The Constitution and States Rights: How Federalism Impacts Women and Historically Underrepresented Populations

As written for the NFWL Bill of Rights Essay Contest

As a public school student at a Title 1 high school I partake in the annual testing mandated by former President Bush’s No Child Left Behind (NCLB) Act of 2002. According to the Tenth Amendment, education remains an issue of state or popular concern because it is not clearly addressed in the Constitution or Bill of Rights. Despite education’s traditionally local management, the federal government has recently assumed a greater role in the regulation of the system. In the evolving job market there is little advantage greater than a thorough education, a trend politicians have acknowledged as far back as the early 1800s with reforms such as Horace Mann’s advocacy for standardized preparatory requirements for teachers throughout the North. Although nearly 150 years after the creation of the Freedmen’s Bureau, there is no denying the current imbalance of college-educated blacks to whites. Likewise, attempts to implement the Brown v. Board verdict with forced busing from inner city slums to white-populated schools continue to see ramifications from the resulting white flight to private institutions. The new millennium bore new initiatives to mitigate this educational disparity including requiring the creation of statewide standards and assisting schools – especially those overlooked for economic and therefore often racial reasons – in reaching a standard of proficiency. NCLB, one of a variety of such attempts, has been questioned not only on its success but also on whether it is a federal encroachment on states’ rights.

To determine what actions to take in the future, historians reference the outcomes of past initiatives, judging what legislation will be effective by referring to analogous circumstances. Such was the case with NCLB, for before its creation Congress crafted other bills to educationally assist underserved groups, notably the Equal Opportunity in Educ! ation (Title IX) Act of 1972 for women. Although dubiously considered by some due to its debatable constitutionality, Title IX gained support for its Hamiltonian “Americanism” in that many felt it was “necessary and proper” for this act to pass to protect the educational rights of women. Lacking explicit equality to men in the Constitution, women in groups like the National Organization for Women have encouraged society to “remember the ladies” or, more broadly, to remember all overseen groups, for without their presence the United States would lose its defining diversity.

With national legislation enforcing equality of education it is difficult for states to sidestep their citizens’ inalienable right to the pursuit of happiness. When the Ex-Union government attempted to equalize ex-slaves and whites in the Reconstruction Era, the Ex-Confederate States circumvented its efforts with Jim Crow laws. Constitutional amendments and the like, although unsuccessful in! leveling the races for nearly a century, were more effective than merely permitting each state’s free reign on the treatment of its emancipated populace; what was then underhanded de jure and de facto segregation might have been an outright resort to pre-revolutionary conditions. National laws keep the states’ occasionally self-serving decisions in check.

While NCLB and Title IX may contain flaws, they won support for their fundamentally “American” intent: to assist citizens in attaining the highest degree of “life, liberty, [and] property.” Although the power to legislate on education is not explicitly “delegated to the United States [government] by the Constitution,” the necessity for federal intervention draws support from the founding principle that “all men are created equal,” a line that has justified the prohibition of slavery, the guarantee of women’s suffrage, and, now, the right to equal opportunity in working toward one’s future. It is, there! fore, the right of the American government to create educational legislation ensuring each citizen’s American right.

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