Judicial Review and the Separation of Powers

A balance of power among the governing authorities in America requires a new look. Not so much as to the three federal branches of government, but rather as to our principle of federalism and the relationship between our states and territories and the three federal branches of government.

So expansive a territory as the United States requires greater guidance from above through the equally as expansive federal system of government. Our Article III courts may readily provide an initial and comprehensive source of a consistent, uniform and ever more evolving body of governing law.

In doing so, both judges and attorneys should view the law in an imaginative and creative manner that makes the most of both precedent and our founding legal precepts. Courage to look beyond one’s jurisdiction for a supporting argument when proper and prudent provides efficiency and, more importantly, an improvement to the community in which we live by encouraging polite discussion and debate.

Citizens can discuss government and the Rule of Law over the tea and coffee cup. We do not have to wait until the throes of an election to analyze our society and government. Let’s get started.

Lori Gayle Nuckolls, Esq.

Advertisements

Should the Federal Government Pay Tuition for Higher Education to All for All?

This Story was originally published in October of 2017 and it discusses a subject matter of continued relevance. For, in an increasingly more complex society and government how do we maintain a democracy if each of our residents and citizens are not able to understand our world.

Admission to American colleges and graduate schools is duly regulated by several nongovernmental organizations, notably, entities such as The College Board, the Educational Testing Service and the American Bar Association. And, our secondary and elementary schools are similarly reviewed and ranked as to merit, both within political subdivisions and across the nation, by educators, journalists and governing officials.

Would an assumption of tuition payments for all American college and graduate programs by the Federal government undermine current private governance by those currently governing and affiliated with America’s private schools of higher education? Would it undermine the aura and efficacy of local history and culture within our publicly owned and governed colleges and universities?

Perhaps, the objectivity of the nongovernmental organizations responsible for admissions testing and school ranking in American higher education already provides and requires obligatory accuracy and fairness as to merit and quality across the nation in a way that state, local and private control of funding currently may not affect. Private and state decision-making in higher education must currently yield to duly enacted legislation and promulgated regulation, and a replacement of the monetary source for tuition, from the student, parent and or school to the Federal government, could not transcend present governmental procedures. Our schools would, in every respect, remain fully self-governing and retain due and fair competition.

The question then is whether Federal tuition runs only to the public good and public interest, and if the American economy can afford to pay the tuition of all college and university students? There seems to currently be neither an economic necessity nor an economic value in requiring students and parents, as the recipients of the goods and services of American colleges and universities, to make the tuition payments, when the ultimate beneficiary of educated Americans is America. Educated Americans determine America’s reputation and goodwill and the relative efficacy and value of its democratic government. In doing so, the American public receives goods and services provided by those who do not earn the true value of the service they provide over the course of their careers.

Salaries of ordinary citizens and residents barely pay living expenses, no less do these salaries provide for college tuition. And, it is hoped that American families contain more than one child. College graduates and licensed professionals earn less than professional athletes and corporate executives. Our governing officials, doctors and lawyers provide more to keep America sane and rational than do CEOs, pitchers and quarterbacks. How can CEOs and athletes work day-to-day without professionals and government officials overhead. And, non-managerial employees and traditional small business men and women, who would receive college tuition for their children, would still benefit from American capitalism. Students and graduates of the long existing 2-year colleges, who receive learning in the technical arts and vocations, would certainly provide more to the public good as interns during school years in subjects related to their studies than as employees of those within their community who offer the highest pay in part-time employment regardless of the task.

A parent’s future payment of tuition to American colleges and universities is a for-profit incentive in the American and international marketplace. Currently, parents look to a child’s academic achievement, and the competitiveness of admission to America’s colleges and graduate schools, as an incentive for business success. Federal tuition would lessen stresses unrelated to achievement, regardless of parental income. And, the once thought long entrenched competitive advantage of students attending private elementary and secondary schools, is, now, rarely a concern, for advances in teaching, curriculum and college recruiting have provided economies of scale within local governing political subdivisions, and create a just capitalism in education.

If America’s professionals and college graduates are deemed, as our governing principles intend, to grow and raise children who make the most of our academic institutions, how do these professionals provide for their children’s tuition, even in two professional households, and even if with only one child? How does such a family pay for its children’s college and graduate school attendance, even if they are, themselves, among the American socio-economic elite? And, are not these very children of American professionals and college graduates socially obligated, themselves, by our social contract as citizens and residents, to not squander what has been provided to them by their parents and secondary school educators?

