presents

ConstitutionallySpeaking

A Teacher’s Guide

How Does the ConstitutionKeep Up with the Times?

Twelve Lessons on the Nation’s Founding Document and

Its Application in 21st Century America

A collaboration of

NH Humanities Council l NH Supreme Court Society NH Institute for Civic Education l UNH School of Law

Constitutionally Speaking

Leadership Group

Dianne Kearns Duncan

Chair

Mary Susan Leahy

Treasurer

Deborah A. Watrous

Secretary

John T. Broderick, Jr.

William L. Chapman

John M. Greabe

Neil Levesque

Christine C. Rath

Sherilyn Burnett Young

Dear Educator, Before extolling the value of civics education generally and this study guide in particular, allow me to thank you. By the very act of accessing these materials, you are demonstrating an interest in preparing your students to become engaged participants in the civic life of their communities, their state, and their nation. No task is more important, or more challenging. In a media-driven culture that seems to focus on failing schools, at-risk kids, and competing educational philosophies, teachers too often become targets of blame rather than recipients of our gratitude and support. So again, on behalf of the partners in Constitutionally Speaking, I offer our sincere thanks as you join our effort to make civics education as fundamental as reading and math in every New Hampshire classroom from kindergarten through 12th grade. Nearly two centuries ago, Thomas Jefferson warned: “If a nation expects to be ignorant and free, it expects what never was and never will be.” Those are words worth heeding. Our democracy depends on an informed citizenry that takes seriously its right and responsibility to vote. Sadly, an alarming percentage of young people do not show up at the polls on Election Day – and the percentage of those who don’t is significantly greater when formal education ends with graduation from high school. What the correlation between education level and voting suggests is that much more needs to be done pre-college to inspire a lifelong commitment to voting. That is where you come in. Educating students about the structure of our government and its constitutional underpinnings must become the baseline of civics education in our schools. Without that foundation, graduating high school seniors simply will not have the tools necessary to make informed choices about the complex issues of our times. Consider, for example, the government’s electronic surveillance data mining program. No serious discussion of its legality can occur without a basic understanding of the constitutional prohibition against unreasonable search and seizure. Together with our Twelve Lessons on the Nation’s Founding Document and Its Application in 21st Century America DVD -- a collection of video clips drawn from several events held during Constitutionally Speaking’s pilot year – this companion study guide provides detailed lesson plans and suggested readings for use in New Hampshire classrooms. In addition, our website provides access to video of all pilot-year presentations in their entirety, and includes a list of civics resources developed by several NH educators who categorized the materials by grade level for maximum benefit to teachers. Please partake liberally!

With warm regards,

Dean John T. Broderick Jr., UNH School of Law

TABLE OF CONTENTS Page Relevant N.H. Social Studies Standards i-ii Chapter 1: Constitutional Values Abstract, Relevant Videos 1 Chapter Outline 2 Learning Objectives 3 Relevant U.S. Supreme Court Cases 4-5 Important Terms 6-7 Learning Activities and Assessments 8-24 Additional Resources 25-26 Chapter 2: Federalism Abstract, Relevant Videos 27-28 Chapter Outline 29 Learning Objectives 30 Relevant U.S. Supreme Court Cases 31 Important Terms 32-34 Learning Activities and Assessments 35-44 Additional Resources 45-46 Chapter 3: Defining Equality Abstract, Relevant Videos 47 Chapter Outline 48 Learning Objectives 49 Relevant U.S. Supreme Court Cases 50 Important Terms 51-52 Learning Activities and Assessments 53-63 Additional Resources 64 Chapter 4: Privacy and the Fourth Amendment Abstract, Relevant Videos 65 Chapter Outline 66 Learning Objectives 67 Relevant U.S. Supreme Court Cases 68 Important Terms 69-70 Learning Activities and Assessments 71-81 Additional Resources 82 APPENDIX A: APPARTS Template APPENDIX B: Debate Team Carousel APPENDIX C: A Federal System of Government Chart

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Relevant N.H. Social Studies Standards from K-12 Social Studies New Hampshire Curriculum Framework Theme B: Civic Ideals, Practices, and Engagement Theme E: Cultural Development, Interaction, and Change Theme H: Individualism, Equality and Authority Theme I: Patterns of Social and Political Interaction SS:CV:1: The Nature and Purpose of Government - Students will demonstrate an understanding of the nature of governments, and the fundamental ideals of government of the United States.

SS:CV:12:1.2: Examine how institutions and individuals make, apply, and enforce rules and laws, e.g., the Federal Communications Commission regulations on television broadcast standards or local public hearings on zoning regulations. (Themes: B: Civic Ideals, Practices, and Engagement, E: Cultural Development, Interaction, and Change) SS:CV:12:1.3: Evaluate how the purposes of government have been interpreted , e.g., promoting the general welfare or protection of private property. (Themes: B: Civic Ideals, Practices, and Engagement, D: Material Wants and Needs) SS:CV:12:1.4: Explain how in the United States legitimate authority derives from custom, law and consent of the governed, e.g., the Mayflower Compact or local curfews. (Themes: B: Civic Ideals, Practices, and Engagement, E: Cultural Development, Interaction, and Change, H: Individualism, Equality and Authority)

SS:CV:2: Structure and Function of United States and New Hampshire Government - Students will demonstrate an understanding of major provisions of the United States and New Hampshire Constitutions, and the organization and operation of government at all levels including the legislative, executive, and judicial branches.

SS:CV:12:2.1: Describe how the fundamental ideals and principles of American government are incorporated in the United States Constitution and the New Hampshire Constitution, e.g., the rule of law or individual rights and responsibilities. (Themes: H: Individualism, Equality and Authority, I: Patterns of Social and Political Interaction, J: Human Expression and Communication) SS:CV:12:2.2: Analyze the evolution of the United States Constitution as a living document, e.g., the Bill of Rights or Plessy v. Ferguson. (Themes: E: Cultural Development, Interaction, and Change, H: Individualism, Equality and Authority, I: Patterns of Social and Political Interaction) SS:CV:12:2.3: Describe the roles and responsibilities of the United States and New Hampshire judicial systems, e.g., resolution of conflict between states or New Hampshire Legislature’s use of advisory opinions from the New Hampshire Supreme Court. (Themes: A: Conflict and Cooperation, E: Cultural Development, Interaction, and Change)

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SS:CV:12:2.4: Evaluate how individual rights have been extended in the United States, e.g., Truman’s integration of the Armed Services or the Miranda decision. (Themes: H: Individualism, Equality and Authority, I: Patterns of Social and Political Interaction)

Relevant Common Core Standards Reading Standards for Literacy in History/Social Studies

RH.11-12.1: Cite specific textual evidence to support analysis of primary and secondary sources, connecting insights gained from specific details to an understanding of the text as a whole. RH.11-12.2: Determine the central ideas or information of a primary or secondary source; provide an accurate summary that makes clear the relationships among the key details and ideas. RH.11-12.4: Determine the meaning of words and phrases as they are used in a text, including analyzing how an author uses and refines the meaning of a key term over the course of a text (e.g., how Madison defines faction in Federalist No. 10). RH.11-12.5: Analyze in detail how a complex primary source is structured, including how key sentences, paragraphs, and larger portions of the text contribute to the whole. RH.11-12.7: Integrate and evaluate multiple sources of information presented in diverse formats and media (e.g., visually, quantitatively, as well as in words) in order to address a question or solve a problem.

Writing Standards for Literacy in History/Social Studies, Science, and Technical Subjects 6–12

WHST.11-12.1: Write arguments focused on discipline-specific content. WHST.11.12.2: Write informative/explanatory texts, including the narration of historical events, scientific procedures/ experiments, or technical processes. WHST.11-12.7: Conduct short as well as more sustained research projects to answer a question (including a self generated question) or solve a problem; narrow or broaden the inquiry when appropriate; synthesize multiple sources on the subject, demonstrating understanding of the subject under investigation. WHST.11-12.9: Draw evidence from informational texts to support analysis, reflection, and research.

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Chapter 1: CONSTITUTIONAL VALUES Abstract Separation of powers among the executive, legislative, and judicial branches of government is a fundamental principle of the United States Constitution. Concerned that ambitious officials in one branch would attempt to encroach upon the authority of the others, the Framers established a structure of government designed to prevent that. The exercise of judicial review and expansive constitutional interpretation by the U.S. Supreme Court – powers not explicitly granted by the Constitution – have evolved as additional judicial checks on powers claimed by the President, the Congress, and the states. As part of Constitutionally Speaking’s inquiry into the question: “How Does the Constitution Keep Up with the Times?” the materials that follow explore the history of judicial review, approaches to constitutional interpretation, and the practical application of constitutional values such as freedom of speech. Relevant Constitutionally Speaking Videos An Assignment Left to the Future Speakers: David H. Souter, U.S. Supreme Court Justice (Retired) Adam Liptak, New York Times columnist Duration: 5 min 12 sec Synopsis: Justice Souter and Mr. Liptak address the role and timing of the U.S. Supreme

Court in the practical application of constitutional values. Their discussion touches upon the lack of specificity in constitutional language (i.e., Commerce Clause, freedom of speech, security in people’s houses) and the absence of a template for constitutional interpretation.

A Play of Constitutional Values Speakers: David H. Souter, U.S. Supreme Court Justice (Retired) William Chapman, Esq. Shareholder, Orr & Reno Duration: 8 min 02 sec Synopsis: Justice Souter and Attorney Chapman discuss the First Amendment, what

rights it encompasses in order to give practical value to the general right of freedom of speech (i.e., freedom of association), and its limitations. References are made to the Espionage Act that criminalized anti-war writings and protests during World War I, Justice Holmes’ dissent in the Abrams case, and the tension between the constitutional values of liberty and equality reflected in the Citizens United case.

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Chapter Outline Learning Objectives Page 3 Relevant U.S. Supreme Court Cases Pages 4-5 Important Terms Pages 6-7 Learning Activities and Assessments Pages 8-24 Additional Resources Pages 25-26

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Learning Objectives Goal Students will be able to examine the U.S. Supreme Court’s power of judicial review and critique the various approaches justices take when interpreting the Constitution. Further, students will understand how the constitutional right to free speech has evolved over time. Students will understand that....

The U.S. Supreme Court is the supreme authority over the meaning of the U.S. Constitution and has changed its interpretation of the Constitution over time.

Supreme Court justices have differing approaches to constitutional interpretation.

The Court’s decisions have a profound impact on everyday lives of American citizens.

Changing interpretations of the Constitution allow it to keep up with the times.

Essential Questions

How was the power of judicial review established? What basic approaches to constitutional interpretation have justices of the

Supreme Court adopted? How can opposing judicial philosophies have an affect on constitutional

interpretation? How has the interpretation of the First Amendment changed over time? What rights are afforded to American citizens under the First Amendment?

Students will know...

Important terms regarding judicial review, constitutional interpretation, and the First Amendment.

Key facts about establishing the principle of judicial review and how the Supreme Court has exercised that power over time.

Key Supreme Court cases on constitutional interpretation and the Bill of Rights.

Key Supreme Court cases on the First Amendment and free speech.

Students will be able to... Recognize, define, and use vocabulary in context. Read, comprehend, and analyze the text of the U.S. Constitution. Interpret, compare, and evaluate Supreme Court analysis of the Constitution

over time. Express their learning orally during class discussions and in writing. Collaborate successfully with their peers to improve and express their

learning.

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Relevant U.S. Supreme Court Cases Each case is followed by a link to the full-text opinion at Cornell University's Legal Information Institute and a case summary at Oyez.org. Title (year) Full Text Summary Judicial Review Marbury v. Madison (1803)* Full Text Summary Cooper v. Aaron (1958) Full Text Summary Constitutional Interpretation McCulloch v. Maryland (1819)* Full Text Summary Ex Parte Milligan (1865) Full Text Summary Watkins v. United States (1957) Full Text Summary Roe v. Wade (1973)* Full Text Summary U.S. v. Nixon (1974)* Full Text Summary Cipollone v. Liggett Group (1991) Full Text Summary Planned Parenthood v. Casey (1992) Full Text Summary Clinton v. City of New York (1998) Full Text Summary Roper v. Simmons (2005) Full Text Summary District of Columbia v. Heller (2008) Full Text Summary McDonald v. Chicago (2010) Full Text Summary Affordable Care Act cases (2012)** Full Text Summary First Amendment and Free Speech Schenck v. United States (1919) Full Text Summary Debs v. United States (1919) Full Text Summary Abrams v. United States (1919) Full Text Summary Gitlow v. New York (1925) Full Text Summary Chaplinsky v. New Hampshire (1942) Full Text Summary West Virginia v. Barnette (1943) Full Text Summary United States v. O’Brien (1968) Full Text Summary Tinker v. Des Moines (1969)* Full Text Summary Brandenburg v. Ohio (1969) Full Text Summary Cohen v. California (1971) Full Text Summary Miller v. California (1973) Full Text Summary Island Trees School District v. Pico (1982) Full Text Summary Bethel School District v. Fraser (1986) Full Text Summary Hazelwood v. Kuhlmeier (1988) Full Text Summary Texas v. Johnson (1989) Full Text Summary R.A.V. v. St. Paul (1992) Full Text Summary Reno v. ACLU (1997) Full Text Summary Watchtower Bible and Tract Society c. Stratton (2002) Full Text Summary

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McConnell v. FEC (2003) Full Text Summary Virginia v. Black (2003) Full Text Summary Virginia v. Hicks (2003) Full Text Summary United States v. American Library Association (2003) Full Text Summary Ashcroft v. ACLU (2004) Full Text Summary Morse v. Frederick (2007) Full Text Summary Citizens United v. FEC (2010) Full Text Summary

*Teaching materials – including case summaries and excerpts – are available for these cases at Landmark Supreme Court Cases of the U.S. Supreme Court. **Additional case summaries and excerpts are available for these cases in Street Law Inc.’s Resource Library.

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Important Terms appellate jurisdiction The power of a court to hear appeals from lower courts.

This includes the power to reverse or modify the lower court’s decision. In the federal system, the circuit courts have appellate jurisdiction over the cases of district courts and the Supreme Court has appellate jurisdiction over the decision of the circuit courts.

Bill of Rights The first ten Amendments to the Constitution, setting out

individual rights and liberties. Enforced only on the federal government at the time of its adoption, through the legal doctrine of incorporation, most of the Bill of Rights now applies to the states under the Due Process Clause of the Fourteenth Amendment.

civil liberties Rights granted to citizens under the Constitution (and

derived primarily from the First Amendment) to speak freely, think, assemble, organize, worship, or petition without government interference or restraints.

civil rights Enforceable rights or privileges, which if interfered with by

another gives rise to an action for injury. constitution The most fundamental law of a country or a state. The

term is capitalized only when referring to a specific constitution (e.g. U.S. Constitution, Texas Constitution.)

court An official tribunal presided over by a judge or judges in

which legal issues or claims are heard and determined. express authority An agent’s power to act on behalf of a principal, explicitly

granted by an agreement between the agent and the principal.

federal Typically used to refer to the U.S. government, its

legislative, executive, and judicial branches, and the statutes, rules and regulations enacted by those branches of government.

First Amendment Protects the right to freedom of religion and freedom of

expression from government interference. implied authority An agent’s power to act on behalf of a principal,

intentionally granted by the principal as a result of the principal’s conduct, but without express agreement.

