exams as one part of a student’s learning experience, along with essay exams, papers and projects as exams, oral exams, stand-and-show exams, and other types of testing that allow each student to truly demonstrate what he or she has learned, understands, and can do with the knowledge. But I’m against a one-size-fits all approach to testing (or to education itself, for that matter).

Like Rachel Lynde teaches in Anne of Green Gables, people who have never been parents usually think that there is one good way to parent—but people who have had children know that there is truly a different right way to parent for each child. People truly are different. This lesson is essential, and our modern testing system forgets about it.

That’s bad for our nation and our future.

So, yes, I’m opposed to the way many modern classrooms teach to the standardized multiple-choice tests instead of teaching to the student. Each student’s learning should be individualized, personalized, and guided by one or more caring, committed mentors.

Education Job Training

Ideal? Yes! And that’s what our children deserve. Every single one of them. Why would we settle for anything less than the highest ideals in something as important as the education of our children and grandchildren?

Shame on anyone who suggests anything less than the ideal!

When I see a nation that calls itself a meritocracy but whose highest court, presidency, and a disproportional number of top corporate leaders only come from the Ivy League—at least for the past two decades—and, to get into the League requires high scores on standardized multiple-choice tests, I shake my head. It’s a serious problem.

Why? Because such a system is not a meritocracy at all. There many statistics about making more money in life after graduating from a top school, and about making more if you’ve finished college, but there is one that really stands out. Most people don’t know about it, but it’s true. The statistics are clear: on average, the richer the family of the student who takes the SAT, the better the student scores. (Leon Botstein, TIME, March 24, 2015)

So, of course these students make more money in their life. In fact, the students of the wealthy who don’t complete top colleges also do financially better, on average, than the students of the poor or middle class—including many of those who do graduate from college. Call it elitist, aristocratic, or whatever you want, but this system isn’t a genuine meritocracy.

The common response to such a conversation is that universities need such tests to decide which applicants to accept—since college is all about job training nowadays. Well…I’m going to let that pass without argument, even though I very much disagree that universities should be mainly about career training.

But if schools are going to focus on career prep, then multiple-choice tests as the constant in the system are deeply flawed. As Leon Botstein wrote in TIME magazine: “The SAT is part hoax, part fraud.” The magazine also called it “a scam”. (Ibid., cover, 17) Why? Because, in Botstein’s words:

“[T]he test can’t predict a kid’s future…. As every adult recognizes, knowing something, or knowing how to do something, in real life is never defined by being able to choose a ‘right’ answer from a set of possible options (some of them are intentionally misleading) put forward by nameless test designers.

“No scientist, engineer, writer, psychologist, artist or physician pursues his or her vocation by getting right answers from a set of prescribed alternatives that trivialize complexity and ambiguity.” (Ibid., emphasis added.)

Quality tests reflect reality, not an imaginary matrix that allows a few experts to determine what they want our whole nation of children to learn (or not learn), and which type of learner they prefer to favor, whom they want to succeed. The key phrase in the whole subject of standardized, national testing such as the ACT and SAT comes from the same TIME article: “nameless test designers.”

A Skewed Approach

This is incredibly important to the future of our society. If the test writers were widely and openly known, by name, with a bio and a video of each of them talking about their core beliefs, political and cultural views, most important aspirations and goals, and perspectives on various important current issues and societal concerns, such tests would almost immediately end.

Seriously.

Parents and educators would watch such video clips (easily posted online with today’s technology), and the tests would immediately lose their credibility. I don’t say this because I know the test designers. I don’t. But I am convinced, based on reading and analyzing many of these exams, that they have an agenda.

How could they not? They are the Choosers in our “meritocracy.” They are the Givers. Their exams determine who will win and who will lose the contest—to get into the top institutions of higher learning. They are much more powerful than the Electoral College or the Senate Judicial Committee. In fact, to a large extent, they unofficially but actually choose who will or won’t be eligible for selection by these very groups in the future.

If they openly told us who they are, why they write the tests the way they do, and what they stand for and against, we could evaluate whether we want our kids and grandkids to have the kind of education that is specifically taught in most schools (for the very purpose of excelling on exams written by, planned, and designed by these people). With such transparency, even if they maintained the support of a few, they would lose the support of many others.

And that would be good for our nation. Other types of testing would arise, and the market would support other competing agendas—by other test designers with competing views and goals—not just the one proscribed by this generally unknown group of “Givers” who select our future national leaders each time they create, approve, and/or reject a test question.

If we’re going to continue to be nation run by the test designers (who parents and teachers unwittingly hold up as the key to each child’s future), we should interview each of them and know that our kids are in good hands. If they aren’t open to such transparency, then why do we give them so much power over our children? And over our nation’s future?

Building a child’s education around meeting the demands and agendas of this group of unseen people—simply because it is “necessary for college,” at least if we teach to the test (and the more people care about the test, the more likely they are to do this)—is a bit strange. It’s akin to living in the 19^th Century and using leeches to bleed a sick person because the “experts” assure us it is an excellent practice.

