I looked for one such page, but it didn't exist.
And then, with a little hard work, it did.
I hope you enjoy it more than I did making it, and it helps reinforce your lessons on Federalism.
I woke up one morning thinking, what if there was a facebook page that summarized the history and evolution of Federalism? What if it tied together the argument between North and South from before the penning of the Constitution through Reconstruction to today? What if we could see the roots of modern insurgencies in our own political parties in such a way that it made it easier for students to understand?
I looked for one such page, but it didn't exist.
And then, with a little hard work, it did.
I hope you enjoy it more than I did making it, and it helps reinforce your lessons on Federalism.
Teaching government gives you really limited time to talk history, and so like so many of us (including my text book), when talking Constitution and Founding Fathers, I often paint a narrative of sages in a room, quietly and adeptly carving out a perfect rule book that will be cited (much like officials during any organized sport)... revered it as crafted by immortals with infinite wisdom... who created a harmonious blend of state and federal governments... you know... a FEDERAL structure.
Yet, in reality that structure was far less ideal and perfect than I have time to discuss.
Well, it's time to set the record straight, lovgubbers.
I'm gonna say it: The Constitution... (gasp!!!)... sucks.
Okay, before I go any further, remember it's the best worst government out there... we're all flawed... (Fed 51: if men were angels, no government would be necessary) we act in self interest, and to get the best result we band together and play by a set of rules to keep everyone honest. You know, keep the playing field as equal opportunity as possible. But let's talk about the Constitution's evolution towards being less and less sucky. (Those are technical terms there.)
Unequal Equality for Some.
I love going back to the Constitutional Convention and talking about Madison, and his best editor in chief, the suave and sophisticated Gouverneur Morris.
He was hot, smart, and had a peg leg. He gave us the only thing that anyone can remember of the Constitution, We the People.
And he really thought a lot about that issue of We the People. When not financing the Revolutionary War, courting chicks, or advocating for a national currency to pay off all the War debts, he was serving in the New York legislature.
So, on August 8th... many days into the hot summer of 1787, he laid out his concerns about the strength of the Constitution.
After watching the Articles fail due to a weak central government lacking the ability to fund itself etc., he watched new chains of failure being built into the newly proposed government.
Namely, the Slave South was watering down the powers of a central government by asking for the following concessions. These concessions were necessary just to get the South to agree to the proposed Constitution in the Convention:
This is the backbone of power for the slavocracy in DC through, well... hell... 1866.
Here is where the Constitution sucks.
It was not written to be equal. No way, no how.
It was written to benefit southern slave holders... and the North. Enter Gouverneur Morris. He implored his fellow members to not stand for the Constitution, stating he "never would concur in upholding slavery." (Not true, he eventually signed it in September of 1787.) He felt slavery was "in defiance of the most sacred laws of humanity [as it] tears away [slaves] from their dearest connections & damns them to the most cruel bondages."
So, with that outburst, and not much of a rebuttal from the south... and even less action to reverse this horrible deal with the South, all of these proposed Southern concessions went into the Constitution.
What became apparent over time is that the South ruled supreme over politics and governance in DC. They were over-represented through the federal ration; they were able to find 'copperheads,' or southern sympathizers in Congress from the North, who realized that the free labor of the South kept the textile mills in Lowell running cheaply among other things.
States trump Federal
Oh, and many bad things happened.
You had the rise of Jacksonian Democracy... which was more of an oligarchy based on southern elitism. States reigned supreme. The federal government could not be trusted, with its own brand of elitism (most evident in the national bank)... so things get far more local; far more like a confederation.
Things like contracts, property ownership, voting, marriage, custody, and local businesses are really left to the states to decide. They wanted education to be left to families and not state governments. They felt little compassion for minorities of any type (ahhhem. Trail of Tears?) They hated a national currency. They were suspicious of special interest and corruption.
The only thing that they did want the feds to do is to make good on the promise to return property lost. Like slaves. Like, if you were needed to help capture a slave, you could be put into the posse comitatus and were compelled by law to go get that slave. Same thing of the military. Go and get that slave.
Guess what? That means we were more a confederation than a federal government. True. I swear.
Great, more white boys could vote in Jacksonian democracy, but interestingly enough... voting in it of itself was viewed at the time as a representative act, and were called political rights. What was more important on a daily basis were civil rights, and those were created, nurtured, and tended to in the state legislative houses primarily.
