The Constitutional Principle: Separation of Church and State
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Short General History of The Federal Government and Education

The question: What in the Constitution gives the federal government any say in education?
Many people say that they can't find the word education in the Constitution, therefore, the government can't say or do anything about it one way or the other.

Research and writing by Jim Allison


The fact is there are several ways that the federal government can get their foot into education quite legally. The government has every right to monitor how tax money it gives out is used, and to have some say in its use. There is the old standby, the commerce clause. Schools order and buy books and supplies from all over the country so Interstate Commerce is involved.

However, let's focus on the following:

Part of the answer is here:

The Preamble of the Constitution, while not carrying the same authority as the rest (not actual law as such), does set the tone and the important portion of it is:

. . . promote the general Welfare . . .

The rest of the answer lies in the main body of the Constitution:

. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; . . .

. . . 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. . . .


In the Book Public Education in the United States, From Revolution to Reform , R. Freeman Butts discusses how, even before the founding of this nation, a universal government-funded and controlled educational system was the goal. Some of the colonies passed laws requiring the education of all children in a government-run and controlled public education system. Several of the New England colonies passed such laws in the mid to late 1600's.

From the very beginning a well-educated citizenry was thought to be essential to protect liberty and protect the general welfare.

Some of the first state constitutions had provisions requiring mass education of its citizens.

"The notion grew but slowly that 'education for liberty' might mean preparation to exercise and protect the basic freedoms of religion, press, assembly, trial by jury, security of person, due process and other guarantees of the Bill of Rights of 1791." (Butts, Public Education . . ., page 9)

Jefferson, among many, saw the need from the beginning of having a universal school system, run by the government, free from religious, sectarian or private control, with an extensive elementary, secondary, capped by a university system operated by the government. (Butts, Public Education . . ., page 12, 13)


Pre Constitutioal Convention:
Land Ordinance of 1785 and Northwest Ordinance of 1787- General

The precedence for the federal government being involved in public education is found in documents that pre-existed the Constitution. One is the Land Ordinance of 1785 , along with the Northwest Ordinance of 1787.

The Land Ordinance required a system of public education to be established in each township formed under a specified formula. The Northwest Ordinance, adopted in 1787 and adopted again in 1789 under the Federal Constitution, continued the formula for forming townships, and requiring the support of common schools. It also established the formula for the government of said territories formed under its directions and the manner that these territories would enter the union as states. Those formulas remained in effect long enough to see approximately 32 states admitted to statehood under its directions and blueprint. While a territory, each of these future states was under the control of Congress. One regulation was that the 16th lot of each township was to be used to generate monies (via selling, renting, being taxed, etc) to support and maintain a common school system. In addition, other land was to be donated by the government to raise money to aid in supporting this school system, and local taxes were to be raised as another way to support this school system. No one claimed at the time this was unconstitutional or before the constitution, illegal or incorrect.

Note: In 1785, it was suggested by some in the Continental Congress that lot #29 of each township be similarly used&-mdash;but to support religion instead of public schools. That suggestion was voted down overwhelmingly. James Madison wrote James Monroe commenting on how out of order such a proposal had been.

From the Land Ordinance of 1785

There shall be reserved for the United States out of every township, the four lots, being numbered 8, 11, 28, 29, and out of every fractional part of a township, so many lots of the same numbers as shall be found thereon, for future sale. [Emphasis added] THERE SHALL BE RESERVED THE LOT N 16, OF EVERY TOWNSHIP, FOR THE MAINTENANCE OF PUBLIC SCHOOLS, WITHIN SAID TOWNSHIP; also one third part of all gold, silver, lead and copper mines, to be sold, or otherwise disposed of as Congress shall hereafter direct.

When any township, or fractional part of a township, shall have been sold as aforesaid, and the money or certificates received therefor, the loan officer shall deliver a deed in the following terms:

The United States of America, to all to whom these presents shall come, greeting:

Know ye, That for the consideration of _____ dollars, we have granted, and hereby do grant and confirm unto the township, (or fractional part of a township, as the case may be) numbered ____ in the range ____ excepting therefrom, and reserving one third part of all gold, silver, lead and copper mines within the same; and the lots Ns 8, 11, 28, and 29, for future sale or disposition, [Emphasis added] AND THE LOT N 16, FOR THE MAINTENANCE OF PUBLIC SCHOOLS.

