Constitutionality of Constitution Day debated at forum

When Vanderbilt’s administration contacted Law School Dean Ed Rubin about a new federal requirement requiring that every educational institution receiving federal funds celebrate Constitution Day, Rubin initially considered submitting a list of constitutional law classes currently in session.

But, according to Rubin, the new mandate, enacted as part of the appropriations bill of 2005 and sponsored by Sen. Robert Byrd, D-W.Va., carries an implicit threat. Institutions that fail to comply with the mandate to “celebrate Constitution Day” by teaching the Constitution risk losing their federal funding, and Vanderbilt receives millions of dollars of federal funding each year, mostly grants supporting medical research.

“This requirement passed without hearings and without any discussion,” Rubin said. “It amounts to forced speech, which means that we’re required to celebrate the Constitution by violating it.”

Rubin chose to comply with the requirement by organizing a forum to debate its constitutionality. “I can think of no better way to honor the Constitution, and to educate students of all ages about its meaning, than to discuss the constitutionality of this edict,” he said. The forum, held Sept. 21 in the law school’s Flynn Auditorium, featured Rubin and law professors Rebecca Brown, Tom McCoy and Suzanna Sherry.

McCoy discussed three doctrines for determining the constitutionality of any legal requirement to support Rubin’s conclusion that the requirement to celebrate Constitution Day is unconstitutional. “If the government sets out to deliberately interfere with your speech by prohibiting your speech or coercing speech, that is absolutely unconstitutional,” McCoy said. “However, an indirect or accidental interference does not violate the constitution if the objective was not to interfere with your speech. One has to argue in this case, this is not accidental.”

Citing a recent survey of more than 100,000 high school students in which only half said newspapers should be allowed to publish freely without government approval of stories, Brown said, “We need Constitution Day.”

The requirement would be unconstitutional, Brown noted, if the government dictated the content of the program. “What they’ve asked us to do is hold an educational program,” she said. “The question is whether the government required us to adopt any point of view, and they didn’t. We are simply required to provide an opportunity for speech to be given by anyone.  If we had decided to invite Osama bin Laden to discuss the Constitution today, that would satisfy our obligation under this requirement. That’s different from compelled speech, because we’re not being told what to say.”

Sherry offered a historical perspective, noting that the Constitution had two serious flaws – an unworkable electoral process and that “the Constitution not only permitted, but encouraged slavery” – which were subsequently corrected. “That suggests that we haven’t caught them all,” she said. “It’s important that we remember that the Constitution is not perfect. A law may be ill-conceived and stupid and still be constitutional. Deciding whether a law is actually unconstitutional is what judges are for.”

The forum was taped by C-SPAN.