The Home School Court Report
Vol. XXVII
No. 3
Cover
May/June
2011

In This Issue

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The Last Word Previous Page Next Page
by J. Michael Smith
- disclaimer -
Separation of Powers and the Mississippi Case
J. Michael Smith
© HSLDA
J. Michael Smith, President of Home School Legal Defense Association.

This issue’s cover story describes an unprecedented situation in HSLDA’s experience: a Mississippi judge issued an order to obtain the names and addresses of all the homeschoolers in the district where he holds court. He indicated he wanted the names in order to avoid unnecessary truancy investigations of “legitimate” homeschoolers. However, the motivation—whether good or bad—is irrelevant. The issue is whether or not the judge had the authority to issue such an order, and a broader issue is the relationship between government and its citizens.

In order to understand this relationship, we must look at our nation’s founding documents. In the Declaration of Independence, our Founders pronounced on July 4, 1776, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

The men who penned these words were by and large the same ones who later adopted the United States Constitution—the contract between our government and its citizens. It was the clear intent of our Founders that America would be different from the countries from which they came. In those other nations, the basic form of government was monarchy, where the king is sovereign and the people are subjects. Our Founders, on the other hand, wanted to create an opposite form of government.

In America, those in authority would be elected by the people and would only have powers given to them by the people—powers limited by the Constitution. Each state government follows that same pattern. Government and its agents, whether elected or appointed, only have powers that are specifically given to them by the constitutions and by legislation enacted by representatives of the people.

...

GOVERNMENT
AND ITS AGENTS,
WHETHER ELECTED
OR APPOINTED,
ONLY HAVE
POWERS THAT ARE
SPECIFICALLY
GIVEN TO THEM.
...

Our Founders recognized that if liberty was to be preserved, not only would it have to be built into the founding documents, but also power would have to be diversified. Our federal and state constitutions generally recognize three existing powers, executive, judicial, and legislative. In establishing these three branches of government, the Founders expressed their understanding of the nature of man. Because of the Fall, all men tend to seek increasing power and control—especially those who are already in power. By making the three branches of government equal, the Founders made it impossible for any one branch to exercise total power. They hoped that with this restraint in place, each branch would operate in the best interest of the citizenry and our country, preserving individual liberty. Today, we call this the doctrine of separation of powers.

The judicial branch of American government consists of our court system, presided over by judges whose primary purpose is to resolve conflicts: conflicts among individuals and conflicts between the state and its citizens (when the state has a right accorded by law to use its power against a citizen, e.g., when citizens break the law).

Therefore, the only legitimate way for any judge to address concerns about whether homeschoolers are in fact teaching their children is in the normal course of duty—that is, if the judge is presiding over a prosecution under criminal law or a petition alleging educational neglect. The prosecution or petition would have to be brought on the basis of probable cause or reasonable suspicion that a particular parent was in fact violating a specific law.

That did not happen in this Mississippi case. The actions of the judge were outside his jurisdiction and violated the principles of freedom and justice found in the federal and state constitutions. This is a classic example of the use of raw power that our Founders anticipated and wanted to prevent when they gave us the greatest blueprint for government that has ever existed in the history of mankind—the Constitution.

In any society, there are always those who want to impose their will on others. If they are government officials, they can use government to coerce others. Ultimately, the only alternative to totalitarianism in America is an informed citizenry willing to stand for life, liberty, and property.

HSLDA exists because of your membership, which enabled us to intervene on behalf of the homeschoolers in Mississippi to curb this abuse of power. But this situation should also underscore your need as a parent to teach your children the principles of liberty and the proper role of government in relation to its citizenry. This is the only way that we the people can restrain the power of government for future generations. After all, our Creator endowed us with this liberty and we are responsible to Him and to our children to maintain it. God bless America!