FOUNDING PRINCIPLES COURSE Introductory Materials
How to Use the Founding Principles Course
The introduction, ten instructional modules, and final project in this course were designed to be
presented in sequence over one semester by teachers of the Founding Principles course required
by the Founding Principles Act passed by the North Carolina General Assembly. These materials
may be used for American History I and Civics and Economics courses.
Each module contains:
Materials Needed:
An overview page listing the lesson overview,
recommended time, the lesson objectives,
the North Carolina Clarifying Objectives for
American History I, Civics and Government,
and Economics for each lesson, and a module
assessment.
Throughout the course, we recommend students
keep a journal in a two-pocket folder or threering binder. As they progress through lessons,
they should keep their written work, journal
entries, and other activities up to date. In each
of the two pockets they should collect news
articles related to the Founding Principles that
could be helpful to them in completing their
final project. Throughout the school year, daily
updated headlines are available at the Bill of
Rights Institute’s “Teaching with Current Events”
web page:
http://billofrightsinstitute.org/resources/educatorresources/headlines/
� All necessary handouts for the lessons are
included for teachers to copy and distribute
to students.
Lesson plan(s) with step-by-step instructions
for presenting the material to students. Each
lesson plan includes:
� Lesson overview
� Recommended time
� Lesson objectives (please note that
additional objectives may be added by
teachers to assure greater alignment with
North Carolina objectives)
� North Carolina Clarifying Objectives
� Reading(s), including primary source
analysis
� Graphic organizers and other supporting
materials
� Learning activities and hand-on strategies
� Journaling activities for student reflection
and meta-cognition
� Some modules also contain videos,
interactive games, and other online
activities.
В© The Bill of Rights Institute
Final Project:
There is no single correct way to answer the
key question in the final project. Students’ work
should be judged on the basis of:
� Demonstrated understanding of Founding
Principles and learning goals defined on
overview pages.
� How well they have articulated and
substantiated their point of view.
FOUNDING PRINCIPLES COURSE Introductory Materials
The Founding Principles
Course Introduction Lesson Plan
Warm-up [15 minutes]
Wrap-Up [10 minutes]
A. Distribute and read aloud the Founding
Principles: Introduction. If available, print
out copies of the Associated Press story
and have students read it independently.
A. Have students prepare a journal response
of several paragraphs to the following
questions:
B. Ask a few students to volunteer their initial
reactions to the information.
Activity [20 minutes]
A. Write on the board the following quotation:
“If a nation expects to be ignorant & free, in
a state of civilization, it expects what never
was & never will be.” – Thomas Jefferson
B. As a large group, discuss the questions:
a. What does Jefferson mean by
“ignorant”? (uninformed, uneducated)
b. What does he mean by “free”? (living
in liberty, living without unauthorized
restraint)
c. What does he mean by “civilization”? (a
society where individuals live together
peacefully, in security, and with the
ability to pursue happiness)
d. How would you put this quotation in your
own words? (Freedom and education
depend on each other. Or: Educated
citizens alone can sustain a free society.
Or: No free government has ever existed
where the people were uneducated, and
none will ever exist.)
В© The Bill of Rights Institute
a. If you were Paul Chambers, how would
you feel about what had happened to
you?
b. Have you ever done (or thought about
doing) any of the kinds of things
described in the article?
c. Looking over the list of principles you will
learn about, what ideas and concepts
come to mind? What do you already
know? What do you want to know?
d. What is your role in personally upholding
our Founding Principles?
The Founding Principles: Introduction
When he looked outside and saw the snow, Paul Chambers was worried he was going to miss his
flight to visit his girlfriend. He took his worry (with what he thought was a bit of humor) to social
media, and posted the update: “Crap! Robin Hood airport is closed. You’ve got a week and a bit
to get your (expletive) together otherwise I’m blowing the airport sky high.” A week later, police
showed up at his work place. He was detained, questioned, tried, and convicted. He was fined
the equivalent of thousands of dollars. After his ordeal, the former financial supervisor, now with a
criminal record, was unable to find work.
Chambers’s conviction was overturned years
later. But a recent Associated Press news
story* revealed that he was not alone.
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A 19-year-old was arrested, held for 24
hours, and told he could face charges
because he posted online a picture of a
burning paper poppy (a symbol of war dead)
on Remembrance Day – a holiday to honor
soldiers who have died.
Another young person, angry after his
country’s troops were killed in Afghanistan,
posted that soldiers “should die and go to
hell.” As punishment, he was sentenced to
240 hours of community service.
A 19-year old who tweeted offensive
comments about a missing child was
sentenced to 12 weeks in jail.
These things happened not in a communist or
other authoritarian regime, but in Great Britain.
The AP reported that British government figures
show that the number of people prosecuted
in Britain over electronic communications
— phone calls, and communications over the
В© The Bill of Rights Institute
Internet that are “grossly offensive or of an
indecent, obscene or menacing character”
— are on the rise: 1,263 in 2009 to 1,843 in
2011. The number of convictions grew from 873
in 2009 to 1,286 last year. As you work your
way through this course, you will learn about
the following principles:
в–Є Individual Rights в–Є Individual
Responsibility в–Є Creator-Endowed
Inalienable Rights в–Є Equal Protection в–Є Due
Process в–Є Federalism в–Є Representative
Government в–Є Private Property в–Є Rule of Law
в–Є Separation of Powers
At the end of the course, your task will be
to define, analyze and apply all ten of these
Founding Principles to answer the question:
Could these things happen to me in the U.S.?
Why or why not? How do you know?
*http://www.myfoxny.com/story/20104567/in-uktwitter-facebook-rants-land-some-in-jail
FOUNDING PRINCIPLES COURSE Individual Responsibility Module
Individual Responsibility Module
Introduction
The principle of the Individual Responsibility means that liberty requires responsibility. Free
government depends on virtue in the people.
Lesson One: What Is My Individual
Responsibility?
Lesson Overview
Song lyrics, books, and bumper stickers
constantly blare messages about freedom and
its value. Americans claim to cherish it, and,
unlike many in the world, enjoy it each day of our
lives. But what does it actually mean? And more
importantly, what is required to preserve it? In
this lesson, students will challenge preconceived
notions about what freedom means, and
understand the way individual freedom is
inextricably tied to personal responsibility.
Recommended Time
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CE.C&G.1.4: Analyze the principles and ideals
underlying American democracy in terms of
how they promote freedom (e.g., separation
of powers, rule of law, limited government,
democracy, consent of the governed, individual
rights – life, liberty, pursuit of happiness, selfgovernment, representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
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Objectives
Students will:
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Analyze the importance of civic virtue and
individual responsibility in our society.
Apply the understanding of civic virtue
and individual responsibility to their own
experiences.
Critically evaluate the difference between
liberty and license.
Compare and contrast freedom and
responsibility.
Evaluate how free government depends on
virtue in the people.
В© The Bill of Rights Institute
Explain how Washington exuded individual
responsibility in his life, writings, and
speeches.
North Carolina Clarifying Objectives
100 minutes
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Analyze how individual self-government is
related to government in a society.
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CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.4.3: Analyze the roles of citizens
of North Carolina and the United States in
terms of responsibilities, participation, civic
life and criteria for membership or admission
(e.g., voting, jury duty, lobbying, interacting
successfully with government agencies,
organizing and working in civic groups,
FOUNDING PRINCIPLES COURSE volunteering, petitioning, picketing, running
for political office, residency, etc.)
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CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships and
multiple causation. 4. Evaluate competing
historical narratives and debates among
historians. 5. Evaluate the influence of the
past on contemporary issues.
Individual Responsibility Module
Objectives
Students will:
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Lesson Overview
Recommended Time
80 minutes
В© The Bill of Rights Institute
Analyze the misconceptions surrounding
virtue.
Analyze the importance of civic virtue and
individual responsibility in our society.
Apply the understanding of civic virtue
and individual responsibility to their own
experiences.
Understand Benjamin Franklin’s tried to
attain virtue and responsibility, and analyze
the process that he employed to attain these
virtues.
Interpret Franklin’s categorization of what he
deems important virtues.
North Carolina Clarifying Objectives
Lesson Two: Ben Franklin and Virtue
In this lesson, students will begin to analyze
the importance of virtue in a society by
coming to a shared definition of virtue. They
will read a selection from Benjamin Franklin’s
autobiography and reflect on how one of the
Founding Era’s great thinkers tried to attain
virtue in his own life.
Define the term virtue.
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.4.3: Analyze the roles of citizens
of North Carolina and the United States in
terms of responsibilities, participation, civic
life and criteria for membership or admission
FOUNDING PRINCIPLES COURSE (e.g., voting, jury duty, lobbying, interacting
successfully with government agencies,
organizing and working in civic groups,
volunteering, petitioning, picketing, running
for political office, residency, etc.)
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AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships and
multiple causation. 4. Evaluate competing
historical narratives and debates among
historians. 5. Evaluate the influence of the
past on contemporary issues.
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
Individual Responsibility Module
Assignment
Have students add to their journals a response
to the Benjamin Franklin quotation: “Only a
virtuous people are capable of freedom. As
nations become corrupt and vicious, they have
more need of masters.” Responses should
address the questions:
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Assessment
Overview
Students will respond to a quote from Benjamin
Franklin regarding virtue to show their
understanding and analysis of the concept and
how it affects society.
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Why are only virtuous people capable of
freedom?
What does the character of “people” have to
do with the character of “nations”?
Why would people who fail to display virtue
need masters?
Does this quote help you understand
the relationship between freedom and
responsibility?
Do you think Franklin’s quote is important
in understanding the concept of selfgovernment? Explain your answer.
Do you think Franklin’s quote is important
in understanding the structure of the
government of the United States? Explain
your answer.
Consider the events in England described
in the course introduction/final project. Can
you connect any of those to the Franklin
quotation?
Recommended Time
30 minutes
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American
History meet the requirements of the Founding Principles Act.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Individual Responsibility Module
Individual Responsibility Module:
What Is My Individual Responsibility? Lesson
Overview
Song lyrics, books, and bumper stickers constantly blare messages about freedom and its value.
Americans claim to cherish it, and, unlike many in the world, enjoy it each and every day. But what
does freedom actually mean? And more importantly, what is required to preserve it? In this lesson,
students will challenge preconceived notions about what freedom means and understand the way
individual freedom is inextricably tied to personal responsibility.
Recommended Time
North Carolina Clarifying Objectives
100 minutes
�
Objectives
Students will:
�
�
�
�
�
�
�
�
Analyze the importance of civic virtue and
individual responsibility in our society.
Apply an understanding of civic virtue
and individual responsibility to their own
experiences.
Critically evaluate the difference between
liberty and license.
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Compare and contrast freedom and
responsibility.
Evaluate how free government depends on
citizens’ virtue.
Analyze how individual self-government is
related to political self-government.
Analyze the overlap of responsibility and
liberty.
Explain how George Washington
exemplified individual responsibility in his
life, writings, and speeches.
В© The Bill of Rights Institute
�
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.4.3: Analyze the roles of citizens
of North Carolina and the United States in
terms of responsibilities, participation, civic
life and criteria for membership or admission
(e.g., voting, jury duty, lobbying, interacting
successfully with government agencies,
organizing and working in civic groups,
volunteering, petitioning, picketing, running
for political office, residency, etc.)
FOUNDING PRINCIPLES COURSE �
�
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CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
Materials
Handout A: Freedom Slips
Handout B: Responsibility Slips
Handout C: Quotes to Consider
Handout D: George Washington and Individual
Liberty
Lesson Plan
Background/Homework [10 minutes
the day before]
A. As students exit, give each a slip from
Handout A: Freedom Slips and Handout
B: Responsibility Slips. Ask them not
to reveal the content of their slips to their
classmates. Have them read the phrases or
quotations on their slips, and ask them to
В© The Bill of Rights Institute
Individual Responsibility Module
write out a definition of the word in bold for
homework.
B. Have students also decide on and write
down the opposite of their bolded word.
Warm-up [20 minutes]
A. Before class, create poster stations by
enlarging, printing, and hanging Handout
C: Quotes to Consider around the room or
placing them on top of various desks.
B. Call on one student and ask him or her
to share the definition from his or her
Freedom Slip. Then ask the class if
anyone had a definition that sounds similar.
Continue calling on students to share their
definitions of “free” or “freedom” and write
them on the board. Steer discussion so that
students arrive at a definition along the lines
of: Freedom means the ability to act without
unauthorized or unjust restraints. To further
guide students in their understanding, you
might also ask:
a. Does freedom mean you are free to do
what you would like to do whenever you
would like to do it?
b. Why not?
c. If “freedom” means the ability to act
without unjust restraints, what are some
just restraints?
C. Give students time to visit each poster in
pairs, read each statement, and decide on
a scale of 1-5 how much they agree with it
(with 1 representing completely disagree,
and 5 representing completely agree). They
should then write that number on the poster,
along with their initials. Give students about
one minute at each poster, and then have
them move to the next until all students
have seen every poster. When students
FOUNDING PRINCIPLES COURSE are at the final poster station, have each
pair add up the total responses on that
poster, then write down and circle the sum.
Collect the posters and post them on the
board from left to right, in increasing order
of agreement. Give students time to share
their responses to any of the statements
and explain why they agreed or disagreed.
D. Have students share their responses for
their Responsibility Slips. Suggested
definitions: Responsibility means to answer
for one’s conduct. Or, responsibility means
being in charge of or accountable for
something.
Activity [40 minutes]
A. Have students work in pairs to brainstorm
specific situations in their lives in which
their specific freedom gave rise to a need to
act responsibly. Draw a large graph on the
board, and write “Freedom” on the X axis
and “Responsibility” on the Y axis.
B. Using student responses as a starting point,
ask one student volunteer to plot out and
shade in the area representing the level
of freedom and responsibility displayed
by various responses to each situation. In
addition to the ideas generated by students,
you may wish to offer additional ideas:
a. Your parents go away for the weekend,
leaving you in charge of the house. Your
friends want you to throw a party.
b. Your teacher assigns a long paper
and is giving the class independent
research time in the library. When the
period begins, you don’t feel much like
researching.
В© The Bill of Rights Institute
Individual Responsibility Module
c. Your teacher invites you to stay after
class to get extra help in math. When
she leaves to use the rest room, you see
a copy of the test the class will take next
week on top of her desk.
C. Help students understand the difference
between liberty and license (“license” is
an abuse of liberty; it is liberty without
responsibility).
a. Ask students:
i. What does responsibility have to do
with freedom?
ii. Are freedom and independence
synonyms?
iii. Can you be free if you are
dependent?
b. Point out that as the proportion of
responsibility to freedom of an action
decreases, the action takes on the
quality of license, rather than liberty
(or freedom). License is an abuse
of freedom. For each situation,
discuss possible responses. Discuss
the consequences of acting with
responsibility, versus acting with license.
Ask students to predict what life would
be like if everyone did what they wanted
at any time without considering any
responsibility toward themselves and
others.
c. To have students draw a connection
between liberty and license and
how/why virtue is important in selfgovernment and the governance
of a society, have them brainstorm
hypothetical scenarios about what a
society lacking virtue would look like.
What would the government look like?
How would this affect individuals’ lives?
FOUNDING PRINCIPLES COURSE D. Connect the day’s activities to students’
final project. What responsibility do
individuals have to uphold the Constitution
and protect rights? Ask students to reflect
on what happened to Paul Chambers.
What, if anything, was it his responsibility to
do in the situation? What, if anything, was
the responsibility of his family? His fellow
citizens? Members of government? Can
freedom work if no one stands up for the
rights of others?
Activity II [30 minutes]
A. In groups, have students read the excerpts
from Washington’s speeches on Handout
D: George Washington and Individual
Responsibility.
a. Have students write a journal entry
about how Washington exuded
individual responsibility in his life,
writings, and speeches.
Individual Responsibility Module
Homework and Extensions
A. After students have completed all the
activities, have them answer a second
time the questions on Handout A. In small
groups, students should compare their
responses to their pre-assessments and
discuss what, if anything, changed their
minds.
B. Ask students, as individuals or in small
groups, to create plans for a student
assembly program to help their peers
understand the concepts of freedom and
responsibility. Plans should include: title of
the assembly, speakers who will be invited
to present, topics for breakout discussion
sessions, suggested readings, and
“homework” assignments for participants.
When all plans have been submitted,
make copies and distribute them to the
class. Have students vote on the best
plan, and submit it to school officials for
consideration.
C. Have students keep a freedom diary for
24-48 hours in which they keep track of
the freedoms they enjoy. They may wish
to consider their school, their library, and
their town. Then have them choose one
or two situations and evaluate the level of
responsibility required by each situation in a
one-page journal entry.
В© The Bill of Rights Institute
Handout A: Freedom Slips
Let freedom ring.
Free at last, free at last, thank God Almighty, we are free at last!
The land of the free, and the home of the brave.
Hey, it’s a free country.
You’re free to go.
I’m proud to be an American, where at least I know I’m free.
Freedom isn’t free.
There’s no such thing as a free lunch.
Free as a bird.
Those shoes are buy one, get one free.
The philosophy teacher presented a lesson on free will.
The truth will set you free.
The skydiver enjoys free-falling.
Free your mind.
The health food store sells free-range chicken.
Freedom is not possible without responsibility.
В© The Bill of Rights Institute
Handout B: Responsibility Slips
It was my responsibility to take out the trash.
Remembering to turn in homework is the student’s responsibility.
Returning the money she found was a very responsible thing to do.
The principal is responsible for running the school.
Parents are responsible for their children.
She isn’t very responsible. She’s always losing things.
His dad doesn’t believe he is responsible enough to take care of a puppy yet.
He took responsibility for his mistake.
Sometimes it is hard to do the responsible thing.
In dreams begin responsibilities.
Responsibility is the price of greatness.
I have a responsibility to stand up for the rights of others.
Responsibility is a virtue of citizenship.
В© The Bill of Rights Institute
Handout C: Quotes to Consider
“It is easy to take liberty for granted, when you have never had it taken from you.”
–DICK CHENEY
“Those who expect to reap the blessings of freedom, must, like men,
undergo the fatigue of supporting it.”
–THOMAS PAINE
“Liberty means responsibility. That is why most men dread it.”
–GEORGE BERNARD SHAW
“There’s only one basic human right, the right to do as you … please. And with it comes the only
basic human duty, the duty to take the consequences.”
–P.J. O’ROURKE
“Ask not what your country can do for you—ask what you can do for your country.”
–JOHN F. KENNEDY
“The basic test of freedom is perhaps less in what we are free to do than in
what we are free not to do.”
–ERIC HOFFER
“I think of a hero as someone who understands the degree of
responsibility that comes with his freedom.”
–BOB DYLAN
“I believe that every right implies a responsibility; every opportunity,
an obligation; every possession, a duty.”
–JOHN D. ROCKEFELLER
“Individuality is the aim of political liberty. The citizen … is left to pursue his means of
happiness in his own manner.”
–JAMES FENIMORE COOPER
“Freedom is the will to be responsible to ourselves.”
–FRIEDRICH NIETZSCHE
“No man is entitled to the blessings of freedom unless he be vigilant in its preservation.”
–DOUGLAS MACARTHUR
“All I ask is equal freedom. When it is denied, as it always is, I take it anyhow.”
–H.L. MENCKEN
В© The Bill of Rights Institute
Handout D:
George Washington and Individual Liberty
First Inaugural Address, April 30,
1789
Fellow-Citizens of the Senate and of the House
of Representatives:
Among the vicissitudes incident to life no event
could have filled me with greater anxieties than
that of which the notification was transmitted
by your order, and received on the 14th day
of the present month. On the one hand, I was
summoned by my Country, whose voice I can
never hear but with veneration and love, from
a retreat which I had chosen with the fondest
predilection, and, in my flattering hopes,
with an immutable decision, as the asylum
of my declining years–a retreat which was
rendered every day more necessary as well
as more dear to me by the addition of habit
to inclination, and of frequent interruptions in
my health to the gradual waste committed on
it by time. On the other hand, the magnitude
and difficulty of the trust to which the voice
of my country called me, being sufficient to
awaken in the wisest and most experienced
of her citizens a distrustful scrutiny into his
qualifications, could not but overwhelm with
despondence one who (inheriting inferior
endowments from nature and unpracticed in
the duties of civil administration) ought to be
peculiarly conscious of his own deficiencies. In
this conflict of emotions all I dare aver is that
it has been my faithful study to collect my duty
from a just appreciation of every circumstance
by which it might be affected. All I dare hope
is that if, in executing this task, I have been
too much swayed by a grateful remembrance
В© The Bill of Rights Institute
of former instances, or by an affectionate
sensibility to this transcendent proof of the
confidence of my fellow-citizens, and have
thence too little consulted my incapacity as well
as disinclination for the weighty and untried
cares before me, my error will be palliated
by the motives which mislead me, and its
consequences be judged by my country with
some share of the partiality in which they
originated.
Such being the impressions under which I
have, in obedience to the public summons,
repaired to the present station, it would be
peculiarly improper to omit in this first official
act my fervent supplications to that Almighty
Being who rules over the universe, who
presides in the councils of nations, and whose
providential aids can supply every human
defect, that His benediction may consecrate
to the liberties and happiness of the people
of the United States a Government instituted
by themselves for these essential purposes,
and may enable every instrument employed in
its administration to execute with success the
functions allotted to his charge. In tendering this
homage to the Great Author of every public and
private good, I assure myself that it expresses
your sentiments not less than my own, nor
those of my fellow-citizens at large less than
either. No people can be bound to acknowledge
and adore the Invisible Hand which conducts
the affairs of men more than those of the
United States. Every step by which they have
advanced to the character of an independent
nation seems to have been distinguished by
some token of providential agency; and in
the important revolution just accomplished
in the system of their united government the
tranquil deliberations and voluntary consent of
so many distinct communities from which the
event has resulted can not be compared with
the means by which most governments have
been established without some return of pious
gratitude, along with an humble anticipation
of the future blessings which the past seem
to presage. These reflections, arising out of
the present crisis, have forced themselves too
strongly on my mind to be suppressed. You
will join with me, I trust, in thinking that there
are none under the influence of which the
proceedings of a new and free government can
more auspiciously commence.
By the article establishing the executive
department it is made the duty of the President
“to recommend to your consideration such
measures as he shall judge necessary and
expedient.” The circumstances under which
I now meet you will acquit me from entering
into that subject further than to refer to the
great constitutional charter under which you
are assembled, and which, in defining your
powers, designates the objects to which
your attention is to be given. It will be more
consistent with those circumstances, and
far more congenial with the feelings which
actuate me, to substitute, in place of a
recommendation of particular measures, the
tribute that is due to the talents, the rectitude,
and the patriotism which adorn the characters
selected to devise and adopt them. In these
honorable qualifications I behold the surest
pledges that as on one side no local prejudices
or attachments, no separate views nor party
animosities, will misdirect the comprehensive
and equal eye which ought to watch over
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this great assemblage of communities and
interests, so, on another, that the foundation
of our national policy will be laid in the pure
and immutable principles of private morality,
and the preeminence of free government be
exemplified by all the attributes which can win
the affections of its citizens and command the
respect of the world. I dwell on this prospect
with every satisfaction which an ardent love
for my country can inspire, since there is no
truth more thoroughly established than that
there exists in the economy and course of
nature an indissoluble union between virtue
and happiness; between duty and advantage;
between the genuine maxims of an honest and
magnanimous policy and the solid rewards of
public prosperity and felicity; since we ought
to be no less persuaded that the propitious
smiles of Heaven can never be expected on a
nation that disregards the eternal rules of order
and right which Heaven itself has ordained;
and since the preservation of the sacred fire of
liberty and the destiny of the republican model
of government are justly considered, perhaps,
as deeply, as finally, staked on the experiment
entrusted to the hands of the American people.
Besides the ordinary objects submitted to
your care, it will remain with your judgment to
decide how far an exercise of the occasional
power delegated by the fifth article of the
Constitution is rendered expedient at the
present juncture by the nature of objections
which have been urged against the system, or
by the degree of inquietude which has given
birth to them. Instead of undertaking particular
recommendations on this subject, in which
I could be guided by no lights derived from
official opportunities, I shall again give way
to my entire confidence in your discernment
and pursuit of the public good; for I assure
myself that whilst you carefully avoid every
alteration which might endanger the benefits of
an united and effective government, or which
ought to await the future lessons of experience,
a reverence for the characteristic rights
ofВ freemen and a regard for the public harmony
will sufficiently influence your deliberations
on the question how far the former can be
impregnably fortified or the latter be safely and
advantageously promoted.
To the foregoing observations I have one to
add, which will be most properly addressed
to the House of Representatives. It concerns
myself, and will therefore be as brief as
possible. When I was first honored with
a call into the service of my country, then
on the eve of an arduous struggle for its
liberties, the light in which I contemplated my
duty required that I should renounce every
pecuniary compensation. From this resolution
I have in no instance departed; and being
still under the impressions which produced it,
I must decline as inapplicable to myself any
share in the personal emoluments which may
be indispensably included in a permanent
provision for the executive department, and
must accordingly pray that the pecuniary
estimates for the station in which I am placed
may during my continuance in it be limited to
such actual expenditures as the public good
may be thought to require.
Having thus imparted to you my sentiments
as they have been awakened by the occasion
which brings us together, I shall take my
present leave; but not without resorting once
more to the benign Parent of the Human Race
in humble supplication that, since He has
been pleased to favor the American people
with opportunities for deliberating in perfect
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tranquillity, and dispositions for deciding with
unparalleled unanimity on a form of government
for the security of their union and the
advancement of their happiness, so His divine
blessing may be equally conspicuous in the
enlarged views, the temperate consultations,
and the wise measures on which the success
of this Government must depend.
Excerpts from the Farewell Address,
September 19, 1796
Friends and Citizens:
The period for a new election of a citizen to
administer the executive government of the
United States being not far distant, and the time
actually arrived when your thoughts must be
employed in designating the person who is to
be clothed with that important trust, it appears
to me proper, especially as it may conduce to
a more distinct expression of the public voice,
that I should now apprise you of the resolution
I have formed, to decline being considered
among the number of those out of whom a
choice is to be made.
I beg you, at the same time, to do me the
justice to be assured that this resolution has
not been taken without a strict regard to all
the considerations appertaining to the relation
which binds a dutiful citizen to his country;
and that in withdrawing the tender of service,
which silence in my situation might imply, I am
influenced by no diminution of zeal for your
future interest, no deficiency of grateful respect
for your past kindness, but am supported by a
full conviction that the step is compatible with
both.
The acceptance of, and continuance hitherto
in, the office to which your suffrages have
twice called me have been a uniform sacrifice
of inclination to the opinion of duty and to a
deference for what appeared to be your desire.
I constantly hoped that it would have been
much earlier in my power, consistently with
motives which I was not at liberty to disregard,
to return to that retirement from which I had
been reluctantly drawn. The strength of my
inclination to do this, previous to the last
election, had even led to the preparation of
an address to declare it to you; but mature
reflection on the then perplexed and critical
posture of our affairs with foreign nations, and
the unanimous advice of persons entitled to my
confidence, impelled me to abandon the idea.
I rejoice that the state of your concerns,
external as well as internal, no longer renders
the pursuit of inclination incompatible with
the sentiment of duty or propriety, and am
persuaded, whatever partiality may be
retained for my services, that, in the present
circumstances of our country, you will not
disapprove my determination to retire.
The impressions with which I first undertook
the arduous trust were explained on the proper
occasion. In the discharge of this trust, I will
only say that I have, with good intentions,
contributed towards the organization and
administration of the government the best
exertions of which a very fallible judgment
was capable. Not unconscious in the outset of
the inferiority of my qualifications, experience
in my own eyes, perhaps still more in the
eyes of others, has strengthened the motives
to diffidence of myself; and every day the
increasing weight of years admonishes me
more and more that the shade of retirement
is as necessary to me as it will be welcome.
Satisfied that if any circumstances have given
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peculiar value to my services, they were
temporary, I have the consolation to believe
that, while choice and prudence invite me to
quit the political scene, patriotism does not
forbid it…
For this you have every inducement of
sympathy and interest. Citizens, by birth or
choice, of a common country, that country
has a right to concentrate your affections.
The name of American, which belongs to you
in your national capacity, must always exalt
the just pride of patriotism more than any
appellation derived from local discriminations.
With slight shades of difference, you have the
same religion, manners, habits, and political
principles. You have in a common cause fought
and triumphed together; the independence
and liberty you possess are the work of joint
counsels, and joint efforts of common dangers,
sufferings, and successes…
The basis of our political systems is the
right of the people to make and to alter
their constitutions of government. But
theВ ConstitutionВ which at any time exists, till
changed by an explicit and authentic act of the
whole people, is sacredly obligatory upon all.
The very idea of the power and the right of the
people to establish government presupposes
the duty of every individual to obey the
established government...
Liberty itself will find in such a government, with
powers properly distributed and adjusted, its
surest guardian. It is, indeed, little else than a
name, where the government is too feeble to
withstand the enterprises of faction, to confine
each member of the society within the limits
prescribed by the laws, and to maintain all in
the secure and tranquil enjoyment of the rights
of person and property…
This spirit, unfortunately, is inseparable from
our nature, having its root in the strongest
passions of the human mind. It exists under
different shapes in all governments, more
or less stifled, controlled, or repressed; but,
in those of the popular form, it is seen in its
greatest rankness, and is truly their worst
enemy.
It is important, likewise, that the habits of
thinking in a free country should inspire caution
in those entrusted with its administration, to
confine themselves within their respective
constitutional spheres, avoiding in the exercise
of the powers of one department to encroach
upon another. The spirit of encroachment
tends to consolidate the powers of all the
departments in one, and thus to create,
whatever the form of government, a real
despotism. A just estimate of that love of
power, and proneness to abuse it, which
predominates in the human heart, is sufficient
to satisfy us of the truth of this position. The
necessity of reciprocal checks in the exercise
of political power, by dividing and distributing
it into different depositaries, and constituting
each the guardian of the public weal against
invasions by the others, has been evinced
by experiments ancient and modern; some
of them in our country and under our own
eyes. To preserve them must be as necessary
as to institute them. If, in the opinion of the
people, the distribution or modification of the
constitutional powers be in any particular
wrong, let it be corrected by an amendment
in the way which theВ Constitution designates.
But let there be no change by usurpation;
for though this, in one instance, may be the
instrument of good, it is the customary weapon
by which free governments are destroyed. The
precedent must always greatly overbalance in
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permanent evil any partial or transient benefit,
which the use can at any time yield.
Of all the dispositions and habits which lead
to political prosperity, religion and morality are
indispensable supports. In vain would that
man claim the tribute of patriotism, who should
labor to subvert these great pillars of human
happiness, these firmest props of the duties of
men and citizens. The mere politician, equally
with the pious man, ought to respect and to
cherish them. A volume could not trace all their
connections with private and public felicity. Let
it simply be asked: Where is the security for
property, for reputation, for life, if the sense
of religious obligation desert the oaths which
are the instruments of investigation in courts
of justice? And let us with caution indulge the
supposition that morality can be maintained
without religion. Whatever may be conceded to
the influence of refined education on minds of
peculiar structure, reason and experience both
forbid us to expect that national morality can
prevail in exclusion of religious principle.
It is substantially true that virtue or morality is a
necessary spring of popular government. The
rule, indeed, extends with more or less force to
every species of free government. Who that is
a sincere friend to it can look with indifference
upon attempts to shake the foundation of the
fabric?
Promote then, as an object of primary
importance, institutions for the general diffusion
of knowledge. In proportion as the structure
of a government gives force to public opinion,
it is essential that public opinion should be
enlightened.
Observe good faith and justice towards all
nations; cultivate peace and harmony with
all. Religion and morality enjoin this conduct;
and can it be, that good policy does not
equally enjoin it – It will be worthy of a free,
enlightened, and at no distant period, a great
nation, to give to mankind the magnanimous
and too novel example of a people always
guided by an exalted justice and benevolence.
Who can doubt that, in the course of time and
things, the fruits of such a plan would richly
repay any temporary advantages which might
be lost by a steady adherence to it? Can it
be that Providence has not connected the
permanent felicity of a nation with its virtue?
The experiment, at least, is recommended by
every sentiment which ennobles human nature.
Alas! is it rendered impossible by its vices?...
After deliberate examination, with the aid of the
best lights I could obtain, I was well satisfied
that our country, under all the circumstances
of the case, had a right to take, and was
bound in duty and interest to take, a neutral
position. Having taken it, I determined, as far
as should depend upon me, to maintain it, with
moderation, perseverance, and firmness.
In offering to you, my countrymen, these
counsels of an old and affectionate friend, I
dare not hope they will make the strong and
lasting impression I could wish; that they will
control the usual current of the passions, or
prevent our nation from running the course
which has hitherto marked the destiny of
nations. But, if I may even flatter myself that
they may be productive of some partial benefit,
some occasional good; that they may now and
then recur to moderate the fury of party spirit, to
warn against the mischiefs of foreign intrigue,
to guard against the impostures of pretended
patriotism; this hope will be a full recompense
for the solicitude for your welfare, by which they
have been dictated.
The duty of holding a neutral conduct may
be inferred, without anything more, from the
obligation which justice and humanity impose
on every nation, in cases in which it is free to
act, to maintain inviolate the relations of peace
and amity towards other nations.
How far in the discharge of my official duties I
have been guided by the principles which have
been delineated, the public records and other
evidences of my conduct must witness to you
and to the world. To myself, the assurance
of my own conscience is, that I have at least
believed myself to be guided by them…
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The considerations which respect the right to
hold this conduct, it is not necessary on this
occasion to detail. I will only observe that,
according to my understanding of the matter,
that right, so far from being denied by any
of the belligerent powers, has been virtually
admitted by all.
The inducements of interest for observing
that conduct will best be referred to your
own reflections and experience. With me a
predominant motive has been to endeavor to
gain time to our country to settle and mature
its yet recent institutions, and to progress
without interruption to that degree of strength
and consistency which is necessary to give it,
humanly speaking, the command of its own
fortunes.
Though, in reviewing the incidents of my
administration, I am unconscious of intentional
error, I am nevertheless too sensible of my
defects not to think it probable that I may have
committed many errors. Whatever they may
be, I fervently beseech the Almighty to avert or
mitigate the evils to which they may tend. I shall
also carry with me the hope that my country will
never cease to view them with indulgence; and
that, after forty five years of my life dedicated
to its service with an upright zeal, the faults
of incompetent abilities will be consigned
to oblivion, as myself must soon be to the
mansions of rest.
Relying on its kindness in this as in other
things, and actuated by that fervent love
towards it, which is so natural to a man who
views in it the native soil of himself and his
progenitors for several generations, I anticipate
with pleasing expectation that retreat in which
I promise myself to realize, without alloy, the
sweet enjoyment of partaking, in the midst of
my fellow-citizens, the benign influence of good
laws under a free government, the ever-favorite
object of my heart, and the happy reward, as I
trust, of our mutual cares, labors, and dangers
Geo. Washington
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FOUNDING PRINCIPLES COURSE Individual Responsibility Module
Individual Responsibility Module:
Benjamin Franklin and Virtue Lesson
Lesson Overview
In this lesson, students will begin to analyze the importance of virtue in a society by coming to a
shared definition of virtue. They will read a selection from Benjamin Franklin’s autobiography and
reflect on how one of the Founding Era’s great thinkers tried to attain virtue in his own life.
Recommended Time
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80 minutes
Objectives
Students will:
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Define the term virtue.
Analyze the misconceptions surrounding
virtue.
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Analyze the importance of civic virtue and
individual responsibility in our society.
Apply the understanding of civic virtue
and individual responsibility to their own
experiences.
Understand how Benjamin Franklin tried to
attain virtue and responsibility.
Interpret Franklin’s categorization of what he
deems important virtues.
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North Carolina Clarifying Objectives
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
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CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.4.3: Analyze the roles of citizens
of North Carolina and the United States in
terms of responsibilities, participation, civic
life and criteria for membership or admission
(e.g., voting, jury duty, lobbying, interacting
successfully with government agencies,
organizing and working in civic groups,
volunteering, petitioning, picketing, running
for political office, residency, etc.)
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
FOUNDING PRINCIPLES COURSE evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
Materials
Handout A: What Is Virtue?
Handout B: Benjamin Franklin and Civic Virtue
Lesson Plan
Warm-Up [20 minutes]
A. Have students read Handout A: What Is
Virtue?
Individual Responsibility Module
C. Bring the whole class together and combine
each individual group’s lists into one large
list to post in the classroom throughout the
course.
Activity II [30 minutes]
D. Distribute Handout B: Benjamin Franklin
and Civic Virtue. Have students work in
groups of 2-4 to read this excerpt from
Franklin’s autobiography and answer the
questions that follow.
B. After students finish reading, have them
work in pairs to develop their own definition
of virtue. Post these definitions around the
classroom.
E. Have each student choose one of the
virtues that Franklin discusses and think
of ways in which they exemplify that
specific virtue at school, at home, in their
community, or with friends. Write a short
journal entry on their analysis of this virtue.
Activity I [30 minutes]
Homework and Extension Options
A. Discuss, as a whole group, the definitions
of virtue the students developed and arrive
at one definition as a group.
a. Then discuss each section of the essay
and the misconceptions that arise
regarding virtue.
b. Have the students debate (either in
small groups or as a whole class)
whether or not virtue requires a “just
end” and/or whether virtue requires
“action” as stated in Handout A.
B. Break students into small groups or pairs.
Have students:
a. Make a list of the ways in which virtuous
behavior is important to maintaining
a successful society and government
structure.
b. Make a list of ways in which they can
personally act virtuously in their lives.
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A. Have students research other virtuous
citizens like George Washington, Frederick
Douglass, Alice Paul, the Schechter
Brothers, Rosa Parks, or Elizabeth
Eckford and the Little Rock Nine. From
their research, students should create a
presentation in which they determine how
each of these individuals displayed virtue in
their lives.
B. Have students identify leaders and
prominent individuals from other nations
and societies and analyze how they
expressed virtue in their own works. In an
oral presentation, students should explain
the parallels between these leaders and the
Founders. (Examples could include: Nelson
Mandela, Mahatma Gandhi the Dali Lama,
Mustafa Ataturk, Florence Nightingale,
Marie Curie, or Mother Teresa.)
Handout A: What Is Virtue?
Understanding virtue means acknowledging
that right and wrong exist.
To further justice, we must exercise judgment.
In order to understand and evaluate virtue, we
must be willing to admire heroes and condemn
villains. We must be willing to take a stand.
A special challenge today may be that many
people do not wish to appear judgmental,
especially when another person’s actions do no
harm to others. But what about when they do?
A reluctance to judge the behavior of others
should not mean we do nothing in the face of
evil. All that is needed for evil to triumph is for
good people to do nothing.
“You never really understand a person until you
consider things from his point of view—until you
climb into his skin and walk around in it.”–
Atticus Finch, To Kill a Mockingbird, by Harper
Lee
“Our lives begin to end the day we become
silent about things that matter.”–Martin Luther
King, Jr.
Being virtuous does not require belief in a
supreme being.
We do not wish to shy away from the
term “virtue”—despite the occasional
misunderstanding that the term somehow
requires religion. Virtue is compatible with, but
does not require, religious belief. To many in
the Founding generation, religion and morality
were “indispensable supports” to people’s
ability to govern themselves. This is because
religious institutions nurtured virtue, and they
knew virtue was needed for self-government
to survive. On the other hand, to paraphrase
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Thomas Jefferson, it does you no injury
whether your neighbor believes in one god or
twenty gods. A person’s religion alone would
not make him virtuous, and his particular (or
lack of) faith would not mean he was incapable
of virtue.
“We ought to consider what is the end
[purpose] of government before we determine
which is the best form. Upon this point all
speculative politicians will agree that the
happiness of society is the end of government,
as all divines and moral philosophers will agree
that the happiness of the individual is the
end of man. …All sober inquirers after truth,
ancient and modern, pagan and Christian, have
declared that the happiness of man, as well as
his dignity, consists in virtue.”–John Adams,
Thoughts on Government, 1776
Why virtues and not “values” or
“character”?
Virtues are eternal because they are rooted
in human nature. Values, on the other hand,
can change with the times. The word “value”
itself implies that values are relative. While
values can change with circumstances, it is
always good to be just, to persevere, to be
courageous, to respect others, and soon. We
take the word “character” to mean the sum total
of virtues an individual displays. A person of
character is virtuous.
Why these virtues?
In consultation with our academic advisory
team, we worked to identify virtues the
Founders believed were required of citizens in
order for the Constitution to work. By studying
primary sources—notably the Federalist Papers
and the Autobiography of Ben Franklin—we
established the “Founders’ Virtues” which
include justice, courage, perseverance,
respect, self-governance, and many others.
Virtue is a habit.
Virtue is a “golden mean.”
For example, a man who finds a piece of
jewelry, intends to keep it, but later returns it to
the owner to collect a reward helps bring about
a just outcome (property was returned to its
rightful owner) but falls short of being “virtuous”
because of the calculation he went through to
arrive at his course of action. While all virtues
must be habits, not all habits are virtuous.
We began with Aristotle’s understanding of
virtue as a mean (or middle) between two
extremes. The same character trait, when
expressed to the extreme, ceases to be
virtue and becomes vice. For example, too
little courage is cowardice, while too much
makes one foolhardy. A healthy respect for
authority becomes blind obedience to power
when expressed too strongly or descends into
unprincipled recalcitrance when completely
lacking.
Virtue is action.
Thoughts may be about virtuous things, but
they themselves do not merit the name of
virtue. Similarly, words can describe virtuous
things but can never themselves be virtuous.
Thoughts and words alone don’t make a person
virtuous— one must act on them.
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We also take the idea from Aristotle that virtue
is a habit. Virtuous behavior is not the result of
numerous, individual calculations about which
course of action would be most advantageous.
Virtue requires a just end.
Behavior can be virtuous only when done in
the pursuit of justice. For example, although
courage is a virtue, a Nazi who proceeded in
killing thousands of people despite his own
feelings of fear cannot be called courageous.
Though respect is a virtue, a junior police
officer who stood by while his captain brutalized
a suspect cannot be called respectful. A
complication can come when one either
focuses on or enlarges the sphere within which
action takes place. Could an officer on the
wrong side of a war display virtue in the form
of courage by taking care of the younger men
in his charge and shielding them from harm? Is
the “end” of his action the responsibility towards
his men, or the continued strength of his army,
which is working towards an evil cause?
Handout B: Benjamin Franklin and Civic Virtue
Directions: When Benjamin Franklin was in
his 20s, he began a project to become a more
virtuous person. Many years later, he wrote
the following selection from his Autobiography
about that time. Read his reflections on virtue
and then answer the questions that follow.
It was about this time that I conceiv’d the
bold and arduous Project of arriving at moral
Perfection. I wish’d to live without committing
any Fault at any time; I would conquer all
that either Natural Inclination, Custom, or
Company might lead me into. As I knew, or
thought I knew, what was right and wrong, I
did not see why I might not all ways do the
one and avoid the other. But I soon found I
had undertaken a Task of more Difficulty than
I had imagined. While my Attention was taken
up in guarding against one Fault, I was often
surpris’d by another. Habit took the Advantage
of Inattention. Inclination was sometimes too
strong for Reason. I concluded at length, that
the mere speculative Conviction that it was
our Interest to be completely virtuous, was
not sufficient to prevent our Slipping, and that
the contrary Habits must be broken and good
ones acquired and established, before we can
have any Dependence on a steady uniform
Rectitude of Conduct. For this purpose I there
forecontriv’d the following Method.
In the various Enumerations of the moral
Virtues I had met with in my Reading, I found
the Catalogue more or less numerous, as
different Writers included more or fewer Ideas
under the same Name. Temperance, for
Example, was by the some confin’d to Eating
& Drinking, while by other sit was extended to
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mean the moderating every other Pleasure,
Appetite, Inclination or Passion, bodily or
mental, even to our Avarice & Ambition. I
propos’d to myself, for the sake of Clearness,
to use rather more Names with fewer Ideas
annex’d to each, than a few Names with more
Ideas; and I included under Thirteen Names of
Virtues all that at that time occurr’d to me as
necessary or desirable, and annex’d to each a
short Precept, which fully express’d the Extent I
gave to its Meaning.
These Names of Virtues with their Precepts
were:
TEMPERANCE. Eat not to dullness; drink not
to elevation.
SILENCE. Speak not but what may benefit
others or yourself; avoid trifling conversation.
ORDER. Let all your things have their places;
let each part of your business have its time.
RESOLUTION. Resolve to perform what you
ought; perform without fail what you resolve.
FRUGALITY. Make no expense but to do good
to others or yourself; i.e., waste nothing.
INDUSTRY. Lose no time; be always employ’d
in something useful; cut off all unnecessary
actions.
SINCERITY. Use no hurtful deceit; think
innocently and justly, and, if you speak, speak
accordingly.
JUSTICE. Wrong none by doing injuries, or
omitting the benefits that are your duty.
MODERATION. Avoid extreams; forbear
resenting injuries so much as you think they
deserve.
CLEANLINESS. Tolerate no uncleanliness in
body, cloaths, or habitation.
TRANQUILLITY. Be not disturbed at trifles, or
at accidents common or unavoidable.
CHASTITY. Rarely use venery but for health
or offspring, never to dulness, weakness, or
the injury of your own or another’s peace or
reputation.
HUMILITY. Imitate Jesus and Socrates.
