Unconstitutional Constitutionalism

My colleague David Boaz passed on to me an essay from the Washington Post that I had missed while away. Sanford J. Ungar, a distinguished journalist and president of Goucher College in Baltimore, took Senator Robert Byrd (D-W.Va.) to task for inserting into the omnibus spending bill for 2005 a section that “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.”

I’m all in favor of more people learning about the Constitution of the United States, partly because they might learn that the federal government has no authority to require private or state educational institutions to present annual programs on the Constitution. They might, for example, read Article I, Section I, which states,

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Then they might ask why “Powers” is plural, rather than singular (“Power”) and whether “herein granted” might mean that some powers might not be “herein granted.” They could check by reading Article I, Section 8, which starts with “The Congress shall have Power To ….” and then lists a series of powers. They could look to see whether requiring “that every educational institution in the country receiving federal funds present an annual program on the Constitution” is on the list. (For extra credit they could read Amendments IX and X, which make explicit the system of the Constitution, which consists of the enjoyment by the people of both enumerated and unenumerated rights but by the state of only enumerated powers.)

And then….they might think about casting their votes for Senators who would fulfill their “Oath or Affirmation, to support this Constitution” (Article VI).