I volunteered at my daughter’s second-grade class one fine morning in early September.  The last thing I intended was deliberating the Constitution.  As I arrived I found the school children participating in “s’cool moves,” which is a series of sensory integration exercises designed to help students cross the midline, feel their bodies in space, focus their concentration, and generally prepare for the day.  I came with guitar in hand to play Woody Guthrie’s “This Land is Your Land,” which is one of my daughter’s favorites.  Guthrie wrote the song in the middle of the Great Depression in response to the more popular “God Bless America.”  Guthrie found that song too sanctimonious given the hard times ordinary people were facing.  Guthrie originally titled his now infamous song “God Blessed America for You and Me.”  Of course “This Land is Your Land” is now sung in classrooms throughout the nation as a nationalist song and the verses critiquing private property are left out as are references to Guthrie’s affiliation with the labor movement.  What I found interesting about my daughter’s classroom was that the s’cool moves were being performed to Lee Greenwood’s “God Bless the USA.”  The chorus sings: “And I'm proud to be an American/Where at least I know I'm free/And I won't forget the men who died/Who gave that right to me/And I gladly stand up next to you/And defend her still today/Cause there ain't no doubt I love this land/God bless the U.S.A.”  The lyrics stopped me in my tracks. 

Wouldn’t playing “This Land is Your Land” immediately following “God Bless the USA” change the meaning of Guthrie’s song?  What should I—as a father, citizen, and historian—say to the school children?  Should I explain to them the mixed messages the songs convey?  Should I explain the difference between patriotism and nationalism, sanctimony and reverence?  I should at least correct the song’s grammar and use of gendered language.  Or should I explain that rights are inalienable—meaning that no “man” or women had to give them and certainly did not have to die in the process?  All of a sudden it was not just the kids who were doing mental exercises to the music.  And, as an aging academic, I knew these exercises were going to hurt.  My thoughts had certainly crossed many lines, I was struggling to find my position in the space of that classroom, and I certainly did not feel prepared to give a history lesson on the Constitution.

Yet a history lesson on the Constitution is exactly what was needed.  On December 8, 2004 President George W. Bush signed H.R. 4818, the Consolidated Appropriations Act (Omnibus Spending Bill), which mandated that educational institutions receiving federal funds celebrate the Constitution on September 17 or the school day immediately preceding or succeeding it.  The law, 650 pages in total, provided $499.5 billion in spending that went mostly overseas (and not to schools).  It nearly failed to pass when the Senate threatened a resolution that would have canceled the “privacy shield” that was intended to protect information found on tax refunds.  As Congress debated the bill, several amendments or “riders” were attached to it in the waning hours of negotiation.  President Bush signed the bill during the lame duck session—that is in December before the new Congress and its new members would take office and might amend the bill’s content.  One of the bill’s riders was an amendment to Title 36 of the United States Code (Patriotic National Observances, Ceremonies, and Organizations) that substituted “Constitution Day” for “Citizenship Day.”  The amendment read: “Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.”  In other words, educators had to teach about the Constitution no matter if it was covered in other parts of their curriculum.  But what do we teach?  The question was already on my mind before I entered my daughter’s classroom since my Provost appointed me to head-up the celebration on our campus.  Greenwood may not have had any doubts, but I sure did.  Who could I turn to for guidance?

Senator Robert C. Byrd (D-West Virginia) had some ideas.  After all, it was Senator Byrd who attached the “Constitution Day” rider to the Omnibus Spending Bill.  Senator Byrd explained his thinking on his website: “I carry a copy of the U.S. Constitution with me wherever I go . . . I refer to it and study its provisions every day—but what about you?”  This was an excellent question.  Should I have carried a copy of the Constitution with me to my daughter’s classroom?  Would that have helped me explain the concept of inalienable rights better to the students?  Perhaps I should have also brought a copy of the Declaration of Independence, in which Thomas Jefferson clearly articulated these rights of life, liberty, and the pursuit of happiness.  Perhaps there should be a federal law mandating that we carry a copy of the Constitution and Declaration of Independence with us at all times.  Would these be the best ways to defend freedom? 

Senator Byrd seemed to think so.  “The best way to make that revolution succeed and endure for future generations was to create and run a successful government,” Senator Byrd dictated, “a government where the power derived from the people themselves and not a king or emperor.  The Framers saw to it that we inherited a plan for government that provided important checks and balances against the corrupting influences that power can often bring.”  Was Senator Byrd accurate in his historical assessment of what the Framers intended by writing the Constitution?  His Democratic colleague, Massachusetts Senator Ted Kennedy, believed his understanding of the Founding Fathers was sound by complimenting his colleague, “Bob Byrd personifies what our Founding Fathers were thinking about when they were thinking about a United States Senate.”  Maybe Senator Kennedy was right.  Maybe Senator Byrd knew what the Founding Fathers had intended but mistakenly left out of the Constitution: its mandated celebration.  Or maybe Constitution Day was itself a product of the corrupting influence of power?  At that point, I felt sure I was doing more exercises than the children.  Was my hesitation to celebrate the Constitution evidence that—using Senator Kennedy’s logic—I did not know what the Founding Fathers were thinking when they were thinking?

On the same day that President Bush signed HR 4818, NBC aired “In the Room,” the eighth episode in the sixth season of the network’s award-winning drama series, “The West Wing.”  In the episode, magicians Penn and Teller provided a cameo appearance in which they burned an American flag that was folded inside a copy of the Constitution.  Or, as the episode’s plot asked, did they?  “What if we burned a flag not in protest but in celebration of the very freedoms that allow us to burn a flag,” Penn asked, “the freedoms that everyone who has ever worked in this magnificent building [the White House] has pledged to preserve and protect?”  The episode suggested that what was as important as the act of doing something was the intent of it. 