My Intention being to acquire the Habitude
of all these Virtues, I judg’d it would be well
not to distract my Attention by attempting the
whole at once, but to fix it on one of them
at a time, and when I should be Master of
that, then to proceed to another, and so on
till I should have gone thro’ the thirteen. And
as the previous Acquisition of some might
facilitate the Acquisition of certain others, I
arrang’d them with that View as they stand
above. Temperance first, as it tends to procure
that Coolness & Clearness of Head, which is
so necessary where constant Vigilance was to
be kept up, and Guard maintained, against the
unremitting Attraction of ancient Habits, and
the Force of perpetual Temptations. This being
acquir’d & establish’d, Silence would be more
easy, and my Desire being to gain Knowledge
at the sametime that I improv’d in Virtue and
considering that in Conversation it was obtain’d
rather by the use of the Ears than of the Tongue,
&therefore wishing to break a Habit I was getting
В© The Bill of Rights Institute
into of Prattling, Punning & Joking, which only
made me acceptable to trifling Company, I gave
Silence the second Place. This, and the next,
Order, I expected would allow me more Time
for attending to my Project and my Studies;
RESOLUTION, once become habitual, would
keep me firm in my Endeavors to obtain all the
subsequent Virtues; Frugality & Industry, by
freeing me from my remaining Debt, & producing
Affluence & Independence, would make more
easy the Practice of Sincerity and Justice,
&c &c. Conceiving then that agreeable to the
Advice of Pythagoras in his Golden Verses daily
Examination would be necessary, I contriv’d
the following Method for conducting that
Examination.
I made a little Book in which I allotted a Page
for each of the Virtues. I rul’d each Page with
red Ink, so as to have seven Columns, one for
each Day of the Week, marking each Column
with a Letter for the Day. I cross’d these
Columns with thirteen red Lines, marking the
Beginning of each Line with the first Letter of
one of the Virtues, on which Line & in its proper
Column I might mark by a little black Spot every
Fault I found upon Examination to have been
committed respecting that Virtue upon that Day.
I determined to give a Week’s strict Attention
to each of the Virtues successively. Thus in the
first Week my great Guard was to avoid every
the least Offense against Temperance, leaving
the other Virtues to their ordinary Chance,
only marking every Evening the Faults of the
Day. Thus if in the first Week I could keep my
first Line marked clear of Spots, I suppos’d
the Habit of that Virtue so much strengthen’d
and its opposite weaken’d, that I might venture
extending my Attention to include the next, and
for the following Week keep both Lines clear
of Spots. Proceeding thus to the last, I could
go thro’ a Course complete in Thirteen Weeks,
and four Courses in a Year. And like him who
having a Garden to weed, does not attempt
to eradicate all the bad Herbs at once, which
would exceed his Reach and his Strength, but
works on one of the Beds at a time, & having
accomplish’d the first proceeds to a Second;
so I should have, (I hoped) the encouraging
Pleasure of seeing on my Pages the Progress
I made in Virtue, by clearing successively my
Lines of their Spots, till in the End by a Number
of Courses, I should be happy in viewing
a clean Book after a thirteen Weeks, daily
Examination.
… on the whole, tho’ I never arrived at
the perfection I had been so ambitious of
obtaining, but fell far short of it, yet I was, by
the endeavour, a better and a happier man
than I otherwise should have been if I had
not attempted it; as those who aim at perfect
writing by imitating the engraved copies, tho’
they never reach the wish’d-for excellence
of those copies, their hand is mended by the
endeavor, an dis tolerable while it continues fair
and legible.
I enter’d upon the Execution of this Plan
for Self Examination, and continu’d it with
occasional Intermissions for some time. I was
surpris’d to find myself so much fuller of Faults
than I had imagined, but I had the Satisfaction
of seeing them diminish. To avoid the Trouble
of renewing now & then my little Book, which
by scraping out the Marks on the Paper of old
Faults, to make room for new Ones in a new
Course, became full of Holes: I transferr’d my
Tables & Precepts to the Ivory Leaves of a
Memorandum Book, on which the Lines were
drawn with red Ink that made a durable Stain,
and on those Lines I mark’d my Faults with a
black Lead Pencil, which Marks I could easily
wipe out with a wet Sponge. After a while I went
thro’ one course only in a year, and afterward
only one in several years, till at length I omitted
them entirely, being employ’d in voyages and
business abroad, with a multiplicity of affairs
that interfered; but I always carried my little
book with me.
2. How did Franklin understand virtue? How
did he define, use, and refine the term?
В© The Bill of Rights Institute
Questions to consider
1. How did Franklin understand individual
responsibility?
3. What was Franklin’s rationale for ordering
and working on the virtues in the order he
did?
4. Franklin wrote that there was something
more powerful than his intention to live
virtuously; what was that more powerful
thing?
5. Aristotle believed that virtue was a habit.
Would Franklin have agreed with him?
6. How did Franklin incorporate the virtues
about which he wrote into his project to
embody them?
7. What examples did Franklin give of his
struggle to live virtuously?
8. Did Franklin believe he succeeded in his
ultimate goal? Why or why not?
9. What value did Franklin find in the project?
10.What most impresses you about Franklin’s
project?
FOUNDING PRINCIPLES COURSE Inalienable Rights Module
Founding Principle Module Introduction:
Inalienable Rights
Learning Goals and Essential Questions
Inalienable rights are those with which all of us are born. These inherent rights are negative,
meaning they can be exercised without action from anyone else, e.g. freedom of speech, press,
religion, etc. The purpose of government is to protect the people in all their rights from limitation by
others, from foreign attack, or from government itself.
Lesson One: Why Do Inalienable
Rights Matter?
Overview
Inalienable rights are those with which all of
us are born. These inherent rights can be
exercised without action from anyone else, e.g.
freedom of speech, press, religion, etc. The
purpose of government is to protect the people
in all their rights from limitation by others,
from foreign attack, or from government itself.
Students will determine where these rights
come from and whether or not it is important
to understand where rights originate. Students
will compare and contrast their inalienable
rights with those rights granted to them by
the government. They will watch a video on
the principle Consent of the Governed, and
they will compare and contrast Madison and
Jefferson’s understandings of religious liberty.
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100 minutes
Objectives
Students will:
Distinguish between the origins of natural
rights and governing rights.
В© The Bill of Rights Institute
Define the term “consent of the governed.”
Interpret the Founders understanding of
religious liberty in relation to free exercise
and holding office.
North Carolina Clarifying Objectives
Recommended Time
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Evaluate the importance of specific
inalienable rights.
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CE.C&G.1.1 : Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.2 : Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.3 : Evaluate how debates on
power and authority between Federalists
FOUNDING PRINCIPLES COURSE and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.6: Evaluate the authority federal,
state, and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
В© The Bill of Rights Institute
Inalienable Rights Module
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AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction in
terms of their lasting impact (e.g., conflicts,
legislation, elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
AH1.H.4.4: Analyze the cultural conflicts
that impacted the United States through
Reconstruction and the compromises that
resulted (e.g., displacement of American
Indians, manifest destiny, slavery,
assimilation, nativism).
FOUNDING PRINCIPLES COURSE Inalienable Rights Module
Lesson Two: The Declaration of
Independence
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
Overview
In this lesson, students will explore the structure,
purpose, and significance of the Declaration
of Independence. Focusing on the most
famous phrases of the Declaration, students
will analyze the concepts of inalienable rights
and government by consent. Finally, students
will begin to understand the philosophical
foundations of America’s constitutional
government.
Recommended Time
110 minutes
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Objectives
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Evaluate the idea of “consent of
the governed” in the Declaration of
Independence.
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Analyze the purpose and structure of the
Declaration of Independence.
Analyze how the authors of the Declaration of
Independence understood inalienable rights.
Deconstruct the language used in the
Declaration of Independence.
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North Carolina Clarifying Objectives
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CE.C&G.1.3 : Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central government,
protection of individual rights, Elastic Clause,
Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
В© The Bill of Rights Institute
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CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
AH1.H.1.1: Use Chronological thinking to: 1.
Identify the structure of a historical narrative
or story: (its beginning, middle and end). 2.
Interpret data presented in time lines and
create time lines.
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
evidence. 4. Construct analytical essays
FOUNDING PRINCIPLES COURSE Inalienable Rights Module
using historical evidence to support
arguments.
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AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.)
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
AH1.H.4.2: Analyze the economic issues
and conflicts that impacted the United
States through Reconstruction and
the compromises that resulted (e.g.,
mercantilism, Revolutionary era taxation,
National Bank, taxes, tariffs, territorial
expansion, Economic “Panics”, Civil War).
AH1.H.4.4: Analyze the cultural conflicts
that impacted the United States through
Reconstruction and the compromises that
resulted (e.g., displacement of American
Indians, manifest destiny, slavery,
assimilation, nativism).
AH1.H.5.1 : Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
В© The Bill of Rights Institute
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition,
“slavery as a peculiar institution”, etc.).
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AH1.H.7.1: Explain the impact of
wars on American Politics through
Reconstruction (e.g., Issues of taxation
without representation, Proclamation of
1763, Proclamation of Neutrality, XYZ
Affair, Alien & Sedition Acts, War Hawks,
Hartford Convention, slavery, Compromises,
scalawags, carpetbaggers, etc. ).
AH1.H.7.3: Explain the impact of wars
on American society and culture through
Reconstruction (e.g., salutary neglect,
slavery, breakup of the plantation system,
carpetbaggers, scalawags, KKK, and
relocation of American Indians, etc.).
Lesson Three: George Washington
Overview
Americans have long appreciated the
importance of George Washington to their
nation’s history. Deemed “the indispensable
man” by one historian, Washington secured
American independence as commander of the
Continental Army and established republican
traditions as the nation’s first president. His
unblemished character and force of personality
steeled men’s hearts in combat and stirred
their souls in peace. But only recently have
historians begun to recognize Washington’s
intellectual contributions to the formation of the
American republic. Though never a systematic
thinker, Washington understood the relationship
between political theory and practice and
was a close associate of many of the leading
statesmen of the day, such as James Madison,
Alexander Hamilton, and Thomas Jefferson.
FOUNDING PRINCIPLES COURSE Indeed, the friendship between Washington and
Madison is one of the most important political
partnerships of the Founding Era.
Inalienable Rights Module
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Recommended Time
60 minutes
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Objectives
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Evaluate how and why George Washington
is known as the “Father of His Country”.
Explain how Washington created precedents
during his presidency.
Evaluate the various roles Washington
played in defending and creating the new
nation and its government.
Explain the ways in which Washington
strove to protect inalienable rights
throughout his life.
North Carolina Clarifying Objectives
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Identify the purposes of Washington’s
Farewell Address.
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
В© The Bill of Rights Institute
�
�
�
AH1.H.1.1: Use Chronological thinking to: 1.
Identify the structure of a historical narrative
or story: (its beginning, middle and end). 2.
Interpret data presented in time lines and
create time lines.
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
FOUNDING PRINCIPLES COURSE �
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
Assessment
Have students read the Declaration of
Independence and U.S. Bill of Rights, and
the United Nation’s Universal Declaration of
Human Rights.
a. They should provide a critical analysis
comparing the United States’ Founding
documents and the U.N.’s Universal
Declaration in regard to the following three
categories:
i. The origin of rights
ii. The role of government
iii. The treatment of property
b. Students should analyze each document’s
treatment of the three categories.
i. U.S. documents: rights are inalienable
and are derived from nature/God;
government is limited by the documents;
property rights are considered natural
rights and are protected by the due
process of law.
ii. U.N.: includes both inalienable rights
and rights that are desired by people but
are not derived from nature; government
is required to protect and fulfill all
of these rights; people shall not be
arbitrarily deprived of property.
c. Students should compare and contrast the
purpose and context of the documents.
В© The Bill of Rights Institute
Inalienable Rights Module
i. U.S.: Purpose: to limit government’s
power to infringe upon inalienable rights;
Context: after having rights infringed
upon by Great Britain, the American
colonist wrote these documents to form
a new government which would prevent
the infringement of inalienable rights.
ii. U.N.: Purpose: to set a baseline
minimum of expectations for world
governments to protect their citizens;
Context: the United Nations was formed
after World War II to ensure that horrors
experienced during the war would not be
repeated.
d. Students should use quotations to illustrate
the similarities or differences between the
documents
i. U.S.:
1. “We hold these truths to be selfevident, 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.”
2. “That to secure these rights,
Governments are instituted among
Men, deriving their just powers from
the consent of the governed.”
3. “…it is the Right of the People to
alter or to abolish it, and to institute
new Government...”
4. “But when a long train of abuses
and usurpations, pursuing invariably
the same Object evinces a design
to reduce them under absolute
Despotism, it is their right, it
is their duty, to throw off such
Government…”
FOUNDING PRINCIPLES COURSE ii. U.N.
1. “…freedom from fear and want has
been proclaimed as the highest
aspiration of the common people.”
2. “Everyone has the right to work,
to free choice of employment, to
just and favourable conditions of
work and to protection against
unemployment.”
3. “Everyone has the right to rest
and leisure, including reasonable
limitation of working hours and
periodic holidays with pay.”
4. “Everyone has the right to a
standard of living adequate for the
health and well-being of himself and
of his family.”
Inalienable Rights Module
iii. Differences:
1. The United States Founding
documents protect inalienable rights
and limit government to keep these
rights secure.
2. The United Nations document has a
more expansive view of government
in order to keep the people free from
want.
e. Students should make an argument about
which document better protects inalienable
rights.
i. The fundamental item that the student
should discuss in their argument is
whether or not they believe that limited
government or expanded government
power better protect inalienable rights.
5. “Everyone has the right to education.
Education shall be free, at least in
the elementary and fundamental
stages. Elementary education shall
be compulsory.”
f. Students should present their critical
analysis of the documents in:
i. a short essay
ii. a PowerPoint presentation
iii. a short video
6. “Everyone has the right freely to
participate in the cultural life of the
community, to enjoy the arts and to
share in scientific advancement and
its benefits.”
These resources were created by the Bill
of Rights Institute to help North Carolina
high school teachers of civics and American
History meet the requirements of the Founding
Principles Act.
7. “Everyone has duties to the
community in which alone the
free and full development of his
personality is possible.”
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Inalienable Rights Module
Inalienable Rights Module: Why Do Inalienable
Rights Matter? Lesson
Overview
Inalienable rights are those with which all of us are born. These inherent rights are negative,
meaning they can be exercised without action from anyone else. It takes no effort or action from
anyone else for individuals to exercise their rights to freedom of speech, press, religion. No one
has to provide the rights not to be killed, enslaved or coerced, or not to have our property stolen.
All these rights need to be defended, but they exist even when they are not. In fact, the purpose of
government is to protect individuals in all their rights from limitation by others, from foreign attack,
or from forces within government itself.
Recommended Time
�
100 minutes
Objectives
Students will:
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Distinguish between the origins of natural
rights and governing rights.
Evaluate the importance of specific
inalienable rights.
Define the term “consent of the governed.”
Interpret the Founders’ understanding of
religious liberty in relation to free exercise
and holding office.
North Carolina Clarifying Objectives
�
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CE.C&G.1.1: 1 Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
В© The Bill of Rights Institute
�
CE.C&G.1.2: Explain how the Enlightenment
and other contributing theories impacted the
writing of the Declaration of Independence,
the US Constitution and the Bill of Rights
to help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.3: Evaluate how debates on power
and authority between Federalists and AntiFederalists have helped shape government
in the United States over time (e.g., Hamilton,
Jefferson, Madison, Federalist Papers, strong
central government, protection of individual
rights, Elastic Clause, Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal opportunity,
equal protection under the law, diversity,
patriotism, etc.).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.2.6: Evaluate the authority federal,
state, and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
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Inalienable Rights Module
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
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AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
AH1.H.4.4: Analyze the cultural conflicts
that impacted the United States through
Reconstruction and the compromises that
resulted (e.g., displacement of American
Indians, manifest destiny, slavery,
assimilation, nativism).
Materials
Handout A: Background Essay – What Are the
Origins of Rights?
Handout B: Does it Matter Where Rights Come
From?
Handout C: Viewing Guide for Constitutional
Principle Video: Consent of the Governed
Handout D: Memorial and Remonstrance
against Religious Assessments
Handout E: The Virginia Statute for Religious
Freedom
FOUNDING PRINCIPLES COURSE Lesson Plan
Warm-up [15 minutes]
A. Write the question “Where do our rights
come from?” in the center of a piece of
butcher paper. Draw a box around it, and
then draw three or four lines coming out
from the center, dividing the paper into
equal pie-pieces or sections. Your paper
should look similar to this:
Inalienable Rights Module
(or other people), and those which assert
that rights are natural, inborn, or the gift of
God.
Activity I [30 minutes]
A. To give students background, have them
read Handout A: Background Essay
– What Are the Origins of Rights?
B. Have students pair up and give each pair a
copy of Handout B: Does it Matter Where
Rights Come From? Have them complete
the Handout with their partner.
C. Discuss students’ answers as a whole
class.
Activity II [40 minutes]
B. Divide students into groups of three or four
and give each group one piece of butcher
paper prepared as in step A. Have them all
use the same color marker to write down
their initial responses to the question in the
spaces around the question.
C. After students have written their responses,
they should discuss their ideas in their
groups. Have them look for commonalities
among their answers and write those
concepts in the center square next to the
question “Where do our rights come from?”
D. Reconvene the class, and ask the
spokesperson for each group to summarize
their responses. Keep a list of main ideas
on the board. Responses may seem to
cluster around two sources of rights – those
which assert rights come “from” government
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1. Have students watch the Constitutional
Principle Video: Consent of the Governed
and complete Handout C: Viewing Guide
for Constitutional Principle Video: Consent
of the Governed.
a. You can view the video at http://vimeo.
com/76720366
2. Have students read Handout D: James
Madison’s Memorial and Remonstrance
against Religious Assessments, and the
Handout E: Virginia Statute for Religious
Freedom.
a. Students should create a Venn diagram
showing the overlap between the
arguments about the origin of rights
made by Madison and Jefferson and the
ones put forth by students in class
Wrap-up [15 minutes]
A. Conduct a large group discussion to answer
the questions:
a. What is the difference between a
“subject” and a “citizen”?
FOUNDING PRINCIPLES COURSE b. Does it matter where rights come from?
Why or why not?
c. If rights come from nature or God, can
there be an argument that some people
have a natural right to rule over others?
d. If there is no natural right for one person
or group of people to rule over others,
then where must government power
come from?
B. Ask students to take a few minutes and
return to their original groups from the
Warm-Up. Using a different color marker
this time, have them write down their
responses to the question in the same
space as their original response. Use this
time to check understanding of the principle
that our inalienable rights are part of our
nature and are not the grant of government.
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Inalienable Rights Module
Homework and Extension Options
A. Students should assess their progression
in their journals, connecting what they’ve
learned about the principle of Inalienable
Rights to their final project. How, if at
all, would a proper understanding of
this principle guard against the kinds of
things that happened to Paul Chambers
happening in the U.S.? Have students
create a brainstorm web to demonstrate
how the concept of inalienable rights helps
to safeguard those freedoms.
B. “Under a government which imprisons any
unjustly, the true place for a just man is also
a prison…” – Henry David Thoreau
Civil disobedience is an active refusal to
follow certain laws. Those engaged in civil
disobedience often cite their inalienable
rights as justification for refusing to follow
a law, claiming it interferes with their
inalienable rights. In their journals students
should write a response essay to Thoreau’s
quote, incorporating ideas on the origin of
rights and their own views on the legitimacy
of civil disobedience.
Handout A: Background Essay – What Are the
Origins of Rights?
Many American colonists felt betrayed by the
British government as their rights were taken
away. The colonists were forced to allow
British soldiers to stay in their homes; they
were taxed by the British government without
being represented in Parliament; and they had
their own weapons taken away. They also saw
restrictions put on speech and the press and
were not even allowed to gather together freely.
Ironically, the colonists’ ideas about “essential
rights” originated in their British background.
Now it was the British government that
challenged those principles.
What Is the Magna Carta?
These rights were part of a centuries-old heritage.
In fact, much of American colonial law was based
on the rights of Englishmen. The oldest document
in the British and American heritage of rights, the
Magna Carta, was written in 1215, and it includes
the statement that the rights it lists are “ancient.”
This heritage is alive in America today. More
than half the Amendments in the Bill of Rights
have roots in the Magna Carta. A group of
barons forced England’s King John to agree
to preserve the freedom of the Church and to
hear petitions from the barons. He also agreed
to remove foreign armies from England; not to
seize land to pay for debts; not to take life or
liberty without due process or repayment. He
swore not to delay court proceedings or punish
without hearing from witnesses, as well as to
repay unjust fines and not to issue extreme
punishments. The Founders believed that these
rights were natural and all citizens had them.
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How Were Rights Protected and
Expanded?
Through the centuries, Magna Carta freedoms
found their way into English common law.
Englishmen were fiercely protective of these
rights when the King tried to withdraw them.
In the 17th century, King Charles I disbanded
Parliament and said he would rule England
on his own. House of Commons member Sir
Edward Coke presented a list of complaints.
This list came to be called the Petition of Right,
which helped establish the principle that the
King was not above the law. Charles’s abuses
of the law included violation of due process;
unjust taking of property or imprisonment;
denying the right to trial by fellow Englishmen;
and unjust punishments or fines. Although
Charles first agreed to stop breaking the
law, he soon went back on his word. He was
beheaded in 1649.
Prince William of Orange and his wife Mary
were invited to the throne by Parliament in
the 1688 Glorious Revolution. As a condition
of their rule, William and Mary accepted the
Declaration of Rights and the Toleration Act in
1689. The Toleration Act expanded freedom
of religion. It granted Protestants who did not
attend the Church of England the right to freely
exercise their faith. The Declaration of Rights
gave Parliament total freedom of speech during
debate. The Declaration also included: the
right to assemble peacefully and to petition;
the right to keep arms; protections of property
and liberty; rights of the accused; and rights of
criminals.
What Was the Purpose of
Government?
Forty years after Charles’s execution and just
after the Declaration of Rights, John Locke
wrote Two Treatises of Government (1690).
Locke argued that men are by nature free and
equal and that they own their “persons [bodies]
and possessions.” He said people must “unite
into a community for their comfortable, safe,
peaceable living” in order to defend their rights.
Locke believed that a government’s purpose is
to protect individual natural rights such as life,
liberty, and property. Therefore, people must
have the right to dissolve a government that is
not protecting them.
And so it was in the thirteen colonies. When
the British ignored English laws in the American
colonies, the colonists were armed with a
tradition justifying their demand that those laws
be followed.
assembly; confiscating of colonists’ weapons;
lifting protections of property; prosecuting colonial
activists in English courts, or holding them without
trial. The colonists responded to these acts with
protest and eventually revolution. The colonists
later addressed these issues in the United States
Bill of Rights.
How Did History Repeat Itself?
The conflict reached a breaking point in 1776.
As Locke had written, the people had the right
to dissolve a government that failed to protect
their rights. Americans realized they needed
self-government and issued a Declaration of
Independence. Locke had listed life, liberty,
and property as natural rights, while Thomas
Jefferson substituted “life, liberty, and the pursuit
of happiness.” The Declaration of Independence
went on to list ways that the British had violated
the rights of not just Englishmen but all human
beings.
The colonists brought their rights as
Englishmen to the earliest American colonies.
Massachusetts adopted the “Body of Liberties”
in 1641. The document included protection for
free speech and petition, just compensation
for property taken for public use, protection
from double jeopardy, right to trial by jury and
counsel, and protection from cruel punishments
and excessive bail.
The colonists then had to begin creating their
own government. They threw out the colonial
charters and wrote new constitutions. Seven
colonies included a Declaration of Rights. The
most important of these, historians agree, was
Virginia’s. The Virginia Declaration of Rights,
written by George Mason, protected the press,
exercise of religion, arms, property, the accused,
and criminals. James Madison later used it as
a model when he wrote the United States Bill of
Rights.
Between 1763 and 1776, the British government
began to limit freedoms especially relating to
taxation without representation. The colonists’
resolve was tested. For example, the 1765
Quartering Act demanded colonists give British
troops shelter. The 1774 Coercive Acts included:
restricting the rights of free speech, press, and
After the Revolution, the states united under
the Articles of Confederation from March 1781
to June 1788. The Articles proved to be an
inadequate system of government. To replace it,
the Founders in 1787 drafted a new document:
the Constitution of the United States of America.
This document created a central government.
What Did the Colonial Experience
Teach the Founders?
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Why Add a Bill of Rights?
Comprehension Questions
There were some Americans who feared
that the central government was too strong
under the Constitution alone. They believed
that a separate listing of rights was needed to
protect individual rights and states’ powers.
A compromise eased the debate. The new
Constitution was ratified in 1789 and two years
later amended to include what Madison said
“might be called a bill of rights.”
1. Name at least 3 ways in which the
Declaration of Rights and Toleration Act
limited the power of British kings.
The Founders inherited a tradition of rights that
they cherished. They created the American
system of government with great care to
ensure future generations would enjoy all
the “blessings of liberty.” In the end, it is not
the governments who are sovereign, but the
people.
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2. As a result of his violation of the rights
of Englishmen, what happened to King
Charles I?
3. What is the fundamental reason why,
according to Locke, government’s main
purpose must be to protect the rights of
individuals?
4. Name at least three ways in which the
British violated the “traditional rights of
Englishmen” in their North American
colonies.
5. What document established the first attempt
of the former American colonies to organize
a united government?
Handout B:
Does it Matter Where Rights Come From?
1. Read the text below. In your judgment,
is this description consistent with or not
consistent with the principle that everyone
is born with certain inalienable rights. Justify
your answer. If you were petitioning the
government for a change in this policy, what
kinds of change(s) would you propose, and
what arguments would you make to support
your proposal?
Most of the American colonies and, later,
the states, had established religions
through the early 19th century. This meant
that there was one official religion in those
places. That official religion was often
supported through taxation. All the colonies
and states had their own different policies,
but in most places this meant that religious
“toleration” was practiced. The word
toleration refers to an official government
policy. Toleration meant that the state
governments allowed people of other
religions (or no religion) to live in the state
and practice their religions within certain
legal limits.
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2. Imagine you are a citizen of a monarchy.
You are tasked with trying to convince the
monarch that rights are inalienable and not
granted by the government. Explain your
argument.
3. Imagine you are an elected lawmaker.
You believe that all people are born with
inherent rights, because those rights come
from God or from nature. A member of
your legislative staff comes to you with
an idea for a new law granting certain
rights to members of the religious majority,
and restricting the privileges of religious
minorities. Explain why you would reject
this proposal based on your understanding
of inherent rights.
Handout C: Viewing Guide for Constitutional
Principle Video: Consent of the Governed
Directions: Before watching the video, answer the pre-viewing questions. Fill in the blanks on
Bill of Rights protections while you watch. After you have watched the video, answer the questions
that follow on a separate sheet of paper.
Before you watch:
1. What do you think of when you hear the term “consent of the governed?” Have you come
across this phrase before? Write down some key words and phrases associated with it.
2. What ways can you think of that the U.S. government relies on the consent of the governed?
How about your state and local governments?
While you watch:
1. Monarchs of old claimed that ____________ (power over others) was granted to them by God.
2. Philosophers including John Locke argued that people come together into communities for the
better protection of their ______________, ____________, and ______________.
3. Popular sovereignty is the idea that government derives its just power from ______________.
4. The British colonists in North America believed that they had reverted to a state of _________
when the King and Parliament repeatedly refused to protect their rights as Englishmen.
5. The right of revolution means that when the government acts in ways outside the purposes for
which it was established, it is the right of the people to _____________ or _______________it.
6. In contrast to the idea that governments grant privileges to the people, the principle of popular
sovereignty holds that just government protects rights that are ____________________.
7. The final authority on government power is held by ____________________.
After you watch:
1. What does the principle of consent of the governed mean?
2. How would you contrast the idea of popular sovereignty with monarchical sovereignty (or divine
right)?
3. How would you respond to the question posed by Professor Munoz: why shouldn’t the wise rule
because of their wisdom? Or why shouldn’t the religious rule because of their piety?
4. Professor Zuckert explains that popular sovereignty means the purposes of government should
be the purposes of the people, and not the purposes of the rulers. He notes that this theory is
not always achieved in practice. Do you agree? Why or why not?
5. How do limited government, representative government, separation of powers, checks and
balances, and federalism all serve to support the principle of consent of the governed?
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Handout D: Memorial and Remonstrance
against Religious Assessments
To the Honorable the General
Assembly of the Commonwealth
of Virginia A Memorial and
Remonstrance
We the subscribers, citizens of the said
Commonwealth, having taken into serious
consideration, a Bill printed by order of the
last Session of General Assembly, entitled “A
Bill establishing a provision for Teachers of
the Christian Religion,” and conceiving that
the same if finally armed with the sanctions
of a law, will be a dangerous abuse of power,
are bound as faithful members of a free State
to remonstrate against it, and to declare the
reasons by which we are determined. We
remonstrate against the said Bill,
1. Because we hold it for a fundamental and
undeniable truth, “that Religion or the
duty which we owe to our Creator and the
manner of discharging it, can be directed
only by reason and conviction, not by
force or violence.” [Virginia Declaration
of Rights, art. 16] The Religion then of
every man must be left to the conviction
and conscience of every man; and it is the
right of every man to exercise it as these
may dictate. This right is in its nature an
unalienable right. It is unalienable, because
the opinions of men, depending only on
the evidence contemplated by their own
minds cannot follow the dictates of other
men: It is unalienable also, because what is
here a right towards men, is a duty towards
the Creator. It is the duty of every man to
render to the Creator such homage and
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such only as he believes to be acceptable
to him. This duty is precedent, both in order
of time and in degree of obligation, to the
claims of Civil Society. Before any man can
be considered as a member of Civil Society,
he must be considered as a subject of
the Governour of the Universe: And if a
member of Civil Society, who enters into
any subordinate Association, must always
do it with a reservation of his duty to the
General Authority; much more must every
man who becomes a member of any
particular Civil Society, do it with a saving of
his allegiance to the Universal Sovereign.
We maintain therefore that in matters of
Religion, no mans right is abridged by the
institution of Civil Society and that Religion
is wholly exempt from its cognizance. True
it is, that no other rule exists, by which any
question which may divide a Society, can
be ultimately determined, but the will of the
majority; but it is also true that the majority
may trespass on the rights of the minority.
2. Because if Religion be exempt from the
authority of the Society at large, still less
can it be subject to that of the Legislative
Body. The latter are but the creatures and
vicegerents of the former. Their jurisdiction
is both derivative and limited: it is limited
with regard to the co-ordinate departments,
more necessarily is it limited with regard
to the constituents. The preservation of a
free Government requires not merely, that
the metes and bounds which separate
each department of power be invariably
maintained; but more especially that neither
of them be suffered to overleap the great
Barrier which defends the rights of the
people. The Rulers who are guilty of such
an encroachment, exceed the commission
from which they derive their authority, and
are Tyrants. The People who submit to
it are governed by laws made neither by
themselves nor by an authority derived from
them, and are slaves.
3. Because it is proper to take alarm at
the first experiment on our liberties. We
hold this prudent jealousy to be the first
duty of Citizens, and one of the noblest
characteristics of the late Revolution.
The free men of America did not wait till
usurped power had strengthened itself by
exercise, and entangled the question in
precedents. They saw all the consequences
in the principle, and they avoided the
consequences by denying the principle.
We revere this lesson too much soon to
forget it. Who does not see that the same
authority which can establish Christianity,
in exclusion of all other Religions, may
establish with the same ease any particular
sect of Christians, in exclusion of all other
Sects? that the same authority which can
force a citizen to contribute three pence
only of his property for the support of
any one establishment, may force him to
conform to any other establishment in all
cases whatsoever?
4. Because the Bill violates that equality which
ought to be the basis of every law, and
which is more indispensible, in proportion
as the validity or expediency of any law is
more liable to be impeached. If “all men are
by nature equally free and independent,”
[Virginia Declaration of Rights, art. 1] all
men are to be considered as entering
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into Society on equal conditions; as
relinquishing no more, and therefore
retaining no less, one than another, of
their natural rights. Above all are they to
be considered as retaining an “equal title
to the free exercise of Religion according
to the dictates of Conscience.” [Virginia
Declaration of Rights, art. 16] Whilst we
assert for ourselves a freedom to embrace,
to profess and to observe the Religion
which we believe to be of divine origin,
we cannot deny an equal freedom to
those whose minds have not yet yielded
to the evidence which has convinced us.
If this freedom be abused, it is an offence
against God, not against man: To God,
therefore, not to man, must an account of
it be rendered. As the Bill violates equality
by subjecting some to peculiar burdens, so
it violates the same principle, by granting
to others peculiar exemptions. Are the
Quakers and Menonists the only sects
who think a compulsive support of their
Religions unnecessary and unwarrantable?
Can their piety alone be entrusted with
the care of public worship? Ought their
Religions to be endowed above all others
with extraordinary privileges by which
proselytes may be enticed from all others?
We think too favorably of the justice and
good sense of these denominations
to believe that they either covet preeminences over their fellow citizens or
that they will be seduced by them from the
common opposition to the measure.
5. Because the Bill implies either that the
Civil Magistrate is a competent Judge of
Religious Truth; or that he may employ
Religion as an engine of Civil policy. The
first is an arrogant pretension falsified by
the contradictory opinions of Rulers in all
ages, and throughout the world: the second
an unhallowed perversion of the means of
salvation.
6. Because the establishment proposed by
the Bill is not requisite for the support of
the Christian Religion. To say that it is, is
a contradiction to the Christian Religion
itself, for every page of it disavows a
dependence on the powers of this world: it is
a contradiction to fact; for it is known that this
Religion both existed and flourished, not only
without the support of human laws, but in
spite of every opposition from them, and not
only during the period of miraculous aid, but
long after it had been left to its own evidence
and the ordinary care of Providence. Nay, it
is a contradiction in terms; for a Religion not
invented by human policy, must have preexisted and been supported, before it was
established by human policy. It is moreover
to weaken in those who profess this Religion
a pious confidence in its innate excellence
and the patronage of its Author; and to foster
in those who still reject it, a suspicion that its
friends are too conscious of its fallacies to
trust it to its own merits.
7. Because experience witnesseth that
ecclesiastical establishments, instead
of maintaining the purity and efficacy of
Religion, have had a contrary operation.
During almost fifteen centuries has the legal
establishment of Christianity been on trial.
What have been its fruits? More or less in
all places, pride and indolence in the Clergy,
ignorance and servility in the laity, in both,
superstition, bigotry and persecution. Enquire
of the Teachers of Christianity for the ages
in which it appeared in its greatest lustre;
those of every sect, point to the ages prior
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to its incorporation with Civil policy. Propose
a restoration of this primitive State in which
its Teachers depended on the voluntary
rewards of their flocks, many of them predict
its downfall. On which Side ought their
testimony to have greatest weight, when for
or when against their interest?
8. Because the establishment in question
is not necessary for the support of Civil
Government. If it be urged as necessary
for the support of Civil Government only as
it is a means of supporting Religion, and
it be not necessary for the latter purpose,
it cannot be necessary for the former. If
Religion be not within the cognizance
of Civil Government how can its legal
establishment be necessary to Civil
Government? What influence in fact have
ecclesiastical establishments had on Civil
Society? In some instances they have been
seen to erect a spiritual tyranny on the ruins
of the Civil authority; in many instances
they have been seen upholding the thrones
of political tyranny: in no instance have they
been seen the guardians of the liberties of
the people. Rulers who wished to subvert
the public liberty, may have found an
established Clergy convenient auxiliaries.
A just Government instituted to secure
& perpetuate it needs them not. Such a
Government will be best supported by
protecting every Citizen in the enjoyment
of his Religion with the same equal hand
which protects his person and his property;
by neither invading the equal rights of any
Sect, nor suffering any Sect to invade those
of another.
9. Because the proposed establishment is a
departure from that generous policy, which,
offering an Asylum to the persecuted and
oppressed of every Nation and Religion,
promised a lustre to our country, and an
accession to the number of its citizens.
What a melancholy mark is the Bill of
sudden degeneracy? Instead of holding
forth an Asylum to the persecuted, it is itself
a signal of persecution. It degrades from
the equal rank of Citizens all those whose
opinions in Religion do not bend to those of
the Legislative authority. Distant as it may
be in its present form from the Inquisition,
it differs from it only in degree. The one
is the first step, the other the last in the
career of intolerance. The magnanimous
sufferer under this cruel scourge in foreign
Regions, must view the Bill as a Beacon on
our Coast, warning him to seek some other
haven, where liberty and philanthrophy in
their due extent, may offer a more certain
repose from his Troubles.
10. Because it will have a like tendency to
banish our Citizens. The allurements
presented by other situations are every day
thinning their number. To superadd a fresh
motive to emigration by revoking the liberty
which they now enjoy, would be the same
species of folly which has dishonoured and
depopulated flourishing kingdoms.
11. Because it will destroy that moderation
and harmony which the forbearance of
our laws to intermeddle with Religion has
produced among its several sects. Torrents
of blood have been spilt in the old world,
by vain attempts of the secular arm, to
extinguish Religious discord, by proscribing
all difference in Religious opinion. Time
has at length revealed the true remedy.
Every relaxation of narrow and rigorous
policy, wherever it has been tried, has
been found to assuage the disease. The
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American Theatre has exhibited proofs
that equal and compleat liberty, if it does
not wholly eradicate it, sufficiently destroys
its malignant influence on the health and
prosperity of the State. If with the salutary
effects of this system under our own
eyes, we begin to contract the bounds
of Religious freedom, we know no name
that will too severely reproach our folly. At
least let warning be taken at the first fruits
of the threatened innovation. The very
appearance of the Bill has transformed
“that Christian forbearance, love and
charity,” [Virginia Declaration of Rights, art.
16] which of late mutually prevailed, into
animosities and jealousies, which may not
soon be appeased. What mischiefs may not
be dreaded, should this enemy to the public
quiet be armed with the force of a law?
12. Because the policy of the Bill is adverse to
the diffusion of the light of Christianity. The
first wish of those who enjoy this precious
gift ought to be that it may be imparted to
the whole race of mankind. Compare the
number of those who have as yet received
it with the number still remaining under the
dominion of false Religions; and how small
is the former! Does the policy of the Bill
tend to lessen the disproportion? No; it at
once discourages those who are strangers
to the light of revelation from coming
into the Region of it; and countenances
by example the nations who continue in
darkness, in shutting out those who might
convey it to them. Instead of Levelling
as far as possible, every obstacle to the
victorious progress of Truth, the Bill with
an ignoble and unchristian timidity would
circumscribe it with a wall of defence
against the encroachments of error.
13. Because attempts to enforce by legal
sanctions, acts obnoxious to so great a
proportion of Citizens, tend to enervate the
laws in general, and to slacken the bands of
Society. If it be difficult to execute any law
which is not generally deemed necessary or
salutary, what must be the case, where it is
deemed invalid and dangerous? And what
may be the effect of so striking an example
of impotency in the Government, on its
general authority?
14. Because a measure of such singular
magnitude and delicacy ought not to be
imposed, without the clearest evidence
that it is called for by a majority of citizens,
and no satisfactory method is yet proposed
by which the voice of the majority in this
case may be determined, or its influence
secured. “The people of the respective
counties are indeed requested to signify
their opinion respecting the adoption of
the Bill to the next Session of Assembly.”
But the representation must be made
equal, before the voice either of the
Representatives or of the Counties will be
that of the people. Our hope is that neither
of the former will, after due consideration,
espouse the dangerous principle of the Bill.
Should the event disappoint us, it will still
leave us in full confidence, that a fair appeal
to the latter will reverse the sentence
against our liberties.
15. Because finally, “the equal right of every
citizen to the free exercise of his Religion
according to the dictates of conscience” is
held by the same tenure with all our other
rights. If we recur to its origin, it is equally
the gift of nature; if we weigh its importance,
it cannot be less dear to us; if we consult
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the “Declaration of those rights which
pertain to the good people of Virginia, as
the basis and foundation of Government,”
it is enumerated with equal solemnity, or
rather studied emphasis. Either then, we
must say, that the Will of the Legislature
is the only measure of their authority; and
that in the plenitude of this authority, they
may sweep away all our fundamental
rights; or, that they are bound to leave
this particular right untouched and sacred:
Either we must say, that they may control
the freedom of the press, may abolish the
Trial by Jury, may swallow up the Executive
and Judiciary Powers of the State; nay
that they may despoil us of our very right
of suffrage, and erect themselves into an
independent and hereditary Assembly or,
we must say, that they have no authority to
enact into law the Bill under consideration.
We the Subscribers say, that the General
Assembly of this Commonwealth have
no such authority: And that no effort
may be omitted on our part against so
dangerous an usurpation, we oppose to it,
this remonstrance; earnestly praying, as
we are in duty bound, that the Supreme
Lawgiver of the Universe, by illuminating
those to whom it is addressed, may on
the one hand, turn their Councils from
every act which would affront his holy
prerogative, or violate the trust committed
to them: and on the other, guide them into
every measure which may be worthy of his
blessing, may redound to their own praise,
and may establish more firmly the liberties,
the prosperity and the happiness of the
Commonwealth.
Handout E:
The Virginia Statute for Religious Freedom
Section I:
Well aware that the opinions and belief of
men depend not on their own will, but follow
involuntarily the evidence proposed to their
minds; that Almighty God hath created the
mind free, and manifested his supreme will
that free it shall remain by making it altogether
insusceptible of restraint; that all attempts
to influence it by temporal punishments, or
burthens, or by civil incapacitations, tend only
to beget habits of hypocrisy and meanness,
and are a departure from the plan of the holy
author of our religion, who being lord both of
body and mind, yet chose not to propagate it
by coercions on either, as was in his Almighty
power to do, but to extend it by its influence
on reason alone; that the impious presumption
of legislators and rulers, civil as well as
ecclesiastical, who, being themselves but
fallible and uninspired men, have assumed
dominion over the faith of others, setting up
their own opinions and modes of thinking
as the only true and infallible, and as such
endeavoring to impose them on others, hath
established and maintained false religions
over the greatest part of the world and through
all time: That to compel a man to furnish
contributions of money for the propagation of
opinions which he disbelieves and abhors,
is sinful and tyrannical; that even the forcing
him to support this or that teacher of his own
religious persuasion, is depriving him of the
comfortable liberty of giving his contributions
to the particular pastor whose morals he would
make his pattern, and whose powers he feels
most persuasive to righteousness; and is
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withdrawing from the ministry those temporary
rewards, which proceeding from an approbation
of their personal conduct, are an additional
incitement to earnest and unremitting labours
for the instruction of mankind; that our civil
rights have no dependance on our religious
opinions, any more than our opinions in physics
or geometry; that therefore the proscribing any
citizen as unworthy the public confidence by
laying upon him an incapacity of being called
to offices of trust and emolument, unless
he profess or renounce this or that religious
opinion, is depriving him injuriously of those
privileges and advantages to which, in common
with his fellow citizens, he has a natural right;
that it tends also to corrupt the principles of
that very religion it is meant to encourage, by
bribing, with a monopoly of worldly honours and
emoluments, those who will externally profess
and conform to it; that though indeed these are
criminal who do not withstand such temptation,
yet neither are those innocent who lay the bait
in their way; that the opinions of men are not
the object of civil government, nor under its
jurisdiction; that to suffer the civil magistrate
to intrude his powers into the field of opinion
and to restrain the profession or propagation
of principles on supposition of their ill tendency
is a dangerous falacy, which at once destroys
all religious liberty, because he being of course
judge of that tendency will make his opinions
the rule of judgment, and approve or condemn
the sentiments of others only as they shall
square with or differ from his own; that it is
time enough for the rightful purposes of civil
government for its officers to interfere when
principles break out into overt acts against
peace and good order; and finally, that truth is
great and will prevail if left to herself; that she
is the proper and sufficient antagonist to error,
and has nothing to fear from the conflict unless
by human interposition disarmed of her natural
weapons, free argument and debate; errors
ceasing to be dangerous when it is permitted
freely to contradict them.
Section II.
We the General Assembly of Virginia do enact
that no man shall be compelled to frequent or
support any religious worship, place, or ministry
whatsoever, nor shall be enforced, restrained,
molested, or burthened in his body or goods,
nor shall otherwise suffer, on account of his
religious opinions or belief; but that all men
shall be free to profess, and by argument to
maintain, their opinions in matters of religion,
and that the same shall in no wise diminish,
enlarge, or affect their civil capacities.
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Section III.
And though we well know that this Assembly,
elected by the people for the ordinary purposes
of legislation only, have no power to restrain the
acts of succeeding Assemblies, constituted with
powers equal to our own, and that therefore
to declare this act irrevocable would be of no
effect in law; yet we are free to declare, and do
declare, that the rights hereby asserted are of
the natural rights of mankind, and that if any act
shall be hereafter passed to repeal the present
or to narrow its operation, such act will be an
infringement of natural right.
FOUNDING PRINCIPLES COURSE Inalienable Rights Module
Inalienable Rights Module:
The Declaration of Independence Lesson
Overview
In this lesson, students will explore the structure, purpose, and significance of the Declaration of
Independence. Focusing on the most famous phrases of the Declaration, students will analyze
the concepts of inalienable rights and government by consent. Finally, students will begin to
understand the philosophical foundations of America’s constitutional government.
Recommended Time
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
110 minutes
Objectives
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Evaluate the idea of “consent of
the governed” in the Declaration of
Independence.
Analyze the purpose and structure of the
Declaration of Independence.
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Analyze how the authors of the Declaration of
Independence understood inalienable rights.
Deconstruct the language used in the
Declaration of Independence.
Compare and contrast the ideals in the
Declaration of Independence with the reality
of slavery.
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North Carolina Clarifying Objectives
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CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
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CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
AH1.H.1.1: Use Chronological thinking to: 1.
Identify the structure of a historical narrative
or story: (its beginning, middle and end). 2.
Interpret data presented in time lines and
create time lines.
