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David N. Mayer

The Unconstitutional “Constitution Day” Mandate

For many years now – at least since the U.S. Constitution Bicentennial in 1987 – September 17 has been celebrated as “Constitution Day,” the anniversary of the date (September 17, 1787) that the Constitutional Convention completed its work in Philadelphia, adopting the proposed Constitution of the United States and sending it to the Congress and, eventually, to the states for ratification.  Of course, all Americans ought to be familiar with the U.S. Constitution; it is the document that not only creates our national government but legitimizes it, by memorializing those powers that the people of the United States have authorized the national government to exercise – and by limiting the exercise of those powers (as well as the powers of the state governments), to protect individual rights.  It’s entirely appropriate that American schools teach their students about the Constitution; it’s part of the education that, arguably, all good citizens ought to have.  But should schools be required to teach about the Constitution, and on a particular day? 

Across the U.S. educators at all levels – from elementary school all the up to colleges and universities – are scrambling to comply with a new federal law.  Slipped into an omnibus appropriations bill passed by Congress late in 2004, the provision requires all educational institutions receiving federal funding to hold an educational program pertaining to the Constitution on (or about) September 17 of each year.  The mandate was the idea of Senator Robert C. Byrd (D.-W. Va.), the self-described “constitutional scholar” of the U.S. Senate, who proposed the requirement in December 2004 in an amendment to the Consolidated Appropriations Act of 2005.  As provided in Section 111(b) of the Act, “Constitution Day must be held on September 17 . . . commemorating the September 17, 1787 signing of the Constitution.”  During those years (like 2005) when September 17 occurs on a Saturday, Sunday, or holiday, programming must be held during either the proceeding or following week.  

Officials in the U.S. Department of Education on May 24 issued a “notice of implementation,” which was published in the Federal Register and sent to chief state school officers and college and university presidents.  Neither the legislation nor the Department of Education’s notice spells out what the educational programs should be, and no federal funds were allocated for the program or its implementation.  A Department spokeswoman, Susan Aspey, said that the Byrd mandate “doesn’t dictate to schools the content or the specifics of their Constitution Day program.”  The notice listed some informational resources, including the Web sites of the Library of Congress and the National Archives, while stipulating that the Department “does not endorse any particular program or Web site.”  However, other organizations – such as NASPA (the National Association of Student Personnel Administrators, the national organization of student affairs administrators in higher education) – have issued to their member institutions a “Constitution Day Implementation Guide,” suggesting various programming ideas for colleges and universities, to comply with the federal mandate.  Senator Byrd, noting that he’s pleased that the Education Department guidelines “allow students to learn more about our cherished Constitution [but] do not impose a particular view or interpretation,” has said, “Each school can rely on the integrity of its educators to determine how best to present its own program on the Constitution.” 

Many educators have expressed concern about the federal mandate, questioning the authority of Congress to dictate what schools do on a particular day.  “Seems to be a Byrd-authored law that none of us knew about,” said Chester E. Finn, Jr., president of the Thomas B. Fordham Foundation and senior fellow of the Hoover Institution at Stanford University.  He also questioned how the program could be enforced.  “What happens to a school that doesn’t teach about the Constitution on that day?” he asked.  “And how will Uncle Sam even know?”  (As interpreted by Department officials, Section 111(b) applies to all educational institutions – both “local educational agencies” (elementary and secondary schools) and “institutions of higher education” – that receive federal funding, not just those institutions receiving funds from the Department; however, the notice adds that “the Department’s [regulatory] authority only extends to those educational institutions receiving funding from the Department.”  And the notice says nothing about whether institutions must report their programming to the Department.)  Dan Fuller, director of federal programs for the National School Boards Association, told the Associated Press that such dictates interrupt regular lessons on other subjects.  “Local schools cover the Constitution, and they’ve been doing it for a long time,” he said.  “We don’t need the federal micromanagement.  Congress has been acting more like a school board” (“Schools told to hold Constitution Day,” Washington Times National Weekly Edition, May 30- June 5, 2005). 

Ironically, in their zeal to celebrate the U.S. Constitution, members of Congress have violated it:  the federal mandate is blatantly unconstitutional, for several reasons.  First, and most basically, it violates the clear language of the First Amendment, which prohibits Congress from passing any law that “abridges freedom of speech.”  Courts long have recognized that this guarantee of free speech prohibits government from compelling speech.  For example, in its decision in West Virginia State Board of Education v. Barnette (1943), the Supreme Court prohibited states from requiring children to recite the Pledge of Allegiance at the start of the school day.  (It’s doubly ironic that this classic case concerned West Virginia, Senator Byrd’s state.)  In his opinion for the Court, Justice Jackson declared:  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  In many other contexts, courts have prohibited government from compelling people to subscribe to or advance particular messages.  Moreover, courts also have developed the doctrine of “unconstitutional conditions,” which prohibits government from limiting persons’ free-speech rights as a condition for their receipt of federal grants or other subsidies.  For example, the federal government cannot grant money to a research scientist on the condition that the scientist refrain from criticizing the government. 

The Byrd mandate looks very much like an unconstitutional condition.  Although it does not dictate the exact contents of Constitution Day programming, it does require educational institutions to sponsor such programming on a particular day.  The federal law singles out the U.S. Constitution as an educational subject and dictates, not only that schools must schedule programs dealing with the Constitution, but also that they do so in conjunction with the Constitution Day anniversary.  As Mr. Fuller noted (in the quotation above), Congress – through the Department of Education – is acting like a school board, dictating a particular curriculum.  That’s certainly an abridgment of freedom of speech. 

