The Education Duty

By: Scott R. Bauries*

Introduction

A constitution is an instrument of entrustment.  By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies.  In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests.  Simply put, legislatures are fiduciaries.[1]

In this Article, I examine the nature of the fiduciary duties that state constitutions place on state legislatures.  Generally, I develop the concepts of legislative duties of loyalty and care and propose principles for the enforcement of these duties.  Specifically, I consider how these duties might function in the context of the affirmative obligations that state constitutions place on state legislatures to pursue certain policy goals.[2]  Ultimately, I present the case that specific affirmative duties placed upon legislatures by state constitutions are governed by general fiduciary duties, and that they ought to be adjudicated as such, using the tools of deference appropriate to the review of discretionary decisions by individuals in positions of trust.

One policy area in which every state constitution imposes specific affirmative obligations is education, and education is the one area in which courts in nearly all American states have been asked to enforce such affirmative obligations.[3]  Accordingly, I focus my analysis on what I term “the education duty.”  I define the duty as a mandatory specific obligation of the state legislature, which also carries with it a general duty of care.  Contrary to the existing scholarship and case law, I argue that, although the education duty in each state’s constitution should be subject to judicial enforcement, the proper focus of judicial review should be the general duty of care imposed by each state’s constitution, rather than the nebulous qualitative terms contained in each state’s education clause.[4]  Approaching enforcement as an application of the qualitative terms in the education clause has resulted in both overenforcement and underenforcement of the education duty.  Moving the focus of judicial review to the underlying duty of care will remedy both of these problems and preserve a role for the judiciary in ensuring the legislature’s performance of its constitutional obligations, while also protecting the separation of powers in state governments.

This Article proceeds in three subsequent Parts.  Part I sets the stage for the discussion that follows by distinguishing between negative and positive constitutional rights, and further distinguishing between positive constitutional rights and duties, as discussed in the constitutional law cases and scholarship.  Part II then sets about identifying and defining a duty-based approach to constitutional analysis, focusing on the provisions in every state constitution mandating the legislative provision of a system of education.  Drawing from the history and political theory underlying constitutionalism in the United States, from the current texts of the fifty state constitutions and from the history of litigation over these provisions, I establish that state legislative duties in general, and affirmative legislative duties in particular, are fiduciary duties to the public as a whole.  I ultimately develop a conception of the fiduciary foundations of the legislative duty to provide for education.

In Part III, I then outline how state courts might alter their approaches to enforcement of the education duty and other similar duties to reflect these fiduciary foundations.  Ultimately, I conclude that a fiduciary duty-based approach to affirmative constitutional provisions will allow for enforcement without institutional encroachment and will provide the necessary space for a principled consideration of whether individual rights to education and other public services exist and whether they are enforceable.

I.  Constitutional Rights and Duties

In the part below, I begin by laying out the familiar conceptual distinction between positive rights and negative rights.[5]  This distinction sets the stage for the more difficult, and more important, distinction between positive rights and positive duties.[6]  These distinctions help to show that the affirmative duty provisions in state constitutions are sui generis in constitutional law and theory, and they therefore require a unique approach to judicial review.  This approach asks us to step back from the hopelessly indeterminate, and therefore unhelpful, text of such provisions and to consider their overall structure and the political theory of government embodied in that structure, and then calibrate the appropriate level of judicial deference that is owed to legislative action under these provisions.[7]

A.     Negative and Positive Constitutional Rights

Scholarship of constitutional law is permeated with “rights talk.”[8]  This is true in the federal context, where the Constitution places limitations on the use of federal power and often speaks of rights specifically and therefore seems to call up a rights-focused analytical framework.  But it is also true in the scholarship of state constitutions and the national constitutions adopted primarily after World War II, which, in addition to containing express limitations on the use of government power through the articulation of rights, expressly call for the use of government power to achieve certain social policy goals.[9]  In this latter case, a rights-focused approach is neither inevitable nor necessarily desirable, though rights talk has overwhelmingly dominated the debates over interpretation and enforcement.[10]

One important conceptual distinction that has informed the debate has been that between negative constitutional rights and positive constitutional rights.  As Professor David Currie explains, a negative right allows its holder to prevent government action against the holder, while a positive or affirmative right entitles its holder to demand government action.[11]

Numerous scholars, and some courts, have criticized this distinction, arguing that if it exists, the distinction is not a categorical one but rather a continuum.[12]  Under this widely held view, even ostensible negative rights require some government action or expenditure to effectuate them; therefore, all rights have some affirmative character.[13]  For example, many criminal defendants are entitled to legal representation provided by the state.  If this is so, the continuum theorists argue, then the right to counsel is at least in part a positive right.[14]

Similarly, in order for individuals to be able to freely speak their minds, it is necessary that public spaces are provided, are maintained, and are made safe, for example by providing police protection to unpopular speakers to prevent a “heckler’s veto.”[15]  All of this requires government action and expenditure, and all of it is, in some sense, mandated by the Constitution; therefore freedom of speech is a kind of positive right, the argument goes.[16]  But this view misperceives the distinction it proposes to eliminate (the distinction between rights against government action and rights requiring government action).[17]  Both the right to counsel and the right to protection of unpopular speakers are practical applications of underlying rights against government action, and neither of these “rights” would exist in any situation where government were not to first act against an individual.  The right to the “Assistance of Counsel,” as articulated in the Sixth Amendment, is not a free-standing entitlement but is predicated on one’s first having the status of a “criminal defendant.”[18]  No person has this status automatically by birth.  Rather, the state must act to place this status on a person.

The right to protection against a “heckler’s veto”—which in extreme cases would seem to require that a city police department expend resources to protect unpopular speakers from physical harm—is the best example of a true positive right, if it were to actually require the expenditure of public resources absent prior state action.[19]  But as a matter of current law, it does not.  Most cases identified as heckler’s veto cases involve police attempting to remove an unpopular speaker from a public forum to protect the speaker’s safety—to act against an individual speaker.[20]  In these cases, it is generally true that the remedy against “hecklers” of unpopular speakers cannot be to remove the speaker, as that would be a direct infringement of the speaker’s right to speak.  Thus, it is a prohibition against government action—the same as any other constitutional right.

The closest that the Supreme Court has ever come to recognizing the protection against heckler’s vetoes as a positive right was its holding in Forsyth County v. Nationalist Movement.[21]  The Court held that city officials were not permitted to charge an unpopular group more for a speaking permit than more mainstream groups on the grounds that more police protection would be needed for the unpopular group.[22]  In practical terms, this holding means that cities wishing to expend resources to protect speakers from hecklers must expend greater resources to protect unpopular speakers, whether these cities wish to do so or not.  Stated this way, police protection against hecklers sounds like a positive right.  In response to the Court’s decision in Nationalist Movement, however, a city might decide that it must provide police protection for no fee or a nominal fee, or it might decide not to provide police protection at all.  If a city chooses to provide protection, it is not permitted to decide the price of that protection based on the message to be protected.  Nothing in the Nationalist Movement case, or in any other heckler’s veto case, however, makes it a constitutional compulsion for a city to provide police protection for speakers—popular or unpopular.[23]

Thus, neither of these rights—the two best candidates thus far offered for positive federal constitutional rights—can be violated by the government unless the government first takes some action.  In the case of the right to counsel, the government must first arrest a suspect and then propose to put the suspect on trial for a crime.  Only then does the government’s obligation to provide counsel arise.[24]  If the government wishes to avoid providing counsel to indigent defendants, it need only stop arresting them.  The fact that this solution would be impractical or unwise does not make it unconstitutional.  If failure to arrest at all would be constitutional, and if an arrest and a criminal charge are preconditions to the right to counsel, then the right to counsel is not itself a positive right but is a precondition for the exercise of discretionary state power.

In the case of freedom of expression, the analysis is similar.  Concepts of freedom of expression as a fully self-actualized opportunity to speak one’s mind in an open, available, safe place with lots of people listening are simply not part of the right, and the Court has never so held.  Were the law otherwise, then an individual speaker could compel a municipality to set up and fund a public park where none currently exists.  True, governments around the country act, as a matter of policy, to provide safe venues for expression, but as with the arresting of criminal suspects, the practical value of the government activity does not render it constitutionally compelled.

Professor Frank Cross has explained this distinction succinctly.[25]  As Cross explains, distinguishing between a positive right and a negative right is as simple as imagining a world without government or where government action is impossible.[26]  In such a world, a negative right could not possibly be violated, while a positive right would always be violated.  In explaining the distinction this way, Cross elucidates a vital point: our rights are legally meaningless[27] until we decide against whom these rights run, and what obligations these rights place on the entities against whom they run.[28]  Only then can we decide whether our rights are enforceable in court and to what extent they may be enforced.  Applying this conception to the rights to counsel and police protection against a heckler’s veto leads to the conclusion that both are extensions of decidedly negative rights, respectively against conviction by trick or surprise and against viewpoint discrimination.  Neither can possibly be violated in a world without government action.

Therefore, although it is common in legal scholarship to reject “formalistic” distinctions between positive rights and negative rights,[29] the distinction clearly exists in American constitutional law, and it provides a useful way of talking about the relationship between the individual and the activist state in the modern world.[30]  The distinction between positive and negative rights is familiar, even though not universally accepted.[31]  The next Subpart focuses on a less explored distinction, but one that is more meaningful if we hope to understand the meaning of affirmative obligations in state constitutions—the distinction between positive rights and positive duties.

