It’s Constitution Day. Thanks to an amendment included at the behest of the late Robert Byrd in 2004, every educational institution that receives federal money–from a kindergarten to a graduate school–must offer programs on this day that concern the Constitution. Eight years ago, I posed some gently subversive questions that could be the basis of a discussion on Constitution Day. Here are my questions again, with–for what they’re worth–my answers:
- How, under our Constitution, can legislation be passed on the sole prerogative of one US Senator?
The Constitution leaves it up to each house of Congress to organize its own procedures. (Article 1, sec. 2: “Each House may determine the rules of its proceedings.”) The Senate can basically construct bills any way it wants.
There is no ideal way to legislate. Any parliamentary body faces a severe challenge in aggregating the opinions of its many members on the many topics that come before it. No legislature can discuss and separately vote on everything. Still, the Senate’s rules give an awful lot of power to individual members to insert provisions. I suspect the reason lies with the Senate’s filibuster rules, which make the passage of legislation extraordinarily difficult. To prevent even more filibusters than we actually have, Senators are allowed to slip in special provisions they especially care about.
Legislating this way is not “unconstitutional” in the sense of violating the text of the document. But we could say that in the broader meaning of the phrase “constitutional system,” our system includes the rules of the US Senate, which are very problematic.
- How can Congress pass legislation without hearings or debate?
See above. But this second question underlines a particular disadvantage of the Senate’s rules: many decisions get no deliberation whatsoever. No teachers were asked to testify about the pros and cons of a Constitution Day mandate. Again, no process is prefect, but the Senate’s procedures seem to neglect the deliberative value that our constitutional order was meant to uphold: “the mild voice of reason, pleading the cause of an enlarged and permanent interest.”
- Is it a constructive and appropriate use of federal power to determine the content and timing of educational instruction?
Strong conservative constitutionalists will say that Congress has no business in education at all, because education is not among the enumerated powers of Article 1, Section 8. Students should learn and consider that argument. For my part, I think we long ago rightly settled that the Congress may raise taxes and spend the money on education and may put certain conditions on the funding. I would especially argue for a federal role in supporting education for republican self-government, on the ground that this is “necessary and proper” for the survival of our system.
But that doesn’t mean that micromanagement from Washington is wise. To pick a day–right at the beginning of the conventional academic year–when every school (k-20) must teach the Constitution is a good example of meddling. It’s unlikely to yield positive results. Conservatives make a valid point that needn’t be rooted in an originalist reading of the Constitution: Congress should generally avoid micromanaging, especially in an ad hoc way, because it is too distant from local concerns, too likely to make one size fit all, and too remote from accountability. Characteristically, when the Senate passed a Constitution Day mandate, no one even dreamed of empirically evaluating the impact–whereas a school district that tried such an experiment might have to show that it was cost-effective and a “research-based best practice.” Congressional micromanagement violates the spirit of the Constitution, even when it passes legal muster.
Finally, I do think some good comes from the Constitution Day mandate. It gives an annual boost to the wonderful organizations that provide materials, lesson plans, and professional development for civics, and it yields an annual crop of articles and social media about civic education. Still, if I had to teach a lesson on Constitution Day, it might be about how the legislation that launched it is constitutional yet also problematic–so maybe we need some reform.