Paul Finkelman states:

A requirement that schools be built, or a declaration of what governmental body should do so, was unnecessary because for more than a century public schools had been built by local communities in America. Americans knew what schools were and knew how to build them, but few Americans had any experience with dismantling an entrenched social system that provided wealth for those who had political power at the expense of those who lacked all power. The education clause could be implemented by those who would benefit from the clause, but those people who would most directly benefit from Article VI [slaves] were prohibited from participating in the political process, and thus could not insure the implementation of the Article. Finally, both the creation of public schools and the abolition of slavery' would have financial costs.

While the Ordinance of 1787 provided no funds for either object, the Land Ordinance of 1785 had provided that one lot in each township would be reserved "for the maintenance of public schools within the said township." Thus, the national government had committed financial resource to the education provisions of Article III but not the prohibition of slavery required by Article VI.

Source of Information:

"Slavery and Bondage in the Empire of Liberty'" Paul Finkelman. Northwest Ordinance, Essays on its formulation, provisions and Legacy , Edited by Frederick D. Williams, Michigan State University Press, 1988, p 75.

David Tyack and Thomas James sum up the stance on education during the initial years of the United States:

Even before the federal constitution was ratified, the story of the federal government's involvement with schools began with the Ordinance of 1785, which was passed by the congress established under the Articles of Confederation. The ordinance specified how property lines in the western territory should "be measured with a chain ... plainly marked by chaps on the trees, and exactly described on a plat, whereon shall be noted ... all mines, salt-springs, salt-licks, and mill-seats." The document stipulated that land should be divided into townships, each six miles square and subdivided into 36 lots each a mile square. In businesslike fashion, it established the terms of the deed between the United States and citizens buying lands from the public domain. One clause linked the congressional ordinance explicitly to schooling: "There shall be reserved the lot No. 16, of every township, for the maintenance of public schools, within the said township." The intention of the framers was that the land would be sold to settlers and the income from the sales would be used to support the school.

Two years later, the Confederation Congress passed the Ordinance of 1787. This measure went further than its predecessor by setting the rules for governing the territory northwest of the Ohio River . . .

During the first century of the new nation, Congress granted more than 77 million acres of the public domain as an endowment for the support of public schools . . .

The tracts ceded to states for the support of public schools grew steadily over the years. In 1841, Congress passed an act that granted 500,000 acres to eight states, later increased to make grants to a total of nineteen states, to be used for "internal improvements." A majority of these states devoted all or part of the income from these lands to the schools. In 1848, Congress approved the policy of reserving two lots, 16 and 36, for the support of schools when it established the territorial government of Oregon. In 1850, California was the first state to receive both lots, amounting to 5.5 percent of the public domain in the state. The desert states of Utah, Arizona, and New Mexico-where much of the land had little value-each received four sections per township for the support of public schools.

The federal government also granted money, such as distributions of surplus federal revenue and reimbursements for war expenses, to the states. Though Congress rarely prescribed that such funds be used only for schools, education constituted one of the largest expenses of state and local governments, and so they used federal monies for this purpose. Moreover, Congress awarded a certain percentage of proceeds from the sale of U.S. lands within the borders of the new state; the amount ranged from 3 to 10 percent, with most states receiving 5 percent. Twelve states, all of them west of the Mississippi except Wisconsin, decreed in their constitutions that income from this fund should flow to the common school fund.

Source of Information:

Education for a Republic: Federal Influence on Public Schooling in the Nations First Century, David Tyack and Thomas James. This Constitution: Our Enduring Legacy . American Political Science Association, American Historical Association. Congressional Quarterly, Inc., 1986, p 148-155


Constitutional Convention

R. Freeman Butts states that at the Constitutional Convention,

. . . the only recorded mention of education as a subject of debate in the convention was in a proposal by Charles Pinckney of South Carolina that the new Congress be empowered to 'establish and provide for a national university at the seat of government or the United States.' In the later debates on the powers of Congress, Madison supported Pinckney in advocating that the federal government 'establish seminaries for- the promotion of literature, and the arts and sciences.'

