"How so? The purpose is not to benefit religious schools, but only to provide full choice of education to the parents," says Preston.
"Because over 50% of Wyoming's private schools are religious. The dissenters in Zelman tried to use the statistical argument that since over 80% of Ohio's private schools were parochial, there was no true free choice — only a 'Hobson's choice.' Private spending of transferable vouchers would tend to favor religious schools, which they'll say offends the Establishment Clause. I think the modern Court would so rule even if the Wyoming percentage of religious schools was far less than 50% because the average amount of the voucher would at least equal the average parochial school tuition, which in their minds would be 'advancing religious education.' In fact, if only one sectarian school received voucher funds, the Court would probably ban the program. That's how strict they are about this."
Preston is astonished. "You're kidding!"
"No, sir. They will employ the Nyquist argument against our voucher program, claiming that the 'effect of the aid is unmistakenly to provide desired financial support for nonpublic, sectarian institutions,' even though such is not our goal. They could revive the strict construction posed by dissenters in the 1947 Everson case who claimed that bus fare rebates for parochial students offended the Constitution. They could take that line of 'reasoning' so far as to exclude roads, sanitation services, and police and fire protection to churches. Even a policeman helping a child across the street to a religious school is conceivably unconstitutional. This Court would love to reverse Mueller and Zelman, especially since veterans' and welfare benefits may be spent by recipients at religious institutions and schools."
Preston considers this, frowning, and then asks, "You mentioned other grounds that the courts could overturn our program?"
"Yes, sir. Due process and Fourteenth Amendment concerns." "Explain."
"Case law on the subject has basically concluded that public education must be evenly provided. In San Antonio, Texas, for example, there is a very wide property value disparity between the wealthy white northern Alamo Heights hamlet and Hispanic neighborhoods. Hence, per student property taxes varied by over 10 to 1, causing an inequality in education. Alamo Heights was spending more on their sports departments than were entire schools in the Hispanic districts, which sued in federal court. Alamo Heights parents argued that they merely wanted to receive the quality of education that they paid for in taxes. A free-market notion, to be sure, but it did not prevail. The court ruled that children in Texas public schools had a constitutional right to a substantially equal education, regardless of where they lived or how much their parents paid in property taxes. The ruling enjoined an adjustment of property tax disbursements for education. The wealthier districts were made to kick in funds to the poorer districts. It caused quite a stir there."
"So what are you telling me?" Preston asks.
"Governor, our conclusion is this: the Supreme Court will not likely allow a student exodus into private schools at a funding loss to public education. Since the public education infrastructure already exists, it has a fixed cost to sustain. Every $1,000 in taxes which is lost to private schools does not ipso facto translate into a $1,000 of expenses which the public schools can cut from their budget. They'd first fire teachers, which would raise class sizes and thus lower quality.
"Sure, public schools would, over time, stair-step reduce their fixed costs due to fewer and fewer students, but between the steps would be much dislocation. Downsizing always happens in increments and quality would suffer as successive equilibria are reached. Organizations need time to adjust to changes in size, but meanwhile the downsizing of public education would naturally foment inequality, which would be successfully challenged in federal court on 14th Amendment grounds."
"Hmmm. Yes, I see your point."
"That is the bad news: public education must be substantially equal across the state. A voucher program would have different local effects on public schools, depending on how many parents opted for private education. The resulting quality disparity of public schools would be unconstitutional under current Supreme Court rulings."
Preston asks, "You mentioned something about good news?"
"Yes, sir, the good news is that the Supreme Court has never ruled that a state must even provide public education." The AG permits himself a thin smile in triumph.
"What? " Preston can't quite believe where this is leading.
"Think of it like a game of baseball. If you play, then you have to play by the rules — rules made by others. Arguing about school vouchers is like arguing that you'd like to run from first to third base and skip second. It's just not going to happen. But . . . nobody . . . can . . . force . . . us . . . to play the game in the first place!"
"You're joking!" Preston blurts.
"No, sir! Not at all. For all the damaging constitutional revisionism, this is still America, sir. There are actually very few internal duties commanded of the states by the Constitution and case law. Although a French province, for example, could not do this, one of the United States can. We don't yet quite have a true national government. The states still retain, amazingly enough, some powerful prerogatives. Where does it say that a state has to provide public education at all? It was the states which usurped education because they wanted to control their citizens. We can get out for the opposite reason, because we don't want to control our citizens."
Preston stands and begins to wander about his office, his mind reeling from the implications. "Unbelievable . . . unbelievable."
The AG continues, "Some things can be ended by gradual reduction, like quitting smoking by the wearing of a nicotine patch. In our opinion, public education is not one of them. It's a matter of going 'cold turkey.' We see no impassible barrier to quitting public education by September 2018."
Preston is still generally speechless.
"Sir, if England could sell off British TeleCom, then why can't a state sell off its government schools? Libertarians were all looking at some gradual way to return to private education, and nobody thought to consider the simplest solution: if you want separation of school and state, then separate. Wyoming can divest from the education business. Overnight."