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
FOUNDING PRINCIPLES COURSE problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
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AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.)
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
AH1.H.4.2: Analyze the economic issues
and conflicts that impacted the United
States through Reconstruction and
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Inalienable Rights Module
the compromises that resulted (e.g.,
mercantilism, Revolutionary era taxation,
National Bank, taxes, tariffs, territorial
expansion, Economic “Panics”, Civil War).
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AH1.H.4.4: Analyze the cultural conflicts
that impacted the United States through
Reconstruction and the compromises that
resulted (e.g., displacement of American
Indians, manifest destiny, slavery,
assimilation, nativism).
AH1.H.7.1: Explain the impact of
wars on American Politics through
Reconstruction (e.g., Issues of taxation
without representation, Proclamation of
1763, Proclamation of Neutrality, XYZ
Affair, Alien & Sedition Acts, War Hawks,
Hartford Convention, slavery, Compromises,
scalawags, carpetbaggers, etc.).
AH1.H.7.3: Explain the impact of wars
on American society and culture through
Reconstruction (e.g., salutary neglect,
slavery, breakup of the plantation system,
carpetbaggers, scalawags, KKK, and
relocation of American Indians, etc.).
Materials
Handout A: The Declaration of Independence
Handout B: Key Excerpts
Handout C: Structure of the Declaration
Handout D: The Declaration, the Founders, and
Slavery
Handout E: Slavery Essay
Handout F: Comparing the Second Treatise
of Civil Government by John Locke and the
Declaration of Independence
Handout G: Glossary
FOUNDING PRINCIPLES COURSE Lesson Plan
Background/Homework [10 minutes
the day before]
A. Tell students that you will focus on some of
the most famous phrases of the Declaration
of Independence. Distribute and display
Handout B: Key Excerpts.
B. Have students read the excerpt individually
or in small groups, and ask them to
underline what they believe are the key
terms and/or phrases. Then discuss the
questions as a large group.
C. Resources for extending discussion on
questions 7 and 8 from Handout B can be
found on Handout D: The Declaration, the
Founders, and Slavery.
Warm-Up [20 minutes]
A. Divide the class into pairs or trios.
Distribute Handout A: The Declaration
of Independence and Handout C: The
Structure of the Declaration to each
group.
a. Assign each group one section of the
Declaration to focus on. Additionally, all
groups should do the signature section.
Note: You may wish to divide the
Indictment section in half between two
groups because of its length.
b. Have students skim their sections of the
Declaration and record the key ideas for
their sections on the Handout in their
own words.
Activity I [30 minutes]
A. Use an enlarged copy of Handout C: The
Structure of the Declaration (Version
1) on the board or interactive white board,
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Inalienable Rights Module
and ask students to share their responses.
Once the chart is complete, ask students:
a. What is the purpose of each section?
b. What is a grievance?
c. Why include a long list of grievances?
d. What was the reason for pointing out
that the colonists had tried to get the
King to change the way he treated
them?
e. Which do you believe is the most
important section? Why?
B. Have students read and complete Handout
D: The Declaration, the Founders, and
Slavery and/or Handout E: Slavery Essay.
a. Hold a class discussion about the role of
slavery in the Founding Era.
Activity II [30 minutes]
A. In small groups, have students complete
Handout F: Compare John Locke’s
Second Civil Treatise of Government to
the Declaration of Independence.
B. After the activity is complete, have a large
group discussion about the questions
students answered on Handout F. Ask
students if the ideas of liberty, equality,
property, and consent of the governed
change over time? If so, how? If not, why
not?
Wrap-Up [20 minutes]
A. Ask students to share their personal
responses to the Declaration by answering
the following questions on a sheet of paper
as a “ticket out the door” activity:
a. As Americans, should we be proud of
the Declaration? Why or why not?
FOUNDING PRINCIPLES COURSE Inalienable Rights Module
b. Are the principles of inalienable rights
and government by consent in the
Declaration outdated, or are they still
true today?
C. Have students discuss the significance of
the Declaration of Independence with their
families and write a paragraph about what
they discussed.
c. Do these principles matter to you? If so,
how and why?
D. Have students read Abraham Lincoln’s
“Gettysburg Address,” the Declaration
of Sentiments, and/or Martin Luther
King’s “I Have A Dream” speech. How do
these documents show the ideas of the
Declaration of Independence’s influence
throughout American history?
d. What have you learned about other
historical documents and people that
have been influenced by the Declaration
of Independence?
Homework and Extension Options
A. Using Handout A as a guide, have students
draw an illustration for each section of the
Declaration of Independence. Illustrations
should symbolically represent the section’s
content and purpose.
B. Have students select a signer of the
Declaration of Independence. Have them
research the person’s biography and
prepare that person’s resume to share with
the class. Students can begin their research
at: www.BillofRightsInstitute.org.
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E. Have students work in groups of three to
investigate ways in which the Declaration of
Independence has been embraced by later
individuals throughout American history.
How have leaders like Elizabeth Cady
Stanton, Frederick Douglass, and others
referenced the Declaration as they worked
to expand the blessings of liberty? Groups
should create a Declaration timeline to
highlight historical documents and events in
which the Declaration played a part.
Handout A: The Declaration of Independence
IN CONGRESS, July 4, 1776.
The unanimous Declaration of the thirteen
united States of America, When in the Course
of human events, it becomes necessary for
one people to dissolve the political bands
which have connected them with another, and
to assume among the powers of the earth, the
separate and equal station to which the Laws
of Nature and of Nature’s God entitle them,
a decent respect to the opinions of mankind
requires that they should declare the causes
which impel them to the separation.
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. -- That to secure these
rights, Governments are instituted among Men,
deriving their just powers from the consent of
the governed, -- That whenever any Form of
Government becomes destructive of these
ends, it is the Right of the People to alter or
to abolish it, and to institute new Government,
laying its foundation on such principles and
organizing its powers in such form, as to them
shall seem most likely to effect their Safety and
Happiness. Prudence, indeed, will dictate that
Governments long established should not be
changed for light and transient causes; and
accordingly all experience hath shewn, that
mankind are more disposed to suffer, while
evils are sufferable, than to right themselves
by abolishing the forms to which they are
accustomed. But when a long train of abuses
and usurpations, pursuing invariably the same
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Object evinces a design to reduce them under
absolute Despotism, it is their right, it is their
duty, to throw off such Government, and to
provide new Guards for their future security. -Such has been the patient sufferance of these
Colonies; and such is now the necessity which
constrains them to alter their former Systems
of Government. The history of the present King
of Great Britain is a history of repeated injuries
and usurpations, all having in direct object
the establishment of an absolute Tyranny
over these States. To prove this, let Facts be
submitted to a candid world.
He has refused his Assent to Laws, the most
wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws
of immediate and pressing importance, unless
suspended in their operation till his Assent
should be obtained; and when so suspended,
he has utterly neglected to attend to them.
He has refused to pass other Laws for the
accommodation of large districts of people,
unless those people would relinquish the right
of Representation in the Legislature, a right
inestimable to them and formidable to tyrants
only.
He has called together legislative bodies at
places unusual, uncomfortable, and distant
from the depository of their public Records,
for the sole purpose of fatiguing them into
compliance with his measures.
He has dissolved Representative Houses
repeatedly, for opposing with manly firmness
his invasions on the rights of the people.
He has refused for a long time, after such
dissolutions, to cause others to be elected;
whereby the Legislative powers, incapable of
Annihilation, have returned to the People at
large for their exercise; the State remaining in
the mean time exposed to all the dangers of
invasion from without, and convulsions within.
He has endeavoured to prevent the population
of these States; for that purpose obstructing the
Laws for Naturalization of Foreigners; refusing
to pass others to encourage their migrations
hither, and raising the conditions of new
Appropriations of Lands.
commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the
world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits
of Trial by Jury:
For transporting us beyond Seas to be tried for
pretended offences
He has obstructed the Administration of Justice,
by refusing his Assent to Laws for establishing
Judiciary powers.
For abolishing the free System of English
Laws in a neighbouring Province, establishing
therein an Arbitrary government, and enlarging
its Boundaries so as to render it at once an
example and fit instrument for introducing the
same absolute rule into these Colonies:
He has made Judges dependent on his Will
alone, for the tenure of their offices, and the
amount and payment of their salaries.
For taking away our Charters, abolishing our
most valuable Laws, and altering fundamentally
the Forms of our Governments:
He has erected a multitude of New Offices, and
sent hither swarms of Officers to harrass our
people, and eat out their substance.
For suspending our own Legislatures, and
declaring themselves invested with power to
legislate for us in all cases whatsoever.
He has kept among us, in times of peace,
Standing Armies without the Consent of our
legislatures.
He has abdicated Government here, by
declaring us out of his Protection and waging
War against us.
He has affected to render the Military
independent of and superior to the Civil power.
He has plundered our seas, ravaged our
Coasts, burnt our towns, and destroyed the
lives of our people.
He has combined with others to subject us to
a jurisdiction foreign to our constitution, and
unacknowledged by our laws; giving his Assent
to their Acts of pretended Legislation:
For Quartering large bodies of armed troops
among us:
For protecting them, by a mock Trial, from
punishment for any Murders which they should
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He is at this time transporting large Armies of
foreign Mercenaries to compleat the works
of death, desolation and tyranny, already
begun with circumstances of Cruelty & perfidy
scarcely paralleled in the most barbarous ages,
and totally unworthy the Head of a civilized
nation.
He has constrained our fellow Citizens taken
Captive on the high Seas to bear Arms against
their Country, to become the executioners of
their friends and Brethren, or to fall themselves
by their Hands.
He has excited domestic insurrections amongst
us, and has endeavoured to bring on the
inhabitants of our frontiers, the merciless Indian
Savages, whose known rule of warfare, is an
undistinguished destruction of all ages, sexes
and conditions.
In every stage of these Oppressions We have
Petitioned for Redress in the most humble
terms: Our repeated Petitions have been
answered only by repeated injury. A Prince
whose character is thus marked by every act
which may define a Tyrant, is unfit to be the
ruler of a free people.
Nor have We been wanting in attentions to our
Brittish brethren. We have warned them from
time to time of attempts by their legislature to
extend an unwarrantable jurisdiction over us.
We have reminded them of the circumstances
of our emigration and settlement here. We
have appealed to their native justice and
magnanimity, and we have conjured them by
the ties of our common kindred to disavow
these usurpations, which, would inevitably
interrupt our connections and correspondence.
They too have been deaf to the voice of justice
and of consanguinity. We must, therefore,
acquiesce in the necessity, which denounces
our Separation, and hold them, as we hold the
rest of mankind, Enemies in War, in Peace
Friends.
We, therefore, the Representatives of the
united States of America, in General Congress,
Assembled, appealing to the Supreme Judge
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of the world for the rectitude of our intentions,
do, in the Name, and by Authority of the good
People of these Colonies, solemnly publish and
declare, That these United Colonies are, and of
Right ought to be Free and Independent States;
that they are Absolved from all Allegiance to the
British Crown, and that all political connection
between them and the State of Great Britain,
is and ought to be totally dissolved; and that
as Free and Independent States, they have full
Power to levy War, conclude Peace, contract
Alliances, establish Commerce, and to do all
other Acts and Things which Independent
States may of right do. And for the support of
this Declaration, with a firm reliance on the
protection of divine Providence, we mutually
pledge to each other our Lives, our Fortunes
and our sacred Honor.
Georgia: Button Gwinnett, Lyman Hall, George
Walton
North Carolina: William Hooper, Joseph Hewes,
John Penn
South Carolina: Edward Rutledge, Thomas
Heyward, Jr., Thomas
Lynch, Jr., Arthur Middleton
Massachusetts: John Hancock
Maryland: Samuel Chase, William Paca,
Thomas Stone, Charles
Carroll of Carrollton
Virginia: George Wythe, Richard Henry Lee,
Thomas Jefferson,
Benjamin Harrison, Thomas Nelson, Jr.,
Francis Lightfoot Lee,
Carter Braxton
Pennsylvania: Robert Morris, Benjamin Rush,
Benjamin Franklin,
John Morton, George Clymer, James Smith,
George Taylor, James
Wilson, George Ross
Delaware: Caesar Rodney, George Read,
Thomas McKean
New York: William Floyd, Philip Livingston,
Francis Lewis, Lewis
Morris
New Jersey: Richard Stockton, John
Witherspoon, Francis
Hopkinson, John Hart, Abraham Clark
New Hampshire: Josiah Bartlett, William
Whipple
Massachusetts: Samuel Adams, John Adams,
Robert Treat Paine,
Elbridge Gerry
Rhode Island: Stephen Hopkins, William Ellery
Connecticut: Roger Sherman, Samuel
Huntington, William
Williams, Oliver Wolcott
New Hampshire: Matthew Thornton
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Handout B: Key Excerpts
Directions: The following paragraphs are from the Declaration of Independence. Read them
carefully, and underline words or phrases you think are important. Think about the questions that
follow.
Note: Some spelling, spacing, and punctuation have been changed for clarity.
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 [rights] are life, liberty and the pursuit of happiness.
That to secure these rights, governments are instituted among men, deriving their just
powers from the consent of the governed, That whenever any form of government becomes
destructive of these ends, it is the right of the people to alter or to abolish it, and to institute
new government, laying its foundation on such principles and organizing its powers in such
form, as to them shall seem most likely to effect their safety and happiness.
1. What do you think “unalienable rights” (or “inalienable rights”) means?
2. According to the document:
a. Where do unalienable rights come from?
b. What is the purpose of government?
c. From where does government get its power?
d. Are the powers given to the government by the people limited or unlimited?
e. When should government be changed?
3. How could the Continental Congress approve this document when so many of its members
owned slaves?
4. Does the fact that many of these men owned slaves mean these ideas are wrong or less
important?
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Handout C: The Structure of the Declaration
Directions: The Declaration of Independence is made up of six sections and the signatures. Skim
over the Declaration with your group members. Don’t worry if you don’t understand every word. While
you skim it, take note of what kinds of words, phrases and ideas are contained in each section.
В© The Bill of Rights Institute
Handout D:
The Declaration, the Founders, and Slavery
Directions: Read the information below
and use your understanding to complete the
response activity on the next page.
“All Men Are Created Equal”
How did the people of 1776 understand these
words? How do we understand them now?
With this statement, the Founders explained
their belief that there was no natural class of
rulers among people. Not everyone was born
with the same talents or habits, of course.
People are different. But the natural differences
among people do not mean that certain people
are born to rule over others. Some people
might be better suited to govern, but they
have no right to rule over others without their
permission. This permission is called consent
of the governed.
Some say that the Declaration’s authors
didn’t mean to include everyone when they
wrote “all men are created equal.” They say
that Jefferson and the Continental Congress
just meant to include white men who owned
property. But this is not true. Jefferson and the
Continental Congress did not believe that there
was a natural class of rulers, and they asserted
that the colonists had the same right to rule
themselves as the people of England.
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As a group, the Founders were conflicted about
slavery. Many of them knew it was evil. It had
already been done away with in some places,
and they hoped that it would die out in future
generations.
Slavery was an important economic and social
institution in the United States. The Founders
understood that they would have to tolerate
slavery as part of a political compromise. They
did not see a way to take further action against
slavery in their lifetimes, though many freed
their slaves after their deaths.
Over time, more and more Americans have
come to see the Declaration as a moral
argument against slavery. But this argument
was not made by abolitionists during the
Declaration’s time. When Congress began
debating slavery in new territories in the
19th Century, Americans began basing their
arguments in the Declaration. Eventually, more
people came to realize that American ideal of
self-government meant that black Americans
should participate just as fully in the rights
and responsibilities of citizenship as white
Americans.
1. He [the King] has waged cruel war against
human nature itself, violating its most
sacred rights of life and liberty in the
persons of a distant people who never
offended him, captivating and carrying them
into slavery in another hemisphere, or to
incur miserable death in their transportation
hither. … Determined to keep open a
market where MEN should be bought and
sold.…–Original draft of the Declaration of
Independence, 1776
2. Article the Sixth. There shall be neither
Slavery nor involuntary Servitude in the said
territory otherwise than in the punishment of
crimes, whereof the party shall have been
duly convicted; Provided always, That any
person escaping into the same, from whom
labor or service is lawfully claimed in any
one of the original States, such fugitive may
be lawfully reclaimed and conveyed to the
person claiming his or her labor or service
as aforesaid. –Northwest Ordinance, 1787
3. There is not a man living who wishes more
sincerely than I do, to see a plan adopted
for the abolition of it [slavery]. –George
Washington, 1786
4. We have seen the mere distinction of
color made in the most enlightened period
of time, a ground of the most oppressive
dominion ever exercised by man over man.
–James Madison, 1787
5. Slavery is … an atrocious debasement of
human nature. – Benjamin Franklin, 1789
6. Every measure of prudence, therefore,
ought to be assumed for the eventual
total extirpation [removal] of slavery from
the United States. …I have, through my
whole life, held the practice of slavery in …
abhorrence. –John Adams, 1819
7. It is much to be wished that slavery may
be abolished. The honour of the States, as
well as justice and humanity, in my opinion,
loudly call upon them to emancipate
these unhappy people. To contend for our
own liberty, and to deny that blessing to
others, involves an inconsistency not to be
excused. –John Jay, 1786
Select one quotation and write a response. How, if at all, does this information help you understand
the topic of the Founders’ view on slavery?
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Handout E: Slavery Essay
For nearly 250 years, the existence of slavery
deprived African Americans of independent
lives and individual liberty. It also compromised
the republican dreams of white Americans, who
otherwise achieved unprecedented success in
the creation of political institutions and social
relationships based on citizens’ equal rights
and ever-expanding opportunity. Thomas
Jefferson, who in 1787 described slavery as
an “abomination” and predicted that it “must
have an end,” had faith that “there is a superior
bench reserved in heaven for those who hasten
it.” He later avowed that “there is not a man on
earth who would sacrifice more than I would
to relieve us from this heavy reproach in any
practicable way.” Although Jefferson made
several proposals to curb slavery’s growth or
reduce its political or economic influence, a
workable plan to eradicate slavery eluded him.
Others also failed to end slavery until finally,
after the loss of more than 600,000 American
lives in the Civil War, the United States
abolished it through the 1865 ratification of the
Thirteenth Amendment to the Constitution.
American slavery and American freedom
took root at the same place and at the same
time. In 1619— the same year that colonial
Virginia’s House of Burgesses convened in
Jamestown and became the New World’s first
representative assembly—about 20 enslaved
Africans arrived at Jamestown and were sold
by Dutch slave traders. The number of slaves
in Virginia remained small for several decades,
however, until the first dominant labor system—
indentured servitude—fell out of favor after
1670. Until then indentured servants, typically
young and landless white Englishmen and
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Englishwomen in search of opportunity, arrived
by the thousands. In exchange for passage
to Virginia, they agreed to labor in planters’
tobacco fields for terms usually ranging from
four to seven years. Planters normally agreed
to give them, after their indentures expired, land
on which they could establish their own tobacco
farms. In the first few decades of settlement,
as demand for the crop boomed, such
arrangements usually worked in the planters’
favor. Life expectancy in Virginia was short and
few servants outlasted their terms of indenture.
By the mid-1600s, however, as the survival
rate of indentured servants increased, more
earned their freedom and began to compete
with their former masters. The supply of tobacco
rose more quickly than demand and, as prices
decreased, tensions between planters and
former servants grew.
These tensions exploded in 1676, when
Nathaniel Bacon led a group composed
primarily of former indentured servants in a
rebellion against Virginia’s government. The
rebels, upset by the reluctance of Governor
William Berkeley and the gentry dominated
House of Burgesses to aid their efforts to
expand onto American Indians’ lands, lashed out
at both the Indians and the government. After
several months the rebellion dissipated, but
so, at about the same time, did the practice of
voluntary servitude.
In its place developed a system of race-based
slavery. With both black and white Virginians
living longer, it made better economic sense to
own slaves, who would never gain their freedom
and compete with masters, than to rent the labor
of indentured servants, who would. A few early
slaves had gained their freedom, established
plantations, acquired servants, and enjoyed
liberties shared by white freemen, but beginning
in the 1660s Virginia’s legislature passed laws
banning interracial marriage; it also stripped
African Americans of the rights to own property
and carry guns, and it curtailed their freedom
of movement. In 1650 only about 300 blacks
worked Virginia’s tobacco fields, yet by 1680
there were 3,000 and, by the start of the
eighteenth century, nearly 10,000.
Slavery surged not only in Virginia but also in
Pennsylvania, where people abducted from
Africa and their descendants harvested wheat
and oats, and in South Carolina, where by the
1730s rice planters had imported slaves in such
quantity that they accounted for two-thirds of
the population. The sugar-based economies
of Britain’s Caribbean colonies required so
much labor that, on some islands, enslaved
individuals outnumbered freemen by more than
ten to one. Even in the New England colonies,
where staple-crop agriculture never took root,
the presence of slaves was common and
considered unremarkable by most.
Historian Edmund S. Morgan has suggested
that the prevalence of slavery in these colonies
may have, paradoxically, heightened the
sensitivity of white Americans to attacks against
their own freedom. Thus, during the crisis
preceding the War for Independence Americans
frequently cast unpopular British legislation—
which taxed them without the consent of their
assemblies, curtailed the expansion of their
settlements, deprived them of the right to jury
trials, and placed them under the watchful
eyes of red-coated soldiers—as evidence
of an imperial conspiracy to “enslave” them.
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American patriots who spoke in such terms did
not imagine that they would be forced to toil in
tobacco fields; instead, they feared that British
officials would deny to them some of the same
individual and civil rights that they had denied
to enslaved African Americans. George Mason,
collaborating with George Washington, warned
in the Fairfax Resolves of 1774 that the British
Parliament pursued a “regular, systematic plan”
to “fix the shackles of slavery upon us.”
As American revolutionaries reflected on the
injustice of British usurpations of their freedom
and began to universalize the individual rights
that they had previously tied to their status as
Englishmen, they grew increasingly conscious
of the inherent injustice of African-American
slavery. Many remained skeptical that blacks
possessed the same intellectual capabilities
as whites, but few refused to count Africans as
members of the human family or possessors of
individual rights. When Jefferson affirmed in the
Declaration of Independence “that all men are
created equal,” he did not mean all white men. In
fact, he attempted to turn the Declaration into a
platform from which Americans would denounce
the trans- Atlantic slave trade. This he blamed
on Britain and its king who, Jefferson wrote, “has
waged cruel war against human nature itself,
violating it’s [sic] most sacred rights of life and
liberty in the persons of a distant people who
never offended him, captivating & carrying them
into slavery in another hemisphere.” The king
was wrong, he asserted, “to keep open a market
where MEN should be bought & sold.” Delegates
to the Continental Congress from South Carolina
and Georgia, however, vehemently opposed the
inclusion of these lines in the Declaration of
Independence. Representatives of other
states agreed to delete them. Thus began, at
the moment of America’s birth, the practice
of prioritizing American unity over black
Americans’ liberty.
Pragmatism confronted principle not only
on the floor of Congress but also on the
plantations of many prominent revolutionaries.
When Jefferson penned his stirring defense
of individual liberty, he owned 200 enslaved
individuals. Washington, the commander-inchief of the Continental Army and future first
president, was one of the largest slaveholders
in Virginia. James Madison—who, like Jefferson
and Washington, considered himself an
opponent of slavery—was also a slaveholder.
So was Mason, whose Virginia Declaration
of Rights stands as one of the revolutionary
era’s most resounding statements on behalf
of human freedom. Had these revolutionaries
attempted to free their slaves, they would
have courted financial ruin. Alongside their
landholdings, slaves constituted the principal
asset against which they borrowed. The
existence of slavery, moreover, precluded a
free market of agricultural labor; they could
never afford to pay free people—who could
always move west to obtain their own farms,
anyway—to till their fields.
Perhaps the most powerful objection to
emancipation, however, emerged from the
same set of principles that compelled the
American revolutionaries to question the justice
of slavery. Although Jefferson, Washington,
Madison, and Mason considered human
bondage a clear violation of individual rights,
they trembled when they considered the ways
in which emancipation might thwart their
republican experiments. Not unlike many nonslaveholders, they considered especially fragile
the society that they had helped to create. In
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the absence of aristocratic selfishness and force,
revolutionary American governments relied on
virtue and voluntarism. Virtue they understood
as a manly trait; the word, in fact, derives from
the Latin noun vir, which means “man.” They
considered men to be independent and selfsufficient, made free and responsible by habits
borne of necessity. Virtuous citizens made
good citizens, the Founders thought. The use
of political power for the purpose of exploitation
promised the virtuous little and possessed the
potential to cost them much. Voluntarism was
virtue unleashed: the civic-minded, selfless
desire to ask little of one’s community but,
because of one’s sense of permanence within
it, to give much to it. The Founders, conscious
of the degree to which involuntary servitude
had rendered slaves dependent and given them
cause to resent white society, questioned their
qualifications for citizenship. It was dangerous
to continue to enslave them, but perilous to
emancipate them. Jefferson compared it to
holding a wolf by the ears.
These conundrums seemed to preclude an
easy fix. Too aware of the injustice of slavery
to expect much forgiveness from slaves, in
the first decades of the nineteenth century a
number of Founders embarked on impractical
schemes to purchase the freedom of slaves and
“repatriate” them from America to Africa. In the
interim, debate about the continued importation
of slaves from Africa stirred delegates to the
Constitutional Convention. South Carolina’s
Charles Pinckney vehemently opposed
prohibitions on the slave trade, arguing that the
matter was best decided by individual states.
The delegates compromised, agreeing that the
Constitution would prohibit for twenty years any
restrictions on the arrival of newly enslaved
Africans. As president, Jefferson availed himself
of the opportunity afforded by the Constitution
when he prohibited the continued importation
of Africans into America in 1808. Yet he had
already failed in a 1784 attempt to halt the
spread of slavery into the U.S. government’s
western territory, which stretched from the
Great Lakes south toward the Gulf of Mexico
(the compromise Northwest Ordinance of 1787
drew the line at the Ohio River), and in his
efforts to institute in Virginia a plan for gradual
emancipation (similar to those that passed
in Northern states, except that it provided for
the education and subsequent deportation of
freed African Americans). Of all the Founders,
Benjamin Franklin probably took the most
unequivocal public stand against involuntary
servitude when, in 1790, he signed a strongly
worded antislavery petition submitted to
Congress by the Pennsylvania Abolition Society.
This, too, accomplished little. The revolutionary
spirit of the postwar decade, combined with the
desire of many Upper South plantation owners
to shift from labor-intensive tobacco to wheat,
created opportunities to reduce the prevalence
of slavery in America—especially in the North.
Those opportunities not seized upon—especially
in the South—would not soon return.
Eli Whitney’s invention of the cotton gin in
1793 widened the regional divide. By rendering
more efficient the processing of cotton fiber—
which in the first half of the nineteenth century
possessed a greater value than all other
U.S. exports combined—Whitney’s machine
triggered a resurgence of Southern slavery.
Meanwhile, the wealth that cotton exports
brought to America fueled a booming Northern
industrial economy that relied on free labor
and created a well-educated middle class of
urban professionals and social activists. These
individuals kept alive the Founders’ desire to rid
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America of slavery, but they also provoked the
development of Southern proslavery thought.
At best, Southerners of the revolutionary
generation had viewed slavery as a necessary
evil; by the 1830s, however, slaveholders
began to describe it as a positive good. African
Americans were civilized Christians, they
argued, but their African ancestors were not.
In addition, the argument continued, slaves
benefited from the paternalistic care of masters
who, unlike the Northern employers of “wage
slaves,” cared for their subordinates from the
cradle to the grave. This new view combined
with an older critique of calls for emancipation:
since slaves were the property of their masters,
any attempt to force their release would be a
violation of masters’ property rights.
Regional positions grew more intractable as the
North and South vied for control of the West.
Proposals to admit into statehood Missouri,
Texas, California, Kansas, and Nebraska
resulted in controversy as Northerners and
Southerners sparred to maintain parity in the
Senate. The 1860 election to the presidency of
Abraham Lincoln, a Republican who opposed
the inclusion of additional slave states, sparked
secession and the Civil War.
“I tremble for my country when I reflect that
God is just,” Jefferson had prophetically
remarked, for “his justice cannot sleep for ever.”
Americans paid dearly for the sin of slavery.
Efforts by members of the founding generation
failed to identify moderate means to abolish
the practice, and hundreds of thousands died
because millions had been deprived of the
ability to truly live.
Robert M. S. McDonald, Ph.D.
United States Military Academy
Suggestions for Further Reading:
Bailyn, Bernard. The Ideological Origins of
the American Revolution. Cambridge, Mass.:
Harvard
University Press, reprint, 1992.
Freehling,William W. The Road to Disunion:
Secessionists at Bay, 1776–1754. New York:
Oxford
University Press, 1990.
Jordan,WinthropD.White Over Black: American
Attitudes toward the Negro, 1550–1812. Chapel
Hill, N.C.: University of North Carolina Press,
1968.
Miller, John Chester. The Wolf by the Ears:
Thomas Jefferson and Slavery. Charlottesville:
University of Virginia Press, reprint, 1991.
Morgan, Edmund S. American Slavery—
American Freedom: The Ordeal of Colonial
Virginia. New York: W.W. Norton, 1975.
Tise, Larry E. Proslavery: A History of the
Defense of Slavery in America, 1701–1840.
Athens: University of Georgia Press, 1987.
В© The Bill of Rights Institute
Handout F: Comparing the Second Treatise of
Civil Government to the Declaration of
Independence
Directions: Read the excerpts from John
Locke’s Second Treatise of Civil Government
and the Declaration of Independence. As you
read, think about the similarities and differences
between the documents, and then answer the
questions below.
Note: Some spelling, spacing, and punctuation
have been changed for clarity.
Excerpts: John Locke, Second Treatise of
Civil Government, 1690
Sec. 4. To understand political power right, and
derive it from its original, we must consider,
what state all men are naturally in, and that is,
a state of perfect freedom to order their actions
A state also of equality, wherein all the power
and jurisdiction is reciprocal, no one having
more [power] than another; …
Sec. 6. But though this be a state of liberty, yet
it is not a state of license: though man in that
state have an uncontrollable liberty to dispose
of his person or possessions, yet he has not
liberty to destroy himself, or so much as any
creature in his possession, but where some
nobler use than its bare preservation calls for it.
Sec. 22. THE natural liberty of man is to be free
from any superior power on earth, and not to
be under the will or legislative authority of man,
but to have only the law of nature for his rule.
The liberty of man, in society, is to be under no
other legislative power, but that established, by
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consent, in the commonwealth; nor under the
dominion of any will, or restraint of any law, but
what that legislative shall enact,
Sec. 87. Man being born, as has been
proved, with a title to perfect freedom, and an
uncontrolled enjoyment of all the rights and
privileges of the law of nature, equally with any
other man, or number of men in the world, hath
by nature a power, not only to preserve his
property, that is, his life, liberty and estate …
But because no political society can be, nor
subsist, without having in itself the power to
preserve the property, and in order thereunto,
punish the offences of all those of that society;
there, and there only is political society …
Those who are united into one body, and have
a common established law and judicature to
appeal to, with authority to decide controversies
between them, and punish offenders, are in
civil society one with another: …
Sec. 124. The great and chief end, therefore,
of men’s uniting into commonwealths, and
putting themselves under government, is the
preservation of their property. To which in the
state of nature there are many things wanting.
Sec. 222. …[W]henever the legislators
endeavor to take away, and destroy the
property of the people, or to reduce them
to slavery under arbitrary power, they put
themselves into a state of war with the people,
who are thereupon absolved from any farther
obedience … Whensoever therefore the
legislative shall transgress this fundamental
rule of society; and either by ambition, fear, folly
or corruption, endeavour to grasp themselves,
or put into the hands of any other, an absolute
power over the lives, liberties, and estates of
the people; by this breach of trust they forfeit
the power the people had put into their hands
for quite contrary ends, and it devolves to
the people, who have a right to resume their
original liberty, and, by the establishment of
a new legislative, (such as they shall think fit)
provide for their own safety and security...
organizing its powers in such form, as to them
shall seem most likely to effect their Safety and
Happiness. … But when a long train of abuses
and usurpations, pursuing invariably the same
Object evinces a design to reduce them under
absolute Despotism, it is their right, it is their
duty, to throw off such Government, and to
provide new Guards for their future security...
Excerpts, Declaration of Independence,
1776
2. According to each document:
IN CONGRESS, July 4, 1776. The unanimous
Declaration of the thirteen united States of
America, When in the Course of human
events, it becomes necessary for one people
to dissolve the political bands which have
connected them with another, and to assume
among the powers of the earth, the separate
and equal station to which the Laws of Nature
and of Nature’s God entitle them, a decent
respect to the opinions of mankind requires that
they should declare the causes which impel
them to the separation.
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.—That to secure these
rights, Governments are instituted among Men,
deriving their just powers from the consent of
the governed,—that whenever any Form of
Government becomes destructive of these
ends, it is the Right of the People to alter or
to abolish it, and to institute new Government,
laying its foundation on such principles and
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Critical Thinking Questions
1. What ideas or principles do you see in both
documents?
a. What is the natural condition of
mankind?
b. What is the purpose of government?
c. Why does a just government need the
consent of the governed?
Handout G: Glossary
Abolish: To stop or get rid of.
Alter: To change.
Consent of the Governed: The power of government comes from the people.
Declaration: A public announcement or statement.
Denunciation: A rejection of something because it is bad.
Deriving: Obtaining from.
Endowed: Provided with.
Independence: Not dependent on others; Freedom from outside control.
Indictment: A statement that someone has committed a crime.
Instituted: Started or begun.
Liberty: Except where authorized by citizens through the Constitution, government does not have
the authority to limit freedom.
Pursuit: The act of looking for something or trying to get something.
Right: The natural freedom to do something.
Self-evident: clearly true without needing to be proven.
Unalienable (inalienable) rights: Rights which belong to us by nature and can never be justly
taken away.
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FOUNDING PRINCIPLES COURSE Inalienable Rights Module
Inalienable Rights Module: George Washington
Lesson
Overview
Americans have long appreciated the importance of George Washington to their nation’s history.
Deemed “the indispensable man” by one historian, Washington secured American independence
as commander of the Continental Army and established republican traditions as the nation’s first
president. His unblemished character and force of personality steeled men’s hearts in combat and
stirred their souls in peace. But only recently have historians begun to recognize Washington’s
intellectual contributions to the formation of the American republic. Though never a systematic
thinker, Washington understood the relationship between political theory and practice and was a
close associate of many of the leading statesmen of the day, such as James Madison, Alexander
Hamilton, and Thomas Jefferson. Indeed, the friendship between Washington and Madison is one
of the most important political partnerships of the Founding Era.
Recommended Time
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
60 minutes
Objectives
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Evaluate how and why George Washington
is known as the “Father of His Country”.
Explain how Washington created precedents
during his presidency.
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Identify the purposes of Washington’s
Farewell Address.
Evaluate the various roles Washington
played in defending and creating the new
nation and its government.
Explain the ways in which Washington
strove to protect inalienable rights
throughout his life.
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North Carolina Clarifying Objectives
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
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CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
AH1.H.1.1: Use Chronological thinking to: 1.
Identify the structure of a historical narrative
or story: (its beginning, middle and end). 2.
Interpret data presented in time lines and
create time lines.
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
FOUNDING PRINCIPLES COURSE historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
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AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH1.H.4.1 : Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
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Inalienable Rights Module
Materials
Handout A: George Washington (1732–1799)
Handout B: In His Own Words: George
Washington on the Constitution
Lesson Plan
Background Homework [15 minutes the day
before]
A. Ask students to read Handout A: George
Washington (1732–1799) and answer the
Reading Comprehension Questions.
Warm-Up [10 minutes]
A. Review answers to homework questions.
B. Conduct a whole-class discussion to
answer the Critical Thinking Questions.
C. Ask a student to summarize the historical
significance of George Washington.
a. George Washington was a Virginia
farmer who commanded the Virginia
militia and the Continental Army.
Washington was chosen to preside
over the Philadelphia Constitutional
Convention in 1787. He was then
unanimously elected as the first
president. He is known as the “Father of
His Country.”
Context [5 minutes]
A. Explain to students that Washington’s
Farewell Address to the nation was written
with James Madison and Alexander
Hamilton, and was never delivered orally.
Rather, it was published in newspapers
throughout the nation. The Address
represents Washington’s legacy of service
to the nation, and the excerpt on Handout
C is a representative excerpt of a much
longer (seventeen-page) document.
FOUNDING PRINCIPLES COURSE Tell students that in his first paragraph,
Washington is referring to the Articles of
Confederation when he says “your first
essay.”
In His Own Words [20 minutes]
A. Distribute Handout B: Vocabulary and
Context Questions and Handout C: In
His Own Words: George Washington on
the Constitution.
B. Divide students into six groups and have
them read Handout C and complete
Handout B.
C. Assign each group one paragraph from
the speech and have them rewrite the
paragraph in their own words.
D. Ask students to then write one or two
discussion questions about the other
paragraphs.
E. When students have finished, ask the group
that worked on the first paragraph to stand
at the front of the classroom and have
a spokesperson read aloud the original
paragraph.
F. Next, have a different student from the
group present the group’s new paragraph.
G. The class should then present their
discussion questions to the remaining
students in the group.
H. Have each group in turn go to the front of
the class and continue with the “speech”
and discussion questions.
a. Suggested discussion questions/
answers:
i. Paragraph One: Why will the new
Constitution better unify the country?
/ It will form a closer union and
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Inalienable Rights Module
address common concerns of the
people.
ii. Paragraph Two: Why is the
Constitution worthy of Americans’
confidence? / It was carefully
crafted, balances government power
with liberty, and provides within itself
the means for constitutional change.
iii. Paragraph Three: What is
necessary for liberty? / Respect for
the Constitution and the law.
iv. Paragraph Four: What is one
basis of American government? /
The people’s right to change their
government. Can people ignore the
law because they don’t agree with
it? / No—the Constitution as it exists
should be respected, unless and
until it is changed by the people.
v. Paragraph Five: What does the
people’s power depend on? / The
responsibility of people to obey the
law.
vi. Paragraph Six: What is one
reason the country needs a strong
government? / Its “extensive” size.
What is the significance of “powers
properly distributed?” / Separation of
powers checks government abuse of
liberty.
I. After all groups have presented, ask each
student to write a one-sentence summary
of Washington’s message. Students should
then share their sentences with the class.
a. Suggested responses:
i. The Constitution is worthy of
Americans’ confidence.
FOUNDING PRINCIPLES COURSE ii. Liberty depends on citizens obeying
the law and the Constitution.
iii. The Constitution should be
respected and cherished.
Wrap-Up Discussion [10 minutes]
1. Tell students that in his Address,
Washington warned Americans to “resist
with care the spirit of innovation” regarding
the principles of the Constitution. Ask the
class if they believe Washington’s message
is relevant today. Why or why not?
a. Students may cite modern controversies
about the separation of powers and
which branches of government have
the authority to do certain things
such as declare war, outlaw certain
practices, etc. Students may discuss
calls for constitutional amendments and
whether specific proposed amendments
undermine or strengthen the spirit of the
Constitution.
Homework and Extension Options
A. Ask students to list five qualities that
George Washington had as a leader and
write two or three sentences about how
Washington embodied these traits.
B. Have students choose one of the following
quotes from Washington’s Farewell Address
and write a paragraph explaining whether
they agree or disagree with Washington’s
idea.
a. “And let us with caution indulge
the supposition, that morality can
be maintained without religion. It is
substantially true, that virtue or morality
is a necessary spring of popular
government.”
В© The Bill of Rights Institute
Inalienable Rights Module
b. “Promote . . . as an object of primary
importance, institutions for the general
diffusion of knowledge. In proportion
as the structure of a government gives
force to public opinion, it is essential that
public opinion should be enlightened.”
c. “It is our true policy to steer clear of
permanent alliances with any portion of
the foreign world.”
C. Have students research other historical
and/or contemporary figures who they
believe embody the same kinds of
leadership qualities as George Washington.
Students should explain why they chose
the leader(s) they did and provide specific
examples of the characteristics these
leaders have in common with Washington
D. Have students read more of Washington’s
Farewell Address and use it as the
inspiration for their own Farewell Address
that they might deliver to their school
upon graduation. The text of George
Washington’s Farewell Address can be
found at: http://www.yale.edu/lawweb/
avalon/washing.htm.
Handout A: George Washington (1732–1799)
When we assumed the Soldier, we did not lay aside the Citizen.
—George Washington
George Washington had called this gathering,
but the officers of the Continental Army did not
expect their commander-in-chief to appear in
person at the meetinghouse at Newburgh, New
York. The year was 1783, and though the War
for Independence had been won, Congress
had failed to pay their salaries. They had
been whispering for weeks about marching
on Philadelphia and taking control of the
government at gunpoint. Washington hoped that
he could squelch the treasonous plans.
An officer was in the middle of a fiery speech
when Washington appeared at the door. The
room fell silent as the great commander strode
to the front of the assembly and stepped onto a
makeshift platform. Washington said he would
read a letter from a congressman that promised
the army would receive its due. Washington
pulled the letter from his pocket and unfolded it.
Then he hesitated and squinted at the paper in
front of him. The men shuffled uneasily as their
commander reached into his pocket again and
removed a pair of reading glasses. Eyeglasses
were considered a sign of physical weakness
in the era, and Washington had worn his only
in the presence of family. But now the general
put them on in front of his officers for the first
time. “Gentlemen,” Washington said, “you will
permit me to put on my spectacles, for I have not
only grown gray but nearly blind in the service
of my country.” Many officers, reminded of the
sacrifices made by their honorable commander,
began to weep. With that, the Newburgh
Conspiracy was over.
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Background
George Washington was born on February 22,
1732, in Westmoreland County, Virginia.
His father was a prominent planter who died
when Washington was eleven years old.
After his father’s death, Washington spent
much of his time with his older half-brother,
Lawrence, at his plantation home, Mount
Vernon. In 1752, Lawrence died, and
Washington inherited the Mount Vernon Estate,
which he eventually expanded to 8,000 acres.
Washington owned thirty-six slaves at the time
he acquired Mount Vernon. By the end of his
life, he would own more than 300.
Love and War
Soon after Lawrence’s death, Washington
became a major in the Virginia militia.
Washington gained recognition for his bravery
in combat during the French and Indian
War. He was soon made commander of the
entire Virginia militia. But Washington was
denied the commission in the regular British
army that he so desired. Disappointed, he
resigned from the militia in 1758 and returned
to Mount Vernon. The next year Washington
married the wealthy widow, Martha Dandridge
Custis. Martha brought twenty slaves and two
children to Mount Vernon. Washington spent
the next fifteen years as a gentleman farmer,
concentrating on expanding his plantation and
improving farming methods. He also served in
the House of Burgesses.
Revolution
Crossroads and Convention
In 1774, Washington represented Virginia at
the Continental Congress. The following year,
Congress selected him to be commanderin-chief of the Continental Army. Washington
was a logical choice. His honored character
was respected by all. He looked the part of a
warrior, standing well over six feet tall with a
martial demeanor. He was a Virginian, and his
appointment rallied southerners to the Patriot
cause. For the next six years, Washington
kept the American army alive in the face of a
superior British force. In 1778, France signed
a treaty of alliance with America. Three years
later, Washington’s force and the French navy
joined together to bottle up the main British
force under Lord Cornwallis at Yorktown,
Virginia. With Cornwallis’s surrender, the
American Revolution was essentially over.
Washington did not have a quiet retirement
when he returned to Mount Vernon in 1783.
Mount Vernon was a crossroads for political
discussion. Guests such as James Madison
and Gouverneur Morris spent hours in
conversation with Washington about the
state of the young nation. During these talks,
Washington became convinced that the
Articles of Confederation needed revision. “The
confederation,” Washington wrote in 1785,
“appears to me to be little more than a shadow
without substance.” Washington was chosen
to preside over the Constitutional Convention
of 1787, which was called to strengthen the
central government. Though he said almost
nothing during the debates, Washington’s
presence had important effects. First, it caused
the delegates to be on their best behavior and
reassured the country. It is also likely that the
presidency would never have been entrusted to
one person had the delegates in Independence
Hall not known that Washington was certain to
be the first chief executive.
American Cato, American Cincinnatus
In 1783, Washington resigned his commission.
Many observers in foreign nations were
shocked. It was almost unprecedented for a
victorious general to give up power voluntarily.
But Washington had tried all his life to imitate
two virtuous characters of ancient history.
Washington’s favorite play was Cato, written
by the Englishman Joseph Addison. The title
character of the play was a Roman who died
resisting the tyranny of Julius Caesar. Another
ancient figure whom Washington admired was
the legendary Cincinnatus. He was a Roman
farmer who was called upon to take command
of the republic’s armies and repel Rome’s
enemies. After their defeat, Cincinnatus put
down his sword and became a farmer once
more.
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The Presidency
Washington declared that the Constitution
produced by the Convention was “little short
of a miracle.” He accepted the Electoral
College’s unanimous decision that he be
the first president. During his first term in
office, Washington proved to be a nationalist
on domestic issues, usually siding with his
secretary of the treasury, Alexander Hamilton.
The opposition to Hamilton’s economic
program was headed by the secretary of state,
Thomas Jefferson. Political parties began to
form around these two men, a development
that Washington strongly disliked.
Washington’s second term as president was
challenged by foreign and domestic troubles.
Party conflict worsened as Americans chose
sides in the war between Britain and France
that broke out in 1793. But Washington was
able to maintain official neutrality and keep
the United States out of war. The president
was also compelled to put down the Whiskey
Rebellion, a tax revolt by distillers in western
Pennsylvania.
