A Crucial Element of Democracy

This is a blog by Robert Gutierrez ...
While often taken for granted, civics education plays a crucial role in a democracy like ours. This Blog is dedicated to enticing its readers into taking an active role in the formulation of the civics curriculum found in their local schools. In order to do this, the Blog is offering a newer way to look at civics education, a newer construct - liberated federalism or federation theory. Daniel Elazar defines federalism as "the mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both." It depends on its citizens acting in certain ways which Elazar calls federalism's processes. Federation theory, as applied to civics curriculum, has a set of aims. They are:
*Teach a view of government as a supra federated institution of society in which collective interests of the commonwealth are protected and advanced.
*Teach the philosophical basis of government's role as guardian of the grand partnership of citizens at both levels of individuals and associations of political and social intercourse.
*Convey the need of government to engender levels of support promoting a general sense of obligation and duty toward agreed upon goals and processes aimed at advancing the common betterment.
*Establish and justify a political morality which includes a process to assess whether that morality meets the needs of changing times while holding true to federalist values.
*Emphasize the integrity of the individual both in terms of liberty and equity in which each citizen is a member of a compacted arrangement and whose role is legally, politically, and socially congruent with the spirit of the Bill of Rights.
*Find a balance between a respect for national expertise and an encouragement of local, unsophisticated participation in policy decision-making and implementation.
Your input, as to the content of this Blog, is encouraged through this Blog directly or the Blog's email address: gravitascivics@gmail.com .
NOTE: This blog has led to the publication of a book. The title of that book is TOWARD A FEDERATED NATION: IMPLEMENTING NATIONAL CIVICS STANDARDS and it is available through Amazon in both ebook and paperback versions.

Friday, December 27, 2013

GULPING POWER

In this holiday season – I've always been partial to this week between Christmas and New Year's – let me offer a short posting. I want to address a controversy that The New York Times refers to as Bloomberg's nanny state. That venerable paper asks whether Mayor Michael Bloomberg's efforts to dictate a healthier life style among New Yorkers was ultimately good for them or just overly intrusive. What I find interesting is the question: upon what authority did the mayor and his Board of Health act? Were his policies, in this area, constitutional? Can government, at any level, tell us how big a soda I can buy? Can hizzoner really tell us we can't have a big gulp?

Okay, I know, the ban is not presently being enforced since the New York Supreme Court ruled the city did not have the legal authority to impose the restriction. But the City is appealing that decision. And yes, with the new administration coming into power, who knows what the future of the policy will be? But that still makes me wonder what in the law led Bloomberg to think he and his Board of Health had the authority in the first place? After all, the court's decision against the ban was based on a determination that the legal restriction per se was not beyond the limits of government, but that the particular ban was determined by a body of the executive department of government, not its legislative department. The policy was initially passed by the City's Board of Health, not the State Legislature or even its city council. As such, the policy violates the “separation of power” principle. The court did not question the City's power to issue such a regulation. Therefore, the question remains: on what basis does New York have this authority?

During the holiday season, students are particularly aware of consuming festive foods and drinks. Perhaps it is even a more appropriate time to teach about a state's police powers, and this case in New York seems particularly well-suited to bring the lesson home. Let me quote from the court's decision on the matter:
There is no reasonable opposition to the long established proposition that a legislative body may vest in an administrative body certain authority. However, as stated in [the former case,] Boreali:
A legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of power doctrine permits … Even under the broadest and most open ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever social evils it perceives” And “While the separation of powers doctrine give the Legislative considerable leeway in delegating its regulatory powers, enactments conferring authority on administrative agencies In broad or general terms must be interpreted in light of the limitations that the constitution imposes [NY const. Art 111 …]
In this quote we have a clear acknowledgment that the state does have the power, the police power, to pass legislation to promote health – as it does to also promote safety, education, and morals – of the state. The state's foundational compact, its constitution, spells out the limits of such powers. This is within our constitutional conception and when such public figures, who claim to be devotees of our constitutional system, then mock a state's prerogative to exercise that power, one questions either the sincerity of the devotion or the level of understanding that figure possesses about how our system works. Who might that be? Sarah Palin comes to mind.

My point is that our constitutional foundation is not a marker for libertarian ideals. Our history of individuality vs. collectivity, in terms of our public policy, has been an active and vibrant tension in which, until relatively recently, has sided in favor of collectivity. This case of New York City trying to ban soft drink size is an interesting and relevant case by which to demonstrate this tension. I recommend that teachers get the New York Supreme Court decision1 so that students can see what all is at stake and of concern not only to the courts, but to bureaucratic officials who deal with these types of issues.

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