why access to education should become a constitutional right

As society has developed, questions have emerged about the nature of the rights that the American government owes its citizens, with the rights that were originally formulated in the Bill of Rights within the Constitution sometimes not being seen as adequate for addressing present circumstances. The purpose of the essay at hand is to make the argument that access to education should be considered a fundamental right of all Americans and that this should be added to the Constitution. This will be keyed to the level of education that is common within a society at a given time, meaning that in the present day and age, this will include a college education. The main idea here is that given the nature of society at this time and the real possibilities that exist for human growth and development, all Americans should be granted access to education as a basic right.

This essay will be organized into six main parts, with each preceding part contributing an important building block for the overall argument. The first part will consist of a delineation of the concept of negative rights versus positive rights. The second part will consider the definition of education. The third part will consider precedents for the proposed constitutional amendment. The fourth part will then make the argument that universal access to education is a fundamental aspect of sustaining a free democracy, such that the addition of this right to the Constitution would, in fact, be a way of preserving the Constitution itself. The fifth part will reflect on why education is a positive right that should be considered as on par with the other rights delineated in the Bill of Rights. Finally, the sixth part of the essay will consider and reject a potential counterargument against its main argument.

Negative Rights versus Positive Rights

To start with, it must be acknowledged that a right to access to education would not be quite the same thing as the right to free speech. This is because whereas the right to free speech is a negative right, the right to education would be a positive right. The distinction has been framed in the following way: ‘The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to the provision of some good or service.”1 Free speech, for example, is a negative right in that insofar as no one interferes or tries to shut down what one is saying by force, one has free speech. It does require any kind of positive action by any other human being. A negative right always already belongs to the individual, and the role of the government would be to protect the individual from the interference of others.

On the other hand, a positive right involves a demand that other people actually take positive action in order to fulfill the right. The right to education would thus be a positive right. This is because a person cannot just have access to education all by himself such as he is. Rather, the right to education implies a demand on the labor of teachers, and it would also require a social and economic order in which the government bears the burden of funding education for those who would not otherwise have access to education. It must be acknowledged up front that the right to education would be a positive right and not a negative right because otherwise, people who only believe in negative rights would easily be able to argue that no right to education actually exists. But that would be to miss the point. The point here is not that people are inherently born with access to education, but rather that society must be organized in such a way that all Americans are able to access education.

The confusion between negative and positive rights can be clearly seen in debates about whether healthcare is a human right. Barlow, for example, has argued that healthcare cannot be considered a human right on the simple grounds that healthcare requires massive action by other people for its delivery, which would mean that it is not something that every human being inherently possesses.2 For example, in many African nations that have limited economy and infrastructure, modern healthcare services may simply not exist, which would make it logistically and pragmatically impossible for everyone to receive adequate healthcare. According to this conception, then, it would be absurd to call healthcare a human right, since a right that everyone does not inherently possess is not a right at all.

This argument, though, misses the mark, because it considers only the concept of negative right and not the concept of positive right. No one is seriously claiming that every person is born with inherent access to healthcare. Rather, the whole point of framing it as a positive right would be to say that although people are not born with that access, society should be developed in such a way that everyone is able to have that access. Positive rights are about what people should have, not what people already do have. This is a fundamentally different concept of rights than what is implied by the notion of inalienable rights since an inalienable right would be a right with which a person is born and will always have unless they are disrupted by the unjust actions of someone else. Inalienable rights are thus negative rights. Positive rights, on the other hand, do not already exist, and they must be constructed and then delivered upon by the structures of society. A person is not born with access to healthcare, but the argument could be made that a person should have access to healthcare whenever society is developed enough to make that possible.

The same that could be said about healthcare can also be said about education, which is the central focus at hand. The argument is not that one is born with access to education (negative right). Rather, the argument is that society should be constructed and developed in such a way that everyone does, in fact, have access to education (positive right). Again, positive rights are generally calibrated to the level of economic development of a given society. If no infrastructure for education existed, then it would be pointless to talk about how everyone should have access to education. As the situation stands, however, it is logistically feasible for every American to have access to education. Declaring access to education a positive right would thus have the effect of making it imperative for public policies to be geared around ensuring that the positive right is met.