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Failure to object after prior exercise of such power may give rise to implied authority.

judicial review The doctrine under which the actions of the executive and

legislative branches of government are subject to review and possible invalidation by the judicial branch. Judicial review allows the Supreme Court to take an active role in ensuring that laws and executive actions conform with the U.S. Constitution.

jurisdiction Power of a court to adjudicate cases and issue orders. original jurisdiction A court’s power to hear and decide a case before any

appellate review. A trial court must necessarily have original jurisdiction overt the types of cases it hears.

precedent A case or issue decided by a court that can be used to help

answer future legal questions. stare decisis Latin for “to stand by things decided.” Stare decisis is

essentially the doctrine of precedent. Courts cite stare decisis when an issue has previously been brought to the court and a ruling issued. Generally, courts will adhere to the previous ruling, though this is not universally true.

Supremacy Clause Article VI, Paragraph 2 of the Constitution is commonly

referred to as the Supremacy Clause. It establishes that the U.S. Constitution, and federal laws generally, take precedence over state laws and even state constitutions.

supreme court The highest court in a jurisdiction. unconstitutional In opposition to the Constitution. Used to describe a

statute, governmental conduct, court decision, or private contract that violates one or more provisions of the Constitution. Can be used in reference to the federal constitution or a state constitution.

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Learning Activities & Assessments

Part 1: The Power of “Judicial Review” The goal of these activities is to understand the meaning of “judicial review” and to determine if the practice finds its basis in the U.S. Constitution. Step 1: The Role of the U.S. Supreme Court At the beginning of class have students respond to the following prompt: What is the role of the U.S. Supreme Court? To see the collective response of the class, have students write their responses on a random or designated spot on the classroom whiteboard, chalkboard, or chart paper. After everyone has recorded a response, have students walk around and analyze their classmates’ answers. Create a chart to note similarities, differences, and surprises. Have students return to their seats and initiate a class discussion about the results. Step 2: A Definition of “Judicial Review” Define, post, and explain the term “judicial review” for students (see Important Terms, page 7). Explain that the U.S. Supreme Court uses this power to review acts of the executive and legislative branches of the federal government and the states. If laws are in conflict with the Constitution, the Supreme Court may invalidate them by declaring them unconstitutional. If necessary, review the structure of the federal judiciary and how a case reaches the Supreme Court. Walk students through how a case made its way to the Court and the outcome of the case (e.g. Brown v. Board of Education). Note: Do not use Marbury v Madison as your example. This case will be used later in the lesson. Step 3: What the Constitution Says Ask students what they believe is the source of the Supreme Court’s power of judicial review. Presumably, students will suggest the power is derived from the U.S. Constitution. Distribute copies of Article III of the Constitution. Have students refer to the text to answer the following questions:

1. Under Article III, what are the roles, responsibilities, and powers of the Supreme Court? Are there any limitations? Explain.

2. Does Article III give the Supreme Court authority to determine if acts of the executive branch, legislative branch, or the states are constitutional? Where? Explain.

3. Does Article III give the Supreme Court the authority to invalidate laws passed by Congress or states if those measures do not comport with the Constitution?

4. In your own words, describe what you understand the role of the Supreme Court to be under Article III of the United States Constitution.

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Next, divide students into small groups. Each group should have a facilitator and a timekeeper. Facilitators will lead the discussion by soliciting input from each group member, ensuring no one person dominates the conversation, drawing quieter students into the conversation, and asking clarifying questions to keep the conversation moving. Timekeepers will keep the group informed of how much time discussion remains. (Consider modeling this process for the class.) Once the roles have been established, each group should discuss responses to each question for two to three minutes. Then, lead the whole class in a discussion. Have students cite text from Article III when addressing each question, and determine as a class if the text cited supports their assertions. Explain to students that despite the lack of explicit language in the Constitution, the U.S. Supreme Court has used the power of judicial review since as early as 1796. Note: You may wish to review with your students the difference between the terms explicit and implicit. Ask students to look at Article III and Article VI, Section II and determine if there is implicit language supporting judicial review. Is it implied by the structure of government that the Supreme Court should have this power?

Part 2: The Establishment of “Judicial Review” In these activities students will examine Marbury v. Madison (1803), the case that established judicial review as a power of the U.S. Supreme Court; compare and contrast conceptions of judicial review; and express and support their positions on the legitimacy of judicial review. Step 1: Analysis of Marbury v. Madison Individually or in groups, have students research the background of Marbury v. Madison, the landmark 1803 case that established judicial review; the issues the U.S. Supreme Court considered; and the decision the Court rendered. Consider using Street Law’s Case Study strategy, included in the links below.

1. Case Study Strategy http://www.streetlaw.org/en/landmark/teaching_strategies/case_study b. Extended Background http://edsitement.neh.gov/sites/edsitement.neh.gov/files/worksheets/marbury_background.pdf c. Brief Background http://www.streetlaw.org/en/Page/272/Background_Summary__Questions_ d. Full Text of the Majority Opinion http://www.ourdocuments.gov/doc.php?flash=true&doc=19 e. Excerpts from the Majority Opinion http://www.streetlaw.org/en/Page/290/Key_Excerpts_from_the_Majority_Opinion

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f. Summary of the Decision http://www.streetlaw.org/en/Page/292/Summary_of_the_Decision After the case studies have been completed, divide students into small groups to share what they have learned, then reassemble the class for a wider discussion and to check for understanding. Discussion Questions

What did the Court hold in Marbury v. Madison? Why is it such an important case in United States history? Did the outcome enhance or erode the system of checks and balances created by

the Constitution? Step 2: Early Debate on the Supreme Court’s Role Have students use primary sources to explore differing opinions about the exercise of judicial review. To begin, set up stations with one document per station and have students fill out a primary source analysis sheet for each. (Use the APPARTS method in APPENDIX A when completing the primary source analysis.) Students can then use the primary source analysis sheets to answer the follow up questions. The documents are as follows: a. Federalist 78 (1788) http://www.streetlaw.org/en/Page/280/The_Power_of_the_Judicial_Branch_The_Federalist_Number_78_and_the_AntiFederalist_78 http://www2.hn.psu.edu/faculty/jmanis/poldocs/fed-papers.pdf b. Anti-Federalist 78 (1788) http://www.streetlaw.org/en/Page/280/The_Power_of_the_Judicial_Branch_The_Federalist_Number_78_and_the_AntiFederalist_78 c. Federalist 80 (1788) http://www2.hn.psu.edu/faculty/jmanis/poldocs/fed-papers.pdf d. Virginia & Kentucky Resolutions (1798, 1799) http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginia-and-kentucky-resolutions/ e. Thomas Jefferson to Spencer Roane (1819) http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html Next, have students consider the following questions and discuss their responses as a class, keeping track of significant text from the documents by using an overhead or

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projector to point out this language and having students highlight or write down the important passages. Discussion Questions

How did Federalists and Anti-Federalists differ in their views about the tenure of justices and the role of the Supreme Court? Did their attitudes toward federal authority and liberty influence these views?

Is the “check” mentioned in Anti-Federalist 78 a necessary check on the judicial branch or would it strip the Court of a meaningful role in government?

In writing the Virginia and Kentucky Resolutions, how did Jefferson and Madison propose nullifying unconstitutional federal laws, and where did Jefferson suggest this authority came from? How would this affect the relationship between the federal government and the states? Is this a superior approach to the current process?

What did Thomas Jefferson mean by the following: The Constitution, on this hypothesis, is a mere thing of wax in the hands of the

judiciary, which they may twist, and shape in any form they please.

Step 3: Thinking Critically about Judicial Review Ask students to write down alternative approaches for determining the constitutionality of laws. Share the ideas as a class and vote on which suggestions are worthy of consideration. Are these approaches problematic? If not already mentioned, share some approaches to judicial review proposed by Thomas Jefferson and other critics of the principle. As a wrap up exercise, form groups of four to five students and complete a Debate Team Carousel exercise from APPENDIX B, using one or more of the following prompts:

1. Should the Supreme Court have the power of judicial review? 2. Is judicial review undemocratic? Explain. 3. Does judicial review exempt or preclude the other branches from considering

the constitutionality of their actions? 4. How would our country be different without judicial review?

Using the Debate Team Carousel directions and template, students should consider the primary sources, analysis sheets, and follow up questions when answering the above prompts. Discuss the responses as a class and create a list of the most compelling arguments. Learning Extension First, ask students to read the articles below to deepen their understanding of judicial review and the decision in Marbury v Madison. Grossman, Joel B. “The 200th Anniversary of Marbury v. Madison: The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left

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Behind.” FindLaw, 24 Feb. 2003. Web. 9 July 2013. <http://writ.news.findlaw.com/commentary/20030224_grossman.html>. Rappaport, Mike. "The Constitutional Basis for Judicial Review." Library of Law and Liberty. Liberty Fund Inc., 24 Jan. 2013. Web. 9 July 2013. <http://www.libertylawsite.org/2013/01/24/the-constitutional-basis-for-judicial-review/>. Then, as homework or using the Debate Team Carousel format in class, have students consider the arguments put forth by Grossman and Rappaport and address the following questions: 1. Should the Judiciary have a monopoly on interpreting the Constitution? 2. Did the Founders expect the Supreme Court to engage in judicial review? 3. Is there a constitutional basis for judicial review? Alternatively, have students complete a case study, using Street Law’s Case Study case study format. Short Answer/Essay/Debate Prompts

Why is judicial review such an important power of the Supreme Court? Does the power of judicial review support or undermine the doctrine of checks

and balances? Should lifetime appointments to the Supreme Court be discontinued in favor of

the election of judges subject to recall? Why is it important for the Supreme Court to be insulated from politics? Is the Supreme Court accountable to the American people?

Summative Assessments

Consider Supreme Court Justice Antonin Scalia’s 1996 remarks about judicial review (in italics below), and write position papers or participate in a formal class debate on whether judicial review is a power that should be exercised by the Supreme Court even though it is not enumerated in the Constitution.

“The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the Congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn’t say that anywhere. We made it up. Now, we made it up very sensibly because what we said was,‘Look, a Constitution is a law, it’s a sort of super law...and what the law means is the job of the courts.”

Create a timeline or diagram that illustrates the debate and evolution of judicial

review over time. Include dates, case names where possible, and descriptions of how judicial review changed at each point. Students could complete additional research to add depth to the material covered in class.

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Part 3: Approaches to Constitutional Interpretation In these activities students will analyze the constitutionality of historical and contemporary legal issues; become attuned to constitutional language, both specific and broad; and describe how the Constitution’s language and subject matter creates a dichotomy.

Step 1: Discerning Constitutional Meaning Break students into groups of three to five. Provide each group with one or more of the following scenarios depicting an action taken by the executive branch, the legislative branch, or a state. Ask students to decide if each action is constitutional, and to cite the Article, Section, Clause, or Amendment of the Constitution that supports their conclusion. Students should be prepared to defend their answers and explain how the text supports or prevents each action.

1. After protesters in New York City burn the United States flag, Congress passes a Flag Desecration Act banning any display of contempt directed against the flag.

2. New Hampshire passes the Separate Car Act declaring that all forms of transit carrying passengers must provide separate but equal accommodations for white and nonwhite passengers. Passengers sitting in the wrong shuttle must pay a $250 fine or face 30 days in jail.

3. Congress passes a law banning the sale of guns to those who have been deemed dangerous to themselves or others, involuntarily committed, found not guilty by reason of insanity, or judged incompetent to stand trial.

4. The state of Texas adopts an amendment to its state constitution recognizing marriage as between one man and one woman. The amendment also states that Texas may not create or recognize any legal status identical or similar to marriage.

Note: Teachers may create other scenarios pertinent to other landmark Supreme Court cases or current events that raise interesting legal questions. Depending on ability levels in the classroom, you may choose more complex cases or use examples from the following links: Power Grab Game http://score.rims.k12.ca.us/score_lessons/power_grab_game/ Interpreting the Constitution

http://www.icivics.org/teachers/lesson-plans/interpreting-constitution-what-does-mean

After students debate the scenarios in small groups, lead a class discussion. Keep track of the rationales and explanations offered by students on the board or on a projector. Discussion Questions

Does the Constitution make clear the legality or illegality of the action taken in each scenario? How so? Explain.

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Did you encounter vague language that made it difficult to determine if each action was constitutional? What was this language?

How did you determine the meaning of the text? Was there disagreement over constitutional meaning? Did the group settle this

disagreement or do members still disagree? If Supreme Court justices disagree about constitutional meaning, how might that

affect the outcome of the case at hand and future cases? Step 2: How Constitutional Language and Interpretation Intertwine Show the Constitutionally Speaking video An Assignment Left to the Future, in which Justice Souter and New York Times columnist Adam Liptak discuss how the Constitution’s structure and language, coupled with contemporary cultural norms, lead to different understandings, interpretations, and applications of our Nation’s founding document. Then, working with partners or in small groups, have students discuss the following questions. Video Discussion Questions: An Assignment Left to the Future

1. According to Justice Souter, in what way does the United States have two Constitutions? What does he refer to these as and what are the characteristics of each?

2. Justice Souter stated there is “great range of breadth of language” in the Constitution. What did he mean? What is the practical effect of that “breadth?”

3. What does Justice Souter mean by the following statement: These general terms, I think, are best understood as kind of a listing or a menu of approved values, the application of which has got to be worked out over time.

4. Does Justice Souter’s understanding expand or restrict the Court’s ability to interpret the language in the Constitution?

5. What assignment did Justice Souter suggest was left to the future? What does this mean and what does it suggest about Justice Souter’s perception of the Constitution?

6. According to Mr. Liptak, how has the Supreme Court helped establish rights not previously recognized? Why have some justices worried that the Court has acted too fast in doing so?

7. Why does Justice Souter believe it is important for the Supreme Court to explain why it makes rights and values work the way they do?

Learning Extension Break students into small groups and have them review different parts of the Constitution. For example, one or more groups could examine the Bill of Rights while other groups reviewed Article I, Section VIII. Groups could also examine important Amendments and clauses such as the Fourteenth Amendment and the Equal Protection Clause. While examining the Articles and Amendments, students should address the following questions:

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1. Is this Article/Section/Clause/Amendment part of the “Structural Constitution” or “Liberty” Constitution? How so? Explain.

2. How does this Article /Amendment/Section/Clause relate to Justice Souter’s remark about the breadth of language within the Constitution?

3. What is the practical value of the Article/Amendment/Section/Clause? 4. Can you argue there are implied powers or rights under this Article/Amendment/

Section/Clause? Step 3: Differing Approaches to Constitutional Interpretation Have students read “How is the Constitution Interpreted?” an eight-page chapter on constitutional interpretation that is written at an advanced reading level and can be accessed by the link below. Then, working individually or in pairs, have students answer the related discussion questions. Ritchie, Donald A. Our Constitution. N.p.: Oxford University Press, 2006. 37-44. Annenberg Classroom, The Leonore Annenburg Institute for Civics. Web. 9 July 2013. <http://www.annenbergclassroom.org/Files/Documents/Books/Our%20Constitution/COMPLETED_Our%20Constitution.pdf>. Discussion Questions

What does “judicial activism” mean? How does this term reflect the attitudes some have about the role of the Supreme Court?

What is “constitutional law” and how does it differ from other forms of law? Explain why the municipality of New York City, but not Congress, succeeded in

challenging President Clinton’s line item veto. How might constitutional interpretations by Congress and the President affect

how they carry out their powers? Based on the reading and what you know about United States history,

government, and politics, explain how political parties have played a role in constitutional interpretation.

How have the branches of government engaged in constitutional conflict? How did President Jackson’s response to the Supreme Court ruling on the Indian

Removal Act highlight the conflict between the Court and the other branches of government?

How did slavery, the Civil War, and Andrew Johnson’s actions as president demonstrate the idea of constitutional conflict?

How did the Fourteenth Amendment allow for the expansion of congressional and judicial authority?

How did the Warren Court shift in its outlook and approach to national problems? Explain the difference between “originalists” and those who believe in the idea of

a “living Constitution.” Which approach do you favor, and why? Do different philosophies always mean different conclusions?