“First in the Hearts of His
Countrymen”
At the end of his second term as president in
1797, Washington retired to Mount Vernon
for the third and final time. Tired of partisan
politics, committed to rotation in the office
of president, and concerned that if he died
in office he would set an example that the
president should serve for life, Washington
chose not to seek a third term. It is often said
that by doing so, he established the two-term
tradition for presidents.
Washington’s prediction that he would not
survive another four years proved accurate.
He died of an inflamed throat on December
14, 1799. In his will, he provided for the freeing
of all his slaves once Martha died. His death
brought an outpouring of grief throughout
America. Mock funerals were held in nearly
every city, and hundreds of eulogies were given
in his honor. Washington had justly earned the
title, “Father of His Country.”
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Comprehension and Critical Thinking
Questions
1. How did George Washington’s actions at
crucial times change the course of history?
2. In a eulogy for Washington, Henry Lee
declared that the great Virginian was “first
in war, first in peace, and first in the hearts
of his countrymen.” What do you think Lee
meant by this?
3. Washington was regarded as a chivalrous
and virtuous man. Why do you believe
it is important for a leader to have these
qualities?
4. How does Washington’s refusal of a third
term as president protect the inalienable
rights of citizens? In what other ways did
Washington help to protect the inalienable
rights of Americans throughout his life?
5. Does the fact Washington owned slaves
undermine his professed beliefs regarding
inalienable rights? Explain.
Handout B: In His Own Words: George
Washington on the Constitution
1. . . . You have improved upon your first
essay, by the adoption of a constitution of
government better calculated than your
former for an intimate union, and for the
efficacious management of your common
concerns.
2. This government, the offspring of our
own choice, uninfluenced and unawed,
adopted upon full investigation and
mature deliberation, completely free in
its principles, in the distribution of its
powers, uniting security with energy, and
containing within itself a provision for its
own amendment, has a just claim to your
confidence and your support.
3. Respect for [the Constitution’s] authority,
compliance with its laws, acquiescence in
its measures, are duties enjoined by the
fundamental maxims of true liberty.
4. The basis of our political systems is the
right of the people to make and to alter
their constitutions of government. But the
Constitution which at any time exists, till
changed by an explicit and authentic act
of the whole people, is sacredly obligatory
upon all.
5. The very idea of the power and the right
of the people to establish government
presupposes the duty of every individual to
obey the established government. . . .
В© The Bill of Rights Institute
6. In a country so extensive as ours, a
government of as much vigor as is
consistent with the perfect security of
liberty is indispensable. Liberty itself will
find in such a government, with powers
properly distributed and adjusted, its surest
guardian.
Vocabulary and Context Questions
1. Vocabulary: Use context clues to
determine the meaning or significance
of each of these words and write their
definitions:
a. calculated
b. efficacious
c. unawed
d. acquiescence
e. enjoined
f. obligatory
g. presuppose
h. extensive
i. vigor
j. indispensable
2. Context: Answer the following questions.
a. When was this document written?
b. Who wrote this document?
c. What type of document is this?
d. What was the purpose of this
document?
Inalienable Rights Module Answer Key
Lesson One: Why Do Inalienable
Rights Matter? Inalienable Rights
Handout A: Background Essay –
What Are the Origins of Rights?
1. At least three of the following: right
of Protestants to practice their faith;
protections of property; rights of the
accused; rights of criminals.
2. As a result of his violation of the rights of
Englishmen, King Charles I was beheaded
in 1649.
3. The fundamental reason why, according to
Locke, government’s main purpose must be
to protect the rights of individuals is that all
men are by nature free and equal.
4. At least three of the following: forced
quartering of troops; weapons were taken
away; restrictions on speech, press, and
assembly.
5. The Articles of Confederation established
the first attempt of the former American
colonies to organize a united government.
Handout B: Does it Matter Where
Rights Come From?
Accept reasoned answers.
Handout C: Viewing Guide for
Constitutional Principle Video:
Consent of the Governed
Before you watch:
1. Accept reasoned answers.
2. Accept reasoned answers.
While you watch:
В© The Bill of Rights Institute
1.
2.
3.
4.
5.
6.
7.
Sovereignty
Life, liberty, and property
The people
Nature
Alter or abolish
Preexisting
The people
After you watch:
1. Consent of the governed means that the
sovereign power is held by the people.
2. Popular sovereignty holds that people have
the power in a government. Monarchical
sovereignty holds that a monarch has the
power in a government because of a divine
right bestowed upon them by God.
3. Accept reasoned responses.
4. Accept reasoned responses.
5. Government is limited so that it does not
infringe upon the rights of the people.
A representative government allows the
people to have a voice in the government.
Separation of powers and checks and
balances ensure that one branch of
government does not become too powerful
and infringe upon the rights of the people.
Federalism ensures that the people have
voices in both their states and the national
government to protect their rights.
Lesson Two: The Declaration of
Independence
Handout B: Key Excerpts
1. Inalienable rights come from God or from
Nature, and everyone is born with them.
Because they are “inalienable,” they cannot
betaken away with consent.
2. According to the document: rights come
from the Creator.
rights, people have the right and duty to
end that government and make a new one.
a. The purpose of government is to secure
inalienable rights and to protect the
happiness and safety of the people.
3. Indictment – King George III has violated
the colonists’ rights in these ways, and,
therefore, a revolution is justified.
b. Government gets its power through the
consent of the governed.
4. See 3.
c. The powers are limited. The people, all of
whom are born with an equality of rights,
delegate limited powers to government to
ensure protection of those rights. This is
a key part of the social contract.
d. Government should be changed when it
damages, rather than protects, peoples’
rights.
3. Many members of the Continental
Congress believed slavery to be a great
injustice. Even some of those who
owned slaves feared African Americans
if there was immediate emancipation.
4. The fact that many of them owned
slaves does not make the ideals wrong
or less important. The Declaration’s
ideals were championed by abolitionists
and gave life to the fight to end slavery.
Handout C: The Structure of the
Declaration
5. Denunciation – The colonists have been
letdown by their “British brethren” – the
people of England – who have stood by and
permitted the government to be oppressive.
Further, the colonists have tried many times
to reconcile with England, but it has not
worked.
6. Conclusion – The colonies are and should
be independent states, no longer part
of England. They can do all things free
states do. The Declaration announces the
formation of a new social compact and
hence a people. This is why we celebrate
the birthday of America on the day and
year in which the Declaration was issued.
The 13 colonies were a new, united people,
independent of England.
7. Signatures – Fifty-six people signed
their name according to their states
to demonstrate that they were taking
responsibility for the content of the
Declaration.
1. Introduction – We care about what the
rest of the world thinks about us, so we’re
going to explain why we are declaring
independence from England.
Handout D: The Declaration, the
Founders, and Slavery
2. Preamble – People are all born with certain
rights that cannot be taken away. All human
beings have inalienable rights, because
“all men are created equal” and there
are no natural rulers among men. When
government repeatedly fails to protect these
Handout F: Comparing the Second
Treatise of Civil Government to the
Declaration of Independence
В© The Bill of Rights Institute
Accept reasoned answers.
1. The ideas and principles in both documents
include equality, liberty, freedom, and
property.
2. Answers as follows:
a. In the Second Treatise, the natural
condition of mankind is a state of perfect
freedom to protect his life, liberty, and
estate. In the Declaration, all men are
created equal and are endowed with
certain unalienable rights including life,
liberty, and the pursuit of happiness.
b. The purpose of government is to
preserve the rights of the people.
c. Government cannot be just unless it is
established by consent of the people.
Lesson Three: George Washington
Handout A: George Washington
(1732–1799)
1. Washington’s great character was
respected by all. He looked the part of
a warrior, standing well over six feet tall
and possessing a martial demeanor. He
was a Virginian, and his appointment to
command an army made up largely of
New Englanders rallied southerners to the
Patriot cause. Also, as a legislator, he had
the confidence of the Congress, who knew
that he would ensure military obedience to
civilian authority.
2. Washington admired Cato and Cincinnatus.
Cato was a Roman who died resisting the
tyranny of Julius Caesar. Washington also
emulated the legendary Cincinnatus. He
was a Roman farmer who was called upon
to take command of the republic’s armies
and repel Rome’s enemies. After helping
to secure victory, Cincinnatus put down his
sword and became a farmer once more.
3. Mount Vernon was a crossroads for
political discussion during the 1780s.
Prominent guests, such as James Madison
В© The Bill of Rights Institute
and Gouverneur Morris, spenthours in
conversation with Washington about the
state of the young nation. During these
talks,Washington became convinced
that the Articles of Confederation needed
revision.
4. Students might mention the following
events: the Newburgh Conspiracy,
Washington’s leadership of the Continental
Army, his attendance at the Constitutional
Convention, his acceptance of the
presidency.
5. Lee meant that Washington was always
a leader. Washington commanded the
Continental Army during the Revolutionary
War and was primarily responsible for
the success of the cause. He also led
Americans in peace, presiding at the
Constitutional Convention and serving as
the nation’s first president. Washington
was certainly “first in the hearts of his
countrymen,” beloved by nearly all
Americans.
Handout B: In His Own Words:
George Washington on the
Constitution
1. Vocabulary
a. purposefully designed
b. effective
c. freely made
d. passive compliance
e. tasked
f. required
g. assume beforehand
h. broad
i. strength
j. absolutely necessary
2. Context
a. This document was written in 1796, near
the end of Washington’s second term as
President.
b. George Washington wrote this document
with Alexander Hamilton and James
Madison.
c. This is a speech—though it was never
delivered aloud. Rather, it was printed in
newspapers across the country.
d. The purpose of this document was
for Washington to advise the new
country on how best to sustain its new
government.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Representative Government Module
Founding Principles:
Representative Government Module
Representative government: Form of government where sovereignty lies with individuals who
authorize government action via representatives.
Lesson One: What is Representative
Government, and How Does it Protect
Freedom?
North Carolina Clarifying Objectives
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Overview
The Founders believed that republican (or
representative) government, the form of
government in which the people are sovereign
and authorize representatives to make and carry
out laws, was the best option for the new nation.
However, in practice, they knew that majorities
could be just as tyrannical as a king. This lesson
explores the reasons the Founders believed that
republican government would correct the defects
associated with majority-rule systems, and how
the Constitution protected against mob rule.
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Recommended Time
120 minutes
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Objectives
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Explain how representative government
protects freedom.
Compare the British and American political
systems.
Evaluate the concept of majority rule.
Appraise the significance of the right to vote
and fair and frequent elections.
Understand that the continuation of the
system of republican government is
dependent on the American people.
В© The Bill of Rights Institute
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
FOUNDING PRINCIPLES COURSE of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
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CE.C&G.2.1: Analyze the structures of
national, state and local governments
in terms of ways they are organized to
maintain order, security, welfare of the
public and the protection of citizens (e.g.,
federalism, the three branches, court
system, jurisdictions, judicial process,
agencies, etc.).
CE.C&G.2.5: Compare United States
system of government within the framework
of the federal and state structures as well
as in how they relate with governmental
systems of other nations (e.g.,
Republicanism, federalism).
CE.C&G.4.1: Compare citizenship in the
American constitutional democracy to
membership in other types of governments
(e.g., right to privacy, civil rights,
responsibilities, political rights, right to due
process, equal protection under the law,
participation, freedom, etc.).
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
В© The Bill of Rights Institute
Representative Government Module
among historians. 5. Evaluate the influence
of the past on contemporary issues.
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AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition,
“slavery as a peculiar institution”, etc.).
Lesson Two: Representative
Government and Faction
Overview
The Founders believed that a representative
government would be able to take the will of
the people and turn it into policy and laws;
however, they were aware that there were
many obstacles they had to overcome to make
a functioning representative system. In the
Federalist Papers, James Madison – writing
under the pseudonym Publius – responded to
common critiques of republican governance,
FOUNDING PRINCIPLES COURSE Representative Government Module
and demonstrated how a representative
government with a strong federal system would
be able to effectively operate.
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
Recommended Time
70 minutes
Objectives
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Evaluate how a representative government
would handle selfish factions.
Explain why Madison thought a big
republican government would work better
than a small one.
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Critically engage with this theory.
Understand how good republican
governance is tied to the overall structure of
government.
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North Carolina Clarifying Objectives
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
В© The Bill of Rights Institute
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CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.2.1: Analyze the structures of
national, state and local governments
in terms of ways they are organized to
maintain order, security, welfare of the
public and the protection of citizens (e.g.,
federalism, the three branches, court
system, jurisdictions, judicial process,
agencies, etc.).
CE.C&G.3.6: Explain ways laws have been
influenced by political parties, constituents,
interest groups, lobbyists, the media and
public opinion (e.g., extension of suffrage,
labor legislation, civil rights legislation,
military policy, environmental legislation,
business regulation and educational policy).
CE.C&G.4.3: Analyze the roles of citizens
of North Carolina and the United States in
terms of responsibilities, participation, civic
life and criteria for membership or admission
(e.g., voting, jury duty, lobbying, interacting
successfully with government agencies,
organizing and working in civic groups,
volunteering, petitioning, picketing, running
for political office, residency, etc.)
FOUNDING PRINCIPLES COURSE �
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CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
Representative Government Module
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
Assessment
Overview
Students will evaluate how a representative
government balances the desires of the
citizenry with the judgment of elected
representatives.
Recommended Time
30 minutes
Assignment
“A representative owes the People not only his
industry, but his judgment, and he betrays them
if he sacrifices it to their opinion.” - Edmund
Burke
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AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.)
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
В© The Bill of Rights Institute
The Founders believed that a representative
government would empower those with
the knowledge and skills necessary to
lead; however, there is a constant tension
between the desires of the public and the
desires of an individual representative.
Students should analyze and respond
critically to the questions/prompts below:
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How do frequent and fair elections
ensure that representatives are pursuing
the public’s interest and not their own?
Provide a theoretical example where the
interests of a representative don’t align
with those of the public. What can be
done to prevent this type of scenario?
If a representative doesn’t sacrifice his
judgment for the public’s opinion (as
Edmund Burke put it) he/she is liable to be
FOUNDING PRINCIPLES COURSE Representative Government Module
voted out of office. Does this undermine
representative government? How did the
Founders seek to remedy this problem?
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In your opinion is it more important for a
representative to do what the people want or
what he thinks is best? Justify your answer.
What did the Founders think?
An informed electorate is crucial to ensure
that the interests and desires of the people
and their representatives stay aligned. How
should we ensure there is an informed
electorate? Justify your answer.
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American History meet the
requirements of the Founding Principles Act.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Representative Government Module
Representative Government Module:
What is Representative Government, and
How Does it Protect Freedom? Lesson
Overview
The Founders believed that republican (or representative) government, the form of government
in which the people are sovereign and authorize representatives to make and carry out laws, was
the best option for the new nation. However, in practice, they knew that majorities could be just
as tyrannical as a king. This lesson explores the reasons the Founders believed that republican
government would correct the defects associated with majority-rulesystems, and how the
Constitution protected against mob rule.
Recommended Time
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120 minutes
Objectives
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Explain how representative government
protects freedom.
Compare the British and American political
systems.
Evaluate the concept of majority rule.
Appraise the significance of the right to vote
and fair and frequent elections.
Understand that the continuation of the
system of republican government is
dependent on the American people.
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North Carolina Clarifying Objectives
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
В© The Bill of Rights Institute
�
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.2.1: Analyze the structures of
national, state and local governments
in terms of ways they are organized to
maintain order, security, welfare of the
public and the protection of citizens (e.g.,
federalism, the three branches, court
system, jurisdictions, judicial process,
agencies, etc.).
CE.C&G.2.5: Compare United States
system of government within the framework
of the federal and state structures as well
as in how they relate with governmental
systems of other nations (e.g.,
Republicanism, federalism).
CE.C&G.4.1: Compare citizenship in the
American constitutional democracy to
membership in other types of governments
(e.g., right to privacy, civil rights,
responsibilities, political rights, right to due
process, equal protection under the law,
participation, freedom, etc.).
Representative Government Module
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
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H1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition,
“slavery as a peculiar institution”, etc.).
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
Materials
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships and
multiple causation. 4. Evaluate competing
historical narratives and debates among
historians. 5. Evaluate the influence of the
past on contemporary issues.
Handout D: Principles in Cartoons
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
В© The Bill of Rights Institute
Handout A: Focus Quotations
Handout B: Republican Government Essay
Handout C: Constitutional Principle:
Representative Government Viewing Guide
Day I Lesson Plan
Warm-up/Pre-assessment [15
minutes]
A. Begin the lesson by asking students to work
with a partner or two. They should imagine
they are creating a new government, and
begin to make some rules or laws for their
new society. Give students a few minutes to
craft some rules.
FOUNDING PRINCIPLES COURSE B. Ask a few volunteers to share some of
the rules they came up with. After a few
examples, ask students if anyone came up
with a “rule for the rules.” In other words,
did any groups come up with a framework
for making laws and rules?
C. Explain that such a meta-rule is the U.S.
Constitution. The Constitution requires
the federal government to guarantee a
republican (or representative) form of
government to each state. In addition, the
Constitution establishes that powers not
given to Congress remain with the states
and the people. Some (not all) of the limits
on government are spelled out in the Bill of
Rights
Activity: Readings and Documents
[30 minutes]
A. Distribute Handout A: Focus Quotations
and have students complete it individually
or in pairs. Call students’ attention to the
fact that statement #5 on Handout A is a
loose paraphrase of the Washington quote
B. Have students read Handout B:
Republican Government Essay and
discuss how the rules and frameworks they
created in the warm up are linked to the
idea of representative government. Point
out that the rules they created emerged
from the people, but also serve as a curb
on the people.
Wrap-Up [20 minutes]
A. Before wrapping up for the day, remind
students that representation has been
achieved throughout American history
through voting. The history of the suffrage
amendments demonstrates that the
principle of representative government
В© The Bill of Rights Institute
Representative Government Module
is achieved through fair and frequent
elections. For homework, students
should use their history or government
textbooks, and/or sources available at
www.BillofRightsInstitute.org or other
online sources to find a quotation from an
individual who worked in support of one of
the following:
a. 15th Amendment
b. 19th Amendment
c. 24th Amendment
d. Voting Rights Act (1965)
e. 26th Amendment
Day II Lesson Plan
Warm-up [15 minutes]
A. Have a few students share the quotations
they located for homework. As a class,
discuss any themes that emerge in the
quotations. As a large group, discuss the
following questions:
a. Why has the right to vote been so
treasured throughout American history?
b. In what ways is the U.S. based on the
principle of majority rule?
c. In what ways is it based on the idea that
there are some things no majority can
do?
Activity: Multi-Media Resource [30
minutes]
A. Have students watch the video
Constitutional Principle: Representative
Government and complete the Handout C:
Constitutional Principle: Representative
Government Viewing Guide. The video can
be found here: http://billofrightsinstitute.org/
resources/student-resources/constitutionalprinciples-videos/.
FOUNDING PRINCIPLES COURSE Representative Government Module
B. After students complete the viewing guide,
conduct a large group discussion to answer
the question: Were the Founders wise to
avoid a direct democracy? Why or why not?
Wrap-up: Journaling [10 minutes]
A. Call students’ attention to the Washington
quotation on Handout B. Students should
write a journal response to two questions:
First, what are some ways that the principle
of republican government affects you as
an American? Second, is it still true that
the future success of representative (or
republican) government is entrusted to the
American people? If so, what is your role in
ensuring its success?
Assessment
A. Have students complete Handout D:
Principles in Cartoons.
B. Rubric for Handout D.
1
2
3
4
Visual
Representation
Cartoon does
not represent the
statement.
Cartoon somewhat
represents the
statement.
Cartoon represents
the statement, but it
lacks imagination.
Cartoon represents
the statement
imaginatively.
Themes
Cartoon fails to
convey the intent or
statement.
Cartoon conveys
some of the intent
or literal meaning of
the statement.
Cartoon expresses
the literal intent
OR the figurative
meaning of the
statement.
Cartoon expresses
the literal intent
as well as the
figurative meaning
of the statement.
Questions
Student fails
to answer the
questions correctly.
Student answers
some of the
questions correctly.
Student answers
the questions by
applying what they
leaned from the
lesson.
Student answers
the questions
correctly, applies
what they have
learned from
the lesson, and
includes their own
interpretations.
В© The Bill of Rights Institute
Handout A: Focus Quotations
Directions: Choose one quotation and write a concise paraphrase. Then answer the questions
that follow.
“The republican is the only form of government which is not eternally at open or secret war with the
rights of mankind.” – Thomas Jefferson
“We may define a republic to be…a government which derives all its powers directly or indirectly
from the great body of the people, and is administered by persons holding their offices during
pleasure for a limited period, or during good behavior.” – James Madison, 1787
“The preservation of the sacred fire of liberty, and the destiny of the republican model of
government, are justly considered deeply, perhaps as finally, staked on the experiment entrusted to
the hands of the American people.” - George Washington, 1789
_______________________________________________________________________________
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_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_______________________________________________________________________________
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_________________________________________________________________________________________
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Eternally: forever
Derives: obtains
Destiny: a pre-determined course of events
Staked: invested in and dependent on
Questions to Consider
1. In his definition of a republic, why does Madison note that representatives hold office for limited
times or during good behavior?
2. On whom does the responsibility for the success of America depend, according to Washington?
В© The Bill of Rights Institute
Handout B: Republican Government Essay
As Benjamin Franklin emerged from
Independence Hall at the close of the
Constitutional Convention in September 1787,
a woman approached and asked him what form
of government the Convention had produced.
Franklin responded, “A republic, madam – if
you can keep it.”
If you asked the average American today
the question posed to Franklin - what type
of government do we have? – odds are the
answer would be “a democracy,” and not
“a republic.” This language of democracy is
reinforced in the rhetoric of public officials and
within the media, and much of American society
currently sees no difference between the two.
Our Founders, however, did. In fact, many of
the Founders, such as James Madison, were
suspicious of that which modern Americans
seemingly embrace: “…democracies have ever
been spectacles of turbulence and contention;
[are] incompatible with personal security or the
rights of property; and have in general been as
short in their lives as they have been violent in
their deaths.” (Federalist No. 10)
Democracy is self-government through
popular sovereignty, based on the principle
of majority rule. Simply put, the people rule,
and what more than half of the people want
is what will be. A challenge, though, has long
plagued the very concept of democracy: how
can the principles of popular sovereignty be
implemented in a manner that also provides for
a stable society and preserves the rights and
liberties of all?
The unique American answer to this vexing
question has partial roots in an ancient source.
В© The Bill of Rights Institute
Examining the various types of government that
existed throughout the world during his time,
Greek philosopher Aristotle classified them into
three categories: rule by one (monarchy), rule
by a few (aristocracy) and rule by the many
(democracy). He noted that while all three types
began their rule in what he called their “good
form,” - ruling on the basis of the common good
– all three have a tendency to degenerate into
their “bad form,” in which the one, the few,
or the many rule on the basis of self interest.
Monarchies devolve to tyranny, aristocracies
to oligarchy, and democracies to mob rule. To
Aristotle, the best form of government blended
all three types into a “mixed regime.” This
mixed regime would combine the best features
of each and counterbalance their excesses and
tendency to devolve.
Aristotle’s mixed regime, which allowed for
- indeed advocated – both monarchy and
aristocracy, took hold in some European
countries by the 1600s. This was most
notably true in England, where the King,
House of Lords and the House of Commons
shared governmental power. Enlightenment
philosophers such as John Locke and
Montesquieu, however, challenged vigorously
the notion that either monarchy or aristocracy
were compatible with self-government. Locke’s
natural rights theory, in particular, was premised
upon the idea that all men are created equal,
born with rights bestowed by God, not man.
Further, Locke argued that the very purpose
of government was to protect these rights, and
that all government must be by consent of the
governed.
Locke did not rule out the possibility of some
kind of constitutional monarchy. However,
absent an effective process to establish
consent of the governed, he viewed both
rule by a king, and by an aristocratic elite, as
invalid. This reasoning reflected doubt upon the
legitimacy of Aristotle’s rule by one and rule by
a few. All power, in Locke’s view, must be held
by the many.
Pure democracy, however, has long been as
mistrusted as monarchy or aristocracy with
respect to the safety of liberty. Imagine, for
example, a scenario in which - if left to majority
rule - perfectly law abiding American Muslim
men retained any rights at all in the immediate
aftermath of September 11th , or the trial and
punishment of a heinous criminal, if left to a
simple vote of the community.
An alternative was needed to preserve the
power of the many, but curb the excesses of
majority rule. The answer was to be found in
republican government, and for over a century
various Enlightenment philosophers debated
the particular elements and structures that were
required, as well as the very nature of human
liberty and the purpose of government itself.
What, then, is a republic? A republican
government is one in which the people
– directly or indirectly - are the ultimate source
of authority, electing representatives to make
laws that serve their interests and advance
the common good. A republic, however,
also limits the power of the majority through
a constitutional framework that promotes
competent government, and affords protections
of fundamental rights.
Theoretical republicanism would get its first
genuine test in the founding of America.
В© The Bill of Rights Institute
Our Founders sought to implement a form
of democratic republicanism, not a pure
democracy, through our Constitution.
The most basic feature of the American
constitutional republic is the selection of
representatives directly or indirectly by the
people throughout all three branches of
government, preserving the philosophy that
all power must flow from the people. While the
direct election of representatives is reserved
only for Congress, Americans indirectly choose
our president (via an electoral college) and all
federal judges (via presidential appointment
and approval of Senators, all of whom are
chosen by the people, directly or indirectly).
Rule by the many is preserved, as regular
elections ensure the people maintain a
constant voice in their government and remain
the source of legitimate power.
Further, each branch represents distinctly
different interests and is given specific
powers to this end. The legislative branch,
for example, is intended to represent citizens
(House of Representatives) and the state
in which they reside (Senate), and is given
the power to make law, raise taxes, declare
war, and regulate commerce. The executive
branch is designed to represent the interests
of the nation, and as such is given the power
to veto legislation, make treaties, and appoint
ambassadors. Lastly, the purpose of the judicial
branch is to administer justice and interpret the
law in criminal cases and civil cases. While not
originally in the Constitution, the concept of
judicial review, established by the case Marbury
v. Madison (1803), allowed the Supreme Court
to determine the constitutionality of the actions
of the other two branches. This functional
separation of powers is reinforced through
a complex system of checks and balances
that allows each branch to limit the reach and
authority of the others, serving to limit both
majority rule and the power of the government
itself.
The Bill of Rights provides perhaps the
clearest example of the dichotomy between a
democracy and a republic. It is simultaneously
the most celebrated feature of our “democracy”
and the most anti-democratic feature of our
constitutional republic. The Bill of Rights carves
out specific liberties that are off-limits from the
reach of “the people,” unless the Constitution
itself is further amended. The Bill of Rights
includes both natural rights, such as freedom of
conscience, and civil rights, such as protection
against arbitrary search and seizure. No matter
how large the majority, one’s right to practice
the religion of choice, or to be free from
arbitrary search by government officials, cannot
be abridged or simply voted away.
Oddly, a key feature of America’s constitutional
republic also happens to run entirely counter
to what many Enlightenment philosophers
theorized was a necessary precondition for
republican government: a small territory.
Montesquieu, for example, argued:
It is natural for a republic to have only a
small territory; otherwise it cannot long
subsist…In an extensive republic the
public good is sacrificed to a thousand
private views; it is subordinate to
exceptions, and depends on accidents.
In a small one, the interest of the public
is more obvious, better understood,
and more within the reach of every
citizen; abuses have less extent, and, of
course, are less protected. (Spirit of the
Laws)
В© The Bill of Rights Institute
In short, conventional wisdom at the time
of America’s founding was that only a
geographically small republic could provide
competent self-government that protected
liberty. Our Constitution, however, crafted
the very “extensive republic” against which
Montesquieu cautioned.
James Madison would turn the small-territory
theoretical republicanism of the Enlightenment
on its head in Federalist No. 10. In this essay,
he argued that in any free society people would
naturally come together in groups to pursue
common interests. While all interest groups
pursued their desires under the assumption that
they were rooted in the “common good,” many
in fact posed a threat to the liberty of others.
Madison called these harmful groups, “factions.”
By a faction, I understand a number of
citizens, whether amounting to a majority
or a minority of the whole, who are
united and actuated by some common
impulse of passion, or of interest,
adversed to the rights of other citizens,
or to the permanent and aggregate
interests of the community.
Madison theorized that in a small republic, the
number of interests would be few and, therefore,
both the influence of each, and the threat
each posed, would be greater. In an extensive
republic, however, there would be a large variety
of diverse and distinct interest groups that likely
possessed different beliefs and desires. These
many groups, spread out over a large territory,
would be less likely to develop into harmful
factions, and less able to combine to oppress
minorities.
“Extend the sphere, and you take
in a greater variety of parties and
interests; you make it less probable
that a majority of the whole will have
a common motive to invade the rights
of other citizens; or if such a common
motive exists, it will be more difficult
for all who feel it to discover their own
strength, and to act in unison with each
other.
British Prime Minister Winston Churchill once
famously quipped: “Democracy is the worst
form of government except for all those others
that have been tried.” Benjamin Franklin,
however, was likely far closer to the truth of
human experience: “Democracy is two wolves
and a lamb voting on what to have for lunch.”
In forming a republic based in the will of the
people, equipped to establish justice and
promote liberty, the Founders placed great trust
in the virtue of future generations. Today we
might well echo Franklin—we have a republic, if
we can keep it.
В© The Bill of Rights Institute
Handout C: Viewing Guide for Constitutional
Principle Video: Representative Government
Directions: Complete the first section while you watch the video. Then read the questions that
follow. Watch the video a second time if needed, and then answer the questions.
While you watch:
1. What do you think of when you hear the term “democracy?” Write down some key words and
phrases.
2. Have you heard the phrase “majority rules”? Should the majority always rule? Why or why not?
After you watch:
1. What does the principle of republican government (or representative government) mean?
2. What was the chief reason that the Founders were wary of democracy?
3. How did James Madison challenge traditional thinking about republics?
4. Why are frequent and fair elections for representative offices a necessary ingredient for
sustaining representative government? Challenge question: Why are some offices elected and
others appointed?
5. Could representative government exist without frequent and fair elections? Why or why not?
6. Do you agree that representative government helps prevent “tyranny of the majority”? Why or
why not?
В© The Bill of Rights Institute
Handout D: Principles in Cartoons
Draw a cartoon or other visual representation for one of these two statements. Then answer the
questions that follow.
“A democracy is two wolves and a lamb voting on what to have for dinner.” -- Ben Franklin
(attributed)
“Democracy is nothing more than mob rule, where 51% of the people may take away the rights of
the other 49%.” – Thomas Jefferson (attributed)
1. What principle(s) allows the majority to rule within a constitutional framework?
2. How do these principle(s) protect freedom?
3. How do these principles affect you as an American?
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Representative Government Module
Representative Government Module:
Representative Government and Faction Lesson
Overview
Although the Founders believed that a representative government would be able to take the will of
the people and turn it into policy and laws, they were aware that there were many obstacles to be
overcome to make a functioning representative system. In the Federalist Papers, James Madison –
writing under the pseudonym Publius – responded to common critiques of republican governance,
and demonstrated how a representative government with a strong federal system would be able to
operate effectively.
Recommended Time
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
70 minutes
Objectives
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Evaluate how a representative government
would handle self-interested factions.
Explain why Madison thought a republican
government in a big country would work
better than in a small one.
пЃ®
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Critically engage with this theory.
Understand how good republican
governance is tied to the overall structure of
government.
North Carolina Clarifying Objectives
�
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
В© The Bill of Rights Institute
�
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.2.1: Analyze the structures of
national, state and local governments
in terms of ways they are organized to
FOUNDING PRINCIPLES COURSE Representative Government Module
maintain order, security, welfare of the
public and the protection of citizens (e.g.,
federalism, the three branches, court
system, jurisdictions, judicial process,
agencies, etc.).
�
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CE.C&G.3.6: Explain ways laws have been
influenced by political parties, constituents,
interest groups, lobbyists, the media and
public opinion (e.g., extension of suffrage,
labor legislation, civil rights legislation,
military policy, environmental legislation,
business regulation and educational policy).
CE.C&G.4.3: Analyze the roles of citizens
of North Carolina and the United States in
terms of responsibilities, participation, civic
life and criteria for membership or admission
(e.g., voting, jury duty, lobbying, interacting
successfully with government agencies,
organizing and working in civic groups,
volunteering, petitioning, picketing, running
for political office, residency, etc.)
CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
AH1.H.1.2: Use Historical Comprehension
to: 1. Reconstruct the literal meaning of a
historical passage. 2. Differentiate between
historical facts and historical interpretations.
3. Analyze data in historical maps. 4.
Analyze visual, literary and musical sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
В© The Bill of Rights Institute
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships and
multiple causation. 4. Evaluate competing
historical narratives and debates among
historians. 5. Evaluate the influence of the
past on contemporary issues.
�
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AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.)
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
Materials
Handout A: Federalist No. 10
Handout B: Cato No.3
Warm-up [20 minutes]
D. Begin the lesson by briefly describing to
students the context of the structure of
government in post-Revolution America.
Describe how there was disagreement
about the appropriate structure of American
government, and that the divide was
exacerbated because different groups had
different social and economic interests.
FOUNDING PRINCIPLES COURSE E. Have students find a partner. Assign each
duo to represent a group from the early
republic. They may also come up with their
own ideas for groups.
a. Groups could include: plantation
owners, southern or northern farmers,
soldiers, merchants, lawyers, statesmen/
politicians, indentured servants,
homemakers, etc.
Representative Government Module
D. In their journals students should:
Compare and contrast the arguments
made in Federalist No. 10 and Cato No. 3.
пЃ®
п‚ў
F. Students will then generate a list of things
their group would want from a government.
a. Examples could include: money, tax
breaks, legal privileges, power/authority,
land, access to ports, representation,
protection of slavery, abolition of slavery,
water rights, protection of markets,
foreign policy changes, protection of
individual rights and liberties, rule of
law and due process, advancement of
regional interests, contract law, changes
in master/servant relations, etc.
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п‚ў
G. Have the students come together and
share the top demands from each group.
Write them on the board, and, with time
permitting, allow students to vote on
whether to accept each individual demand.
a. Explain to your class how factions—
individual segments of the population
with particular interests that can run
contrary to the public good—constituted
an issue that vexed the Founders
and caused concern about creating a
government for such a broad territory.
Activity: Readings and Documents
[30 minutes]
C. Distribute Handout A: Federalist No. 10
and Handout B: Cato No. 3. Have students
read each handout individually.
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Explain why Publius believed that
republican (or representative)
government was important to maintain
the nation, how a representative
structure prevents harmful factions,
how the new Constitution promised
such a government, and why the size
of the nation would be beneficial in
protecting against factions and foreign
powers.
Explain why Cato believed that the
diverse nature of the country—with
contrasts in geography, industries, and
culture—would put too much strain on
a large representative government.
Some scholars believe that the Civil
War was evidence of the validity of the
Anti-Federalist claims. Do you believe
that issues related to representative
government led to the Civil War?
Students should justify their answers
using examples from the handouts
and historical examples.
Wrap-Up [20 minutes]
A. Divide the students into two groups. One
group will be the Federalists and the other
will be the Anti-Federalists. Have the
students debate the following topics from
the point of view of their assigned group.
a.
b.
c.
d.
e.
f.
g.
Special interests
Diversity
Culture
Geography
Industry and economics
Size of the national government
Size of the nation
Handout A: Federalist No. 10
The Utility of the Union as a Safeguard
Against Domestic Faction and Insurrection
(continued)
To the People of the State of New York:
AMONG the numerous advantages promised
by a well-constructed Union, none deserves to
be more accurately developed than its tendency
to break and control the violence of faction.
The friend of popular Governments never finds
himself so much alarmed for their character and
fate, as when he contemplates their propensity
to this dangerous vice. He will not fail, therefore,
to set a due value on any plan which, without
violating the principles to which he is attached,
provides a proper cure for it. The instability,
injustice, and confusion introduced into the
public councils, have, in truth, been the mortal
diseases under which popular Governments
have everywhere perished; as they continue to
be the favorite and fruitful topics from which the
adversaries to liberty derive their most specious
declamations. The valuable improvements made
by the American Constitutions on the popular
models, both ancient and modern, cannot
certainly be too much admired; but it would
be an unwarrantable partiality, to contend that
they have as effectually obviated the danger
on this side, as was wished and expected.
Complaints are everywhere heard from our most
considerate and virtuous citizens, equally the
friends of public and private faith, and of public
and personal liberty, that our Governments are
too unstable; that the public good is disregarded
in the conflicts of rival parties; and that
measures are too often decided, not according
to the rules of justice, and the rights of the minor
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party, but by the superior force of an interested
and overbearing majority. However anxiously
we may wish that these complaints had no
foundation, the evidence of known facts will not
permit us to deny that they are in some degree
true. It will be found, indeed, on a candid review
of our situation, that some of the distresses
under which we labor have been erroneously
charged on the operation of our Governments;
but it will be found, at the same time, that other
causes will not alone account for many of our
heaviest misfortunes; and, particularly, for that
prevailing and increasing distrust of public
engagements, and alarm for private rights,
which are echoed from one end of the continent
to the other. These must be chiefly, if not wholly,
effects of the unsteadiness and injustice, with
which a factious spirit has tainted our public
administrations.
By a faction, I understand a number of citizens,
whether amounting to a majority or a minority
of the whole, who are united and actuated
by some common impulse of passion, or of
interest, adverse to the rights of other citizens,
or to the permanent and aggregate interests of
the community.
There are two methods of curing the mischiefs
of faction: the one, by removing its causes; the
other, by controlling its effects.
There are again two methods of removing
the causes of faction: the one, by destroying
the liberty which is essential to its existence;
the other, by giving to every citizen the same
opinions, the same passions, and the same
interests.
It could never be more truly said than of the
first remedy, that it was worse than the disease.
Liberty is to faction what air is to fire, an aliment
without which it instantly expires. But it could
not be less folly to abolish liberty, which is
essential to political life, because it nourishes
faction, than it would be to wish the annihilation
of air, which is essential to animal life, because
it imparts to fire its destructive agency.
The second expedient is as impracticable, as
the first would be unwise. As long as the reason
of man continues fallible, and he is at liberty
to exercise it, different opinions will be formed.
As long as the connection subsists between
his reason and his self-love, his opinions and
his passions will have a reciprocal influence
on each other; and the former will be objects
to which the latter will attach themselves. The
diversity in the faculties of men, from which
the rights of property originate, is not less
an insuperable obstacle to a uniformity of
interests. The protection of these faculties is the
first object of Government. From the protection
of different and unequal faculties of acquiring
property, the possession of different degrees
and kinds of property immediately results; and
from the influence of these on the sentiments
and views of the respective proprietors, ensues
a division of the society into different interests
and parties.
The latent causes of faction are thus sown
in the nature of man; and we see them
everywhere brought into different degrees
of activity, according to the different
circumstances of civil society. A zeal for
different opinions concerning religion,
concerning Government, and many other
points, as well of speculation as of practice;
an attachment to different leaders ambitiously
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contending for preГ«minence and power; or to
persons of other descriptions whose fortunes
have been interesting to the human passions,
have, in turn, divided mankind into parties,
inflamed them with mutual animosity, and
rendered them much more disposed to vex and
oppress each other, than to coöperate for their
common good. So strong is this propensity of
mankind to fall into mutual animosities, that
where no substantial occasion presents itself,
the most frivolous and fanciful distinctions
have been sufficient to kindle their unfriendly
passions, and excite their most violent conflicts.
But the most common and durable source of
factions has been the various and unequal
distribution of property. Those who hold, and
those who are without property, have ever
formed distinct interests in society. Those who
are creditors, and those who are debtors, fall
under a like discrimination. A landed interest, a
manufacturing interest, a mercantile interest, a
moneyed interest, with many lesser interests,
grow up of necessity in civilized nations, and
divide them into different classes, actuated by
different sentiments and views. The regulation
of these various and interfering interests forms
the principal task of modern Legislation, and
involves the spirit of party and faction in the
necessary and ordinary operations of the
Government.
No man is allowed to be a judge in his own
cause; because his interest would certainly
bias his judgment, and, not improbably,
corrupt his integrity. With equal, nay with
greater reason, a body of men are unfit to be
both judges and parties at the same time; yet
what are many of the most important acts of
legislation, but so many judicial determinations,
not indeed concerning the rights of single
persons, but concerning the rights of large
bodies of citizens? and what are the different
classes of Legislators, but advocates and
parties to the causes which they determine?
Is a law proposed concerning private debts?
It is a question to which the creditors are
parties on one side and the debtors on the
other. Justice ought to hold the balance
between them. Yet the parties are, and must
be, themselves the judges; and the most
numerous party, or, in other words, the most
powerful faction, must be expected to prevail.
Shall domestic manufactures be encouraged,
and in what degree, by restrictions on foreign
manufactures? are questions which would
be differently decided by the landed and
the manufacturing classes; and probably by
neither, with a sole regard to justice and the
public good. The apportionment of taxes on the
various descriptions of property is an act which
seems to require the most exact impartiality;
yet there is, perhaps, no legislative act in
which greater opportunity and temptation are
given to a predominant party, to trample on the
rules of justice. Every shilling, with which they
overburden the inferior number, is a shilling
saved to their own pockets.
It is in vain to say, that enlightened statesmen
will be able to adjust these clashing interests,
and render them all subservient to the public
good. Enlightened statesmen will not always be
at the helm: Nor, in many cases, can such an
adjustment be made at all, without taking into
view indirect and remote considerations, which
will rarely prevail over the immediate interest
which one party may find in disregarding the
rights of another, or the good of the whole.
The inference to which we are brought is, that
the causes of faction cannot be removed; and
that relief is only to be sought in the means of
controlling its effects.
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If a faction consists of less than a majority, relief
is supplied by the republican principle, which
enables the majority to defeat its sinister views
by regular vote. It may clog the administration,
it may convulse the society; but it will be unable
to execute and mask its violence under the
forms of the Constitution. When a majority
is included in a faction, the form of popular
Government, on the other hand, enables it to
sacrifice to its ruling passion or interest both
the public good and the rights of other citizens.
To secure the public good, and private rights,
against the danger of such a faction, and at the
same time to preserve the spirit and the form
of popular Government, is then the great object
to which our inquiries are directed: Let me add,
that it is the great desideratum, by which this
form of Government can be rescued from the
opprobrium under which it has so long labored,
and be recommended to the esteem and
adoption of mankind.
By what means is this object attainable?
Evidently by one of two only. Either the
existence of the same passion or interest in a
majority, at the same time, must be prevented;
or the majority, having such coexistent passion
or interest, must be rendered, by their number
and local situation, unable to concert and
carry into effect schemes of oppression. If
the impulse and the opportunity be suffered
to coincide, we well know that neither moral
nor religious motives can be relied on as
an adequate control. They are not found
to be such on the injustice and violence of
individuals, and lose their efficacy in proportion
to the number combined together; that is, in
proportion as their efficacy becomes needful.
From this view of the subject, it may be
concluded, that a pure Democracy, by which I
mean a Society consisting of a small number
of citizens, who assemble and administer the
Government in person, can admit of no cure
for the mischiefs of faction. A common passion
or interest will, in almost every case, be felt by
a majority of the whole; a communication and
concert result from the form of Government
itself; and there is nothing to check the
inducements to sacrifice the weaker party, or
an obnoxious individual. Hence it is, that such
Democracies have ever been spectacles of
turbulence and contention; have ever been
found incompatible with personal security, or
the rights of property; and have in general been
as short in their lives, as they have been violent
in their deaths. Theoretic politicians, who
have patronized this species of Government,
have erroneously supposed, that by reducing
mankind to a perfect equality in their political
rights, they would, at the same time, be
perfectly equalized and assimilated in their
possessions, their opinions, and their passions.
A Republic, by which I mean a Government
in which the scheme of representation takes
place, opens a different prospect, and promises
the cure for which we are seeking. Let us
examine the points in which it varies from pure
Democracy, and we shall comprehend both
the nature of the cure, and the efficacy which it
must derive from the Union.
The two great points of difference, between
a Democracy and a Republic, are, first, the
delegation of the Government, in the latter, to
a small number of citizens elected by the rest:
Secondly, the greater number of citizens, and
greater sphere of country, over which the latter
may be extended.
The effect of the first difference is, on the one
hand, to refine and enlarge the public views,
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by passing them through the medium of a
chosen body of citizens, whose wisdom may
best discern the true interest of their country,
and whose patriotism and love of justice will
be least likely to sacrifice it to temporary or
partial considerations. Under such a regulation,
it may well happen, that the public voice,
pronounced by the representatives of the
People, will be more consonant to the public
good, than if pronounced by the People
themselves, convened for the purpose. On the
other hand, the effect may be inverted. Men
of factious tempers, of local prejudices, or of
sinister designs, may by intrigue, by corruption,
or by other means, first obtain the suffrages,
and then betray the interests of the people.
The question resulting is, whether small or
extensive Republics are more favorable to the
election of proper guardians of the public weal;
and it is clearly decided in favor of the latter by
two obvious considerations.
In the first place, it is to be remarked that
however small the Republic may be, the
Representatives must be raised to a certain
number, in order to guard against the cabals of
a few; and that however large it may be, they
must be limited to a certain number, in order
to guard against the confusion of a multitude.
Hence, the number of Representatives in the
two cases not being in proportion to that of the
Constituents, and being proportionally greater
in the small Republic, it follows, that if the
proportion of fit characters be not less in the
large than in the small Republic, the former will
present a greater option, and consequently a
greater probability of a fit choice.
