Is the Constitution Day Mandate Constitutional?

It's time to rethink a requirement.


September 22, 2014

On September 17 colleges and universities across the United States celebrated Constitution Day; a national holiday on which we commemorate the historic signing of the Constitution.

My campus is no exception. We held a series of voter registration drives and ended the week with a lecture on citizenship, engagement, and democracy. Unfortunately, like our colleagues in educational institutions throughout the nation, we did not do so freely because for more than a decade we haven’t had a choice regarding whether to celebrate this day or not.

In 2005 the federal government passed a law requiring that all educational institutions which receive federal funds commemorate this day with educational programs. The bill, sponsored by the late Senator Robert Byrd (D-WV), reads:

"Each educational institution that receives Federal funds
for a fiscal year shall hold an educational program
on the United States Constitution on September 17 of
such year for the students served by the educational institution.”
(Pub. L. 108-447, div. J, title I, Sec. 111, Dec. 8, 2004,
118Stat.3344(d); http://codes.lp.findlaw.com/uscode/36/I/A/1/106/notes#sthash.953S41GV.dpuf )

While Byrd’s intentions many have been noble and his conclusion that too few people reflect on the document accurate, the remedy – to require commemoration or risk federal funding - is not only at odds with the spirit of the Constitution but arguably illegal.

Critics argue that we in the academy do have a choice. After all the amendment stresses that this is a requirement for educational institution that accept federal funds. In other words, if you oppose the mandate, simply stop accepting tax payer dollars. But this is not a real choice. In the current economic environment how many institutions could (or would) forgo funding? How many of us could look our students in the eyes, the same young people who are paying exorbitant tuition, and say we decided to reject funding because we are standing on principle? This is a Hobson’s choice.

On the 200th anniversary of our Constitution the great Justice Thurgood Marshall made a remarkable speech at The Annual Seminar of the San Francisco Patent and Trademark Law Association. Unlike most of the pundits and thinkers who, on the bicentennial, were praising the founders for their genius, Marshall offered a more sobering message. The founders, in Marshall’s estimation, created a document based on compromise – including the 3/5 compromise – which required not only several amendments but a devastating civil war to resolve. “I plan,” Marshall famously stated that day, “to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.”

Our students deserve the opportunity to agree or disagree with Marshall’s conclusion. And in the spirit of the Constitution, they should be free to celebrate the document – or not – whenever and however they choose. Similarly, educational institutions, faculty, and teachers should have the right to commemorate the occasion – or not – without fear of federal reprisal.

In honor of the Constitution and the liberties it stands for, it is time not just to revisit this mandate, but for the sake of everything it represents, overturn it.

Jeanne Zaino, Ph.D., is professor of political science at Iona College. You can follow her on twitter @jeannezaino


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