Really? Is that how we want to approach education?

The Way Things Are

I’m all for great education. For rigor and depth and intense study—especially among teens and college-age learners. I think testing is an important part of quality learning.

But the current system has it all wrong.

If your young person gains an education that is defined and driven by the standardized national tests in math, science, social studies, and language arts, then yes, college has very much gotten in the way of his or her education. It has narrowed it, milked out much of the natural passion for learning, and infused it with large doses of rote.

That’s what teaching to the tests usually requires. It has also bent your child’s education in a direction with a specific social/political agenda that many parents don’t support—but don’t know about.

Of course, it’s important to note that for the most part teachers have no control over this. Many teachers manage to do an excellent job of real teaching even though they have this system to overcome. And, as mentioned, few parents realize what is actually going on. They just want their kids to get into a good college.

In truth, I have no problem with young people taking these standardized exams. To get into college, it’s necessary. So take them. Sure.

But the problem arises, 1) in throwing out some of your child’s great educational opportunities to focus on teaching to the tests, and 2) in seeing their test scores and thinking you’ve won, or lost.

And, on the national level, the even worse problem is 3) that we’re no longer much of a meritocracy, because we’ve turned over the determination of “merit” almost exclusively to a group of behind-the-scenes “Givers”.

Far too many parents, educators, and others just go along with all three of these problems because “that’s the way things are.”

But they shouldn’t be this way.

And that’s my point. That’s what the idea of America was once all about—to make things the way they should be, to improve things that aren’t right, to fix the broken, and to choose true principles over bad customs. To put what’s right ahead of mere profit or promotion.

The Important Questions

These are by far the most important lessons in anyone’s education.

By far!

Without these lessons, no education is complete.

We can still teach these things, and parents have a lot of power to do so. But these things aren’t being taught on the SAT or ACT, nor in the teach-to-the-test lessons that precede these exams and dominate many schools. Nor, sadly, are they taught in most of the college classrooms that come after the long-coveted Elite University acceptance letter.

They’re going to have to be taught elsewhere.

Which brings us to this one central, vital, question:

How, where, and from whom are your kids going to learn them?

Seriously: Where?

From whom?

Not most schools. Not most universities. Not TV or the movies. Not surfing the Internet.

If parents don’t teach them, they probably won’t get taught.

And that’s going to drastically influence the future of America.

Which brings us to the final test, the real exam, the essential question every parent needs to answer:

What are you going to do about this in your home?

Here’s what we’re doing about it:

• Mentoring in the Classics

• 7 Keys Certification

• Black Belt in Freedom

Join us!

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The Bedrock of Freedom: The Ben Carson vs. Rand Paul Debate by Oliver DeMille

February 13th, 2015 // 9:27 am @ Oliver DeMille

Measles, Vaccinations, Common Core,
and the Deeper Issue We’re All Experiencing

The disconnect right now is tearing our nation apart. Over and over, people engage in the Surface argument, while the Deeper issue is actually a lot more important.

For example, consider the national discussion of whether the government should mandate vaccinations against measles and other similar diseases. The Surface issue is whether vaccinations are safe, or whether in some cases they are hurtful to a child. But the Deeper issue is much more important: Who should make the decision about vaccinations for your children? Government? Or you as the parents?

I recently watched two interviews with U.S. presidential hopefuls that clearly illustrate this point. In the first interview, Ben Carson was asked about measles and vaccinations. He stated that vaccinations should be firmly mandated by government for all children. Period.

Rand Paul took a slightly different approach. He said that vaccinations work and that children should be vaccinated, but that the more important issue is this: Government doesn’t own such decisions about children, parents do. Parents should have the final say.

Both of these men are medical doctors, and both have a history of commitment to the principles of freedom. But in this case, one called for government mandates and the other called for sticking with freedom. Very interesting.

Force and Reason

Ben Carson went on to say that the idea that vaccinations are widely damaging has been debunked, but then he added an interesting point. He said that of course a few children are allergic or otherwise react poorly to vaccinations, but overall the benefits of widespread vaccination are worth it.

That’s reasonable. But, if reason is to be our guide, which of the following is more reasonable:

1-Educating the populace about the scientific facts, then using government force to mandate what parents must choose for their children?

2-Educating the populace about the scientific facts, then letting parents make choices for their children?

This illustrates the current growing division between those who generally trust the government and those who usually distrust it. This disconnect is now a major feature of our nation. It shows up in numerous important issues, including:

1-The government should mandate Common Core across the nation to raise standards for schools and students.

   Vs.

2-Parents should have the final say on whether or not Common Core is good for their specific children.

Or:

1-The police are justified in using deadly force as needed, because law enforcement is paramount and force is frequently necessary—and police and government agents are nearly always in the right.

