Is Constitution Day Constitutional?

Bill of Rights at CMU

Yesterday was Constitution Day, which I’ve “observed” in some fashion since 2005, which was when I saw the first annual announcement of its observance at Carnegie Mellon University. My memory is fuzzy about what I actually did on Constitution Day on most years, but I remember that in 2005 I stopped by the Posner Center to look at one of the four existing copies of the US Bill of Rights.

Last year, I watched Pittsburgh Councilman Bill Peduto speak at CMU; I remember him focusing a lot on the Bill of Rights and our need to be vigilant in protecting our rights, and telling of his concerns resulting from incidents that happened during the G-20. This year, Magisterial District Judge Hugh F. McGough was the featured speaker at CMU; he spoke about the history of the Pennsylvania judicial system and of constitutions in general.

I never actually knew or thought about the origin and nature of Constitution Day until yesterday. I was surprised.

Why is Constitution Day observed?

It turns out (and I did not know this until it was discussed during the presentation) that Constitution Day is a recent invention. It was first observed in 2005, after a bill on spending was amended by Senator Robert Byrd to include the establishment of Constitution Day. The law mandated that any school receiving federal funds had to observe Constitution Day and teach something about the American Constitution on that day (or an adjacent weekday in case of a weekend).

Posner’s objection

Happening to be present at the Posner Center, and in fact sitting next to me during the presentation, were Henry Posner III and his wife. When a question was asked of them near the end of the presentation, regarding whether they thought the institution of Constitution Day was a good idea, Mr. Posner responded in a very interesting way.

Henry Posner III

Mr. Posner quite emphatically stated that he objected to how Constitution Day was slipped into the spending bill with a “political” agenda and with a mandate and a condition (in order for a school to receive federal funding).

I thought this objection was interesting and could lead to a good debate, on Constitution Day itself of all days, about what is or should be constitutional, but I really had to leave right after the talk, so I did not stay around to discuss the matter with Mr. Posner.

Later in the evening, however, I did look up Mr. Posner, since by demeanor and words he struck me as probably having strong libertarian views. I believe I confirmed that in my Web searches.

Also, as I came up with a catchy title for my blog post, I found that others had already used my title. Someone at the George Mason University School of Law in fact had already written a little paper with the exact title, “Is Constitution Day Constitutional?”

And last year someone wrote an article, “Happy Illegal Holiday!”.

My reactions

I’m not a lawyer, and even if I were, the notion of what is “unconstitutional” is, as we have seen again and again in the divided opinions on the Supreme Court, controversial. I see the point in being unhappy with too many federal mandates, but at the same time, from a pragmatic point of view, Constitution Day observance does not appear to be too onerous, and I happen to have inadvertently enjoyed and learned from its observance at CMU over since 2005.


I enjoyed CMU’s observance of Constitution Day this year, learning some things about Pennsylvania and other state history from the Honorable Hugh McGough as well as picking up on the history of Constitution Day itself and Mr. Posner’s objection to it.

(Update of 2013-09-17)

I chose not to celebrate Constitution Day in 2013.

(Update of 2014-09-17)

I returned to observing Constitution in 2014.

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