The convention's committee of Detail never reported out these proposals. (Butts, Public Education . . ., page 19)

In his annual message to Congress in 1790, George Washington urged Congress to promote science and literature. In May of 1790, a motion was made in the House of Representatives to refer to Washington's proposals. It went nowhere at that time but the one voice recorded in favor was that of John Page, a lifelong friend and supporter of Jefferson and later Governor of Virginia He urged a Constitutional amendment IF Congress did not already have the right to promote science and literature. (Butts, Public Education . . ., pp. 35 and 36)

Some scholars argue that there was a profound misunderstanding by the delegates at the Constitutional Convention. Scholars such as Benjamin D. Stickney, Lawrence R. Marcus and Americo D. Lapati contend that there was strong support among the delegates for a federal role in education. They point to such influential figures as Madison, Hamilton, Washington, Benjamin Rush, Noah Webster and Samuel Knox as wanting "the national government to oversee a national system of education." (Benjamin D. Stickney and Lawrence R. Marcus, The Great Education Debate: Washington and the Schools , Springfield, Illinois. CC Thomas, 1984 p. 6.) They argue that this role was indeed the intent of the makers of the Constitution.

Admittedly a minority view among education and constitutional scholars, this interpretation has strong evidence in its favor. The most plausible case has been made by Benjamin Stickney and Lawrence Marcus. They reason that the delegates did consider education to be a national responsibility, although no specific clause regarding education had been inserted in the Constitution. They point to James Madison's journal of the convention as evidence. Madison, often regarded as the leading spirit of the Constitution, recorded in his journal that the delegates understood education to be implied under the General Welfare Clause--Article I, Section B. That article states "that Congress has the power to provide for the general welfare of the United States." (Stickney and Marcus, The Great Education Debate , p. 104)

Consequently, according to Madison, the delegates felt no need to spell out further a national mandate for education.

However, confusion evidently set in after the convention. Madison's Journal of the proceedings was not published until 1840--well after the convention. The founding fathers then interpreted the lack of a specific clause regarding education to mean, under Article 10, that it should become the province of the states.

Nevertheless, Madison's account was corroborated by Alexander Hamilton. In his Report on Manufactures , issued in 1791 , Hamilton wrote that "there seems to be no room for doubt that whatever concerns the general interests of learning...all are within the sphere of the national councils." (Henry Cabot Lodge, Ed, The Works of Alexander Hamilton , Vol 4, New York: GP Putnam & Sons, 1904, pp. 151-52) Washington later argued for a national system of education.

There is also evidence regarding the creation of a national university. Charles C. Pinckney, a delegate from SC, proposed a resolution to establish a national university, Madison seconded the idea. However, Governor Morris from Penna successfully defeated that resolution on the grounds that this power was already implied in the Constitution (SEE: James Madison, Journal of the Federal Convention , Books for Libraries Press, Freeport NY, 1970, p. 726)


The Evidence

May 29, 1787

Debates of the Federal Convention

Some of the Proposals (known as the Virginia Plan) Introduced Mr. Randolph To the Convention on May 29, 1787, Regarding the Powers of Congress.

ARTICLE VI.

The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises;
To regulate commerce with all nations, and among the several States.
To borrow money and emit bills of credit
To establish post-offices.
To raise armies;
To build and equip fleets;
To pass laws arming, organizing, and disciplining the militia of the United States
To subdue a rebellion in any State, on application of its Legislature
To coin in money, and regulate the value of all coins, and fix; the standard of weights and measures.;
To provide dockyards and arsenals, and erect such fortifications as may be necessary for the United States, and to exercise exclusive jurisdiction therein;
To appoint a Treasurer by ballot;
To constitute tribunals inferior to the Supreme Court;
To establish post and military road;
To establish and provide for a national university at the seat of government of the United States;
To establish uniform rules of naturalization;
To provide for the establishment of a seat of government for the United States, not exceeding _____ miles square, in which they shall have exclusive Jurisdiction;

Source of Information:

"Tuesday May 29, 1787. In Convention." Notes of the Debates in the Federal Convention of 1787, Reported by James Madison, Bicentennial Edition . W.W. Norton & Company New York-London 1987, pp 27- 34.