B.     Positive Constitutional Duties

Aside from rights, plausible arguments exist that all constitutions impose duties on the government.  Like the more commonly discussed categories of positive rights, such duties require government action of some sort.  In fact, it is plausible to claim, as some scholars have suggested, that positive rights impose correlative positive duties on government.[32]  However, this correlation does not necessarily run both ways.  It is possible to conceive of governmental duties that exist but do not run to individuals or create any individual rights to enforcement.  The President’s duty to “take Care that the Laws be faithfully executed”[33] and the obligation of the United States to “guarantee to every State in this Union a Republican Form of Government”[34] under the Constitution come to mind.  In the discussion that follows, I focus my attention on the prospect of a legislative duty to legislate as a free-standing duty that does not depend on the existence of any individual positive right.

The idea of a legislative duty to legislate does not find much purchase in legal scholarship, though as an idea it has an impressive pedigree.  Legislative duty can be thought of as a central part, or at least a natural implication, of the work of such diverse political theorists as Immanuel Kant, Thomas Hobbes, John Locke, Jeremy Bentham, John Stuart Mill, and Thomas Paine, among others.[35]  Legal philosophers such as John Finnis have developed normative accounts of the duty to govern from concepts of natural law,[36] and these accounts have gained significant texture over time due to the work of later scholars.[37]  Nevertheless, the bulk of the philosophy of law regarding the broad idea of governing focuses on three concepts separate from legislative duty—individual rights, legislative authority, and the individual’s obligation to obey law.[38]

In state and federal constitutional law, the scholarship is heavily focused on individual rights and government powers and pays very little attention to the prospect of governmental duties.[39]  For example, a mountain of scholarship exists on the contested subject of unenumerated rights under the Constitution, but a comparative molehill of scholarship exists examining the related idea of unenumerated legislative duties.[40]

This dearth of commentary is not for the lack of importance of the idea of legislative duty.  Professor Robin West points out that the idea of legislative duty, encompassing both a duty “to legislate—and to do so toward particular ends,” forms one of the pillars of liberal political thought.[41]  West further points out, however, that, to the extent that the extant scholarship hints at conceptions of positive legislative duties as a constitutional principle, it does so either as a way of illustrating the content of presupposed individual positive rights or as a way of “tak[ing] the judiciary off the hook,” by establishing residual moral legislative duties where the judiciary cannot enforce what would otherwise be positive constitutional entitlements.[42]  She pointedly asserts that, in the absence of a plausible argument for the analytically prior existence of individual positive rights, constitutional theorists generally neglect discussion of legislative duties to legislate.[43]

In federal constitutional law, this omission of duty-based analysis is somewhat understandable, as the Constitution does not contain many affirmative obligatory statements.[44]  It may be, then, that the Constitution simply will admit no affirmative legislative duties to legislate, perhaps because the Framers chose to enumerate few affirmative obligations in the Constitution, none of which expressly require Congress to enact legislation.[45]  However, as West points out, even to the extent that the Constitution embraces unenumerated legal principles, the scholarship has single-mindedly focused on rights, leaving the idea of unenumerated duties unexplored.[46]  Perhaps the structure of the federal document—as a grant of limited and enumerated powers—forestalls an “unenumerated duties” interpretation where it may not foreclose an “unenumerated rights” interpretation.[47]

State constitutions, however, both in their legislative articles and, more commonly, in separate policy-focused articles directed at state legislatures, contain numerous explicit affirmative obligations, and such provisions also have appeared prominently in national constitutions adopted around the world in the years since World War II.[48]  The prevalence of these provisions has allowed for both courts and commentators to consider whether legislative duties exist and whether they may be enforced.  But the bulk of scholarly commentary has defaulted to discussing these provisions in a rights-focused frame, leaving the equally important idea of legislative duties relatively unexplored.[49]

In state constitutional education cases, the courts more often directly address the concept of legislative duty, as words such as “shall” often appear in state constitutional education clauses.  But, as the next Part demonstrates, these courts generally conceive of the legislative duty in absolutist terms, requiring the establishment of a school system that qualitatively seems to the justices in its actual operation to be “adequate,” or some variant thereof, and usually purport do so in the context of individual rights.[50]  This substance-oriented, absolutist approach often fails to achieve the adequacy that the courts claim to seek and sometimes even results in the courts conceding the issue back to the legislatures after prolonged institutional conflicts.[51]  In the next Part, I argue that rather than approaching affirmative duty provisions in state constitutions in this way, state courts should address affirmative duties as the fiduciary duties they are by switching from such a substance-oriented approach of review to a more process-oriented form of review.

II.  The Education Duty

In education, we speak often of constitutional rights and seldom of constitutional duties.[52]  The “right to education” is frequently held up as an exemplar of a positive constitutional right created by state constitutions, and cases purporting to adjudicate education rights claims are held up as examples that positive constitutional rights are enforceable and subject to effective judicial remediation.[53]  The consequences of this rights-focused approach have been to improperly focus state judiciaries on the substantive results of legislative enactments, rather than on the legislative process, and this substantive focus has led some courts to overreach their institutional boundaries and other courts to abdicate their judicial role.

The discussion below evaluates state judicial approaches to the enforcement of state constitutional education clauses in light of text, along with the history and political theory underlying state constitutionalism.  I conclude from this review that state courts have both overenforced and underenforced the norms expressed in the affirmative duty provisions of their constitutions,[54] and that recognizing the nature of legislative duty as a fiduciary duty will guide these courts to more fruitful adjudicatory approaches.  I begin with state constitutional text.

A.     State Constitutional Education Clauses

1.     Education Clauses and Education Rights

Every state constitution imposes upon the state legislature some obligation to provide for an education system.[55]  State constitutional education clauses often contain qualitative terms, such as “thorough,”[56] “efficient,”[57] “suitable,”[58] and “adequate,”[59] that describe the legislature’s duty to provide for an education system.  In addition, education clauses uniformly state their terms affirmatively, and most often as mandatory directives rather than as admonitory encouragements.  For example, the Minnesota Constitution provides, “[I]t is the duty of the legislature to establish a general and uniform system of public schools.”[60]  Most of the other state education clause provisions take similar forms, using duty-based terms such as “shall” to impose obligations and directing these terms toward the establishment and maintenance of a system of schools.[61]

Not all state constitutions contain unambiguously mandatory language, however.  Several state constitutions employ mandatory terms, such as “shall,” but direct such terms to hortatory goals.  For example, the California Constitution provides, “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”[62]  Iowa’s education clause contains similar language,[63] as do the education clauses of Nevada[64] and New Hampshire.[65]  Other state constitutions contain a kind of patent ambiguity in their provisions.  For example, in its Education Article, North Carolina’s constitution contains an admonition that education “shall forever be encouraged,”[66] followed by a mandatory requirement for the establishment of a “general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.”[67]  But the Declaration of Rights of the same constitution unambiguously establishes an individual “right to the privilege of education,” followed by a state duty to “guard and maintain that right.”[68]  Similarly, Wyoming’s constitution provides an admonition that a right to education “should have practical recognition,” followed by a mandatory legislative duty to “encourage means and agencies calculated to advance the sciences and liberal arts.”[69]

Vermont’s education clause does not contain any mandatory terms at all.  It provides, “Laws for the encouragement of virtue and prevention of vice and immorality ought to be constantly kept in force, and duly executed; and a competent number of schools ought to be maintained in each town unless the general assembly permits other provisions for the convenient instruction of youth.”[70]  This provision has the feel of a completely optional encouragement, but it might nevertheless be read as mandatory because of the existence of the “unless” clause, which suggests that the admonitory goals must be pursued in the absence of alternative legislative action of a similar character.  Alabama’s education clause is even more explicit in denying any compulsion for legislative action, stating:

It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense, nor as limiting the authority and duty of the legislature, in furthering or providing for education, to require or impose conditions or procedures deemed necessary to the preservation of peace and order.[71]

However, this language was added to Alabama’s constitution right after Brown v. Board of Education[72] was decided, and it is followed by language explicitly authorizing segregated schooling.[73]  One trial court in Alabama has held that, due to its racist purpose, the education clause as amended following Brown may not be applied and that the original education clause found in the pre-Brown version of the state constitution, which contains squarely mandatory language,[74] must be applied instead.[75]

Many observers have argued that these provisions create positive individual rights to educational services.[76]  However, the overwhelming majority of state constitutions direct their affirmative duty or goal statements at the legislature or the state, with no mention at all of individuals.[77]  Still, numerous scholars and many state supreme courts have taken the existence of these affirmative provisions as establishing a judicially enforceable individual positive right to education in each state.[78]  Few have questioned whether the duty to provide education might exist independently of an individual right to receive it.[79]