The centuries-old legal principle of discerning the merit and value of prospective legal and or governmental reform, as I profess to personally coin and denominate: “experimentation among the States,” may be in order. For, it provides that, if not all Americans are ready for a proposed reform, one State, or a few, in the Federal Union might enact a variation upon the proposed reform, for review and evaluation by citizens and judges. Today, governmental payment of tuition to public colleges and universities, especially as recently announced in the State of New York, may provide a basis for Federal reform, especially by our current President and noted businessman Donald Trump. For, President Trump professes a belief in the economic competition, efficiency and small government that Federal tuition payments to all American schools of higher education would provide. This may be achieved by President Trump from now through the inauguration of his successor in 2025!

Lori Gayle Nuckolls

The Purpose of a Constitution

The primary goals of American criminal law are, in an order most severely an exercise of state power and authority: (1) revenge, (2) retribution, (3) deterrence, (4) restitution and (5) rehabilitation. One must, thus, conclude that our country imposes a “moral law” upon all within its boundaries which sets forth absolute proscriptions and imposes certain duties and obligations. (Kant, Immanuel. Fundamental Principles of the Metaphysic of Morals, Preface.) Yet, these specific purposes and principles underlying American criminal law are not literally found in either the constitution of any state or of our nation. Rather, these constitutions set forth many more abstract principles and purposes, to establish a rule of, and by, law in behest of general good government, justice and the common weal.

This November election, a proposed amendment of the Ohio constitution, which dates, in its present form, from as early as 1851, would provide credit for time served if an inmate agrees to participate in rehabilitation and guidance. Only those convicted for possession and or use and not sale of a controlled substance would be eligible.  This amendment would also revise the Ohio constitution to prohibit the criminalization of mere possession and or use at a level of severity accorded the treat of felony crimes, and, instead, deem mere possession and or use within the classification of misdemeanor.

The purpose of this and other specific provisions requested in the amendment would constitutionalize the governing principle that mere possession and use of illegal drugs, without the intent to sell, is a crime only against oneself and without the motive to profit from the criminal acts and self-flagellation of others. The premise is that the public good and public interest do not benefit from strict penal treatment based upon public motives of revenge or retribution. Rather, the public good is better served when those found only in use or possession are guided toward rehabilitative reform and a form of social inclusion not premised upon drug use.

One would deem these thoughts to be the moral philosophy or moral principles of the amendment, Issue 1 in Ohio on November 6th. But, should such specific purposes and principles rise to the level of a part of a state constitution?

Some suggest that the proper drafting and interpretation of a constitution should remain derived from the meaning of its original text at the time of adoption.  Some suggest that the interpretation and amendment should view the original text in our current era; that, the three branches of government should serve the public good by empirically revising a constitution’s text and principles to reflect subsequent human facts and events. An empirical view distinguishes from the a priori view of originalists.  Both views utilize wisdom and judgment.

Our nation upon its founding, and later the State of Ohio, constituted a democratic republic. Yet, constitutional amendments, state and federal, have made America more representative and more democratic. America once resembled the world of the Lords, Barons, landed gentry and serfs of Europe, when inheritance determined one’s whispering in the ear of the divine right monarch. On November 6, 2018, one need not own an interest, in any form, in real property in order to cast a ballot.

Then, should our view of state constitutions change? Our representatives are still our representatives. Yet, they are no longer per se, by virtue of social and economic class alone, the only ones among us with sufficient access to education and information to properly effectuate the duties and responsibilities of an elected official in our three branches of state government.

Should and must state constitutions provide greater and more specific guidance to our state legislators, should the constitutions “pull on the reins?” In modern times, not all state legislatures are comprised by America’s natural aristocracy, as the founding principle of American government envisioned and still required by Sir Edmund Burke. The great distribution of residents and commerce over the breadth of the American states and territories is so great that there are not enough formally educated natural aristocrats to go around. State Representatives are diverse, and their districts are more self-governing and self-sustaining than in the times of land baron dominance. They are no longer elected from rural areas without academic resources needed for participation in state government.  

Consequently, our complex society requires that even the most educated among us must look to theories of specialization and expertise. Our three branches of government, state and federal, rely upon career legal counsel and formal substantive divisions in each branch.

In returning to Issue one, should the Ohio constitution be more responsive to the changes in our society since its founding? Are the proposed revisions of Ohio law needed to guide a state legislature whose members will forever be less well versed than practitioners?  Or, with greater funding to provide additional legal counsel and substantive personnel, could the Ohio General Assembly readily delineate a similar program, itself, with fair review by its diverse representatives as provided in a democratic republic? In modern times, what is the purpose of a democratic constitution and what should it contain?

Lori Gayle Nuckolls, Esq.