Unconstitutional Constitution Day
by Kent Greenfield, Professor of Law and Thomas Carney Scholar at Boston College
Law schools, high schools, universities, and other educational institutions across the country will be commemorating Constitution Day in the coming days. In doing so, we celebrate the anniversary of the longest-enduring national Constitution in the world. At Boston College Law School, where I teach, the Dean announced that the commemoration will include a panel discussion among distinguished scholars. An internet search reveals that schools elsewhere are celebrating with parades, library displays, and debates. If the Day works as designed, students of all ages and stripes will come away educated about the document and inspired by its brilliant, prescient design.
I should love Constitution Day. I teach the Constitution, I read about it (for fun), I have been known to write long-winded, esoteric law journal articles about it. I recently made a special trip to the Constitution Center in Philadelphia. I capitalize words such as "Constitution" and the "Framing." And of course I am a proud member of the American Constitution Society.
But Constitution Day is unconstitutional.
Whether laudable or not, these celebrations are not voluntary. They are a result of a recent Congressional mandate, imposed on any school receiving federal funds. Such compulsion to teach a certain thing is a violation of the First Amendment, which protects all of us from being compelled to speak by the government.
These are not just the paranoid ramblings of an ivory tower denizen. The mandate to celebrate Constitution Day underscores a disturbing trend in Congress's willingness to violate the First Amendment in order to score political points.
The right to be free of government-compelled speech - even speech that is worthwhile and beneficial - has been a "fixed star in our constitutional constellation" for over sixty years. That quote comes from Justice Robert Jackson, writing for the Supreme Court striking down a law expelling students who refused to recite the Pledge of Allegiance. Even though the country was in the middle of World War II at the time, the Court recognized that patriotism must be voluntary to be meaningful. Jackson did not mince words: "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters."
The same is true now. Though we are at war, if we have to mandate patriotism or respect for the constitution, then we have already lost.
This truth is ignored by our government, which is increasingly compelling patriotic homage. The No Child Left Behind Act forces public and private high schools to hand over the names, addresses, and phone numbers of teenagers, so that military recruiters can target them with mailings, emails, and phone calls. Another law, the so-called Solomon Amendment, compels universities to use their own resources to assist military recruiters in reaching students, even when the military's discrimination against homosexuals would normally trigger universities' general policies of not assisting discriminatory employers.
In fact, the constitutional issues underlying these laws are so pressing that the Supreme Court will soon hear a case challenging the Solomon Amendment on First Amendment grounds.
The government's defense of the Solomon Amendment is the same as it would be to the mandatory Constitution Day: there is no violation of the constitution when rights are given up as a condition of government benefits.
Pause and consider the breadth of such a justification. The government is everywhere, and every one of us depends on government benefits of some kind or another, from social security benefits to farm subsidies. When the government restricts the use of funds within a specific program, that is one thing. But it goes too far when, as a condition of a government benefit, the government forces us to waive our constitutional rights generally. Otherwise, residents of government-subsidized housing could be forced to open their doors to policemen without search warrants. Medicare recipients could be compelled to give up their right to bear arms. Veterans using federal student loans to complete a degree could be made to forego any anti-war protesting while in school.
Government funding should be used to achieve important public policy goals, not as a mechanism to buy up the constitutional prerogatives of the nation's citizens.
If a celebration of Constitution Day can be constitutionally mandated as a condition of federal funds, then so could Right to Life Day, No Nukes Day, or Tom DeLay Day. Indeed, as a constitutional matter, there is not much to distinguish government-mandated celebrations of the Constitution from government-mandated celebrations of George Bush's foreign policy.
The Constitution should indeed be celebrated, honored, even revered. But our Constitution is great enough that we can celebrate it without the government telling us we must.
Written By:Joni Moody On September 29, 2005 9:25 AM Written By:Paul Kochis On October 19, 2005 1:42 PM
The level of illiteracy by US citizens concerning the rights, responsibilities and opportunities afforded under our Constitution is staggering. Citizens who are ignorant of these rights, responsibilities and opportunities are, in fact, deprived of "life, liberty and the pursuit of happiness" if they are not afforded the resources to learn about this Constitution. The Byrd Amendment seeks to insure that at least some of the public ( i.e. federal employees and our youth in school) are given the resources to learn. How does the opportunity to learn "abridge" free speach?
The Constitution does not outline any responsibilities for citizens. It enumerates federal powers and puts limits on those.
Greenfield is right. It is a shame that respect for and knowledge of the Constitution is so low that people would even consider a mandate. It is worse that such a mandate is constitutional.
I do think the problem is worse than Greenfield articulated. One can easily question whether federal funding for schools and colleges is in itself constitutional.
A few presidential candidates, especially Ron Paul, have brought up the Constitution in their campaigns and in debates. This has been a reminder that the Constitution still means something, that we are under the rule of law. It is my hope that people will ponder about and even study what having a republic under the Constitution really means.
I believe that the Constitution Day provisions of PL 108-447 are unconstitutional. The law violates not only Congress’s taxing and spending powers, but also forces the states to surrender their own state powers and sovereignty by dictating curriculum to be instructed on a certain day.
Congress may place stipulations on funds that they provide to states. The Supreme Court upheld this power in South Dakota v. Dole (1987). However these stipulations are void when the pressure put on the state becomes unduly coercive; such is the case of PL 108-447. The law declares that if the requirements for Constitution Day are not met, the federal government can cut its funding to that district. The school is already burdened by other unfunded federal mandates such as PL 94-142, requiring states to develop and implement policies to assure a free and appropriate education to all children with disabilities, as well as provisions of No Child Left Behind. According to the US Department of Education, the federal government provides 10% of the total funding of each school district. Should our district or school lose 10% of our funding, the results would be catastrophic. Already overcrowded classrooms would be unable to facilitate the even greater number of students per class due to the inability of the school to retain the necessary amount of staff members. Already there are classes in my school with more students than actual chairs. We can not afford to lower the standard of our learning environments any more. The fear of substandard learning conditions has made it impossible to resist the stipulations of PL 108-447. The district has been unduly coerced into complying with the law.
The United States Supreme Court has ruled in favor of state and local control over public schools in the case Ambach v. Norwick (1979). In upholding the state’s right to decide whether or not an alien could teach in the public schools, the Supreme Court confirmed the state’s control over education. By enacting Constitution Day, Congress has encroached on “perhaps the most important function of state and local governments,†education (Brown v. Board of Education, 1954). Education is not listed as an enumerated power of the federal government in Article I, Section 8 of the Constitution, and therefore is left to the state governments to control. The disregard for the state’s authority to control public education is an obvious breach of the Tenth Amendment, the guarantee that powers not delegated to the federal government in the Constitution will be given to the states.
PL 108-447 is an unconstitutional law which needs to be repealed or altered in such a way as to merely suggest that schools celebrate Constitution Day on September 17th.
1. Does it matter with respect to the argument above that the law carries absolutley no enforcement provisions? I think it does. 2. Constitution Day's "requirements" must be distinguished from school district laws at issue in Barnette, which criminalized failure to salue the flag. 3. As to the argument related to the attachment of Article I powers to 1st Amendment rights, this area of the law is so murky that it seems over-drawn to allege bad faith or narrow political interests by Congress, let alone the executive branch. 4. Indeed, the only involvement of the executive branch occurred when the President signed the budget (nb: Consitution Day was added at the last hour to a comprehensive budget bill). 5. Finally, Constitution Day was proposed and endorsed by Senator Robert Byrd, D-WV.