Professors Steven Calabresi and Sarah Agudo come the closest to a full examination of whether education deserves the status of an individual “right” under state constitutions.[80]  Employing a jural correlativity analysis,[81] the authors conclude that, given the ubiquity of affirmative duty provisions among state constitutions at the time of the adoption of the Fourteenth Amendment, the conclusion that education is a right “deeply rooted in American history and tradition,” and is thus a “fundamental right,” is almost inevitable.[82]  Specifically, in discussing Prigg v. Pennsylvania,[83] the authors state, “Thus, Justice Story’s opinion stood for the proposition that an individual right can give rise to government power, which is far more tenuous than our claim that a government duty to educate implies an individual right to be educated at public expense.”[84]  Of course, as an analysis of the availability of a substantive due process right to education in federal court, Calabresi and Agudo’s analysis does not squarely address the more direct question of whether the state constitutional provisions they rely on create stateconstitutional rights, but it goes a good distance in that direction.  Only one state court, the Supreme Court of Washington, has taken the correlativity analysis this far and has specifically concluded that an individual positive right to education exists under the state constitution.[85]  However, many other state courts have at least stated that such rights are created by educational duty provisions, either as “fundamental rights” in the equal protection context (as Calabresi and Agudo did) or as free-standing individual positive rights in the adequacy context.[86]

Counterbalancing these favorable treatments of the question of education rights under state constitutions are few, but powerful, rejoinders based in textualist and original intent analysis.  Professor John Eastman’s work over the past decade establishes the proposition that no individual rights to education existed under state constitutions until very recently.[87]  Eastman’s work is based on the textual features of the education clauses of state constitutions and judicial interpretations of these textual features.[88]  Eastman demonstrates that, through much of history, the education clauses of state constitutions were stated in hortatory, rather than mandatory, terms.[89]  Only since the Civil War have more mandatory provisions become common, and only since the late 1960s have even these provisions been construed in the courts as establishing individual rights—typically the “fundamental rights” familiar to federal equal protection jurisprudence.[90]

Professor Jon Dinan provides originalist support for Eastman’s conclusions through his careful and comprehensive review of the available convention debates for the best evidence of state constitutional framers’ intent in adopting education provisions.[91]  Dinan’s analysis leaves very little room for one to conclude that such provisions were intended by their drafters and adopters to be judicially enforced by individual rights holders.[92]  As Dinan points out, rather than seeking to establish judicially enforceable provisions, the vast majority of state constitutional drafters appear to have worked to prevent the substantive components of their proposed provisions (e.g., requirements for “adequacy,” “thoroughness,” “efficiency,” “sufficiency,” etc.) from becoming judicially enforceable.[93]

Taken together, the work of these two scholars makes a strong case for categorically rejecting the recent move in the state courts to enforce the qualitative provisions in state constitutional education clauses as substantive rights provisions.  Nevertheless, it is possible, surveying the provisions extant in state constitutions today for not only text but also structure and underlying political theory, to come to a more nuanced conclusion—one that recognizes the difference between specific substantive requirements and general substantive goals, either or both of which may potentially form aspects of a legislative duty to legislate.

As outlined above, the provisions in today’s state constitutions are overwhelmingly worded in mandatory terms, such as “duty” and “shall.”  While such provisions (with the single exception of North Carolina’s) do not explicitly establish individual positive rights, they certainly purport to establish affirmative legislative duties, and these duties may be judicially enforceable.  It is a familiar interpretive principle that, where a legal text is clear and unambiguous, a court should not delve beneath such text to derive the intent of its drafters.[94]  Though they may be vague as to the content of the duty, the mandatory provisions are certainly clear at least in establishing a legislative duty to provide for education.  Even the hortatory education clauses at least admonish the states to take education seriously in determining how to prioritize state appropriations and policy determinations,[95] and such admonishments might themselves be judicially enforceable, were a principled theory to undergird such enforcement.[96]

In any event, the provisions exist and will continue to generate judicial interpretations.  Thus, it behooves the scholarly community to assist with the proper conceptualization of both the mandatory and admonitory provisions.

2.              The Challenges of Enforcement and Remediation

I now turn to the judicial interpretation and enforcement of these state constitutional provisions.  I briefly review the path that brought these provisions into the state courts for review, and I show that the approaches that state courts have taken in the existing cases overlook the character of the duties they purport to enforce and ultimately devalue the idea of an individual right to education.

Education finance litigation involves constitutional challenges to state education funding systems, where the ultimate goal is an increase or reallocation of statewide education funding.  The conventional account of this litigation holds that it has proceeded through three “waves” of reform.[97]  Recently, this “wave” metaphor has drawn scholarly criticism.[98]  However, if one avoids the common flaw of assuming a clear line of demarcation between each wave and accepts that each case may draw from theories dominant in one or more waves alternatively, then the metaphor remains useful as an explanatory tool.

Under this metaphor, the first wave involved challenges brought in federal and state courts based on the Equal Protection Clause of the Fourteenth Amendment.  School finance litigation, as currently conceived, is the progeny of the decades-long development of institutional reform litigation in the federal courts.[99]  As Professor Owen Fiss pointed out years ago,[100] institutional reform litigation began in earnest[101] with the seminal education rights case Brown v. Board of Education.[102]  As Professor Abram Chayes explained in his article on the topic, the judge in institutional reform litigation does not so much adjudicate the case as manage it.[103]  Although courts do issue their own injunctions, an institutional reform claim most often results in a negotiated settlement agreement, which the court formalizes into a consent decree—a device that effectively orders performance of the settlement agreement—thus converting any breach of the agreement into a potential contempt of court.[104]  In such cases, the judge either assumes monitoring of the compliance with the injunction directly or appoints a special master to handle the monitoring on the ground.  This monitoring can extend for years or even decades.[105]  Out of the resistance to Brown, the form developed as federal judges issued injunctive remedial orders or consent decrees binding local school districts and other public entities to achieve long-term, structural changes to remedy widespread past harms with persistent present effects.[106]

Once these large-scale desegregation orders gained acceptance, reformers turned their eyes toward arguments based on socioeconomic equality, pressing claims in federal court relying on the Equal Protection Clause that education was a fundamental right and wealth was a suspect classification, and hoping that courts would apply strict scrutiny to state educational finance schemes.[107]  The Supreme Court closed the federal door on these types of challenges in San Antonio Independent School District v. Rodriguez,[108] holding that education is not a federal fundamental right,[109] and wealth is not a suspect classification for the purposes of analysis under the Equal Protection Clause.[110]  Relying on these holdings, the Supreme Court in Rodriguez applied rational basis review and upheld Texas’s school finance system, despite broad inequalities in funding, based on what the Court determined to be the legitimate governmental objective of preserving local control over educational decision making.[111]

The denial of strict scrutiny review of educational funding inequalities in federal courts had the immediate effect of directing all education finance litigation to state courts; this litigation was pursued in a second wave of reform, involving primarily equity-based challenges based on the equal protection or uniformity provisions of state constitutions.[112]  These challenges were designed similarly to the federal institutional reform litigation that spawned Rodriguez, with large plaintiff groups seeking broad structural injunctions to equalizing funding.[113]  These “second wave” challenges met with varying levels of success, typically depending on whether education was found to have the status of a fundamental right in the state—the same determination that was ultimately dispositive in Rodriguez.[114]  Ultimately, however, litigants generally migrated away from the equality-based strategy in favor of a new strategy: suits based on the absolute inadequacy of education spending.[115]  These challenges make up the “third wave” of litigation-based reform, and adequacy-based theories currently remain dominant in education finance reform litigation.[116]

Adequacy-based challenges ask state courts to interpret and enforce the quality terms of a state constitution’s education clause.  Along with the duty-based language discussed above, each state’s education clause may contain one or more terms of quality that describe the goals of the legislative duty, such as “thorough,”[117]“efficient,”[118] “suitable,”[119] “adequate,”[120] and “high quality.”[121]  The most difficult aspect of an adequacy claim is therefore the inherent indeterminacy in the language used to frame each state’s command.  Empirical studies have repeatedly been unable to document any influence that differences in the quality terms that exist in state constitutional education clauses have on the results of adequacy cases.[122]  States with comparatively weak-sounding education clause language—such as Kentucky[123]—have generated judicial decisions invalidating the entire state educational system,[124] while states with comparatively strong-sounding language—such as Illinois[125]—have generated judicial decisions rejecting the very idea of a judicial role in enforcing education clause language.[126]  Moreover, courts choosing to engage the education clause substantively, as the Supreme Court of Kentucky did, tend to reach for lofty-sounding, but often unrealistic, starkly countertextual, and even ahistorical, interpretations of the constitutional language.[127]  Education policy claims are particularly susceptible to this danger, as few judges likely relish the idea of publishing an opinion minimizing the importance of education or the legislature’s responsibility for it.

