Mark Tushnet


Marshall’s understanding that schools have an implicit curriculum might be a better guide to thinking about what we should teach about the Constitution in this century than any substantive points I might make. One controversial example may illustrate Marshall’s understanding: just as he asked what lesson would be taught by delaying desegregation, so we might ask, “What lesson will be taught about the nature of our constitutional community if we adopt a large-scale system of vouchers that parents can use to assist them in sending their children to non-public schools?” Such a system would demonstrate B and would teach our children and grandchildren - a number of constitutional values. It would show how important we think it is to make available a wide range of choices to as many people as possible without much regard to their wealth. It would also show that we do not think it all that important to develop common institutions in which people come together in an activity of civic engagement. My point here is modest and it does not go to the question of whether voucher systems as a whole are either desirable or constitutional. Voucher systems would be part of the implicit curriculum about the Constitution, and that fact is something to think about.