Friday, September 16, 2005
By Steven L. Taylor

Let me say, from the get-go, that I am a great admirer of the US Constitution and consider it to be one of the most significant and amazing political documents of all time. Further, I generically like the idea of extolling that document and do think that there is woeful education about it in our schools.

Today is Constitution Day (observed– tomorrow is the actual Constitution Day), and schools across the country (including here at the Troy campus of Troy University) have special lessons and programs to commerate the document. I know that my sons’ (Oldest and Middle) school had a program this morning and the halls were replete with decorations of relevance when I was there the other day.

So, what’s the reason for all the celebrating when previous there wasn’t any? Well:

Sen. Robert Byrd, D-West Virginia, added an amendment designating September 17 as Constitution Day, mandating the teaching of the Constitution in schools that receive federal funds, as well as federal agencies. Since September 17, the actual birthday of the Constitution, falls on a Saturday this year, schools will be observing the day on Friday, September 16. (Source: CNN

As nice as all the celebrating is, I must confess that it is also profoundly ironic and, I must further confess, I view some of it with a bit of tempered cynicism.

First, the irony is deep because the power by which Senator Byrd was able to mandate Constitution Day was a wholly aconstitutional one (and note, I am not say unconstitutional, just aconstitutional–i.e., the power did not come from the Constitution, but rather from the federal budget). There is nothing in the US Constitution that empowers that Congress of the United States to set, even in a small way, the curriculum of state-run educational institutions. Indeed, for much of our history, the idea that the federal government really had much of any control over education was unheard of. Indeed, it wasn’t until the 1960s and the Johnson administration that there was systematic federal spending on K-12.

So, how did the Senator from West Virginia manage to get us all hoppin’ today? The answer is simple: money. The number of dollars controlled by the federal budget are enormous and those dollars create considerable powers for the central government, even to the point of allowing Congress to invade areas of policy not expressly delegated to the Congress nor implied as being powers of the central government. Indeed, somewhere Madison and Jefferson are grimacing and Hamilton is no doubt beaming, as the power of the Congress via the central budget has radically transformed federalism in the United States.

Byrd was able to get educational institutions to celebrate Constitution Day with various performances, speeches and presentation not because of the moral persuasiveness of the idea, nor because the Constitution grants the Congress power over curricula. No, Senator Byrd was able to “persuade? these institutions to play along because the celebration is yet another string attached to the federal dollars that flow from Washington, DC to the states. It is the same type of fiscal federalism that empowered Congress to lower speed limits universally to 55 in the 1970s (because if states did not, they would lose federal highway funds) and that eventually cajoled Louisiana to raise its drinking age to 21 (for the same reason). The threat here is loss of federal education funds.

This fiscal relationship fundamentally alters the overall power of Congress vis-à-vis the states. The enormous amount of tax dollars collected by the federal government dwarfs anything the Founders ever could have imagined, and underscores how the functioning of our government does evolve over time, even when the words on the page remain static.

I think that this is a lesson that needs to be learned on Constitution Day. I point this out less to critique than simply to inform: this is the way the system works and the pure federalism of the Constitution itself, as delineated by Article I, Section 8 and the Tenth Amendment is not fully in operation in longer in the United States, and really hasn’t been for easily seventy years, because of the substantial access to tax revenue that the federal government now has. A substantial amount of policy in the United State is predicated now on strings attached to the federal budget rather than simply being delineated by the Express Powers in the Article I, Section 8. And, of course, the interpretation by the SCOTUS of certain elements of Article I, Section 8, specifically the Commerce Clause as seen in the Raich case, have also substantially increased the power of the central government over time.

And this is where my cynicism comes in: we are doing all of this en masse because we might get our federal money taken away.

Of course, I griped about this fact when the idea first came up, so I guess it isn’t a surprise I am still critical.

Still, not end of a wholly sour note, the US Constitution is worth celebrating, but so, too, we need a full unerstanding of how power works in our system, and the degree to which the Constitution does, or does not, fully regualte it.

Others blogging on this subject:

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5 Responses to “Happy Constitution Day”

  1. A Stitch in Haste Says:

    Constitution Day

    We are talking about an intrusive federal law mandating that states introduce a specific curriculum extolling the virtues of Tenth Amendment federalism. Does no one see the irony in that?

  2. A Knight’s Blog » Constitution Day — A Threat To Federalism? Says:

    [...] To Federalism?
    Filed under: Law — Scott Gosnell (Paladin) @ 2:52 pm

    As the Sultan so aptly points out, today is Constitution Day. So, happy Constitution Day. Again, as Steven poin [...]

  3. PoliBlog: Politics is the Master Science » Short(er) Version of My Constitution Day Post Says:

    [...] Based on this post at a Knight’s Blog, it may be that I wasn’t wholly clear in my Constitution Day post below. Setting any normative judgement concerning the evolution of policy making and [...]

  4. Chris Lawrence Says:

    Hmm. I did make fun of Sen. Byrd, and I did talk about the spending power in intro today (though I didn’t realize today was the day I was supposed to discuss the constitutionality of sticking random riders in conference reports that neither house had agreed to in its version of the bill)… hopefully that met the requirements.

    Otherwise… I guess Duke didn’t really need that federal money. Ooops.

  5. Random Fate Says:

    Constitutional irony

    Dr. Stephen Taylor discusses the irony of using aconstitutional methods to mandate teaching about the United States Constitution on Constitution Day.

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