Enter the Second Constitution
Well, we all know what happened. More strife over slaves out west, the Nullification Crisis, the creation of the Republican Party, Lincoln, Succession, Civil War, Emancipation, Victory, Assassination and finally... Reconstruction.
Here, there is an opportunity to rewrite the Constitution... the first real opportunity since 1789. Despite having one of the worst Presidents ever in the White House with Andrew Johnson (which actually was a blessing in the long run, I guess... he was unsuccessful in stopping the 14th amendment.) we had amazing leaders who have control over the Congress as Republicans. In the wake of the War and Assassination, there is a great rush to push through Congress abolitionist acts. The congressional leaders, in Thaddeus Stevens, Charles Sumner, William Pitt Fessenden, Lyman Trumbull, John Bingham; coupled with motivated citizens, Frederick Douglass, Susan B. Anthony, Elizabeth Cady Stanton, and Robert Dale Owen principally among them, found quickly that legislation on its own would never be supported by the self-aggrandizing, narcissistic, and alcoholic Andrew Johnson.
Johnson, arguably one of the earliest, most powerful presidents, was a former poor southerner who held the elite in South in contempt, and hated the free labor in slavery even more. Once the South was forced to court Johnson in order to be represented in Congress once again (something that Johnson single handedly oversaw despite objections from Congress), Johnson cared little for the slaves, as they were race of people that he could get nothing from but caused so much pain in his life... and continued to be a threat to the poor southerners through Congress's proposed land acquirement, political and civil rights, and economic opportunities
So he vetoed every bill... did the least possible he could to end riots in Memphis and New Orleans.
Congress went around him. The only way to bypass Johnson was to pass an Amendment that forced reconstruction back into the hands of Congress; forced the President to faithfully execute laws; forced a republican form of government in all states.
The battle over the language of the 14th amendment was intense... and covered issues of a FEDERAL ASSUMPTION of guaranteeing all civil rights to slaves. Necessary, because the lack thereof leading up to, during, and directly after the War was the grounds on which Congress felt the federal government had any authority... Its the Guarantee clause of the Constitution in Article IV... that each state should have a republican form of government... and in that citizens should be uniformly entitled to their essential (meaning amendments 1-8) rights...
Jacksonian Democracy, the Constitution, and even the 13th Amendment which did not give Congress expressed powers with which to legislate barely dealt with these civil rights, and since the language was so barren... without stating who has the enforcement power of these rights... folks were finding themselves without these rights in the face of the states. And remember, the states were the government entities who dealt with these issues previous to the passage of the 14th Amendment.
Blacks, Native Americans, Asians, Hispanics... Women... (and instead of remaining one cause together, all those without civil and political rights... the causes fractured and began fighting each other, literally causing Stanton and Anthony to ask who needs the vote and civil rights more... only to be told (in essence) to sit down and shut up.) All of these folks lacked both political and civil rights.
The most important part of the Fourteenth is the first clause... the clause that allows "Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all." (Stevens) This puts equal protection of civil rights square in the enforcement of Congress (omitted from the 13th amendment, meaning 13th had no teeth.) Senator Howard, who was in charge of shepherding the amendment through the Senate, pointed out that the amendment "establishes equality before the law, and gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty." It is, in his view, the Constitution's promise of a republican government.
But what it was not, despite the due process clause, privileges and immunities clause and the equal protection clause, what it remains as not today... is a guarantee or a protection of political rights.
Remember, political rights were not expanded to all. There was concern that there were citizens who did not earn that right... and could not be left to hold that right. Education, experience, and clout were all necessary to be eligible to vote.
Thus, women, blacks, minorities... were not to vote.
Political rights, while recognized as necessary by many, including Owens, Stevens, Stanton, Douglass, and Anthony... were the last to come on line. This is the true democratization of our republic... The extension of political rights made it highly improbable that these rights would be removed. It prevents every class, every gender, every race, from being deprived their civil rights on any ground.
And with the passage of the Fifteenth, the Nineteenth, the Twenty-Sixth amendment, the Constitution sucks less.
Who gets to enforce this mess?
So, we know that the next hundred years after the passage of the Fourteenth Amendment have been tumultuous. I mean, its not like overnight Southerners and Copperheads everywhere said, "You got me! You win!"