   Vs.

2-The community should be very vigilant about any use of force by the police to ensure that it was truly justified, because police forces and governmental agencies sometimes overstep their bounds and aren’t held accountable.

To Trust or Not to Trust

America is split, more each year, by these two major perspectives: “We almost always trust the government to do the right thing,” versus “We don’t usually trust the government to do the right thing.”

Through most of the 20^th Century, by the way, an average of 78% of Americans held the first view (trust), while today only 23% of Americans believe the government will do the right thing most of the time. That’s a huge change.

And clearly the disconnect isn’t partisan. It divides both major parties, and it also divides independents. Just look at Common Core, for example. Rand Paul and Ted Cruz are strongly against it, while Jeb Bush is a firm supporter. Bobby Jindal and Mike Huckabee supported it at the state level and then opposed it when it became a federal program. And all of these men are leading Republicans.

Or look at the vaccination issue. Some of the strongest supporters of government mandates are top Democratic politicians, while many of the communities with the lowest rates of vaccination (and highest levels of anti-vaccination activism) are university neighborhoods dominated by progressive faculty and administrators.

On the Right, many Republican voters demand that everyone get vaccinated, while a vocal opposition calls mandatory vaccination a socialistic plot. Ben Carson versus Rand Paul, so to speak, but spread through the population regardless of party.

Now, change the Surface issue, from, say, vaccinations to police use of deadly force in Ferguson, Cleveland, or New York, and the sides quickly shift.

Bad Comparisons

Here’s another example:

1-The government should regulate and then force the education of all children ages 5-16.

   Vs.

2-Parents should have the right to make the final educational decisions for their family.

This one clearly hits very close to home, but the divide is still there. Ben Carson said something really interesting while he was making his case for mandatory vaccinations. He compared them to seatbelt laws and also laws against texting while driving. I like Ben Carson, so this surprised me because these two things shouldn’t be treated the same. (He probably would have clarified this if he had time to elaborate.)

The main intent of “don’t text while you drive” laws is to protect other people from bad driving, while the focus of seat belt laws is to protect the driver.

In the case of Common Core, supporters often speak as if their major goals are to improve society, while many parents who dislike Common Core care mostly about the education of their own children. And pro-vaccinators often cite public health statistics at the same time that anti-vaccination parents point to anecdotal examples where specific children were harmed.

Simplicity and Standards

This all makes sense, if we take the time to really consider it. In short, those thinking in terms of the mass population naturally overlook the specific, individual cases (“they’re just anecdotal”) while many a concerned parent logically ignores the statistical tables (“my son isn’t just a number”) and focuses on the potential danger if her child just happens to be one of those who is harmed.

Both views have merit. Both are reasonable. Both make sense. But back to our original question: To whom are we going to give the final say?

The answer depends on what level of society is best equipped to deal with each specific situation. Consider:

• If it’s a question about nuclear attack or foreign invasion, the federal government was designed to deal with it.
• If it’s a question of crime or direct danger to everyone, it’s a state or provincial issue.
• Or, if anything in level B can be handled more effectively at a local level, it should be.
• If it’s about what’s best for an individual’s education, prosperity, or health, let the individual choose. This is the essence of freedom. If it’s about children, let’s trust the parents.

This simple little system is essential to freedom. Without such standards, freedom is quickly lost.

The Level

So, let’s get specific. Do the measles meet the “danger to everyone” level in B or C above? No. So leave such health decisions to the parents. Same with Common Core. Of course, if Ebola is the issue, level B kicks in because it truly is a “direct danger to everyone.” It may even be level A, depending on the circumstances. But Common Core and the measles are nowhere near level A. Not even close.

In fact, this system of doing things at the right level, and only at the right level, is the key to maintaining freedom and applying wisdom on nearly every issue. For example:

-Seat belts? Level D.
-Drunk driving or text-driving? Level B. (It would be level C if people didn’t travel very much, but in our current world conditions, if every local area has a different law, far too many drivers will be confused and the laws will be ineffective at protecting the life and liberty of others.)
-Police using deadly force? Level B.
-Oversight of any use of deadly force? Levels A-D.
-Compulsory school laws? Level D only. Seriously, leave to families those things best handled by families.
-Dedicated study and wise oversight of all laws? Level D.

This isn’t just the Deeper level; it is the bedrock of freedom.

Oliver DeMille is the New York Times, Wall Street Journal and USA Today bestselling co-author of LeaderShift: A Call for Americans to Finally Stand Up and Lead, the co-founder of the Center for Social Leadership, and a co-creator of TJEd.

Among many other works, he is the author of A Thomas Jefferson Education: Teaching a Generation of Leaders for the 21st Century, The Coming Aristocracy, and FreedomShift: 3 Choices to Reclaim America’s Destiny.

Oliver is dedicated to promoting freedom through leadership education. He and his wife Rachel are raising their eight children in Cedar City, Utah.

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