Recently an activist judge in California declared parents have no constitutional right to homeschool their children. The current low ebb of constitutional knowledge is unfortunate. Americans must understand our Constitution—what it does and what it does not. This judge has displayed either an astounding lack of knowledge or blatant misuse of power. I'll leave it up to history to prove which.

The Constitution of the United States as a document establishes our federal government, divided it into branches and laid out the legislative process. This founding document is also a limiting document. The framers were adamant that the document limit the federal government by carefully defining its proper role. Many have come to look at the Constitution as a secular Bible. In the Bible commands are specific—do not commit adultery; love your neighbor as yourself—and universal. Whether in Texas or Thailand, all Christians have the same expectations. If one expects the same from the Constitution misunderstanding is inevitable.

The Constitution only applies to a portion of our society—the government it established. It was never to define or limit my actions or yours, but only the powers of the federal government. It neither answers every question nor determines every fact, but establishes a framework to search for future answers, while limiting federal interference in the life of the individual and the functioning of the states. The Constitution nowhere lists education as the role of the Federal government. Actually, the Tenth Amendment assures this is, by default, a function of the states or the individual.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

US Constitution: Amendment X

Many will use the “Necessary and Proper Clause” to give this power to the Fed:

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

US Constitution: Section 8: Clause 18

The Necessary and Proper Clause has been used, or abused, by government officials since ratification. Washington and Hamilton used this to justify the Bank of America and Jefferson (the clamorous proponent of states rights) used it to justify the Louisiana Purchase. Most Federal power not expressly granted by the Constitution finds it's source in this clause. Of course, such a clause is needed. When organization or government is tasked with certain functions it receives the requisite power to perform those functions. The source of the problem we look at today is the abuse of this clause.

Only a Federal Government tasked with educating the children of America has the power to legislate education. The glaring problem is that nowhere does the Constitution task the Fed with any educational responsibilities. Since our federal government has no educational role neither does it have the power to legislate education because it is neither necessary nor proper for them to make laws on anything the Constitution has not tasked them with.

Through the Tenth Amendment education is an issue of state or individual sovereignty. To determine which we have to ask, “Who has more of an interest in the education of children, the parents or the state?” To answer this we can best use another question: “Who's future is most tied to the future of the child?” The child could live or die and it has little effect on the state. The child can learn to read or stay illiterate and the state is little effected, except when the illiterate start voting. The state has limited interest but not the highest interest. Traditionally, a person's primary retirement plan was their children. In my wife's country, Korea, this is still the norm. As a result, parents sacrifice to educate their children, scraping and clawing to pay for books, tuition and tutors. They do this because the best chance for a comfortable retirement is affluent children.

In our society, the government is seen as the source of retirement bliss through Social Security and Medicare (two other social programs for which the Fed has no Constitutional mandate). This causes some parents to become less focused on their children's education. For such, the public school system is a pretty good option. However, many parents have chosen to take the hard route and teach their children themselves. These parents give up extra careers and financial benefits to produce educated moral children.

Proponents of big government see homeschoolers as a threat to their programs. All parents know the most important factor to their children's future success is education and most have surrendered this role to Big Brother. Homeschoolers choose to take care of this need and others themselves. This independence and self-sufficiency is a slap in the face of the nanny society. Once the facade of government primacy in one area is damaged the whole facade is in danger of collapsing. How much power would the government have if we looked to ourselves for such essentials as education, retirement and health care?

The judge attempted to answer the question, “Do parents have a constitutional right to homeschool their children?” He answered it incorrectly. Parents do have a constitutional right to this. This right is contained in the Ninth Amendment:

The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.

US Constitution: Amendment IX

When the Constitution was being debated many people didn't like the absence of a Bill of Rights. Madison and others argued that to list the rights of the individual would actually limit those rights. In other words, to list ten rights would limit the number of rights to ten. For this reason they included the ninth amendment saying: “just because we listed several rights this doesn't mean there are not more rights.”

The same liberals who would refuse a parent the right to educate their children will use the same Ninth Amendment to defend the Right to Privacy and from that a right to abort the children they have no right to educate. So a parent has a right to kill their children for the sake of convenience, but has no right to educate their living children. This judge's decision shows that his interpretation has more to do with the expansion of government and less to do with the rights of the individual.

Are parents responsible for the education of their children? Everyone, including that judge, would agree they do, so parents are held liable if they do not send their children to school. The same philosophy that animates the “Necessary and Proper Clause” works here as well. Since parents have the responsibility to educate their children they, by default, have the power to make decisions regarding that education. For many godly committed parents homeschooling is the best option.

Hopefully such misguided judges will retire and allow us to return reason to the bench.