August 18, 1787

Debates of the Federal Convention

In Convention Mr. MADISON submitted, in order to be referred to the Committee on Detail, the following powers, as powers to be added to those of the General Legislature:
"To dispose of the unappropriated lands of the United States.
"To institute temporary governments for new States arising therein.
"To regulate affairs with the Indians, as well within as without the limits of the United States.
"To exercise exclusively legislative authority at the sent of the General Government, and over a district around the same not exceeding ---- square miles; the consent of the Legislature of the State or States, comprising the same, being first obtained.
"To grant charters of corporations in cases where the public good may require them, and the authority of a single State may be incompetent.
"To secure to literary authors their copy-rights for a limited time.
"To establish a university.
"To encourage by premiums and provisions the advancement of useful knowledge and discoveries.
"To authorize the Executive to procure, and hold for the use of the United States, landed property for the erection of forts, magazines, and other necessary buildings."

These propositions were referred to the Committee of Detail which had prepared the report; and at the same time the following, which were moved by Mr. PINCKNEY --in both cases unanimously:

"To fix and permanently establish the seat of government of the United States, in which they shall possess the exclusive right of soil and jurisdiction.
"To establish seminaries for the promotion of literature and the arts and sciences.
"To grant charters of incorporation.
"To grant patents for useful inventions.
"To secure to authors exclusive rights for a certain time.
"To establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures.

Source of Information:

"Saturday, August 18, 1787. In Convention." Notes of the Debates in the Federal Convention of 1787, Reported by James Madison, Bicentennial Edition . W.W. Norton & Company New York-London 1987, pp 477-478.

September 14, 1787

Debates in the Federal Convention

(Entering the discussion in the middle of the debate over Banks, canals, etc.)

Mr.. MADISON suggested an enlargement of the motion into power "to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." His primary object was, however, to secure an easy communication between the States, which the free intercourse now to be opened seemed to call for. The political obstacles being removed, a removal of the natural ones as far as possible ought to follow.

Mr. RANDOLPH seconded the proposition.

Mr. KING thought the power unnecessary.

Mr. WILSON. It is necessary to prevent a State from obstructing the, general welfare.

Mr. KING. The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies.

Mr. WILSON mentioned the importance of facilitating by canals the communication with tire Western settlements. As to banks, he did not think with Mr. KING, that the power in that point of view would excite the prejudices and Parties apprehended. As to mercantile monopolies, they are already included in the power to regulate trade.

Col. MASON was for limiting the power to the single case of canals. He was afraid of monopolies of: every sort, which he did not think were by any means already implied by tile Constitution, as supposed by Mr. WILSON

The motion being so modified as to admit a distinct question specifying and limited to the case of canals,-- Pennsylvania, Virginia, Georgia, aye -- 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, no -- 8.

The other part fell of course, as including the power rejected.

Mr.. MADISON and Mr. PINCKNEY then moved to insert, in the list of powers vested in Congress, a power "to establish an University, in which no preferences or distinctions should be allowed on account of religion."

Mr. WILSON supported the motion.

GOUVERNEUR MORRIS. It is not necessary. The exclusive power at the seat of government, will reach the object.

On the question,-- Pennsylvania, Virginia, North Carolina, South Carolina, aye--4; New Hampshire, Massachusetts, New Jersey Delaware, Maryland, Georgia, no -- 8; Connecticut, divided, (Doctor JOHNSON, aye; Mr. SHERMAN, no.)

Source of Information:

Friday September 14, 1787. In Convention." Notes of the Debates in the Federal Convention of 1787, Reported by James Madison, Bicentennial Edition . W.W. Norton & Company New York-London 1987, pp 638- 639.


Summation for this Section

On May 29th 1787, a proposed outline was presented of how to "repair" the Articles of Confederation. This outline was the Virginia Plan and was actually the outline for creating a whole new government. Included in this outline was a list of powers that Congress should have. Included in the list were those that are important to the discussion:

"To establish and provide for a national university at the seat of government of the United States."

The men assembled began work on the whole outline.