In the next place, as each Representative will
be chosen by a greater number of citizens
in the large than in the small Republic, it will
be more difficult for unworthy candidates to
practise with success the vicious arts, by
which elections are too often carried; and the
suffrages of the People, being more free, will
be more likely to centre in men who possess
the most attractive merit, and the most diffusive
and established characters.
It must be confessed, that in this, as in most
other cases, there is a mean, on both sides of
which inconveniences will be found to lie. By
enlarging too much the number of electors, you
render the representatives too little acquainted
with all their local circumstances and lesser
interests; as by reducing it too much, you
render him unduly attached to these, and too
little fit to comprehend and pursue great and
National objects. The Federal Constitution
forms a happy combination in this respect; the
great and aggregate interests being referred
to the National, the local and particular to the
State Legislatures.
The other point of difference is, the greater
number of citizens and extent of territory
which may be brought within the compass of
Republican, than of Democratic Government;
and it is this circumstance principally which
renders factious combinations less to be
dreaded in the former, than in the latter. The
smaller the society, the fewer probably will be
the distinct parties and interests composing
it; the fewer the distinct parties and interests,
the more frequently will a majority be found of
the same party; and the smaller the number
of individuals composing a majority, and the
smaller the compass within which they are
placed, the more easily will they concert and
execute their plans of oppression. Extend the
sphere, and you take in a greater variety of
parties and interests; you make it less probable
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that a majority of the whole will have a common
motive to invade the rights of other citizens;
or if such a common motive exists, it will be
more difficult for all who feel it to discover their
own strength, and to act in unison with each
other. Besides other impediments, it may be
remarked, that where there is a consciousness
of unjust or dishonorable purposes,
communication is always checked by distrust,
in proportion to the number whose concurrence
is necessary.
Hence, it clearly appears, that the same
advantage which a Republic has over a
Democracy, in controlling the effects of faction,
is enjoyed by a large over a small Republic, — is
enjoyed by the Union over the States
composing it. Does the advantage consist in
the substitution of Representatives, whose
enlightened views and virtuous sentiments
render them superior to local prejudices, and to
schemes of injustice? It will not be denied, that
the Representation of the Union will be most
likely to possess these requisite endowments.
Does it consist in the greater security afforded
by a greater variety of parties, against the event
of any one party being able to outnumber and
oppress the rest? In an equal degree does
the increased variety of parties, comprised
within the Union, increase this security. Does
it, in fine, consist in the greater obstacles
opposed to the concert and accomplishment of
the secret wishes of an unjust and interested
majority? Here, again, the extent of the Union
gives it the most palpable advantage.
The influence of factious leaders may kindle
a flame within their particular States, but will
be unable to spread a general conflagration
through the other States: A religious sect may
degenerate into a political faction in a part
of the Confederacy; but the variety of sects
dispersed over the entire face of it, must secure
the National Councils against any danger
from that source; A rage for paper money, for
an abolition of debts, for an equal division of
property, or for any other improper or wicked
project, will be less apt to pervade the whole
body of the Union, than a particular member of
it; in the same proportion as such a malady is
more likely to taint a particular county or district,
than an entire State.
In the extent and proper structure of the
Union, therefore, we behold a Republican
remedy for the diseases most incident to
Republican Government. And according to the
degree of pleasure and pride we feel in being
Republicans, ought to be our zeal in cherishing
the spirit, and supporting the character, of
Federalists.
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Handout B: Cato No. 3
Fall 1787
The recital, or premises on which this new
form of government is erected, declares a
consolidation or union of allВ the thirteen parts,
or states, into one great whole, under the
firm [form?] of the United States, for all the
various and important purposes therein set
forth.--But whoever seriously considers the
immense extent of territory comprehended
within the limits of the United States, together
with the variety of its climates, productions,
and commerce, the difference of extent, and
number of inhabitants in all; the dissimilitude of
interest, morals, and policies, in almost every
one, will receive it as an intuitive truth, that a
consolidated republican form of government
therein, can neverВ form a perfect union,
establish justice, insure domestic tranquility,
promote the general welfare, and secure the
blessings of liberty to you and your posterity,В for
to these objects it must be directed: this
unkindred legislature therefore, composed of
interests opposite and dissimilar in their nature,
will in its exercise, emphatically be, like a house
divided against itself.
The governments of Europe have taken
their limits and form from adventitious
circumstances, and nothing can be argued
on the motive of agreement from them; but
these adventitious political principles, have
nevertheless produced effects that have
attracted the attention of philosophy, which has
established axioms in the science of politics
therefrom, as irrefragable as any in Euclid.
It is natural, says Montesquieu,В to a republic
to have only a small territory, otherwise it
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cannot long subsist: in a large one, there are
men of large fortunes, and consequently of
less moderation; there are too great deposits
to intrust in the hands of a single subject, an
ambitious person soon becomes sensible
that he may be happy, great, and glorious by
oppressing his fellow citizens, and that he
might raise himself to grandeur, on the ruins of
his country. In large republics, the public good
is sacrificed to a thousand views; in a small one
the interest of the public is easily perceived,
better understood, and more within the reach
of every citizen; abuses have a less extent, and
of course are less protected--he also shews
you, that the duration of the republic of Sparta,
was owing to its having continued with the
same extent of territory after all its wars; and
that the ambition of Athens and Lacedemon to
command and direct the union, lost them their
liberties, and gave them a monarchy.
From this picture, what can you promise
yourselves, on the score of consolidation of the
United States, into one government-impracticability in the just exercise of it-your freedom insecure--even this form of
government limited in its continuance--the
employments of your country disposed of
to the opulent, to whose contumely you will
continually be an object--you must risque much,
by indispensably placing trusts of the greatest
magnitude, into the hands of individuals, whose
ambition for power, and aggrandizement, will
oppress and grind you--where, from the vast
extent of your territory, and the complication
of interests, the science of government will
become intricate and perplexed, and too
misterious for you to understand, and observe;
and by which you are to be conducted into a
monarchy, either limited or despotic; the latter,
Mr. Locke remarks,В is a government derived
from neither nature, nor compact.
Political liberty,В the great Montesquieu again
observes,В consists in security, or at least in the
opinion we have of security;В and thisВ security
therefore, or theВ opinion,В is best obtained in
moderate governments, where the mildness
of the laws, and the equality of the manners,
beget a confidence in the people, which
produces this security, or the opinion. This
moderation in governments, depends in a great
measure on their limits, connected with their
political distribution.
The extent of many of the states in the
Union, is at this time, almost too great for
the superintendence of a republican form
of government, and must one day or other,
revolve into more vigorous ones, or by
separation be reduced into smaller, and
more useful, as well as moderate ones. You
have already observed the feeble efforts of
Massachusetts against their insurgents; with
what difficulty did they quell that insurrection;
and is not the province of Main at this
moment, on the eve of separation from her.
The reason of these things is, that for the
security of theВ propertyВ of the community, in
which expressive term Mr. Locke makes life,
liberty, and estate, to consist--the wheels of
a free republic are necessarily slow in their
operation; hence in large free republics, the
evil sometimes is not only begun, but almost
completed, before they are in a situation to
turn the current into a contrary progression: the
extremes are also too remote from the usual
seat of government, and the laws therefore too
feeble to afford protection to all its parts, and
insureВ domestic tranquilityВ without the aid of
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another principle. If, therefore, this state [New
York], and that of N. Carolina, had an army
under their controul, they never would have
lost Vermont, and Frankland, nor the state
of Massachusetts suffer an insurrection, or
the dismemberment of her fairest district, but
the exercise of a principle which would have
prevented these things, if we may believe the
experience of ages, would have ended in the
destruction of their liberties.
Will this consolidated republic, if established,
in its exercise beget such confidence and
compliance, among the citizens of these
states, as to do without the aid of a standing
army--I deny that it will.--The mal-contents in
each state, who will not be a few, nor the least
important, will be exciting factions against
it--the fear of a dismemberment of some of
its parts, and the necessity to enforce the
execution of revenue laws (a fruitful source of
oppression) on the extremes and in the other
districts of the government, will incidentally, and
necessarily require a permanent force, to be
kept on foot--will not political security, and even
the opinion of it, be extinguished? can mildness
and moderation exist in a government, where
the primary incident in its exercise must be
force? will not violence destroy confidence, and
can equality subsist, where the extent, policy,
and practice of it, will naturally lead to make
odious distinctions among citizens?
The people, who may compose this national
legislature from the southern states, in which,
from the mildness of the climate, the fertility
of the soil, and the value of its productions,
wealth is rapidly acquired, and where the same
causes naturally lead to luxury, dissipation, and
a passion for aristocratic distinctions; where
slavery is encouraged, and liberty of course,
less respected, and protected; who know not
what it is to acquire property by their own toil,
nor to oeconomise with the savings of industry-will these men therefore be as tenacious of
the liberties and interests of the more northern
states, whereВ freedom, independence, industry,
equality, and frugality, are natural to the climate
and soil, as men who are your own citizens,
legislating in your own state, under your
inspection, and whose manners, and fortunes,
bear a more equal resemblance to your own?
It may be suggested, in answer to this, that
whoever is a citizen of one state, is a citizen of
each, and that therefore he will be as interested
in the happiness and interest of all, as the
one he is delegated from; but the argument is
fallacious, and, whoever has attended to the
history of mankind, and the principles which
bind them together as parents, citizens, or
men, will readily perceive it. These principles
are, in their exercise, like a pebble cast on the
calm surface of a river, the circles begin in the
center, and are small, active, and forcible, but
as they depart from that point, they lose their
force, and vanish into calmness.
The strongest principle of union resides within
our domestic walls. The ties of the parent
exceed that of any other; as we depart from
home, the next general principle of union is
amongst citizens of the same state, where
acquaintance, habits, and fortunes, nourish
affection, and attachment; enlarge the circle
still further, and, as citizens of different states,
though we acknowledge the same national
denomination, we lose the ties of acquaintance,
habits, and fortunes, and thus, by degrees,
we lessen in our attachments, till, at length,
we no more than acknowledge a sameness
of species. Is it therefore, from certainty like
this, reasonable to believe, that inhabitants
of Georgia, or New-Hampshire, will have the
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same obligations towards you as your own, and
preside over your lives, liberties, and property,
with the same care and attachment? Intuitive
reason, answers in the negative.
The recital, or premises on which this new
form of government is erected, declares a
consolidation or union of allВ the thirteen parts,
or states, into one great whole, under the firm
[form?] of the United States, for all the various
and important purposes therein set forth.--But
whoever seriously considers the immense extent
of territory comprehended within the limits of
the United States, together with the variety of
its climates, productions, and commerce, the
difference of extent, and number of inhabitants
in all; the dissimilitude of interest, morals, and
policies, in almost every one, will receive it as
an intuitive truth, that a consolidated republican
form of government therein, can neverВ form a
perfect union, establish justice, insure domestic
tranquility, promote the general welfare, and
secure the blessings of liberty to you and your
posterity,В for to these objects it must be directed:
this unkindred legislature therefore, composed of
interests opposite and dissimilar in their nature,
will in its exercise, emphatically be, like a house
divided against itself.
The governments of Europe have taken
their limits and form from adventitious
circumstances, and nothing can be argued
on the motive of agreement from them; but
these adventitious political principles, have
nevertheless produced effects that have
attracted the attention of philosophy, which has
established axioms in the science of politics
therefrom, as irrefragable as any in Euclid.
It is natural, says Montesquieu,В to a republic
to have only a small territory, otherwise it
cannot long subsist: in a large one, there are
men of large fortunes, and consequently of
less moderation; there are too great deposits
to intrust in the hands of a single subject, an
ambitious person soon becomes sensible
that he may be happy, great, and glorious by
oppressing his fellow citizens, and that he
might raise himself to grandeur, on the ruins of
his country. In large republics, the public good
is sacrificed to a thousand views; in a small one
the interest of the public is easily perceived,
better understood, and more within the reach
of every citizen; abuses have a less extent, and
of course are less protected--he also shews
you, that the duration of the republic of Sparta,
was owing to its having continued with the
same extent of territory after all its wars; and
that the ambition of Athens and Lacedemon to
command and direct the union, lost them their
liberties, and gave them a monarchy.
From this picture, what can you promise
yourselves, on the score of consolidation
of the United States, into one government-impracticability in the just exercise of it- your freedom insecure--even this form of
government limited in its continuance--the
employments of your country disposed of
to the opulent, to whose contumely you will
continually be an object--you must risque much,
by indispensably placing trusts of the greatest
magnitude, into the hands of individuals, whose
ambition for power, and aggrandizement, will
oppress and grind you--where, from the vast
extent of your territory, and the complication
of interests, the science of government will
become intricate and perplexed, and too
misterious for you to understand, and observe;
and by which you are to be conducted into a
monarchy, either limited or despotic; the latter,
Mr. Locke remarks,В is a government derived
from neither nature, nor compact.
В© The Bill of Rights Institute
Political liberty,В the great Montesquieu again
observes,В consists in security, or at least in the
opinion we have of security;В and thisВ security
therefore, or theВ opinion,В is best obtained in
moderate governments, where the mildness of
the laws, and the equality of the manners, beget
a confidence in the people, which produces
this security, or the opinion. This moderation
in governments, depends in a great measure
on their limits, connected with their political
distribution.
The extent of many of the states in the
Union, is at this time, almost too great for
the superintendence of a republican form of
government, and must one day or other, revolve
into more vigorous ones, or by separation be
reduced into smaller, and more useful, as well
as moderate ones. You have already observed
the feeble efforts of Massachusetts against
their insurgents; with what difficulty did they
quell that insurrection; and is not the province of
Main at this moment, on the eve of separation
from her. The reason of these things is, that for
the security of theВ propertyВ of the community,
in which expressive term Mr. Locke makes
life, liberty, and estate, to consist--the wheels
of a free republic are necessarily slow in their
operation; hence in large free republics, the
evil sometimes is not only begun, but almost
completed, before they are in a situation to
turn the current into a contrary progression: the
extremes are also too remote from the usual
seat of government, and the laws therefore too
feeble to afford protection to all its parts, and
insureВ domestic tranquilityВ without the aid of
another principle. If, therefore, this state [New
York], and that of N. Carolina, had an army
under their controul, they never would have
lost Vermont, and Frankland, nor the state of
Massachusetts suffer an insurrection, or the
dismemberment of her fairest district, but
the exercise of a principle which would have
prevented these things, if we may believe the
experience of ages, would have ended in the
destruction of their liberties.
Will this consolidated republic, if established,
in its exercise beget such confidence and
compliance, among the citizens of these
states, as to do without the aid of a standing
army--I deny that it will.--The mal-contents in
each state, who will not be a few, nor the least
important, will be exciting factions against
it--the fear of a dismemberment of some of
its parts, and the necessity to enforce the
execution of revenue laws (a fruitful source of
oppression) on the extremes and in the other
districts of the government, will incidentally, and
necessarily require a permanent force, to be
kept on foot--will not political security, and even
the opinion of it, be extinguished? can mildness
and moderation exist in a government, where
the primary incident in its exercise must be
force? will not violence destroy confidence, and
can equality subsist, where the extent, policy,
and practice of it, will naturally lead to make
odious distinctions among citizens?
The people, who may compose this national
legislature from the southern states, in which,
from the mildness of the climate, the fertility
of the soil, and the value of its productions,
wealth is rapidly acquired, and where the same
causes naturally lead to luxury, dissipation, and
a passion for aristocratic distinctions; where
slavery is encouraged, and liberty of course,
less respected, and protected; who know not
what it is to acquire property by their own toil,
nor to oeconomise with the savings of industry-will these men therefore be as tenacious
of the liberties and interests of the more
В© The Bill of Rights Institute
northern states, whereВ freedom, independence,
industry, equality, and frugality, are natural to
the climate and soil, as men who are your own
citizens, legislating in your own state, under your
inspection, and whose manners, and fortunes,
bear a more equal resemblance to your own?
It may be suggested, in answer to this, that
whoever is a citizen of one state, is a citizen of
each, and that therefore he will be as interested
in the happiness and interest of all, as the
one he is delegated from; but the argument is
fallacious, and, whoever has attended to the
history of mankind, and the principles which bind
them together as parents, citizens, or men, will
readily perceive it. These principles are, in their
exercise, like a pebble cast on the calm surface
of a river, the circles begin in the center, and are
small, active, and forcible, but as they depart from
that point, they lose their force, and vanish into
calmness.
The strongest principle of union resides within
our domestic walls. The ties of the parent exceed
that of any other; as we depart from home, the
next general principle of union is amongst citizens
of the same state, where acquaintance, habits,
and fortunes, nourish affection, and attachment;
enlarge the circle still further, and, as citizens
of different states, though we acknowledge
the same national denomination, we lose the
ties of acquaintance, habits, and fortunes, and
thus, by degrees, we lessen in our attachments,
till, at length, we no more than acknowledge
a sameness of species. Is it therefore, from
certainty like this, reasonable to believe, that
inhabitants of Georgia, or New-Hampshire, will
have the same obligations towards you as your
own, and preside over your lives, liberties, and
property, with the same care and attachment?
Intuitive reason, answers in the negative.
Representative Government Module Answer Key
Lesson One: What is Representative
Government, and How Does it Protect
Freedom?
Handout A: Focus Quotations
Questions to Consider
3. Madison believed that a large, extended
republic would naturally protect liberty
because the people would naturally divide
themselves into factions with different
interests that would prevent a majority from
gaining too much power over the minority.
Handout C: Viewing Guide for
Constitutional Principle Video:
Separation of Powers
4. Democracy is not enough to protect
people’s rights, so the people elect
representatives to represent their interests
in government. The elections need to be
frequent and fair to ensure that the people’s
rights are protected. If a representative is
not doing their job, the people do not have
to reelect that representative. As a check
on the people and their representatives,
the president and Senate have the power
to appoint certain offices. This ensures that
these officers do not change their opinions
or actions simply based on obtaining
reelection.
While you watch:
5. Accept reasoned answers.
1. Madison notes that representatives can
only hold office during limited times or
during good behavior because if they are
not fulfilling their constitutional duties, they
can be removed from office through an
election or impeachment.
2. Washington believed that the responsibility
for success of America depended on the
American people.
1. Some examples may include: freedom,
liberty, America, equality, rights, republic,
etc.
6. Accept reasoned answers.
Handout D: Principles in Cartoons
2. Accept reasoned answers.
1. What principle(s) allows the majority to rule
within a constitutional framework?
After you watch:
2. How do these principle(s) protect freedom?
1. The people chose representatives to make
and carry out laws.
2. The Founders believed that democracy was
just as dangerous as monarchy because
the majority could not be trusted with
people’s rights. Direct democracy had been
tried throughout history and had repeatedly
failed.
В© The Bill of Rights Institute
3. How do these principles affect you as an
American?
FOUNDING PRINCIPLES COURSE Separation of Powers Module
Founding Principles Module:
Separation of Powers and Checks and
Balances Introduction
Separation of Powers is a system of distinct powers built into the Constitution to prevent an
accumulation of power in one branch.
Lesson One: Why Does Our
Government Have Separated Powers?
Lesson
North Carolina Clarifying Objectives
�
Overview
The United States Constitution separates the
powers of government into three branches
– the legislative, the executive, and the judicial.
This separation of responsibilities and authority
was an idea conceived of by Montesquieu and
was considered by the Founders as key to
preventing tyranny.
�
Recommended Time:
135 minutes
Objectives
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Recognize the origins of the principle of
separation of powers
Analyze arguments for and against
separation of powers.
Analyze the checks each branch has on the
other branches.
Debate the merits of the different models of
separation of powers
Evaluate the significance of the arguments
in Federalist No. 51 regarding separation of
powers.
В© The Bill of Rights Institute
�
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.2.5: Compare United States
system of government within the framework
of the federal and state structures as well
as in how they relate with governmental
systems of other nations (e.g.,
Republicanism, federalism).
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
В© The Bill of Rights Institute
Separation of Powers Module
Lesson Two: Federalist No. 52,
Separation of Powers, and Checks
and Balances
Overview
The United States Constitution divides
the national government power into three
branches. Each branch has specific powers
enumerated in the document, but the powers
are checked by the other branches.
Recommended Time
90 minutes
Objectives
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Examine the powers of each of the three
branches of government.
Understand how the powers of each branch
are checked by the other branches.
Understand the significance of Federalist
No. 52
Evaluate the principle of separation of
powers in light of current events
Develop a perspective on constitutional
principles and current events
North Carolina Standards and
Objectives
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.1: Analyze the structures of
national, state and local governments
in terms of ways they are organized to
maintain order, security, welfare of the
public and the protection of citizens (e.g.,
federalism, the three branches, court
system, jurisdictions, judicial process,
agencies, etc.).
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ® Identify issues and problems in the past.
пЃ® Consider multiple perspectives of various
peoples in the past.
В© The Bill of Rights Institute
Separation of Powers Module
пЃ®
пЃ®
пЃ®
�
пЃ®
пЃ®
пЃ®
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Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
пЃ®
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Analyze cause-and-effect relationships
and multiple causation.
Formulate historical questions.
Obtain historical data from a variety of
sources.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
Assessment
Overview
Students will compare and contrast the United
States model of Separation of Powers with that
employed by Parliamentary systems, typified by
England. Students will see how the principle of
separation of powers is expressed in a different
way in the Parliamentary system, and will
appraise what this difference means about the
principle.
FOUNDING PRINCIPLES COURSE Recommended Time
60 minutes
Assignment
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“A representative owes the People not
only his industry, but his judgment, and
he betrays them if he sacrifices it to their
opinion.” - Edmund Burke
Separation of Powers Module
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Answer Key for Assessment
пЃ®
Differences between separation of
powers and fusion of powers: Students’
answers should address both the
American and Westminster systems of
separation of powers.
п‚ў
The Founders saw separation of powers
as crucial to the success of a democratic
system. Since the time of the Founders other
representative governments have emerged
that have a different view of separation of
powers. The most prominent example of this
different approach is the United Kingdom.
Termed by political scientists the Westminster
system, it’s a democratic parliamentary
system that operates on the principle of
fusion of power. The executive (Prime
Minister) comes from the ruling legislative
party, and has wide ranging authority to
appoint any number of government officials.
Students should write an essay answering
the questions below:
пЃ®
пЃ®
Explain in your own words the
differences between separation of
powers and fusion of powers.
Proponents of a fusion of power
maintain that this approach enables the
government to be more responsive to
the needs of the citizenry, as government
can act quicker if the legislature and
executive are united. Do you think this is
true? Drawing from what you've learned
from this module, how do you think the
Founders would respond?
В© The Bill of Rights Institute
п‚ў
The American system separates
powers in the three branches by
enumerating each branches’ power
in the Constitution. According to
the Constitution, the legislative
branch, separated into the House of
Representative and the Senate, has
the sole power to legislate of pass
laws, the executive branch has the
sole power to execute or carry out
laws, and the judicial branch has
the sole power to decide on cases
arising under the Constitution between
states, between states and citizens
of other states, and between states
and foreign nations or citizens. Each
branches’ powers are checked by
the other branches. For instance, the
executive can only appoint officers,
including Supreme Court justices
and other judges, with the advice
and consent of the Senate. The
executive may veto laws passed by
the legislature, and the legislature may
impeach the executive or justices.
The Westminster system also
separates powers into three branches,
but there is more overlap between
the branches. The legislature is the
Parliament, separated into the House
of Commons and the House of Lords,
and is headed by the Prime Minister.
FOUNDING PRINCIPLES COURSE The Prime Minister is the traditionally
the leader of the majority party in the
House of Commons, and, unlike the
American system, he or she is also a
member of the executive branch. The
Parliament may pass laws, which are
known as primary legislation. Along
with the Prime Minister, members
of the Cabinet and other officers
make up the executive branch. The
executive may pass laws, which
are known as secondary legislation.
In 2009, the Supreme Court of the
United Kingdom was established and
took over judicial proceedings from the
Law Lords (judges from the House of
Lords) and the Judicial Committee of
the Privy Council. The Supreme Court
hears appeals from England, Wales,
Northern Ireland, and Scotland. The
Supreme Court’s power of judicial
review is limited. It cannot overturn
Separation of Powers Module
primary legislation, but it can overturn
secondary legislation or declare a law
incompatible with the Human Rights
Act of 1998. Justices of the Supreme
Court are appointed by a selection
commission and can be removed from
office by Parliament. The monarch
in the United Kingdom has mostly
ceremonial and diplomatic roles as
the head of state. The monarch has
what is known as royal prerogative.
Some of the powers include approving
laws, appointing officers, granting
pardons, declaring war, and acting
as commander in chief of the armed
forces. Today, these powers are
limited as the monarch must accept
the decisions of the Prime Minister.
�
Fusion of power opinion: Accept reasoned
answers based on both models of
separation of powers.
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American History meet the
requirements of the Founding Principles Act.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Separation of Powers Module
Separation of Powers Module:
Why Does Our Government Have Separated
Powers? Lesson
Overview
The United States Constitution separates the powers of government into three branches – the
legislative, the executive, and the judicial. This separation of responsibilities and authority was
an idea conceived of by Montesquieu and was considered by the Founders as key to preventing
tyranny.
Recommended Time:
�
135 minutes
Materials
Handout A: Separation of Powers Reading
Handout B: Federalist No. 51, Excerpt
Handout C: Constitutional Principle: Separation
of Powers Viewing Guide
North Carolina Clarifying Objectives
�
�
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
В© The Bill of Rights Institute
�
�
�
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.5: Compare United States
system of government within the framework
of the federal and state structures as well
as in how they relate with governmental
systems of other nations (e.g.,
Republicanism, federalism).
AH1.H.1.3: Use Historical Analysis and
Interpretation to: 1. Identify issues and
problems in the past. 2. Consider multiple
perspectives of various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation. 4. Evaluate
competing historical narratives and debates
among historians. 5. Evaluate the influence
of the past on contemporary issues.
AH1.H.1.4: Use Historical Research to: 1.
Formulate historical questions. 2. Obtain
historical data from a variety of sources.
FOUNDING PRINCIPLES COURSE �
�
Separation of Powers Module
3. Support interpretations with historical
evidence. 4. Construct analytical essays
using historical evidence to support
arguments.
from Montesquieu’s vision and how the
implementation of separation of powers
differed from the theoretical ideal. Potential
discussion prompts include:
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
a. Evaluate the lasting significance of the
adoption of Madison’s model. Do you
think it has worked better than the pure
Montesquieu model?
b. Do you agree with Madison that
ambition is deeply rooted in human
nature? Is there a better way to filter
out those who are only motivated by
ambition? Should we try and avoid
having ambitious people occupy national
office?
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
c. Some allege that the office of the
President has accumulated a great deal
of power, to such an extent it has thrown
out of balance the Madisonian model.
Do you agree?
Lesson Plan
Warm-up [15 minutes]
A. Write on the board the three different
branches of government.
B. Ask students to brainstorm ways that one
branch can check the actions of another
branch. For instance the Supreme Court
can rule a law unconstitutional, checking
the power of the legislature.
C. Record on a separate sheet of paper all the
different ways one branch of government
can influence and limit the other branches
of government. Save the sheet, as we’ll
revisit it later.
Reading and Discussion [45 minutes]
A. Distribute Handout A: Separation of Powers
and have students read it individually.
B. Conduct a group discussion about the
key points from the reading. Focus
on how the Madisonian Model differs
В© The Bill of Rights Institute
Activity I [30 minutes]
1. Copy and distribute and use a projector
to show the following quotation, also on
Handout B: Federalist No. 51, Excerpt.
Read it aloud and clarify any questions
students have.
“Ambition must be made to counteract
ambition. The interest of the man must be
connected with the constitutional rights
of the place. It may be a reflection on
human nature, that such devices should
be necessary to control the abuses of
government. But what is government
itself, but the greatest of all reflections on
human nature? If men were angels, no
government would be necessary. If angels
were to govern men, neither external nor
internal controls on government would be
FOUNDING PRINCIPLES COURSE necessary. In framing a government which
is to be administered by men over men,
the great difficulty lies in this: you must
first enable the government to control the
governed; and in the next place oblige
it to control itself. A dependence on the
people is, no doubt, the primary control
on the government; but experience has
taught mankind the necessity of auxiliary
precautions.” – James Madison, Federalist
No. 51, 1787
[Vocabulary notes: Oblige: Require;
Auxiliary: Supplemental, providing
additional help]
2. Have students write a one-page journal
in response to the quotation. They should
address the following questions:
a. Madison says government is a reflection
on human nature. What can you tell
about Madison’s understanding of what
that human nature is?
b. What does Madison say is the primary
[first, most important] way to control
government? What are the “auxiliary
precautions” he says are needed?
c. Madison does not say ambition is bad;
he says it must be counteracted. Is this
an important difference? Why or why
not?
В© The Bill of Rights Institute
Separation of Powers Module
Activity II [30 minutes]
A. Have students watch the video
Constitutional Principle: Separation
of Powers and complete Handout C:
Constitutional Principle: Separation of
Powers Viewing Guide. The video can be
found here: http://billofrightsinstitute.org/
resources/student-resources/constitutionalprinciples-videos/.
B. Point out to students that numbers 6
and 7 on Handout C: Viewing Guide
for Constitutional Principle Video:
Separation of Powers are loose
paraphrases of Madison’s ideas.
Wrap-up [15 minutes]
A. Conduct a large group discussion to answer
the question: Were the Founders wise to
divide power? Why or why not?
B. Students should assess their progression
in their journals, connecting what they’ve
learned about the principle of Separation
of Powers to their final project (from the
Introductory Lesson). How, if at all, would
separation of powers guard against the
kinds of things that happened to Paul
Chambers happening in the U.S.?
Handout A: Separation of Powers Reading
Separation of Powers with Checks
and Balances
“The accumulation of all powers, legislative,
executive and judicia[l] in the same hands,
whether of one, a few, or many, and whether
hereditary, self–appointed, or elective, may
justly be pronounced the very definition of
tyranny.” - James Madison, 1788
The Founding Fathers were well-acquainted
with a long-held tenet of government: the
accumulation of power by a single person or
body of government is the greatest threat to
liberty. A celebrated feature of the Constitution,
the separation of powers doctrine, in fact
developed over the course of many centuries.
As early as 350 B.C., Greek philosopher
Aristotle observed in Politics that every
government, no matter its form, performed
three distinct functions: “the deliberative, the
magisterial, and the judicative.” In modern
terminology these activities correlate,
respectively, to the legislative (law-making),
executive (law-enforcing) and judicial (law
interpretation/application) functions of
government. While Aristotle identified these
basic powers common to all governments, he
did not necessarily suggest that they should be
exercised by entirely different branches.
The principle that major governmental functions
should be divided into different branches
would be advanced centuries later. The
French philosopher Baron de Montesquieu,
“[t]he oracle…the celebrated Montesquieu,”
as James Madison referred to him, advocated
three distinct and separate branches in which
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the general powers of government should
be lodged. While John Locke made the case
for separating the legislative and executive
powers, Montesquieu provided the Founders
with a convincing defense for an independent
judiciary:
“When the legislative and executive
powers are united in the same person,
or in the same body of magistrates,
there can be no liberty… Again, there
is no liberty, if the judiciary power be
not separated from the legislative
and executive. Were it joined with the
legislative, the life and liberty of the
subject would be exposed to arbitrary
control; for the judge would then be
the legislator. Were it joined to the
executive power, the judge might
behave with violence and oppression.
There would be an end to everything,
were the same man, or the same body,
whether of the nobles or of the people,
to exercise those three powers, that
of enacting laws, that of executing the
public resolutions, and of trying the
causes of individuals.”
It was Montesquieu’s vision of a truly
separated, tripartite system that the
Founding Fathers would come to adopt
at the Constitutional Convention. Article I,
Section 1 of the United States Constitution
vests legislative powers in a Congress of the
United States, itself separated into a House
of Representatives and a Senate. Article
II, Section 1 vests executive authority in a
President of the United States. Article III,
Section 1 vests judicial authority in a single
Supreme Court of the United States and “in
such inferior Courts as the Congress may from
time to time ordain and establish.”
During the ratification debates from 1787
to 1788, some critics charged that upon
close inspection the separation of powers in
Articles I, II, and III of the Constitution were
not as complete as Montesquieu appeared
to advocate and would tend toward an
accumulation of power in one branch or
another over time. The president, for example,
has the power to accept or reject a bill duly
passed by Congress, a seemingly legislative
power. For its part, the Senate may approve
or reject a presidential appointment to his own
branch, a seemingly executive power.
The Constitution’s critics were right; the
Framers did not propose a “pure” separation of
powers. In Federalist No. 47 (1788) Madison
retorted that a “pure” separation of powers
was neither what Montesquieu intended nor
practical:
“[Montesquieu] did not mean that
these [branches] ought to have no
partial agency in, or no control over,
the acts of each other. His meaning…
can amount to no more than this,
that where the whole power of one
[branch] is exercised by the hands
that hold the whole power of another,
the fundamental principles of a free
constitution are subverted. [T]here is not
a single instance in which the several
[branches] of power have been kept
absolutely separate and distinct.”
Implicit in Madison’s argument was an
interesting challenge to the very doctrine of
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separation of powers: what will prevent the
accumulation of power in the absence of pure
separation? The answer was to be found in a
unique feature of the Constitution: the pairing
of separated powers with an intricate system
of checks and balances designed to give each
branch fortifications against encroachments
by the others. The “Madisonian Model,” as
it is now generally called, gave genuine and
practical life to both the observation of Aristotle
and the vision of Montesquieu. At the heart of
the Madisonian Model is ambition. A desire for
power, influence, and authority is embedded
deeply in human nature. For many people,
the very word “ambition” smacks of greed,
corruption, or a win-at-all-cost mentality.
Madison saw it differently. Ambition, if properly
harnessed by good judgment and rooted in an
appreciation for the benefits of constitutional
republicanism, could work to advance the
public good. It could be beneficial not only to
the effective separation of powers but to limited
government and liberty itself. In Federalist No.
51, James Madison stated:
“The great security against a gradual
concentration of the several powers
in the same [branch], consists in
giving to those who administer each
[branch], the necessary constitutional
means, and personal motives, to resist
encroachments of the others…Ambition
must be made to counteract ambition.
The interest of the man must be
connected with the constitutional rights
of the place.”
In our system of separated powers, each
branch of government is not only given a finite
amount of power and authority but arrives at
it through entirely different modes of election.
Madison theorized that as it is the Constitution
that grants each branch its power, honorable
ambition that ultimately serves the highest
interests of the people could work to maintain
the separation. In other words, since Congress
is not dependent on the presidency or the
courts for either its authority or its election to
office, members will jealously guard its power
from encroachments by the other two branches
and vice versa.
What does Madison’s theory look like in
practice? While it is the legislative branch that
makes law, the president may check Congress
by vetoing bills Congress has passed,
preventing them from being enacted. In turn,
Congress may enact a law over the president’s
objection by overriding his veto with a vote of
two-thirds of both the House and Senate. The
Supreme Court can then check both branches
by declaring a law unconstitutional (known as
judicial review), but the Supreme Court itself
is checked by virtue of the fact the president
and Senate appoint and approve, respectively,
members of the Court. Furthermore, both the
president and federal judges are subject to
impeachment by Congress for “treason, bribery,
or other high crimes and misdemeanors.”
(Article II, Sec. 4)
While Madison’s model remains, by and large,
constitutionally intact, many people wonder if
our system still balances power, in reality and
in practice, to the extent that he envisioned.
Our checks and balances system reflects an
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understanding about republican government,
held by many Founders, that the legislative
branch should be the superior branch and,
therefore, most in need of restraint. They
reasoned that this is the case because “We
the People” govern ourselves through the
laws we give ourselves through our elected
representatives in the legislative branch.
“The legislative [branch] derives superiority…
[i]ts constitutional powers [are] more extensive,
and less susceptible to precise limits…[it] is
not possible to give each [branch] an equal
[number of checks on the other branches]”
(Federalist No. 48). Some observers maintain
that this conception of the legislative as the
predominant branch is obsolete in modern
times. The executive and judicial branches
have expanded their powers beyond the
Founders’ expectations over time (i.e. executive
orders, the role of the Supreme Court as
the arbiter of laws at every level, not just the
federal level.) Is Madison’s assumption of
legislative superiority true today? If you were
asked to pick a branch to describe as “most
powerful” would your answer mirror Madison’s?
Despite disagreement as to how well it has
worked, one characteristic of the checks
and balances system cannot be denied: it
encourages constant tension and conflict
between the branches. That conflict, however,
is frequently beneficial, and our Constitution
smiles upon it.
Handout B:
Federalist No. 51, Excerpt
Directions: Read the following excerpt from Federalist No. 51. What is James Madison’s main
point? Double-underline his culminating idea in this paragraph, and single-underline the points he
makes to build up to it. Then write a brief summary of his main point on the lines below.
“Ambition must be made to counteract ambition. The interest of the man must be connected with
the constitutional rights of the place. It may be a reflection on human nature, that such devices
should be necessary to control the abuses of government. But what is government itself, but
the greatest of all reflections on human nature? If men were angels, no government would be
necessary. If angels were to govern men, neither external nor internal controls on government
would be necessary. In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control the governed; and in the
next place oblige it to control itself. A dependence on the people is, no doubt, the primary control
on the government; but experience has taught mankind the necessity of auxiliary precautions.”
– James Madison, Federalist No. 51, 1787
Vocabulary:
Oblige: Require
Auxiliary: Supplemental, providing additional help
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Handout C: Viewing Guide for Constitutional
Principle Video: Separation of Powers
Directions: Complete the first section while you watch the video. Then read the questions that
follow. Watch the video a second time if needed, and then answer the questions.
While You Watch:
1. Why did the Framers of the Constitution separate power into three branches?
2. What are the general powers of the legislative branch?
3. What are the general powers of the executive branch?
4. What are the general powers of the judicial branch?
5. Which branch did the Framers believe should be the most powerful?
6. In Federalist 51, James Madison wrote about the need to enable government to control the
governed, as well as for government to control itself. What did he mean by that statement?
After you watch:
1. What does the principle of separation of powers mean?
2. The video begins with Professor Muñoz’s statement that the purpose of separation of powers is
to “frustrate” government action. What does he mean by this statement?
3. Why would the Founders have wanted to frustrate government action? Are those reasons still
important today?
4. How is James Madison’s plan for “ambition to counteract ambition” reflected in our system of
separated powers?
5. What does our system of separated powers with checks and balances reveal about the
Founders’ understanding of human nature?
Extended Reflection:
1. In your journal – or in a separate document – write a one-page essay responding to the
Founder’s decision to make the legislature the most powerful branch of government. Was this
a good decision? In public opinion polls Congress is routinely rated as the worst branch of
government. Does this change your opinion?
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FOUNDING PRINCIPLES COURSE Separation of Powers Module
Separation of Powers Module:
Federalist No. 52, Separation of Powers,
and Checks and Balances Lesson
Overview
The United States Constitution divides the national government power into three branches. Each
branch has specific powers enumerated in the document, but the powers are checked by the other
branches.
Recommended Time
90 minutes
North Carolina Standards and
Objectives
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Objectives
Students will:
•
Examine the powers of each of the three
branches of government.
•
Understand how the powers of each branch
are checked by the other branches.
•
Compare and contrast understandings
of Constitutional separation of powers
according to Federalist No. 52 and Centinel
No. 1.
•
Evaluate the principle of separation of
powers in light of current events
•
Develop a perspective on constitutional
principles and current events
Materials
Handout A: The United States Constitution
Handout B: Separation of Powers and Checks
and Balances in the Constitution Organizer
Handout C: Federalist No. 52
Handout D: Centinel No. 1
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.1: Analyze the structures of
national, state and local governments
in terms of ways they are organized to
maintain order, security, welfare of the
public and the protection of citizens (e.g.,
federalism, the three branches, court
system, jurisdictions, judicial process,
agencies, etc.).
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
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Identify issues and problems in the past.
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
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Formulate historical questions.
Obtain historical data from a variety of
sources.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
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Separation of Powers Module
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AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
Materials
Handout A: The United States Constitution.
Handout B: Separation of Powers and Checks
and Balances in the Constitution Organizer.
Handout C: Federalist No. 52 .
Handout D: Centinel No. 1.
Lesson Plan
Warm-Up [20 minutes]
A. Have students skim Handout A: The
United States Constitution. They should
highlight or underline the ways that the
government power is separated among the
branches and how power is checked by
each branch as they read.
B. After reading, students should complete
Handout B: Separation of Powers and
Checks and Balances in the Constitution
Organizer using their knowledge of the
Constitution to determine the main powers
of their branch and how that branch is
checked or balanced by the other branches.
C. Discuss the students’ findings as a whole
class.
FOUNDING PRINCIPLES COURSE Separation of Powers Module
Activity [60 minutes]
Homework/Extension Options
A. Have students read Handout C: Federalist
No. 52 and Handout D: Centinel No.
1. They should compare and contrast
the Federalist and Anti-Federalist views
regarding separation of powers and
address the questions that follow the
readings in a journal entry.
A. Have each student find a news story
reflecting a constitutional principle and write
one paragraph analyzing how it relates to
that principle and, specifically, Articles I-VII
of the Constitution. Have students find their
article from Teaching with Current Events at
www.BillofRightsInstitute.org.
Wrap-Up [10 minutes]
B. Have students find a newspaper editorial or
letter to the editor in which the writer claims
that a branch of government has exceeded
its power under the Constitution. Have
students consult the Constitution and write
one paragraph explaining whether they
believe the author of the editorial/letter is
correct.
A. Hold a class discussion to examine the
differences between Federalist No. 52 and
Centinel No. 1. Ask students to justify their
answers with quotes from the text.
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Handout A: The United States Constitution
Preamble
We the people of the United States, in order
to form a more perfect union, establish justice,
insure domestic tranquility, provide for the
common defense, promote the general welfare,
and secure the blessings of liberty to ourselves
and our posterity, do ordain and establish this
Constitution for the United States of America.
Article I
Section 1.В All legislative powers herein granted
shall be vested in a Congress of the United
States, which shall consist of a Senate and
House of Representatives.
Section 2.В The House of Representatives
shall be composed of members chosen every
second year by the people of the several
states, and the electors in each state shall have
the qualifications requisite for electors of the
most numerous branch of the state legislature.
No person shall be a Representative who shall
not have attained to the age of twenty five
years, and been seven years a citizen of the
United States, and who shall not, when elected,
be an inhabitant of that state in which he shall
be chosen.
Representatives and direct taxes shall be
apportioned among the several states which
may be included within this union, according
to their respective numbers, which shall be
determined by adding to the whole number of
free persons, including those bound to service
for a term of years, and excluding Indians not
taxed, three fifths of all other Persons. The
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actual Enumeration shall be made within three
years after the first meeting of the Congress of
the United States, and within every subsequent
term of ten years, in such manner as they shall
by law direct. The number of Representatives
shall not exceed one for every thirty thousand,
but each state shall have at least one
Representative; and until such enumeration
shall be made, the state of New Hampshire
shall be entitled to chuse three, Massachusetts
eight, Rhode Island and Providence Plantations
one, Connecticut five, New York six, New
Jersey four, Pennsylvania eight, Delaware one,
Maryland six, Virginia ten, North Carolina five,
South Carolina five, and Georgia three.
When vacancies happen in the Representation
from any state, the executive authority
thereof shall issue writs of election to fill such
vacancies.
The House of Representatives shall choose
their speaker and other officers; and shall have
the sole power of impeachment.
Section 3.В The Senate of the United States
shall be composed of two Senators from each
state, chosen by the legislature thereof, for six
years; and each Senator shall have one vote.
Immediately after they shall be assembled in
consequence of the first election, they shall
be divided as equally as may be into three
classes. The seats of the Senators of the first
class shall be vacated at the expiration of
the second year, of the second class at the
expiration of the fourth year, and the third class
at the expiration of the sixth year, so that one
third may be chosen every second year; and if
vacancies happen by resignation, or otherwise,
during the recess of the legislature of any state,
the executive thereof may make temporary
appointments until the next meeting of the
legislature, which shall then fill such vacancies.
No person shall be a Senator who shall not
have attained to the age of thirty years, and
been nine years a citizen of the United States
and who shall not, when elected, be an
inhabitant of that state for which he shall be
chosen.
The Vice President of the United States shall
be President of the Senate, but shall have no
vote, unless they be equally divided.
The Senate shall choose their other officers,
and also a President pro tempore, in the
absence of the Vice President, or when he shall
exercise the office of President of the United
States.
The Senate shall have the sole power to try all
impeachments. When sitting for that purpose,
they shall be on oath or affirmation. When the
President of the United States is tried, the Chief
Justice shall preside: And no person shall be
convicted without the concurrence of two thirds
of the members present.
Judgment in cases of impeachment shall not
extend further than to removal from office, and
disqualification to hold and enjoy any office of
honor, trust or profit under the United States:
but the party convicted shall nevertheless be
liable and subject to indictment, trial, judgment
and punishment, according to law.
Section 4.В The times, places and manner
of holding elections for Senators and
Representatives, shall be prescribed in
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each state by the legislature thereof; but the
Congress may at any time by law make or alter
such regulations, except as to the places of
choosing Senators.
The Congress shall assemble at least once in
every year, and such meeting shall be on the
first Monday in December, unless they shall by
law appoint a different day.
Section 5.В Each House shall be the judge
of the elections, returns and qualifications
of its own members, and a majority of each
shall constitute a quorum to do business;
but a smaller number may adjourn from day
to day, and may be authorized to compel
the attendance of absent members, in such
manner, and under such penalties as each
House may provide.
Each House may determine the rules of its
proceedings, punish its members for disorderly
behavior, and, with the concurrence of two
thirds, expel a member.
Each House shall keep a journal of its
proceedings, and from time to time publish the
same, excepting such parts as may in their
judgment require secrecy; and the yeas and
nays of the members of either House on any
question shall, at the desire of one fifth of those
present, be entered on the journal.