Given both the indeterminacy in constitutional language and the understandable tendency to reach for lofty and aspirational standards, approaching the education clause substantively gives rise to a significant concern—whether a state court may, consistent with the separation of powers, mandamus or otherwise enjoin a legislature to raise or allocate additional revenue for the state’s education system where the court sees current funding levels as not “thorough,” “efficient,” “suitable,” “adequate,”  or “high quality.”[128]

Facing this concern, courts have taken one of three paths.[129]  About a third of courts have dismissed cases asking for such enforcement on grounds of non-justiciability, concluding that, because affirmative duty provisions are directed at state legislatures and because their terms are so subjective, these legislatures are vested with complete and unreviewable discretion.[130]  Another third or so have engaged the merits of the claims and chosen either a deferential form of review—such as the federal “rational basis” test, upholding the legislation against the challenge[131]—or a non-deferential form of review, construing the education clause as an absolute command to create an “adequate” system of schools (or some variant of the term).  These courts ultimately hold against the state and use that holding as a justification for a public law injunction to legislate the system into constitutionally valid status.[132]  A final third have engaged in review of the merits of such cases, applied a non-deferential form of review, and found the state constitution violated, only to step back at that stage and deny the plaintiffs any sort of directive remedial order against the legislature.[133]

Proponents of this third way tout its ability to engage state legislatures and the judiciary in an ongoing “dialogue” as to the meaning of the state constitution.[134]  Proponents favor the dialogic approach because it ostensibly allows the courts to engage in a collaboration with the coordinate branches of government, and therefore mitigates separation of powers problems resulting from interbranch conflicts.[135]

Recently, Professors Charles Sabel and William Simon offered a thoughtful defense and reconceptualization of the dialogic, or what the authors term the “experimentalist,” model.[136]  Sabel and Simon argue, in part, that institutional reform litigation[137] in state courts under state education clauses succeeds because courts have abandoned the traditional model of institutional reform in these cases.[138]  Professors Sabel and Simon further argue that in the successful institutional reform cases, including, prominently, state court education clause litigation, courts do not perform a directive monitoring role.[139]  Rather, courts in these cases issue orders setting substantive goals and then step back and allow for the parties to experiment with different strategies for achieving these goals.[140]  This process of experimentation results in the formation of what Sabel and Simon term “new publics” made of interested stakeholders both within and outside the party structure of the case.[141]  These “new publics” stand as alternatives to the “control groups” that ordinarily materialized in Chayesian institutional reform litigation to control the remedial process, which scholars have criticized as harmful to democratic processes due to the control exercised over public policy by designated groups of plaintiffs’ lawyers.[142]

Though encouraging, the optimistic accounts of this new form of institutional reform litigation give short shrift to three concerns.  The first is that the new types of judicial orders that create what Sabel and Simon call “destabilization,” stripped of the gloss that might be placed upon them by comparing them to the hyperspecific and directive orders of Chayesian structural injunctions, nevertheless cannot be anything other than top-down edicts.[143]  At a certain point, a legislature may not decide for itself not to pursue or accomplish the substantive “goals” set out in one of these orders.  The goals, ostensibly at least, are operationalizations of judicial mandates, either expressed or implied, and they carry with them the latent, yet still potent, power of the court.

Second, in school finance litigation at least, the “new publics” that have developed in response to plaintiff-friendly judgments have been strikingly similar to the “old publics” that filed each suit in the first place.  The lawyers for the plaintiffs and the interest groups often at the heart of the cases, if permitted, stay closely involved during the remedial process, often returning to the court not directly for periodic reporting but for relitigation of the remedy, where they are unsatisfied with legislative efforts resulting from goal-oriented judicial orders.[144]  The cases often remain adversarial, rather than cooperative, and their progress continues to be directed by an identifiable “control group” of lawyers even where a judge issues a dialogic order.  Thus, although the days of detailing the square footage of a prison cell in a remedial order appear to be gone,[145] the new experimentalist process looks very much like the old command-and-control process in most other ways.

Finally, for all of the rhetoric of individual rights that exists in the cases, few individual plaintiffs, if any, ever receive any direct relief for the proved violation of their own individual rights to education.  In these dialogic or experimentalist cases, courts do not order any particular action to remedy any individual harms.  Rather, as Sabel and Simon describe, courts merely set statewide substantive quality goals and allow the political actors subject to the order to pursue these goals.[146]  At no point does a court order that the educational situation of a named plaintiff be set right.  This lack of specification of the remedy, while undoubtedly satisfying to judges looking at conflicts with legislatures, is destructive to the legitimacy of rights adjudication.  From the perspective of an individual plaintiff, the court has held that the plaintiff has a right and that the right has been violated.  But the court has not offered any particularized relief for the violation, and indeed has even left the ostensible violator partially in charge of determining how the violation will be remedied.  Inevitably, the right is devalued at best and eliminated at worst.[147]

Defenders may claim that plaintiffs are at peace with this adjustment of the normal process of litigation and that, as public interest representatives, or as members of new publics, plaintiffs naturally will feel vindicated by the progress and attention to their issues that a dialogic judicial decree causes.  This may be true in some cases, but it is not true in all.  For example, when the Supreme Court of Idaho held that state’s school system unconstitutional and proceeded to engage the destabilization process that Sabel and Simon advance,[148] the plaintiffs certainly did not accept the lack of direct remediation of the violation of their rights.  Instead, they filed suit in federal court against the justices of the Supreme Court of Idaho, alleging violations of their fundamental right to a remedy.[149]  Although the suit was ultimately dismissed on Rooker-Feldman Doctrine[150] grounds, it stands as a powerful rejoinder to those who would dismiss the interests of plaintiffs who are told that they have rights and that these rights have been violated, but who receive no specific relief.

Moreover, courts employing the experimentalist approach have continued to be confronted with separation of powers problems.  Some of the primary courts exemplifying the experimentalist approach have even ultimately bowed to these pressures and withdrawn ongoing judicial supervision, either by declaring that the state is now in compliance with the constitution based on a lenient standard of review that would have upheld the system in the first instance[151] or by re-affirming that the constitution is not satisfied, but holding that further court involvement is not necessary.[152]

In the final analysis, then, the dialogic or experimentalist approaches to remediation have presented the same institutional concerns as specific remedial injunctions.  In each case, because the courts make substantive judgments of the inadequacy of the state school system, the courts must also directly or indirectly supervise the substantive content of legislative policies.  Further, in each case founded on individual rights, the courts have subverted the idea of individual rights after adjudicating these rights to be violated, thus devaluing them.  Faced with these remedial issues and the inevitable risks to their institutional capital, it is understandable that a number of state courts have decided to avoid adjudicating these claims altogether, holding them to be nonjusticiable.[153]

Another approach is possible, one that protects the judiciary from encroaching on legislative functions where judges merely disapprove of the outcomes of legislative deliberations, but protects the judiciary’s ability to correct gross failures of political will in extreme cases.  To work, however, this approach must take into account the true constitutional status of education in each state.  Despite all the talk of individual rights to education, education clause litigation, as currently conceived, is not really about individual rights.  Like all other constitutional questions concerning affirmative provisions, it is about systemic duties to the public as a whole.  The next Subpart develops a theory of the nature of a systemic affirmative legislative duty and applies this theory to state constitutional education clauses.

B.     Education as a Systemic Duty

1.     The Importance of the Proper Conception

A right entitles a specific person to a specific thing, be it the action or the forbearance of another.  A negative constitutional right, therefore, entitles its holder to thegovernment’s forbearing from acting against the holder in some way, and a positive constitutional right entitles its holder to the government’s action on the holder’s behalf.[154]  In contrast, a duty obligates its holder to act or forbear from acting but does not necessarily entitle another party to any specific action or forbearance as to that party.[155]  In the world of positive constitutional duties and positive constitutional rights, this distinction makes an enormous difference.

If the affirmative provisions that exist in state constitutions and in some national constitutions are construed as rights provisions, then these provisions should entitle specific individuals to demand specific goods or levels of service to themselves.  Otherwise, in what sense are education rights, “rights”?[156]  If, however, education clauses are read as purely duty provisions, then they obligate government to pursue the ends identified but do not necessarily entitle any person to a particular level of government service.

The recognition of this distinction allows us to further recognize a vitally important point: no state supreme court has truly recognized anything that could be accurately described as a “positive right to education” under its state constitution.  Over the course of the second wave of school finance litigation, the language of fundamental rights was employed extensively.  Although some state courts came to different conclusions than the Supreme Court did in Rodriguez as to whether education should be characterized as a “fundamental right,” in each of these cases, as well as in the many cases that came to the same conclusion as the RodriguezCourt, the courts approached the question with the same purpose—to determine the level of equal protection scrutiny to apply.[157]  Of course, “fundamental rights” justifying strict scrutiny in equal protection cases are not the same thing as “positive rights.”[158]  Moreover, to the extent that individual rights justify individual remedies, especially in the positive entitlement context, no state supreme court has ordered an individual remedy pursuant to a judgment of unconstitutionality under its state constitution’s education clause.[159]  Acknowledging this set of facts does not mean that education may never be recognized as an individual entitlement under state constitutions, but it does mean that the “fundamental rights” cases do not establish the kind of “education right” (i.e., a positive entitlement) that the literature seems to assume exists in every state.[160]

Once we are able to distinguish between what state constitutions clearly and textually provide (an education duty) and what they may imply, but may also not imply (a positive education right as an individual entitlement), then we can more easily understand the pressures that state courts are put under when they review education clause claims and the choices that courts make in resolving such claims.  We can also better understand why the enterprise of education clause litigation has largely been a failure, or at least a massive disappointment.[161]

Accepting my descriptive conclusion—that state constitutions do not textually provide for more than duties and that no state supreme court has truly analyzed its constitution and found that a positive individual entitlement right to education exists—this leads to a further question.  In a world of state legislative duties that do not correlate to individual entitlements, how is a court to approach judicial review?

