It is an honor for me to be invited to comment on James’s and Linda’s excellent and thoughtful new book Ordered Liberty: Rights, Responsibilities, and Virtues, especially as I look at the other invited commentators. The book is certainly worth the sustained effort and attention that Concurring Opinions will facilitate this week with our various posts and comments. I look forward to participating.
(This may be the first post out of the gate, but no one should read anything into the temporal ordering other than that I am jet lagged, awake at London time rather than Boston time.)
I want to prompt a conversation about Chapter 5, “Government’s Role in Promoting Civic Virtues,” in which James and Linda examine the “formulative project” of fostering “capacities for democratic and personal self-government.” They use as an opening foil an op-ed I wrote in the New York Times in 2011 arguing that Constitution Day is a bad idea and “probably” unconstitutional. In that essay and in a couple of others, I have revealed Constitution Day to be a bete noire of mine. Constitution Day, as you probably know if you’re an academic, is a federal mandate dating from 2005 that any school receiving federal funds — public or private, kindergarten or law school — conduct some kind of educational program on the constitution on or about September 17 of each year. My basic argument is that it operates as a federal content-based mandate on those schools and thus amounts to coerced speech under the First Amendment. More broadly, I argue that coerced patriotism is a Bad Thing, using as my text Justice Jackson’s admonition in West Virginia v Barnette: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.”
James and Linda think I am mistaken, saying that there is little chance the Court would strike down Constitution Day as an unconstitutional condition, and that it does not amount to mandatory patriotism because schools can meet their obligations by hosting educational programs that are critical of the document and its heritage. And I also take them to say that gentle prodding in favor of civic education, especially about a topic as central to democratic life as the Constitution, is not a Bad Thing but could be a Good Thing.
So here are a couple of points and questions about this disagreement, with the hope of prompting some of the other commentators to weigh in.
I certainly agree with the descriptive point about the Court not likely striking down Constitution Day as an unconstitutional condition. The “doctrine” of unconstitutional conditions is a hash — compare Rumsfeld v FAIR or Rust v Sullivan (allowing conditions) with Speiser v Randall or Legal Services Corp. v Velazquez (disallowing them). And Chief Justice Roberts’s bizarre opinion on the Medicaid expansion in Sebelius last year makes it worse, though it actually strengthens my argument about Constitution Day. (If the threat of the loss of Medicaid funding is coercive because it is “economic dragooning that leaves the States with no real option,” then so is the loss of education funding.) In any event, the Court is unlikely to feel so constrained by the “doctrine” of unconstitutional conditions to strike down a law that most feel imposes trivial obligations in exchange for significant funds. (Though — just to allow me to vent for a moment — that characterization makes the fact that the condition acts as coercion fairly clear.)
So I will assume for the sake of conversation that the question of governmental authority is settled. So that leaves the question of rights. And Ordered Liberty helps us get a handle on that question, not only with regard to Constitution Day but with broader questions of the state’s role in fostering “civil tolerance.”
But my question: Does our judgment of what constitutes a valid exercise of the federal government’s power to encourage civic virtue depend on the content of what is being encouraged? And how does that play into the rights dialogue? Here’s a law professor’s hypothetical. If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional? Or, “any school receiving federal funds is required to begin the school day with a Pledge of Allegiance, in assembly, led by the Principal or her designee”? Are these worse because there is a greater viewpoint bias imbedded in them? Does it matter that, in operation, the vast majority of institutions that mark Constitution Day in fact do so with celebratory rather than critical curricula?