On August 18th 1787, Madison submitted the following list of proposed powers of Congress, those which are important to this discussion include:

"To secure to literary authors their copy-rights for a limited time."

"To encourage by premiums and provisions the advancement of useful knowledge and discoveries"

At this point Mr Pinckney of South Carolina added the following proposals:

"To establish seminaries for the promotion of literature and the arts and sciences"

"To secure to authors exclusive rights for a certain time"

"To establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures."

The outline was turned over to a committee.

Madison and Pinckney brought up the issue of inserting

in the list of powers vested in Congress, a power to establish a university, in which no preference or distinctions should be allowed on account of religion.

Mr Wilson supported the motion.

"Mr Gouverneur Morris, It is not necessary. The exclusive power at the seat of government will reach the object."

The vote on the question as taken and was passed in the negative 4 states and one additional delegate for 6 states and one delegate against. (the vote went by states, unless a state was divided, at which case the actual delegate vote was placed in the proper column.)

It would seem that should be the end of it: It was proposed, and it was voted down, no power for congress over schools? Well not quite, The above two questions would be very clear if Morris hadn't spoke. But he did speak. In addition to that, there is another detail.

Just prior to that they were talking about banks, monopolies, canals, etc, "Other advocates of the power held back from putting the question to a vote lest it be lost and the record be definitely against it, whereas if not acted on it could be held that power existed. Gouverneur Morris of Pennsylvania dissuaded his Colleague, Robert Morris, from proposing a national bank lest such a provision in the Constitution jeopardize its ratification. The only related proposal brought to a vote, a motion to authorize Congress to charter corporations for the construction of canals, was defeated 8 to 3"

Remember, between Madison and Pinckney there was a list of proposals of which a university was only one, and the first one on Madison's list. (Also on Madison's list was the power to dispose of unappropriated lands of the United States and to regulate the affairs with the Indians. I mention this because neither of those items were brought to a vote yet Congress did in fact do both, had been doing it, continued to do it, and still does it.)

We have two questions presented to us here, the first is, Did the vote go against the university because of what Morris said, that an additional clause would only be repeating what was already given or because it was felt Congress shouldn't have such a power?

Had Morris not spoken, it would have been easy to answer that question, but since he did, it isn't so easy.

A second question also presents itself, Madison was an accomplished fighter and politician, did he see that the first vote didn't go well and decide not to bring up the rest of the list as had happened in the discussion and vote preceding this one. After all, there were several other items on that list that involved various forms of what would be schools, institutions of learning and knowledge. Was it an honest misunderstanding or was it a manipulated event so that a misunderstanding could be claimed later and that the power was there or was intended to be there? Twenty years later Madison still believed the power for schools was in the Constitution.

George Washington, the only other man who became president who was also at the Constitutional Convention believed the power was there, either under general welfare or under the literature and science clause. Both Madison and Washington proposed schools, in fact the first six presidents did and only Jefferson and Monroe felt that there might be a Constitutional problem. (My vote goes with the idea that Madison and other took what Morris said as factual and did not pass another bill that would duplicate what already existed.)

So we actually have the general welfare, implied powers, or science and literature (generally known as the copy-right clause) clauses.

When the bill was passed by Congress for the national bank, many of those who voted for it in Congress had been members of the Constitutional Convention. They had been there and voted on those issues that day. Remember also that anything concerning a bank was never brought to a vote, only the issue of single canals. (G. Morris was steering that discussion too.)


Post Constitutional Convention

The first six presidents approved a national university, and four--Washington, Adams, Jefferson, and Madison recommended it to Congress. (American Presidents and Education, Maurice R. Berube. Greenwood Press, New York, 1991, p. 4)

Washington, who was president of the Constitutional Convention, and others of that time had urged federal involvement in public education, both on the level of a national university, and other schools, under the promotion of the science, etc. clause. No one yelled that would have been unconstitutional. Congress set up a national university, the door would have been wide open for other forms of public schooling as well.

A great deal was written about education for youth in the founding era. Making education available to a broad public was seen as critical to preparation for citizenship and development of virtues necessary for continued support of republican government. There were no shortage of plans for national or statewide systems, some coming very close to what we have in fact developed.