The first hurdle that would be presented in any such regime would be to determine who can sue to force the legislature to perform its duty.  Nearly every state court that has encountered a school finance adequacy suit has had to resolve the question of standing.  Now, it is fairly well established that the standing doctrine in state courts is often more forgiving to plaintiffs than in federal courts.[162]  Some of the reasons for this are textual—for example, explicit authorization for the rendering of advisory opinions in some state constitutions.[163]  Some of the reasons are historical—several states have authorized generalized grievance litigation, especially to challenge taxation legislation, since long before the Supreme Court began focusing its eye on standing under Article III in the mid-twentieth century.[164]  Accordingly, as it turns out, the standing issue has not presented much of a problem for education clause plaintiffs.

The second hurdle, however, as discussed above, would be the more significant question of whether and how legislative action in performing its systemic duty may be adjudicated where the challenge is based on the qualitative terms of the education clause.  In other words, assuming that the legislature has a compulsory duty to legislate on education and that the legislature has so legislated, if this legislation falls short of what a proper plaintiff thinks is “adequate,” or some variant thereof, may the courts decide whether the plaintiff is correct?  And if so, may the courts remediate the harms of this inadequate legislation?  Like the first hurdle, this hurdle must be cleared in nearly every education clause suit that is filed.  Unlike the standing question, however, it is often resolved against the plaintiff’s interest, either at the threshold stage or at the remedial stage.

At times, state supreme courts have indeed approached education clauses squarely as the sources of legislative duties, rather than (or in addition to) rights.  The most forceful of these analyses was rendered in 1978 by the Supreme Court of Washington, which held that the education clause in the state constitution “does not merely seek to broadly declare policy, explain goals, or designate objectives to be accomplished.  It is declarative of a constitutionally imposed Duty.”[165]  States drawing from the Washington analysis have at times spoken of rights and at other times spoken of duties or muddled the two concepts, but all have approached their clauses in similar ways—as demands on the legislature to meet the substantive standards stated within them.[166]

The Supreme Court of Kentucky, in perhaps the seminal third wave decision, held that the word “efficient” in the state’s education clause imposed an obligation on the state’s legislature to provide an “adequate” education, with the goal being:

to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.[167]

Some states have adopted the Kentucky formulation wholesale;[168] others have adapted it;[169] still others have created their own formulations.[170]  But as in Kentucky, state supreme courts have generally evaluated compliance with their education clauses by examining whether the state school system in fact evidences these sorts of qualitative elements,[171] usually in comparison with professionally derived standards[172] or the systems of other states.[173]  States choosing not to engage this substantive evaluation of the qualitative adequacy of the state’s school system have generally done so on the theory that, despite the existence of an education clause in the state’s constitution, the matter is nonjusticiable.[174]

With due respect to the hard work that it has taken over the years to define, develop, advocate for, and apply these qualitative standards, this substantive evaluative approach is inconsistent with the nature of the duty imposed by each state’s education clause.  Just as inconsistent, however, is the set of decisions dismissing education clause challenges as nonjusticiable, as these decisions both render the obligations stated in a state’s education clause nugatory and on their own terms fail to take account of the broader legislative duties underlying even provisions stating specific affirmative legislative obligations.  In the Subpart below, I flesh out these broader duties, which are fiduciary in character.

2.     The Fiduciary Theory of Representative Government

Legislative duties are fiduciary duties.  That is, power exercised by a legislative body is a delegated or entrusted power, which the legislature must use in the best interests of the entrustor—the people.[175]  This idea is as old as Western political philosophy.[176]  It had its origins in Plato’s “philosopher kings,”[177] found its way into Roman political philosophy through Cicero,[178] and made it into English political thought first through King James I.[179]  Once there, the fiduciary concept became a subject of political thought in England and developed further during the centuries leading to the American Revolution, culminating in the political philosophy of John Locke.[180]

John Locke is nearly universally regarded as being among the most important political philosophers to the thinking of the Framers of the United States Constitution,[181] as well as to the drafters of the early state constitutions.[182]  Along with contemporaries such as Montesquieu, Locke gave us several important ideas—the separation of powers, inalienable rights, and the power of the people to alter their government.[183]  In Locke’s conception of governance, the people agree amongst themselves, by majority, to cede a portion of the powers and rights of which they individually possess in the “state of nature.”[184]  The result of this compact is the formation of a government where the legislature exercises “supreme power,” but where it may use such power only within the boundaries of the people’s entrustment.[185]  In fact, Locke refers to the legislative power specifically as a “trust,” carrying with it only “a fiduciary power to act for certain ends.”[186]  Like all trusts, this trust confers upon the legislature both power (or discretion) and duty—fiduciary duty, to be specific.[187]

Locke’s conception of the relationship between the people and their legislature is most explicit in section 149 of his Second Treatise on Government.  There, he summarizes the features of government by consent:

Though in a constituted commonwealth standing upon its own basis and acting according to its own nature—that is, acting for the preservation of the community, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them.  For all power given with trust for the attaining an end being limited by that end, whenever that end is manifestly neglected or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security.[188]

Two implications of this expression of the fiduciary construct bear further discussion.

First, it is clear that Locke viewed the fiduciary duty of the legislature—and, by extension, the government—to be an overriding limitation on the legislature’s actions, superseding any independent or specific limitations that might also exist in the constitution.  That is, under a Lockean view, it would be possible to comply with a specific limitation on government action—staying within the bounds of an enumerated power, for example—while nevertheless violating the overriding fiduciary duty to act in the interests of the public at all times—for example, by acting within an enumerated power to benefit a private actor at the expense of the public.

Second, it must therefore also be true that, where a more specific limitation on government power is not subject to enforcement by the courts in its specific terms—for example, because those terms are indeterminate or vague—the overriding fiduciary duty may provide an avenue for judicial relief.[189]  This idea that the “public interest” or a “public purpose” is an overarching requirement for all legislation is the idea that undergirded much of the Supreme Court’s Lochner-era jurisprudence,[190] and it continues to form the basis of jurisprudence under the Takings Clause (though the “public use” requirement is explicit there),[191] the Necessary and Proper Clause,[192] and the “congruence and proportionality” requirement under section five of the Fourteenth Amendment.[193]

The Lockean conception of the social compact—the conception that most influenced the Framers, as well as their state constitutional forebearers—views the legislative power as a public trust granted to the legislature for exercise only in the public’s interest.  Under the United States Constitution, this general fiduciary duty is limited by the terms of the initial entrustment.  The doctrine of enumerated powers is one expression of this limit.  The reservation of certain individual rights is another.  These explicit limitations are analogous to the circumscribing of the authority of a trustee in a trust instrument.  The fiduciary character of the relationship between the people and the state adds to these limitations the general limitations on the fiduciary’s power to act—or to refrain from acting—that exist by default.[194]  Because the nature of the arrangement is one of fiduciary trust, then, the specific limitations must be read in light of the more general limitations that all fiduciary relationships place on fiduciaries, specifically the duties of care and loyalty.[195]  I turn to these next.

a.  Legislative “Loyalty”

Throughout the history of constitutional law, and particularly in the most recent century of this history, courts have enforced aspects of Congress’s and state legislatures’ duties of loyalty.  A fiduciary duty of loyalty entails a fiduciary’s responsibility not to act against the interests of his principal, whether by self-dealing[196] or by a more general breach of trust, such as the taking of an act against the principal, regardless of direct benefit to the fiduciary.[197]  Applied to legislative action, the fiduciary principle of the duty of loyalty would seem clearly to ban self-interested legislating, such as the use of the Spending Power to earmark funds for a particular legislator’s district,[198] except, possibly, where the earmark also accomplishes a public purpose.[199]

More importantly, the duty of loyalty forms a plausible foundation for the various doctrines of negative rights enforcement developed in the federal courts and adopted by most state courts.  Where a government actor acts against the enumerated right of an individual, it inherently acts disloyally to that person—against that person’s interests.  However, the government’s fiduciary duties do not run to individuals; they run to the polity as a whole.[200]  Accordingly, while a government action against the rights of an individual may be presumptively unconstitutional, even action clearly in conflict with the individual’s rights may be valid if the interests of the polity outweigh such interests of the individual.

We operationalize this principle through various doctrinal tests, such as strict scrutiny.  For example, suppose a state legislature enacts a law making it a crime to falsely claim that one has been awarded a military medal.[201]  An individual is arrested when he is observed wearing a false Congressional Medal of Honor and claiming to those who ask that he won the medal for valorous service in Afghanistan.  He is prosecuted, and he challenges the state’s power to prosecute him as a violation of his right to free expression.[202]  If the state’s duty were to run purely to the individual, then this prosecution would be a clear violation of his rights and therefore a breach of the duty of loyalty.  But because the state’s duty runs to the polity as a whole, the state’s action may be justified as a valid attempt to serve the interests of that polity.  In effect, the state may justify disloyalty to the individual only with a showing of its overarching loyalty to the collective.

