The Public Policy

An Unconstitutionally Teachable Moment

What did anyone learn on Sen. Robert Byrd's Constitution Day?

By 9.23.05

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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.

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About the Author

Neal McCluskey is an education policy analyst for the Cato Institute.