On Civic Virtue and Mandatory Patriotism

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?

You may also like...

2 Responses

  1. A.J. Sutter says:

    I’m sorry, I don’t see how the type of program you describe is necessarily patriotic or encouraging of civic virtue, even if the school’s program isn’t critical of the Constitution. For example, wouldn’t a program that simply informs students of their rights under the Constitution, or otherwise informs them of the document’s contents in a matter-of-fact manner, also satisfy the funding requirement? Wouldn’t a program that presents your own argument for why Constitution Day is unconstitutional under the First Amendment (which, while critical of the federal statute, seems neither critical of the Constitution nor necessarily overtly patriotic) also satisfy it?

    If I am right, then your 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?” is ill-posed because it makes a logical leap: it unjustifiably assumes that civic virtue is being encouraged. If, in operation, most programs are celebratory of the Constitution, that would seem to be the right of the school administrators, but not required under the statute as you have described its contents. The Pledge of Allegiance example is distinguishable, because it does require speech expressing civic virtue (or appearing to express it). The Islam example is also distinguishable, since it penalizes certain types of speech.

    I’m no expert in this field, but may I suggest that a better hypo might be a law along the lines of “every school receiving federal funds is required to offer an educational program about the enslavement and genocide of the Tupi people in what is now Brazil.” No doubt there may be some Tupi descendants living in the US, but still, the connection to the US is quite attenuated. I suggest that as matters of degree go, the statute about Constitution Day does seem a more reasonable use of Congressional power, on the basis of content. I admit that this judgement rests on a belief that educating American students about US history and institutions, and about the laws that apply to such students, should be a higher priority for American governmental units than educating American students about historical events in other parts of the world that occurred prior to the existence of the US (with the caveat that prioritization of one doesn’t entail exclusion of the other). But neither civic virtue nor viewpoint bias is a necessary element of my judgment.

  2. nidefatt says:

    I would think the government shouldn’t be encouraging anything. Introducing, educating, exposing, that seems fine. I’d think a government imposed civics class would require study of the workings of government and philosophy, and could even require students to engage in community service, none of which would “encourage” much of anything. I kind of doubt you could truly “encourage” high school students without forming a group. Like a “American Society” that meets at lunch. That’s the kind of thing that draws the extreme and builds into ugliness. Young Russia comes to mind.