Neither House, during the session of Congress,
shall, without the consent of the other, adjourn
for more than three days, nor to any other place
than that in which the two Houses shall be
sitting.
Section 6.В The Senators and Representatives
shall receive a compensation for their services,
to be ascertained by law, and paid out of the
treasury of the United States. They shall in all
FOUNDING PRINCIPLES COURSE Separation of Powers Module
cases, except treason, felony and breach of
the peace, be privileged from arrest during their
attendance at the session of their respective
Houses, and in going to and returning from the
same; and for any speech or debate in either
House, they shall not be questioned in any
other place.
respectively. If any bill shall not be returned
by the President within ten days (Sundays
excepted) after it shall have been presented to
him, the same shall be a law, in like manner as
if he had signed it, unless the Congress by their
adjournment prevent its return, in which case it
shall not be a law.
No Senator or Representative shall, during the
time for which he was elected, be appointed
to any civil office under the authority of the
United States, which shall have been created,
or the emoluments whereof shall have been
increased during such time: and no person
holding any office under the United States,
shall be a member of either House during his
continuance in office.
Every order, resolution, or vote to which the
concurrence of the Senate and House of
Representatives may be necessary (except on
a question of adjournment) shall be presented
to the President of the United States; and
before the same shall take effect, shall be
approved by him, or being disapproved by him,
shall be repassed by two thirds of the Senate
and House of Representatives, according to the
rules and limitations prescribed in the case of a
bill.
Section 7.В All bills for raising revenue shall
originate in the House of Representatives;
but the Senate may propose or concur with
amendments as on other Bills.
Every bill which shall have passed the House
of Representatives and the Senate, shall,
before it become a law, be presented to the
President of the United States; if he approve
he shall sign it, but if not he shall return it, with
his objections to that House in which it shall
have originated, who shall enter the objections
at large on their journal, and proceed to
reconsider it. If after such reconsideration two
thirds of that House shall agree to pass the bill,
it shall be sent, together with the objections,
to the other House, by which it shall likewise
be reconsidered, and if approved by two thirds
of that House, it shall become a law. But in all
such cases the votes of both Houses shall be
determined by yeas and nays, and the names
of the persons voting for and against the bill
shall be entered on the journal of each House
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Section 8.В The Congress shall have power
to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the
common defense and general welfare of the
United States; but all duties, imposts and
excises shall be uniform throughout the United
States;
To borrow money on the credit of the United
States;
To regulate commerce with foreign nations, and
among the several states, and with the Indian
tribes;
To establish a uniform rule of naturalization,
and uniform laws on the subject of bankruptcies
throughout the United States;
To coin money, regulate the value thereof, and
of foreign coin, and fix the standard of weights
and measures;
FOUNDING PRINCIPLES COURSE To provide for the punishment of counterfeiting
the securities and current coin of the United
States;
To establish post offices and post roads;
To promote the progress of science and useful
arts, by securing for limited times to authors
and inventors the exclusive right to their
respective writings and discoveries;
To constitute tribunals inferior to the Supreme
Court;
To define and punish piracies and felonies
committed on the high seas, and offenses
against the law of nations;
To declare war, grant letters of marque and
reprisal, and make rules concerning captures
on land and water;
To raise and support armies, but no
appropriation of money to that use shall be for
a longer term than two years;
To provide and maintain a navy;
To make rules for the government and
regulation of the land and naval forces;
To provide for calling forth the militia to execute
the laws of the union, suppress insurrections
and repel invasions;
To provide for organizing, arming, and
disciplining, the militia, and for governing
such part of them as may be employed in
the service of the United States, reserving to
the states respectively, the appointment of
the officers, and the authority of training the
militia according to the discipline prescribed by
Congress;
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Separation of Powers Module
To exercise exclusive legislation in all cases
whatsoever, over such District (not exceeding
ten miles square) as may, by cession of
particular states, and the acceptance of
Congress, become the seat of the government
of the United States, and to exercise like
authority over all places purchased by the
consent of the legislature of the state in which
the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other
needful buildings;–And
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.
Section 9.В The migration or importation of such
persons as any of the states now existing shall
think proper to admit, shall not be prohibited by
the Congress prior to the year one thousand
eight hundred and eight, but a tax or duty may
be imposed on such importation, not exceeding
ten dollars for each person.
The privilege of the writ of habeas corpus
shall not be suspended, unless when in cases
of rebellion or invasion the public safety may
require it.
No bill of attainder or ex post facto Law shall be
passed.
No capitation, or other direct, tax shall be
laid, unless in proportion to the census or
enumeration herein before directed to be taken.
No tax or duty shall be laid on articles exported
from any state.
FOUNDING PRINCIPLES COURSE No preference shall be given by any regulation
of commerce or revenue to the ports of one
state over those of another: nor shall vessels
bound to, or from, one state, be obliged to
enter, clear or pay duties in another.
No money shall be drawn from the treasury,
but in consequence of appropriations made by
law; and a regular statement and account of
receipts and expenditures of all public money
shall be published from time to time.
No title of nobility shall be granted by the
United States: and no person holding any office
of profit or trust under them, shall, without
the consent of the Congress, accept of any
present, emolument, office, or title, of any kind
whatever, from any king, prince, or foreign
state.
Section 10.В No state shall enter into any treaty,
alliance, or confederation; grant letters of
marque and reprisal; coin money; emit bills of
credit; make anything but gold and silver coin
a tender in payment of debts; pass any bill of
attainder, ex post facto law, or law impairing
the obligation of contracts, or grant any title of
nobility.
No state shall, without the consent of the
Congress, lay any imposts or duties on imports
or exports, except what may be absolutely
necessary for executing its inspection laws:
and the net produce of all duties and imposts,
laid by any state on imports or exports, shall
be for the use of the treasury of the United
States; and all such laws shall be subject to the
revision and control of the Congress.
No state shall, without the consent of
Congress, lay any duty of tonnage, keep
troops, or ships of war in time of peace, enter
В© The Bill of Rights Institute
Separation of Powers Module
into any agreement or compact with another
state, or with a foreign power, or engage in war,
unless actually invaded, or in such imminent
danger as will not admit of delay.
Article II
Section 1.В The executive power shall be vested
in a President of the United States of America.
He shall hold his office during the term of four
years, and, together with the Vice President,
chosen for the same term, be elected, as
follows:
Each state shall appoint, in such manner as
the Legislature thereof may direct, a number
of electors, equal to the whole number of
Senators and Representatives to which the
State may be entitled in the Congress: but no
Senator or Representative, or person holding
an office of trust or profit under the United
States, shall be appointed an elector.
The electors shall meet in their respective
states, and vote by ballot for two persons, of
whom one at least shall not be an inhabitant
of the same state with themselves. And they
shall make a list of all the persons voted for,
and of the number of votes for each; which
list they shall sign and certify, and transmit
sealed to the seat of the government of the
United States, directed to the President of the
Senate. The President of the Senate shall,
in the presence of the Senate and House of
Representatives, open all the certificates, and
the votes shall then be counted. The person
having the greatest number of votes shall be
the President, if such number be a majority
of the whole number of electors appointed;
and if there be more than one who have
such majority, and have an equal number of
votes, then the House of Representatives
FOUNDING PRINCIPLES COURSE shall immediately choose by ballot one of
them for President; and if no person have a
majority, then from the five highest on the list
the said House shall in like manner choose
the President. But in choosing the President,
the votes shall be taken by States, the
representation from each state having one
vote; A quorum for this purpose shall consist
of a member or members from two thirds of
the states, and a majority of all the states shall
be necessary to a choice. In every case, after
the choice of the President, the person having
the greatest number of votes of the electors
shall be the Vice President. But if there should
remain two or more who have equal votes, the
Senate shall choose from them by ballot the
Vice President.
The Congress may determine the time of
choosing the electors, and the day on which
they shall give their votes; which day shall be
the same throughout the United States.
No person except a natural born citizen, or a
citizen of the United States, at the time of the
adoption of this Constitution, shall be eligible to
the office of President; neither shall any person
be eligible to that office who shall not have
attained to the age of thirty five years, and been
fourteen Years a resident within the United
States.
In case of the removal of the President from
office, or of his death, resignation, or inability
to discharge the powers and duties of the
said office, the same shall devolve on the
Vice President, and the Congress may by
law provide for the case of removal, death,
resignation or inability, both of the President
and Vice President, declaring what officer shall
then act as President, and such officer shall act
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accordingly, until the disability be removed, or a
President shall be elected.
The President shall, at stated times, receive
for his services, a compensation, which shall
neither be increased nor diminished during the
period for which he shall have been elected,
and he shall not receive within that period any
other emolument from the United States, or any
of them.
Before he enter on the execution of his office,
he shall take the following oath or affirmation:–
”I do solemnly swear (or affirm) that I will
faithfully execute the office of President of the
United States, and will to the best of my ability,
preserve, protect and defend the Constitution of
the United States.”
Section 2.В The President shall be commander
in chief of the Army and Navy of the United
States, and of the militia of the several states,
when called into the actual service of the
United States; he may require the opinion,
in writing, of the principal officer in each of
the executive departments, upon any subject
relating to the duties of their respective offices,
and he shall have power to grant reprieves and
pardons for offenses against the United States,
except in cases of impeachment.
He shall have power, by and with the advice
and consent of the Senate, to make treaties,
provided two thirds of the Senators present
concur; and he shall nominate, and by and with
the advice and consent of the Senate, shall
appoint ambassadors, other public ministers
and consuls, judges of the Supreme Court, and
all other officers of the United States, whose
appointments are not herein otherwise provided
for, and which shall be established by law: but
FOUNDING PRINCIPLES COURSE the Congress may by law vest the appointment
of such inferior officers, as they think proper, in
the President alone, in the courts of law, or in
the heads of departments.
The President shall have power to fill up all
vacancies that may happen during the recess
of the Senate, by granting commissions which
shall expire at the end of their next session.
Section 3.В He shall from time to time give to
the Congress information of the state of the
union, and recommend to their consideration
such measures as he shall judge necessary
and expedient; he may, on extraordinary
occasions, convene both Houses, or either of
them, and in case of disagreement between
them, with respect to the time of adjournment,
he may adjourn them to such time as he shall
think proper; he shall receive ambassadors
and other public ministers; he shall take care
that the laws be faithfully executed, and shall
commission all the officers of the United States.
Section 4.В The President, Vice President and
all civil officers of the United States, shall be
removed from office on impeachment for, and
conviction of, treason, bribery, or other high
crimes and misdemeanors.
Article III
Section 1. The judicial power of the United
States, shall be vested in one Supreme Court,
and in such inferior courts as the Congress
may from time to time ordain and establish. The
judges, both of the supreme and inferior courts,
shall hold their offices during good behaviour,
and shall, at stated times, receive for their
services, a compensation, which shall not be
diminished during their continuance in office.
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Section 2.В The judicial power shall extend to
all cases, in law and equity, arising under this
Constitution, the laws of the United States,
and treaties made, or which shall be made,
under their authority;–to all cases affecting
ambassadors, other public ministers and
consuls;–to all cases of admiralty and maritime
jurisdiction;–to controversies to which the
United States shall be a party;–to controversies
between two or more states;–between a
state and citizens of another state;– between
citizens of different states;–between citizens
of the same state claiming lands under grants
of different states, and between a state, or the
citizens thereof, and foreign states, citizens or
subjects.
In all cases affecting ambassadors, other public
ministers and consuls, and those in which a
state shall be party, the Supreme Court shall
have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall
have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such
regulations as the Congress shall make.
The trial of all crimes, except in cases of
impeachment, shall
be by jury; and such trial shall be held in the
state where the said crimes shall have been
committed; but when not committed within any
state, the trial shall be at such place or places
as the Congress may by law have directed.
Section 3.В Treason against the United States,
shall consist only in levying war against
them, or in adhering to their enemies, giving
them aid and comfort. No person shall be
convicted of treason unless on the testimony
of two witnesses to the same overt act, or on
confession in open court.
FOUNDING PRINCIPLES COURSE The Congress shall have power to declare
the punishment of treason, but no attainder
of treason shall work corruption of blood, or
forfeiture except during the life of the person
attainted.
Article IV
Section 1.В Full faith and credit shall be given
in each state to the public acts, records, and
judicial proceedings of every other state. And
the Congress may by general laws prescribe
the manner in which such acts, records, and
proceedings shall be proved, and the effect
thereof.
Section 2.В The citizens of each state shall
be entitled to all privileges and immunities of
citizens in the several states.
A person charged in any state with treason,
felony, or other crime, who shall flee from
justice, and be found in another state, shall
on demand of the executive authority of the
state from which he fled, be delivered up, to be
removed to the state having jurisdiction of the
crime.
No person held to service or labor in one state,
under the laws thereof, escaping into another,
shall, in consequence of any law or regulation
therein, be discharged from such service or
labor, but shall be delivered up on claim of the
party to whom such service or labor may be
due.
Section 3.В New states may be admitted by the
Congress into this union; but no new states
shall be formed or erected within the jurisdiction
of any other state; nor any state be formed by
the junction of two or more states, or parts of
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Separation of Powers Module
states, without the consent of the legislatures
of the states concerned as well as of the
Congress.
The Congress shall have power to dispose
of and make all needful rules and regulations
respecting the territory or other property
belonging to the United States; and nothing in
this Constitution shall be so construed as to
prejudice any claims of the United States, or of
any particular state.
Section 4.В The United States shall guarantee
to every state in this union a republican form
of government, and shall protect each of
them against invasion; and on application
of the legislature, or of the executive (when
the legislature cannot be convened) against
domestic violence.
Article V
The Congress, whenever two thirds of both
houses shall deem it necessary, shall propose
amendments to this Constitution, or, on the
application of the legislatures of two thirds of
the several states, shall call a convention for
proposing amendments, which, in either case,
shall be valid to all intents and purposes, as
part of this Constitution, when ratified by the
legislatures of three fourths of the several
states, or by conventions in three fourths
thereof, as the one or the other mode of
ratification may be proposed by the Congress;
provided that no amendment which may be
made prior to the year one thousand eight
hundred and eight shall in any manner affect
the first and fourth clauses in the ninth section
of the first article; and that no state, without its
consent, shall be deprived of its equal suffrage
in the Senate.
FOUNDING PRINCIPLES COURSE Article VI
All debts contracted and engagements entered
into, before the adoption of this Constitution,
shall be as valid against the United States
under this Constitution, as under the
Confederation.
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; and the
judges in every state shall be bound thereby,
anything in the Constitution or laws of any State
to the contrary notwithstanding.
The Senators and Representatives before
mentioned, and the members of the several
state legislatures, and all executive and judicial
officers, both of the United States and of the
several states, shall be bound by oath or
affirmation, to support this Constitution; but
no religious test shall ever be required as a
qualification to any office or public trust under
the United States.
Article VII
The ratification of the conventions of nine
states, shall be sufficient for the establishment
of this Constitution between the states so
ratifying the same.
Done in convention by the unanimous consent
of the states present the seventeenth day
of September in the year of our Lord one
thousand seven hundred and eighty seven
and of the independence of the United States
of America the twelfth. In witness whereof We
have hereunto subscribed our Names,
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Separation of Powers Module
G. Washington-Presidt. and deputy from
Virginia
New Hampshire: John Langdon, Nicholas
Gilman
Massachusetts: Nathaniel Gorham, Rufus King
Connecticut: Wm: Saml. Johnson, Roger
Sherman
New York: Alexander Hamilton
New Jersey: Wil: Livingston, David Brearly,
Wm. Paterson, Jona: Dayton
Pennsylvania: B. Franklin, Thomas Mifflin,
Robt. Morris, Geo. Clymer, Thos. FitzSimons,
Jared Ingersoll, James Wilson, Gouv Morris
Delaware: Geo: Read, Gunning Bedford jun,
John Dickinson, Richard Bassett, Jaco: Broom
Maryland: James McHenry, Dan of St Thos.
Jenifer, Danl Carroll
Virginia: John Blair–, James Madison Jr.
North Carolina: Wm. Blount, Richd. Dobbs
Spaight, Hu Williamson
South Carolina: J. Rutledge, Charles
Cotesworth Pinckney, Charles Pinckney, Pierce
Butler
Georgia: William Few, Abr Baldwin
Handout B: Separation of Powers and Checks
and Balances in the Constitution Organizer
Directions: Using your copy of the Constitution, complete the chart below to list the powers of
each branch of government and how each branch is checked by the other branches.
Legislative Branch
Powers
Checks and
Balances
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Executive Branch
Judicial Branch
Handout C: Federalist No. 52
Directions: Read Federalist No. 52 and Brutus
No. 16. In your journal, compare and contrast
the Federalist and Anti-Federalist views on
separation of powers. Use the questions to
consider at the end of each document to guide
your journal entry.
To the People of the State of New York:
FROMВ the more general inquiries pursued
in the four last papers, I pass on to a more
particular examination of the several parts of
the government. I shall begin with the House of
Representatives.
The first view to be taken of this part of the
government relates to the qualifications of
the electors and the elected. Those of the
former are to be the same with those of the
electors of the most numerous branch of
the State legislatures. The definition of the
right of suffrage is very justly regarded as a
fundamental article of republican government.
It was incumbent on the convention,
therefore, to define and establish this right
in the Constitution. To have left it open for
the occasional regulation of the Congress,
would have been improper for the reason
just mentioned. To have submitted it to the
legislative discretion of the States, would have
been improper for the same reason; and for the
additional reason that it would have rendered
too dependent on the State governments
that branch of the federal government which
ought to be dependent on the people alone.
To have reduced the different qualifications
in the different States to one uniform rule,
would probably have been as dissatisfactory
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to some of the States as it would have been
difficult to the convention. The provision
made by the convention appears, therefore,
to be the best that lay within their option. It
must be satisfactory to every State, because
it is conformable to the standard already
established, or which may be established, by
the State itself. It will be safe to the United
States, because, being fixed by the State
constitutions, it is not alterable by the State
governments, and it cannot be feared that the
people of the States will alter this part of their
constitutions in such a manner as to abridge
the rights secured to them by the federal
Constitution.
The qualifications of the elected, being less
carefully and properly defined by the State
constitutions, and being at the same time
more susceptible of uniformity, have been
very properly considered and regulated by
the convention. A representative of the United
States must be of the age of twenty-five
years; must have been seven years a citizen
of the United States; must, at the time of his
election, be an inhabitant of the State he is to
represent; and, during the time of his service,
must be in no office under the United States.
Under these reasonable limitations, the door
of this part of the federal government is open
to merit of every description, whether native or
adoptive, whether young or old, and without
regard to poverty or wealth, or to any particular
profession of religious faith.
The term for which the representatives are to
be elected falls under a second view which may
be taken of this branch. In order to decide on
the propriety of this article, two questions must
be considered: first, whether biennial elections
will, in this case, be safe; secondly, whether
they be necessary or useful.
First. As it is essential to liberty that the
government in general should have a
common interest with the people, so it is
particularly essential that the branch of it under
consideration should have an immediate
dependence on, and an intimate sympathy
with, the people. Frequent elections are
unquestionably the only policy by which this
dependence and sympathy can be effectually
secured. But what particular degree of
frequency may be absolutely necessary for the
purpose, does not appear to be susceptible
of any precise calculation, and must depend
on a variety of circumstances with which it
may be connected. Let us consult experience,
the guide that ought always to be followed
whenever it can be found.
The scheme of representation, as a substitute
for a meeting of the citizens in person, being
at most but very imperfectly known to ancient
polity, it is in more modern times only that
we are to expect instructive examples. And
even here, in order to avoid a research too
vague and diffusive, it will be proper to confine
ourselves to the few examples which are best
known, and which bear the greatest analogy
to our particular case. The first to which this
character ought to be applied, is the House
of Commons in Great Britain. The history
of this branch of the English Constitution,
anterior to the date of Magna Charta, is too
obscure to yield instruction. The very existence
of it has been made a question among
political antiquaries. The earliest records of
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subsequent date prove that parliaments were
toВ sitВ only every year; not that they were to
beВ electedВ every year. And even these annual
sessions were left so much at the discretion
of the monarch, that, under various pretexts,
very long and dangerous intermissions
were often contrived by royal ambition. To
remedy this grievance, it was provided by a
statute in the reign of Charles II. , that the
intermissions should not be protracted beyond
a period of three years. On the accession of
William III., when a revolution took place in
the government, the subject was still more
seriously resumed, and it was declared to be
among the fundamental rights of the people
that parliaments ought to be heldВ frequently.
By another statute, which passed a few years
later in the same reign, the term “frequently,”
which had alluded to the triennial period settled
in the time of Charles II. , is reduced to a
precise meaning, it being expressly enacted
that a new parliament shall be called within
three years after the termination of the former.
The last change, from three to seven years,
is well known to have been introduced pretty
early in the present century, under on alarm
for the Hanoverian succession. From these
facts it appears that the greatest frequency of
elections which has been deemed necessary
in that kingdom, for binding the representatives
to their constituents, does not exceed a
triennial return of them. And if we may argue
from the degree of liberty retained even under
septennial elections, and all the other vicious
ingredients in the parliamentary constitution, we
cannot doubt that a reduction of the period from
seven to three years, with the other necessary
reforms, would so far extend the influence of
the people over their representatives as to
satisfy us that biennial elections, under the
federal system, cannot possibly be dangerous
to the requisite dependence of the House of
Representatives on their constituents.
Elections in Ireland, till of late, were regulated
entirely by the discretion of the crown, and were
seldom repeated, except on the accession of
a new prince, or some other contingent event.
The parliament which commenced with George
II. was continued throughout his whole reign,
a period of about thirty-five years. The only
dependence of the representatives on the
people consisted in the right of the latter to
supply occasional vacancies by the election
of new members, and in the chance of some
event which might produce a general new
election. The ability also of the Irish parliament
to maintain the rights of their constituents,
so far as the disposition might exist, was
extremely shackled by the control of the
crown over the subjects of their deliberation.
Of late these shackles, if I mistake not, have
been broken; and octennial parliaments have
besides been established. What effect may be
produced by this partial reform, must be left
to further experience. The example of Ireland,
from this view of it, can throw but little light
on the subject. As far as we can draw any
conclusion from it, it must be that if the people
of that country have been able under all these
disadvantages to retain any liberty whatever,
the advantage of biennial elections would
secure to them every degree of liberty, which
might depend on a due connection between
their representatives and themselves.
Let us bring our inquiries nearer home. The
example of these States, when British colonies,
claims particular attention, at the same time
that it is so well known as to require little to
be said on it. The principle of representation,
in one branch of the legislature at least, was
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established in all of them. But the periods
of election were different. They varied from
one to seven years. Have we any reason
to infer, from the spirit and conduct of the
representatives of the people, prior to the
Revolution, that biennial elections would have
been dangerous to the public liberties? The
spirit which everywhere displayed itself at the
commencement of the struggle, and which
vanquished the obstacles to independence,
is the best of proofs that a sufficient portion of
liberty had been everywhere enjoyed to inspire
both a sense of its worth and a zeal for its
proper enlargement This remark holds good,
as well with regard to the then colonies whose
elections were least frequent, as to those
whose elections were most frequent Virginia
was the colony which stood first in resisting the
parliamentary usurpations of Great Britain; it
was the first also in espousing, by public act,
the resolution of independence. In Virginia,
nevertheless, if I have not been misinformed,
elections under the former government were
septennial. This particular example is brought
into view, not as a proof of any peculiar merit,
for the priority in those instances was probably
accidental; and still less of any advantage
inВ septennialВ elections, for when compared with
a greater frequency they are inadmissible; but
merely as a proof, and I conceive it to be a very
substantial proof, that the liberties of the people
can be in no danger fromВ biennialВ elections.
The conclusion resulting from these examples
will be not a little strengthened by recollecting
three circumstances. The first is, that the federal
legislature will possess a part only of that
supreme legislative authority which is vested
completely in the British Parliament; and which,
with a few exceptions, was exercised by the
colonial assemblies and the Irish legislature. It is
a received and well-founded maxim, that where
no other circumstances affect the case, the
greater the power is, the shorter ought to be its
duration; and, conversely, the smaller the power,
the more safely may its duration be protracted.
In the second place, it has, on another occasion,
been shown that the federal legislature will not
only be restrained by its dependence on its
people, as other legislative bodies are, but that
it will be, moreover, watched and controlled
by the several collateral legislatures, which
other legislative bodies are not. And in the third
place, no comparison can be made between
the means that will be possessed by the more
permanent branches of the federal government
for seducing, if they should be disposed to
seduce, the House of Representatives from their
duty to the people, and the means of influence
over the popular branch possessed by the other
branches of the government above cited. With
less power, therefore, to abuse, the federal
representatives can be less tempted on one
side, and will be doubly watched on the other.
PUBLIUS
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Handout D: Centinel No. 1, Excerpts
October 5, 1787
To the Freemen of Pennsylvania.
Friends, Countrymen and Fellow Citizens,
The late convention have submitted to
your consideration a plan of a new federal
government — The subject is highly interesting
to your future welfare — Whether it be
calculated to promote the great ends of civil
society, viz. the happiness and prosperity of the
community; it behooves you well to consider,
uninfluenced by the authority of names.
Instead of that frenzy of enthusiasm, that has
actuated the citizens of Philadelphia, in their
approbation of the proposed plan, before it was
possible that it could be the result of a rational
investigation into its principles; it ought to be
dispassionately and deliberately examined,
and its own intrinsic merit the only criterion
of your patronage. If ever free and unbiased
discussion was proper or necessary, it is on
such an occasion. — All the blessings of liberty
and the dearest privileges of freemen, are
now at stake and dependent on your present
conduct. Those who are competent to the task
of developing the principles of government,
ought to be encouraged to come forward, and
thereby the better enable the people to make a
proper judgment; for the science of government
is so abstruse, that few are able to judge
for themselves: without such assistance the
people are too apt to yield an implicit assent
to the opinions of those characters, whose
abilities are held in the highest esteem, and
to those in whose integrity and patriotism they
can confide: not considering that the love of
domination is generally in proportion to talents,
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abilities, and superior acquirements; and that
the men of the greatest purity of intention may
be made instruments of despotism in the hands
of the artful and designing. If it were not for
the stability and attachment which time and
habit gives to forms of government it would be
in the power of the enlightened and aspiring
few, if they should combine, at any time to
destroy the best establishments, and even
make the people the instruments of their own
subjugation…
Suppose a government could be formed
and supported on such principles, would it
answer the great purposes of civil society;
if the administrators of every government
are actuated by views of private interest and
ambition, how is the welfare and happiness of
the community to be the result of such jarring
adverse interests?
Therefore, as different orders in government
will not produce the good of the whole, we
must recur to other principles. I believe it will
be found that the form of government, which
holds those entrusted with power, in the
greatest responsibility to their constituents,
the best calculated for freemen. A republican,
or free government, can only exist where the
body of the people are virtuous, and where
property is pretty equally divided; in such a
government the people are the sovereign and
their sense or opinion is the criterion of every
public measure; for when this ceases to be the
case, the nature of the government is changed,
and an aristocracy, monarchy or despotism
will rise on its ruin. The highest responsibility
is to be attained, in a simple structure of
government, for the great body of the people
never steadily attend to the operations of
government, and for want of due information
are liable to be imposed on — If you complicate
the plan by various orders, the people will
be perplexed and divided in their sentiments
about the source of abuses or misconduct,
some will impute it to the senate, others to the
house of representatives, and so on, that the
interposition of the people may be rendered
imperfect or perhaps wholly abortive. But if,
imitating the constitution of Pennsylvania, you
vest all the legislative power in one body of
men (separating the executive and judicial)
elected for a short period, and necessarily
excluded by rotation from permanency, and
guarded from precipitancy and surprise by
delays imposed on its proceedings, you will
create the most perfect responsibility for
then, whenever the people feel a grievance
they cannot mistake the authors, and will
apply the remedy with certainty and effect,
discarding them at the next election. This tie
of responsibility will obviate all the dangers
apprehended from a single legislature, and will
the best secure the rights of the people…
I shall previously consider the extent of the
powers intended to be vested in Congress,
before I examine the construction of the
general government.
It will not be controverted that the legislative is
the highest delegated power in government,
and that all others are subordinate to it. The
celebrated Montesquieu establishes it as a
maxim, that legislation necessarily follows the
power of taxation. By sect. 8, of the first article of
the proposed plan of government, “the Congress
are to have power to lay and collect taxes,
duties, imposts and excises, to pay the debts and
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provide for the common defense and general
welfare of the United States, but all duties,
imposts and excises, shall be uniform throughout
the United States.” Now what can be more
comprehensive than these words; not content
by other sections of this plan, to grant all the
great executive powers of a confederation, and
a STANDING ARMY IN TIME OF PEACE, that
grand engine of oppression, and moreover the
absolute control over the commerce of the United
States and all external objects of revenue, such
as unlimited imposts upon imports, etc. — they
are to be vested with every species of internal
taxation; — whatever taxes, duties and excises
that they may deem requisite for the general
welfare, may be imposed on the citizens of
these states, levied by the officers of Congress,
distributed through every district in America; and
the collection would be enforced by the standing
army, however grievous or improper they may
be. The Congress may construe every purpose
for which the state legislatures now lay taxes,
to be for the general welfare, and thereby seize
upon every object of revenue.
The judicial power by 1st sect. of article 3
“shall extend to all cases, in law and equity,
arising under this constitution, the laws of the
United States, and treaties made or which
shall be made under their authority; to all
cases affecting ambassadors, other public
ministers and consuls; to all cases of admiralty
and maritime jurisdiction, to controversies to
which the United States shall be a party, to
controversies between two or more states,
between a state and citizens of another state,
between citizens of different states, between
citizens of the same state claiming lands under
grants of different states, and between a state,
or the citizens thereof, and foreign states,
citizens or subjects.”
The judicial power to be vested in one Supreme
Court, and in such Inferior Courts as the
Congress may from time to time ordain and
establish.
The objects of jurisdiction recited above, are
so numerous, and the shades of distinction
between civil causes are oftentimes so slight,
that it is more than probable that the state
judicatories would be wholly superseded; for in
contests about jurisdiction, the federal court, as
the most powerful, would ever prevail…
To put the omnipotence of Congress over
the state government and judicatories out
of all doubt, the 6th article ordains that “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, and the judges
in every state shall be bound thereby, anything
in the constitution or laws of any state to the
contrary notwithstanding.”
By these sections the all-prevailing power
of taxation, and such extensive legislative
and judicial powers are vested in the general
government, as must in their operation,
necessarily absorb the state legislatures
and judicatories; and that such was in the
contemplation of the framers of it, will appear
from the provision made for such event, in
another part of it; (but that, fearful of alarming
the people by so great an innovation, they
have suffered the forms of the separate
governments to remain, as a blind.) By sect.
4th of the 1st article, “the times, places and
manner of holding elections for senators
and representatives, shall be prescribed in
each state by the legislature thereof; but the
Congress may at any time, by law, make or
В© The Bill of Rights Institute
alter such regulations, except as to the place of
choosing senators.” The plain construction of
which is, that when the state legislatures drop
out of sight, from the necessary operation this
government, then Congress are to provide for
the election and appointment of representatives
and senators.
If the foregoing be a just comment — if the
United States are to be melted down into one
empire, it becomes you to consider, whether
such a government, however constructed,
would be eligible in so extended a territory;
and whether it would be practicable, consistent
with freedom? It is the opinion of the greatest
writers, that a very extensive country cannot
be governed on democratical principles, on
any other plan, than a confederation of a
number of small republics, possessing all the
powers of internal government, but united in
the management of their foreign and general
concerns.
It would not be difficult to prove, that anything
short of despotism, could not bind so great
a country under one government; and that
whatever plan you might, at the first setting out,
establish, it would issue in a despotism.
If one general government could be instituted
and maintained on principles of freedom, it
would not be so competent to attend to the
various local concerns and wants, of every
particular district, as well as the peculiar
governments, who are nearer the scene, and
possessed of superior means of information,
besides, if the business of the whole union is to
be managed by one government, there would
not be time. Do we not already see, that the
inhabitants in a number of larger states, who
are remote from the seat of government, are
loudly complaining of the inconveniencies and
disadvantages they are subjected to on this
account, and that, to enjoy the comforts of local
government, they are separating into smaller
divisions.
Having taken a review of the powers, I shall
now examine the construction of the proposed
general government.
…The house of representatives, are on the
part of the people to balance the senate,
who I suppose will be composed of the
better sort, the well born, etc. The number
of the representatives (being only one for
every 30,000 inhabitants) appears to be
too few, either to communicate the requisite
information, of the wants, local circumstances
and sentiments of so extensive an empire, or
to prevent corruption and undue influence, in
the exercise of such great powers; the term
for which they are to be chosen, too long to
preserve a due dependence and accountability
to their constituents; and the mode and places
of their election not sufficiently ascertained,
for as Congress have the control over both,
they may govern the choice, by ordering the
representatives of a whole state, to be elected
in one place, and that too may be the most
inconvenient.
The senate, the great efficient body in this
plan of government, is constituted on the most
unequal principles. The smallest state in the
union has equal weight with the great states of
Virginia Massachusetts, or Pennsylvania — The
Senate, besides its legislative functions, has
a very considerable share in the Executive;
none of the principal appointments to office
can be made without its advice and consent.
The term and mode of its appointment, will
lead to permanency; the members are chosen
В© The Bill of Rights Institute
for six years, the mode is under the control
of Congress, and as there is no exclusion by
rotation, they may be continued for life, which,
from their extensive means of influence, would
follow of course. The President, who would be a
mere pageant of state, unless he coincides with
the views of the Senate, would either become
the head of the aristocratic junta in that body,
or its minion, besides, their influence being the
most predominant, could the best secure his reelection to office. And from his power of granting
pardons, he might skreen from punishment the
most treasonable attempts on liberties of the
people, when instigated by the Senate.
From this investigation into the organization of
this government, it appears that it is devoid of
all responsibility or accountability to the great
body of the people, and that so far from being
a regular balanced government, it would be in
practice a permanent ARISTOCRACY.
The framers of it, actuated by the true spirit of
such a government, which ever abominates
and suppresses all free enquiry and discussion,
have made no provision for the liberty of
the press that grand palladium of freedom,
and scourge of tyrants, but observed a total
silence on that head. It is the opinion of some
great writers, that if the liberty of the press, by
an institution of religion, or otherwise, could
be rendered sacred, even in Turkey, that
despotism would fly before it. And it is worthy of
remark, that there is no declaration of personal
rights, premised in most free constitutions;
and that trial by jury in civil cases is taken
away; for what other construction can be put
on the following, viz. Article m. Sect. 2d. “In
all cases affecting ambassadors, other public
ministers and consuls, and those in which a
State shall be party, the Supreme Court shall
have original jurisdiction. In all the other cases
above mentioned, the Supreme Court shall
have appellate jurisdiction, both as to law and
fact?” It would be a novelty in jurisprudence, as
well as evidently improper to allow an appeal
from the verdict of a jury, on the matter of fact;
therefore, it implies and allows of a dismission
of the jury in civil cases, and especially when it
is considered, that jury trial in criminal cases is
expressly stipulated for, but not in civil cases.
But our situation is represented to be so critically
dreadful that, however reprehensible and
exceptionable the proposed plan of government
may be, there is no alternative, between the
adoption of it and absolute ruin. — My fellow
citizens, things are not at that crisis, it is the
argument of tyrants; the present distracted state
of Europe secures us from injury on that quarter,
and as to domestic dissensions, we have not so
much to fear from them, as to precipitate us into
this form of government, without it is a safe and
a proper one. For remember, of all possible evils
that of despotism is the worst and the most to be
dreaded.
Besides, it cannot be supposed, that the
first essay on so difficult a subject, is so well
digested, as it ought to be, — if toe proposed
plan, after a mature deliberation, should meet
the approbation of the respective States, the
matter will end, but if it should be found to be
fraught with dangers and inconveniencies, a
future general Convention being in possession
of the objections, will be the better enabled to
plan a suitable government.
В© The Bill of Rights Institute
Who’s here so base, that would a bondsman
be?
If any, speak; for him have I offended.
Who’s here so vile, that will not love his
country?
If any, speak; for him have I offended.
[Julius Caesar, Act 3, Scene 2 ]
Questions to Consider
1. According to Publius, what are the reasons
for structuring the legislative branch in
the manner in which it is structured in the
Constitution? According to Centinel, what
problems are there with these structures?
2. Why are the terms and elections of the
Members of Congress and Senators
important to Publius and Centinel? How do
their opinions compare?
3. What is the role of the legislative branch in
checking and balancing other branches?
4. How does the system of separation of
powers and checks and balances promote
or not promote freedom in the United States
according to the authors?
5. Based on your knowledge of history and
current events, have these issues regarding
separation of powers continued? Explain.
Separation of Powers and Checks and
Balances Module Answer Key
Lesson One: Why Does Our
Government Have Separated Powers?
Lesson
Handout C: Viewing Guide for
Constitutional Principle Video:
Separation of Powers
While You Watch:
1. The powers are separated so that one
branch does not gain too much power and
become tyrannical.
2. The legislative branch has the power to
make laws.
3. The executive has the power to direct
relationships with other nations and ensure
that laws are executed.
4. The judicial branch has the power to try
cases under Constitution
5. The Framers believed that the legislative
branch should be the most powerful
because it was the most directly represents
the people.
6. Government needs to be able to have
enough power to protect the rights of the
people and make sure the people don’t
infringe upon the rights of other people, but
it also needs to make sure to control itself
so that it doesn’t infringe on the rights of the
people.
After you watch:
1. Separation of powers means that the
national government’s powers are divided
between the three branches, the legislative,
executive, and judicial, so that no one
branch can become too powerful.
2. In order to protect the rights of the people,
one branch of government shouldn’t be
able to have all of the power. Separation of
powers makes sure that each branch has
checks on the other branches to make sure
one doesn’t overstep its powers.
3. The Founders wanted to frustrate
government action because too much
government power can endanger the rights
of the people. Accept reasoned answers.
4. James Madison’s plan for “ambition to
counteract ambition” is reflected in our
system of separated powers because no
one branch’s ambition can overstep its
bounds. Each branch has its own powers
and can check the powers and ambitions of
the other branches.
5. The Founders understood that people
were not perfect. They would not always
choose the best leaders or make the best
decisions. The best way to protect against
infringement of the rights of the people in a
government is to separate the government’s
power and allow it to check itself.
Extended Reflection:
Accept reasoned answers.
В© The Bill of Rights Institute
Lesson Two: Federalist No. 52, Separation of Powers, and Checks and
Balances
Handout B: Separation of Powers and Checks and Balances in the Constitution
Organizer
Powers
Checks
and
Balances
Legislative Branch
Executive Branch
Judicial Branch
The House of Representatives and Senate
have the power to lay and collect taxes,
pay debts, provide for common defense
and welfare, borrow money, regulate
commerce, establish naturalization rules,
coin money, fix weights and measures,
provide for punishment of counterfeiters,
establish post offices and post roads,
secure rights to authors’ and inventors’
writings and discoveries, constitute
tribunals inferior to Supreme Court, define
and punish piracies, declare war, raise
and support armies, provide and maintain
a navy, make rules for regulating the
land and naval forces, provide for calling
forth the militia, provide for organizing,
arming, and disciplining the militia,
exercise exclusive legislation over the
District, make laws necessary and proper
to carrying these powers into execution,
declare punishment of treason, propose
amendments to the Constitution.
The president has the
power to be commander in
chief of the army, navy, and
militia;grant pardons and
reprieves; make treaties and
appoint ambassadors, public
officials, and judges with
the advice and consent of
the Senate; give Congress
information of the state of the
union; convene both Houses;
adjourn both Houses, receive
ambassadors; take care
that the laws be faithfully
executed; commission
officers of the United States.
The power of the Supreme
Court shall extend to all cases
arising under the Constitution,
the laws of the United
States, treaties, admiralty
and maritime jurisdiction,
controversies in which the
United States is a party,
controversies between two
or more states and between
citizens of different states,
between states or citizens and
a foreign state or citizens, and
appellate jurisdiction.
Senate must advise and consent to
appointments made by the president,
including Supreme Court justices, Senate
must advise and consent to treaties
made by the president, Senate will try all
impeachments and can convict with a twothirds majority of those present, Congress
can override a president’s veto.
The president can veto
or sign legislation passed
by legislature, execute
legislation passed by
legislature, appoint Supreme
Court justices (with the
advice and consent of the
Senate), appoint other
officers (with the advice
and consent of the Senate),
make treaties (with the
advice and consent of the
Senate), commander in chief
of the armed forces provided
for and maintained by the
legislature.
The Supreme Court can judge
cases based on the laws of
the United States passed by
the legislature and treaties
made by the president and the
Senate. The Chief Justice will
preside over an impeachment
trial of the president.
В© The Bill of Rights Institute
Handout C: Federalist No. 52 and Handout D: Centinel No. 1, Excerpts
1. Publius believed that it was essential that
the House of Representatives branch
should have immediate dependence on
and sympathy with the people through
elections. Centinel believed that the House
of Representatives would have too few
members to truly represent the people
because they would not understand the
local wants and circumstances. The people
would not be able to prevent corruption in
the House because they would be so far
removed from their representatives.
2. Publius believed that the two year term will
secure that the representatives understand
the needs of the people they represent.
Centinel believed that the term of the
House members was too long to ensure
that they depend on and are accountable to
their constituents.
3. The legislative branch can override the
president’s veto on laws, the Senate can
advise and consent to appointments and
treaties made by the executive branch, and
the Senate can hold impeachment trials for
the president.
В© The Bill of Rights Institute
4. Publius believed that the separation of
powers would promote freedom because
no one branch could gain too much power.
Each branch would have checks on the
other branches to ensure that one branch
didn’t overstep its bounds or infringe upon
liberties. Centinel was concerned that
Congress was given too power relating
to taxation and the number of cases
the Supreme Court could hear were too
numerous. He feared that these extensive
grants of power would end up absorbing
the states entirely especially considering
the Supremacy Clause. Regarding
separation of powers, Centinel feared that
the president would become a minion or
dictator of the Senate and that the Senate
itself would lead to an American aristocracy.
5. Accept reasoned answers.
FOUNDING PRINCIPLES COURSE Federalism Module
Founding Principle Module Introduction:
Federalism
Federalism: The people delegate certain powers to the national government in the Constitution. All
those powers not delegated to the national government remain with the states and the people.
Lesson One: What Is a Federal
Republic?
�
Overview
The constitutional principle of federalism holds
that the people delegate certain powers to
the national government in the Constitution.
All those powers not delegated to the national
government remain with the states and the
people. For the Founders, the principle of
federalism was a means of protecting liberty
by limiting and dividing government power.
After the failure of the Articles of Confederation,
many people realized the need for a stronger
central government. The delegates to the
Constitutional Convention were tasked with
the difficult duty of crafting a government that
appropriately distributed the power between the
national government and states.
�
�
�
�
120 minutes
�
�
�
�
Students will understand the purposes of a
federal system
Students will evaluate the Framers’
reasoning for dividing power between the
states and federal government
Students will understand how federalism
is addressed in Article I, Section 8 and the
Tenth Amendment of the Constitution.
В© The Bill of Rights Institute
Students will analyze current events in the
context of federalism.
Students will evaluate issues and determine
if they would be best dealt with at the
national level, state level, or neither.
Students will analyze Supreme Court cases
regarding federalism.
North Carolina Clarifying Objectives
Recommended Time
Objectives
Students will evaluate Federalist and
Anti-Federalist views of the powersharing relationship between the national
government and the states.
�
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.2.6: Evaluate the authority federal,
state and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.2.7: Analyze contemporary issues
and governmental responses at the local,
state, and national levels in terms of how
FOUNDING PRINCIPLES COURSE they promote the public interest and/or
general welfare (e.g., taxes, immigration,
naturalization, civil rights, economic
development, annexation, redistricting,
zoning, national security, health care, etc.).
�
AH1.H.1.2: Use Historical Comprehension
to:
пЃ®
пЃ®
�
пЃ®
пЃ®
пЃ®
пЃ®
Identify issues and problems in the past.
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
пЃ®
пЃ®
пЃ®
Formulate historical questions.
Obtain historical data from a variety of
sources.
Lesson Two: Federalism and the
Commerce Clause
Overview
The battle between the power of the federal
government and state governments has been
an ongoing struggle during the course of our
nation’s history. Congress’s power to regulate
interstate commerce, granted in the Commerce
Clause, is often invoked as justification for laws
regulating a wide variety of economic activities.
How much power does the Commerce Clause
allow the federal government to have over the
states? These questions have been addressed
by the Supreme Court, but with varying results.
With a couple of notable exceptions, the
Court’s decisions after the New Deal resulted
in expansion of the federal government’s power
under the Commerce Clause.
Recommended Time
80 minutes
Objectives
�
�
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
�
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
�
пЃ®
�
Differentiate between historical facts and
historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ®
�
Reconstruct the literal meaning of a
historical passage.
Federalism Module
В© The Bill of Rights Institute
Students will evaluate arguments for and
against federalism as a principle.
Students will analyze the Founders’
intentions in giving Congress the power to
“regulate Commerce with foreign Nations,
and among the several States, and with the
Indian tribes.”
Students will evaluate the ways power
granted to Congress in the Commerce
Clause has been interpreted by the
Supreme Court through American history.
Students will analyze whether federalism
helps or harms freedom.
FOUNDING PRINCIPLES COURSE Federalism Module
North Carolina Clarifying Objectives
�
�
�
CE.C&G.2.6: Evaluate the authority federal,
state and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.2.7: Analyze contemporary issues
and governmental responses at the local,
state, and national levels in terms of how
they promote the public interest and/or
general welfare (e.g., taxes, immigration,
naturalization, civil rights, economic
development, annexation, redistricting,
zoning, national security, health care, etc.).