In 1791 Robert Coram wrote the following in his "Political Inquires to which is Added A Plan for the Establishment of Schools Throughout the United States."

"By education I mean instruction in arts as well as sciences. Education, then, ought to be secured by government to every class of citizens, to every child in the state. The citizens should be instructed in sciences by public schools, and in arts by laws enacted for that purpose, by which parents and others, having authority over children, should be compelled to bind them out to certain trades or professions, that they may be enabled to support themselves with becoming independency when they shall arrive to years of maturity.

Education should not be left to the caprice or negligence of parents, to chance, or confined to the children of wealthy citizens; it is a shame, a scandal to civilized society, that part only of the citizens should be sent to colleges and universities to learn to cheat the rest of their liberties. Are ye aware, legislators, that in making knowledge necessary to the subsistence of your subjects, ye are in duty bound to secure to them the means of acquiring it? Else what is the bond of society but a rope of sand, incapable of supporting its own weight? A heterogenous jumble of contradiction and absurdity, from which the subject knows not how to extricate himself, but often falls a victim to his natural wants or to cruel and inexorable laws-starves or is hanged.

Source of Information:

"Political Inquires to which is Added A Plan for the Establishment of Schools Throughout the United States":, Robert Coram, (1791). American Political Writing During the Founding Era, 1760-1805, Volume I I, Charles S. Hyneman, Donald S. Lutz, Liberty Press, Indianapolis, (1983) p. 784

Necessary and Proper "Implied Powers" "Elastic Clause"

One of the arguments used by various people who didn't want to see the Constitution ratified (anti-federalists), but also didn't want to be direct about that fact, was the lack of a bill of rights and the part that would play in regards to religious freedom, freedom of the press, etc. Those who supported it (federalists) (and were in many cases those who had written the Constitution) pointed out that there was nothing in the Constitution that gave Congress any power over religion, the press, etc., in any manner, shape or form.

The anti-feds countered by pointing to the following clause:

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.
They asked if the feds could guarantee that at no time in the future this clause could not be so construed as to mean Congress could make laws concerning religion or the press, etc., or a host of other things that we understand today they don't have the power or authority to do?

The federalists could not guarantee that a future Congress might not view the Clause in question as a loophole, thus enabling them to take upon themselves powers and authority not given in areas that they were not intended to have such power and authority.

That was one of the reasons we ended up with the religious clauses and other clauses of what was then the third amendment, but later became the first amendment of, the bill of rights.


Dr. Tom Peters sent me the following:

I've run across some info that strongly suggests that the "general welfare" clause (Article 1, Section 8) was *intended* to cover educational spending. Here's the scoop (taken from Paul Mort, Federal Support for Public Education_, 1936; he's quoting from a article titled "Federal Financing of Education," by William Russell, published in "School and Society," August 19, 1933):

On August 18 1787, in the Constitutional Convention, James Madison and James Pinckney both proposed additional powers for the General Government. Madison's proposals included the power to establish a university, and Pinckney's proposals included the power to establish seminaries of learning for the promotion of literature and the arts, and to establish institutions for the promotion of agriculture, commerce, trade, and manufacture. These proposals were referred to a committee headed by Rutledge. The Committee reported back to the Convention on August 22. The Committee adopted four of the proposals, and then recommended, in addition to those proposals, an early version of the general welfare clause to be attached to the end of section 7 (later to become section 8).

By the end of the Convention, another six of the August 18 proposals has been written into the Constitution. Additionally, the general welfare clause has been moved from the end of the section to the *beginning* of section. The six August proposals *not* specifically adopted by the Convention all dealt with either education or public works.

Here's Russell's commentary on the evidence:

"The remaining proposals had to do with internal improvements, public works, and education. The convention could have omitted the General Welfare Clause, but it did not. In fact, it was moved from the end of the section to the begriming. This must be significant. Either the convention, in trying to settle certain miscellaneous problems, hit upon the, clause and thought it a good idea worth perpetuating; or else, rather than force the issue of federal support of public works and education, deliberately left the gate open."

There is good reason to think that the General Welfare clause was not a dead letter or a mistake. It looks to me like it was created explicitly to cover spending needed for the General Welfare of the country.