The concepts of negative rights and positive rights are closely related to the concepts of negative freedom and positive freedom. Negative freedom refers to ‘freedom from’ the authority of others over one’s life or the unwanted intrusion of others into one’s life, whereas positive freedom refers to the ‘freedom to’ actually do something, which involves the realistic capability to do something.3 In principle, a negative freedom would be almost meaningless without the positive freedom to make use of the negative freedom. For example, having the negative freedom to go to Paris (i.e. no one is stopping one from doing it) would be almost meaningless if it would be realistically impossible for one to ever go to Paris, due to financial limitations and so on. Likewise, the right to life (a negative right) may not mean very much if one lives in a society in which one gets mortally sick and is then unable to access any meaningful healthcare services.

Definition of Education

In order to make the argument that access to education should be a right in the Bill of Rights, it is necessary to reflect on the meaning and nature of education itself. After all, education is not as self-evident as a value such as healthcare, and many Americans may by now wonder why education even matters that much at all. In order to address this issue, it is necessary to develop a deep and coherent definition of education, which will need to be rooted in philosophy and pedagogical theory. Without a clear definition of education, it would be impossible to defend the inclusion of education as a fundamental right within the Bill of Rights. To be included in the Bill of Rights would constitute a very high status for a right, and it is thus necessary to make a case for why education is so important in the first place. That will be the purpose of the present section of this essay.

The key point here pertains to the inalienable rights that are listed at the beginning of the Declaration of Independence: “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these rights are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”4 This is a ringing declaration of the fundamental negative rights of human beings, and it indicates that no one has a right to interfere with the right of others to pursue happiness. As has been discussed above, though, a negative right does not necessarily have any meaningful content if it is not complemented by a positive right that enables people to actually make use of their negative rights. For example, freedom of speech means little without some infrastructure that could deliver the communication that one wants to deliver to others. To restrict access to that infrastructure (positive right) would be tantamount to restricting freedom of speech itself.

Indeed, this was the point made in the controversial Citizens United case that was decided by the Supreme Court. The decision hinged on the fact that being able to use the media (through the expenditure of money) in order to communicate one’s ideas was deemed to be part and parcel of the right to free speech.5 In other words, it was deemed that a negative right—that is, free speech—also encompassed some degree of a positive right—i.e. being allowed to use media infrastructure. This suggests that there is some general acknowledgment in the American culture of today that a negative right in the abstract does not mean very much if one is prevented from all the means of using that right.

Turning to the central issue of education now, the proposition can be put forth here that access to education is a positive right that is necessary in order to fulfill the negative right of the pursuit of happiness. As has been discussed above, the Declaration of Independence makes it clear that the right to pursue happiness is, in fact, a fundamental human right. But how does one pursue happiness? The argument can be made here that education is essential to the meaningful pursuit of happiness. If this case is made, then the conclusion would have to follow that access to education complements the right to pursue happiness in the same way that access to media infrastructure complements the right to free speech. A negative right would seem to imply that society does, in fact, have some obligation to work toward ensuring that all people have access to the positive rights that would enable the meaningful utilization of the negative rights. Otherwise, the negative rights would just be abstractions that have no impact on how society is organized. In short, if America is really committed to the pursuit of happiness, then this would require developing the positive right of access to education.

It still needs to be demonstrated that a meaningful relationship exists between access to education and the pursuit of happiness. Some profound thinkers have had a view of education that is related to the highest virtues of humankind. For example, Milton declared the following: “The end then of learning is to repair the ruins of our first parents by regaining to know God aright, and out of that knowledge to love him, to imitate him, to be like him, as we may the nearest by possessing our souls of true virtue, which being united to the heavenly grace of faith makes up the highest perfection.”6 Now, this is an overtly religious statement, but bracketing that point, it is worth noting the fundamental relationship that is posited here between education on the one hand (‘the end of learning’) and the nature of virtue and human happiness. Indeed, the purpose of education is to raise people up in such a way that they become aware of human culture and virtues so that they are able to better understand the nature of the true good and then pursue it.7

Education could also be conceptualized in terms of Maslow’s hierarchy of needs and in particular the highest level, self-actualization.8 It can be suggested that in order for people to fully become aware of and the pursue the actualization of their highest potentials, they would need to have access to education. Education in this framework would have to do not merely with acquiring technical skills, but rather a more holistic concept of having access to the full breadth of human culture. Without access to education, then, Americans would have their opportunities for self-actualization, and thus their pursuit of happiness, meaningfully and significantly limited. Within a society in which it is, in fact, possible to provide everyone with access to education, the conclusion can be drawn that this is fundamentally unjust because it means that American society is not doing enough to live up to its commitment to the fundamental negative rights of the Declaration of Independence.

