William & Mary

Van Alstyne appreciates the irony of Constitution Day law

Van Alstyne IronyConsidered one of the top constitutional legal minds of his time, William W. Van Alstyne, Alfred Wilson and Mary I. W. Lee Professor of Law at the College’s Marshall-Wythe School of Law, has given countless lectures and presentations on his favorite subject—the world’s oldest Constitution. However, those programs were never part of a law mandated by Congress.

So when Van Alstyne was first asked to present a program at the College on Constitution Day, a new Congress-approved requirement for institutions that receive federal funding, his first thought was of the irony. Instead of lawmakers and the federal government urging institutions to consider some sort of commemorative activities, Van Alstyne said, the new law basically means Congress is saying “commemorate the Constitution or else.”

“I thought this was a very ironic way to be honoring the Constitution,” said Van Alstyne. “What right and power does Congress have to order institutions of higher learning to depart from whatever curriculum they feel is most appropriate? It’s about academic freedom and I’ll raise this question with the audience,” he added.

Van Alstyne will present the program, titled “Some Reflections on the World’s Oldest Constitution and How Congress Chose to Honor It,” at noon on Sept. 16 in Room 101 inside Andrews Hall on the main campus. The presentation is free and open to the public. Van Alstyne said he will encourage audience participation.

Part of the massive appropriations bill approved by Congress last year was a new law that now requires every school that receives federal funding, including public colleges and universities, to present a program on the Constitution. The law does not specify what type of program but stipulates that institutions that do not comply run the risk of losing federal appropriations.

Van Alstyne said it is similar to a case set to go before the Supreme Court later this year that deals with military recruitment on campus. The case, Rumsfeld v. FAIR, is centered in a federal law that requires colleges and universities that receive certain types of federal aid to allow military recruiters on campus. Because of the military’s “don’t ask, don’t tell” policy, some colleges and law schools view this requirement as an impermissible intrusion into their First Amendment rights.

Van Alstyne will serve as a judge when the case is debated later this month during the moot-court argument of the Supreme Court Preview, the annual program sponsored by the law school’s Institute of Bill of Rights Law.

“The law schools believe they should not have to open their facilities and assist any employer, whether it’s the federal government or otherwise, that discriminates,” said Van Alstyne, explaining that some schools sued the government claiming the law, which states that schools that do not comply risk losing millions in federal funding, violates institutional free speech and academic freedom. Most legal analysts, including Van Alstyne, expect the government to win in the Supreme Court.

“It’s a difficult case because nothing in the law forbids the schools from publishing their sentiments. They can complain about the law or explain to their students that they don’t condone it,” he said. “I’m using this as an example because all of these tie into the way in which we celebrate Constitution Day.”

He added, “Increasingly, Congress uses its spending powers with strings attached to coerce any number of things. The idea is that if you do not commemorate Constitution Day, you could be ineligible for federal funds.”

Officially, the new holiday is to be celebrated each year on Sept. 17 to mark the signing of the Constitution on Sept. 17, 1787. However, some flexibility is granted when the holiday falls on a weekend, such as on Saturday this year.

For those wishing to get an introductory course to the Constitution or those wishing to simply refresh their memory from high school government, few speakers come with the credentials of William W. Van Alstyne.

Before joining the Marshall-Wythe faculty in 2004, Van Alstyne had a distinguished 39-year career at Duke University Law School, where he developed a reputation as one of the country’s foremost constitutional law scholars.

For example, Van Alstyne has twice been chosen in polls of his peers as being among those most qualified for appointment to the Supreme Court. A recent study named him as one of the 50 most-cited legal scholars of all time.

In addition, he has been a Fulbright Fellow in Chile, a senior fellow at Yale and a visiting faculty member at law schools across the nation, including the University of California at Berkeley, the University of Chicago, the University of Michigan, the University of Pennsylvania and Stanford. He has also lectured and taught in countries abroad. He has published numerous articles in the nation’s leading law journals and has written books such as Interpretations of the First Amendment, and The American First Amendment in the Twenty-First Century, the principal textbook in its field.

While the irony of the federally mandated Constitution Day is not lost on him, Van Alstyne said he always enjoys discussing the Constitution. It is a subject, he said, that combines courtroom law, history, political science and philosophy.
“It’s a subject that doesn’t run out on you. There are always other things to look at,” Van Alstyne said. “You can’t spend a few years mastering it and move on.”

Every attendee at the Sept. 16 program will receive a copy of the Constitution. Van Alstyne also will discuss its history and some of the amendments that helped to shape fundamental law in the United States over the past 200-plus years.

“The program will include some reflections on the history of the world’s oldest Constitution and its improvements over time through amendments,” he said. “I’ll also discuss why we are there—because Congress has insisted on it.”

On his legal opinion on the Constitution Day law, Van Alstyne said, “It is not necessarily unconstitutional for Congress to act in this way; rather, it may simply be in exceedingly bad taste … and especially ironic as well.”