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Next, lead a class discussion and check for understanding. Survey students about their thoughts on constitutional interpretation. For example, who believes in the concept of a “living Constitution”? Who believes in the “originalist” approach? Conduct a Debate Carousel (see APPENDIX B) or class discussion and create a list of the pros and cons of each approach. As a supplement, consider using the Annenberg Classroom lesson plan, A Conversation on the Constitution: Judicial Interpretation. Lesson Guide http://www.annenbergclassroom.org/Files/Documents/LessonPlans/LessonPlanConversationsJudicialInterpretation.pdf Video http://www.annenbergclassroom.org/pages.aspx?name=a-conversation-on-the-constitution-judicial-interpretation&AspxAutoDetectCookieSupport=1 Step 4: The Death Penalty and Gun Control: Cases in Point To further illustrate differing approaches to constitutional interpretation, discuss and debate the abolition of the death penalty. Explain to students that in 1791, when the Bill of Rights was adopted, the death penalty was a widely accepted practice. Pose the following question: Would you consider it acceptable for the U.S. Supreme Court to abolish the death if modern society viewed the practice as “cruel and unusual,” or do you think a constitutional amendment should be required to abolish the death penalty? Alternatively, discuss and debate gun control measures in the United States. Post the text of the Second Amendment for all students to see. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Lead a discussion on the meaning of the text. The Cornell Legal Information Institute has two excellent readings on this topic (links below), outlining the “individual rights” theory and “states’ rights” theory. Discuss these two approaches as a class and conduct a Debate Carousel exercise (see APPENDFIX B). Then, have students review District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). To elicit further discussion and debate, analyze the assault weapons ban proposed in 2013 by Sen. Dianne Feinstein, D-CA. Ask students to consider the constitutionality of such legislation, which failed to win approval in the Senate. a. Second Amendment http://www.law.cornell.edu/wex/second_amendment b. Bearing Arms http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd2

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c. Assault Weapons Ban of 2013 http://thomas.loc.gov/cgi-bin/query/D?c113:2:./temp/~c113gMgtE8 Learning Extension Provide students with the facts, issues, and arguments involved in one or more Supreme Court cases that highlight differences in the justices’ approaches to interpreting the Constitution. Ask students to complete case studies, utilizing the Street Law Case Study Teaching Strategy referenced below. Then, have groups of seven to nine students decide the outcome of their cases. Those in the majority should write Majority and/or Concurring Opinions, while those in the minority should write Dissenting Opinions. You could modify this activity by assigning a specific interpretation approach to students, with some advancing the “originalist” view and others espousing an “evolutionist” approach. This activity would also be suitable as a Moot Court exercise. Street Law: Case Study Teaching Strategy http://www.streetlaw.org/en/landmark/teaching_strategies/case_study Street Law: Moot Court Teaching Strategy http://www.streetlaw.org/en/landmark/teaching_strategies/moot_court Short Answer /Essay/Debate Prompts

Should the language within the Constitution, and its various Articles and Amendments, narrowly define its meaning and interpretation?

Should the Constitution be understood to mean what the Founders envisioned when they wrote it? Should its meaning and/or interpretation change over time?

Is the amendment process an adequate remedy for issues arising under the Constitution as society changes?

Summative Assessments

Use the activity from the Learning Extension as a summative assessment for this section.

Write a position paper in support of one of the approaches to Constitutional

interpretation.

Write a position paper in support of a Majority, Concurring, or Dissenting Opinion from one of the cases considered.

Write a judicial opinion from an originalist or evolutionist perspective based on

the facts of a case decided by the Supreme Court or on a fictional case provided by the teacher.

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Part 4: The First Amendment and Free Speech

The goal of these activities is to familiarize students with the values the First Amendment seeks to promote, and to consider when and why the government places limitations on the freedom of speech. Step 1: What the First Amendment Says Post or project the text of the First Amendment for the class to see.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Ask students to identify the freedoms contained within the First Amendment and keep a list that is visible to all. As a class, narrow the list down to the following five:

Religion Assembly

Press Petition Speech

Tell students they will be focusing on the freedom of speech. Divide the class into small groups to either define free speech or answer the question: What does freedom of speech mean to me? Have each group create separate lists of what actions by citizens they believe are protected by the First Amendment’s free speech clause, and what actions are not. Bring the students back together and create a class definition of free speech. Have students return to their groups to consider: Under what circumstances is it acceptable for the government to limit your freedom of speech? Reassemble the class to compare responses. Familiarize your students with the concept of countervailing interests (see Important Terms, page 69), and create a class list of acceptable limits on speech in contemporary society. Discussion Questions

Was there any disagreement over how freedom of speech should be defined? Is there anything that you consider acceptable that someone else does not, or vice

versa? Why do you think those differences exist? Do you think that your definition of free speech is the same as your parents? Your

grandparents? Why or why not? Why do you think people have different perspectives on free speech? What

factors may affect how a person views free speech? Where did your opinion come from - in other words, from whom and when did you learn what was considered free speech?

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Why do people disagree about when it is acceptable for the government to limit a person's speech? How has technological advancement made this a more important question today than it has been in the past?

Learning Extension Ask students to interview several adults and/or students outside of class and ask them for their definition of free speech as well as their response to follow up questions 2-4 above. These responses can add to the students' understanding of the variations of how free speech is defined and the reasons for those variations. Step 2: The First Amendment in Practical Terms Introduce the Constitutionally Speaking video A Play of Constitutional Values, which introduces free speech and its role within the context of the Constitution. Then, working with partners or in small groups, have students answer the related questions below and discuss in small groups or as a class. Video Discussion Questions: A Play of Constitutional Values

1. How does the right to free association give practical value to the First Amendment?

2. What is the role, or value, of the First Amendment in terms of the Constitution?

3. Do you agree with Justice Souter’s assessment that if First Amendment is limited narrowly it is not going to mean very much?

4. In his dissent in Abrams v. United States (1919), Justice Oliver Wendell Holmes wrote the following:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. What does Holmes mean by this and how does it relate to the First Amendment? 5. How might life be different if the First Amendment were absolute? 6. Explain the “play of constitutional values” that Justice Souter mentioned in

the Citizens United case. Learning Extension Justice Souter’s comments about Citizens United provides both a glimpse into his approach to constitutional interpretation and an opportunity to consider “How does the Constitution keep up with the times?” in terms of the First Amendment. Have students write responses to one or more of the following prompts:

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1. How would you define Justice Souter’s approach to constitutional interpretation?

2. Do Americans today interpret the First Amendment differently than citizens did in 1791 when the Bill of Rights was ratified?

3. Has the meaning of the First Amendment changed over time or simply the applicable circumstances and phenomena?

4. Can the exercise of free speech violate the rights of others? How so and at what point?

5. What constitutional values may justify the restriction of free speech? In other words, are there times when other constitutional values “trump” liberty and free speech?

6. How should we go about defining free speech if the Constitution does not? Step 3: Protected vs. Unprotected Speech Reiterate to students that because the Constitution does not spell out precisely what freedom of speech is, its definition has been shaped by the decisions of the Supreme Court. Review the terms precedent and stare decisis with students (see Important Terms, page 7). Then, have students form small groups and review different Supreme Court cases defining free speech and determining its limitations. Use Street Law’s Case Study Teaching Strategy, accessible at http://www.streetlaw.org/en/landmark/teaching_strategies/case_study Topics to address with students include, but are not limited to: 1. The right to seek information and ideas 2. The right to receive information and ideas 3. The right to impart information and ideas 4. Symbolic speech 5. Conduct 6. Spoken words 7. Written words 8. Obscenity 9. Defamation 10. Fighting words 11. Copyright 12. Expression intended and/or likely to incite lawless activity 13. Threats to national security 14. Expression on school grounds 15. Commercial speech 16. Political speech Once groups have reviewed their assigned cases, reassign students so that each new group has an expert on each different case. Experts will teach the other members of their groups about their cases so that students can create a list of what constitutes protected and

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unprotected speech. Groups might also create a timeline of the cases noting how the interpretation of free speech changed over time and how stare decisis and precedent affect development of the law. Short Answer/Essay/Debate Prompts

Look back at the lists you created in the Introductory Activity. How do these lists compare to the precedents established in the cases?

How do the cases reflect the idea of a living Constitution? How do the cases reflect an originalist approach to Constitutional interpretation?

How has the Court’s view on speech changed over time? Did the Court reverse any previous decisions? What may have contributed to this change?

Was the Court trying to strike a balance between different values in any of these cases? How so? Explain?

How has the right to free speech conflicted with other liberties guaranteed under the Constitution? Have these conflicts been resolved? Explain

How has the right to free speech conflicted with the function of government? Have these conflicts been resolved? Explain.

Learning Extension The Right to Freedom of Speech reading referenced below contains eight pages of background information and is written at an advanced reading level. It is best used to add detail to students' existing knowledge and help them conceptualize changes in free speech protections, apparent in the cases they have already read.

Bodenhamer, David J. Our Rights. N.p.: Oxford University Press, 2006. 57-64. Annenberg Classroom, The Leonore Annenberg Institute for Civics. Web. 9 July 2013.

http://www.annenbergclassroom.org/Files/Documents/Books/Our%20Rights/Chapter_6_Our_Rights.pdf Discussion Questions

Why is free speech considered one of our most important rights? How did the Supreme Court view freedom of speech prior to the 20th century? Explain the test established in Schenck v. United States. What test was established in Brandenburg v. Ohio? Did this deviate from

previous decisions of the Court? How and why does symbolic speech highlight how contentious the right of free

speech remains in our society? In your view, how does the First Amendment contribute to our liberty as

Americans? Why does the U.S. government permit citizens to express offensive opinions and

engage in often-bitter conflict over ideas?

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Step 4: Political speech: What, Who and Why First, ask students to brainstorm what political speech is. Consider what constitutes political speech, who might engage in it, and why it is so important. Have students discuss in small groups and report their findings. Post a master list of student responses to the what, who, and why questions, and refer back to it during the lesson. Next, focus the students’ attention on the who aspect. Does the First Amendment apply to everyone? Are there people or groups who may not be protected by the First Amendment? - Do nonprofit organizations have free speech rights? - Do businesses / for profit companies have free speech rights? - Sole proprietorships? - Partnerships - Corporations? - Wal Mart - Apple / Mac - Do unions have free speech rights? - Can these organizations engage in political speech? - Can their speech rights be limited in any way? Adjust the what and who master lists based on student response and input. Step 5: Limitations Imposed by McCain-Feingold Act First, pass out summaries of the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act. This law placed new limits on political contributions and campaign advertising, many of which were invalidated by the Supreme Court’s 2012 decision in Citizens’ United v. Federal Election Commission. To help students grasp the implications of the 2002 law and the 2012 decision, explain the difference between “hard” and “soft” money in political campaigns, and define electioneering and other key terms. Federal Election Commission: Campaign Finance Law Quick Reference for Reporters http://www.fec.gov/press/bkgnd/bcra_overview.shtml Library of Congress: Bill Summary & Status http://thomas.loc.gov/cgi-bin/bdquery/z?d107:H.R.2356 Next, have students fold a piece of paper into thirds. Label one column Limits of Individuals, another Limitations on Organizations, and the third Limitations on Money. Working in groups, have students review the legislation, determine how it limited these three categories, and answer the discussion questions. Discussion Questions

What would compel lawmakers to adopt the Bipartisan Campaign Reform Act of 2002? What might they have been concerned about?

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Why would nonprofit organizations, businesses, corporations, and unions be interested in the outcome of elections?

Should the First Amendment protect the free speech rights of corporations and unions?

Thinking back to the First Amendment case studies, and the list of countervailing interests, is there support for the provisions within the BCRA?

In your opinion did the BCRA of 2002 violate the First Amendment? Provide students with a Debate Carousel sheet (see APPENDIX B). Follow the directions and post one of the following prompts on the board or projector: Special interests have too much influence over government and politics. Money buys undue influence in our political system. Is money the equivalent of speech and/or expression? After students have reviewed their Debate Carousel sheets, conduct a class discussion about the results. Ask students to share the most compelling arguments for and against the prompt and create a master list to refer back to throughout the lesson. Step 6: Citizens United v. Federal Election Commission (2010) Hand out the two-page reading from the Bill of Rights Institute lesson on Citizens United (pages 4-5 in the link below) to familiarize students with how the United States has gone about limiting the political influence of special interest groups and big business throughout history. Background Reading http://billofrightsinstitute.org/wp-content/uploads/2012/10/Citizens-United-lesson.pdf In small groups, have students complete a case study following the Street Law format. Be sure students can describe the facts, understand the issues before the Court, comprehend the arguments, review the Opinions, and evaluate the outcome. Use a full text or summary of the case as well as additional background readings and Opinions. After completing the case study for Citizens United, conduct a class discussion to check for understanding. Learning Extension To further illuminate the relevant facts, issues, arguments, and outcome of Citizens United – as well as reactions to the ruling – have students read the article on the SCOTUS blog and/or the videos and article available on the C-SPAN website. Summary of Decision http://www.scotusblog.com/2012/06/opinion-recap-citizens-united-solidified/

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Explanation of Ruling http://www.c-spanvideo.org/clip/3817900 Reactions to Ruling http://www.c-spanclassroomdeliberations.org/issues/money-in-politics Short Answer/Essay/Debate Prompts

How would you characterize the Supreme Court’s view of the First Amendment according to the reading?

What interests or values were Congress and the Supreme Court attempting to uphold through their actions?

Is there a conflict of constitutional values at play in any of these cases or historical events?

How might an originalist approach Citizens United v. FEC? Someone who believes in a living or evolving Constitution?

Learning Extension To illustrate the relevance of the First Amendment and free speech in students’ lives, review the following landmark cases on the level of constitutional protection afforded to student speech in public schools: Tinker v. Des Moines, Bethel School District v. Fraser, Hazelwood v. Kuhlmeier, and Morse v. Frederick (see Relevant Cases, pages 4-5). After reviewing the cases, have students apply their holdings to a lower court case, such as J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002), or provide them with a fictional case scenario of your own creation.

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Additional Resources Judicial Review A More Perfect Union: The Creation of the U.S. Constitution Annenberg Classroom’s Best Civics Sites for Teachers Articles of Confederation Constitution of New Hampshire (1776) C-SPAN Classroom: Marbury v. Madison Exploring Constitutional Conflicts: Judicial Review Edsitement: How the Court Became Supreme iCivics: The Judicial Branch iCivics: Supreme Decision Game Street Law: Landmark Supreme Court Cases Yale Law School: The Federalist Papers Constitutional Interpretation Annenberg Classroom: A Conversation on the Constitution iCivics: Interpreting the Constitution: What Does that Mean? Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom Teaching the Constitution resources at Annenberg Classroom The Court and Constitutional Interpretation Your Bill of Rights videos at Time Magazine The First Amendment and Free Speech Annenberg Classroom: Free Speech: Finding the Limits Bill of Rights Institute: Citizens United v. FEC

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C-SPAN Classroom: Money in Politics First Amendment Center: Free Speech Lesson Plans Freedom of Speech: Bill of Rights Institute iCivics: You’ve Got Rights National Constitution Center: Respecting Free speech Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom Our Rights, an eBook on civil rights from Annenberg Classroom The Bill of Rights Institute U.S. Courts: What Does Free Speech Mean

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Chapter 2: FEDERALISM

Abstract The U.S. Constitution created a structure of government in which some powers are held exclusively at the federal level, some are reserved to the states, and still others are held concurrently by both the federal and state governments. This system – the product of one of the many compromises made during the Constitutional Convention of 1787 – was designed to address the need for a more powerful central government, while at the same time protecting the right of states to self-governance and of citizens to individual liberty. As part of Constitutionally Speaking’s inquiry into the question: “How Does the Constitution Keep Up with the Times?” the materials that follow explore the role of the U.S. Supreme Court in the evolution of the balance of powers between the federal government and the states.