In practice, as Senator Byrd has noted, the federal Constitution Day mandate relies on “the integrity of educators” to implement the programming – which raises another First Amendment concern, arising from educators’ own political biases.  It’s no secret that a left-wing political orthodoxy dominates generally in American education and specifically, among other places, in the leadership of teachers’ unions, in college and university administration (especially among student services administrators), and in college and university faculties, especially in the humanities and social sciences (such as Political Science departments) – the very people who will be choosing the programming to implement the Constitution Day mandate.  At most schools, it will be quite easy for left-wing faculty or administrators to co-opt the September 17 programming.  For example, the NASPA “Constitution Day Implementation Guide” suggests, among other things, the following programming ideas:  “Create a Web site providing text from the United States Constitution, along with an interpretation from political science/public policy faculty members”; “Create a forum whereby the vice president of student affairs, provost/vice president of academic affairs, and the student body president discuss how the U.S. Constitution affects higher education”; and “create a simulation of a constitutional convention,” giving students the opportunity “to draft a new Constitution of the United States of America.”  The Guide also suggests that dorms sponsor “Constitutional trivial pursuit” contests (trivia based on the U.S. Constitution), or have their residence life staff create “a pre-amble challenge” (encourage residents to memorize and understand the “pre-amble” [sic] of the Constitution), or have Greek life staff encourage fraternities and sororities to place banners on campus reading “[Fraternity or Sorority Name] supports and defends the Constitution of the United States” or to compete against each other in teams quizzing their knowledge of the content of the Constitution “or current political topics.” 

As these recommendations from the NASPA guide suggest, the Constitution Day mandate, at best, encourages teaching only a superficial understanding of the Constitution.  At its worst, it provides yet another opportunity for educators to indoctrinate students in their left-wing political ideology, under the smokescreen of teaching them about “the Constitution.”  If my own university’s response to the mandate is typical, it seems that the latter is a real problem.  (My University’s announced programs for Constitution Day include a panel discussion on “The Constitution and the Environment,” which like all other programming on environmental topics at my school, will present only the viewpoint of radical environmentalists.  Similarly, my University for several years now has celebrated the Martin Luther King, Jr. birthday holiday with a “Day of Learning,” the programming for which typically amounts to a day of left-wing political indoctrination.) 

It’s not just the First Amendment that the federal mandate violates, however.  An even more fundamental objection to the Byrd mandate is that it violates the Tenth Amendment, because it concerns a matter outside the legitimate scope of federal powers, as enumerated in the Constitution.  Congress has only those powers specifically granted to it in the text of the document, primarily in Article I, Section 8.  Education is not among the enumerated subjects of federal government power; therefore, by the plain language of the Tenth Amendment, it’s reserved either to the states or to the people.  

The Constitution Day mandate, unfortunately, is yet another step taken by Congress to undermine federalism, the division of powers between the national government and the states.  Historically, until the so-called “New Deal Revolution” of the late 1930s, the Supreme Court and other courts recognized that education, generally, was exclusively a state-government concern, with the federal government having no powers (under the Constitution) with regard to education.  That changed, gradually, since the late 1930s, as the Supreme Court allowed Congress to expand its so-called “spending power.”  (I say “so-called” because, strictly speaking, the Constitution does not give Congress the power to spend money; that power, strictly speaking, comes under the Necessary & Proper Clause as an adjunct to some other enumerated federal power.  Thus, given explicitly the power to “raise and support armies,” Congress also – as a necessary and proper way to implement that power – may appropriate federal revenues, collected pursuant to its taxing powers, for military-related expenditures.)  Thanks to an erroneous interpretation of the [Article I, Section 8, clause 1] Taxation Clause, which limits federal taxing powers “to provide for the Common Defence and to promote the General Welfare” – a shorthand reference to the enumerated federal powers – the Court has permitted Congress to appropriate money for whatever purpose it deems to be in “the General Welfare.”  Starting with the post-World War II “G.I. Bill,” which as a benefit to military veterans might have been justified as part of military spending, Congress began to spend money in other ways that affected education – so much so, that by the early 1970s, “Education” was added to “Health” and “Welfare” (federal Medicare, Medicaid, and Social Security programs) and put under a Cabinet-level Department of HEW; and then, by the late 1970s, was given a Cabinet-level department of its own.  And thanks to President Bush’s “No Child Left Behind” program, Congress has expanded federal government involvement in education, depriving state and local governments of much of the autonomy they formerly had.  The Byrd mandate, in one sense, is yet another step taken by Congress to usurp policy-making powers over a field (education) that traditionally American law has left to the states.   

(Given the origins of this mandate with Senator Robert Byrd, it would be especially important for educators in the state of West Virginia to remind their students that the federal government is one of limited powers – and that the kind of porkbarrel spending bills that Senator Byrd has made a career of sponsoring, both to benefit his constituents and to glorify his name, have questionable constitutionality.)  

If American educators really want to teach their students about the U.S. Constitution, they should stress the feature of the Constitution that the American people regarded as most fundamental when they ratified it in 1787-89:  that it created a national government of certain limited powers, enumerated in the text of the document.  If the Constitution does not give Congress the power to legislate with regard to certain matters – such as education – then Congress does not have the power.  It’s reserved, either to the state governments or to the people themselves.  That principle – which Thomas Jefferson regarded as “the foundation” of the Constitution – is explicitly provided for in the Tenth Amendment, one of the document’s most important provisions but which (sadly) is virtually forgotten today.  If we are to truly revere the Constitution, we must take its text seriously; and if we take its text seriously, we cannot continue ignoring the Tenth Amendment.  (For more on this, see my previous entry, “The Constitution’s Forgotten Foundation,” September 13, 2004.)

 | Link to this Entry | Posted Thursday, September 15, 2005 | Copyright © David N. Mayer