If Circuit Judge Thomas Cooper finds unconstitutional mischief in public school funding, he will need the mystical gift of divination not accorded mere mortals.

Not that black-robed augurs are lacking. Federal jurists have divined privacy rights and an animus toward God in our founding documents that, to unlearned common folk, are not apparent.

Judicial activists don't have to bother with the vexatious chore of seeking the people's will. As U.S. Supreme Court Justice Brennan told his law clerk: "With five votes around here you can do anything."

Judge Cooper can do anything with one vote -- his -- thanks to the S.C. Supreme Court's uncharacteristic leap into judicial activism.

In 1999, the state Supremes divined in the S.C. Constitution a requirement that students be given a "minimally adequate education" when, in fact, it does not say that. Perhaps it should, but it doesn't.

Here is what the constitution does say: "The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children‘.‘.‘." That's it.

The lone dissenter on the court, Justice James Moore, chastised the majority for "excessive judicial involvement" in allowing the education lawsuit against the state to proceed. He contended that while ensuring for every child an adequate education is a "laudable" goal, "our constitution leaves to the General Assembly, the representatives of the people‘.‘.‘. the entire responsibility and discretion for determining the quality of public education."

But the majority, ex-legislators all, did in their chambers that which they did not do when they had the power as elected officials: They rewrote the constitution by conjuring up, Harry Potter-like, heretofore undiscovered constitutional intent.

That ruling looms large in the courtroom of Judge Cooper, who is hearing the lawsuit brought by eight "poor" school districts contending that the Legislature doesn't give them enough money for a minimally adequate education.

It is an indisputable fact that the Legislature has favored school districts lacking large tax bases.

The litigating districts have gotten more state money per pupil than Richland 1 and 2 and Richland-Lexington 5, and some have a total per-pupil expenditure (including local and federal contributions) higher than Columbia-area districts.

Critics who decry the Legislature as heartless are either demagogic or ignorant of the facts.

At issue is degree, not intent, and this is where Judge Cooper needs powers of divination. Should he decide that current state funding is unconstitutional based on the Supreme Court's rewrite, then what level of funding is adequate?

Should per-pupil spending in Hampton 2 be, say, 50 percent more than Lexington 5, instead of the current one-third more? Do I hear 70 percent?

And who is to make that determination? The judge? The Legislature? Oprah?

If the answer is the judge, he might want to suggest what tax increases should be imposed on a state with the highest jobless rate in nine years.

Poor school districts are smitten with terrible pathologies. Many children are stuck with poor parents and teachers. More money might not solve the problems, but it's certain the problems won't be solved without money.

But not through judicial dictatorship, which tosses aside the messy business of obtaining consent of lex majoris partis, the will of the majority, through elected representation.

Significant school reform was progressing until the recession hit. Even now, key lawmakers, prompted by their constituents, are exploring new funding proposals despite the economy. That's how it's supposed to work.

"Sometimes it is said that man cannot be trusted with the government of himself," said Thomas Jefferson. "Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?"

Angels don't wear black robes.