Relevant Constitutionally Speaking Videos A Lesson in Compromise Speakers: David H. Souter, U.S. Supreme Court Justice (Retired) William Chapman, Esq., Shareholder, Orr & Reno Duration: 4 min 37 sec Synopsis: Justice Souter and Attorney Chapman emphasize the critical role of

compromise in the Constitution’s adoption. The representational make-up of the House and Senate – as well as counting slaves as three-fifths of a person in state population tallies – are cited as examples. Reference is made as well to the Articles of Confederation; the well-educated elite who attended the Constitutional Convention in 1787; and colonial charters as precedent for a written Constitution.

When Laws Conflict Speaker: Michele Martinez Campbell, Associate Professor, Vermont Law School Duration: 8 min 43 sec Synopsis: Professor Martinez Campbell addresses the intersection of states’ rights

and federalism in criminal law, focusing on the 2012 legalization of the recreational use of marijuana in Colorado and Washington states. Her discussion also references California’s medical marijuana law, as well as the U.S. Constitution’s Commerce and Supremacy clauses.

Rights Retained by the People Speaker: Calvin R. Massey, Professor, UNH School of Law Duration: 7 min 34 sec

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Synopsis: Professor Massey examines in detail the powers reserved to the states and the rights reserved to the people by the Ninth and Tenth Amendments, and delves into the role of the Supreme Court as the proper interpreter of the federal government’s powers.

A Precious Right Speaker: Carol Nackenoff, Professor, Swarthmore College Duration: 8 min 3 sec Synopsis: Professor Nackenoff surveys the 100-year-plus legislative and court-

mandated expansion of voting rights, dating from the late 19th century. She also probes more recent case law to determine whether voting is a fundamental right protected by the Constitution.

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Chapter Outline Learning Objectives Page 30 Relevant U.S. Supreme Court Cases Page 31 Important Terms Pages 32-34 Learning Activities and Assessments Pages 35-44 Additional Resources Pages 45-46

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Learning Objectives Goal Students will be able to analyze how the interpretation of the U.S. Constitution over time impacts the balance of power between the federal and state governments within the United States. Students will understand that....

Compromise played a central role in the creation of the Constitution. The Constitution created a federal system of government where power is shared

between the federal government and the states. The Commerce Clause and the Necessary and Proper Clause can be interpreted to

give Congress broad authority to create national laws. The Supreme Court’s interpretation of the Constitution plays a central role in

determining how much power states have to govern themselves. Voting rights in the United States are controlled by federal and state laws that

allow for wide variation in the rules and procedures for voting. The Supreme Court’s interpretation of the Constitution – specifically the power of

the federal government over the states – changes over time. Essential Questions

How is power shared by the federal government and the states under the Constitution?

Why did the founders choose a federal system of government for the United States? What are the positive and negative effects of a federal system?

What authority does the federal government have under the Commerce Clause and the Necessary and Proper Clause and how has that power changed over time?

How are voting rights and regulations affected by the changing balance of power between the federal government and the states over time?

Students will know...

Important terms regarding federalism. Key facts about the changing interpretation of the power of the federal

government versus the states over time. Key Supreme Court cases on constitutional federalism. The history, content, and effects of the Voting Rights Act of 1965.

Students will be able to...

Recognize, define and use federalism vocabulary in context. Read, comprehend and analyze the text of the U.S. Constitution. Interpret, compare and evaluate Supreme Court analysis of the Constitution over

time. Express their learning orally during class discussions and in writing. Collaborate successfully with their peers to improve and express their learning.

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Relevant U.S. Supreme Court Cases Each case is followed by a link to the full-text majority opinion at Cornell University's Legal Information Institute as well as a link to a case summary at Oyez.org unless otherwise indicated. Title (year) Full Text Summary Necessary and Proper Clause McCulloch v. Maryland (1819)* Full Text Summary U.S. v. Comstock (2010) Full Text Summary Commerce Clause Gibbons v. Ogden (1824)* Full Text Summary Swift v. U.S. (1905) Full Text Summary Schechter Poultry Corp. v. U.S. (1935) Full Text Summary NLRB v. Jones (1937) Full Text Summary Wickard v. Filburn (1942) Full Text Summary U.S. v. Lopez (1995) Full Text Summary U.S. v. Morrison (2000)** Full Text Summary Gonzales v. Raich (2005)** Full Text Summary Affordable Care Act cases (2012)** Full Text Summary Voting Harper v. Virginia Board of Elections (1966) Full Text Summary Bush v. Gore (2000) Full Text Summary Crawford v. Marion County Election Board (2008) Full Text Summary Shelby County v. Holder (2013) Full Text*** Summary

*Teaching materials – including case summaries and excerpts – are available for these cases at Landmark Supreme Court Cases of the U.S. Supreme Court. **Additional case summaries and excerpts are available for these cases in Street Law Inc.’s Resource Library. ***The full text opinion of the Shelby v. Holder case is available at the Supreme Court’s website. The Washington Post has an excellent summary of the case and the arguments on both sides on its website as well.

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Important Terms commerce The sale or exchange of goods and/or services. Commerce Clause Article I, Section 8, Clause 3 of the U.S. Constitution,

which grants Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The commerce power is the most cited power used by Congress when creating federal law.

concurrent powers Powers shared by the federal and state governments under

the U.S. constitution. enumerated powers Powers explicitly stated in the U.S. Constitution. The

powers explicitly granted to the federal government in the U.S. Constitution are called the federal government’s enumerated powers.

Equal Protection Clause Fourteenth Amendment, Section I, Clause 4 of the U.S.

Constitution, which states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause protects one group of citizens from having a law applied differently to its members than it is to another group of citizens. When analyzing whether state laws are constitutional under the Equal Protection Clause, the Supreme Court looks at the type of discrimination and what rights are affected. As an example, the right to vote has been ruled a fundamental right by the Supreme Court and thus enjoys strict protection under the Equal Protection Clause. The Supreme Court ruled in Harper v. Virginia Board of Elections in 1966 that a state poll tax violated the Equal Protection Clause because conditioning the right to vote on wealth denied citizens the equal protection of the law.

federalism A system of government where power is divided between a

national government and smaller regional governments (i.e. state governments in the United States). In the United States, the national or federal government has exclusive power in some areas, the state governments have exclusive power in some areas, and the two levels of government share power in other areas. This is called a federal system of government.

literacy tests In the context of voting, literacy tests were given to

potential voters to prove their intelligence and thus their

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worthiness to vote. The tests were popular in the Jim Crow South as a way to keep uneducated voters, who were disproportionately black, from voting. Literacy tests were effectively prohibited by the Voting Rights Act of 1965.

Necessary and Proper Article I, Section 8, Clause 17 of the U.S. Constitution, Clause which grants Congress the power to “make all Laws which

shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

poll taxes In the context of voting, a poll tax is a tax a citizen is

required to pay in order to vote in a political election. Poll taxes were a popular method of discouraging blacks (who were disproportionately poor) from voting in southern elections during the Jim Crow era. Poll taxes were prohibited in federal elections by the Twenty-Fourth Amendment to the U.S. Constitution (ratified 1964) and in state elections by Harper v. Virginia Board of Elections (1966).

preclearance The requirement under Section 5 of the Voting Rights Act

of 1965 that states covered by the Act submit any proposed changes to state voting or election laws to the U.S. Department of Justice or the U.S. District Court for the District of Columbia for pre-approval. The requirement was designed to protect minorities from being denied the right to vote through changes to state law without a lawsuit having to be filed after the fact. Examples of changes to state voting and election laws that are required to be pre-cleared under Section 5 include voter eligibility requirements, candidate eligibility requirements, and voter precinct boundaries. Section 4 of the Act, which specified the formula used to determine what states were covered by the Act, was recently ruled unconstitutional by the U.S. Supreme Court in Shelby County v. Holder. Until a new formula is approved by Congress and the President, the Section 5 requirement for preclearance can no longer be enforced.

reserved powers Powers left to the states under the U.S. Constitution. The

powers not granted to the federal government under the U.S. Constitution are said to be reserved for the states.

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suffrage The right to vote in political elections. Also referred to as the franchise. Universal suffrage refers to the uninhibited right to vote for all citizens.

Supremacy Clause Article VI, Section 2, Clause 1 of the U.S. Constitution,

which states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land”. This clause makes the Constitution, all federal laws and all U.S. treaties legally enacted, superior to any state, county and other local laws within the United States.

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Learning Activities & Assessments

Part 1: Introducing the Concept of Compromise and the Constitution The goal of these activities is to familiarize students with the concept of compromise and explore the role compromise played in the creation of the U.S. Constitution. Step 1: What is Compromise? Students will first complete a Frayer Model for concept formation for the term compromise. The model should include characteristics, a definition, examples, and non-examples. Have the students complete the model individually or in pairs first and then share out to a larger group or the class. Ask the students to reflect on the positive and negative effects of compromise, using examples from their own lives to enrich the discussion.

Note: A template of a Frayer Model can be found in the Vocabulary Strategies section of the NH Social Studies Education Wiki.

Step 2: The Role of Compromise in the Constitution’s Creation Show the Constitutionally Speaking video A Lesson in Compromise to facilitate your students’ understanding of the role of compromise in the creation of the U.S. Constitution. Video Discussion Questions: A Lesson in Compromise

1. According to Justice Souter, what did James Madison believe was the most serious issue facing the Constitutional Convention in 1787? Do you agree or disagree with Justice Souter's assessment? Why?

2. What were some of the compromises made by the delegates at the Constitutional Convention of 1787? Are there any common themes you can identify?

3. “So compromise matters, it's fundamental to debate, to the way we govern. We've seen, I think both at the national level and here in New Hampshire, what happens when people are unwilling to compromise." William Chapman, Esq., Shareholder, Orr & Reno What did Attorney Chapman mean when he stated that compromise is "fundamental to debate, to the way we govern"? Provide a recent example in which government officials were unwilling to compromise and describe how the lack of compromise affected the government and our society.

The readings below are recommended to supplement the material introduced in the video. Have students focus on the following question while reading: What compromises were made during the creation of the U.S. Constitution and why were those compromises necessary?

"The Constitution and the Idea of Compromise" at PBS

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"A More Perfect Union: The Creation of the U.S. Constitution" at the National Archives "The Constitutional Convention" at ThisNation.com

Part 2: Our Constitutional Federal System The goal of these activities is for students to explore the division of power between the federal government and the states created by the U.S. Constitution. Step 1: The Concept of Federalism Review the general definition of federalism with your students (see Important Terms, page 32). Explain to students that one of the major compromises that occurred at the Constitutional Convention was the division of power between the federal and state governments.

Note: For more information on the different variations of federalism students can read "What is Federalism" at ThisNation.com. The questions below can be used with the reading:

What did federalism mean under the Articles of Confederation?

How did the definition change under the Constitution? How is Constitutional federalism an example of compromise? Contrast the definitions provided for dual, permissive, and

cooperative federalism. What makes each approach to federalism different from the other?

Note: Federalist No. 39 (James Madison) is an excellent primary source to use for a more in-depth and challenging exploration of the idea of a federal system and Madison’s view of the difference between a national versus a federal government.

Step 2: A Constitutional Division of Power In this activity students will create a graphic tool that organizes the powers of the federal government and the state governments under the U.S. Constitution. Students must explore the text of the Constitution in order to identify and record the source of the following:

(a) enumerated powers of the national government; (b) powers reserved to the states (c) powers shared concurrently by both the national and state governments; (d) powers denied to the national government; and (e) powers denied to the states.

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A simple chart with one column for power and another column for source would be sufficient (see APPENDIX C), as would a variation of a Venn diagram. Students can complete the activity individually, in pairs or in small groups. You could assign each group one or more of the categories (a-e) above or use the jigsaw model within each group and differentiate the assignment of categories as needed.

Note: There is an excellent summary of the breakdown of federal and state power at ThisNation.com that can be used to supplement this activity or aid students who need additional assistance.

Discussion Questions When a state passes a law contradicting a federal law, which law has supremacy?

Where in the Constitution is this issue addressed? Is there a delegation or restriction of power that surprised you? If so, why? Are there powers delegated to the federal government that you think should be

left to the states? If so, why? Are there powers reserved to the states that you think should be exercised by the

federal government? If so, why? Is a sharing of some powers between the federal and state governments an

effective way to govern? Why or why not? Step 3: Analyzing the Necessary and Proper Clause and the Commerce Clause In this activity students will analyze the interpretation of the Necessary and Proper Clause and/or the Commerce Clause by the U.S. Supreme Court over time in order to better understand the extent of federal power over the states. Refer to Relevant Cases, page 31, and provide the full text, a summary, excerpts, or a combination of the three, depending on the reading abilities of the students. Note: If you are planning to complete Part 3 with your class do not use the Gonzales v. Raich case as part of this activity. Format Options

Students choose two cases to analyze, then report back to the full class or discuss their findings in small groups that focus on the same or different cases.

Students are divided into groups that analyze one case together and report their findings to the full class.

Students are divided into groups in which each student analyzes a different case. After completing their analyses, students share their findings with peers who examined the same case, to confirm what they have learned, then report back to their specific groups (a jig saw cooperative learning model).

Regardless of the activity format, students should focus on the following for each case they analyze:

a) The facts of the case, including the federal law or action that is at the center of this case.

b) The central question of the case? (i.e. “The Supreme Court must decide if…”) c) The ruling of the Court.

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d) How the text of the Constitution was interpreted to support the Court’s ruling. Discussion Questions

Has the Supreme Court’s interpretation of the Necessary and Proper Clause changed over time? If so, how? Use evidence from the cases to support your conclusions.

Has the Supreme Court’s interpretation of the Commerce Clause changed over time? If so, how? Use evidence from the cases to support your conclusions.

Why does the Supreme Court’s interpretation of the Constitution sometimes change?

Did you disagree with the Supreme Court in any of the cases? If so, explain what you think the Court’s decision should have been and why.

Is the Supreme Court’s interpretation of the Necessary and Proper Clause and/or the Commerce Clause consistent with the federal system of government that the framers of the Constitution intended? Why or why not? Use evidence to support your conclusions.

Part 3: Gonzalez v. Raich and the Extent of the Commerce Power In Gonzalez v. Raich the U.S. Supreme Court examined whether the Controlled Substances Act, which among other things prohibited the production of marijuana for personal consumption, was a constitutional exercise of Congress’s power to regulate interstate commerce under the Constitution’s Commerce Clause. The goal of these activities is for students to explore the modern interpretation of the extent of federal power under the Commerce Clause. Step 1: Introducing the Topic Using Two Constitutionally Speaking videos Introduce the topic to your class and show two Constitutionally Speaking videos in this order: When Laws Conflict and Rights Retained by the People. These two videos provide an excellent introduction to Congress’s use of the Commerce Power to regulate national marijuana use, as well as to the powers reserved to the states and the rights reserved to the people by the Ninth and Tenth Amendments. Video Discussion Questions: When Laws Conflict

1. What does Professor Martinez Campbell mean when she says that the federal and state criminal justice systems are “parallel”?

2. What is the difference between a federal and a state crime? 3. What is different about the marijuana legalization laws passed in Colorado and

Washington? 4. Does the Constitution give the federal government broad police power? What part

of the Constitution gives the federal government power to enact criminal laws? 5. What has the Supreme Court already said about the federal government’s power

to prohibit medical marijuana? How did the Court use the Constitution’s Commerce Clause to justify its decision?

