Florida Amendment Would Hold Activist Courts in Check
by Jim Brown and Jody Brown
March 23, 2006
(ChristiansUnite.com) - - In an attempt to resurrect their state's school voucher program, Florida lawmakers are considering a proposed constitutional amendment that would limit when the state's courts can declare a law unconstitutional.
The bill introduced by Representative David Simmons was drafted in response to a January decision the Florida Supreme Court that struck down Governor Jeb Bush's school voucher law. The court ruled vouchers violate a clause in the Florida Constitution that guarantees a "uniform ... system of free public schools that allows students to obtain a high-quality education."
The ruling directly affected the governor's Opportunity Scholarship Program, which allows children in failing public schools to attend another public or private school at taxpayers' expense; and perhaps other Florida options like the McKay and Corporate Tax Credit Scholarship Programs.
The proposed amendment would say the legislature could not be blocked from passing a law unless it is expressly prohibited in the state Constitution. State Representative Dennis Baxley of Ocala says the bill ensures the state does not become a oligarchy -- rule by a few.
"We believe that this [amendment] does empower the people, and it does ... clarify that the interpretation of the Constitution is to respect the people's right to come up with solutions that are not specifically spelled [out] in the Constitution," says the chairman of the House Education Council. "That's why we have the legislative branch."
According to Baxley, the measure goes beyond empowering the people; he says it also sends an important message to the activist Florida Supreme Court.
"We want to clarify to the court in this amendment, if the people vote for it, that they're to respect the legislative authority of the people -- through their representatives -- to interpret the Constitution in a more constricted or concise manner, more literal manner."
The measure would need approval from a three-fifths majority in each state chamber to appear on the November 2006 ballot. Baxley stated earlier that the key to getting the bill through the legislature is hanging on to key Republican votes that he describes as "marginal when it comes to a discussion of scholarship issues." If passed, the amendment would not immediately make the state voucher program legal.
No Logic in Court's Ruling
The Opportunity Scholarship Program, which currently serves slightly more than 700 students in Florida, is the smallest of the three voucher programs in the state. Syndicated columnist George Will argues that the Florida Supreme Court's ruling was itself unconstitutional -- and blasts the court for "fulfill[ing] the desires of the teachers unions."
Referring to the clause found in the state Constitution, Will says the court "argued that the word 'uniform' means that the state must utilize only public schools in providing 'high-quality education.'" That, says the columnist, "even though many public schools are providing nothing of the sort."
Such an argument defies logic, he says. "The court's ruling was a crashing non sequitur: that the public duty to provide something (quality education) entails a prohibition against providing it in a particular way (utilizing successful private educational institutions)," he writes.
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