Barry Friedman & Sara Solow · January 2013
81 GEO. WASH. L. REV. 92 (2013)
Common wisdom has it that there is no federal constitutional right to an education; indeed, under our charter of negative liberties the common understanding is that there are no positive rights at all. This Article challenges common wisdom, arguing that there is in fact a federal constitutional right to a minimally adequate education. In doing so it calls into question the value of long-standing debates about the proper way to interpret the Constitution and suggests an alternative—not a new one, but a time-honored methodology. While theoretical battles about interpretation rage, judges (on both the right and left) continue to interpret the Constitution in much the same way: by looking at text, framing intentions, pre-ratification practice, judicial precedents, and subsequent practice by the state and federal governments. Particularly in Due Process cases, this is how judges discern the “history and traditions of the American people.” Employing this methodology, the case for a federal right to a minimally adequate education is remarkably compelling. This analysis also raises interesting questions about the possibility of finding other positive rights in the Constitution.
