Journalists, pundits, and colleagues consider Sen. Robert Byrd
(D-W.Va.) an expert on the Constitution. They note that he carries
a copy of the supreme law of the land in his pocket at all times.
He cares about it so much, in fact, that he slipped an amendment
into a 2005 appropriations bill requiring all institutions that
receive federal funds, including thousands of schools, to teach
about the Constitution every September 17, the anniversary of its
signing. In doing so, over the last few days (September 17 fell on
a Saturday, so Friday and Monday events met the law’s
requirements), Byrd provided a perfect “teachable moment,” a chance
to explain how, when it comes to education, federal policymakers
have ignored the Constitution for decades.
To understand what the federal government can and cannot do, it
is necessary to remove the Constitution from one’s pockets and to
look at Article I, Section 8. One should also break open the
Federalist Papers, a compilation of essays penned by
Alexander Hamilton, James Madison, and John Jay in 1787 and 1788,
which explain how the Constitution defines the powers and
constraints on the federal government.
Article I, Section 8 lists the few — and only — powers
belonging to the federal government. They include the power to
borrow money, regulate commerce with other nations, establish post
offices, raise and regulate military forces — and little else. In
contrast, the list of powers the Constitution does not delegate to
the federal government is almost limitless, including powers to
fund schools, regulate schools, and even require schools to teach
about the Constitution.
“Ah, but the Constitution says that the federal government shall
provide for ‘the general Welfare of the United States,” critics
reply. “Surely education falls within that mandate.”
They are right that Article I, Section 8 declares that the
powers entrusted to the federal government are intended to “provide
for the common defense and general Welfare of the United States.”
But the Constitution is not that simple. It cannot be understood in
one day of exploring the First Amendment, for instance, or, as one
Vermont high school did for Constitution Day, by examining whether
the Constitution treats children and adults differently. To be
truly understood, the Constitution requires deeper study.
This is where the Federalist Papers come in. In
“Federalist No. 41,” James Madison explains that the “general
Welfare” clause itself gives absolutely no power to the federal
government. It is, Madison explains, just an introduction to the
enumerated powers that follow it.
“For what purpose could the enumeration of particular powers be
inserted,” Madison asks, “if these and all others were meant to be
included in the preceding general power? Nothing is more natural
nor common than first to use a general phrase, and then to explain
and qualify it by a recital of particulars.”
In case this wasn’t clear enough, the Tenth Amendment of the
Constitution reaffirms that the federal government may exercise
only those powers specifically granted to it: “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.”
With all this repetition, one would think our legislators —
especially the Constitutional “experts” among them — would
understand that the federal government has only a few, enumerated
powers, and that the states and people have all the rest.
Sadly, though, at least regarding education, this is not the
case. Passage of the Elementary and Secondary Education Act in
1965, which for the first time provided federal funding for
compensatory education, was the first signal that when it came to
education, federal legislators were ignoring the Constitution. We
have since been given numerous reminders, including the creation of
the U.S. Department of Education in 1979, enactment of the No Child
Left Behind Act in 2002, and now, of course, Constitution Day.
Despite the ironic unconstitutionality of the federal
Constitution Day mandate, we can hope our students learned at least
one thing from their forced enlightenment. The Constitution should
be more than just a prop legislators keep in their pockets — from
time to time, Washington policymakers would themselves do well to
study the sacred document.
