Panel puts Constitution Day under constitutional microscope

Wednesday, October 5, 2005

NASHVILLE, Tenn. — There is something ironic about hosting a forum to discuss the constitutionality of the new federally mandated Constitution Day. Yet that is exactly what Vanderbilt University did on Sept. 21.

This “celebration” of Constitution Day is the result of an amendment to the 2005 Consolidated Appropriations Act, Public Law 108-447, which requires that “each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17.” The specific date commemorates the signing of the Constitution in 1787.

Dismayed by what he viewed as a lack of knowledge on the part of many Americans about the Constitution’s history, Sen. Robert Byrd, D-W.Va., sponsored the amendment, which forces schools to educate students about the Constitution.

The law also requires employees of federal institutions to recite a pledge to the Constitution on Sept. 17. Should the date fall on a weekend or holiday, Constitution Day can be celebrated either the week before or after.

By organizing the Sept. 21 forum, Vanderbilt University met its Constitution Day obligation, enabling it to continue to receive federal funding. Even though the university is private, it receives millions of dollars in federal funds each year, mainly in the form of medical-research grants, according to a university news release.

The debate, hosted at the university’s law school, included Dean Ed Rubin and professors Rebecca Brown, Tom McCoy and Suzanna Sherry.

Arguing against the constitutionality of the new law, Rubin said that he was alarmed that lawmakers had passed the mandate without much discussion. “I believe personally that the federal statute does not comply with the Constitution, which is to say that Congress and the president have chosen to honor the Constitution by violating it,” Rubin said.

“The problem with this is that it requires us to have a particular kind of speech, to say something at a particular time under threat of federal fund reduction or cutoff,” he added.

According to McCoy, a constitutional-law scholar, withholding federal funding if a university or school does not to comply with the Constitution Day law is tantamount to violating the unconstitutional-conditions doctrine. This doctrine, McCoy said, states that it is unconstitutional for the government to offer money to an individual or institution on the condition that a constitutional right be given up.

“The government is offering Vanderbilt University many millions of dollars in research funds on the condition that we forgo our freedom to say nothing about Constitution Day,” McCoy said. “This constitutes a fine of many millions of dollars if we exercise our right to say nothing.”

McCoy also contended that Constitution Day violates the Constitution, namely the First Amendment, because forcing speech under the threat of withheld funds could be considered coerced speech, which has been prohibited by numerous Supreme Court rulings.

“The U.S. Supreme Court has made clear that forcing you to speak when you do not wish to speak raises the same First Amendment free-speech problem as raised when the government prohibits you from speaking,” McCoy said.

Arguing the opposite, Rebecca Brown said that because the law specifies only that schools discuss the topic of the Constitution on Sept. 17, it does not breach the Constitution because the law does not compel specific speech.

“There is no implication that we have to celebrate the Constitution, and we are not asked to adopt any point of view,” said Brown.

“Yes, there is a topic (the Constitution), but what we have to think about is whether we think it is appropriate for the government to select a topic,” said Brown.

However, according to McCoy, Constitution Day is still a “slippery slope.”

“It is at most a minimal interference, nonetheless minimal interferences are worth worrying about,” he said. “What worries me is that when you start ignoring very small constitutional violations, it is just a very short trip to banning speech you disagree with.”