Why Do Lawmakers Cast Votes for Laws That Might Be Unconstitutional? Case in Point: S39

Why Do Lawmakers Cast Votes for Laws That Might Be Unconstitutional? Case in Point: S39

Published March 11, 2024

South Carolina Bill S.39, the Educational Scholarship Trust Fund, was passed during the 2023-2024 legislative session.

On Wednesday, March 6, 2024, in the case of Candace Eidson, et al., v. South Carolina Department of Education, et al., the Supreme Court of South Carolina heard arguments on a matter involving the South Carolina Department of Education and other related parties.

Case Title: 2023-001673 - Candace Eidson, et al., v. South Carolina Department of Education, et al.

Petitioners have challenged the constitutionality of 2023 Act No. 8 (S.39), also known as the Education Scholarship Trust Fund (ESTF).

The case revolves around Section 4 of Article XI in South Carolina's constitution.

Please, watch it; it's exceptional. Plus, they dive into the contentious debate over expanding the SC Superintendent's powers, particularly concerning private education through control of the ESTF.  

The SC Constitution states:

The South Carolina Constitution, in Section 4 of Article XI, explicitly prohibits the use of public funds or credit by the state or its political subdivisions for the direct benefit of any religious or other private educational institutions. This clause is designed to maintain a clear separation between public resources and private or religious educational entities, ensuring that public funds are used exclusively for public educational purposes.

Section 4 of Article XI states: Direct aid to religious or other private educational institutions prohibited. No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.

So is S39 unconstitutional?

Determining whether S39 is unconstitutional will depend on the legal interpretation and subsequent ruling of the South Carolina Supreme Court. (We are waiting.)

The South Carolina Constitution explicitly prohibits direct aid from public funds to private educational institutions. Whether S39 violates this provision would likely hinge on whether the SC Supreme judges interpret the scholarships as "direct aid" to private schools.

Candace Eidson et al. v. South Carolina Department of Education et al. aim to address this question.

The Attempt to Blur the Lines

The SC Constitution clearly states no public funds for private schools, right? But here comes S.39, trying to sidestep this with a trust fund, giving parents scholarships for private education. It’s a crafty move, aiming to blur the lines of "direct aid." Yet, at its core, isn't it still public money finding its way to private schools? 

Why would our SC General Assembly vote for a bill that is potentially unconstitutional?

When lawmakers pass bills on shaky constitutional ground, they're essentially gambling, hoping the judiciary will clear the path. Yikes! This tactic sidesteps the core principle of our governance: the separation of powers. It shifts the legislative responsibility onto the courts, muddying the clear roles intended for each branch. Celebrating such maneuvers when they favor one's view is short-sighted; it normalizes a dangerous precedent. This erodes the constitution's authority, leading to a legal landscape where the foundational principles of law and governance risk being disregarded.

Sticking strictly to the Constitution before casting a vote isn't just important; it's non-negotiable. 

It's the bedrock of our nation, and any lawmaker worth their salt should treat it as such. Sure, some say challenging laws is part of the process, testing what's constitutional is needed. But let's be clear: bad laws lead to worse consequences—skewed rulings, dangerous precedents, and a slippery slope away from the constitutional rights we're supposed to uphold. 

We can't afford to gamble with the foundation of our legal system.

So please tell your lawmakers to do their best to ensure the constitutionality of a law before passing it.

Legislators must strictly adhere to the South Carolina Constitution, as it embodies the people's will. Any attempt to expand, infringe, or reinterpret it through court precedent disrespects the voice of the people, undermining democracy and eroding public trust.

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