Preston remains stunned. "My . . . God, you're right! All those gradual measures were predicated on expected political resistance. Nobody ever thought through the issue assuming a cooperative state government! For that matter, neither did I. We've all been so conditioned to accept certain boundaries and impossibilities because of government. That includes me and I'm the governor! Now we must all reshape our perspectives. This . . . this slices the Gordian knot right in half!"
The AG nods. "That's the good news, sir. No vouchers, no tax rebates, no gradual divestment no nicotine patch. We simply get out of the education industry by declaring it and issuing quit claim deeds of school property to private corporations owned by the locals. The buildings don't go away, the teachers aren't fired, the books don't vanish. All that happens is a change of ownership. The local parents simply pay tuition instead of property taxes. This transfer could take place over a summer vacation. All we need to do is draft the legal template."
Preston laughs merrily. "It's brilliant! We simply step off the playing field; we quit the game. For decades we've been haggling over the rules, when all this time we never had to play ball in the first place! The NEA and the AFT will absolutely shit!"
The AG deadpans, "Well, it's about time they shat, sir."
The room breaks up with hearty laughter.
During a lull, Preston asks, "If we pull this off, how many other states do you imagine would follow our lead?"
"Oh, I'd think at least a dozen, Governor," the AG chuckles.
"A dozen states!" Preston practically dances a jig. "That would be the deathknell of public education! Millions of families would relocate to those states. Much of California and the East Coast would be depopulated of its best people. It'd be tantamount to a revolution! No more federal control of educat
ion. No more socialist indoctrination. No more desecration of our American heroes and history. No more drug-sniffing dogs and random locker searches. No more UNESCO hovering over our schools. No more 'citizens of the world' bullshit. No more Ritalin and Prozac pumped into our children! No more residential property taxes! We wouldn't be producing a nation of drugged-out dummies! There really could be a future for America!"
"There's just one problem, Governor. Well, two, actually."
Preston's eyes narrow. "And what would those be?"
"First, this is prevented by Article 7, and much of Article 15."
"So, we need constitutional amendments. Of course! What was I thinking? Sorry, I got a little excited there."
"That's understandable, sir. So did we."
Preston says, "I'll need a draft of proposals by Monday so that —"
The AG gently interrupts, "Sir, we've already put them together. They're still a bit rough, but they're not the real problem. We've a much taller hurdle to clear."
"You mean the second problem?"
"Yes, sir. And it's formidable. I have here a copy of the Wyoming Constitution. Let me show you something in Article 21. We didn't see this at first, but when we did it added a level of complexity to the plan."
When the AG read aloud the relevant sections the entire room took in a collective gasp.
Preston is stunned. "My God, Paul, can this even be done? I mean, it sounds like catching birds by sprinkling salt on their tails."
"I really couldn't say for sure, Governor. To be honest, my first reaction was negative. It was like learning how to crack a safe and then discovering that the safe itself is in a deep cave protected by an army."
Preston nods bitterly. "That sounds about right. What were they thinking back in 1889? To lock something up is one thing, but to throw away the key?"
"Section 28 is an obvious roadblock, but it is the final sentence of section 23 which, as you aptly put it, 'threw away the key.' Repealing section 28 is pointless without first repealing the problematic language in section 23."
"Which it expressly forbids," points out Preston.
"Yes, sir. However, I have an idea. And it's one that our supreme court may embrace, especially when they understand the broader implications involved for the future."
The AG spends several minutes outlining what he has in mind.
Preston is silent for a moment and then says, "When I told my wife that I felt I should run for Governor she asked me if I really knew what I was getting into. I thought I did, but now I can see what she meant. Paul, this is absolutely huge — atomic, really. Even if the Wyoming supreme court goes along, what kind of federal challenge can we expect? Can it go all the way to the US Supreme Court?"
The AG replies, "That's very likely, Governor. The broader implications wouldn't be lost on them. The way I see it, there are three possible outcomes: Jeffersonian, Madisonian, and Hamiltonian."
Everyone present was well-versed in the history of the late 1780s and constitutional debates.
"Let's just pray it's not Hamiltonian," Preston observes. "OK, people, there's going to be quite an uproar about this and a lot of scared people to calm. Politically speaking, this is equivalent to tampering with constitutional DNA. It will be our biggest fight. We win this, we find that 'key' they tried to throw away and we use it."
The AG smiles. "It'll break the back of renegade federalism."
Preston says, "You may just be right, Paul. Gosh, I'd love to read the history books thirty years from now! We'll either be patriots or scoundrels."
Reply to my Atheist and Agnostic Friends by Wyoming Gov. James W. Preston
Thank you all for your well-constructed letters in response to my interview in PLAYBOY. In short, my Christian worldview has variously been described as "primitive, superstitious, and irrational." Assuming, arguendo, that you are correct — how are you harmed?