Assuming that the speech in question does not fall under one of the exceptions to the speech protections of the First Amendment,[203] which themselves are based on ex ante balancing of public and individual interests,[204] the government will survive the challenge as long as it can establish a compelling government interest to which the criminal prohibition in question is narrowly tailored.[205]  Perhaps the public interest in preserving the value of the honors it bestows on valorous individuals outweighs the individual’s right to speak falsely about his own honor.[206]  How the case comes out is not important for this discussion—only that the proper inquiry is whether the government is acting loyally to the public interest or whether it is acting against that interest by depriving a person of a reserved right without a compelling justification sounding in the overall public interest.  The legislative duty of loyalty, then, is embodied in the jurisprudence of negative rights.

b.  Legislative “Care”

If legislative loyalty is about not acting against the interests of an individual citizen unless the general interests of the public align with the action, then legislative care is about acting sufficiently responsibly in the pursuit of the general interests of the public.  In private fiduciary law, the duty of care is based on concepts of negligence.  A trustee, in administering a trust, must exercise the care “that would be observed by a prudent man dealing with the property of another.”[207] Similarly, a corporate director must act “with the care that an ordinarily prudent person would reasonably be expected to exercise in a like position and under similar circumstances.”[208]

The concepts are difficult to apply to the negative rights context, in which the problem is not the government’s lack of care but rather the government’s acting directly against a member of the polity.  However, scholars have shown that the duty of care fits well in certain contexts in the exercise of governmental powers.[209]  The fit is even stronger in the area of affirmative legislative duties to legislate.

Affirmative legislative duties resemble instruments of entrustment or incorporation, and they reflect the same sorts of concerns that cause entrustors to specify duties or purposes in such instruments.  Although the law of fiduciary relationships is permeated with default duties, settlors and incorporators, along with other entrustors, often have reasons to direct the work of their fiduciaries toward certain ends.

In the trust context, a settlor may specify to a trustee that the trust funds must be invested in certain ways.[210]  The law holds the trustee to the duty to follow such directives of the settlor, but continues to impose a general duty of care on the trustee in doing so.[211]  In the corporate-director context, the articles of incorporation may or may not so specify, but a profit-making company has “as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain.”[212]  Some corporations, particularly charitable corporations, go further than this general principle of the corporate purpose and specify a purpose in the articles of incorporation.[213]  Similarly to trustees, though, the directors of both such corporations must pursue the stated purpose, or the underlying corporate purpose to seek profit, while exercising due care.[214]

Applied to affirmative duties to legislate on particular topics, it is a natural conclusion that the statement of a duty in a constitution directs the legislature’s action at a particular desired policy end, just as a similar statement of purpose might direct the action of a trustee or corporate board, while preserving the underlying fiduciary duties that the trustee or board also possesses.  In the legislative context, the imposition of an affirmative duty to legislate on a particular topic may be thought of as a mandate with strict terms that must be complied with, or as a direction of the legislature’s actions toward an end, coupled with the sort of discretion that a trustee or corporate director is expected to exercise with reasonable care even in the presence of a purpose-driven mandate.  In the Subpart below, I examine one such affirmative constitutional duty to legislate—the education duty that exists in every state constitution—and I show that the latter approach is best fit to this duty.

3.     The Education Duty

By now, it cannot be gainsaid that the Constitution was highly influenced by the fiduciary conception of governance.[215]  Examining the current text of various state constitutions adopted at differing times over the course of American history reveals a pervasive adoption of Lockean entrustment ideals in those documents as well.  Almost every state constitution, regardless of when adopted, begins with a prefatory clause that declares the establishment of the state government as a willing act of “the People,”[216] and every state constitution contains at least one clause affirming the Lockean idea of popular sovereignty as the foundation of state governmental power.[217]

These features are far from dated.  Indeed, even Hawaii, the state most recently admitted to statehood, includes an explicit Lockean clause in its state constitution.[218]  And Georgia, the state with the most recently adopted constitution (its eleventh version) makes the Lockean entrustment ideal even more explicit: “All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.  Public officers are the trustees and servants of the people and are at all times amenable to them.”[219]

Thus, far from being a relic of the colonial and early national days, the core ideal of government power as an entrustment of fiduciary duties from the people to the state is present and explicit nationwide.

State constitutions are permeated with the language of governmental power as a “public trust.”[220]  But we also see elements of distrust of legislative fidelity to the public’s entrustment.  Although it is axiomatic that state legislative power is “plenary,”[221] at varying levels in state constitutions, we see the familiar, broad, power-granting language that we find in the Constitution.[222]  As G. Alan Tarr points out, because state power is plenary in its default sense, specific grants of legislative power are best read not as authorizations, but as limitations.[223]  Enumerations of power being unnecessary in a state constitution, they function most clearly as the people’s assertion of control over their fiduciaries.

Also ubiquitous are detailed procedural requirements for legislating—for instance, requirements that legislation address a single subject, that each house keep a journal, or that a bill be read a certain number of times out loud prior to passage.[224]  Many state constitutions also contain non-right-based provisions placing substantive limitations on legislation, some of which explicitly call for judicial involvement.  For example, in stating the prohibition of “special” legislation that exists in nearly every state constitution, the Michigan Constitution explicitly calls for nondeferential judicial review:

In all cases when a general law can be made applicable, a special law shall not be enacted except as provided in section 2.  Whether a general law could have been made applicable in any case shall be judicially determined without regard to any legislative assertion on that subject.[225]

So, the people of Michigan have enshrined, as a constitutional principle, both the duty to legislate only in the general public interest and the policy of zero judicial deference to legislative defenses against claims of breach of this duty.  A reasonable reading of this provision is that the people, though entrusting the power of legislation to the state legislature, remained skeptical that this power would always be used in the public interest, and that, rather than calling for revolution in cases where the trust was broken, as Locke would have counseled,[226] the people favored a judicial resolution.  The call for no judicial deference evinces a presumption that, where special legislation has been enacted, the legislature has breached its fiduciary obligations.

State constitutions should therefore be viewed as strongly Lockean documents.  Examining the text and structure of state constitutional documents reveals a strong affirmation of the Lockean ideals of popular sovereignty[227] and the people as a repository of inalienable rights.[228]  Nearly every state constitution contains such affirmations explicitly in the text.  Several state constitutions go further, explicitly denoting state power as a “public trust” or some variant of the phrase,[229] and even in some cases reserving to the people an explicit “right of revolution.”[230]  Finally, many state constitutions, in Lockean fashion, proclaim that the rights they enumerate are “excepted out of the power of government,” as the retained rights of an entrustor are excepted out of the powers of a fiduciary.[231]  Reading their provisions more holistically reveals that state constitutions evince a distrust of legislative use of power that comports well with the residual fear of legislative tyranny that animated the Lockean conception of the legislature as a duty-limited fiduciary of the public trust.[232]

Once we understand that state constitutions stand on fiduciary foundations, it remains to inquire whether the fiduciary duties of the legislature have any operation where a state constitution has stated a more precise duty to legislate, as all state constitutions do on the subject of education, or whether the terms of the stated duty should be the sole bounds of enforceability.  As discussed above, education duties are stated in either mandatory or admonitory terms, depending on the state, and both mandatory and admonitory education clauses contain varying standards of quality.[233]  In the past, scholars and some courts have attempted to categorize the fifty states based on whether qualitative language in state constitutional education clauses calls for more or less effort from the state legislature in funding the education system.  Under this categorical framework, each state’s education clause is grouped with others depending on the strength of its qualitative terms.

Gershon Ratner was the first to group the state education clauses together into four such categories for the purpose of enforcing the duties therein.[234]  Ratner explains the categories as follows:

Provisions in the first group contain only general education language and are exemplified by the Connecticut Constitution: “There shall always be free public elementary and secondary schools in the state.”  Provisions in the second group emphasize the quality of public education, as illustrated by the New Jersey Constitution: “The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in this State between the ages of five and eighteen years.”  Provisions in the third group contain a stronger and more specific education mandate than those in the first and second groups.  Typical is the Rhode Island Constitution, which requires the legislature “to promote public schools and to adopt all means which they may deem necessary and proper to secure . . . the advantages . . . of education.”  Finally, provisions in the fourth group mandate the strongest commitment to education.  This group is exemplified by the Washington Constitution: “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders.”[235]

Later scholars adopted Ratner’s approach and applied it specifically to school finance litigation, the primary means by which states now interpret their education clauses in the courts.[236]

These scholars, and intuitively many observers, predicted that the differences in state constitutional education clause text would make for differences in enforcement.  However, empirical scholarship has not borne out the predictions that these categorical methods would have justified.[237]  States with lower-duty provisions have been the locus of sweeping judgments and multidecade court supervision of remedies.  For example, New Jersey’s constitution calls only for a “thorough and efficient” education,[238] but the state’s supreme court has issued decisions in no less than twenty-five appeals and has supervised the remediation of the system since the late 1970s with no end in sight, and New Jersey is one of the highest spending states in the country.[239]  Similarly, lower-spending states with higher-duty education clauses, such as Georgia,[240] have adjudicated in favor of the state in education clause litigation based on legislative deference and separation of powers.[241]  Nevada, a low-spending state, has not experienced any direct challenge to the adequacy of its education system,[242] though it has what would be termed a Category II education clause,[243] similar to that of New Jersey,[244] which has been embroiled in litigation over its education clause for more than four decades with no end in sight.[245]

Undeterred, prominent theorists of school finance have continued to search for cases in which the text of the state constitution has made a predictable difference in the outcome.[246]  Of course, examples exist, but no trends in the cases suggest that similar language in state constitutional education clauses leads to similar results.  Thus, one is left to wonder why.  The most plausible explanation for the lack of predictability in results based on constitutional language is that the language at issue is hopelessly indeterminate.[247]  Courts applying “strong-sounding” constitutional language are about as likely to issue rulings abdicating judicial review as courts applying “weak-sounding” constitutional language and about as likely to issue plaintiff-friendly judgments.