Is it possible then to celebrate an occasion without performing a public ritual?  Is it possible to perform a public ritual without celebrating the occasion?  Should the Constitution be celebrated for its content or for its symbolism?  Should we require the celebration of other symbols of America—baseball, hotdogs, apple pie and H1 through H3?  Impressed by Penn’s logic in the episode’s scene, the deputy chief of state (played by Bradley Whitford) asked “Did you go to law school?”  “No,” Penn replied, “Clown school.” 

Which brings my thoughts back to Constitution Day.  Can students burn the Constitution to celebrate the ideals of freedom that it represents?  If schools celebrate the Constitution and its ideals in a clownish, sanctimonious, sophomoric or, worse yet, a soporific way would it violate the law or its intent?  Or to put it in a final and more concrete way, is celebration covered under the First Amendment rights preventing Congress from establishing a religion, allowing for the free exercise thereof, abridging the freedom of speech, and the right to peaceably assemble?

Certainly Senator Byrd was not the first to suggest that the Constitution was the culmination of the revolutionary movement.  The early supporters of this ideal, of course, were some of the Founding Fathers themselves.  The Federalist Papers were the first record of the Framers’ intent behind the Constitution.  And of those papers probably Federalist #10, by the “Father of the Constitution,” has received most notice.  James Madison believed the Constitution (without the Bill of Rights) to have created an effective government that would, through the separation of powers, check factions from gaining tyrannical power.  This begs another question about Constitution Day.  Are we to celebrate the Amendments that came after September 17?  Madison became an advocate for the Bill of Rights by introducing amendments during the first session of Congress; however, he never believed them to be necessary.  Content or intent, which do we celebrate? 

Senator Byrd was also not the first to celebrate the intent of the Founding Fathers.  Many historians attributed that to President Abraham Lincoln in his Gettysburg Address.  By proclaiming that “Four score and seven years ago our fathers put forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men were created equal” Lincoln commenced a cult of the Founding Fathers.  Out of the Civil War came our national celebration of Memorial Day.  But the celebration’s intent was to recognize both Northerners and Southerners who died.  Does this mean that we should commemorate the Anti-Federalists who did not support the Constitution?

The first historian to challenge the theory that the Constitution was created out of the spirit of the Revolution was Charles A. Beard in An Economic Interpretation of the Constitution of the United States (1913).  To Beard, the American Revolution had been a class war: the Patriot have-nots versus the Loyalist Tories.  Rather than bequeathing a revolutionary spirit, the constitutional convention and its product were a counter revolution intended to return those who had been removed from power back in control.  Personal gain was the delegates’ motivation; they wanted to set the foundation of a capitalist society and protect the ruling economic elite.  Are individualism and the capitalist ethic values worthy of celebration on Constitution Day?  When children are encouraged by organizations like Constitution Day, Inc. to recite the Preamble to the Constitution—“secure the Blessings of Liberty to ourselves and our Posterity”—are they to take the meaning literally? 

Beard’s criticism of the Constitution lived on through other historians.  Howard Zinn noted that “As many as half the people were not even considered by the Founding Fathers . . . They were not mentioned in the Declaration of Independence, they were absent in the Constitution, they were invisible in the new political democracy.  They were the women of early America.”  Other historians like Mary Beth Norton, in Liberty’s Daughters (1980), suggested that the Revolutionary period provided a moment of gender equality that was unsupported and eventually undone by the Constitution.  Should we celebrate gender inequality as part of Constitution Day?  Frederick Douglass had to face this question in 1852 when the Rochester Ladies’ Anti-Slavery Society asked him to celebrate the Fourth of July.  Douglass accepted the invitation but he did not celebrate the Constitution stating, “The existence of slavery in this country brands your republicanism as a sham, your humanity as a base pretence, and your Christianity as a lie.”  And didn’t Sojourner Truth make the Revolution succeed and endure for future generations when she asked “Ain’t I a woman too?”  But would Greenwood, Byrd, Kennedy or others think Guthrie, Beard, Zinn, Norton, Douglass or Truth less patriotic because they did not celebrate the original Constitution or for not thinking that the Founding Fathers were thinking when they were thinking?

So what did I decide to do in my daughter’s class?  Not wanting to stretch too far and hurt too many people (especially myself), I shied away from articulating my thoughts.  But I took advantage of the teachable moment.  The students voted on whether they should remain in their seats or sit on the floor as I played my guitar.  I used it as an opportunity to talk about majorities and minorities and how the Bill of Rights protected minorities by insuring inalienable rights—rights that do not have to be given and cannot be taken away.  Perhaps that was the best celebration of the Constitution.  After all, as Senator Byrd said, “But we cannot defend and protect this dream if we are ignorant of the Constitution’s history and how it works.  Ignorance is ultimately the worst enemy of a people who want to be free.”  Of that “there ain’t no doubt.”  Rather than codifying celebration or forcing a misplaced historical discussion (which no doubt would be seen by many as questioning the Constitution and therefore not celebrating it), perhaps the fathers of Constitution Day should grab a guitar and visit a local school.  They could then sing the final stanza of Guthrie’s song: “Nobody living can ever stop me/As I go walking that freedom’s highway/Nobody living can make me turn back/This land was made for you and me.” 

And what happened on my campus on our well-advertised Constitution Day?  Our students celebrated the day in the best way they could: nobody showed up!