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"Constitutional Disservice," from The Washington Post, December 31, 2004
There are often a few surprises lurking in the gigantic appropriations bills that Congress tends to pass in the hectic last few days of a legislative session. Some seem harmless on the surface, but their ramifications can be worrisome.
Take, for example, Section 111 of the final $388 billion omnibus spending bill for 2005, which President Bush signed Dec. 8. Just two sections away from the one declaring the oak to be the national tree, this clause requires that every educational institution in the country receiving federal funds present an annual program on the Constitution on Sept. 17, the anniversary of its signing in 1787.
A number of the other eccentric provisions of this year's 3,320-page bill were eliminated during final deliberations, but Section 111, perhaps because it seemed relatively innocuous, survived intact. It's only a matter of time until the Education Department issues its guidelines for implementation and enforcement.
Occasionally the obscure bits of these laws are shrouded in mystery; no one knows, or is prepared to admit, exactly how they got there. But there is no secret about the origin of this requirement for a yearly lesson on the Constitution. It was put into the bill by Sen. Robert C. Byrd (D-W.Va.), who was first elected to the Senate in 1958 and is widely acknowledged as the grand master of the appropriations process.
Byrd has been understandably concerned for many years about Americans' ignorance of our most fundamental legal document, and he has previously advocated making Sept. 17 a national holiday. At a 1998 symposium at the West Virginia University College of Law, he warned that "our constitutional structure is increasingly in peril."
During the buildup to the war in Iraq, and in other recent debates, Byrd has delivered eloquent defenses of the separation of powers and spoken of the need for more thorough deliberation on matters of national and international policy -- speeches little reported in the mainstream media but widely circulated on the Internet. "Like pygmies on the battlefield of history," he told his fellow senators this month, "we cower like whipped dogs in the face of political pressure when it comes to issues like intelligence reform."
I must confess to a long-standing personal fascination with this silver-maned classical orator. Nearly 30 years ago, as a magazine journalist, I followed him through the corridors of the Capitol and the back roads of West Virginia to construct a profile of a man who effectively ran the Senate even before it was his responsibility to do so. (He eventually served as majority leader for six years.) He is an American original. But now, with the best of intentions, Byrd has done us all a great disservice.
What could be wrong, one might ask, with requiring college and university students, not to mention those in elementary and secondary school, to reflect on the Constitution once a year?
Quite a bit, if this episode establishes the precedent that Congress can freely mandate national curriculum requirements. What might be next? The Ten Commandments? The U.N. Charter? The Kyoto accord, perhaps, or the Sept. 11 commission report? Surely all these are useful things to teach and learn about, but on a specific day and under federal regulations and guidelines? And if the states follow suit, will their individual constitutions get their own days? How about city charters? Or the favorite ideological causes of various other members of Congress?
Equally serious is the prospect that such a generic requirement to conduct "an educational program" on the Constitution will lead to trivialization of the very issues Byrd cares most about. The prospects for curriculum design within the Education Department, and among private contractors, are endless and, frankly, horrifying. But next year, when Sept. 17 happens to fall on a Saturday, poses a special challenge. One can just imagine the halftime shows at football games explaining checks and balances.
There can be little doubt about the serious deficit in awareness of American history and government, not to mention world affairs, among young people. Thoughtful efforts are needed at all levels of the educational system to solve this problem, but this federal requirement is not one. The best that can be done now might be to subject Section 111 to a little good-old-fashioned judicial review under the terms of the Constitution itself.