Given the indeterminacy of the language used in each education clause—and in light of Dinan and Eastman’s findings to the effect that the provisions were likely not designed to provide courts with qualitative standards for enforcement—it is most plausible to conclude that the education clauses in the states, if they are to be judicially enforced, must be enforced in their general, and not their specific, terms.  Thus, rather than attempting to figure out what “thorough” means, and whether “thorough” means something different from “adequate,” “sufficient,” “ample,” or “high quality,” courts should recognize that the specific terms chosen in each education clause are best read as general commands or admonitions to the legislature to seek what the South African Constitution terms the “progressive realization” of a goal.[248]

However, based on the fiduciary nature of the legislative responsibility, this “progressive realization” should be directed not at the specific adjectives contained in a state’s education clause but at the general goal these terms attempt to reflect—a system that educates the people as the beneficiaries of a public educational trust.[249]  The next Part considers how courts might approach education clauses from this perspective, focusing on the education duty as an example from which principles of enforcement of other affirmative duties may be derived.

III.  Enforcing the Education Duty

Most state courts that have encountered education clause litigation have expressed the familiar maxim of state-court judicial review that every presumption in favor of the constitutionality of a challenged statute should be indulged; that is, a statute must not be held unconstitutional unless its infirmity is shown “beyond a reasonable doubt.”[250]  This rule of review stems from the background conception of state legislative power as “plenary.”[251]  Interestingly, though, the courts never connect up the idea of plenary legislative power with the political theory that underlies it—Locke’s theory of the “supreme” legislature,[252] a theory that indeed justifies broad power and discretion, but which also imposes fiduciary duties.[253]  Because of this failure, the courts fail to properly calibrate the deference that is owed to the legislature, resulting in both overenforcement and underenforcement of state constitutional education clauses.

If courts are to accept my account, then the natural question that will follow is, of course, what this acceptance will mean for judicial review in the states.  As discussed above, the law of negative rights has developed doctrines quite consistent with a fiduciary theory of government.  The various doctrines by which courts enforce negative rights and weigh these rights against broad public interests appear to be applications of a legislative (and executive, in many cases) duty of loyalty.  Explicit affirmative duties, however, require courts to elucidate the more difficult concept of a legislative duty of due care[254] in the context of the explicit affirmative duty.  I turn to this concept now.

A.     The Legislative Standard of Care

The law recognizes many types of relationships as fiduciary relationships, and each carries with it a slightly different level of obligation.[255]  Some, such as a trust with one settler, one beneficiary, and one trustee, are simple.[256]  Others, such as mutual funds and ERISA-protected benefit plans, are highly complex, multilevel arrangements.[257]  Some fiduciary duties arise due to a subordinate agency, such as the fiduciary duty of loyalty that an employee owes an employer while employed.[258]  Others arise due to a personal representation, such as the fiduciary duty of an attorney to a client.[259]  But the fiduciary relationship that fits best as an analogy for the entrustment of legislative power to a legislature by the people is the relationship that arises between a corporate board of directors and the shareholders of a corporation.

The parallels between corporate boards and legislatures are too compelling to dismiss.  Both legislatures and corporate boards serve in a representative capacity, elected by those represented and entrusted to make decisions on their behalf, with the entrustors retaining the ultimate check on the use of this authority by virtue of their power to replace the representatives at periodic elections.[260]  Both have duties to make policy in the best interests of the entire body they represent, not just the majorities who elected them, and both must balance competing considerations in allocating scarce resources to maximize these interests.  Like corporate boards, legislatures would see their functions greatly impaired through constant litigation seeking post-hoc reversal or modification of decisions made in the course of carrying out these duties, and both would benefit from qualified protection from judicial overreach in evaluating policy decisions.[261]  Indeed, Professor Franklin Gevurtz has demonstrated that state constitutional representative governance owes much to the practices of the corporations that colonized Massachusetts and Virginia, as the charters of these corporations eventually became the first state constitutions.[262]  If the legislature of a state is a fiduciary, it makes sense to treat the state legislature similarly to the private fiduciary to which it is most analogous—a corporate board.

For a corporate board, the duty of due care is defined, at least in the practical sense, by the business judgment rule.  Although the business judgment rule is highly controversial and is the subject of reams of corporate law scholarship,[263] resolving the many disputes that the rule in its many forms has generated is far beyond the scope of this Article.  For current purposes, I employ the business judgment rule in its idealistic sense, as stated in the American Law Institute’s Principles of Corporate Governance.[264]  Under this formulation of the rule, a director will not be held liable for a decision made on behalf of the corporation if the director “is informed with respect to the subject of the business judgment to the extent the director or officer reasonably believes to be appropriate under the circumstances,”[265]and if the director “rationally believes that the business judgment is in the best interests of the corporation.”[266]

Applied to the legislative context,[267] this formulation might seem familiar.  It contains elements of both information gathering and rationality.  These elements have found their way into different doctrines of constitutional law in the federal courts in the past.  Information gathering calls to mind the jurisprudence of Congress’s enforcement power under section five of the Fourteenth Amendment, a test of the scope of Congress’s discretionary legislative authority to legislate.[268]  Of course, the rational belief element calls to mind the rational basis test, a test applicable to claims of violations of individual negative rights of relatively low importance.[269]  But how might the business judgment formulation make these familiar doctrines work differently in the context of affirmative duties to legislate?

Education duty claims are not claims that a power has been exceeded or that a right has been violated—the traditional forms of constitutional claims, both of which sound in the duty of loyalty.  Rather, education duty claims are claims that a state legislature has acted insufficiently, either by not legislating at all (and thereby arguably violating a duty of obedience to the legislative command),[270] or by legislating insufficiently well (and thereby violating the duty of due care).[271]

In some sense, it can be said that state courts have all along been engaging in attempts to enforce a legislative duty of care in school finance litigation.  Decisions in favor of plaintiffs often reference care-based concepts, such as “inaction” and “insufficient action.”[272]  But the decisions in favor of plaintiffs have been undertheorized, and as a result, the courts reaching the merits have overenforced state constitutional education clauses.  Examples of this overenforcement abound, but we need review only one to get a sense of the problem.  In Kentucky, the state constitution’s education clause states merely that the legislature has the duty to establish “an efficient system of common schools.”[273]  Despite this minimalist language, the Supreme Court of Kentucky in 1989 issued a sweeping declaration, not only that the state education legislation that allowed for wide and irrational disparities in funding was unconstitutional but also that the word “efficient” called for a system containing nine principles, one of which incorporated seven “capacities” or learning goals.[274]  This ruling was then adopted or relied on in nearly every other successful state court case for the next two decades nationwide, regardless of differences in the substantive language of the education clauses among the states.[275]

On the other side of the ledger, state courts that approach education clause litigation in the traditional vein—whereby rights that are violated require remediation, and whereby large-scale violations require large-scale remediation, such as the structural injunctions familiar from federal institutional reform litigation—have balked.  Based on both remedial concerns and the indeterminacy of education clause language, about a third of state courts presented with education clause claims have dismissed the claims as nonjusticiable.[276]  Where activist courts such as Kentucky’s have overenforced their constitutions, restraintist courts such as Illinois’s have underenforced theirs.  Applying the corporate model of the duty of care allows for a workable path between these two extremes.[277]

Primarily, under the business judgment rule, the corporate board’s duty of care is a procedural duty to carefully consider evidence and to remain attentive to business realities in making decisions.[278]  This is a duty to avoid negligence, but a particular kind of negligence—negligence in failing to consider relevant information reasonably available to the director-fiduciary.  As noted above, the Principles of Corporate Governance add to this consideration of material and relevant information the idea that the ultimate decision must be one that the director “rationally believes” to be in the best interests of the corporation and shareholders.[279]  This standard has the feel of a subjective, good-faith test, but the word “rationally,” rather than the word “believes,” does all of the work.  Nevertheless, the idea that the ultimate decision must be “rational” or based on a “rational consideration” or “rational belief” is simply a way for courts to gauge whether the material and relevant information required to be considered has, in fact, been considered.

For example, imagine a corporate decision based on overwhelming and completely uncontradicted information indicating that voting in favor of a proposed merger would bankrupt the company.  But imagine, further, that the directors vote in favor of the merger, and the company goes bankrupt.  In such a case, it would be difficult to argue that the board failed to consider relevant information reasonably available to it if the information were presented to the board and this presentation were reflected in the minutes, perhaps accompanied by several board members’ statements that they viewed a merger to be in the best interests of the shareholders.  Rather, in voting in favor of the predictably disastrous merger, the board would appear to have acted with something other than a “rational belief” that the corporation’s best interests would be served by a “yes” vote.  Where an ultimate decision does not rationally follow from the information considered, then a recitation in the minutes of a board meeting that the information was in fact carefully considered should not be credited as true, and the decision should be subject to judicial correction.  Thus, even gilded with the substantive-sounding language of “rational belief,” the character of the corporate duty of care remains procedural at its core.

