What does Constitution Day recognize?

Ironically, requiring schools to observe Constitution Day is technically unconstitutional.

In spite of Sen. Robert Byrd's (D-West Virginia) great Constitution Day essay, with which we largely agree, the new Constitution Day law imposes yet another federal mandate on schools that receive federal funding (a technique quite familiar to school districts, called "fiscal federalism"), and another external requirement on classroom teachers.

The Tenth Amendment to the United States Constitution reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Constitutionally, the federal government has no jurisdiction over education, so it's a state matter. For funding an average of 7% of a state's education budget, the federal government buys a lot of influence.

While we might not agree with the means, the desirable end of learning about the Constitution is of course an essential exercise of a self-governed people. As Senator Byrd says, "Without constant study and renewal of our knowledge of the Constitution and its history we are in peril of allowing our freedoms to erode." Or as Scholar puts it, "In Scientia Libertas."

Over the weekend, Scholar attended a lecture by Constitutional scholar Dr. John Eidsmoe, Thomas Goode Jones School of Law at Faulkner University. Eidsmoe and other speakers that evening cautioned the audience to ensure that local schools teach what's in the Constitution, not simply present programs "on" (or about) the Constitution as required by the federal Constitution Day law.

The evening opened with Mike Chapman of American Heritage Research celebrating the passage of the American Heritage Education in Minnesota Public Schools Act by stating the law's key provisions:

HF 141, 2005 Special Session, Omnibus K-12
and early childhood education appropriations bill

64.10 Sec. 20. [120B.25] [AMERICAN HERITAGE EDUCATION.]
64.11 (a) School districts shall permit grade-level instruction
64.12 for students to read and study America's founding documents,
64.13 including documents that contributed to the foundation or
64.14 maintenance of America's representative form of limited
64.15 government, the Bill of Rights, our free-market economic system,
64.16 and patriotism.
64.17 (b) Districts may not censor or restrain instruction in
64.18 American or Minnesota state history or heritage based on
64.19 religious references in original source documents, writings,
64.20 speeches, proclamations, or records.

The latter provision is key because it frees teachers to use uncensored original source documents without fear of district interference and lawsuits. For example, before this law was passed one might imagine some teacher trepidation at classroom discussion of this quote from James Madison, fourth President and primary author of the Constitution: "The future and success of America is not in this Constitution, but in the laws of God upon which this Constitution is founded."

Or consider this example from patriot Patrick Henry, of which only the final sentence has been known in most American schoolrooms:
An appeal to arms and the God of hosts is all that is left us. But we shall not fight our battle alone. There is a just God that presides over the destinies of nations. The battle sir, is not of the strong alone. Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it almighty God. I know not what course others may take, but as for me, give me liberty, or give me death.

Allen Quist provided the Homer Simpson "d'oh" moment by pointing out that Constitution Day (as a federal mandate) is unconstitutional. After a beat, this drew appreciative laughter as the audience grasped the irony. He also repeated Jay Leno's joke about the travails over the new Iraqi constitution: "Why don't we just send them our Constitution? It's worked for over 200 years, and we're not using it anymore [a reference to activist federal judges]!" Quist reiterated some of his thoughts on Constitution Day, posted earlier in this blog.

Eidsmoe presented a strict constructionist viewpoint of teaching the Constitution. He urged teachers to require students to actually read the Constitution, something that even many constitutional law professors don't require. He provided a long list of suggested resources for teaching the Constitution, available from EdWatch.

Eidsmoe also recommended the classic Commentaries on the Laws of England by Sir William Blackstone, and Two Treatises of Government by John Locke. In the former, Blackstone states that there are three types of law, revealed law from God (The Bible); law of nature (also from God but deduced by man); and municipal law created by man. Therefore, the phrase "under God" accurately places the nation and its laws subordinate to the laws of God. This is not the establishment of religion, this is the true history of our nation, the actual words and ideas that shaped our nation.

The federal Constitution Day and Minnesota's American Heritage Education law provide educators with the mandate and the freedom to preserve and transmit the Constitution to a new generation. How the Constitution and the Republic survive in the hearts and minds of that generation remains to be seen.

Further reading: