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OAH Magazine of History Copyright © |
Lesson Plan
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I teach at an urban school in the Bay Area; the student population reflects the diversity in our larger community. The U.S. government course that I teach is a one semester (nine week) survey course for seniors. Higher skilled students choose the Advanced Placement alternative, so my students’ reading and writing skills are middling to poor. We have no government textbook. Through simulations, group projects, lectures, and guest speakers, we try to offer a conceptual outline for Congress and the presidency, local government, political ideology, etc. Many students enroll in a separate one semester elective course, “Law and Justice,” so the judicial branch receives less attention than the other two branches in our government curriculum.
In the lesson that follows, I present complex issues of judicial interpretation in their most basic form so as not to overwhelm the weak reading and analytic skills of my own students. I have included a bibliography so that teachers of higher skilled students can find more nuanced and sophisticated material. Objectives
Background In eleventh grade, U.S. history students examine the framing of the Constitution and later in the year, the Dred Scott, Plessy, and Brown decisions in the larger historical context of the Civil War, Reconstruction, and Civil Rights movement. They are familiar with the power and significance of Court action without a closer understanding of the process of judicial review that informs these decisions. In our twelfth grade government class, I precede the following lesson with a short lecture on the concept of judicial review and its place in a wider system of checks and balances. (If one had the time, this would be the place to review Marbury v. Madison.) Students are already familiar, from earlier lessons, with the Bill of Rights and the Civil War amendments. This lesson presents two basic approaches to judicial interpretation: 1) In order to understand the meaning of the Constitution, we must focus exclusively on the context of its genesis and ratification, and 2) The language of the Constitution resonates with abstract principles that cannot be teased out through a careful exegesis of the text alone. The former includes a set of arguments broadly categorized as Original Intent or Original Understanding. The second, for want of a better phrase, I will call the Living Constitution doctrine (1). My effort in this lesson is to assume that both approaches are motivated from integrity and that judges need not (and frequently do not) apply them in a mutually exclusive fashion. Both approaches incorporate stare decisis, a respect for previously established judicial precedent. I want students to be able to understand the concerns that animate each approach: on the one hand that judicial review not simply become a tool for judges to usurp legislative power in order to further their own political agenda, and on the other hand, that a narrow anachronistic interpretation not deny the blessings of Constitutional freedom and liberty to those not originally included within its embrace. It is my intent to present the two approaches in the words of their proponents and let students tease out criticisms to each one as they try to apply the Bill of Rights and the Civil War amendments to the conflicts embodied in Supreme Court cases. Overview Because judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation (2). What is legitimate interpretation? What is not? Is there an intrinsic dialectic between society and the text that impels the evolution of Constitutional doctrine? Is this to be embraced? Resisted? Students will read descriptions of competing models of interpretation—short excerpts by Supreme Court justices and others—and will cull main points from each of these arguments (3). Students will then grapple with real life Court cases using the Bill of Rights, in an effort to resolve them through their own careful judicial interpretation. My search for the perfect Supreme Court cases to use in the classroom is an ongoing process of trial and error. Perhaps this lesson would be more effective with a different set of cases from what I have selected here. My criteria are that the case interest students and address an issue that was contested in wider society at the time the case was decided. There are any number of ways to present each case: should one excerpt from the majority opinion or just present a summary with simplified vocabulary? Should one include dissenting opinions? Arguments from the lower courts? I am always eager for students to struggle with primary source material and so for this lesson, I excerpt passages from both the majority and dissenting opinions. Because of the lower skill level of my students and the constant time constraint in a one semester government course, the excerpts are brief, and we read over them together in class (4). Student Materials
Time Frame On our block schedule (ninety minute periods), the following activities would take four to five days. On a traditional schedule, it could take up to two weeks. Obviously you could lengthen or abbreviate the lesson depending on how many cases you addressed and in what depth the cases were presented. Remember, students must already be acquainted with the concept of judicial review; this lesson begins with an introduction to Original Intent and the Living Constitution doctrine. Procedure