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6. When a federal law conflicts with a state law, which law is superior? What part of the Constitution answers this question?

Video Discussion Questions: Rights Retained by the People

1. What were the two main concerns of the framers when writing the Constitution? 2. What “unprecedented” device did the framers use to protect liberty in the

Constitution (before the Bill of Rights)? 3. The following hypothetical was discussed in the video:

Imagine one nation with two states of equal population:

State 1---Urbania---90% of people favor a hunting ban State 2---Rustica---20% of people favor a hunting ban If a national hunting ban is passed then 55% of the people in the nation would be happy. If each state was allowed to decide its own hunting laws (and Urbania prohibited hunting while Rustica permitted it) then 85% of people in the nation would be happy.

Given the argument presented in this hypothetical, why do we have national laws at all? Are state or local laws always the most effective way to ensure happiness for the greatest number of people? Why or why not?

4. According to Professor Massey, what idea is “at the heart of the rights retained by the people” in the Ninth Amendment and is “critical to the preservation of liberty”?

Step 2: Analyzing the Majority Opinion in Gonzalez v. Raich In this activity students will analyze the facts and Supreme Court’s reasoning in Gonzalez v. Raich to understand the majority’s interpretation and application of the Commerce Clause. Using the full text of the case, excerpts, or a case summary (the version produced by Street Law Inc. is outstanding and is available in website’s Resource Library), have students in small groups read and identify the following:

1. What federal law is being challenged in this case? How is the federal law being challenged? In other words, what part of the Constitution is being used to challenge the legality of the law?

2. What did the Supreme Court rule? What arguments did the Court use to justify its decision?

3. Did you agree with the Supreme Court’s interpretation of the Commerce Clause and how it was applied in this case? Why or why not?

4. Based on the opinion in this case, what types of activities would fall outside of the federal government’s commerce power? Give examples and justify your selections using evidence from the Court’s analysis in this case.

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Step 3: Analyzing the Dissents in Gonzalez v. Raich This exercise uses dissents authored by Justices O’Connor and Thomas, presenting their arguments for why the production of marijuana for personal use falls outside of the federal government’s commerce power. First, assign the full-text or excerpts of one dissent to pairs of students for analysis. Each pair of students should identify the specific arguments used by the Justice to reach a different conclusion in the case. Second, group two pairs of students together – one pair that was assigned each dissent – and have them compare the Justices’ arguments and identify similarities and differences. Discussion Questions

Did Justices O’Connor and Thomas agree with the majority on anything? If so, what?

What did Justices O’Connor and Thomas agree on in their dissents? What did they disagree on?

What did Justices O’Connor and Thomas fear would occur based on the interpretation of the Commerce Clause given by the majority?

How did the dissenters use the history of the framers in their arguments? Should the intent of the framers matter when deciding how to interpret the Constitution today?

Who made the best argument – the majority, Justice O’Connor or Justice Thomas? Use specific evidence from the opinion and dissents to justify your response.

Alternative Activity to Complete Before Step 2 Complete Part 2 of this guide without assigning Gonzales v. Raich to any students for analysis. Supply students with the factual background only to Gonzales and have them use the case precedents they studied in Part 2 to write opinions on how the case should be decided. Students should use case precedents in their opinions and make clear arguments as to why the Commerce Power does or does not include the power to prohibit the production of marijuana for personal use only. Encourage them to incorporate historical evidence and/or research the intent of the framers as well. Students can formally write their opinions and then participate in a class debate or mock trial before analyzing the Supreme Court’s opinion and dissents in Gonzales.

Part 4: Voting Rights and the Constitution In these activities students will explore the role of the Constitution in determining the sharing of power over voting rights and election procedures in the United States. Step 1: The Power to Regulate Voting First brainstorm as a class what it means to vote and/or have your students complete a Frayer Model for concept formation for the word vote. Pose this question as part of your discussion: Why do many people believe that voting is one of the most important rights of citizens?

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Show the Constitutionally Speaking video A Precious Right before or after the activity as an introduction to voting within our federal system. Use the questions below to tease out the video’s key points: Video Discussion Questions: A Precious Right

1. Describe how the federal government and states share power over voting and election laws. What differences are found (or have been found in the past) among voting and election laws among the states?

2. How did the Voting Rights Act of 1965 improve access to voting for minorities in the United States?

3. Professor Nackenoff referred to an excerpt from the Supreme Court’s majority opinion in Harper v. Virginia Board of Elections (1996), written by Justice William Douglas and reprinted below (citations omitted):

Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court, in 1896, held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Seven of the eight Justices then sitting subscribed to the Court’s opinion, thus joining in expressions of what constituted unequal and discriminatory treatment that sound strange to the contemporary ear.

(a) What is Justice Douglas’s central argument? (b) To what famous 1896 Supreme Court case was Justice Douglas

referring? (c) Do you agree with Justice Douglas that the interpretation of the

Constitution – including what is considered “unequal and discriminatory treatment” – can change over time? Why or why not?

Have students examine the U.S. Constitution and New Hampshire voting regulations to better understand the connection to federalism and to identify what areas of voting New Hampshire regulates, and what areas are regulated by the federal government. Assign some students to review the Constitution and identify powers and/or rules regarding voting, while others review New Hampshire rules for voting (which can be found on the New Hampshire Secretary of State’s website titled Voting in New Hampshire). Students can share what they have learned in pairs, in small groups, or with the class as a whole.

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Discussion Questions What does the Constitution say about voting? What rules regarding voting must

all states follow? What parts of the voting process do states have power to control? Which government has more power over voting in the United States, the federal

government or the states? Justify your response using evidence from the Constitution and the New Hampshire Secretary of State’s Voting in New Hampshire website.

What are the positive and negative effects of allowing states so much control over the voting process?

Learning Extension Have students compare New Hampshire voting regulations with those of one or more other states in order to analyze differences in state laws and infer how those differences might affect the voting experiences of citizens. Step 2: Voting Rights and the U.S. Constitution In this activity students will examine Supreme Court cases and one federal law to analyze how the Constitution shapes voting rights in the United States. First, divide your students into groups of 5, assigning a different topic from the following list to each of the five members of each group: Voting Rights Act of 1965; Harper v. Virginia Board of Elections (1966); Bush v. Gore (2000); Crawford v. Marion County (2008); Shelby County v. Holder (2013). Use full text, excerpts, or summaries of the Supreme Court cases where appropriate. The Voting Rights Act of 1965 can be used as a full text document or the Department of Justice has an excellent summary of the Voting Rights Act – including history and the effects of the Act – that would be highly useful for this activity. Next, have students analyze their topic by answering the questions below (where applicable):

1. How did the case/law change and/or clarify the voting rights of citizens? 2. How did the case/law change and/or clarify the powers of the federal

government? 3. How did the case/law change and/or clarify the powers of state governments?

When the analyses are done, congregate the students by topic so they may review and confirm their findings. Then, have all students return to their initial group to share their insights (this is a jig saw cooperative learning model). Discussion Questions

What significant changes to voting rights in the United States have occurred in the last 50 years?

How has the Constitution shaped voting rights in the United States?

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What are the challenges facing states today when it comes to regulating the voting process? What are the challenges facing the federal government?

Do state governments have more or less power to regulate voting today than they did 50 years ago?

Does the federal government have more or less power to regulate voting today than they did 50 years ago?

Is voting in the United States today more or less fair than it was 50 years ago? 10 years ago?

Short Answer/Essay/Debate Prompts

How and why did the Supreme Court’s interpretation of the extent of federal government authority change over time?

Does the federal government have too much power under the Constitution? Why or why not?

Do current federal laws invade the rights reserved to the states under the Constitution? Why or why not?

Has the U.S. Supreme Court expanded federal authority beyond what was intended by the framers of the Constitution? Why or why not?

Is the federal system of government created by the Constitution the most efficient way to govern the United States of America? Why or why not?

Has the federal system of government created by the Constitution kept up with the times? Why or why not?

Summative Assessments

Create a graphic tool that illustrates how the division of power in our constitutional federal system has been clarified and/or changed over time by the Supreme Court and/or federal law. Include an explanation of how the division of power was clarified or changed by each case and/or law. Students could complete additional research to add depth to the material covered in class.

Prepare a position paper on and debate the question: Has the Supreme Court’s

interpretation of the balance of power between the federal and state governments kept up with the times? Additional research could be required to add depth to the position papers and debate.

Compare two or more Supreme Court cases on the extent of federal government

authority, specifically describing the facts and holding of each case, the reasoning used by the Court, and how the extent of federal power was clarified and/or changed as a result of the later case.

Write a letter to a federal government official that explains why you agree or

disagree with the extent of the power exercised by the federal government over the states over time or recently in one specific case. The letter should include

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evidence based in the Constitution and its interpretation by the U.S. Supreme Court that supports your conclusion(s).

Research the Affordable Care Act and argue for or against its passage as a valid

exercise of the authority granted to the federal government by the Constitution. Use Supreme Court cases, historical documents and other evidence to support your reasoning. Analyze the Supreme Court’s determination of the constitutionality of the Affordable Care Act in 2013 and compare and contrast the Court’s holding and reasoning in those cases to your own arguments.

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Additional Resources Federalism A More Perfect Union: The Creation of the U.S. Constitution Annenberg Classroom’s Best Civics Sites for Teachers Articles of Confederation Constitution of New Hampshire (1776) Constitution USA: Federalism (PBS) Executive Order 13132 - "Federalism" Federalist No. 44: Restrictions on the Authority of the Several States (Madison) Federalist No. 46: The Influence of the State and Federal Governments Compared (Madison) iCivics game Power Play National Constitution Center's blog posts on federalism The New York Times Room for Debate series: State Politics vs the Federal Government Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom Our Constitution, an iBook with commentary from Annenberg Classroom The Pursuit of Justice, an eBook on powerful Supreme Court cases from Annenberg Classroom Presidential Memorandum Regarding Preemption Teaching the Constitution resources at Annenberg Classroom Your Bill of Rights videos at Time Magazine Marijuana laws and policy Colorado marijuana legalization law (full text) How safe is recreational marijuana?

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Medical marijuana debate at ProCon.org Medical marijuana laws by state New Hampshire medical marijuana law (HB 573) Office of National Drug Control Policy’s Marijuana Resource Center Recent Gallup poll on marijuana use and legalization Washington marijuana legalization law (full text) Voting Rights Full Text of the Voting Rights Act of 1965 at the Avalon Project (Yale) The Right to Vote in Annenberg’s eBook Our Rights (pdf) The Voting Rights Act of 1965 at Our Documents

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Chapter 3: DEFINING EQUALITY

Abstract One of the most litigated parts of the U.S. Constitution, the Fourteenth Amendment has been at the forefront of America’s search for equality. The meaning of this obscure constitutional value has evolved over time as a result of changing cultural conceptions and legal interpretations of the Constitution's Amendments. As part of Constitutionally Speaking’s inquiry into the question – “How Does the Constitution Keep Up with the Times?” – the materials that follow explore how the constitutional value of equality has evolved throughout American history.

Relevant Constitutionally Speaking Videos

Choice of Principles

Speakers: David H. Souter, U.S. Supreme Court Justice (Retired) William Chapman, Esq., Shareholder, Orr & Reno Patrick Shin, Assistant Dean & Professor, Suffolk University Law School Length: 9 min 06 sec Theme: Justice Souter, Attorney Chapman, and Professor Shin contrast the societal

norms of 1896 when Plessy v. Ferguson was decided with those of 1954 when the Brown v. Board of Education ruling came down. The “separate but equal” doctrine is placed in its historical context, coming as it did 58 years before the Warren Court declared segregated schools unconstitutional.

The Great Dissenter Speaker: Patrick Shin, Assistant Dean & Professor, Suffolk University Law School Length: 4 min 00sec Theme: Professor Shin examines Justice John Marshall Harlan’s Plessy v. Ferguson dissent, which provides the historical basis for the idea of a “color-blind” Constitution. Replete with racist content, Harlan’s dissent nonetheless expresses an aspirational view of the Constitution as conferring equality on all citizens regardless of skin color or economic class. In the Interest of Equality

Speaker: Patrick Shin, Assistant Dean & Professor, Suffolk University Law School Length: 6 min 15 sec Theme: Professor Shin explores the tension between diversity and equality as the two

values relate to affirmative action in higher education. In the absence of true racial equality, Shin considers the necessity for allowing consideration of race in university admissions decisions.

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Chapter Outline

Learning Objectives Page 49 Relevant U.S. Supreme Court Cases Page 50 Important Terms Pages 51-52 Learning Activities and Assessments Pages 53-64 Additional Resources Page 65

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Learning Objectives

Goal Students will be able to analyze how the constitutional value of equality has changed over time. Students will understand that....

The U.S. Supreme Court is the supreme authority over the meaning of the U.S. Constitution and has changed its interpretation of the Constitution over time.

While the concept of equality was included in the Declaration of Independence, its meaning has changed over time.

The Fourteenth Amendment prohibits states from denying any person within its jurisdiction the equal protection of the laws.

Decisions of the Supreme Court have a profound impact on everyday lives of American citizens.

Changing interpretations of constitutional values allow the Nation’s founding document to keep up with the times.

Essential Questions

How has the principle of equality changed over time? Why was the Fourteenth Amendment adopted? Is preferential treatment consistent with the constitutional value of equality? How far have we gone as a country in achieving equality for all? How far do we still have to go as a country to achieve equality for all? How does the Constitution keep up with the times?

Students will know...

Important terms regarding equality and the Fourteenth Amendment. Key facts about the Fourteenth Amendment and how the Supreme Court has

interpreted it over time. Key Supreme Court cases on equality and the Fourteenth Amendment.

Students will be able to...

Recognize, define, and use vocabulary in context. Research Supreme Court cases and recent news on equality and the Fourteenth

Amendment to add depth to their understanding of its development over time. Express their learning orally during class discussions and in writing. Collaborate successfully with their peers to improve and express their learning.

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Relevant U.S. Supreme Court Cases Each case is followed by a link to the full-text opinion at Cornell University's Legal Information Institute and a case summary at Oyez.org. Title (year) Full Text Summary Equal Treatment Dred Scott v. Sanford (1857)* Full Text Summary Plessy v. Ferguson (1896)* Full Text Summary Brown v. Board of Education (1954)* Full Text Summary Hollingsworth v. Perry (2013) Full Text Summary United States v. Windsor (2013) Full Text Summary Affirmative Action Regents of the University of California v. Bakke (1978) Full Text Summary United Steel Workers of America v. Weber (1979) Full Text Summary Fullilove v. Klutznick (1980) Full Text Summary Memphis Fire Department v. Stotts (1984) Full Text Summary Wygant v. Jackson Board of Education (1986) Full Text Summary U.S. v. Paradise (1987) Full Text Summary Johnson v. Transportation Agency (1987) Full Text Summary City of Richmond v. Croson (1989) Full Text Summary Adarand Constructors v. Pena (1995) Full Text Summary Grutter v. Bollinger (2003) Full Text Summary Gratz v. Bollinger (2003) Full Text Summary Fisher v. University of Texas** (2013) Full Text Summary *Teaching materials – including case summaries and excerpts – are available for these cases at Landmark Supreme Court Cases of the U.S. Supreme Court. **The full text opinions of the Fisher v. University of Texas are available at the Supreme Court’s website but is not yet available through Cornell University’s Legal Information Institute. The New York Times has an excellent summary the case and the arguments on both sides on its website as well.

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Important Terms affirmative action A set of procedures designed to eliminate discrimination

between applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment.

discrimination Different treatment for similarly situated parties, especially

when no legitimate reason appears to exist. An employer who rejects all male applicants and hires the first female applicant with the same qualifications might be discriminating on the basis of gender. The more repugnant the discrimination, the more likely it is to be found unlawful under the U.S. Constitution or some other law.

due process The Constitution states only one command twice. The Fifth

Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures.

