The Gonzaga Bulletin

Issue date: 9/23/05 Section: Opinion

Media Credit: Gonzaga University Johnathan Dingel is a senior.

In opening his presentation at the federally mandated Constitution Day event on Tuesday evening, Dr. Blaine Garvin noted that everyone present was there thanks to coercion. With an observation of irony and slight laughter, the entire issue of the constitutional legitimacy of Tuesday's mandate was dismissed. But it deserves more consideration, for it highlights something important about how modern constitutional jurisprudence differs from that of the early decades of our nation's existence.

Educational institutions from elementary to massage schools were required to teach about the Constitution thanks to a mandate slipped into a December 2004 omnibus appropriations bill by Senator Robert Byrd of West Virginia. The requirement affects any institution whose students receive federal financial aid. This silly mandate is probably unconstitutional.

Article I, Section 8, which enumerates the powers of Congress, does not grant the federal legislature any control over education, nor curricula. Given that the 10th Amendment reserves non-enumerated powers to the states and people, shouldn't Byrd have been concerned about intervening in matters handled by local school boards? And even if one thinks that Congress may legitimately fund education through its spending power, mandating particular curriculum content, such as teaching about the Constitution, raises First Amendment questions.

At Tuesday evening's presentation, Garvin and Dr. Michael Leiserson traced the history of the United States' transformation from republic to democracy, noting that the founders had intended to prevent such a shift. An appropriate complementary presentation on the Constitution would have followed America's jurisprudential shift from a presumption of liberty to a presumption of constitutionality.

The modern Constitution has little resemblance to the Constitution of 1787. The original interpretation of the constitution held a presumption of limited government. As Chief Justice John Marshall wrote in 1803: "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written." These limitations held for many years and were largely upheld by legislators and executives, but not the Supreme Court.

For example, Grover Cleveland vetoed a bill appropriating money to aid farmers suffering a Texas drought in 1887, noting that he found "no warrant for such an appropriation in the Constitution." When Congress sought to regulate alcohol, it passed the 18th Amendment in 1919, granting itself the enumerated power to do so.

Over time, however, numerous court decisions (most importantly, United States v. Carolene Products Co in 1938) expanded federal power so to create a presumption of constitutionality, whereby citizens objecting to federal legislation must demonstrate that it violates a particular right afforded in the Bill of Rights, excluding the Ninth. That presumption has resulted in the absurd discovery of protections from the government in the "emanations and penumbras" of other rights. A constitutional understanding of enumerated powers and non-enumerated rights would not result in such jurisprudence.

Americans fond of the Constitution ought to ask themselves why some clauses of the document, such as the Necessary and Proper Clause, the Commerce Clause, and the Ninth Amendment, have fallen dormant, and why American government today seems to have non-enumerated and unlimited - rather than enumerated and limited - powers. Perhaps universities like George Mason and Vanderbilt celebrated Sen. Byrd's day best - law professors at those schools debated whether the federal mandate was unconstitutional.

Johnathan Dingel is a senior at Gonzaga.

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