A Two-Legged Stool

Continued assaults on the judicial branch

Under our system of government, the legislative power of the General Assembly is limited only by the state and federal constitutions. The power of the General Assembly to enact laws may only be checked by the law of the Constitution, which the people have deemed supreme.

— Majority opinion, Eidson v South Carolina Department of Education

Here no one else can gain entry, since this entrance was assigned only to you. I’m now going to close it.

— “Before the Law,” Franz Kafka

Shortly before the South Carolina House passed its version of a school voucher bill, Republican representative Neal Collins gave an impassioned floor speech about what he saw as the two major issues with the bill. The second issue was practicality: Collins, who has long been invested in educational issues, and who has serves on the state Education Oversight Committee, pointed to the lack of new charter schools built in the neediest parts of the state during the decade-long push to incentivize charters. Why, he asked, should we rationally believe that $6,000 government subsidies for families sending their children to private schools would incentivize the building of school buildings and infrastructure in those areas, where the charter school expansion plans had already failed?

But the first issue Collins raised was more directly connected to the future of our democracy:

The reason this very same bill was ruled unconstitutional four months ago: “No money shall be paid from public funds to be used for the direct benefit of any religious or other private educational institution.” That’s what our five Supreme Court justices will be deciding. That’s what they decided four months ago. That this is unconstitutional.

He continued,

You have to do some mental gymnastics to say this isn’t public funds… I think the attorneys in here understand the doctrine of stare decisis. I’m concerned that over the course of my seven, eight— I’ve been in eleven years, but especially the past seven, eight years— we in the body don’t have the proper respect for the judicial branch. We believe, if you don’t rule the way we do, four months later we’re going to put it right back in your face. I think it’s important to point out that this bill is based on the minority opinion. We don’t do that in the legal world. We don’t say, minority opinion, you tell us what to do and we will do that. What we should do is look at the majority opinion.

Collins, of course, was right about the precedent set just months ago by the South Carolina Supreme Court in Eidson v South Carolina Department of Education. That ruling clearly found that the parts of a previous act that directed the General Assembly to spend public funds subsidizing private school tuition were unconstitutional. The authors of the majority opinion write,

Over fifty years ago, the people of South Carolina reaffirmed their commitment to South Carolina's public school system by voting to amend the South Carolina Constitution to adopt Article XI, Sections 3 and 4, mandating a system of free public schools open to all children and prohibiting public money to directly benefit private schools… Since that vote of the people and its ratification by the General Assembly, it has been constitutionally prohibited in South Carolina for the General Assembly to pass a law allowing payments from public funds for the direct benefit of any private educational institution.

And yet the authors of the House version of the bill not only ignore the majority opinion, but quote from Justice Kittredge’s minority opinion in the preamble to the bill, itself.