Richard Epstein on the Florida Voucher Case

David Bernstein at the Volokh Conspiracy linked this post by Richard Epstein of the University of Chicago Law School faculty blog, on the Sopreme Court of Florida voucher ruling.

While the Agenda's author is in no position to criticise anyone's spelling and typos, we hope that Epstein was dozing when he wrote...

"The last feature of Bush v. Holmes that is so distressing is its ready embrace of the story that the use of voucher programs necessary diverts needed resources from the public school system. That view of the world is hopelessly static, especially in connection with a constitutional provision that actually cares about efficiency and high quality education. Viewed dynamically, the removal of children from public schools has at least two effects above and beyond the simple diversion of resources. The first of these is that it reduces the obligations of the public school systems, especially when the per pupil cost of education within the state system is higher than the cost of education within the public system, as I suspect it is in Florida."

The "state system" is the "public system", as we use the adjective "public" to modify "school" in the USA, right? Epstein meant to contrast "state" and "private" systems.

"What is so horrible about a higher level of funds on a per capita basis for the students left behind."

Petty criticism: he needs a "?" here.

"In addition, the private school options, secular or religious, injects.."

Should be "inject".

"...a measure of competition. The public school teachers and their unions now realize that they are in competition with a nameless set of some and versatile..."

Professor Epstein hit the "post" button when he meant to "save as draft", perhaps. Edited at 0430, local time, probably. His thoughts are always worth attention (Takings, Forbidden Grounds) and the Agenda's author hopes Professor Epstein will complete his thought here.

"...institutions that they cannot control with the drop of a hat." The only way they can maintain their market share is to provide, as the Florida Constitution requires, a high quality education in an efficient fashion. For all its blunders,
Bush v. Holmes has this silver lining. It is likely that this decision will be followed in other states whose constitutions contain similar language. Too bad that this won’t help the hundreds of kids who deserve better than being trapped in state run system that has proved itself, even after strenuous efforts of Jeb Bush, to be so unresponsive to its needs."

Why is this a silver lining, unless Professor Epstein meant to say "(i)t is unlikely that this decision will be followed..."?

Put criticism of typos aside. Consider the Supreme Court of Florida (SCOFLA) ruling.
Why did they do it? With a robe, no capacity for shame, and an allegiance to some faction or political ideal, judges abuse plain English to achieve the results they desire. Some years ago the Hawaii Supreme Court overturned an initiative which would have prevented residential development along a stretch of East Oahu coastline. The rationale given by the court was that the amendment to the Hawaii Constitution which created the citizens' right of initiative did not mention its use for zoning purposes. Isn't that the point of any new legislation, whether created by initiative or by the legislature, to deal with unanticipatyed events? The Hawaii Supreme Court ruled, in Baer et. al. versus Miike, that the Department of Health policy which restricted marriage to heterosexual couples violated "equal protection" requirements of the Constitution. This ruling amounts to a redefinition of "marriage". When the court gives to itself the power to repeal laws and to redefine ordinary English words like "marriage" and "private property" (the PASH ruling. Don't ask), it renders the legislature superfluous. We may as well use The Adventures of Peter Rabbit as the statute book. Open at random, select any paragraph, and interpret as the current political situation requires. Only people confident of their ability to manipulate the Court will invest given such a legal environment. Small business will not thrive in such an environment. Democracy, in the sense of broad public influence over government policy, does not thrive in such an environment.