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Education--Political aspects--United States; Private schools--United States--Finance; Church and state; Educational vouchers


This paper examines two concepts in American constitutional history: the child-benefit theory and the doctrine of separation of church and state. Both concepts concern the position of the private school in American society. Neither expression is found in the original Constitution nor in any of its twenty-three amendments. Nowhere in that august document are found the following words: schools, educations, federal aid, compulsory education, textbooks, transportation, etc. Thus the present controversy concerning education bas been caused by an omission, intended or otherwise, on the part of the framers of the Constitution and has been developed due to judicial interpretation. Here, as in so many other areas, judges have made the law. That the judges were only slightly more careful than those ignoring the question brings the student of constitutional law to the position of not knowing exactly what the judge-made law is today, and what it will be tomorrow or the day after tomorrow. Judicial activism seems necessary if the muddy waters are to be cleared, but the loss of one of the concepts appears inevitable if activism is carried to an extreme. Perhaps clarification less drastic but equally clear can be effected by piecemeal judicial interpretation. After all, this is how the confusion began in the first place. Thus it is best to begin with our silent Constitution and trace its metamorphosis to the present state in which we have conflicting concepts with apparent circumvention of one concept by the use of the other.

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