Under 18 U.S.C. § 106, September 17 is designated as Constitution Day and Citizenship Day. It commemorates the formation and signing on September 17, 1787, of the U.S. Constitution and celebrates American citizenship. The statute encourages state and local governments to instruct the people “in their responsibilities and opportunities as citizens of the United States.” Since 2005, all educational institutions receiving federal funds of any kind are required by law to provide programming to observe the occasion.
So what sort of lessons should local governments and educational institutions construct? A good start would be the First Amendment and how the guarantee of free speech is trampled by a federal mandate that requires schools to teach about any project, salutary or not, of the federal government. It might also be pointed out that the Constitution contains no “education power” and that all federal meddling in the school system, such as No Child Left Behind or Constitution Day itself, is patently unconstitutional.
After these attention grabbers, the lessons might turn to the original structure and design of the Constitution. The Federalist Papers could be a helpful tool. For example, in Federalist No. 45 James Madison observed that “[t]he powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which remain in the State Governments are numerous and indefinite.” The Father of the Constitution went on to explain that the federal government would only be involved in “external objects” such as “war, peace, negotiation, and foreign commerce.”
At this point, the stunned audience will start asking questions. If what Madison said was true, then why does the national government have books of statutes and regulations that can fill a library? How is it that subjects like local crimes, farming, and healthcare are under the jurisdiction of Washington, D.C.?
In the face of disbelief and quizzical looks, the lesson should address specific constitutional provisions that have been erroneously interpreted to give the federal government plenary power. Introduce the audience to the General Welfare Clause. The Constitution authorizes Congress to “pay the debts and provide for the common defense and general welfare of the United States” and then immediately enumerates the specific powers of Congress.
Madison, writing in Federalist No. 41, rejected the claims of the opponents of the Constitution that the General Welfare Clause “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” The Anti-Federalists’ objection to the clause might have weight, Madison noted, but for the careful enumeration of powers that followed this introductory language. Madison continued: “For what purpose could the enumeration of particular powers be inserted, 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.”
Although Madison’s reasoning is sound, in 1936 the Supreme Court decided that it knew better and held that the spending of money “is not limited by the direct grants of legislative power found in the Constitution.” Congress can spend money, or withdraw money given to the states, to reach almost any object it considers conducive to the national welfare.
While the General Welfare Clause is an important part of the story, the lesson should not give short shrift to the Commerce Clause. The purpose of the Commerce Clause was to establish a free-trade zone within the United States by removing internal trade barriers—to promote the unhindered traffic and exchange of manufactured items and foodstuffs. When the Constitution was drafted, commerce was understood, as explained in Samuel Johnson’s Dictionary of the English Language (3d ed., 1765), as “intercourse, exchange of one thing for another, interchange of anything; trade; traffick.”
The Supreme Court, to the delight of Congress, has redefined interstate commerce as “economic activity.” If an activity substantially affects (or potentially could affect) the national market, then Congress may regulate the activity via the Commerce Clause. Because almost any activity conceivably could have some effect on the economy, Congress has used the Commerce Clause to address local policy matters. With the Commerce Clause, Congress can even tell a farmer how much wheat he can plant for personal consumption and use on his farm.
All this might be too much for the audience to digest. If anyone wants to hear more, the lesson could touch on abuses of the Necessary and Proper Clause, the treaty power, and the judicial power. There’s plenty to choose from.
Constitution Day, although itself unconstitutional, provides local governments and educational institutions a chance to teach the people about First Principles and how the federal government has claimed virtually unlimited authority. Let’s make those lessons count!
Watkins is a research fellow at Independent Institute and author of Patent Trolls: Predatory Litigation and the Smothering of Innovation. (Independent Institute, 2014)