
Contents
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Education Provisions as Positive Rights Education Provisions as Positive Rights
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Entrenchment of Congressional Preferences Entrenchment of Congressional Preferences
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Forcing the Legislature’s Hand: School Lands and Funds Forcing the Legislature’s Hand: School Lands and Funds
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Forcing the Legislature’s Hand: School Taxes Forcing the Legislature’s Hand: School Taxes
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Enforcement without Courts Enforcement without Courts
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Preempting Litigation Preempting Litigation
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Enabling Litigation Enabling Litigation
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Conclusion Conclusion
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5 Education: A Long Tradition of Positive Rights in America
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Published:April 2013
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Abstract
This chapter examines the campaigns to add education rights to state constitutions, with particular emphasis on how the common school movement was able to establish the states' constitutional duty to provide education. The leaders of the common school movement insisted that government had a moral duty to expand opportunities for children whose parents could not otherwise afford to educate them, and that state legislatures should be legally obligated to fulfill it. This movement's central claim was that the value of constitutional rights lay in their potential to promote policy changes by forcing legislatures to pass the kinds of redistributive policies they tended to avoid. The chapter considers the evidence for an American positive-rights tradition that exists primarily at the state level and discusses Congress's motive for the creation of constitutional rights as a case of entrenchment. It argues that education provisions found in state constitutions are positive rights.
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