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ®
пЃ®
пЃ®
пЃ®
пЃ®
�
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
пЃ®
пЃ®
пЃ®
пЃ®
�
Identify issues and problems in the past.
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
Assessment
Overview
Students will explain the definition of
federalism, the constitutional provisions
regarding federalism, the powers held by
the states and federal government, and
controversial issues related to federalism.
Recommended Time
60 minutes
Assignment
�
Have students write an essay on the
following prompt:
пЃ®
A foreign exchange student from a nation
without a system of federalism has
moved to your community. She missed
the lessons the class just completed on
federalism. Write an essay explaining
federalism to your new classmate. Make
sure to include the following:
п‚ў
п‚ў
Formulate historical questions.
Obtain historical data from a variety of
sources.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
В© The Bill of Rights Institute
п‚ў
п‚ў
A definition of federalism.
Parts of the Constitution that explain
the ways that powers are divided.
Examples of powers held only by the
federal government, only by the state
governments, or by both governments.
An explanation of one controversial
issue that has been debated regarding
federalism. Explain both sides of the
argument – for greater federal power
and for greater state power.
FOUNDING PRINCIPLES COURSE Federalism Module
Rubric:
Category
1
2
3
4
A definition of
federalism
No definition
or incorrect
definition
Definition is
given, but
is difficult to
understand.
Correct
definition.
Correct,
specific
definition.
Parts of the
Constitution that
explain the ways
that powers are
divided.
No examples
from the
Constitution
are given or
explained.
One example
from the
Constitution
are given and
explained.
Two examples
from the
Constitution
are given and
explained.
Three or more
examples
from the
Constitution
are given and
explained.
Examples of powers
held only by the
federal government,
only by the state
governments, or by
both governments.
Examples are
not given or
explained.
Examples of
one type of
power is given
and explains,
but two types
of power are
not listed or
explained.
Examples
of two of
the types of
powers are
given and
explained,
but one type
of power is
not listed or
explained.
Examples of
all three types
of powers are
given and
explained.
An explanation of
one controversial
issue that has been
debated regarding
federalism. Explain
both sides of
the argument
– for greater federal
power and for
greater state power.
No
controversial
issue is listed
nor are the
arguments
explained.
A controversial
issue is
listed, but the
arguments are
not explained.
A controversial
issue is listed,
but only one
side of the
argument is
explained.
A
controversial
issue is listed
and both
sides of the
argument are
explained.
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American history meet the
requirements of the Founding Principles Act.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Federalism Module
Federalism Module:
What is a Federal Republic? Lesson
Overview
The constitutional principle of federalism holds that the people delegate certain powers to the
national government in the Constitution. All those powers not delegated to the national government
remain with the states and the people. For the Founders, the principle of federalism was a means
of protecting liberty by limiting and dividing government power. After the failure of the Articles of
Confederation, many people realized the need for a stronger central government. The delegates
to the Constitutional Convention were tasked with the difficult duty of crafting a government that
appropriately distributed the power between the national government and states.
Recommended Time
North Carolina Clarifying Objectives
120 minutes
�
Objectives
�
�
�
�
�
�
�
Students will understand the purposes of a
federal system
Students will evaluate the Framers’
reasoning for dividing power between the
states and federal government
Students will understand how federalism
is addressed in Article I, Sections 8, 9,
and 10 and the Tenth Amendment of the
Constitution.
Students will evaluate Federalist and
Anti-Federalist views of the powersharing relationship between the national
government and the states.
Students will analyze current events in the
context of federalism. .
Students will evaluate issues and determine
if they would be best dealt with at the
national level, state level, or neither.
Students will analyze Supreme Court cases
regarding federalism.
В© The Bill of Rights Institute
�
�
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
CE.C&G.2.6: Evaluate the authority federal,
state and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.2.7: Analyze contemporary issues
and governmental responses at the local,
state, and national levels in terms of how
they promote the public interest and/or
general welfare (e.g., taxes, immigration,
naturalization, civil rights, economic
development, annexation, redistricting,
zoning, national security, health care, etc.).
FOUNDING PRINCIPLES COURSE �
AH1.H.1.2: Use Historical Comprehension
to:
пЃ®
пЃ®
�
пЃ®
пЃ®
пЃ®
пЃ®
�
пЃ®
пЃ®
пЃ®
�
Handout C: James Madison and Federalism
- Excerpts from Federalist No. 39
Differentiate between historical facts and
historical interpretations.
Handout D: Federalism Venn Diagram
Handout E: Article I, Sections 8, 9, 10, and the
Tenth Amendment of the Constitution
Identify issues and problems in the past.
Handout F: State Power – Criticisms and
Responses
Consider multiple perspectives of various
peoples in the past.
Lesson Plan
Analyze cause-and-effect relationships
and multiple causation.
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
пЃ®
Handout B: Patrick Henry at the Virginia
Ratifying Convention
Reconstruct the literal meaning of a
historical passage.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ®
Federalism Module
Formulate historical questions.
Obtain historical data from a variety of
sources.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
Materials
Handout A: Background Essay - What Is a
Federal Republic?
В© The Bill of Rights Institute
Background/Homework [20 Minutes]
A. In order to gauge students’ knowledge
of federalism, have each student write a
journal passage explaining how the state
and federal government divide power. Ask
them to think about which powers of the
federal government has, the powers of the
state governments have, and powers held
by both levels of government. Students will
revisit this journal entry later in the lesson.
B. Next, have students read Handout A:
Background Essay - What Is a Federal
Republic? Instruct students to answer the
questions at the end of the essay.
Warm-Up [30 minutes]
A. Distribute one copy of the Patrick Henry
quotation on Handout B: Patrick Henry at
the Virginia Ratifying Convention to each
student. Ask one student to stand up and
read the quotation aloud. Lead the class in
a discussion about Henry’s concerns based
on the questions on Handout B.
B. Divide students into small groups and
distribute Handout C: James Madison
and Federalism - Excerpts from
Federalist No. 39. After students have
FOUNDING PRINCIPLES COURSE completed it, lead the class in a discussion
of the questions. See the answer key for
suggested responses.
Activity [60 minutes]
A. Have students complete Handout D:
Federalism Venn Diagram individually.
Federalism Module
question from Handout A: To what extent
should the national government make laws
concerning the controversial topics listed
below? Use the Constitution to frame your
response (additional resources are listed
below each topic).
D. Have students continue to work in their
groups using Handout E to identify
additional ways in which the people’s rights
are protected by limits on the powers of
Congress.
a. After students have conducted their
research, bring the conversation back to
Patrick Henry’s concern at the Virginia
Ratifying convention. Taking the history
of the United States and these current
issues into account, has the principle
of federalism endured? Was Patrick
Henry right? Explain. Are these issues
best left to individual states, or should
the national government be involved?
Ask students to take a position on
whether the federal government or state
governments would best handle their
topic and prepare to defend the chosen
position in a debate.
Wrap-Up [10 minutes]
b. Health insurance
B. Divide students into groups of four and
have them read Handout E: Article
I, Sections 8, 9, 10, and the Tenth
Amendment of the Constitution.
C. While in groups, students should identify
any similarities or differences between what
they wrote on Handout D and the powers
listed in the Constitution on Handout E.
A. As a class, briefly discuss their results and
observations about the similarities and
differences between their Venn diagrams
and the Constitution.
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How did the Founders view the size
of the federal government and its
relationship with the state governments?
How did the Founders dictate limits on
government power to protect the rights of
the people?
How do the answers on the Venn
diagram compare to their journal entries
at the beginning of the lesson?
Homework and Extension Options
A. As a large group, ask students to share
their responses to the final critical thinking
В© The Bill of Rights Institute
i. http://www.hhs.gov/healthcare/
insurance/index.html
ii. https://www.healthcare.gov/
iii. http://www.oyez.org/cases/20102019/2011/2011_11_400
iv. http://www.law.harvard.edu/
academics/clinical/lsc/documents/
SCOTUS_ACA_Summary_6-2912.pdf
c. Education standards
i. http://www.corestandards.org/
ii. http://www2.ed.gov/nclb/landing.
jhtml
iii. http://www.edweek.org/ew/issues/
no-child-left-behind/
FOUNDING PRINCIPLES COURSE iv. http://www2.ed.gov/programs/
racetothetop/index.html
v. http://www.whitehouse.gov/thepress-office/fact-sheet-race-top
d. Gay marriage
i. http://www.supremecourt.gov/
opinions/12pdf/12-307_6j37.pdf
ii. http://www.supremecourt.gov/
opinions/12pdf/12-144_8ok0.pdf
e. Medical and recreational marijuana
i. http://www.oyez.org/cases/20002009/2004/2004_03_1454/
ii. http://www.oyez.org/cases/20002009/2000/2000_00_151
iii. http://www.colorado.gov/cs/Satellite?
blobcol=urldata&blobheader=applica
tion/pdf&blobkey=id&blobtable=Mun
goBlobs&blobwhere=125183406471
9&ssbinary=true
iv. http://sos.wa.gov/_assets/elections/
initiatives/i502.pdf
f. Assisted suicide
i. http://www.oyez.org/cases/19901999/1996/1996_96_110
ii. http://www.oyez.org/cases/20002009/2005/2005_04_623
B. Have students complete Handout F: State
Power – Criticisms and Responses as a
bridge between this lesson and lesson two
of this unit.
В© The Bill of Rights Institute
Federalism Module
C. Using the local newspaper, television
coverage, or an online news source, have
students identify a current federalism issue
and write an abstract for one of the reports
they find. The abstract should address
the “reporter questions”: who, what, why,
when, where, results, and analysis. In the
“analysis” section, have students explain
why the issue is an example of federalism,
and how they think it should be resolved.
D. Have students identify a portion(s) of Article
I, Sections 8, 9, and the Tenth Amendment
that they would like to revise to clearly
specify the duties of Congress, powers
denied to Congress, and/or the powers
of the states. After revising the relevant
portions, answer the following questions:
a. Why did you make the changes?
b. How would the proposed changes affect
the country today?
c. How do your revisions reflect the
principles of federalism and limited
government?
Handout A: Background Essay - What is
a Federal Republic?
The Founders were always wary of government
power. They wrote the Constitution to make
it a strong government, but limit its authority.
One way they did this was to create a federal
republic. The national government was given
specific powers, and others remained with
the states or the people. These two separate
powers – the national government and state
governments – could co-exist because the
national government was given only those
powers specified in the Constitution. Among
these were the powers to regulate commerce
between states, to coin money, to raise armies,
and to collect taxes. This type of political
system is defined as federalism. The states
have their laws but they are also subject to the
laws of the federal government. This separation
gives the states greater autonomy to create
laws based off the will of their citizenry.
Another way the principle of federalism was
applied in the Constitution was in the structure
of the U.S. Congress. The people would be
represented in the House of Representatives.
States would be equally represented in the
Senate, with each state legislature selecting
two Senators. In this manner, both the states
and the people would have a say in federal
laws.
The Federalist/Anti-Federalist Debate
The two major political groups at the time of
the Founding were the Federalists and the
Anti-Federalists. They disagreed about the new
distribution of power. Many Anti-Federalists had
been happy with the Articles of Confederation
В© The Bill of Rights Institute
and feared that the new central government
created by the Constitution would take over the
states. They believed that the states should
retain more power, and they argued that the
new Constitution should not be ratified. They
were especially alarmed by vague phrases
in the listing of Congress’s powers, such as
“necessary and proper,” and “general welfare.”
They worried these words might be interpreted
as broad grants of power to allow the federal
government to interfere with the powers of the
states and the liberties of the people. They
also believed the people needed a bill of rights
to protect themselves against the national
government.
Federalists favored the Constitution as written.
They supported a strong but constrained
central government and weaker state
governments. They believed that state powers
and individuals’ rights were secure under the
Constitution because the central government’s
role was limited by the list of enumerated
powers (Article I, Section 8), as well as by
the list of denied powers (Article I, Section 9).
The Constitution did not list powers of states
because it was assumed the states kept
all their powers given to them by their state
constitutions except those given to the federal
government and those powers denied to states
in Article I, Section 10.
The Tenth Amendment
The Federalists eventually won the debate
when the Constitution was ratified (approved)
in 1789 by the required number of states. But
calls for a bill of rights continued. In fact, eight
states submitted lists of proposed amendments
along with their ratifications. The one
amendment proposed by all was the principle
now contained in the Tenth Amendment.
The Tenth Amendment states: “The powers
not delegated to the United States by the
Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to
the people.” The Founders included the Tenth
Amendment to support the constitutionally
limited nature of the federal government. It
highlights the fact that the states and the
people keep all powers not given by the
Constitution to the federal government. If a
power is not given to the federal government, it
remains with the states or the people.
Changes to Our Federal System
The Seventeenth Amendment further changed
the balance of federalism when it was added
to the Constitution in 1913. The Seventeenth
Amendment provided for the direct election of
Senators to U.S. Congress by the people of
each state. State governments would no longer
be represented in one house of Congress.
Supporters of this change believed it resulted
in a more democratic society. Critics argue that
the change resulted in more federal laws that
infringe on the powers of states or that carry
mandates with no funding attached.
The Fourteenth Amendment, ratified after the
Civil War in 1868, dramatically altered the
federal republic created by the Founders. By
limiting the types of laws states could pass, the
amendment struck a blow to state sovereignty.
Beginning about sixty years after it was passed,
the Supreme Court would begin using the
Fourteenth Amendment to apply Bill of Rights
В© The Bill of Rights Institute
limits to the states. Until the 1920s, the Bill of
Rights only applied to the federal government.
This expansion of the Fourteenth Amendment
became the cornerstone for equal protection
under federal law for all individuals in the
states, too.
Legislation also altered the balance of power
between the national government and the
states. After the Civil War, a majority of
states enacted Jim Crow laws requiring racial
segregation. By September 1949, only fifteen
U.S. states had no segregation laws. The
U.S. armed forces and much of the federal
government were also segregated. In response
to state segregation laws, many argued for
increased federal power. They pointed to the
legal inequality and violation of natural rights
caused by such laws. They claimed a strong
federal government could correct such wrongs.
They made the case that states often commit
wrongful acts, and that the federal government
is an important force to correct these wrongs.
Others disagreed, pointing out that the federal
government did nothing to protect citizens’
rights over decades of segregation. The 1954
Supreme Court case of Brown v. Board of
Education marked the beginning of the Civil
Rights Movement toward equal treatment in
public life and the end of the Jim Crow period.
Later federal legislation intended to correct
civil rights violations by states included the
Civil Rights Act (1964) and the Voting Rights
Act (1965). These laws and the enforcement of
them came almost a century after the passage
of the Fourteenth Amendment.
The Debate over Federalism
Debates over federalism often turn to other
topics. Critics of federalism argue that a strong
national government is needed to address
unequal treatment by states. A patchwork of
laws across the country makes it difficult for
individuals and families who travel or move.
Supporters of federalism argue that state power
allows the states to make policies that meet the
needs of their citizens, or to adopt successful
policies from other states. What is acceptable
for the people in some states—casinos and
gambling, for example—may not be welcome in
others. Finally, some supporters of federalism
ask: why would the people elected to federal
offices do any better at protecting rights than
people in states offices would? The answer
to these questions, they say, is not to trust
certain leaders more than others, but to hold all
officials accountable to the requirements set by
the Constitution.
The Founders believed, like many political
philosophers, that the desire for power was
a natural human tendency. This power could
be used to do bad things as easily as it could
be used to try to good things. The American
federal system was designed to prevent abuses
of power and protect freedom. Neither a very
strong federal system nor complete state
independence has been shown to be perfect.
Finding the right balance of power has been
vital to liberty—and controversial—throughout
our history.
В© The Bill of Rights Institute
Comprehension and Critical Thinking
Questions
1. What is the principle of federalism?
2. What does the Tenth Amendment state?
3. How did the Fourteenth and Seventeenth
Amendments alter the system of federalism
originally established in the Constitution?
a. To what extent should the national
government make laws concerning
the controversial topics listed
below? Use the following sources
from the Constitution to frame your
response: Article I, Section 8; Article
I, Section 9, Article IV; Article VI, the
Tenth Amendment, the Fourteenth
Amendment.
i. Health insurance
ii. Education standards
iii. Marriage and family law
iv. Medical and recreational marijuana
v. Assisted suicide
Handout B: Patrick Henry at
the Virginia Ratifying Convention
“And here I would make this inquiry of those worthy characters who composed a part of the late
federal Convention. I am sure they were fully impressed with the necessity of forming a great
consolidated government, instead of a confederation. That this is a consolidated government is
demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the
highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to
say,В We, the people?В My political curiosity, exclusive of my anxious solicitude for the public welfare,
leads me to ask, Who authorized them to speak the language of,В We, the people,В instead of,В We,
the states?В States are the characteristics and the soul of a confederation. If the states be not the
agents of this compact, it must be one great, consolidated, national government, of the people of all
the states!”-Patrick Henry, Virginia Ratifying Convention, June 4, 1788
Comprehension Questions
1. According to Henry, what are the dangers of a consolidated government?
2. Why does Henry want the states to retain power?
3. Why do you think the Framers of the Constitution used the phrase “We, the People” instead of
“We, the states”?
В© The Bill of Rights Institute
Handout C: James Madison and Federalism Excerpts from Federalist No. 39
Directions: Using three high lighter pens, read
the following passages from Federalist No. 39
and discuss the questions below. Numbers in
brackets show paragraph numbers from the
complete essay, and all italics are Madison’s.
Note vocabulary tips (for underlined terms) at
the end.
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Where Madison uses the term, “national,”
think “We the People,” and highlight those
aspects blue.
Where he uses the term “federal,” think,
“We the States,” and highlight those aspects
yellow.
Where he says we have both federal and
national influences, highlight in green.
these will be represented on the principle of
equality in the Senate, as they now are in the
existing Congress. So far the government is
federal, not national.
4. Government Power [14]
The idea of a national government involves
in it, not only an authority over the individual
citizens, but an indefinite supremacy over
all persons and things, so far as they
are objects of lawful government…[T]he
proposed government cannot be deemed a
national one; since its jurisdiction extends
to certain enumerated objects only, and
leaves to the several States a residuary and
inviolablesovereignty over all other objects…
1. Ratification of the Constitution [10]
5. Amending the Constitution [15]
[R]atification is to be given by the people, not
as individuals composing one entire nation,
but as composing the distinct and independent
States to which they respectively belong…The
act, therefore, establishing the constitution, will
not be a national, but a federal act.
[On] the authority by which amendments are
to be made, we find it neither wholly national
nor wholly federal. Were it wholly national, the
supreme and ultimate authority would reside
in the majority of the people of the Union…
Were it wholly federal on the other hand, the
concurrence of each State in the Union would
be essential to every alteration that would be
binding on
2. The House of Representatives [12]
[The House of Representatives] will derive
its powers from the people of America; and
the people will be represented in the same
proportion, and on the same principle, as they
are in the legislature of a particular state. So far
the government is national, not federal.
3. The Senate [12]
[The Senate] will derive its powers from the
states, as political and co-equal societies; and
В© The Bill of Rights Institute
all…In requiring more than a majority, and
particularly in computing the proportion by
States, not by citizens, it departs from the
national and advances towards the federal
character; in rendering the concurrence of less
than the whole number of States sufficient, it
loses again the federal and partakes of the
national character…
6. Summary [16]
Vocabulary
The proposed Constitution…[is] neither a
national nor a federal Constitution, but a
composition of both. In its foundation it is
federal, not national; in the sources from which
the ordinary powers of the government are
drawn, it is partly federal and partly national; in
the operation of these powers, it is national, not
federal; in the extent of them, again it is federal,
not national; and, finally, in the authoritative
mode of introducing amendments, it is neither
wholly federal nor wholly national.
Ratification: official approval
Immediately: directly
Derive: to receive from a specific source
Indefinite: difficult to determine
Supremacy: having the highest authority or
power
Enumerated: listed
Residuary: remaining
Inviolable: sacred; permanent
Sovereignty: independence
Reside: originate in
Concurrence: agreement
Alteration: change; amendment
Comprehension and Discussion
Questions
1. According to Madison, did the Constitution
provide for a nation of people or a nation of
states—or both? Explain.
2. Discuss – to what extent was Alexander
Hamilton on target in this statement: “This
balance between the National and State
governments ought to be dwelt on with
peculiar attention, as it is of the utmost
importance. It forms a double security to the
people…Indeed, they will both be prevented
from overpassing their constitutional limits
by a certain rivalship, which will ever subsist
between them. “ (1788)
В© The Bill of Rights Institute
Handout D:
Federalism Venn Diagram
Handout D: Federalism Venn Diagram
Directions: After reading Handouts A, B, andC, use the spaces below to show what powers
Directions: After reading Handouts A, B, and C, use the spaces below to show what powers you
you think should belong to each level of government.
think should belong to each level of government.
Federal
Government
Powers
.
Shared Powers
State Powers
1.
1.
1.
2.
2.
2.
3.
3.
3.
How do your answers on the Venn diagram compare to the journal entry you wrote at the beginning
of the lesson?
How do your answers on the Venn diagram compare to the journal entry you wrote at the
beginning of the lesson?
В© The Bill of Rights Institute
Handout E: Article I, Sections 8, 9, 10, and
the Tenth Amendment of the Constitution
Directions: Work with your group to complete the following.
1. Compare the ways you divided power between state and federal levels with the system the
Founders provided in the Constitution.
2. What reasoning can you see behind the way the Founders divided power? Why were certain
powers given to the federal government, but not others? Why were the powers not delegated
reserved to the states and the people?
3. Identify and underline ways in which the people’s rights are protected by limits on the powers of
Congress. Be prepared to explain the significance of each point that you identify.
4. Write your own title for each section on the line provided.
Article I, Section 8.
Your title: _____________________________________
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare of the United States; but all duties,
imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian
tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies
throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights
And measures;
To provide for the punishment of counterfeiting the securities and current coin of the United
States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the
law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures onland
and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer
В© The Bill of Rights Institute
Term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrection sand
repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of
them as may be employed in the service of the United States, reserving to the states respectively,
the appointment of the officers, and the authority of training the militia according to the discipline
prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding tenmiles
square) as may, by cession of particular states, and the acceptance of Congress, become the seat
of the government of the United States, and to exercise like authority over all places purchased
by the consent of the legislature of the state in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other needful buildings;—And
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.
Article I, Section 9
Your title: ____________________________________
The migration or importation of such persons as any of the states now existing shall think proper
to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and
eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each
person.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto Law shall be passed.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration
herein before directed to be taken.
No tax or duty shall be laid on articles exported from any state.
No preference shall be given by any regulation of commerce or revenue to the ports of one state
over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or
pay duties in another.
No money shall be drawn from the treasury, but in consequence of appropriations made by law;
and a regular statement and account of receipts and expenditures of all public money shall be
published from time to time.
No title of nobility shall be granted by the United States: and no person holding any office of profit
or trust under them, shall, without the consent of the Congress, accept of any present, emolument,
office, or title, of any kind whatever, from any king, prince, or foreign state.
В© The Bill of Rights Institute
Article I, Section 10
Your title: _____________________________________
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal;
coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of
debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or
grant any title of nobility.
No state shall, without the consent of the Congress, lay any imposts or duties on imports or
exports, except what may be absolutely necessary for executing its inspection laws: and the net
produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the
treasury of the United States; and all such laws shall be subject to the revision and control of the
Congress.
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships
of war in time of peace, enter into any agreement or compact with another state, or with a
foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not
admit of delay.
Tenth Amendment
Your title: ____________________________________
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people.
В© The Bill of Rights Institute
Handout F: State Power – Criticisms and
Responses
Directions: Read the essay and be ready to
discuss the questions that follow.
One major criticism of strong state power comes
from the legacy of slavery. After the Civil War
and Reconstruction, enslaved people had been
freed, but they were not equal under the law.
A majority of states enacted Jim Crow laws
(after a black character in popular variety shows
of the time). These laws outlawed interracial
marriage, and they legalized segregation and
different treatment based on race. By 1914,
every Southern state and many Northern ones
had passed laws that preserved two separate
societies: one for whites, and one for blacks
and “non-whites.” Blacks could not use white
facilities like restrooms, restaurants, or parks,
or even be buried in the same cemeteries as
whites. In the case of Plessy v. Ferguson (1896),
the Supreme Court upheld separate but equal
accommodations. By September 1949, only
fifteen U.S. states had no segregation laws.
The National Association for the Advancement
of Colored People (NAACP) launched a strategy
of challenging these laws in court. The cases
eventually made their way to the Supreme
Court. The first major legal blow to Jim Crow
laws came with the landmark 1954 decision of
Brown v. Board of Education. In this case, the
Supreme Court found that segregation violated
the equal protection clause of the Fourteenth
Amendment. This eventually meant that the
states would have to follow the directions of the
federal government and integrate their schools.
The 1954 Brown case marked the beginning
of the Civil Rights Movement toward equal
В© The Bill of Rights Institute
treatment in public life and the end of the states’
use of federalism to make Jim Crow laws. Later
federal legislation intended to overcome the
use of federalism to violate civil rights by states
included the Civil Rights Act (1964) and the
Voting Rights Act (1965). These laws and the
enforcement of them came almost a century
after the passage of the Fourteenth Amendment.
Responses to Jim Crow
In response to Jim Crow laws, many argued for
increased federal power. They pointed to the
legal inequality and violation of natural rights
caused by such laws, and that a strong federal
government could correct such wrongs. They
made the case that states often commit wrongful
acts, and that the federal government is an
important force to correct these wrongs.
Others disagreed, pointing out that national
governments have no better record of protecting
rights than states do. The federal government
did not effectively protect citizens’ rights over
centuries of slavery and segregation. If more
power were given to the federal government
in the name of protecting rights, what would
happen if officials then used that greater power
to do bad things over the whole nation?
Critical Thinking Questions
1. How does the legacy of slavery relate to the
principle of federalism?
2. What are some arguments for and against
increased federal power in response to
state violations of rights?
3. Which arguments are most persuasive?
FOUNDING PRINCIPLES COURSE Federalism Module
Federalism Module:
What is the Commerce Clause? Lesson
Overview
The battle between the power of the federal government and state governments has been an
ongoing struggle during the course of our nation’s history. Congress’s power to regulate interstate
commerce, granted in the Commerce Clause, is often invoked as justification for laws regulating a
wide variety of economic activities. How much power does the Commerce Clause allow the federal
government to have over the states? These questions have been addressed by the Supreme
Court, but with varying results. With a couple of notable exceptions, the Court’s decisions after the
New Deal resulted in expansion of the federal government’s power under the Commerce Clause.
Recommended Time
North Carolina Clarifying Objectives
80 minutes
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Objectives
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Students will evaluate arguments for and
against federalism as a principle.
Students will analyze the Founders’
intentions in giving Congress the power to
“regulate Commerce with foreign Nations,
and among the several States, and with the
Indian tribes.”
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Students will evaluate the ways power
granted to Congress in the Commerce
Clause has been interpreted by the
Supreme Court through American history.
Students will analyze whether federalism
helps or harms freedom.
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CE.C&G.2.6: Evaluate the authority federal,
state and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.2.7: Analyze contemporary issues
and governmental responses at the local,
state, and national levels in terms of how
they promote the public interest and/or
general welfare (e.g., taxes, immigration,
naturalization, civil rights, economic
development, annexation, redistricting,
zoning, national security, health care, etc.).
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
Materials
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Handout A: Background Essay - What Is the
Purpose of the Commerce Clause?
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Handout B: Federalism: For or Against?
Handout C: Commerce Clause Timeline
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В© The Bill of Rights Institute
Identify issues and problems in the past.
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
Evaluate competing historical narratives
and debates among historians.
FOUNDING PRINCIPLES COURSE пЃ®
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AH1.H.1.4: Use Historical Research to:
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Evaluate the influence of the past on
contemporary issues.
Formulate historical questions.
Obtain historical data from a variety of
sources.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
Lesson Plan
Background/Homework [10 Minutes]
A. Have students read Handout A:
Background Essay - How Has the
Supreme Court Interpreted the
Commerce Clause? and answer the
questions.
Warm-Up [20 minutes]
A. Post the Commerce Clause where the class
can read it:
“The Congress shall have the power…
To regulate commerce with foreign
nations, and among the several states,
and with the Indian tribes.”
B. Ask students to reflect in their journals how
the Commerce Clause relates to federalism.
В© The Bill of Rights Institute
Federalism Module
Activity I [20 minutes]
Discuss each section of Handout A with
the students. Ask them to think about how
federalism was involved with each program or
Supreme Court case discussed in the essay.
Here is a summary of each topic:
a. New Deal: Federal powers increased when
the Supreme Court started to find New Deal
programs constitutional because they were
related to interstate commerce.
b. Lopez: Congress believed that gun-free
school zones were constitutional because
schools prepared people for the business
world and were, therefore, part of interstate
commerce. The Supreme Court stated that
the law only dealt with gun possession and
not commerce.
c. Morrison: The Supreme Court overturned
parts of the Violence Against Women Act
because it said that Congress did not have
the power to allow rape victims to sue their
attackers for money damages under the
Commerce Clause.
d. Raich: The Court ruled that Congress
could ban medical marijuana nationwide
and override state laws because states
that allowed individuals to grow medical
marijuana would affect supply and demand
or commerce.
e. The Affordable Care Act: The Supreme
Court ruled that the federal government did
not have the power to force Americans to
buy health insurance under the Commerce
Clause, but that they did have the power
to tax. The Chief Justice asserted that the
penalty or fine that would have to be paid for
not getting insurance could be considered a
tax and was within Congress’ power.
FOUNDING PRINCIPLES COURSE Federalism Module
Activity II [30 minutes]
Wrap-Up [20 minutes]
Divide students into groups of three or four and
have them complete Handout B: Federalism:
For or Against?
Have students complete Handout C:
Commerce Clause Timeline.
a. Students will read the nine arguments listed
and place them in categories – argues
in favor of federalism, argues against
federalism, both for and against federalism.
a. Using background knowledge and
observation of current events, have
students predict what direction Commerce
Clause rulings are likely to take in the near
future.
b. After students have completed Handout
B, go over the answers as a large group.
Discuss any instances where there may
have been conflicting opinions. Have
students defend their answers:
i. What kinds of variables are likely to
affect these rulings?
1. What arguments of their own did
students write in the chart?
b. Have students think about their journal
entries from the beginning of the lesson.
Would they change anything about their
understanding of the Commerce Clause in
relation to federalism?
2. Which arguments are most convincing?
3. Recalling their analysis of Federalist No.
39, how much power did the Founders
believe the national government would
have to act on individuals?
4. What trade-offs are involved in giving
the federal government increased power
over states and individuals?
В© The Bill of Rights Institute
ii. How do these issues reflect the
principles of federalism and limited
government?
Handout A: Background Essay - How Has the
Supreme Court Interpreted the Commerce
Clause?
When the Founders drafted a new Constitution
in Philadelphia in 1787, they set out to
address the economic problems of the 1780s
by creating a national government that would
have the authority to impose taxes, regulate
foreign trade, and, most importantly, create
a common commercial policy between the
various state governments. In the Federalist
Papers, James Madison and Alexander
Hamilton argued forcefully that the federal
government needed these expanded powers
in order to create a large free trading area
within the continental United States and to
regulate conflicting state economic interests
for the common good. They also argued for a
strong commercial policy to open up markets
for foreign trade.
The reach of the Commerce Clause, found in
Article I, Section 8 of the Constitution, is an
important focus of debate about federal power.
It states, “Congress shall have the power...
to regulate commerce with foreign Nations,
and among the several States, and with the
Indian Tribes.” The first Supreme Court case
on this part of the Constitution was Gibbons
v. Ogden in 1824. The Court held that the
Commerce Clause granted Congress “the
power to regulate; that is, to prescribe the
rule by which commerce is to be governed.”
That power extended to interstate commerce:
“Comprehensive as the word �among’ is,
it may very properly be restricted to that
commerce which concerns more States than
one.”
В© The Bill of Rights Institute
One of the first twentieth century cases to deal
with the Commerce Clause was Hammer v.
Dagenhartin 1918. The Court ruled that the
federal government could not outlaw child labor
in manufacturing activities where the process
took place in one state and did not cross state
lines. The Justices might have agreed that it
was a worthy goal to protect young children
from long work hours. However, the Court did
not agree that the federal government had
the power to legislate on this issue. The Court
found that the Tenth Amendment left this power
to the states and that Congress could not make
rules related to the production of goods.
The New Deal
Midway through the twentieth century,
Congress started using the Commerce Clause
as the grounds for the enactment of many new
types of laws to regulate not merely commerce,
but the conditions of economic and social life.
President Franklin Delano Roosevelt proposed,
and Congress passed, many new programs
called the “New Deal.” One program was Social
Security, which gave pensions and aid to the
disabled and elderly through taxes paid by
younger citizens. Other programs regulated
the stock market. At first, the Supreme Court
ruled in several cases that Congress had
no authority to enact such laws. In 1937,
President Roosevelt spoke out against the
Supreme Court for its actions on the New Deal
legislation. He wanted to be able to add one
new justice for every current justice over the
age of 70. Most experts now view his idea as a
political plan to help his legislation. Some of the
political conflict eased when one justice began
voting to support the New Deal. Another justice
retired and was replaced by a supporter of the
New Deal programs.
The new majority found the increased federal
power of New Deal legislation constitutional.
The Supreme Court was going in a new
direction. Congress was now able to create
laws regulating, banning, and supporting a
wide range of activities, and it did. Laws would
be upheld as long as the Court was convinced
that the regulated activities had a close and
substantial relation to interstate commerce.
Federal power expanded dramatically for the
next fifty years.
Lopez, Morrison, and Raich
After 59 years of upholding legislation, the
Court ruled that Congress had gone too far
under the Commerce Clause in 1995. In United
States v. Lopez (1995), the Court struck down
a federal law that created gun-free school
zones. Congress had argued that because
schools prepared people for the business
world, there was a connection between
schools and interstate commerce. Therefore,
Congress argued, it could regulate guns in
school. However, the Court ruled that the law
dealt only with possession of arms and not
interstate commerce. The Court appeared to be
continuing in this direction when it overturned
parts of the Violence Against Women Act in
the 2000 case of U.S. v. Morrison. The Court
held that the Commerce Clause did not give
Congress the power to allow rape victims
to sue their attackers in federal court for
money damages. In Gonzalez v. Raich(2005),
however, the Court did not continue this
В© The Bill of Rights Institute
trend. It ruled Congress could ban marijuana
throughout the nation even when an individual
state had laws allowing individuals to grow
their own marijuana for medicinal purposes.
The Court reasoned that the policy within that
single state would affect supply and demand,
and therefore Congress’s ban was sufficiently
related to interstate commerce.
The Affordable Care Act
In NFIB v. Sebelius, decided in June 2012,
the Supreme Court upheld most of the 2010
Affordable Care Act (ACA). The case involved
a lawsuit by 26 state governments and
multiple private plaintiffs, including the National
Federation of Independent Business – the
nation’s largest small business organization.
They challenged the constitutionality of two
key parts of the ACA: the individual health
insurance mandate, which required most
Americans to purchase government-approved
health insurance by 2014, and a provision
forcing state governments to greatly expand the
Medicaid health care program for the poor, or
risk losing all their existing Medicaid funds.
The federal government claimed that the
individual mandate was authorized by the
Commerce Clause, the Necessary and Proper
Clause, and the Tax Clause – which gives
Congress the power to impose taxes. In a 5-4
decision, the Supreme Court rejected the first
two arguments, but upheld the mandate on
the third. In other words, the Court ruled that
the Commerce Clause did not give Congress
the power to force Americans to buy health
insurance, but the mandate was a constitutional
by virtue of its taxing power. Though the text of
the ACA refers to a “penalty” and not a “tax,”
Chief Justice Roberts reasoned that it was
not a real penalty because it was “not a legal
command to buy insurance.” It was merely a
requirement that violators pay a fine. He also
argued that the Court had a duty to construe
the law as a tax, if such an interpretation were
at all plausible, so as to give Congress the
benefit of the doubt and avoid ruling that one of
its laws was unconstitutional.
Comprehension and Critical Thinking
Questions
1. What was the purpose of the Commerce
Clause?
2. Why is Gibbons v. Ogden (1824) an
important federalism case?
3. Describe the shift that began around the
time of the New Deal in the Supreme
Court’s interpretation of the Commerce
Clause.
4. Do you think the Founders thought
the Commerce Clause would be used
to expand the power of the federal
government? Why or why not?
5. What trade-offs are involved in giving the
federal government increased power over
states and individuals?
В© The Bill of Rights Institute
Handout B: Federalism – For or Against?
Read the following arguments. Then classify them by putting them in the correct column. Finally, fill
in the chart with at least one additional argument of your own on each side.
Argues in favor of federalism
Both/Neither?
Argues against federalism
1. Throughout U.S. history, states have a long history of violating the rights of their citizens.
2. Throughout world history, national governments have a long history of violating the rights of
their citizens.
3. State governments are closer to the people and can enact laws that allow the people there to
govern themselves.
4. A patchwork of laws creates complications for people who move from state to state.
5. The division of power in the Constitution enables the national government to perform necessary
functions while leaving the several states free to control their own affairs.
6. If some states have education policies that promote better outcomes, it leaves people in other
states with a disadvantage.
7. Individuals are free to move to states where laws better reflect their preferences.
8. After the Civil War, every Southern state, as well as many in the North, enacted Jim Crow laws.
9. The federal government did very little to stop every Southern state, as well as many in the
North, from enacting Jim Crow laws.
В© The Bill of Rights Institute
Handout C:
Commerce Clause Timeline
Directions
Place a dot and the corresponding number for each of the events listed in the boxes below in the
correct position on the graph. Then draw a line to connect the dots to indicate the historical trend
trend
respectoftothe
the national
power ofgovernment
the national government
based
on the Commerce
Clause
with respect
to with
the power
based on the
Commerce
Clause rulings.
rulings.
High
National
Government’s
Power
Low
1920
1930
1940
1950
1960
1970
1980
1. Hammer v. Dagenhart, 1918
1. Hammer v. Dagenhart, 1918
2. Early New Deal Legislation
2. Early New Deal Legislation
3. New Deal Legislation after 1937
3. New Deal Legislation after 1937
4. Post New Deal Legislation regulating a wide range of activities
5. U.S. v. Lopez, 1995
6. U.S. v. Morrsion, 2000
7. Gonzalez v. Raich, 2005
8. NFIB v. Sebelius, 2012
В© The Bill of Rights Institute
1990
2000
2010
2020
Federalism Module Answer Keys
Lesson 1: What is A Federal
Republic? Answer Keys
Handout A: Background Essay - What
is a Federal Republic?
1. Federalism is the principle that people
delegate certain powers to the national
government in the Constitution. All those
powers not delegated to the national
government remain with the states and the
people.
2. All those powers not delegated to the
national government remain with the states
and the people.
3. The Fourteenth Amendment limited the
types of laws states could pass. Eventually,
the Supreme Court began applying Bill of
Rights limitations to state governments
via the Fourteenth Amendment. The
Seventeenth Amendment ended state
representation in the U.S. Congress.
4. Accept reasoned answers.
Handout B: Patrick Henry at the
Virginia Ratifying Convention
1. Henry was concerned that the states would
lose power to the national government.
2. Henry believed the states would better
protect the people.
3. Answers will vary but should address the
fact that the Framers wanted the national
government to have greater power than it
did under the Articles of Confederation, and
the power of a national government came
from the citizens of the entire country not
just from the states.
В© The Bill of Rights Institute
Handout C: James Madison and
Federalism - Excerpts from Federalist
No. 39
1. According to Madison, the Constitution
provided for a nation that is both a nation of
people and a nation of states.
a. Yellow: Its foundation is federal.
b. Green: The sources of its powers are
partly federal and partly national.
c. Blue: In its operation it is national.
2. Accept reasoned answers.
Handout D: Article I, Sections
8, 9, and Amendment Ten of the
Constitution
1. The government has specific delegated
powers per the Constitution whereas the
states and the people retain all of the
powers not delegated or limited by the
Constitution.
2. The decision to divide power among
(federalism) and within (checks and
balances) several governments positioned
the American people to enjoy the benefits
of a large republic (e.g., strong defense
against foreign encroachments, national
system of commerce, etc.) while still
retaining significant control over their dayto-day affairs within the states.
3. Accept reasoned answers.
4. Suggested titles:
a. Article I, Section 8: “Powers given to
Congress” or “The things Congress can
do”
b. Article I, Section 9: “Some things
Congress cannot do” or “Some powers
denied to Congress”
c. Article I, Section 10: “The things states
cannot do” or “The powers denied to
states”
d. Tenth Amendment: “The states and the
people have the powers not given to the
government”
Handout E: Federalism Venn Diagram
Sample answers:
Federal Government Powers: Borrowing
money; regulating commerce with foreign
nations, the states, and Indian tribes,
establishing laws on naturalization, coining
money, declaring war
Shared Powers: Collect and lay taxes
State Powers:Powers not delegated to
the national government or restricted in the
Constitution
Handout F: State Power – Criticisms
and Responses
1. States were able to determine their
own laws regarding slavery prior to the
Thirteenth Amendment. After the Civil
War, many states passed Jim Crow laws.
Originally, the Supreme Court held that
separate but equal accommodations for
African Americans were constitutional,
but they later overturned that ruling
stating that separation was unequal and
unconstitutional.
2. An argument for increased federal power
is that it would keep states from infringing
В© The Bill of Rights Institute
upon individual rights, and an argument
against increased federal power is that
the national government is no better at
protecting rights than states.
3. Accept reasoned answers.
Lesson 2: What is the Commerce
Clause? Answer Keys
Handout A: Background Essay – How
Has the Supreme Court Interpreted
the Commerce Clause?
1. The Commerce Clause was intended create
a common commercial policy between the
various state governments, encouraging
free trade within the continental U.S. and
with foreign markets.
2. The case of Gibbons v. Ogden established
that the national government had the power
to make rules for commerce between more
than one state.
3. The Court began interpreting the
Commerce Clause as permitting national
regulation of wide variety of activities that
had not previously been understood as
“interstate commerce.”
Handout B: Federalism – For or
Against?
1. Argues against federalism
2. Argues in favor of federalism
3. Argues in favor of federalism
4. Argues against federalism
5. Argues in favor of federalism
6. Argues against federalism
7. Both/neither
8. Both/neither
9. Both/neither
Handout C: Commerce Clause
Timeline
Accept reasoned answers; a sample timeline
might look like the diagram below.
Depending on student analysis of the Affordable Care Act case, federal power to regulate activities
on the basis of the Commerce Clause may have stayed the same, while power to regulate through
taxing power may have increased.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Rule of Law Module
Rule of Law Module Introduction
Rule of law means that government and citizens all abide by the same laws regardless of political
power. Those laws respect individual rights, are transparently enacted, justly applied, and stable.
Lesson One: What is the Rule of
Law?
North Carolina Clarifying Objectives
�
Overview
Rule of law means that government and
citizens all abide by the same laws regardless
of political power. Those laws respect individual
rights, are transparently enacted, justly applied,
and stable. This unit will explore how citizens’
commitment to the rule of law is crucial for
self-government. The process by which the
Constitution was framed and ratified reflects the
rule of law, and many of its protections ensure
that the United States is, as John Adams
explained, an empire of laws and not of men.
Key primary sources include the Constitution
and the Bill of Rights.
�
Recommended Time
100 minutes
�
Objectives
�
�
�
�
Students will analyze the history of rule of
law.
Students will analyze the Founders’
influences in creating the American republic
with rule of law.
Students will define and apply the concept
rule of law.
Students will evaluate how rule of law
protects individual rights.
В© The Bill of Rights Institute
�
CE.C&G.1.1: Explain how the tensions over
power and authority led America’s founding
fathers to develop a constitutional democracy
(e.g., mercantilism, salutary neglect, taxation
and representation, boycott and protest,
independence, American Revolution, Articles
of Confederation, Ben Franklin, George
Washington, John Adams, Sons of Liberty,
etc.)
CE.C&G.1.2: Explain how the Enlightenment
and other contributing theories impacted the
writing of the Declaration of Independence,
the US Constitution and the Bill of Rights
to help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and ideals
underlying American democracy in terms of
how they promote freedom (e.g., separation
of powers, rule of law, limited government,
democracy, consent of the governed, individual
rights –life, liberty, pursuit of happiness, selfgovernment, representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those rights
have been upheld by democratic government
in the United States.
FOUNDING PRINCIPLES COURSE �
�
CE.C&G.4.2: Explain how the development
of America’s national identity derived from
principles in the Declaration of Independence,
US Constitution and Bill of Rights (e.g.,
inalienable rights, consent of the governed,
popular sovereignty, religious and political
freedom, separation of powers, etc.).
AH1.H.1.2: Use Historical Comprehension to:
пЃ®
пЃ®
пЃ®
�
пЃ®
пЃ®
пЃ®
пЃ®
Analyze visual, literary and musical
sources.
Identify issues and problems in the past.
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
пЃ®
пЃ®
пЃ®
�
Differentiate between historical facts and
historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ®
�
Reconstruct the literal meaning of a
historical passage.
Obtain historical data from a variety of
sources.
Rule of Law Module
�
Lesson Two: Rule of Law in the
Constitution
Overview
In these activities, students will investigate the
principle of rule of law by analyzing excerpts from
Madison’s Federalist No. 62, and by studying
the amendments to the Constitution that provide
for due process in criminal matters. They will
then review landmark Supreme Court cases to
understand how rule of law has been carried out in
constitutional controversies in U.S. history. Finally,
they will research current rule of law issues and
complete a journal entry on their findings.