Endnotes 1. While this oversimplifies the many approaches theorists and jurists use to legitimize different readings of the text, it has proven a useful way for me to introduce the topic of judicial interpretation into the classroom. 2. William J. Brennan, “The Constitution of the United States: Contemporary Ratification” (speech given at Georgetown University School of Law, 12 October 1985). 3. See handouts (included with this article) and Lee Epstein and Thomas G. Walker, “Approaches to Supreme Court Decision Making,” Chapter 2 of Constitutional Law for a Changing America: A Short Course (Washington D.C.: Congressional Quarterly Press, 1996). The second chapter covers legal as well as extralegal approaches to judicial interpretation (i.e. political bias, personal attitudes, public opinion). For this lesson, I use only pages 24-35, which deal with legal approaches. 4. Rather than include material from Court cases here, I merely cite the cases I use in this lesson. There are wonderful web sites that include extensive information on the Court and allow you to search for cases by topic, party, or year. Two very useful sites are: <http://supct.law.cornell.edu/supct/cases/topic.htm> and <http://www.findlaw.com/casecode/supreme.html>. 5. It is interesting to note that the person perhaps most associated in the public eye with the doctrine of Original Intent, Robert Bork, is, according to Epstein and Walker, actually a proponent of what they classify as meaning of the words. Bork readily concedes what opponents of Original Intent frequently argue—that it would be impossible to sort out or categorize in a definitive way some notion of what the framers (or ratifiers in the state conventions) intended. See Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990), 144. Bibliography Bork, Robert. The Tempting of America: The Political Seduction of the Law. New York: The Free Press, 1990. ———. “Can Democratic Government Survive? Slouching Towards Gomorrah.” National Review 48 (16 September 1996). Excerpted from Robert Bork. Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: Regan Books, 1996. Brennan, William J. “The Constitution of the United States: Contemporary Ratification.” Speech given at Georgetown University School of Law, 12 October 1985. Dworkin, Ronald M. “Unenumerated Rights: Whether and How Roe Should be Overruled.” University of Chicago Law Review 59 (Winter, 1992): 381-432. Epstein, Lee and Thomas G. Walker. “Approaches to Supreme Court Decision Making.” In Constitutional Law for a Changing America: A Short Course. Washington, D.C.: Congressional Quarterly Press, 1996. Irons, Peter. Brennan vs. Rehnquist: The Battle for the Constitution. New York: Knopf Press, 1994. Marshall, Thurgood. Excerpt from a speech given to the San Francisco Patent and Trademark Law Association, in Maui, Hawaii, 6 May 1987. Scalia, Antonin. “Is There an Unwritten Constitution?” In “Symposium: Are There Unenumerated Constitutional Rights?” Harvard Journal of Law and Public Policy 12 (Winter 1989). ———. “Vigilante Justices: The Dying Constitution.” National Review 49 (10 February 1997). Jennifer Rader teaches history and U.S. government at El Cerrito High School in El Cerrito, California. Handout 1 “What is the meaning of a rule that judges should not change? It is the meaning understood at the time of the law’s enactment...all that counts is how the words used in the Constitution would have been understood at the time....The search for the intent of the lawmaker is the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of the court” (144). “If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: ‘Law’” (145). “When a judge finds his principle in the Constitution as originally understood, the problem of the neutral derivation of principle is solved. The judge accepts the ratifiers’ definition of the appropriate ranges of majority and minority freedom...He need not, and he must not, make unguided value judgments of his own. “This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones. Any time he does so, he violates not only the limits to his own authority but, and for that reason, also violates the rights of the legislature and the people” (146-47). “The interpretation of the Constitution according to the original understanding, then, is the only method that can preserve the Constitution, the separation of powers, and the liberties of the people” (159). —Robert Bork, from The Tempting of America . For the following questions, you don’t have to refer to all of the above quotes. Use evidence only from the quotes you think can best support your argument. Answer in complete sentences.
Handout 2 “The Framers discerned fundamental principles through struggles against particular malefactions of the Crown; the struggle shapes the particular contours of the articulated principles. But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic contours.” “We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be their measure to the vision of their time.” —Justice William J. Brennan, from a speech given at the Georgetown University School of Law, 12 October 1985. “...I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago.” “The men who gathered in Philadelphia in 1787...could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. ‘We the people’ no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.” —Justice Thurgood Marshall, from a speech given to the San Francisco Patent and Trademark Law Association, in Maui, Hawaii, 6 May 1987. There is no real distinction between enumerated (stated) and unenumerated (unstated) rights in the Constitution. All rights must be interpreted based on the abstract principles of equality and liberty embodied in the Constitution. —A paraphrase of arguments from an article by Ronald Dworkin, “Unenumerated Rights: Whether and How Roe Should be Overruled,” University of Chicago Law Review 59 (Winter 1992): 381-432. For the following questions, you don’t have to refer to all of the above quotes. Use evidence only from the quotes you think can best support your argument. Answer in complete sentences.
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