The connection between education and human potential was theorized by John Dewey, who developed the pedagogical tradition of constructivism and believed that genuine education could solely be achieved through the stimulation of a child’s mind that occurs in the various social situations he may find himself in.9 Such an emphasis on the powers of the child and capability of the child to develop his powers is essential to Dewey’s pedagogic philosophy. However, this could be expanded beyond childhood to tertiary education as well; and insofar as expanding and cultivating one’s powers is key to the pursuit of happiness, it becomes clear that there is a close relationship between education and the pursuit of happiness. By this logic, a person who did not have access to education would not be able to develop his powers in the way envisioned by Dewey, and this would clearly inhibit his pursuit of happiness. This provides the general framework for why access to education should be a positive right that is included in the Bill of Rights.

Precedents for the Proposal

One precedent for the proposed constitutional amendment of this essay can, in fact, be found in India. The Constitution of India’s Article 45 includes a right to education. Moreover, the president of India approved the Constitution (Eighty-sixth Amendment) Act, in December of 2002, which made education a fundamental right for people between the ages of six and fourteen.10 In terms of population, India is the largest democracy in the world;11 and if India can pass an amendment that mandates the right to universal education, there is no reason that America could not do so as well. The amendment that is proposed in this essay would resemble the Indian amendment, except that it would extend the upper age to include tertiary education (i.e. college). The Indian amendment is hence an important precedent.

Within America, there are already laws that require education through at least middle school, and public education is available to all Americans. This means that a constitutional amendment that mandated public education at that level would, for the most part, be redundant since that has already been established by the laws of the land. This is why the amendment would need to expand education in order to include a right to tertiary education as well. A majority of Americans believe that a college education is essential for success within the modern workforce.12 This means that even aside from the high definition of education provided above, it may also be true that college education may be required in order to succeed in the workforce, which would be a lower but still important part of the pursuit of happiness. The implication can thus be drawn that within the American context, promoting the pursuit of happiness would require guaranteeing access to education all the way through the tertiary level.

Another key precedent for the amendment proposed in this essay is the Citizens United case described above. This case is often misunderstood as simply a matter of giving people permission to spend as much money as they want in order to buy elections. But this was not the actual rationale behind the Supreme Court’s decision in this case. The main issue at stake in the case had to do with whether the protection of free speech entails the protection of access to media channels for communicating one’s views.13 The Supreme Court decided in the affirmative. This means that precedent already exists for considering negative rights as entailing certain positive rights, with the negative rights not being sufficiently protected if the corresponding positive rights are not guaranteed. This is the crux of the argument that is being made in this essay. The point is that negative rights such as the pursuit of happiness are empty of meaningful content without a guarantee of universal access to education, which is why the positive right of access to education to be added to the Bill of Rights. While seemingly radical, then, the proposed amendment is in fact not out of line with a common interpretation of the relationship between negative and positive rights.

Education and Democracy

Turning away from the discussion of negative and positive rights, perhaps a more fundamental argument that can be made here is that an educated population is essential for the preservation of a free and democratic society. That is, in the absence of a guarantee of universal access to education, the constitutional order of America may itself be in danger. This means that adding a guarantee of access to education to the Bill of Rights would simply be a way of buttressing the Constitution itself, which of course could not be directly contradictory to the Constitution. The point here is that the Constitution in some ways did not provide for the pragmatic means that would be necessary for its own perpetuation. Of all such means, universal access to education is clearly one of the most important.

The key premise of democracy is that people will be able to rule themselves in an effective manner and thus do not need to be ruled by someone else.14 In order for this assumption to hold, however, it would clearly be necessary for citizens to be educated to at least such a level that they would be able to make considered and rational decisions about governance through an effective method of processing education.15 Only education could produce such a population. For the past century, democracy in the

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