Historians point out to how the New Orleans massacre led to the evolution of the second phase of the Civil War. One in which politicians and judges everywhere did a generally half-assed job of crafting, enforcing, and interpreting federal law regarding civil and political rights among the races. And oh yeah, the Jim Crow South, the KKK... and a whole hand full of overt and covert attempts to mess with blacks in the South.
We've gotten better, but there is evidence that the fight is no where near over.
Let's be frank: Rules are made to be bent, broken, and bruised up. Why? Cause we are all acting in self-interest, generally. Occasionally we have folks like the Warren Court, like Eisenhower, like Kennedy, like LBJ... who get it... and do their job.
And it is getting more frequent that minorities are faring better. (As well as evidence we are backpedaling, too. Lots more than I have time to publish.)
But the interpretation of this amendment has gotten crazier.
I have waxed philosophic about that whole are-corporations-people question... and if we look to Santa Clara County vs Southern Pacific Railroad (1886) where Roscoe Conkling pulls out the previously missing private minutes of the Joint Committee that penned the 14th amendment to argue that the authors would have included SPR as a person... and the court agreed! While the Harlan Court decision is not itself controversial, as it dealt with a question of federal taxation of property, the usage of stare decisis and precedent has given us things like McConnell, Hobby Lobby, and McCutcheon.
And while we are talking courts, let's take a minute to remember the fifth clause of the Fourteenth Amendment... which allows CONGRESS to enforce by appropriate legislation the provisions of the article. Who should decide? Congress? The President? The Courts?
True, the Courts are getting involved in highly political matters... where possibly they should not be treading... Yet, so is Congress... whether you look at the controversial Religious Freedom Restoration Act... or the Affordable Care Act... each acting in different ways on states and citizens alike... And so is the President, as Obama has with some controversial end to Don't Ask, Don't Tell.
The beauty here is that the branches are checking each other... and while your side may not always win, there are vehicles in check to fix errors... to begin the process of incorporation, as did with Gitlow v New York, and has begun a whole onslaught of legislation to test the validity of states actions before the eyes of the Courts... of Presidents to force states to begin the process of desegregation by using the National Guard in new and unprecedented ways, to have Congress pass ground breaking legislation to enforce unpopular provisions of amendments...
And that, my friends, is how the Constitution sucks a little less. (Remember, we're no angels here folks.)
But you have to admit that the compromise, the patching together of different interests, chiefly among them, those of state versus national interests, makes the Constitution a little less perfect, and little more frankenstein-ish than you originally thought.
Want to know more? Read this awesome book:
Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America by Garrett Epps (2006)
(I feel like this should be a regular series.)
I am positive that many of my students following the primary elections thought me a huge, stinking liar while following the fall of Eric Cantor.
For they have been told that Virginia (enter airy, idealic music and images of birds fluttering and chirping over the dawning of a new day over a pastoral landscape) has open primaries that use public declaration.
And that is it.
So then, pray tell, how is it that Ed Gillespie was nominated as the GOP's candidate for the US Senate against Senator Mark Warner in a closed-door, members-only convention?
Yeah, I lied. So did the textbook.
I mean, if you look at Politico's analysis of the primaries, it gets even more complex.
Whaaattt? Only three Congressional District primaries are finalized? Aren't there, like, 11 districts in VA? And theoretically at least two candidates in each? This is super-confusing... I should see the results of 22 primaries.
Okay. So let's get some truth moving here.
1.) The parties decide how to nominate their candidates. That's right, you heard me. The parties. According to Larry Sabato, most states decide to consistently use primary elections. But, because primaries are a joint operation by the parties and the state political bodies (legislature and executive bureaucracy) and are vehicles to nominate the best possible candidate to win, the rules are not standardized nationwide. In fact, they are not even standardized (in Virginia) from district to district.
Virginia gives a deference to the party machinery to decide in a race-by-race... even a district-by-district manner... how best to nominate someone to represent that parties' wishes in the general election.
What is amusing about this is that on 'election day,' I forgot to vote. I can't believe it, because I am usually all over primaries.
