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. (And for matters of simplicity, let's leave that whole how-corporations-are-incorporated-under-the-14th-amendment off to the side for now. But great point there, Justice Black.)
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. They are: 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.
1 Comment
8/3/2022 09:48:03 am
Edirne Viessman servisi en uygun fiyat ve en hızlı servis garantisi ile sizlerle. https://www.edirneklimaservisi.com/edirne-viessmann-servisi/
Reply
Leave a Reply. |
Jen's bookshelf: nerdcation
I want to start by thanking Mr. Snowden and Mr. Greenwald for their uncompromising dedication to giving the NSA violations air time and transparency.
I wanted to share some of the most important things I have learned from this book bef...
tagged:
nerdcation
tagged:
nerdcation and to-read
tagged:
nerdcation and to-read
tagged:
nerdcation and to-read
AuthorI lovgov. LOVE IT! I love teaching government, learning about it, debating, discussing, asking questions about government. And not the standard boiler plate questions, but the hard ones that are NOT in the books. Archives
August 2018
Categories
All
|