Is Constitution Day Constitutional?

A problem with today's holiday.


I don't agree with everything in Dahlia Lithwick's Constitution Day column, but I agree about this:

"Well, why can't we just make a law against flag burning?" "Because that law would be unconstitutional. But if we change the Constitution—" "Then we could make all sorts of crazy laws!" "Now you're catching on!"
The Simpsons

You say you've never heard of Constitution Day™, a federally mandated holiday. Well, that is probably because it's only been a federally mandated holiday since 2004, when Sen. Robert C. Byrd of West Virginia invented it in much the same fashion that all of our greatest national festivals have come about: He tucked it into a massive appropriations bill. The relevant rider of the Omnibus Spending Bill of 2004 amended Title 36 of the United States Code (Patriotic and National Observances, Ceremonies, and Organizations) by substituting "Constitution Day" for "Citizenship Day."

Constitution Day commemorates the signing of the U.S. Constitution on Sept. 17, 1787, and also celebrates "all who, by coming of age or naturalization, have become citizens." The law itself provides that all educational institutions receiving federal funds—which means virtually all of them—must offer up some sort of educational program about the Constitution. It also requires that the head of every federal agency offer each employee educational and training materials about the Constitution on that day. If Constitution Day falls on a weekend, as it did in 2005, 2006, and 2011, it is observed on the contiguous weekday.

Now, mandating the nationwide teaching of the document that protects the most fundamental American freedoms may itself be unconstitutional, as Nelson Lund and the Heritage Foundation noted back in 2006. But, of course, that is just one of those idiosyncratic things that makes the holiday so special.

If you follow the Heritage and Lund links, you'll see strict-constructionist arguments of a sort that Slate writers do not usually endorse. I'm not complaining; it's just odd that this, of all possible issues, is where the site would find room for those ideas. I suspect Lithwick just couldn't resist the #SlatePitch contrarianism of suggesting Constitution Day is unconstitutional.

Whether or not she's right about the legal question, I don't think federal education mandates are a good idea. In this case, the mandate has the additional problem of being confusingly vague, since "all educational institutions receiving federal funds" is an awfully broad category. And that leads us to my favorite detail in Lithwick's article: "In 2005, when the law first went into effect, massage schools and cosmetology programs evidently flew into a collective panic over how to meet its requirements."

Bonus link: From the Yes, Libertarians Like To Argue About Things You Thought Were Settled files, here is Reason's 1987 debate, "Did the Constitution Betray the Revolution?"

NEXT: A. Barton Hinkle: We Need More Innocence Commissions

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  1. Simple fix – stop giving federal funds to schools and the clause becomes moot.

  2. See, guys, amendments even look like toilet paper!

  3. Now, mandating the nationwide teaching of the document that protects the most fundamental American freedoms may itself be unconstitutiona

    Oh NOW NPR/Slate finds a limit to government power. They can mandate you buy broccoli, but they can’t mandate day in the curriculum for the Constitution.

    On the other hand, I’m told that… what was it… “every single word” in the constitution limits your freedoms. So I guess mandating a curriculum day is a-ok.

    1. “every single word” in the constitution limits your freedoms

      Let me guess…Tony?

    2. We’ve always been at war with the ever-expanding construction of the enumerated powers.

  4. Here’s a discussion question that might lead to some learning – why do we celebrate the Fourth of July as our big national holiday instead of September 17th?

    I would suggest that it’s because America was created on the Fourth of July, the day a bunch of people stood up and said, “You know what? All this stuff about kings ruling by Divine Right and people being owned by their government is a bunch of crap. I’m a free man and I own myself and anybody that tries to tell me I have some sort of obligation to other people simply by virtue of the fact that I exist deserves to be shot in the head. I’d rather be dead than to be told I’m the property of the state. Who’s with me? Can I get an ‘Amen’?”

    (That’s why I think immigrants who risk their lives to come here just for a chance to make a better life for themselves are real Americans and some of the people born in the US who think “you didn’t build that” and “it takes a village” are wise words should have their asses deported to whatever sort of socialist hell-hole all the other un-Americans live in.)

  5. I blame School House Rock for today’s climate of ever-increasing statism. That bill was a bill to force school buses across America to stop at train tracks.

    Where in the Constitution can Congress mandate that!?

    1. In the sequel to that one, the Supreme Court struck down the law. Sadly, it was never run.

  6. I’m all for this, assuming we can tack on airing of grievances and feats of strength…

  7. I’m shocked. SHOCKED I tell you, that the people at Slate don’t want government employees and students to know what the constitution says and means.

  8. The Confederate Constitution, modeled on the US Constitution had a provision outlawing “logrolling” by making it necessary for a law’s title to accurately describe it’s contents and purpose. All unrelated provisions being required to pass separately.

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