After all, I tell my kids that this is the most important election. Primaries have low voter-turnout rates because people don't care, so the loyal partisan voters show up and give us extremly polarized candidates (See Eric Cantor... who as we all know lost, but lost not just because of immigration, but also due to some really partisan re-districting of a "more Red, more Tea Party" VA-3... and maybe lost because he was not as loyal to the Tea Party movement in VA's state legislature... who sought revenge for some anti-Tea Party moves Cantor made in the run up to the 2014 primaries. SOOO complex here. It's politics, remember.)
And since we are talking most important election, the dreaded six-year itch election (second mid-term election of a two-term POTUS) in which sea changes are possible... and the party out of power tries to get a mandate from the people that the party in power is on their way out in the next presidential election... all the people better show up and vote.
Well, what this tells me is that had I shown up to my polling station... had I been paying attention... I would have been wasting my time because the party, despite it's open primary format, decided it wasn't about me having a choice. The party (and in my case, I live in VA-11) decided to stick closer to the loyal Republican voters and do a convention.
I can't raid the ticket; I can't pick a more (or less) moderate candidate. I can't do anything because I am not a member of either party. I don't get a voice.
2.) This whole primary thing here in VA is un-democratic. Best part is, if I want to do something about it, I either have to run for office... start a grassroots campaign... create a special interest group... donate money to someone's campaign... find a write-in candidate... or hope for the end of the world as we know it. Basically, I have a snowball's chance. And it's hot here in VA.
The primary process in Virginia is written to get the best candidate elected for each party, and the party gets the State legislature to write laws that make this possible... why? Because the elected members themselves benefit from a less inclusive election process.
In essence: Self governance doesn't work best.
I feel like that is one of Aesop's lost fables.
I found myself returning to this question at the very end of our Courts, Rights, and Liberties unit.
What is the purpose of the courts? How do they function so differently from other two branches of the government? Why is their work done in such a quiet and private way? How is it their actions, while few (relatively) have such epic impact on the US?
Essentially, it has to do with the difference between politics and governance; majority rule, minority rights; and the rule of law.
Examining the definition of the two is a great way to start.
Majority Rule: Politics and Governance
I view politics as loud, chaotic, public, full of discord, acrimony, and debate. And hopefully, compromise.
Politics is the work of Congress and the executive branch. Politics starts with the democratic election process, where the people are given a voice and a choice. Debate ensues on major policy topics, and essentially never truly ends.
Elected representatives in both Congress and the President vie for grassroots support, using their respective bully pulpits and random assortment of formal (messaging power, presentment power, oversight function, expressed and implied powers) and informal powers (roles of the parties, access to the media, influence and intrigue from special interest... right there tying into all of the linkage institutions) to work within the rule of law (but not always good ethics!) to get policy written into law. And once it's there, the bureaucracy gets to mold the finer details to the liking of the President... and sometimes, for really sensitive issues (like monetary policy) not to the liking of the President, or even Congress.
It's labor intensive; it takes time; it's also full of intrigue and power play. It's almost always in favor of the majority. It has to be. In order for policy to be crafted and passed, a coalition is necessary. There must be more willing than not. And here is where the minority gets trampled.
Governance is quiet, plodding, rote, mechanical, and prescribed. (At least the majority of the time here in the U.S.)
Once the regulations have been written by the more political agencies of the executive branch, the act of carrying out that law becomes pedestrian. It rarely receives much play in the media, unless someone is acting unethical. And it remains intertwined with the majority.
Look at the courts, and one finds a branch that is so dissimilar from the other, more political branches that one could say it is anti-democratic.
The courts are more into governance (ruling over issues constitutional and intrusive on minority rights...) than politics.
When the courts take on cases where justiciability is questionable... where the justices ask, "Do we have the authority to hear this case on its face? Is it too political, and best left to the other two branches to take action on?" you will find this cry to leave politics out of the Court. Leave it out of the secluded and isolated realm of the courts, in the private study of the nine justices where not even clerks are allowed to hear debate. Consider Scalia's outburst in Webster, ridiculing O'Connor et al for even giving the issue of abortion an ear, let alone a decision.
We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us-their unelected and life-tenured judges who have been awarded these extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will-to follow the popular will.
