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May 4th, 2012

Appel Dissected

How, exactly, did Justice Appel, joined by Justice Hecht, find an unenumerated constitutional right to a free and meaningful public education in King v. State of Iowa?  Simple really.  It only took 77 pages of references to the Founding Fathers, international law, positive rights, and Varnum to draft such a right into the Iowa Constitution.

In his dissent, for instance, Appel seeks to bolster his argument by citing Thomas Jefferson, John Adams, and Benjamin Rush for the proposition that “they viewed the states as the governmental structure to deliver education to citizens.”  As Justice Waterman noted in response, none of these individuals “is quoted for the proposition that courts should be running schools. I imagine all of them would be surprised by that notion.”

Secondly, Appel turns to international law for the theory that “education is essential to the development of an autonomous individual that is the essence of human dignity.”  Citing the Universal Declaration of Human Rights, he argues “that the right to education is a human right and that the purpose of the human right is to provide for the ‘full development of the human personality.’”

Waterman retorted that “I fail to see how a 1948 UN Declaration helps our court ascertain the intent of the framers of the Iowa Constitution ratified ninety years earlier. Our court has not previously relied on UN declarations or international law to interpret our 1857 constitution, and I would not start now.”

In response, Appel acknowledged in footnote 34 that “I recognize that the Declaration was designed to be non-binding.”  However, in footnote 60, he maintains that the Declaration has been ratified by the United States and, as such, “international treaty obligations are binding upon United States courts.”

Article 26 of the Universal Declaration of Human Rights declares that everyone has the right to a free and compulsory education, at least through elementary.  Far from teaching the 3 R’s, “education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms…and shall further the activities of the United Nations for the maintenance of peace.”

Other rights contained in the Declaration that Appel would presumably make binding on the State of Iowa include the right to work and to form a trade union; the “right to rest and leisure,” including paid holidays; and “the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Third, not only would Appel guarantee these rights to every Iowan, but would “require the state to take affirmative action to meet its constitutional responsibilities.”  While President Obama may bemoan that the federal Constitution “doesn’t say what the federal government or the state government must do on your behalf,” Appel believes that the Iowa Constitution does.

Rights were traditionally thought of as God-given and unalienable and, as a result, government nether bestowed them nor could interfere with them.  Appel, however, would transform these rights into things government must adequately do on your behalf—provide an education, a job, a standard of living, food, clothing, health insurance, social security, etc.  You better get out your checkbooks, for this is going to get expensive.

Finally, and with a passing reference to Varnum, Appel explains that this right is found in Iowa’s “Catchall Clause”:

…the inextricable relationship between education and other key constitutional rights, namely, the right to vote, the right to serve on juries, the right to petition government, and the undeniable proposition that an individual has little prospect of enjoying life, liberty, and property without an education in the postmodern world; and the centrality of education to human dignity; all convince me that education must be considered a fundamental interest under Iowa’s privileges and immunities clause.

This paragraph is breathtaking in its scope—guaranteeing individuals not only those rights enumerated in the Iowa and U.S. Constitutions and the UN Declaration, but also all those things that would help one enjoy those rights.

Not only may government not infringe on those rights, but, according to Appel, government has an affirmative obligation, under judicial supervision, to provide those things that would help individuals enjoy “life, liberty, and property.”  Get out your wish lists and, on second-thought, hide those checkbooks…


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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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