Where is the tort?
In 1963 William F. Buckley wrote about the conservative mix of Christians and atheists: "The freeway remains large, large enough to accommodate very different players with highly different prejudices and techniques. The differences are now tonal, now substantive, but they do not appear to be choking each other off. The symbiosis may yet be a general consensus on the proper balance between freedom, order, and tradition."
I hope that the "choking each other off" has not begun.
In discussing morality and crime in the interview, I tried to demonstrate that Christianity and libertarianism are much more compatible than often believed. They are not mutually exclusive.
To reiterate, I did not, and never will, propose to criminalize certain actions held dear by libertarians. I only pointed out that they were arguably unprofitable to the individual, if not detrimental. And you must concede that a people generally drunk, high, or strung-out is no credible model for a free and healthy society.
Because of any political system's inability to embrace and further a comprehensive moral code (i.e., regarding the intrapersonal, vs. the interpersonal, which is the easy part), I have long believed that a purely secular libertarian society would not last beyond its founding generation. Galt's Gulch was and is a fantasy. There is more — much more — to a successful society than its members merely keeping their word and not initiating violence.
I've studied nearly everything by Rand, Rothbard, Friedman et al, and there is almost nothing about love, humility, kindness, forgiveness, chastity (when did anyone last hear that word!), honor, mercy, propriety, integrity, or decency.
Faith is a four-letter word, practiced only by "mystics."
Rand's social clique would not have exploded if she, as the elder party, had been wise enough to forgive Nathaniel Branden and also to own up to her primary responsibility in the matter. The Objectivist movement might have gone further if its cosmology had not been so saturated with such stifling arrogance. (Look at 1960s pictures of Rand's "Collective" — haughtiness drips from every pixel.)
Being a libertarian is not internally sufficient for good citizen-ship. I know far too many who are breathtakingly slovenly, lazy, lewd, rude, petty, wimpy, and even mean-spirited. I would not live among them even though it were a society free of fraud and violence.
So if you truly believe that a free and healthy society can easily dispense with such "outdated affectations" without obvious harm, then please offer just one example. Will Durant, the famous (secular) historian, wrote that "There is no significant example in history, before our time, of a society successfully maintaining moral life without the aid of religion." That was in 1968. Nearly a half century later his observation is all the more poignant.
The West has fully entered the post-Christian age and it shows. By all indices it is not "successfully maintaining moral life." While the decline has not been instantaneous, it has been rapid enough to notice within a lifetime. The decency and wholesomeness of the 1950s, for example, seem almost extraterrestrial to us now. The Boy Scout Association is relentlessly attacked for their explicit morality and their right as a private organization to set standards for membership which exclude practicing homosexuals.
Where is the harm of citizens being cheerful, thrifty, clean, kind, helpful, brave, reverent, etc.? How would libertarian principles be violated? When the Boy Scout Code of Honor is a source of derision and legal action, the social implications are ominous indeed.
Because I am championing essentially spiritual values, the hardcore evangelical atheists (i.e., the God-haters vs. the casual atheists and mere agnostics) couldn't help but incant their nonbelief. The Godhaters cannot subscribe to spiritual values, so Christian libertarians must be denounced as heretics of a secular humanism.
Beware, however, if you are tempted of this. For are you not at a total loss as to what to criticize in the society which I would, if I had the unilateral power, establish in Wyoming? Remember, I would not intrude upon your freedom to poison or degrade yourself any more than I would coerce you to attend church.
So, what, precisely, is your gr
ipe? Since it does not reside in the physical, it must be metaphysical. As you do not believe in the preternatural, this poses a knotty dilemma — an unscratchable itch.
To an atheist colleague withdrawing from the National Review, WFB wrote: " [I] should hate for you to think that the distance between atheism and Christianity is any greater than the distance between Christianity and atheism. And so if you are correct, that our coadjutorship was incongruous, I...should have been the first to spot it and act on it...because my faith imposes upon me more rigorous standards of association than yours does."
My generic thoughts on the matter cannot be better expressed than that. Those atheist friends and colleagues who profess difficulty with my Christianity should keep in mind that their atheism can be similarly difficult for me. However, "the freeway remains large, large enough to accommodate very different players..."
I will close with a final question: Why is the "threat" of a chaste, judicious, and decent society — arrived at without the use of force — so alarming to you? When you have that figured out, please reply. I am most curious as to your answer.
Sincerely,
James W. Preston
Lander, Wyoming
April 2016
Kyle and Susan Bradford were delighted to help out with the great migration. They portioned off 20 acres of their ranch and built a dozen 1,400 square foot cabins on an acre each, with a common storage barn, rec hall, gun range, and fishing pond. One young couple from Colorado knew the Bradfords and brought eleven other couples with them. Each pair had all the privacy they wanted, but they could also blend in and out of their small community whenever it suited them. Some were highly social, and some were more reserved. Some traveled frequently, while others rarely left the valley.
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