The Courts are anti-democratic. They are intentionally anti-democratic. How else can the minority be given a day in court? To have a stable, life-appointed court of nine who are politically untouchable... ( see the precedent of Justice Samuel Chase's impeachment) Despite TJ's dislike of a life-tenure, the "inability" of Congress to impeach a Justice for their decisions carves out a sacred space that enables cultural change to take root despite political insurgencies in Congress... it affords (in theory, especially through the Warren Court) the minority their day in court and a fighting chance.
We talked about evidence of the anti-democratic structure formally and informally:
While the list goes on, we established that the structure and operation of the SCOTUS as it is, is a good thing. The Courts are working for minority rights. Remove any of these procedural or structural components, and the nasty cacophony of majority rule starts to break up the pristine silence of contemplation for the minority.
Maybe this is why the Supreme Court is the favorite of the three branches.
And here is the final question I posed to my kids... one that I can't honestly answer myself.
What kinds of cases should the Court be hearing? Do we look to them to break up the legislative stalemate over gay marriage? There is precedent in that... look to Loving and the recent Windsor cases... Do we look for a return to the original precedent on gun ownership, or do we stick with the evolution of McDonald and Heller? What about government surveillance and the constitutionality of FISA courts, which was thrown out in Clapper v Amnesty International? My favorite issue is the logjam over climate change, which is being challenged in a class action lawsuit (Alec L v Jackson) in the lower courts by a group of four civically-minded teenagers.
There are great cases, but here is the problem. Are these causes willing to have a minority (arguably, an oligarchy) make a decision on potentially political questions that will not have a broad base of support? It is hard for a minority to tell the majority what to do... the majority will continue to fight tooth and nail to change... So, that case better be really, really important... enough to justify the political turmoil that will happen as a result.
NO! You know you want to. The AP test is over... and, well, the soft lull of movies is so calling your name.
Okay, this is totally on the fly, but I thought I'd try to jump start you into having AMAZINGLY AWESOME discussions with your somnambulent students in their post AP haze. How do you, how do they stay interesting?
Here are some ideas... and if you have some you want to share LEAVE A COMMENT! IT TAKES A VILLAGE, GURUS!
Frontline's United States of Secrets
Out tonight, this two episode discussion of the NSA's less than top secret surveillance programs will surely spark lively debates in your classrooms. Stream it for FREE!! (Yay!)
When all else fails, break out the board games. I have plenty of suggestions of things to play, but these may require advance purchases.
Listen to Intelligence Squared or How Stuff Works
Both ab-fab knowledgeable programs, your kids should get sucked right into fun convos about a wide range of topics.
Great Scott! It's time for Oxford-style debates on current events! You can get a little mini-unit on government surveillance and the 14th amendment going, or talk about college or any of the other awesome IQ2 programs out there.
How Stuff Works...
An APUSH colleague of mine swears by this, and she runs a killer mini-unit four times a year called "meeting of the minds" where kids get together and discuss controversial topics via guided readings, questions, and debates. You can get on that wagon by having a little unit on all things FLOTUS (talk about Michelle for more then her amazing arms, and if you search it on their site, you'll get a couple of different hits) or anything else that tickles your fancy. Their podcasts are amazing!
Run the SCOTUS docket
If you are not up on what the SCOTUS is debating this year, then get on over to this FREE lesson plan you can do with your kids, with or without the writing assignment.
Play the Constitutional Madness Bracket Game
March Madness may be over, and the AP exams, too... now you can get down and dirty with your budding Constitutional scholars and figure out what is the most important clause in the Constitution using this bracket-style game. Students analyze clauses from the Constitution to determine which is the ultimate clause. Each individual match up in the 64 clause individual elimination bracket warrants a 150 word explanation of student's logic.
Other assorted inspiration...
Really, gurus, I am sure you do amazing things. I have other ideas to share, but so do you! I start, you can finish...
1. Do a RPG that mocks their first year post college modeling healthy college debt.
2. Read a book together! I am working on a larger unit marrying Michael Lewis's Boomerang, Neil Irwin's The Alchemists, and HBO's Too Big To Fail.
3. Mock election or court trial?
4. Debates (that are supported) from Deliberating in a Democracy?
5. Watch Mitt on Netflix?
6. Play on Google's Constitute?
7. Balance the Budget on the Concorde Coalition's new Budget App?
8. Talk about Lawrence Lessig's ideas to fix campaign finance? And his SuperPAC?
9. Mentor your students in the iMatter Youth Movement?
10. Write your final, super inspirational send-off lecture?
Pardon my theatrics... I hate to be morose, but I can't teach this unit without thinking of that awesome song by The Clash. There are really so many great songs out there with which you can open this unit, and kids really gravitate to issues surrounding these rights, or what little they know of them.
