By Robert S. Sargent, Jr.
In 2005, Senator Byrd of West Virginia introduced a rider to the appropriations bill in the U.S. Congress requiring every educational institute that receives federal money to hold an educational program based on the Constitution every September 17, the anniversary of the signing of the Constitution (or if the 17th is on a weekend, it will be held the week before or the week after). Vanderbilt University in Nashville, complied with this rider on September 21 last week with a panel of law faculty who debated whether or not this law itself is unconstitutional. I called the law school and they e-mailed me a link to a recording of the debate.
The role of one of the professors, Thomas McCoy, was to show why the law is unconstitutional, and he said there were three doctrines that controlled whether the law was constitutional or not. (These doctrines, by the way, are doctrines thought up by various Justices in different Supreme Court rulings.) The first is the "Unconstitutional Condition Doctrine," which says that the government cannot bribe anyone not to exercise Constitutional freedoms. An example would be if the government offered you $50 not to go to church. McCoy said, "…[so] the government is offering Vanderbilt many millions of dollars in research funds on the condition that we forego our freedom to say nothing about Constitution Day." A violation of the first doctrine.
The second doctrine is the "Doctrine of Coerced Speech." "…forcing you to speak when you don't wish to speak raises the same 1st Amendment problem that is raised when the government prohibits you from speaking."
The third doctrine, a deliberate government attempt to coerce or prohibit speech is a violation of the 1st Amendment Free Speech Clause.
According to Professor McCoy, the three doctrines show the statute to be unconstitutional.
A second panelist, Professor Rebecca Brown argued that since the statute didn't require any institution what to say, it didn't violate the Constitution. Also citing statistics that showed our ignorance of the Constitution, she argued that we need a Constitution Day so badly that we shouldn't object.
And the third panelist, Professor Suzanne Sherry gave some of the same arguments: "…regardless of whether it's Constitutional, I think the Constitution is worth celebrating." Then she went on with a lot of irrelevant stuff about how the Constitution isn't perfect and we need judges to decide what the flaws in the Constitution are.
During the question and answer period, Professor McCoy said that if the government offered money to hire someone to teach the Constitution, then there is not a Constitutional problem, but if it threatens to withhold money for medical research if you don't have a Constitution Day, then it violates the so-called doctrines. But if, when one professor suggested, "The next grant that will be given, will be given for a two-fold purpose: to provide medical research and to provide for Constitution Day," then, Professor McCoy said, "If, in fact, it is characterized that way, you have solved the Constitutional problem." Huh? So this year, when it's characterized as "if you don't have Constitution Day, we will withhold medical research money," it is unconstitutional, and next year, if it's characterized as "we are providing federal money for medical research and for a Constitution Day" it will be constitutional! Nothings changed, it's the characterization that will decide if it's constitutional or not! The end.
When you get around lawyers (including Supreme Court Justices), who knows what they will say? They take a document like the Constitution and find different "doctrines," and "compelling state interests," and "rights" found in the penumbras of the Bill of Rights, and different shades of characterization and on and on. Please.
While we lovers of the Constitution will applaud efforts to educate our citizens about the Constitution, there is a principle here. It's very simple: Just read what James Madison said above. In over one hour of Constitutional discussion, not one word was said about the limits of federal power; but there is no enumerated power for the federal government to tell educational institutes what to teach. Therefore, Senator Byrd's rider is unconstitutional. Period.
Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at
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