Equal Protection The Equal Protection Clause of the 14th amendment of Clause the U.S. Constitution prohibits states from denying any

person within its jurisdiction the equal protection of the laws. See U.S. Const. amend. XIV. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances.

intermediate scrutiny Intermediate scrutiny is a test courts sometimes use to

determine if a law is constitutional. To pass intermediate scrutiny, the challenged law must further an important government interest by means substantially related to that interest. Intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. It is used in Equal Protection challenges to gender classifications, as well as in some First Amendment cases.

procedural due process Constitutional principle that a citizen must be given notice

and an opportunity to be heard before the state or federal

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government acts in such a way that denies life, liberty, or property interest.

rational basis Rational basis review is the most lenient form of judicial

review, sometimes used to determine a law's constitutionality. To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. It is generally used when in cases where no fundamental rights or suspect classifications are at issue.

stare decisis Latin for “to stand by things decided.” Stare decisis is

essentially the doctrine of precedent. Courts cite stare decisis when an issue has previously been brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true.

strict scrutiny Strict scrutiny is a form of judicial review that courts use to

determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, and alienage.

substantive due process A doctrine holding that the Constitution’s 5th and 14th

Amendments require that all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest. During the middle of the 20th century, the U.S. Supreme Court used substantive due process to give added force to the 4th, 5th and 6th Amendments by constraining certain actions by law enforcement, prosecutors, and judges.

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Learning Activities & Assessments

Part 1: Equality and the Constitution In these activities students will construct a definition of equality; trace the evolution of equality over the course of American history; and consider how the constitutional value of equality is applied in practical terms.

Step 1: The Declaration of Independence Write or project the following text from the Declaration of Independence on the board or screen: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Ask students to write down whether they think this phrase applied to everyone at the time the Declaration was written. Who did the phrase apply to and who was not covered? Have students share their responses with partners or in small groups for several minutes, then lead a class discussion. Create a list of the students’ responses that is visible to the class. Step 2: Defining Equality Ask students to define the word equality. Rather than writing their responses down on paper, have students record their answers on a random or designated spot on the classroom whiteboard, chalkboard, or chart paper. When all of the responses have been posted, have students walk around and analyze their classmates’ responses. Develop a chart to note similarities, differences, and surprises. Have students return to their seats and lead a class discussion about the results. Discussion Questions

Does the word equality mean different things to different people? Why? Does treating people equally mean treating them the same? Is equality a desirable outcome for society? Why or why not? Explain. Is equality an achievable outcome for society? Why or why not? Explain? Is equality an inherent right of all people? Does context change the meaning of equality?

o Racial equality? o Equal opportunity? o Equal access? o Equal ability? o Historical time period? o Does everybody deserve to be treated equally? Is inequality ever

justified?

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Use these results and discussion to create a class definition. When the class has finalized its definition, write it on the board, a large piece of paper posted on the wall, or another location that will remain visible for the duration of the lesson. Use the class definition throughout the lesson and allow it to change as students discuss the idea of equality and their thinking evolves. Step 3: The Road to Equality Ask students to fold a piece of paper in half so they can create two lists. Entitle one list ‘Inequality in the Past,’ and the other list ‘Inequality Today’. Ask students to list the inequalities people have faced throughout American history and the inequalities people endure today. Have students check their lists against the class definition of equality and adjust the definition if necessary. Ask probing questions to encourage deeper thinking among students. Using the lists created by students, create a master list on the board or projector for students to see. Discuss and debate the examples given and determine if each is an example of past or present inequality, adjusting the lists as necessary. Discussion Questions

Based on the lists, has there been noticeable progress on any issues of inequality? What accounts for this progress?

Based on the lists, has there been any noticeable lack of progress on any issues of inequality? What accounts for this lack of progress?

Have there been any attempts at rectifying these inequalities? With what results? Does government play any role in trying to eradicate these inequalities? What can society do, if anything, to eradicate these inequalities?

As a wrap up exercise, define and discuss strict scrutiny, intermediate scrutiny, and rational basis review (see Important Terms, pages 51, 52). Then, provide each student with a Debate Carousel sheet (see APPENDIX B). Have students respond to the prompt below: Is it ever acceptable for the government, individuals, or institutions to discriminate against individuals or groups of people? After completing the Debate Carousel, lead a class discussion. Discussion Questions

Why might people disagree about discrimination and/or equality? Do you think other generations would respond the same way you did? Why might historical/political context affect responses to this question? Where do individual concepts of equality come from? Where did you learn about

equality and from whom? Do you think your response to this question would vary depending on the context

of the discrimination?

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Learning Extension Conduct a Constitutional Convention Role Play exercise. First, divide students into five groups to research what life was like for communities of people at the time of the Constitutional Convention. They might also consider how the social, political, and economic issues facing their communities influenced their views on the proposed adoption of a new Constitution. The groups could include:

1. Workers (e.g. shoemaker from N.H.) 2. Southern Planters (e.g. tobacco planter) 3. Farmers (e.g. small farmer from Massachusetts) 4. Enslaved African American (e.g. slave from Virginia tobacco plantation) 5. Banker / Merchant (e.g. banker from New York)

Let students know they are going to have to resolve some issues at a Constitutional Convention based on their research. Issues to be addressed could include:

1. Should slavery be legal in any states? 2. Should the slave trade be legal? 3. Should Northerners be forced to return runaway slaves to their owners? 4. Can states allow debts to be “paid in kind”? 5. Should bonds issued during the Revolutionary War be paid back? 6. Who should be allowed to vote in general elections? Should states be able to

exclude certain classes or groups of people from voting? Open the Convention. Have each group present its positions on the issues under consideration, then vote on each question. After members of the Convention have made their decisions, compare their results to what actually happened by reviewing the United States Constitution. Discussion Questions

Were all groups treated equally at the Constitutional Convention? Should we scrutinize the Constitutional Convention with a modern or historical

lens? Did the Constitution at the time of its adoption provide a means through which

underrepresented groups could achieve equality?

Part 2: The Fourteenth Amendment & Equality These activities will help students articulate the meaning of the Fourteenth Amendment; examine how over time the Supreme Court has changed its interpretation of equality and the Fourteenth Amendment; and evaluate the outcome of landmark cases and the evolving meaning of equality.

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Step 1: The Impact of the Civil War on American Values Ask students to consider how American values have changed since the Civil War. Have them fold a piece of paper in half to create two columns. Title one column “Causes of the Civil War”, and the other “Outcomes of the Civil War.” Divide students into small groups to discuss what they believe were the causes and outcomes of the Civil War, then report their findings to the class. Keep a master list on the board or projector for reference during a class discussion. Discussion Questions

How did the Civil War affect American values? How might these changes in values influence the United States Constitution? Can you think of specific examples of how the Constitution/ laws/society changed

after the Civil War? How did the Civil War affect the idea of equality?

Step 2: Equality and Constitutional Text Explain to students that while equality is a deeply regarded constitutional and cultural belief, it is not mentioned in the United States Constitution. The closest the text comes to addressing the concept of equality is the Equal Protection Clause of the Fourteenth Amendment, ratified in 1868. Section I of the Fourteenth Amendment reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” To better understand this text, have students rewrite the language from Section I of the Fourteenth Amendment in their own words. Tell students the point is to capture the meaning of the text, not to engage in a word-for-word translation. When students have completed their interpretations, divide them into groups to consider what their classmates have come up with. Alternatively, small groups could discuss and debate the meaning of the text and develop a group interpretation, then report to the class verbally or by writing it somewhere that is visible to all. The class can use the various interpretations to develop a class understanding of the text. Step 3: The Evolving Meaning of the Fourteenth Amendment First, have students read The Fourteenth Amendment in its entirety as well as the four pages of background information (link below), which is written at an advanced reading level.

Ritchie, Donal A. Our Constitution. N.p.: Oxford University Press, 2006. 158- 162. Annenberg Classroom, The Leonore Annenberg Institute for Civics. Web. 9 July 2013.

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http://www.annenbergclassroom.org/Files/Documents/Books/Our%20Constitution/Fourteenth%20Amendment_Our%20Constitution.pdf Based on the reading and using the questions that follow, lead a class discussion or ask students to write out their responses. Discussion Questions

What was the original intent of the Fourteenth Amendment? Why was the Fourteenth Amendment necessary if the Declaration of

Independence stated all men were created equal? What are the main components of the Fourteenth Amendment? What is the difference between due process and equal protection? What are the

two types of due process and what is the difference between them? How does the Fourteenth Amendment limit the power of the states? How has the Fourteenth Amendment affected the composition of Congress? How has Congress used the last section of the Fourteenth Amendment to enforce

its provisions? Explain the concept of incorporation and how it has been carried out. Using the timelines from the reading, explain how interpretations of equality and

the Fourteenth Amendment have changed over time. Step 4: Supreme Court Interpretations of Equality Have students review Dred Scott v. Sanford, Plessy v. Ferguson, and Brown v. Board of Education (links provided below). These Supreme Court cases deal specifically with equality and the Fourteenth Amendment, and illustrate the evolving nature of both. Use Street Law’s Case Study Teaching Strategy while reviewing the cases.

http://www.streetlaw.org/en/landmark/teaching_strategies/case_study Dred Scott v. Sanford (1857) http://www.streetlaw.org/en/landmark/cases/dred_scott_v_sandford Plessy v. Ferguson (1896) http://www.streetlaw.org/en/landmark/cases/plessy_v_ferguson Brown v. Board of Education (1954) http://www.streetlaw.org/en/landmark/cases/brown_v_board_of_education Discussion Questions

How did the Court’s interpretation of equality change over time? What about the facts mattered to the Court in each of these cases? Did what they

considered facts and what the facts meant change over time? How did the Court’s interpretation of the Fourteenth Amendment change over

time?

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What factors led the Court to rule the way it did in each of these cases? Do you think Americans’ concept of equality played a role?

How might society be different today if “separate but equal” had remained constitutional?

Step 5: Choice of Principles Video Presentation Show the Constitutionally Speaking video Choice of Principles to facilitate your students’ understanding of the Supreme Court’s changing interpretation of the Fourteenth Amendment and the constitutional value of equality. Students will need time after the video ends to complete the questions. They may benefit from working with a partner or in a small group. Discuss the answers in small groups and/or as a class. Video Discussion Questions: Choice of Principles

1. How did the Court’s view of equality change between Plessy v. Ferguson and Brown v. Board of Education?

2. Why does Justice Souter believe it is unrealistic and unfair to suggest Plessy was wrong the day it was decided?

3. Why is it significant that the Court not only considered the objective, physical, measurable facts in Brown v. Board of Education, but also what those facts meant?

4. How can “what we see” affect how the Supreme Court interprets the meaning of the Constitution and its specific provisions?

5. Why did the Warren Court consider separate but equal educational facilities inherently unequal in Brown v. Board of Education?

6. How does our capacity to determine the meaning of facts change over time?

Step 6: An Impassioned Dissent Ask students to reread Plessy v. Ferguson. If they have not done so already, have them read the Dissenting Opinion authored by Justice John Marshall Harlan. Key excerpts can be found at the Street Law website (link below). After students have read Harlan’s dissent, have a class discussion to check for understanding. http://www.streetlaw.org/en/Page/434/Key_Excerpts_from_the_Dissenting_Opinion Discussion Questions

How can dissenting opinions affect the outcome of future cases? How does this illustrate the concept of the Constitution keeping up with the

times? Is there text in the Brown decision that reflects Harlan’s sentiments in Plessy? How, if at all, does this relate to stare decisis, the Court’s deference to previous

rulings, and judicial review? Next, introduce the Constitutionally Speaking video The Great Dissenter, in which Professor Shin introduces students to the social context in which Justice Harlan wrote his

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dissent. After viewing, have students discuss the questions below, either in small groups or as a class. Video Discussion Questions: The Great Dissenter

1. Explain the competing concepts of color blindness espoused by Justice Harlan in his dissent in Plessy v. Ferguson (1896).

2. Are Justice Harlan’s words regarding race in America encouraging or discouraging given the historical and political context of the case?

3. How do Justice Harlan’s words illustrate Justice David Souter’s assertion that our understanding of the Constitution changes over time?

4. Did Justice Harlan’s Dissenting Opinion have a significant impact on the outcome of Brown v. Board of Education (1954)?

Learning Extension Break students into small groups and have them review different cases related to equality and the Fourteenth Amendment. Each group could review one or multiple cases and the cases could address different topics (e.g. Due Process, Equal Protection, Suspect Classifications). Particular attention should be paid to Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage that was decided by the U.S. Supreme Court in June 2013, and United States v. Windsor, the U.S. Supreme Court’s ruling on the constitutionality of the federal Defense of Marriage Act. Use the Case Study Teaching Strategy from Street Law when reviewing cases.

http://www.streetlaw.org/en/landmark/teaching_strategies/case_study Once students have mastered the material, reassign the groups so that each new group has one student expert on each case. Have students explain their cases and record outcomes for a master list of chronologically ordered developments in Fourteenth Amendment rulings. Individually or by group, have students diagram the changes that have occurred over time. Discussion Questions

How has the Supreme Court’s interpretation of equality and the Fourteenth Amendment changed over time?

What text of the Fourteenth Amendment did the Court cite in their decisions? Why did the Court cite these sections? Did the interpretation of these sections change over time?

Did you agree with the Court’s view in each case? With which rulings did you disagree? Why? With which decisions did you agree? Why?

Was there a “play of constitutional values” taking place in any of these cases? In other words, did the Court have to strike a balance between equality and another value such as liberty? Which principle prevailed and why?

Did shifts in the attitudes of American society played a role in how the Supreme Court ruled in any of these cases?

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Short Answer/Essay/Debate Prompts How has the constitutional interpretation of equality changed over time? Why has the constitutional interpretation of equality changed over time? Does the Supreme Court’s current view of equality and the Fourteenth

Amendment reflect the views of 21st century Americans? Does it adequately protect equality? Why or why not?

Do your views of the Fourteenth Amendment and equality mesh with the Supreme Court’s view?

Summative Assessments

Conduct a class debate or have students create position papers on the following

question: Has the Supreme Court’s interpretation of equality kept up with the times? This could be a research project with students presenting their papers or taking part in a formal debate.

Create a timeline illustrating the evolution of equality throughout the course of

American history. Include specific historical events, court cases, figures, and explanations about how the view/interpretation of equality changed at each juncture. This could be done as a long-term project broken into chunks.

Conduct a Moot Court related to a case not already reviewed by the students. The

case could be historical or from a lower court, but should be related to equality and the Fourteenth Amendment.

Compare two or more cases related to equality and the Fourteenth Amendment

using the Case Study Teaching Strategy. After reviewing the cases, students could explain how the interpretation of equality has changed over time.

Research the Civil Rights Act of 1964. What were the key components of the

legislation and why were they included? How does the Civil Rights act relate to the Supreme Court cases reviewed in class, and how does it relate to a change in the views towards equality and Fourteenth Amendment?

Research Hollingsworth v. Perry. How does this case relate to the issues of

equality and the Fourteenth Amendment? Is it a violation of the Fourteenth Amendment for states to prohibit same sex marriage?