I take my time (relatively) through this unit. Besides the fact that I get more way more interest and lively debate, which always freaks me out, I find that there are some kids out there who really excel in logical "lawerly" thinking. Maybe they have never applied it to less objective reasoning than math and science... and find that they like these hypothetical, no-one-is-100%-right kind of arguing for the sake of arguing (I call it word math.)
I have my kids work through basic precedent by completing the Gallery Walk in the previous post, which is fun, but gets mixed results because... well... not all the kids put forth equal amounts of effort. So, I need to come in and clean it up.
The biggest problem that the students seem to have is whether or not a case is incorporated or not.
Incorporation is another one of those word math equations that requires a little historical context.
First, recall that J. Madi. et. al., fully familiar with the limited (or lack of) success of the English Bill of Rights, neglected/chose not to include an enumerated Bill of Rights in our constitution. Depending on who you talk to, there are various reasons for this. Some folks (as seen in an interview in Peter Sagal's Constitution USA, a great little film, by the by...) said that the founding fathers were tired and didn't "feel like" writing them. I am not completely blowing this off, but come on... the American BoR read a lot like the English BoR. Couldn'ta been that hard.
Well, that is one interpretation. I tend to view it as J. Madi felt he was 'completing' Montesquieu/Locke's vision for a more frustrated government, one in which the various governmental powers were shattered and spread amongst separate yet dependent branches to keep one from getting to 'uppity.' So, a BoR is moot, right?
Not so, say the Anti-Feds and TJ. What does it matter if you right these down on paper to give the people a security blanket?
So, J. Madi wrote up 19 by himself in one of his first actions as House Leader. Ten (really, 11 if you count the 27th) become our nation's BoR... and we should really focus on the first eight.
These are a contract, an obligation, a requirement that the FEDERAL government owes to each individual citizen. They are written as impediments placed on the government, and only under the most essential (I.E. compelling) of circumstances can the government justify trampling these rights.
1. Freedom of...
3. Ban on quartering of troops
4. Ban on unreasonable searches & seizures
5. Rights of the accused
9. Reserved rights of the people
All of these lovely rights, particularly rights 4-8, were owed to all people if they were unfortunate enough to find themselves in the legal system. This is due process, or the legal processes due to you as a person. But that is tricky.
Now, at one time all these rights as interpreted by the Supreme Court were only applicable to federal cases. States had their own BoRs, and the courts left it the each state's supreme court and legislature to determine if and how these rights would operate in their own state. You know, government closest to the people. Because there was no clause in the BoR that included states in the federal definition of due process, the states standard was varied and changing, allowing smaller units of population and legislatures to do as they saw fit. However, it made "knowing" your rights darn near impossible. Every time you came to one of those arbitrary geographical boundaries, the rules of the game changed. Your expectations of the government (state, in this situation) changed.
And it was, at times, unfit. See Plessy v Ferguson. How in the world did we see that states, in their inability to legislate for the minority and protecting said minority's rights, should be left to create schools that were never, ever able to be separate and equal? Didn't matter. States were doing their own local government thang, choosing a definition of due process that fit their own predelictions (read here: biases).
Tsk, tsk, tsk.
Eventually, the courts started waking up. Staring with Gitlow, the justices realized that the state political institutions, just like the federal, were unable to offer equal protection and due process to minorities, whether they be racial or otherwise. So, case by case, right by right, states were found to be accountable to the federal standard.
And this, my gubbers, is called incorporation.
Some courts were better than others at this. See the Warren court, and how many incorporation cases were during the sixties? Yeah, that is why Eisenhower allegedly cursed the appointment of Warren to the courts as chief justice, even though Eisenhower, for his role in Little Rock after Brown v Board, was forever more called the civil rights POTUS.