Hamilton wrote that the general welfare clause was intended to cover many things not actually named. He used the "implied powers--necessary and proper" to get the power to create the first national bank. Justice Marshall upheld the principle of implied powers in the Constitution in the McCulloch v Maryland case. The implied powers clause is also under Article I, Section 8.


Playing Politics 1787 Style

"There is nothing in the Constitution about banks and banking, though there might well have been, for the subject was already of both economic and political importance when the Constitution was being written."(1) In 1781, the Continental Congress had chartered the Bank of North America. Probably few members of that Congress disputed James Madison's assertion that this exceeded Congressional authority under the Articles of Confederation(2) Rather, the bank was justified by its sheer necessity in helping finance the war for independence against Great Britain.

At the Philadelphia Convention in 1787, Madison himself proposed that Congress be authorized "to grant charters of incorporation where the interest of the U.S. might require and the legislative provisions of individual States may be incompetent." Rufus King of Massachusetts objected to the proposal on the ground that the "States will be prejudiced and divided into parties by it"; King referred specifically to the concerns of the New York and Philadelphia banking and business communities that Congress might charter a competing banking institution. "Other advocates of the power held back from putting the question to a vote lest it be lost and the record be definitely against it, whereas if not acted on it could be held . . . that the power existed." Gouverneur Morris of Pennsylvania dissuaded his colleague, Robert Morris, from proposing a national bank lest such a provision in the Constitution jeopardize its ratification." The only related proposal brought to a vote, a motion to authorize Congress to charter corporations for the construction of canals, was defeated eight to three.

II. The First Bank of the United States

In the late eighteenth and early nineteenth centuries, banks served two main functions. First, they were depositories for money. Second, they issued bank notes, on deposits or on other security, which served somewhat the same function as paper money in the absence of a national currency. In December 1790, soon after ratification of the Constitution, Secretary of the Treasury Alexander Hamilton submitted a plan for a national bank to be chartered , by Congress and owned jointly by private shareholders and the United States. The bank would strengthen the national government: it would aid in the collection of taxes and administration of the public finances and would provide loans to the government." The Senate, half of whose 20 members had attended the Philadelphia Convention, unanimously adopted Hamilton's proposal." (While the above regards a bank, it is still valuable to show how the First Congress thought and acted. How they "played" politics. In addition, the instance involving G. Morris and R. Morris takes place at the same time G. Morris stated that a vote on a National University was not required, because such a power had already been granted Congress.)

Source of Information:

Processes of Constitutional Decision Making, Cases and Materials, Second Edition, Paul & Sanford Levinson, Little, Brown and Company, Boston-Toronto, 1983, pp 9-10.


For while it is true that The Federalist is silent about education, it is also true that during the debates of the Federal Convention, James Madison and Charles Pinckney proposed to invest Congress with the power to establish a national university; that the motion was supported by James Wilson; that it came very close to being adopted; and that it failed of adoption perhaps because some delegates agreed with G. Morris that the motion was unnecessary, unnecessary because, in his opinion, Congress could establish a university, the "silence" of the Constitution notwithstanding."

Source of Information:

The Philosophy of the American Constitution, A Reinterpretation of the Intentions of the Founding Fathers, by Paul Eidelberg, 1986, University Press of America, pp 27-28


POST 1791

We now move to 1829

Congressman Joseph Richardson of Massachusetts proposed that the House of Representatives establish a committee on education to carry out the Founder's vision of a republican education through federal effort as implied by the general welfare clause of the Constitution.

Source of Information:

Public Education in the United States, from Revolution to Reform by R. Freeman Butts, pp 154)

It was not passed, and the argument was made that this should remain on the local and state level, but it was not argued that Congress had no such authority to do that. That began a long series of such proposals that increased in frequency as the years passed until after the civil war, when it became clear something would have to be done.


There are two additional reasons why the federal government became involved in public education. Invitation and Default

Invitation covers two time periods— the first was ignored by Congress, the second wasn't.