Part 3: Equality and Equal Treatment These activities will introduce students to the history of affirmative action and the tension between the constitutional values of equality and equal treatment. Step 1: Introductory Activity: Defining Affirmative Action First, ask students to write their own definitions of affirmative action on a random or designated spot on the classroom whiteboard, chalkboard, or chart paper. After everyone

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has finished, have students walk around and analyze their classmates’ responses. Create a chart to note similarities, differences, and surprises. Have students return to their seats and compare their definitions with the definition in Important Terms (see page 51) and adjust accordingly. Discuss examples of affirmative action so students better understand the practice. Step 2: In the Interest of Equality Video Presentation Introduce the Constitutionally Speaking video In the Interest of Equality, which explores the tension between the constitutional values of equality and equal treatment in the affirmative action context. Pause the video at the 1:07 mark and have students complete a Debate Carousel exercise (see APPENDIX B) using the following prompt: Is it consistent with the constitutional value of equality to give some people a preference in order to make a particular community more diverse? After students have reviewed their completed Debate Carousel sheets, conduct a class discussion about the results. What were the most compelling arguments? Resume the video at the 1:07 mark. After the viewing, have students discuss its key points in small groups or as a class. Video Discussion Questions: In the Interest of Equality

1. Is it in conflict with the constitutional value of equality to give under-represented populations a “boost” in order to achieve diversity?

2. What is affirmative action and what is its purpose or goal? 3. Why did the Supreme Court find affirmative action within higher education

consistent with the constitutional value of equality? 4. Does diversity serve the constitutional value of equality? 5. Is affirmative justifiable outside of higher education?

Step 3: Executive & Legislative Affirmative Action Initiatives Tell students they are going to explore affirmative action and anti-discrimination practices through the use of primary sources. Set up stations with one document per station and have students fill out a primary source analysis sheet for each. Use the APPARTS method (see APPENDIX A) when completing the primary source analysis. Students can then use the primary source analysis sheets to answer the follow up questions. The documents are as follows: Executive Order 10925 http://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html Executive Order 11246 http://www.dol.gov/ofccp/regs/compliance/ca_11246.htm Civil Rights Act of 1964 http://www.archives.gov/education/lessons/civil-rights-act/

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Voting Rights Act of 1965 http://www.ourdocuments.gov/doc.php?flash=true&doc=100 Title IX of The Education Amendments of 1972 http://www.justice.gov/crt/about/cor/coord/titleixstat.php Individually or in groups, have students address the questions below using the primary source documents and analysis sheets. Discuss the responses as a class and keep track of significant excerpts and text from the documents. Use an overhead or projector to point out this language to students and have them highlight or write down these passages. Discussion Questions

What was the intent of these Executive Orders and Acts of Congress? How does each Executive Order and Act represent changing views on equality

and how society should go about achieving it? Do these Executive Orders and Acts appeal to the values of the Fourteenth

Amendment? If so, cite specific sections or clauses. In your view, have Americans’ views of equality changed to the point where these

Executive Orders and Acts are unnecessary? How does affirmative action differ from diversity?

Step 4: Supreme Court Rulings on Affirmative Action To facilitate student exploration of how the Supreme Court has weighed in on affirmative action, select cases from those listed under Affirmative Action (page 50) – reserving Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v. University of Texas at Austin for later in the lesson. Using Street Law’s Case Study Teaching Strategy, have students work in small groups to complete case studies.

http://www.streetlaw.org/en/landmark/teaching_strategies/case_study Once students have mastered the material, reassign the groups so that each new group has one student expert on each case. Have students explain their cases and record outcomes for a master list of chronologically ordered developments in affirmative action rulings. Individually or in groups, have students diagram the changes that have occurred over time. Next, have students review Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), and Fisher v. University of Texas at Austin (2013). Discussion Questions

How has the Supreme Court’s interpretation of equality and affirmative action changed over time?

What different circumstances did the Court consider in each case?

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Has the Court historically viewed affirmative action as absolute or permissible only under certain circumstances?

Do you disagree with the Court’s decision in any of the cases? Which ones and why?

Do you agree with the Court’s decision in any of these cases? Which ones and why?

What did the Court decide in Grutter and Gratz? What did it rule in Fisher and what are its implications for university admissions policies in the future?

Is discrimination/sexism /racism still an issue that needs to be addressed by Congress, the Court, and the various states?

Short Answer/Essay/Debate Prompts:

Has your opinion toward the question from the Debate Carousel exercise changed? If so why? If not, what affirmed their position?

Do you agree with the Supreme Court’s pre-Fisher ruling that affirmative action, in the context of higher education, is permissible?

Did the Court reach its decision in a similar fashion in Brown v. Board of Education? Was it necessary to look beyond the “measurable facts” and consider what those facts meant?

Is affirmative action permissible in any context other than higher education? Does affirmative action conflict with or serve the constitutional value of equality? Is it consistent with the constitutional value of equality to give some people a

preference in order to make a particular community more diverse?

Summative Assessments

Create position papers on or debate the following question: Does affirmative action conflict with or serve the constitutional value of equality?

Conduct a Moot Court related to an affirmative action or equality case not already

reviewed by the students. The case could be historical or from a lower court.

Create a graphic tool that illustrates the evolution of equality over time. Include dates, case names where possible, and descriptions of how equality changed at each point. Students could undertake additional research to add depth to the material covered in class.

Compare two or more Supreme Court cases on equality, specifically describing

the facts and holding of each case; the reasoning used by the Court; and how the understanding of equality as a right changed as a result of the later case.

Write a letter to a federal government official that explains why you agree or

disagree with the Supreme Court’s current interpretation of equality and ask the official to take a specific action in support of or to challenge existing case law.

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Additional Resources Your Bill of Rights (Time magazine online) 11 short videos explaining the history and meaning of each Amendment in the Bill of Rights.

Equality Annenburg Classroom: A Conversation on the Constitution-The 14th Amendment Best Civics Sites for Teachers at Annenberg Classroom Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom

Our Rights, an eBook on civil rights from Annenberg Classroom Teaching the Constitution resources at Annenberg Classroom American Bar Association Lesson Plans

Affirmative Action American Civil Liberties Union: Affirmative Action United States Department of Labor: Hiring-Affirmative Action Miller Center: National Discussion and Debate Series- The Future of Affirmative Action Cornell Legal Information Institute: Affirmative Action Bill of Rights Institute: Affirmative Action and the Constitution New York Times: Times Topics- Affirmative Action American Bar Association: What’s Next for Affirmative Action

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Chapter 4: PRIVACY and The FOURTH AMENDMENT

Abstract The right of privacy is not explicitly stated in the U.S. Constitution. Rather, the Supreme Court has ruled over time that privacy is implicitly protected by numerous constitutional amendments. Changing cultural conceptions, technological advancements, and Supreme Court rulings have played a role in the evolution of this right, which is sometimes implicated when the government exercises its police power. Limitations on how far the government can go in conducting “search” fall within the Fourth Amendment. As part of Constitutionally Speaking’s inquiry, “How Does the Constitution Keep Up with the Times?" the materials that follow explore changes in the constitutional right of privacy and what constitutes a legal search and seizure.

Relevant Constitutionally Speaking Videos Reasonable Expectations of Privacy Speaker: Professor Jessica Silbey, Suffolk University Law Length: 6 min 39 sec Synopsis: Professor Silbey discusses the three areas of privacy that are afforded

varying degrees of constitutional protection: bodily, spatial, and informational. Each raises thorny issues, from the right to refuse medical treatment, to the legitimate use of electronic surveillance in and around a person’s home, to what reasonable expectation of privacy an individual has when disclosing information online.

Your House is Your Castle Speaker: The Honorable James Duggan, New Hampshire Supreme Court (Retired) Length: 8 min 19 sec Synopsis: Justice Duggan traces the evolution of the Fourth Amendment definition

of “search.” From microphones attached to phone booths to GPS devices attached to cars, advances in technology have provided new investigative tools that potentially conflict with the individual’s right to be “secure in their persons, houses, papers and effects against unreasonable search and seizure …”

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Chapter Outline Learning Objectives Page 67 Relevant U.S. Supreme Court Cases Page 68 Important Terms Page 69-70 Learning Activities and Assessments Pages 71-81 Additional Resources Page 82

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Learning Objectives Goal Students will be able to analyze how the constitutional right of privacy and the definition of search and seizure have evolved over time. Students will understand that....

The U.S. Supreme Court is the supreme authority over the meaning of the U.S. Constitution and can change its interpretation of the Constitution over time.

The U.S. Supreme Court has recognized the right of privacy as an implicit right contained within the Bill of Rights.

While a general right of privacy has been recognized since colonial times, the meaning of the right of privacy has changed over time.

Technological advancements have caused the Supreme Court to reevaluate the meaning of a search under the Fourth Amendment.

Changing interpretations of the Constitution allow it to keep up with the times. Essential Questions

Why is the Supreme Court permitted to change its interpretation of the U.S. Constitution?

What is the difference between an explicit and an implicit legal right? How and why has the meaning of the right of privacy changed over time? Why has the Supreme Court periodically reevaluated the meaning of a search

under the Fourth Amendment? How does the Constitution keep up with the times?

Students will know...

Important terms regarding the right of privacy and searches under the Fourth Amendment.

Key facts about the changing interpretation of the right of privacy and more specifically the Fourth Amendment.

Key Supreme Court cases on the right of privacy and more specifically on the Fourth Amendment.

Students will be able to...

Recognize, define, and use right of privacy and Fourth Amendment vocabulary in context.

Research Supreme Court cases and recent news on the right of privacy and the Fourth Amendment to add depth to their understanding of its development over time.

Express their learning orally during class discussions and in writing. Collaborate successfully with their peers to improve and express their learning.

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Relevant Supreme Court Cases Each case is followed by a link to the full-text majority opinion at Cornell University's Legal Information Institute as well as a link to a case summary at Oyez.org unless otherwise indicated. Title (year) Full Text Summary Right of Privacy in General Meyer v. Nebraska (1923) Full Text Summary Olmstead v. United States (1928) Full Text Summary Griswold v. Connecticut (1965) Full Text Summary Katz v. United States (1967) Full Text Summary Loving v. Virginia (1967) Full Text Summary Stanley v. Georgia (1969) Full Text Summary Roe v. Wade (1972) Full Text Summary Moore v. East Cleveland (1977) Full Text Summary Bowers v. Hardwick (1986) Full Text Summary Cruzan v. Missouri (1990) Full Text Summary Planned Parenthood v. Casey (1992) Full Text Summary Washington v. Glucksberg (1997) Full Text Summary Lawrence v. Texas (2003) Full Text Summary Fourth Amendment Olmstead v. United States (1928) Full Text Summary Silverman v United States (1961) Full Text* Katz v. United States (1967) Full Text Summary United States v. Knotts (1982) Full Text Summary United States v. Karo (1984) Full Text Summary Kyllo v. United States (2001)** Full Text Summary United States v. Jones (2012) ** Full Text Summary

*Full text majority opinions located at Justia.com’s U.S. Supreme Court Center. **Additional case summaries and excerpts are available for these cases in Street Law Inc.’s Resource Library.

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Important Terms affidavit A legal document that contains a written declaration of

facts. Government officials often submit affidavits when seeking search warrants, as proof that there is probable cause to believe that evidence of a crime exists.

countervailing interest An interest that counterbalances, counteracts or offsets

another interest. For example, while the First Amendment appears to protect the act of yelling fire in a crowded movie theater when there is no fire, the government has a countervailing interest in protecting public safety by prohibiting false statements that put people in immediate danger. Protecting public safety is the countervailing interest to protecting free speech.

effects As used in the Fourth Amendment, effects means private

property in general. explicit right A right created by direct, specific statements. implicit right A right created not by direct, specific statements, but by

language that implies or indirectly suggests it exists. privacy, private Free from public attention, knowledge, and/or observation. probable cause In the case of a search warrant, probable cause is the

Fourth Amendment requirement that there is a reasonable basis for believing that evidence of the crime is present in the place to be searched.

trespass Knowingly violating another person's property rights

without permission. This includes such actions as physically moving onto another person's land or into another person's house or car without permission, as well as placing an object on or inside another's person's property without permission.

warrant A legal order given by a judge authorizing and/or ordering

a government official to do something. A search warrant authorizes a government official to search a specific location and seize specific property. In order to get a warrant the government must describe the place to be searched and the property to be seized as well as explain

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why there is probable cause that the property will be there and can be legally seized.

wiretapping Secretly monitoring an electronic conversation between

two or more people (i.e. telephone or Internet).

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Learning Activities & Assessments

Part 1: The Right of Privacy and the U.S. Constitution In these activities students will explore the meaning of privacy and the development of the constitutional right of privacy over time. Step 1: Introductory Activity: Defining Privacy In this activity students will define and explore the concept of privacy, types of privacy, and the concept of countervailing interests. Have students define the term privacy (or private) on a sheet of paper, or answer this question: What do we mean when we say something is private? Encourage students to investigate the word in the dictionary or use online resources. Have students share their responses with a partner or in a small group setting for several minutes, then lead a class discussion in order to create a class definition for the term privacy. Alternatively you could ask each small group to discuss and create a group definition to present to the class. When it appears the class has settled on a definition, write the definition on the board, on a large piece of paper to post on the wall, or another location that will remain visible for the duration of the lesson. Then ask students to make lists of things in their lives they consider private (general descriptions are encouraged, i.e. my locker combination, my text messages, my diary, my bedroom, etc…). Create one master list of private things from the students’ compilations, and display it alongside the class definition of privacy. Discuss whether the definition needs to be amended based on the lists developed, allowing for change as the students’ thinking about privacy evolves. Ask students to group the items on the master list into categories that reflect similarities; i.e., private information, private places, etc. Theses categories can be called types of privacy. Familiarize students with the concept of countervailing interests (see Important Terms, page 70). In small groups, have students consider the following question: Under what circumstances is it acceptable for the government to invade your privacy? Discuss the group responses as a class and create a list of the potential countervailing interests when dealing with privacy issues. Discussion Questions

Was there any disagreement among students in the class over how privacy should be defined? What were the disagreements about? Were the disagreements resolved during the discussion or do students still disagree?

Is there anything that you consider private that someone else does not? Is there anything that someone else considered private that you do not? Why do you think those differences exist?

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Do you think that your definition of privacy is the same as your parents? Your grandparents? Why or why not?

Why do you think people have different perspectives on what they consider private? What factors may affect how a person views privacy? Where did your opinion on privacy come from - in other words, from whom and when did you learn what was considered private?

Why do people disagree about when it is acceptable for the government to invade a person's privacy? How has technological advancement made this a more important question today than it has been in the past?

Learning Extension Ask students to interview several adults and/or students outside of class and ask them for their definition of privacy as well as their response to follow up questions 2-4 above. These responses can add to the students' understanding of the variations in how privacy is defined and the reasons for those variations. Step 2: Constitutionally Speaking Video: Reasonable Expectations of Privacy Show the Constitutionally Speaking video Reasonable Expectations of Privacy to introduce students to the different types of privacy acknowledged and/or debated in the United States today. Students will need time after the video ends to complete the questions and may benefit from working with a partner or in a small group. Discuss the answers in small groups and/or as a class. Use the questions below to further evaluate the class's definition and types of privacy. Video Discussion Questions: Reasonable Expectations of Privacy

1. According to Professor Silbey, some people believe that privacy was the "impetus behind the Bill of Rights." Impetus can be defined as the force that causes something to occur. Based on what you know about American history and the Bill of Rights, do you agree or disagree with her statement? Why?

2. Reread the quote that was referenced in the video:

Instantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life, and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops'. On Privacy. Louis Brandeis and Samuel Warren. 4 Harvard Law Review (1890).

In your opinion, has the prediction made by Brandeis and Warren come true? Does the combination of technology and the news media threaten to destroy the idea of privacy as we know it? Why or why not?

3. Three types of privacy are defined in the video. Identify and give examples of each type of privacy.

4. Professor Silbey ended her lecture with the following statement:

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...our reasonable expectations are evolving with the times and privacy is measured in part by what we do and what we expect.

a) How are "our reasonable expectations [of privacy]...evolving with the times"?

