Is Constitution Day Constitutional?

I don’t agree with everything in Dahlia Lithwick’s
Constitution Day column, but I agree about this:

You say you’ve never heard of
Constitution Day™, a federally mandated holiday. Well, that is
probably because it’s only been a federally mandated holiday since
2004, when Sen. Robert C. Byrd of West Virginia invented it in much
the same fashion that all of our greatest national festivals have
come about: He tucked it into a massive appropriations bill. The
relevant rider of the Omnibus Spending Bill of 2004 amended Title
36 of the United States Code (Patriotic and National Observances,
Ceremonies, and Organizations) by substituting “Constitution Day”
for “Citizenship Day.”

Constitution Day commemorates the signing of the U.S. Constitution
on Sept. 17, 1787, and also celebrates “all who, by coming of age
or naturalization, have become citizens.” The law itself provides
that all educational institutions receiving federal funds—which
means virtually all of them—must offer up some sort of educational
program about the Constitution. It also requires that the head of
every federal agency offer each employee educational and training
materials about the Constitution on that day. If Constitution Day
falls on a weekend, as it did in 2005, 2006, and 2011, it is
observed on the contiguous weekday.

Now, mandating the nationwide teaching of the document that
protects the most fundamental American freedoms may itself be
unconstitutional, as Nelson
Lund and the
Heritage Foundation noted back in 2006. But, of course, that is
just one of those idiosyncratic things that makes the holiday so
special.

If you follow the Heritage and Lund links, you’ll see
strict-constructionist arguments of a sort that Slate
writers do not usually endorse. I’m not complaining; it’s just odd
that this, of all possible issues, is where the site would find
room for those ideas. I suspect Lithwick just couldn’t resist the
#SlatePitch contrarianism of suggesting Constitution Day is
unconstitutional.

Whether or not she’s right about the legal question, I don’t
think federal education mandates are a good idea. In this case, the
mandate has the additional problem of being confusingly vague,
especially since “all educational institutions receiving federal
funds” is an awfully broad category. And that leads us to my
favorite detail in Lithwick’s article: “In 2005, when the law
first went into effect, massage schools and cosmetology programs
evidently flew into a collective panic over how to meet its
requirements.”

Bonus link: From the Yes, Libertarians Like To Argue
About Things You Thought Were Settled files, here is
Reason‘s 1987 debate, “Did
the Constitution Betray the Revolution?“