B.     Adjudicating Affirmative Duties

As they generally do in the corporate context, state supreme courts should approach all education clause claims against state legislatures with the skepticism reflected in the political question doctrine.  Education clause language is inherently indeterminate, meaning different things to different judges, and current approaches to such indeterminacy have either added so much content to the clauses as to make their initial terms meaningless or have caused judicial abdication, rendering the language nugatory.  With the foregoing analysis in mind, state courts should defer to legislative discretion in applying the nebulous terms of education clauses, but they should draw from private corporate law to apply a state-specific approach to deference distinct from the overly harsh practice of total abstention from the merits that results from an unthinking application of the federal political question doctrine.[280]

Where state constitutional affirmative legislative duties are subject to challenge, courts should limit initial review to process, rather than substance.[281]  Few large-scale legislative enactments occur without being preceded by a significant amount of information gathering and consideration.  The committee structure of Congress has largely found its way into state legislatures, and these bodies have adopted the norms of consideration and reconsideration of issues before adoption that are familiar to Congress.  Where this sort of careful consideration occurs in enacting a state school finance system, the system should not be struck down as “inadequate” because, despite the enactment process, flaws remain.  Rather, a state education finance plan should be struck down only where the legislature, in enacting a school finance system, failed to consider relevant, material information, or where its ultimate plan could not have been rationally based on the actual information presented to it.

Of course, such a deferential approach will make plaintiff victories significantly rarer, but where a case presents a wholesale challenge to the overall “adequacy” of a state financing system—as Professor William Thro puts it, a “facial challenge”[282] to school financing legislation—plaintiff victories should indeed be rare.  This conclusion need not mean that plaintiffs cannot challenge failures of equal protection, and it need not even mean that individual plaintiffs cannot challenge the inadequacies of their own individual educational services from the state.  It does, however, mean that a court challenge to an entire legislative scheme based on the substantive terms of a state’s education clause should meet a high burden of establishing a breach of the legislature’s duty of care.

Thus, to win an education clause case, a plaintiff should show that the legislature has essentially abdicated its role by failing to act at all in the face of obvious needs, or by acting without due care by failing to consider relevant, material, and available information about the state’s existing education system’s needs and flaws.[283]  Importantly, such showings would be much easier to make in the legislative context, where the press keeps a watchful eye on legislative deliberations and information gathering, than in the business context, where much deliberation occurs in private meetings.  Such press attendance would operate as a powerful check on cynical, pro forma types of “deliberation” and information presentation designed only to satisfy the procedural standard as a subterfuge.

With this in mind, any court determining that the constitution has been violated should not feel constrained to abstain from the remedial phase, as many courts in the current regime have.[284]  Rather, courts finding for the plaintiffs should make specific orders for remediation, as any separation-of-powers-based concerns should have been addressed through the process of overcoming such a deferential scheme of review.  The most natural such order would be an injunction against the use of the current unconstitutional legislative scheme, which would provide a strong signal (albeit not a direct judicial command) to the legislature that it must act immediately to replace the legislation.  Such an injunctive order need not even run directly against the legislature itself to be effective, and it would therefore not present the kinds of separation of powers problems that worry courts where the prospective remedy might be a requirement to increase funding, which inherently must run against the legislature.[285]

C.     Enforcement and Systemic Change

Remediation that consists solely of an order preventing the use of the unconstitutional statutory scheme is likely to accomplish an important purpose of judicial review of fiduciary action—informing the entrustors that the fiduciary has breached their trust.  According to Professor David Law, constitutional courts serve a vital role in protecting popular sovereignty by signaling to the populace that a constitutional principle has been breached by legislative action.[286]  Challenges to the popular monitoring of legislative action include the lack of information available to the public as to the meaning of constitutional provisions and the facts surrounding a legislative act.  Courts help to remedy this lack of information by providing recognizable, authoritative, and public signals as to whether the legislature has acted unconstitutionally and, if so, to what extent the people should be alarmed about it.[287]  Such signaling enables the people to assert their popular sovereignty by (1) coordinating in disapproval, and if necessary, (2) coordinating in action (e.g., voting, protesting, rebellion, etc.).[288]

Law’s conception of the function of judicial review fits neatly into the fiduciary framework that I have outlined here.  True to Locke’s idea of a residual right of revolution in the people, Law sees the function of the judiciary as providing information to the people that they cannot secure for themselves, that they may deliberate about it and act in ways stopping short of outright revolution, but signaling to the public’s fiduciary that there has been a breach of the public trust.[289]  The model I have outlined here enables this sort of signaling, but incentivizes state courts to be careful about sending a signal by making the path to that signal difficult and by limiting the judiciary’s role to the quality of the legislative process rather than the quality of its product.

Some might worry that, if accepted, the framework presented here will lead to the obliteration of valuable differences among state constitutions, thereby disrespecting the intent of the divergent groups of state constitutional framers over the course of American state constitutional history.  But, assuming that such differences are both real and worth preserving,[290] an approach to the review of affirmative duties that applies an underlying, generalized fiduciary duty of care to the enforcement of such duties does not inevitably eliminate such differences.  For example, in determining whether relevant, material information was in fact considered by the state legislature in making education policy, a court in, say, Montana could legitimately view a very different set of considerations as relevant and material than a court in, say, New York.  Thus, accepting and enforcing the underlying general fiduciary duty of care does not portend the elimination of independent state constitutional jurisprudence in each state.

Proponents of the experimentalist reform of state school systems through the courts may also view the approach set forth above as dangerous to their goals.[291]  However, the key to the experimentalist accounts is that a judicial decision destabilizes the status quo, thus allowing for (and incentivizing) extrajudicial cooperation from varied groups of stakeholders.[292]  If I am correct, then these proponents should not see my approach as an affront to theirs.  Although the experimentalist approaches thus far have assumed a merits judgment based on the quality terms of a state’s education clause, their approach does not require the judgment to be founded on the quality terms.  The experimentalist approach is an approach to remediation, not adjudication of the constitutional violation, and a procedural approach to judicial review can ground an experimentalist approach to remediation just as easily as a substantive approach to merits review can.

Moreover, the “destabilization” that proponents of the experimentalist approach laud as the factor that makes these suits successful may even be more effective if it occurs with less policy direction.  In their model, destabilization works because it leads to protracted and cyclical negotiations between “new publics,” presumably those stakeholders with the best interests of the institution in mind.  But it seems that destabilization alone is preferable to destabilization and negotiation under court supervision, as the former allows the political process to operate naturally once destabilized, while the latter relies on our collective suspension of political processes in the making of policy.  Such destabilization is much more likely to occur where a state supreme court disallows the continued use of a flawed school finance scheme than where it simply declares its disapproval of the scheme but does not enjoin its use.

More importantly, a persistent problem with education clause litigation as currently practiced is that quality social-science research concerning the needs of students and schools, along with the costs of providing for such needs, comes to light for the first time in litigation, or even during the remedial process, too often and then only as selected and presented by adversarial litigants whose interests may be narrower than those of the overall public.[293]  A cottage industry of school funding experts has emerged over the past few decades, and these experts now do most of their work within the litigation process, either offering testimony to show that state school systems are inadequate, or performing “costing-out” studies pursuant to remedial plans after states lose suits or sign consent decrees.[294]  Experimentalists hold that the consideration of this evidence during litigation and during the remedial process allows for a collaborative approach to public policy making, and I do not disagree.  Nevertheless, it would be far preferable for this collaborative consideration of relevant and material social-science information to occur outside the adversarial litigation context, and a fiduciary approach incentivizes this kind of consideration while policy is being developed.

Under the fiduciary approach, the courts retain an important role, but not a veto over state legislative discretion.  Where a state legislature considers a costing-out study during the legislative process but rejects that study, for example, a fiduciary approach would at least require the legislature’s representative in court to identify a principled reason for the rejection of the study.  This reason would then become a part of a visible, public court record, and if the reason were unconvincing, then the public would have its signal that its legislative fiduciary does not have the interests of its entrustors in mind.  Ultimately, the goal of both the approach I have laid out and the experimentalist approach is to get the legislature to perform its constitutional duty, and my way of providing the judiciary with an institutionally sound path to involvement secures this goal.

Conclusion

In this Article, I have presented a fiduciary model of judicial review and applied it to the affirmative duties that American state constitutions impose on state legislatures to legislate in the field of education.  The lessons of this analysis, however, apply to any affirmative legislative duty to legislate, and the fiduciary principles outlined above should serve as a guide for judicial review outside the education context where explicit affirmative legislative duties to legislate are at issue.[295]  Of course, important questions remain, most prominently whether the duty-based analysis conducted above forecloses further rights-based analyses.  I am inclined to answer that question in the negative, as the existence of a duty neither necessitates nor forecloses the existence of a right, but a full analysis of this difficult question will have to await future work.

Properly applied, a fiduciary approach has the potential to balance the judiciary’s reluctance to exceed its traditional role with the need for limited, fall-back judicial review of grossly deficient or completely absent legislative deliberation on an important, often fundamental, policy issue.  However, it also recognizes that legislative acts that apply statewide are often imperfect, that such acts often result from numerous compromises and negotiations, and that the interest groups that feel that they are on the losing end of such compromises have a powerful motivation to bring lawsuits.  Courts should default to a position of noninvolvement in these cases, but should retain the ability to become involved where the legislative deliberative process has broken down.  The public trust deserves no less, but state courts should do no more.

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