Describe a few examples in your response. b) Explain what you think Professor Silbey meant when she said "...privacy is

measured in part by what we do and what we expect." Step 3: The Changing Nature of the Right of Privacy In this activity students will identify language in the Bill of Rights that implicitly acknowledges the existence of a right of privacy and analyze how the right of privacy has changed over time. Review with your students the difference between the terms explicit right and implicit right (See Important Terms, page 70). Explain to students that while the right of privacy may be a constitutional right recognized by the courts, nowhere does the U.S. Constitution explicitly state that this right exists. Have students review the Bill of Rights to identify clauses that indicate the existence of a right of privacy. Ask students to record the Amendment number, its text, as well as a short explanation as to why they feel the right of privacy is implicit in the text. (It may be helpful to first analyze a particular Amendment with the class as an example). Review and discuss student responses in small groups or as a class. Have students add other students' suggestions to their own records if they agree. Divide the class into small groups. Pass out a different Supreme Court case on privacy to each group (full case or excerpt; one case or multiple different cases). Have each group read through the text of each case and identify the Amendment(s) relevant to the case and what was held to be private by the Court. Example: Griswold v. CT (1965) - The Supreme Court uses the First, Third, Fourth, Fifth, and Ninth Amendments to hold that a right of privacy exists and it applies to marital relations (no state can prohibit a married couple from receiving counseling in contraception). Once students have mastered the material, reassign group members so that each new group has one student who is an expert on each case. Have each student/expert teach the rest of the group about the case so that all students can create a master list of the information on each case in chronological order. Then, either individually or by group, students should create a diagram of the evolution of what the Supreme Court has held to fall within the right to privacy. Discussion Questions

Do you believe that the Constitution should be interpreted based only on what is explicitly stated within it? Or, should the courts be permitted to conclude that – in

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addition to the explicit statements – there are implicit understandings that are a part of the Constitution?

Were the Amendments the class identified as implicitly acknowledging the existence of a right of privacy the same ones used by the Supreme Court? Explain.

Did the Supreme Court emphasize certain Amendments more than others in these right of privacy cases? If so, why do you think that is?

What types of privacy that are important to you were not recognized by the cases we reviewed as a class?

How has the Supreme Court's view on privacy changed over time? Are there specific events in American history and/or cultural changes that you believe may have contributed to the Court's decisions? Explain.

Learning Extension: Privacy Reading and Questions The Privacy reading contains eight pages of background information on the development of the right of privacy. It is written at an advanced reading level, and requires familiarity with the Bill of Rights. It is best used to deepen students' existing knowledge so they can conceptualize the chronological changes in the right of privacy apparent in the cases they have already read. Learning Extension: Informational Privacy & NSA Surveillance Revelations of government surveillance of Americans' Internet and telephone data have sparked controversy over the extent of constitutional protection of informational privacy. This activity is useful for additional exploration into data privacy: what information the government collects, and how it goes about it. Pose the following questions to frame your students’ inquiry into the topic: When you surf the Internet do you consider your browsing history private? What about the words you type into a search bar when searching the Internet through providers like Google? Ask students to read (or research and find) one or more articles about the National Security Agency’s (NSA) PRISM program. In small groups or as a class create a diagram that shows how the Executive Branch acquires information through two alternative pathways: (1) obtaining a warrant via the Foreign Intelligence Surveillance Court; and (2) without obtaining a warrant through the PRISM program.

Article on NSA's PRISM program from The Guardian Article on NSA's PRISM program from the Washington Post

Privacy Policies: Google / Microsoft / Yahoo! / Twitter / Facebook

Have students research and compare at least two privacy policies from major Internet companies such as Google, Microsoft, Yahoo!, Twitter, or Facebook. Focus on the circumstances under which the companies share with other people, companies, and/or the government the information collected while their services are being used.

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Discussion Questions

From the government's perspective, what is the countervailing interest that sometimes outweighs informational privacy? In other words, why does the government believe the PRISM program is necessary?

Is the warrant procedure through the Foreign Intelligence Surveillance Court sufficient to meet the government's needs or is the PRISM program a necessity in today's technologically advanced world?

Have you ever read the privacy policies of any Internet or telephone company you have used? Why or why not?

Based on the privacy policies you compared, does one company protect your information privacy more than another? Were you surprised at how strong or weak the protections were? Why? Has reading the policies made you reconsider how you use these services or if you are going to use them at all? Why or why not?

If you knew that none of the information you entered into or accessed from the Internet would remain private for the rest of your life (whether via computer or cell phone), would you still use the Internet? Why or why not?

Does the Constitution protect you from this type of government surveillance? Why or why not? Use the established case law to support your conclusion.

Part 2: Privacy and the Fourth Amendment In these activities students will explore the text of the Fourth Amendment and the impact of technological advancement on the Supreme Court’s interpretation of what constitutes a search under the Constitution. Step 1: Introductory Activity on the Evolution of Technology In this activity students will identify technological differences between colonial times and the present day that impact their ideas of privacy and the government's ability to search. Each student should divide a piece of paper into two sections. Section 1 should be filled with things that people consider private today that either did not exist or were not considered private during colonial times (students may use the list of things they considered private created during Part I to help). For example, students should recognize that text messages, while they may be considered private today, did not exist in colonial times. Section 2 should be filled with a list of search techniques - including types of technology - available to help the government search for evidence today that did not exist in colonial times. For example, monitoring phone conversations (wiretapping) is search technology available today that was not available in colonial times. Discussion Questions

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What are the differences between what was considered private in colonial times and what is considered private today? Why do those differences exist?

What are the differences between the search technology available to the government in colonial times and the search technology available today? What major technological innovations have improved (or hindered) the government's ability to search for evidence?

How would your privacy be affected today if the Constitution only protected things considered private in colonial times?

How would the government's ability to search be affected today if the Constitution only permitted the use of the search technology available in colonial times?

Step 2: Introduction to the Fourth Amendment In this activity students will analyze the meaning of and learn relevant terms contained within the text of the Fourth Amendment. First, display the text of the Fourth Amendment and read through it with your class. Students should write down or be provided with a copy of the full text. Divide the amendment into sections as indicated below and have students explore how they would interpret the meaning of each section (the bolded words are important words for students to attempt to define themselves).

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Next, students should create a diagram that illustrates the warrant procedure. The following are useful resources on the meaning of the Fourth Amendment: What does the Fourth Amendment mean? at USCourts.gov.

The Right to Protection Against Illegal Search and Seizure at the Annenberg Classroom (.pdf).

Discussion Questions

What types of privacy does the Fourth Amendment explicitly protect? What types of privacy do you think are implicitly protected? Why?

What do you think is meant by the term unreasonable? When does a search become unreasonable?

Does the warrant requirement adequately protect your privacy from unreasonable government searches? Why or why not?

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Are there times when the government should not have to obtain a warrant to invade your privacy? Why or why not? If so, what countervailing interest(s) outweighs the extra privacy protection provided by the warrant procedure?

Step 3: The Changing Interpretation of the Fourth Amendment over Time In this activity students will be analyze how and why the meaning of the Fourth Amendment has changed over time. Two formats for conducting this exercise are included below. Format 1: First, show the Constitutionally Speaking video Your House is Your Castle as a brief introduction to the changing nature of a search under the Fourth Amendment.

Video Discussion Questions: Your House is Your Castle

1. What was the legal definition of a search under the Fourth Amendment from the 1930s through the 1950s?

2. What was the new standard established by the Supreme Court in Katz v. U.S. (1967) for deciding if a search had occurred?

3. Provide examples of types of legal and illegal searches under the standard established in Katz v. U.S. (1967).

4. Describe the facts of U.S. v. Jones. What government action did Jones challenge as an unconstitutional search?

5. What was unexpected about the Supreme Court’s reasoning in U.S. v. Jones? 6. Read the following excerpt from Justice Alito’s concurrence to the majority

opinion. Do you agree that tracking a person’s public movements for 28 straight days is a violation of our reasonable expectations of privacy? Why or why not?

In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way. To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a

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particular case involved a degree of intrusion that a reasonable person would not have anticipated. Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

Next, have students analyze significant Supreme Court cases that deal with Fourth Amendment issues (see Relevant Cases, page 68). This activity can be completed using independent learning/research, small group work, class discussion, jig saw, or combinations of these structures. The goal is to have students answer the following questions about each case.

a) What are the facts of the case? b) What is the Court's holding in the case? c) What was the Court's reasoning? What was the standard the Court used to

decide the case? Be sure to explain how the Court defines a search and how the Court defines what is private under the Fourth Amendment for each case.

At a minimum, students should analyze the Olmstead and Katz cases in order to understand the evolving nature of the Supreme Court’s interpretation of the Fourth Amendment. Format 2: This alternative structure allows independent analysis of the facts in the Supreme Court case United States v. Jones. Students will analyze the facts, formulate a ruling based on case precedent, and explain their reasoning.

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For this exercise, stop the Your House is Your Castle video at 4:14 – before Justice Duggan introduces the United States v. Jones case. Have students complete their analyses of Fourth Amendment cases but do not include the Jones case in their analyses.

After students have analyzed and shared their learning on the Fourth Amendment cases prior to Jones, have them write a chronological history of places they have been in the past two weeks. Ask them to include the names and/or addresses of the locations they visited (i.e. school, 15 South Main Street, etc...) as well as how long they were at each location. Instruct them not to write their names on the paper or share their lists with anyone. If you are comfortable you can write your own 2-week history somewhere that is visible to all students. When the students are done, ask if they would feel comfortable sharing the information with friends. Other students they do not know well or at all? Teachers? Parents? Police officers? College Admissions officers? Would they feel differently if their lists included information from only one day? Thirty days? One year?

An extension of this activity is to collect the lists of those students who feel comfortable sharing them. Mix the lists up, distribute them randomly among the students, and have students guess the author and/or draw conclusions about what the person is like based on where they have been over the past 2 weeks. If no students volunteer to share their lists – but you are comfortable sharing yours – ask students to draw conclusions about you based on your movements.

Now, pass out a copy of the facts of the case in United States v. Jones. Independently or in groups, have students issue rulings based on the Fourth Amendment and explain their reasoning using case precedent if possible. Make sure students decide: (1) if what the government did constituted a search; and (2) if Jones had a reasonable expectation of privacy for his public movements in his car over 28 days.

When all students have had an opportunity to explain their rulings, divide them into smaller groups for brief discussions and follow up with a class discussion or debate.

Show the remainder of the video Your House is Your Castle. Then pass out a copy of the Court's opinion in the Jones case (full text or excerpts) and have students identify, analyze and compare the Court's reasoning to their own. Discussion Questions

What disagreements emerged in your groups or class over how to rule on this case? Why did those disagreements occur?

How did the Supreme Court rule in United States v. Jones? Did the government's actions constitute a search? Did Jones have a reasonable expectation of privacy over his public movements in his car for 28 days? What standard did the Court apply in deciding the case?

Do you think tracking Jones's public movements for 28 days is reasonable under the Fourth Amendment? Why or why not?

In the Jones case, did the Court abandon the reasonable expectation of privacy standard created in Katz? Explain.

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Why did the Court conclude that the search in the Jones case was fundamentally different from the search used in the cases of U.S. v. Knotts and U.S. v. Karo?

How was your ruling in United States v. Jones similar to and/or different from the Supreme Court's ruling?

Read Justice Sotomayor's concurrence in the Jones case. Why does Justice Sotomayor believe that the reasonable expectation of privacy standard is sufficient to decide the case? What are Justice Sotomayor's concerns about recent technological advancements? In what way did Justice Sotomayor accurately foresee issues that have arisen recently?

Short Answer/Essay/Debate Prompts

How and why has the constitutional right of privacy changed over time? How and why has the interpretation of the Fourth Amendment changed over

time? Does the Supreme Court's current interpretation of the constitutional right of

privacy accurately reflect what the average American considers private? Why or why not?

Does the Supreme Court's current interpretation of the Fourth Amendment adequately protect your privacy? Why or why not?

Is the Supreme Court's current interpretation of the constitutional right of privacy consistent with your own views? Why or why not?

In his dissent in the Supreme Court case of Olmstead v. U.S. (1928), Justice Brandeis made the following statement about the right of privacy:

The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality - the right to be left alone - the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings and his intellect.

Does Justice Brandeis's explanation of the meaning of the right of privacy match the Supreme Court's more recent interpretation of the right of privacy? Why or why not?

How has the constitutional right of privacy kept up with the times? Summative Assessments

Create a graphic tool that illustrates the evolution of the right of privacy over time. Include dates, case names where possible, and descriptions of how the right of privacy changed at each point. Students could complete additional research to add depth to the material covered in class.

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Prepare position papers for and engage in a debate over the question: Has the

Supreme Court's interpretation of the constitutional right of privacy kept up with the times? Additional research could be required to add depth to the papers and debate.

Compare two or more Supreme Court cases on the right of privacy, specifically

describing the facts and holding of each case, the reasoning used by the Court, and how the right of privacy changed as a result of the later case.

Write a letter to a federal government official that explains why you agree or disagree with the Supreme Court's current interpretation of the right of privacy and ask the official to take a specific action in support of or to challenge the current case law.

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Additional Resources Abortion, Privacy, and Values in Conflict: Roe v. Wade (1973) in Annenberg’s eBook Our Rights (pdf) Best Civics Sites for Teachers at Annenberg Classroom Finding a Right To Privacy: Griswold v. Connecticut (1965) in Annenberg’s eBook The Pursuit of Justice (pdf) Lesson Plan on Privacy from Deliberating in a Democracy Lesson Plans on the Constitution (including privacy and federalism) from the American Bar Association National Constitution Center’s Privacy blog Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom Our Rights, an eBook on civil rights from Annenberg Classroom Privacy at Cornell University Law School’s Legal Information Institute Privacy Rights at Justia.com Privacy video from the PBS series Constitution USA The Pursuit of Justice, an eBook on Supreme Court cases from Annenberg Classroom The Right to Privacy at Exploring Constitutional Law The Right to Privacy full-text article by Samuel Warren and Louis Brandeis for Harvard Law Review (1890) Street Law course lessons (including privacy) at the University of Washington School of Law Teaching the Constitution resources at Annenberg Classroom Your Bill of Rights videos at Time magazine

APPARTS Template

AUTHOR

Who created the source? What do you known about the author? What is the author’s point of view

PLACE & TIME

Where and when was the source produced? How might this affect the meaning of the source?

PRIOR KNOWLEDGE

Beyond information about the author and the context of its creation, what do you know that would help you further understand the primary source?

AUDIENCE

For whom was the source created and how might this affect the reliability of the source?

REASON

Why was this source produced at the time it was produced?

THE MAIN IDEA

What main point is the source trying to convey? What is the central message of the document

SIGNIFICANCE

Why is this source important? What inferences can you draw from this document? Ask yourself, “So what?” What should a student of history or politics take away from the analysis of this document

Debate Team Carousel

Create a prompt for students to respond to in box #.1 Pass papers to the right and complete box #2. Pass to the right and complete box #3. Pass to the right and complete box #4. Return to the original owner. Limit response times to 2-3 minutes.

1. Give your opinion and explain your

rationale.

Record your opinion and explain your reason for it.

2. Add a supporting argument.

Read your classmate’s response. In this box, add another reason that would support your classmate’s response.

3. Add an opposing argument. In this box, record a reason that might be used to argue against what is written in boxes #1 and #2.

4. Add your “two cents.”

Read what is written in the three boxes. Add your

opinion and your reason for it in this box.

A Federal System of Government Enumerated

federal powers Source Powers

reserved to states

Source Concurrent powers

Source Powers denied to federal

government

Source Powers denied to states

Source