FOOTNOTE: The asterisks at the top list indicate that there are two little rights as yet to be incorporated. One of them, the right to a jury trial in civil suits, whatever. I am sure I will figure out someday why that is important. The other, well it just so happens to be one of the most controversial political questions that revolves around the changing interpretation of one pesky little dependent clause: Do states have the ability to legislate and determine your access to guns? 'cause the Fed doesn't... they have tried and tried to use the commerce clause as an entry point, but the courts have repetitively re-established the court's primacy in interpreting the second amendment AND limiting the fed's fore into what is commerce and what is not.
I have a fun little 'game' I play with my kids after we get through some readings on incorporation and rights, called SCOTUS Taboo. You can play it with your kids, or use them as flash cards, to help kids with their cases.
Be warned, I have more cases thrown in here than just cases dealing with the BoR. Really, I put all cases I love to talk about throughout the year... just as a review in the run up to the AP exams. Wanna see it? You can buy it here.
When the dreaded AP Testing window opens, I have to get creative to keep up with the bizarre scheduling and fried kids.
I also, generally, have a metric ton of material still to get through, and I don't think the kids can stand another lecture. So, getting to the SCOTUS cases I need to requires some creativity, flexibility, and patience. And FOOD. Lots and lots of FOOD.
I love the idea of turning this over to Project Based Learning... telling a kid, "hey, we need to know more about Clinton v NY. How about you teach me?" In the past, I have lectured, I have jigsawed, I have videoed, and the result is flat. And I end up repeating myself over and over and over again as new rounds of kids show up.
So here is my solution: A major project that I count as TWO test grades (one for the project presentation, which I do online and therefore I can have kids from different classes that meet on different days teach each other) and one for harvesting the data. It's food and art themed through and through... The possible activities kids can do (like boiling cases down into tweets, recreating facebook battles over the court case, prettying up major quotes into art) comes in a menu form, and since we have food on the Gallery Walk Day, it's kind of like dining with the SCOTUS. I got most of my cases from this lovely little synopsis of major court cases...
I can deal with the revolving door of kids coming and going, and I get to listen to kids get excited to learn things like how to jazz up a QR code so it isn't so boring. (They were totally excited to learn about canva because they can make pretty posters painlessly.)
When we do our Gallery Walk, I will post pictures of the festivities, but if you are interested in getting this for yourself, head on over to my store and get yourself a copy.
You won't regret it, I promise.
Pull out your white wigs and your gavels, it's time to play 'You be the Judge.' (Think I am kidding... I even have a cute stamp I put on the kids papers...)
My final stab at reading and writing skills AND interpreting the Constitution is a whopper. I assign the kids to play Supreme Court Justice. They get to decide issues of constitutional interpretation, judicial philosophy, precedent, and politics. All in one nice, neat little two page paper. I guide the students through two of them (it makes for a great class discussion!) and leave them to their own devices on the last one.
Per the student's request, our first of four papers is Sebelius v Hobby Lobby. My students are asked to tackle two plain-english derivations of the case before the SCOTUS, as well as two, more technical discussions.
I lead them through the various questions on the assignment, and take time to tackle some of the more complex legal maneouvering. In this case, the question before the court requires application of strict scrutiny. I find strict scrutiny, as well as all judicial tests, to be a problem for most students. This little video is super helpful.
Once I get through this video, I take care to explain the different tests, including intermediate scrutiny (the lesser used due to VMI.) Point here is whether or not the federal government has to treat Hobby Lobby as a "person," as it is not explicitly stated in the 1st Amendment, and "person" is loosely defined in the Federal Dictionary Act. Hmph. Pesky little boogers.
So, if they, meaning Hobby Lobby and the Green family who owns this chain of stores, are a person, then the government will have to employ a strict scrutiny test... and that requires the federal government to show:
-A compelling (or necessary and.or crucial) interest
If Hobby Lobby can show that their fundamental constitutional right to free exercise has been compromised, the then the government has to argue through evidence that Hobby Lobby's free exercise rights are NOT being infringed. But that is if the courts agree first that Hobby Lobby is a person. And if Hobby Lobby finds the Court seeing them as a person, then the government has about a 60% chance that the Courts will find in their favor. (That whole 'strict in theory, fatal in fact' argument is not as fatal as previously advertised.)
And below, because I have to 'make life impossible' for my students, are my notes on the case. If they find it, great. Key is you found it.
Great question; I am glad you asked.
As previously stated, I am super passionate about this unit. So, let's peel those beautiful crimson drapes back and get into it.