Invitation period #1. "Congress all but ignored the clamor of the states for common school systems during the Jacksonian period." (Butts, page 149)

Concurrent with Invitation period #1 occurred the second reason, default by the states, especially the southern states. "The prime issue was whether Congress ought to be able to prohibit segregated public schools in the several states." (Butts, page 149) (I might add that this was a battle that would be waged up until Brown v Bd of Ed) but various bills were proposed that would give authority to Congress to regulate education in some form or manner and more importantly would compel action by the states to protect its own citizens. In southern states, public schools were being closed and dismantled so fast that the illiteracy rate among the coming generation would be 75% or better. The southern states were determined to shut blacks out of the educational process, Or, if failing in that, they were going to make sure that what education the blacks did get would be vastly inferior to the education the whites would get in private schools.

"This was being done at a time when the 14th and 15th Amendments had just declared the right of every citizen to take part in the administration of the government." (Butts pg 154) I might add that at this time period (the 1860's and into the 1870's) local meant the city or town. Even state say in schools was resisted by the "locals" in many places. (This was the tyranny of the majority over the minority that Madison had repeatedly warned would take place on the local levels, local meaning to him both the very local [cities or towns] and the local as in state levels)

In the midst of all this a national department of education had been established, but it had little effect or authority at this time. Henry Barnard was its first head. He was followed by General John Eaten, whose chief contribution was to make a list of what the government could do and could not do which he presented to the National Teachers Association in 1871.

He argued that the federal office should, of course, not violate the Constitution, or decrease local or individual effort, but when it came to things that the government MAY do, the list was much longer, than the side showing what the government could not do. The list of what it could do covered,
everything necessary to promote education for Washington D C, the territories, the Indians (and I might add here, that the federal government was involved with public schooling for the Indians from the very beginning), and international relations, and to hold the states to account for their use of federal funds. The government may take, as has been established, by legislative and executive action, and by the decisions of the courts, such exceptional action as exceptional circumstances may require (a) for the public welfare (b) for the assurance of a republican form of government (c) for the protection of liberty of those lately slaves (d) for the security of their citizenship, (e) for the free exercise-of the right to vote (f) for the equality of all men before the law and (g) for the fitting of any citizen for any responsibility the nation may impose upon him
(Butts pg 157)

The second invitation phase was the passing of the Smith-Howard Act of 1917. A coalition of business, farm, labor and reform groups steered this act through and got it passed, It called for the federal government to cooperate with the states in the promotion of vocational schooling in several areas and to match dollar for dollar the funds that private monies and state monies equaled. (Butts pg 217)

Child labor and the need for vocational training lay behind this particular effort. Keeping children in school cut down on the child labor problems, and teaching vocations allowed young adults a wider range of choices for work when they did get out of school. (I would be willing to bet that the vast majority of regulations that do exist, imposed by the federal government on public education, exist because of specific problems that the local/state governments couldn't or wouldn't deal with.) The segregated unequal treatment of blacks continued until resolved finally in the 50's, by the United States Supreme Court

We have but very lightly covered the history of how and why the federal government got into the education business. Actually as shown they were never out of it, They were in it before there was a federal government, and stayed in it in various ways and forms all along.

Separation of Church and State Versus Separation of School and State

There are some who call for a separation of school and state since there is suppose to be a separation of church and state. They point out the fact that the words separation of church and state do not appear in the Constitution, just like the words education do not appear in the Constitution.

The evidence above shows that there are a number of ways that the Federal Government can legally be involved in education. The framers of that document did not make any effort to keep the general government from such involvement. In fact, as has been shown, such there is solid evidence showing that such a power was thought to be present via either: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; 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, or both.

Let's look at the difference when it comes to religion and how the framers treated that. First the framers of the unamended constitution separated church and state by forbidding religious tests. There could be no official alliances or unions between the civil government and religion if members of government did not have to be a "defender of the faith." i.e., did not have to be a member of any particular religion or any religion. The government was given no authority or power with regards to religion. Nor was religion given any power or authority with regards to the civil government.

To make totally certain this intent was understood meant that the one potential loophole that might have allowed future lawmakers a way around this had to be closed. This was explained by James Madison on August 15, 1789 In the House of Representatives, during the debates on the proposed amendments to the Constitution:

Mr. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforced the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.

Thus the ability to use the necessary and proper clause was taken away from Congress if it were a religious matter. That potential loophole was closed to future lawmakers. No such steps were taken regarding education.

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