I think I agree with everything Paul says here, and I didn't mean to suggest naivete or anything else; I just meant to disagree with the assertion that I understood Paul to be making.
In particular, I agree that if you asked many state legislators--and especially those who favor homeschooling for personal or political reasons--they will honestly tell you that they believe that the state cannot conscript their children into schools (public or otherwise) without giving parents some rights to homeschool. In my view, they are certainly wrong as a federal constitutional matter. But I do think they believe it, as do many parents who homeschool. (Indeed, this is part of my argument in the paper I linked to.) On Mon, Feb 2, 2015 at 6:34 PM, Paul Horwitz <phorw...@hotmail.com> wrote: > I have no complaint about the way Hillel puts things below. I had no > complaint, as such, about the way he put things the first time. And I could > think of much worse things to be accused of than naiveté. But I should like > to defend myself to a certain extent. Of course I understand that > legislators are motivated by politics! I would have hoped it was obvious > that I did. And of course I understand that one could think of more > suitable parties than legislators when thinking about consistent, > thoughtful, serious attempts to understand and follow the Constitution. > (Mind you, on reflection I'm not sure *who*, exactly: not this or most > Presidents, for instance; not this or most Congresses; I'm not all that > certain I'd put every academic student of the Constitution in that category > either. Military officers, maybe.) I did have a point in offering my > comment, but it was not the result of some belief, fanciful or otherwise, > that legislators are paragons of seriousness in interpreting the > constitution. > > The point is that, if those cases are open on this issue--and I did not > make an assertion about that one way or the other; I took it as a premise > for purposes of responding to Hillel--then legislators are entitled, and > indeed obliged, to make their own decision about what the federal > Constitution, and/or their state constitution, requires with respect to > homeschooling. It would not surprise me if they did not take this duty > especially seriously, of course. > > I would add that although I am fine with most of Hillel's response, I > would part ways slightly on one thing. It would not surprise me--to the > contrary, it would surprise me if it were *never *the case--if there are > some legislators, and specifically some who are ardent supporters of > homeschooling, who are strongly convinced that there is a constitutional > right to homeschool and that it includes the right to be substantially > unregulated. They may be totally wrong; they certainly would be engaged in > extremely motivated reasoning, as everyone else does; and they certainly > ought to be aware of the political gains that would be involved in taking > such a position. But, given that this is a culture war issue for this > constituency, I would be surprised if some of them hadn't actually become > convinced of the constitutional rightness of their position. > > Of course I understood the point of Hillel's comment to be primarily, if > not purely, descriptive. But it seemed to me that if we were going to talk > about the role played by past decisions of the Court in influencing > legislators, then it was important, for both descriptive and normative > reasons, to be clear that the legislators who accept the arguments on > behalf of homeschooling lobbyists might conceivably, mirabile dictu, *agree > with them*. It can't, after all, be surprising that in a country where > there are people who homeschool for religious reasons, and an even larger > number of people who don't but hold traditionalist religious views, a > legislator might from time to time be elected who actually believes in this > kind of reading of the Constitution. It's even possible that such a > legislator might, at one and the same time, have both cynical political > *and* sincere constitutional views on the matter. That is, after all, how > many if not most people, of whatever political stripe, reason about the > Constitution a good deal of the time. > > May I add that, despite our well-founded lack of faith in legislators' > sincerity or seriousness about interpreting the Constitution, we often, for > various reasons, *act* as if they are at least capable of doing so. > People write letters to them, for instance, purporting to explain the law. > It is possible that all such efforts are purely cynical: merely an effort > to put a good face on the real work of calculating interest-group politics > that is going on behind the scenes. But I would like to think that there is > a *bit* of sincerity, or perhaps cynicism with just a bit of hopefulness > and idealism mixed in, in such efforts; and I think our politics will > function better in the long run if we treat those legislators as > participants, however imperfect, in the constitutional interpretive > community. > > > > > > > > ------------------------------ > From: hillelle...@gmail.com > Date: Mon, 2 Feb 2015 17:14:40 -0500 > Subject: Re: Homeschooling, vaccinations, and Yoder > To: religionlaw@lists.ucla.edu > > I'm skeptical that state legislators (for the most part) have formed any > informed views about the constitutionality one way or another. I think they > are motivated by the things legislators tend to be motivated by: > constituents, focused interest groups, the path of least resistance, > calculations of political cost, political priorities, what they understand > to be good policy, and what they think the courts might do based on what > the interest groups tell them. Paul is right that they *could* form an > independent view based on their own research and reading of the state and > federal constitutions, but i sincerely doubt they *have*. > > The California case I previously referenced didn't explicitly read Pierce > and Yoder to categorically allow home schooling, but it came very close, > saying that to do otherwise would raise grave constitutional questions. > http://californiahomeschool.net/howTo/B192878August8.pdf > > The Michigan Supreme Court construed Yoder and Smith to give a free > exercise right to homeschool under the US constitution. > http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