In looking at the creation of the courts, I draw two distinct parallels. The courts are OOAK (one of a kind) and not so much.
Why the courts are OOAK:
Why not so much:
I then get into the distinction between Title III and Title I courts, as well as courts of original jurisdiction and appellate jurisdiction.
Primarily, Article III courts are those that created in Article III of the Constitution, naturally. They tend to have a generic docket that hears all court cases under federal jurisdiction. There is one court created by the Constitution (the Supreme Court), as well as one class of jurists (Supreme Court Judges). The rest of the courts are created under statute (most notably the Judiciary Act of 1789)
Article I courts are created by Congress under Constitutional authority, specifically Article I Section 8 Clause 9. There are several types of courts who are crafted pursuant to the powers in the Article I: tax courts, regulation of territories and DC, and military courts. (And to make it even more complex, consider the over 4,000 executive adjudicators who work in varying degrees of independence, though never full independence, from the executive. The Supreme Court can and does review their decisions, as in the case NLRB v Canning.)
Here is a great resource for use to explain this...
From this point, we discuss the lovely world of judicial activism vs judicial restraint. I don't belabor the various subgroupings like textualists, originalists, etc... we just get a general understanding of reading into a decision with the desire to write rulings that either live within the text of the Constitution or broadly interpret the Constitution.
I have a worksheet that covers this in a nutshell, and even has a great video link from Annenberg that pairs Justice Scalia up with Justice Breyer in a head to head debate over the merits of each interpretation. (Up on TPT).
For an even MORE in-depth review of the various philosophies, try the first chapter in Scalia Dissents. It is succinct and has an appropriate treatment for the content. And, it is pretty humorous. Actually, the whole book is hilarious, but that is for another day.
This is, and probably always will be, my favorite unit in all of government.
And my first observations on the court are borrowed ones.
When you ask Americans to rank the three branches of the government, the Supreme Court usually ranks number one in the hearts of mice and men. This is followed by the President and Congress. Right now it is in that order.
(As of today, SCOTUS ranks around 48%, POTUS is coming in strong at 44%, and Congress is bringing up the rear at a dismissal 13%.)
REALLY!?! While I love the SCOTUS, I find this stat to be incredible for TWO reasons...
1.) The SCOTUS is the least democratic of the three branches. Those guys and gals in black are there because of some President's nomination... and Congressional approval. And once they are in, they are in for a term of "good behavior." Whatever that means. (Means they have to generally exercise ethical conduct. Folks have been impeached for alcoholism in the past in the judicial branch... and some other unsavory activities.) And if they are impeached, remember... that is 2/3s of both chamber doing their thing. You better have broad, bipartisan support. I view this as meaning that the justices do not have to fear being impeached for political reasons, especially if they are accused of being overtly political in their decisions.
Um, ahem. That is the way it is supposed to be. But we'll get back to that in a few.
Think about it like this, too. Eisenhower is famously cited as saying that Earl Warren was the biggest mistake of his presidency... not for Warren's role in advancing civil rights, but for Warren's track record on criminal law. (And that quote... it's apocryphal... but he probably said something pretty darn similar to that.)
2.) The SCOTUS, in trying to interpret laws, has a strong track record of ruling on the behalf of the minority. Think about it... at least in recent years, we have seen legislation undone by the Courts despite strong, popular support... things like:
They have to rule for the minority. That is the peculiar function that the courts were crafted to accomplish. While there is little in the Constitution about courts, aside from establishing jurisdiction, the Supreme Courts, terms for judges, and allowing Congress authority to craft an efficient legal system... The fact that these folks have "life" terms that are isolated from politics gives them the ability to make calls that are politically unpopular with the majority.
And while the courts have assumed the right of Judicial Review courtesy of the Marshall court, it is not explicitly stated in the Constitution. This implied has become one of the largest swords the courts wield, and is firmly established in American jurisprudence.
The amazingly beautiful thing about this branch's personality is pretty much exactly how Madison intended it. Madison and the other founding fathers constructed a branch that was unique in human history. An independent branch with powers separate from the others (unlike the Crown's courts in England, or the non-permanent courts under the Articles)... in which the court was there to judge actions against natural rights and precedent. The fact that Marshall enabled a check that actually erased illegal actions is truly another completion of this power.
So, as we continue through the court units we begin and end our reflections here.