Recommended Time
120 minutes
Objectives
�
�
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
В© The Bill of Rights Institute
AH1.H.4.1: Analyze the political issues and
conflicts that impacted the United States
through Reconstruction and the compromises
that resulted (e.g., American Revolution,
Constitutional Convention, Bill of Rights,
development of political parties, nullification,
slavery, states’ rights, Civil War).
�
�
Students will analyze the importance of the
rule of law in a constitutional republic.
Students will evaluate the reasons why
criminal and civil procedure protections came
to be included in the Bill of Rights.
Students will identify ways in which these
protections serve to ensure liberty. Students
will analyze and articulate specific protections
found in the Fourth, Fifth, Sixth, Seventh, and
Eighth Amendments.
Students will evaluate Supreme Court rulings
concerning the Eighth Amendment’s Cruel
and Unusual Punishment Clause.
FOUNDING PRINCIPLES COURSE Rule of Law Module
North Carolina Standards and
Objectives
�
�
�
�
�
CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.)
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
В© The Bill of Rights Institute
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans with
Disabilities Act, equal opportunity legislation).
�
�
�
�
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).
AH1.H.1.2: Use Historical Comprehension to:
пЃ® Reconstruct the literal meaning of a
historical passage.
пЃ® Differentiate between historical facts and
historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ®
пЃ®
пЃ®
�
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
AH1.H.1.4: Use Historical Research to:
пЃ®
пЃ®
пЃ®
�
Identify issues and problems in the past.
Formulate historical questions.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
FOUNDING PRINCIPLES COURSE Rule of Law Module
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
�
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
Recommended Time
60 minutes
Assignment
Compose an essay in your journal
addressing the following criteria:
�
пЃ®
пЃ®
Assessment
пЃ®
Overview
Students will be asked to define rule of law,
historic examples of rule of law, examples of
rule of law in the Constitution and Bill of Rights,
and a reflection on how rule of law promotes
liberty in an essay.
пЃ®
Define rule of law.
Give historical examples of the
importance of rule of law.
Give examples and explain how rule of
law is applied in the Constitution and the
Bill of Rights.
Explain how rule of law is essential to
promoting individual rights and liberties.
Rubric
Category
Define rule of law.
Give historical examples
of the importance of rule of
law.
Give examples and explain
how rule of law is applied in
the Constitution and the Bill
of Rights.
Explain how rule of law
is essential to promoting
individual rights and
liberties.
1
2
3
4
No definition or
incorrect definition
Definition is given,
but is difficult to
understand.
Correct definition.
Correct, specific
definition.
No examples from
history are given or
explained.
One example from
history are given
and explained.
Two examples from
history are given
and explained.
Three or more
examples from
history are given
and explained.
No examples from
the Constitution or
Bill of Rights are
given or explained.
One example from
the Constitution
or Bill of Rights
are given and
explained.
Two examples from
the Constitution
or Bill of Rights
are given and
explained.
Three or more
examples from the
Constitution or Bill
of Rights are given
and explained.
No explanation
of how rule of law
promotes rights and
liberties.
A weak explanation
of how rule of law
promotes rights and
liberties is given.
Explanation of how
rule of law promotes
rights and liberties
is given, but more
detail is needed.
Clear and specific
explanation of how
rule of law promotes
rights and liberties.
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American
History meet the requirements of the Founding Principles Act.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Rule of Law Module
Rule of Law Module: What is the Rule of Law?
Lesson
Overview
Rule of law means that government and citizens all abide by the same laws regardless of political
power. Those laws respect individual rights, are transparently enacted, are justly applied, and
are stable. This unit will explore how citizens’ commitment to the rule of law is crucial for selfgovernment. The process by which the Constitution was framed and ratified reflects the rule of law,
and many of its protections ensure that the United States is, as John Adams explained, an empire
of laws and not of men. Key primary sources include the Constitution and the Bill of Rights.
Recommended Time
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.)
100 minutes
Objectives
�
Students will:
�
�
Understand the definition and application of
the concept rule of law.
Understand how rule of law protects
individual rights.
Materials
Handout A: Explaining the Founding Essay
�
Handout B: Rule of Law, or Law of Rulers?
Handout C: Viewing Guide for Constitutional
Principle: Rule of Law
Handout D: Madison’s Notes of Debates in the
Federal Convention of 1787
Handout E: Sample Meme
North Carolina Clarifying Objectives
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
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CE.C&G.1.2: Explain how the Enlightenment
and other contributing theories impacted the
writing of the Declaration of Independence,
the US Constitution and the Bill of Rights
to help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal opportunity,
equal protection under the law, diversity,
patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
FOUNDING PRINCIPLES COURSE from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).
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AH1.H.1.2: Use Historical Comprehension
to:
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AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
Materials
Differentiate between historical facts and
historical interpretations.
Handout B: Rule of Law, or Law of Rulers?
Analyze visual, literary and musical
sources.
Handout A: Explaining the Founding Essay
Handout C: Viewing Guide for Constitutional
Principle: Rule of Law
Handout D: Excerpts from Madison’s Notes of
Debates in the Federal Convention of 1787
Identify issues and problems in the past.
Handout E: Sample Meme
Consider multiple perspectives of various
peoples in the past.
Lesson Plan
Analyze cause-and-effect relationships
and multiple causation.
Background/Homework [30 minutes]
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
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Reconstruct the literal meaning of a
historical passage.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
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Rule of Law Module
Obtain historical data from a variety of
sources.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
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A. Have students read Handout A:
Explaining the Founding Essay and
answer the questions that follow the essay
in their journals.
B. Discuss the history of rule of law as a class
to give students more background on the
term.
Warm-up [15 minutes]
A. Before class, cut out scenario strips on
Handout B: Rule of Law, or Law of
Rulers?
B. Give eight students a slip and ask them to
be ready to read it aloud when you call on
them.
C. Have students take out a sheet of paper
and number it from 1-8. Then call on
students in turn to read their scenarios
FOUNDING PRINCIPLES COURSE aloud. After each scenario, have students
tally on their paper whether the situation
described reflects the principle of rule of
law.
Activity I [20 minutes]
A. Have students watch the short video
“Constitutional Principle: The Rule of Law.”
The video can be accessed here: http://
billofrightsinstitute.org/resources/studentresources/constitutional-principles-videos/.
Before, during, and after watching, they
should complete Handout C: Viewing
Guide for Constitutional Principle: Rule
of Law.
Activity II [20 minutes]
A. Have students read Handout D: Excerpts
from Madison’s Notes of Debates in the
Federal Convention of 1787.
B. Hold a class discussion about the ways that
the delegates discussed rule of law in the
Constitutional Convention. Ask students to
consider:
a. Which of the items discussed were
added to the final Constitution? Why?
b. Which were not? Why?
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Rule of Law Module
Wrap-up: Journaling [15 minutes]
A. Student should write a journal entry where
they explain what the nation and world
might be like without rule of law.
Assessment
A. Have students use national and
international news stories to design a meme
such as “Rule of Law FTW” or “Rule of Law
#Fail”. They should select their own images
from history, write their own captions, and
share them in class. See Handout E for a
sample meme and directions.
Handout A: Explaining the Founding Essay
In 1760, what was to become of the United
States of America which consisted of a small
group of colonies strung out along the eastern
seaboard of North America. Although they
had experienced significant economic and
demographic growth in the eighteenth century
and had just helped Britain defeat France
and take control of most of North America,
they remained politically and economically
dependent upon London. Yet, in the next
twenty-five years, they would challenge
the political control of Britain, declare
independence, wage a bloody war, and lay
the foundations for a trans-continental, federal
republican state. In these crucial years, the
colonies would be led by a new generation
of politicians, men who combined practical
political skills with a firm grasp of political
ideas. In order to better understand these
extraordinary events, the Founders who made
them possible, and the new Constitution that
they created, it is necessary first to understand
the political ideas that influenced colonial
Americans in the crucial years before the
Revolution.
The Common Law and the Rightsof
Englishmen
The political theory of the American colonists
in the seventeenth and eighteenth centuries
was deeply influenced by English common
law and its idea of rights. In a guide for
religious dissenters written in the late
seventeenth century, William Penn, the
founder of Pennsylvania, offered one the best
contemporary summaries of this common-law
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view of rights. According to Penn, all English
men had three central rights or privileges by
common law: those of life, liberty, and property.
For Penn, these English rights meant that every
subject was “to be freed in Person & Estate
from Arbitrary Violence and Oppression.” In the
widely used language of the day, these rights
of “Liberty and Property” were an Englishman’s
“Birthright.”
In Penn’s view, the English system of
government preserved liberty and limited
arbitrary power by allowing the subjects to
express their consent to the laws that bound
them through two institutions: Parliaments and
Juries. ”By the first,” Penn argued, “the subject
has a share by his chosen Representatives
in the Legislative (or law-making) Power.”
Penn felt that the granting of consent through
Parliament was important because it ensured
that “no new Laws bind the People of England,
but such as are by common consent agreed
on in that great Council.” In Penn’s view, juries
were an equally important means of limiting
arbitrary power. By serving onjuries, Penn
argued, every freeman “has a share in the
Executive part of the Law, no Causes being
tried, nor any man adjudged to loose [sic]
Life, member or Estate, but upon the Verdict
of his Peers or Equals.” For Penn, “These
two grand Pillars of English Liberty” were
“the Fundamental vital Priviledges [sic]” of
Englishmen.
The other aspect of their government that
seventeenth-century Englishmen celebrated
was a system that was ruled by laws and
not by men. As Penn rather colorfully put it:
“In France, and other Nations, the meer [sic]
Will of the Prince is Law, his Word takes off
any mans Head, imposeth Taxes, or seizes
a mans Estate, when, how and as often as
he lists; and if one be accussed [sic], or but
so much as suspected of any Crime, he may
either presently Execute him, or banish, or
Imprison him at pleasure.” By contrast, “In
England,” Penn argued, “the Law is both the
measure and the bound of every Subject’s
Duty and Allegiance, each man having a
fixed Fundamental-Right born with him, as
to Freedom of his Person and Property in
his Estate, which he cannot be deprived of,
but either by his Consent, or some Crime, for
which the Law has impos’d such a penalty or
forfeiture.”
threatened their subjects’ rights. In response,
many Englishmen drew on the common law
to argue that all political power, even that of
a monarch, should be limited by law. Colonial
Americans in the eighteenth century viewed
the defeat of the Stuarts and the subsequent
triumph of Parliament (which was seen as
the representative of subjects’ rights) in the
Glorious Revolution of 1688 as a key moment
in English history. They believed that it had
enshrined in England’s unwritten constitution
the rule of law and the sanctity of subjects’
rights. This awareness of English history
instilled in the Founders a strong fear of
arbitrary power and a consequent desire to
create a constitutional form of government
that limited the possibility of rulers violating the
fundamental liberties of the people.
This common law view of politics understood
political power as fundamentally limited by
Englishmen’s rights and privileges. As a result,
it held that English kings were bound to rule
according to known laws and by respecting
the inherent rights of their subjects. It also
enshrined the concept of consent as the major
means to the end of protecting these rights.
According to Penn and his contemporaries,
this system of government—protecting as it did
the “unparallel’d Priviledge [sic] of liberty and
Property”—had made the English nation “more
free and happy than any other People in the
World.”
The seriousness with which the colonists
took these ideas can be seen in their strong
opposition to Parliament’s attempt to tax or
legislate for them without their consent in the
1760s and 1770s. After the Revolution, when
the colonists formed their own governments,
they wrote constitutions that included many
of the legal guarantees that Englishmen had
fought for in the seventeenth century as a
means of limiting governmental power. As
a consequence, both the state and federal
constitutions typically contained bills of rights
that enshrined core English legal rights as
fundamental law.
The Founders imbibed this view of English
rights through the legal training that was
common for elites in the eighteenth-century
Anglo-American world. This legal education
also made them aware of the history of
England in the seventeenth century, a
time when the Stuart kings had repeatedly
Natural Rights
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The seventeenth century witnessed a revolution
in European political thought, one that was
to prove profoundly influential on the political
ideas of the American Founders. Beginning
with the Dutch writer Hugo Grotius in the early
1600s, several important European thinkers
began to construct a new understanding of
political theory that argued that all men by
nature had equal rights, and that governments
were formed for the sole purpose of protecting
these natural rights.
The leading proponent of this theory in the
English-speaking world was John Locke (1632–
1704). Deeply involved in the opposition to the
Stuart kings in the 1670s and 1680s, Locke
wrote a book on political theory to justify armed
resistance to Charles II and his brother James.
“To understand political power right,” Locke
wrote, “and derive it from its original, we must
consider, what state all men are naturally in,
and that is, a state of perfect freedom to order
their actions, and dispose of their possessions
and persons, as they think fit, within the bounds
of the law of nature, without asking leave, or
depending upon the will of any other man.” For
Locke, the state of nature was “a state also of
equality, wherein all the power and jurisdiction is
reciprocal, no one having more than another.”
Although this pre-governmental state of
nature was a state of perfect freedom, Locke
contended that it also lacked an impartial
judge or umpire to regulate disputes among
men. As a result, men in this state of nature
gathered together and consented to create a
government in order that their natural rights
would be better secured. Locke further argued
that, because it was the people who had
created the government, the people had a right
to resist its authority if it violated their rights.
They could then join together and exercise
their collective or popular sovereignty to create
a new government of their own devising.
This revolutionary political theory meant that
ultimate political authority belonged to the
people and not to the king.
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This idea of natural rights became a central
component of political theory in the American
colonies in the eighteenth century, appearing
in numerous political pamphlets, newspapers,
and sermons. Its emphasis on individual
freedom and government by consent combined
powerfully with the older idea of common
law rights to shape the political theory of the
Founders. When faced with the claims of the
British Parliament in the 1760s and 1770s
to legislate for them without their consent,
American patriots invoked both the common
law and Lockean natural rights theory to argue
that they had a right to resist Britain.
Thomas Jefferson offers the best example of
the impact that these political ideas had on
the Founding. As he so eloquently argued in
the Declaration of Independence: “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. That to secure these
rights, Governments are instituted among Men,
deriving their just powers from the consent
of the governed, That whenever any Form of
Government becomes destructive of these
ends, it is the Right of the People to alter or
abolish it, and to institute new Government,
laying its foundations on such principles and
organizing its powers in such form, as to them
shall seem most likely to effect their Safety and
Happiness.”
This idea of natural rights also influenced the
course of political events in the crucial years
after 1776. All the state governments put this
new political theory into practice, basing their
authority on the people, and establishing
written constitutions that protected natural
rights. As George Mason, the principal author
of the influential Virginia Bill of Rights (1776),
stated in the document’s first section: “All men
are by nature equally free and independent,
and have certain inherent rights, of which,
when they enter into a state of society, they
cannot, by any compact, deprive or divest
their posterity; namely, the enjoyment of
life and liberty, with the means of acquiring
and possessing property, and pursuing and
obtaining happiness and safety.” The radical
implications of this insistence on equal natural
rights would slowly become apparent in postrevolutionary American society as previously
downtrodden groups began to invoke these
ideals to challenge slavery, argue for a wider
franchise, end female legal inequality, and fully
separate church and state.
In 1780, under the influence of John Adams,
Massachusetts created a mechanism by which
the people themselves could exercise their
sovereign power to constitute governments:
a special convention convened solely for the
purpose of writing a constitution, followed
by a process of ratification. This American
innovation allowed the ideas of philosophers
like Locke to be put into practice. In particular,
it made the people’s natural rights secure by
enshrining them in a constitution which was
not changeable by ordinary legislation. This
method was to influence the authors of the new
federal Constitution in 1787.
Colonial Self-Government
The political thinking of the Founders in the
late eighteenth century was also deeply
influenced by the long experience of colonial
self-government. Since their founding in the
early seventeenth century, most of the English
colonies in the Americas (unlike the French and
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Spanish colonies) had governed themselves
to a large extent in local assemblies that
were modeled on the English Parliament. In
these colonial assemblies they exercised their
English common law right to consent to all laws
that bound them.
The existence of these strong local
governments in each colony also explains in
part the speed with which the Founders were
able to create viable independent republican
governments in the years after 1776. This
long-standing practice of self-government also
helped to create an indigenous political class
in the American colonies with the requisite
experience for the difficult task of nation
building.
In addition to the various charters and royal
instructions that governed the English colonies,
Americans also wrote their own Founding
documents. These settler covenants were
an early type of written constitution and they
provided an important model for the Founders
in the late eighteenth century as they sought
to craft a new constitutional system based on
popular consent.
Classical Republicanism
Not all the intellectual influences on the
Founders originated in the seventeenth century.
Because many of the Founders received a
classical education in colonial colleges in
the eighteenth century, they were heavily
influenced by the writings of the great political
thinkers and historians of ancient Greece and
Rome.
Antiquity shaped the Founders’ political
thought in several important ways. First, it
introduced them to the idea of republicanism,
or government by the people. Ancient political
thinkers from Aristotle to Cicero had praised
republican self-government as the best
political system. This classical political thought
was important for the Founders as it gave
them grounds to dissent from the heavily
monarchical political culture of eighteenthcentury England, where even the common law
jurists who defended subjects’ rights against
royal power believed strongly in monarchy. By
reading the classics, the American Founders
were introduced to an alternate political vision,
one that legitimized republicanism.
The second legacy of this classical idea of
republicanism was the emphasis that it put
on the moral foundations of liberty. Though
ancient writers believed that a republic was the
best form of government, they were intensely
aware of its fragility. In particular, they argued
that because the people governed themselves,
republics required for their very survival a high
degree of civic virtue in their citizenry. Citizens
had to be able to put the good of the whole
(the res publica) ahead of their own private
interests. If they failed to do this, there public
would fall prey to men of power and ambition,
and liberty would ultimately be lost.
As a result of this need for an exceptionally
virtuous citizenry, ancient writers also taught
that republics had to be small. Only in a small
and relatively homogeneous society, they
argued, would the necessary degree of civic
virtue be forth coming. In part, it was this
classical teaching about the weakness of large
republics that animated the contentious debate
over the proposed federal Constitution in the
1780s.
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In addition to their reading of ancient authors,
the Founders also encountered republican
ideas in the political theory of a group of
eighteenth century English writers called the
“radical Whigs.” These writers kept alive the
republican legacy of the English Civil War at
a time when most Englishmen believed that
their constitutional monarchy was the best
form of government in the world. Crucially for
the Founding, these radical Whigs combined
classical republican thought with the newer
Locke an ideas of natural rights and popular
sovereignty. They thus became an important
conduit for a modern type of republicanism
to enter American political thought, one that
combined the ancient concern with a virtuous
citizenry and the modern insistence on the
importance of individual rights.
These radical Whigs also provided the
Founders with an important critique of the
eighteenth-century British constitution. Instead
of seeing it as the best form of government
possible, the radical Whigs argued that it was
both corrupt and tyrannical. In order to reform
it, they called for a written constitution and
a formal separation of the executive branch
from the legislature. This classically inspired
radical Whig constitutionalism was an important
influence on the development of American
republicanism in the late eighteenth century.
Drawing on all these intellectual traditions,
the Founders were able to create a new kind
of republicanism in America based on equal
rights, consent, popular sovereignty, and rule of
law.
Craig Yirush, Ph.D., University of California,
Los Angeles
Critical Thinking Questions
1. Rule of law means that government and citizens all abide by the same laws regardless of
political power. Those laws respect individual rights, are transparently enacted, justly applied,
and are stable. Based on this definition and the information in the Explaining the Founding
essay, why is rule of law an important part of government?
2. How were the American Founders influenced by common law and the rights of Englishmen in
developing the Declaration of Independence and the Constitution?
3. Explain how John Locke’s theories regarding natural rights were incorporated into the American
governmental structures. How does rule of law protect rights?
4. How were the Founders were influenced by ancient republican systems?
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Handout B: Rule of Law, or Law of Rulers?
1. The people elect representatives to make and carry out laws. Those laws respect individual
rights, apply to everyone in the same way, and cannot be changed suddenly
-----------------------------------------------------------------------------------------------------------------------------2. Many people come to believe that people over the age of 18 should be able to vote. They
work to persuade others. Eventually, more and more people come to agree. The peoples’
representatives in Congress draft an amendment to the Constitution. The people of each state
vote on whether to approve the amendment. Once three-fourths of the state ratify (or approve),
the amendment becomes part of the Constitution.
-----------------------------------------------------------------------------------------------------------------------------3. A young mother is suspected of killing her daughter. The evidence against her is thin, but almost
everyone in the community is convinced she is guilty. The judge decides to move her trial to a
location where her case has gotten less media attention, so that impartial jurors can be found.
-----------------------------------------------------------------------------------------------------------------------------4. The president is under scrutiny (and under subpoena) for conspiring to cover up illegal
activities. Asked to explain, he says, “When the President does it that means it’s not illegal.”
-----------------------------------------------------------------------------------------------------------------------------5. A city government lowers the speed limit on a busy street from 50 to 45. After the change takes
effect, police use footage from traffic cameras to issue tickets to people who drove 49 miles per
hour before the speed limit was lowered.
-----------------------------------------------------------------------------------------------------------------------------6. A state government, worried about rising crime, imposes an 8 p.m. curfew. Some people
complain about the restriction on their liberty, but state officials point out that the curfew gives
everyone enough time to get home in the evenings, is probably temporary, and applies equally
to everyone.
-----------------------------------------------------------------------------------------------------------------------------7. Congress passes a law that affects everyone in the nation, but the members of Congress
themselves do not have to abide by it.
-----------------------------------------------------------------------------------------------------------------------------8. Jurors in a Northern state in 1855 hear the case of a man charged with helping an escaped
slave avoid capture. They refuse to convict him, despite overwhelming evidence that he was
guilty of violating the Fugitive Slave Act.
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Handout C: Viewing Guide for Constitutional
Principle: Rule of Law
Directions: Before watching the video, answer the pre-viewing questions. Fill in the blanks on
Bill of Rights protections while you watch. Finally, answer the questions that follow after you have
watched the video on a separate sheet of paper.
Before you watch:
1. What do you think of when you hear the term “rule of law?” Write down some key words and
phrases.
2. What ways can you think of that the Constitution provides for the rule of law in the U.S.?
While you watch:
1. The Constitution forbids bills of _________ (laws passed to single out one person).
2. It also bans _______ laws, which means the government cannot suddenly declare an action
illegal and then punish people who did it in the past.
3. All criminal trials will be tried by a ______.
4. The police cannot search you or your property without first getting a ____________ from a
judge by demonstrating __________ cause.
5. People accused of crimes have many rights to due process—the right to know what they are
being charged with, to consult with a ________, to confront their ________, call _______ in
their own defense, and have their trial take place in a __________ manner in the location
where the alleged crime occurred.
6. A government cannot try a defendant over and over until it gets a guilty verdict. This is known
as double ___________.
7. Excessive ________ and cruel and unusual ________ are forbidden.
8. The most serious crimes require a _______________ to bring charges, and the crime of
treason can only be proven by the testimony of ____ witnesses to the same overt act, or on
_______ in open court.
After you watch, answer the following questions on your own paper:
1. What does the principle of rule of law mean?
2. Describe some ways that the processes of drafting and ratifying the Constitution demonstrated
the rule of law.
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3. A commitment to the rule of law means a belief in the duly established systems and processes,
even if outcomes aren’t what some expect. Do you think this is a challenging concept for many
citizens? Why or why not?
4. Professor Zywicki defines rule of law as “a law or set of laws that are outside and above the
government that constrain what the government can do to you.” How would you put this in your
own words? Do you believe this is a useful definition? Explain.
5. Why does Professor Zywicki state that ordinary people are the ones who benefit most when
government follows the rule of law?
6. Though warrants are required for the police to perform searches, some exceptions to this
requirement exist such as searches that take place after a lawful arrest, when items are in plain
view, or when police are in “hot pursuit” of a suspect. Learn more about these exceptions and
evaluate whether you believe they are “reasonable.”
7. The following questions are posed at the end of the video. Choose the one you find
most interesting and write a 2-3 paragraph response, using resources available at
www.BillofRightsInstitute.org to support your answer.
a. How transparent is our system of lawmaking? Should the U.S. enforce only those laws
enacted by the people through their representatives? Does the U.S. have to enforce UN
resolutions? International laws?
b. Does the executive branch have to enforce all laws passed by Congress, even if the
president thinks they are unconstitutional?
i. Can states nullify federal laws they conclude are unconstitutional?
ii. What does it mean for citizens to be committed to the rule of law?
iii. Does commitment to the rule of law mean obedience to all laws, even unjust ones?
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Handout D: Madison’s Notes on the Federal
Convention of 1787
Directions: Read the follow excerpts from James Madison’s notes taken during the Constitutional
Convention. Think about how the delegates discussed rule of law in their debates, which of the
items they discussed were added to the Constitution, and which of the items they discussed were
not added to the Constitution. Be prepared to discuss your answers. Note: Spellings, punctuation,
and grammar are Madison’s.
Friday, August 17
IN CONVENTION
Art VII. Sect. 1. resumed. on the clause “to
appoint Treasurer by ballot.”
Mr. GHORUM moved to insert “joint” before
ballot, as more convenient as well as
reasonable, than to require the separate
concurrence of the Senate.
Mr. PINKNEYВ 2ds. the motion.В Mr.
SHERMANВ opposed it as favoring the larger
States.
Mr. READВ moved to strike out the clause,
leaving the appointment of the Treasurer as of
other officers to the Executive. The Legislature
was an improper body for appointments. Those
of the State legislatures were a proof of it. The
Executive being responsible would make a
good choice.
Mr. MERCERВ 2ds. the motion ofВ Mr. Read.
On the motion for inserting the word “joint”
before ballot N. H. ay. Mas. ay. Ct. no. N. J. no.
Pa. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo.
ay.
Col. MASONВ in opposition toВ Mr. ReadsВ motion
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desired it might be considered to whom the
money would belong; if to the people, the
legislature representing the people ought to
appoint the keepers of it.
On striking out the clause as amended by
inserting “Joint” N. H. no. Mas. no. Ct. no. Pa.
ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay.
Geo. no.
“To constitute inferior tribunals” agreed to nem.
con. “To make rules as to captures on land & water”do. d  “To declare the law and punishment of
piracies and felonies &c” &c considered.
Mr. MADISON moved to strike out “and
punishment” &c. Mr. MASON doubts the safety of it, considering
the strict rule of construction in criminal cases.
He doubted also the propriety of taking the
power in all these cases wholly from the States.
Mr. GOVERNR. MORRISВ thought it would be
necessary to extend the authority farther, so as
to provide for the punishment of counterfeiting
in general. Bills of exchange for example might
be forged in one State and carried into another:
It was suggested by some other member
that foreign paper might be counterfeited by
Citizens; and that it might be politic to provide
by national authority for the punishment of it.
Mr. RANDOLPHВ did not conceive that
expunging “the punishment” would be a
constructive exclusion of the power. He
doubted only the efficacy of the word “declare.”
Mr. WILSONВ was in favor of the motion.
Strictness was not necessary in giving authority
to enact penal laws; though necessary in
enacting & expounding them.
On motion for striking out “and punishment” as
moved byВ Mr. Madison
N. H. no. Mas. ay. Ct. no. Pa. ay. Del. ay. Md.
no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. Govr. MORRIS moved to strike out “declare
the law” and insert “punish” before “piracies.”
and on the question N. H. ay. Mas. ay. Ct. no.
Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C.
ay. Geo. ay.
Mr. MADISON, andВ Mr. RANDOLPHВ moved to
insert, “define &,” before “punish.”
Mr. WILSON, thought “felonies” sufficiently
defined by common law.
Mr. DICKENSONВ concurred withВ Mr. Wilson.
Mr. MERCERВ was in favor of the amendment.
Mr. MADISON. felony at common law is vague.
It is also defective. One defect is supplied by
Stat: of Anne as to running away with vessels
which at common law was a breach of trust
only. Besides no foreign law should be a
standard farther thanВ is expressly adopted-If
the laws of the States were to prevail on this
subject, the citizens of different States would
В© The Bill of Rights Institute
be subject to different punishments for the
same offence at sea. There would be neither
uniformity nor stability in the law-The proper
remedy for all these difficulties was to vest the
power proposed by the term “define” in the
Natl. legislature.
Mr. Govr. MORRISВ would prefer designate to
define, the latter being as he he conceived,
limited to the preexisting meaning.- It was said
by others to be applicable to the creating of
offences also, and therefore suited the case
both of felonies & of piracies. The motion of Mr.
M. & Mr. R was agreed to.
Mr. ELSEWORTHВ enlarged the motion so as to
read “to define and punish piracies and felonies
committed on the high seas, counterfeiting the
securities and current coin of the U. States, and
offences agst. the law of Nations” which was
agreed to nem. con.
“To subdue a rebellion in any State, on the
application of its legislature.”
Mr. PINKNEY moved to strike out “on the
application of its legislature”
Mr. Govr. MORRISВ 2ds.
Mr. L. MARTINВ opposed it as giving a
dangerous & unnecessary power. The consent
of the State ought to precede the introduction of
any extraneous force whatever.
Mr. MERCERВ supported the opposition ofВ Mr.
Martin.
Mr. ELSEWORTHВ proposed to add after
“legislature” “or Executive.”
Mr. Govr. MORRIS. The Executive may
possibly be at the head of the Rebellion. The
Genl. Govt. should enforce obedience in all
cases where it may be necessary.
Mr. ELSEWORTH. In many cases The Genl.
Govt. ought not to be able to interpose, unless
called upon. He was willing to vary his motion
so as to read, “or without it when the legislature
cannot meet.”
Mr. GERRYВ was agst. letting loose the
myrmidons of the U. States on a State without
its own consent. The States will be the best
Judges in such cases. More blood would have
been spilt in Massts. in the late insurrection, if
the Genl. authority had intermeddled.
Mr. LANGDONВ was for striking out as moved
byВ Mr. Pinkney. The apprehension of the
national force, will have a salutary effect in
preventing insurrections.
Mr. RANDOLPH. If the Natl. Legislature is
to judge whether the State legislature can or
cannot meet, that amendment would make the
clause as objectionable as the motion ofВ Mr.
Pinkney.
Mr. Govr. MORRIS. We are acting a very
strange part. We first form a strong man to
protect us, and at the same time wish to tie his
hands behind him, The legislature may surely
be trusted with such a power to preserve the
public tranquility.
On the motion to add “or without it [application]
when the legislature cannot meet” N. H. ay. Mas. no. Ct. ay. Pa. divd. Del. no. Md.
no. Va. ay. N. C. divd. S. C. ay. Geo. ay.19В So
agreed to
Mr. MADISONВ andВ Mr. DICKENSONВ moved to
insert as explanatory, after “State”- “against the
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Government thereof” There might be a rebellion
agst. the U. States-whichВ was Agreed to nem.
con.
On the clause as amended N. H. ay. MasВ abst.
Ct. ay. Pen. abst. Del. no. Md. no. Va. ay. N. C.
no. S. C. no. Georg. ay-so it was lost.
“To make war”
Mr. PINKNEYВ opposed the vesting this power in
the Legislature. Its proceedings were too slow.
It wd. meet but once a year. The Hs. of Reps.
would be too numerous for such deliberations.
The Senate would be the best depositary, being
more acquainted with foreign affairs, and most
capable of proper resolutions. If the States are
equally represented inВ Senate, so as to give
no advantage toВ large States, the power will
notwithstanding be safe, as the small have their
all at stake in such cases as well as the large
States. It would be singular for one authority to
make war, and another peace.
Mr. BUTLER. The objections agst. the
Legislature lie inВ great degree agst. the Senate.
He was for vesting the power in the President,
who will have all the requisite qualities, and will
not make war but when the Nation will support
it.В Mr. MADISONВ andВ Mr. GERRYВ moved to
insert “declare,” striking out “make” war; leaving
to the Executive the power to repel sudden
attacks.
Mr. SHARMANВ thought it stood very well. The
Executive shd. be able to repel and not to
commence war. “Make” better than “declare”
the latter narrowing the power too much.
Mr. GERRYВ never expected to hear in a
republic a motion to empower the Executive
alone to declare war.
Mr. ELSWORTH. there is a material difference
between the cases of making war and making
peace. It shd. be more easy to get out of war,
than into it. War also is a simple and overt
declaration. peace attended with intricate &
secret negociations.
Mr. PINKNEY’S motion to strike out whole
clause,В disagd. to without call of States.
Mr. MASONВ was agst. giving the power of war
to the Executive, because not safely to be
trusted with it; or to the Senate, because not
so constructed as to be entitled to it. He was
for clogging rather than facilitating war; but for
facilitating peace. He preferred “declare” to
“make.”
Mr. GERRYВ 2ds. him. 8 Senators may possibly
exercise the power if vested in that body,
and 14 if all should be present; and may
consequently give up part of the U. States. The
Senate are more liable to be corrupted by an
Enemy than the whole Legislature.
On the motion to insert declare-in place of
make, it was agreed to. N. H. no. Mas. abst.
Cont. no.В Pa. ay. Del. ay. Md.
ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.
В© The Bill of Rights Institute
Mr. BUTLERВ moved to give the
LegislatureВ power of peace, as they were to
have that of war.
On the motion for adding “and peace” after
“war” N. H. no. Mas. no. Ct. no. Pa. no. Del. no.
Md. no. Va. no. N. C. no S. C. no. Geo. no.
Adjourned
Handout E: Sample Meme
Directions: Research a national and international news story relating to the rule of law. Use a free
meme creator website, such as www.mememaker.net,to upload an image relating to the news story
and add a caption relating to rule of law. Example captions may include Rule of law #FTW (for the
win) or Rule of Law #Fail. Below is a sample meme using an image of George Washington.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Rule of Law Module
Rule of Law Module: Rule of Law in the
Constitution Lesson
Overview
In these activities, students will investigate the principle of rule of law by analyzing excerpts from
Madison’s Federalist No. 62, and by studying the amendments to the Constitution that provide
for due process in criminal matters. They will then review landmark Supreme Court cases to
understand how rule of law has been carried out in constitutional controversies in U.S. history.
Finally, they will research current rule of law issues and complete a journal entry on their findings.
Recommended Time
120 minutes
Objectives
•
Students will analyze the importance of the
rule of law in a constitutional republic.
•
Students will evaluate the reasons why
criminal and civil procedure protections
came to be included in the Bill of Rights.
•
Students will identify ways in which these
protections serve to ensure liberty and limit
government.  •
Students will analyze and articulate specific
protections found in the Fourth, Fifth, Sixth,
Seventh, and Eighth Amendments.
•
Students will evaluate Supreme Court
rulings concerning the Eighth Amendment’s
Cruel and Unusual Punishment Clause.
North Carolina Standards and
Objectives
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Materials
Handout A: Excerpts from Federalist No. 62
Handout B: Quotes about Rule of Law
Handout C: The Bill of Rights
Handout D: Analysis of Amendments 4, 5, 6, 7,
and 8
Handout E: Examples of Search and Seizure
Cases
Handout F: Cruel and Unusual Punishment?
В© The Bill of Rights Institute
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CE.C&G.1.1: Explain how the tensions over
power and authority led America’s founding
fathers to develop a constitutional democracy
(e.g., mercantilism, salutary neglect, taxation
and representation, boycott and protest,
independence, American Revolution, Articles
of Confederation, Ben Franklin, George
Washington, John Adams, Sons of Liberty,
etc.)
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans with
Disabilities Act, equal opportunity legislation).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).
AH1.H.1.2: Use Historical Comprehension to:
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Reconstruct the literal meaning of a
historical passage.
Differentiate between historical facts and
historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
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Identify issues and problems in the past.
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
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Rule of Law Module
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AH1.H.1.4: Use Historical Research to:
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Formulate historical questions.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions,
etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
Lesson Plan
Warm-Up [20 minutes]
A. Distribute copies of Handout A: Excerpts
from Federalist No. 62 to students. Have
students work in groups to discuss the
significance of rule of law and put it in their
own words.
B. Distribute copies of Handout B: Quotes
about Rule of Law. Have students work
in their groups to put these quotes in their
own words.
Activity I: Analyzing Amendments [40
minutes]
A. Students will use Handout C: The Bill of
Rights, along with Handout D: Analysis
of Amendments 4, 5, 6, 7, and 8, to
FOUNDING PRINCIPLES COURSE explain what protections are included in the
Bill of Rights, and why each is necessary to
the promotion of liberty.
Activity II [40 minutes]
A. Students will use Handout E: Examples
of Search and Seizure Cases to apply the
principle of rule of law and decide whether
evidence should be used in trial of the
accused.
a. Additional Supreme Court cases
regarding search and seizure:
i. Escobedo v. Illinois (1964)
ii. Terry v. Ohio (1968)
iii. Nix v. Williams (1984)
iv. Chandler v. Miller (1997)
v. Knowles v. Iowa (1998)
vi. Wyoming v. Houghton (1999)
vii. Bond v. United States (2000)
viii.Kylo v. United States (2001)
ix. Ferguson v. City of Charleston
(2001)
x. Groh v. Ramirez (2004)
xi. Illinois v. Caballes (2004)
xii. Georgia v. Randolph (2006)
xiii.Hudson v. Michigan (2006)
B. Students will use Handout F: Cruel and
Unusual Punishment? to apply the
principle of rule of law and decide whether
specific punishments should be considered
cruel and unusual.
a. Additional Supreme Court cases
regarding cruel and unusual
punishment:
i. Ingraham v. Wright (1977)
В© The Bill of Rights Institute
Rule of Law Module
Wrap-Up [20 minutes]
A. Have students research current events
regarding rule of law in major online
newspapers such as the New York Times,
Washington Post, USA Today, Chicago
Tribune, or others. They should write a
journal entry where they:
a. Summarize the article and how it relates
to rule of law.
b. Explain why rule of law was relevant
at the time of the Founders and is still
relevant today.
c. Explain what they can do to protect the
principle of rule of law in their own lives.
Assessment
A. See assessment activity in the introduction
for the Rule of Law module.
Handout A: Excerpts from Federalist No. 62
Directions: Use underlining, marginal notes, and other reading skills to analyze these passages.
Be ready to explain the significance of rule of law in your own words.
“… It is a misfortune incident to republican
government, though in a less degree than
to other governments, that those who
administer it may forget their obligations to
their constituents, and prove unfaithful to their
important trust…”
“A good government implies two things: first,
fidelity to the object of government, which
is the happiness of the people; secondly, a
knowledge of the means by which that object
can be best attained...”
“But a continual change even of good
measures is inconsistent with every rule of
prudence and every prospect of success…”
“In the first place, [unstable government] forfeits
the respect and confidence of other nations,
and all the advantages connected with national
character…”
“The internal effects of a mutable policy are
still more calamitous. It poisons the blessing
of liberty itself. It will be of little avail to the
people, that the laws are made by men of their
own choice, if the laws be so voluminous that
they cannot be read, or so incoherent that
they cannot be understood; if they be repealed
or revised before they are promulgated, or
undergo such incessant changes that no man,
who knows what the law is to-day, can guess
what it will be to-morrow. Law is defined to be a
rule of action; but how can that be a rule, which
is little known, and less fixed?”
В© The Bill of Rights Institute
“Another effect of public instability is the
unreasonable advantage it gives to the
sagacious [crafty], the enterprising, and
the moneyed few over the industrious and
uninformed mass of the people. Every new
regulation concerning commerce or revenue,
or in any way affecting the value of the different
species of property, presents a new harvest to
those who watch the change, and can trace
its consequences; a harvest, reared not by
themselves, but by the toils and cares of the
great body of their fellow-citizens. This is a
state of things in which it may be said with
some truth that laws are made for the few, not
for the many.”
“In another point of view, great injury results
from an unstable government …What prudent
merchant will hazard his fortunes in any new
branch of commerce when he knows not but
that his plans may be rendered unlawful before
they can be executed? …In a word, no great
improvement or laudable enterprise can go
forward which requires the auspices of a steady
system of national policy.”
“But the most deplorable effect of all is that
diminution of attachment and reverence
which steals into the hearts of the people...
No government, any more than an individual,
will long be respected without being truly
respectable; nor be truly respectable, without
possessing a certain portion of order and
stability.”
Handout B: Quotes about Rule of Law
Directions: Read the following quotes and put them in your own words. What concepts to the
quotes all have in common?
1. “They are to govern by promulgated
established laws, not to be varied in
particular cases, but to have one rule for
rich and poor, for the favorite at court, and
the countryman at plow.” —John Locke,
Second Treatise of Government, 1690
2. “But nothing can be more absurd than to
say, that one man has an absolute power
above law to govern according to his will.”
—Algernon Sidney, Discourses Concerning
Government, 1698
3. “No legislative, supreme or subordinate,
has a right to make itself arbitrary.”—James
Otis, “Rights of the British Colonies
Asserted and Proved,” 1764
4. “But can his majesty thus put down all
law under his feet? Can he erect a power
superior to that which erected himself? He
has done it indeed by force; but let him
remember that force cannot give right.”
—Thomas Jefferson, “A Summary View of
the Rights of British America” 1774
В© The Bill of Rights Institute
5. “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.”—The Constitution of the
United States, 1787
6. “There is no position which depends on
clearer principles than that every act of a
delegated authority, contrary to the tenor of
the commission under which it is exercised,
is void.” —Alexander Hamilton, Federalist
No. 78, 1788
7. “No legislative act, therefore, contrary to
the Constitution, can be valid.”—Alexander
Hamilton, Federalist No. 78, 1788
8. “To what purpose are powers limited, and
to what purpose is that limitation committed
to writing, if these limits may, at any
time, be passed by those intended to be
restrained?”—John Marshall, Marbury v.
Madison, 1803
Handout C: The Bill of Rights
Directions: Read the Bill of Rights and complete Handout D.
Amendment I 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.
Amendment II 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.
Amendment III No soldier shall, in time of
peace be quartered in any house, without the
consent of the owner, nor in time of war, but in
a manner to be prescribed by law.
Amendment IV 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.
Amendment V No person shall be held to
answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the
land or naval forces, or in the militia, when in
actual service in time of war or public danger;
nor shall any person be subject for the same
offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
В© The Bill of Rights Institute
deprived of life, liberty, or property, without due
process of law; nor shall private property be
taken for public use, without just compensation.
Amendment VI In all criminal prosecutions,
the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the
state and district wherein the crime shall have
been committed, which district shall have
been previously ascertained by law, and to
be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have
the assistance of counsel for his defense.
Amendment VII In suits at common law,
where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury, shall
be otherwise reexamined in any court of the
United States, than according to the rules of the
common law.
Amendment VIII Excessive bail shall not be
required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
Amendment IX The enumeration in the
Constitution, of certain rights, shall not be
construed to deny or disparage others retained
by the people.
Amendment X The powers not delegated
to the United States by the Constitution, nor
prohibited by it to the states, are reserved to
the states respectively, or to the people.
Handout D: Analysis of Amendments
4, 5, 6, 7, and 8
Directions: Analyze the Bill of Rights (Handout C) to complete this table.
List specific rights protected
Amendment 4
Amendment 5
Amendment 6
Amendment 7
Amendment 8
В© The Bill of Rights Institute
Explain why each right is important
to the promotion of liberty
Handout E: Examples of Search and
Seizure Cases
Directions: Apply the principle of rule of law and decide these cases regarding search and seizure
issues.
1. Olmstead v. United States (1927)
The police had suspected for several years that Roy Olmstead, a resident of Washington state,
was involved in smuggling and selling alcohol in violation of the nation’s Prohibition laws. Without
first getting a warrant, the government wiretapped phones that they knew Olmstead used in
his business, even though wiretapping itself was a violation of Washington state law. Based on
evidence obtained by listening to Olmstead’s conversations, the federal government prosecuted
and won a conviction against him for illegally selling alcohol.
Olmstead maintained that the wiretapping amounted to a warrantless search and seizure, and
evidence obtained through this illegal search should not be used against him. The prosecutors
argued that they had not entered Olmstead’s property or conducted a physical search. The wiretap
was completed from the outside of his property by accessing telephone lines that were freely
available.
Was this warrantless electronic “search” of Olmstead’s conversations a violation of his
Fourth Amendment protection against unreasonable search and seizure and his Fifth
Amendment protection against self-incrimination?
______yes
______no
Why? _______________________________ Why not?____________________________
2. Mapp v. Ohio (1961)
Cleveland police, acting on a tip that a bombing suspect had been hiding in the home of Dollree
Mapp, demanded entrance. She asked for their warrant and called her lawyer. After several hours
and the arrival of additional officers, police claimed to have a warrant, and officers forced their way
into the house.
Mapp still demanded to see the warrant. One officer held up a piece of paper, claiming it was a
warrant. She grabbed it and put it inside her clothing. An officer recovered it and they carried out a
complete search of the house.
В© The Bill of Rights Institute
The officers found a trunk of “lewd and lascivious” books, pictures, and photographs in Mapp’s
basement, along with documentation related to illegal gambling. Mapp was arrested for violating
Ohio’s criminal law prohibiting the possession of obscene materials. At trial, the court found
her guilty of possessing the obscene materials based on the evidence presented by police. No
warrant was ever produced. Dollree Mapp raised a First Amendment claim, saying she had a
right to possess the books. But in the U.S. Supreme Court, the Justices did not address her First
Amendment claim. They instead focused on the warrantless search.
Was this warrantless search of Mapp’s house a violation of her Fourth Amendment protection
against unreasonable search and seizure?
______yes
______no
Why? _______________________________ Why not?____________________________
3. Florence v. The Board of Chosen Freeholders (2011)
Albert Florence was arrested on a warrant for a traffic violation, even though he had already paid
the fine. In jail, he was strip searched twice in seven days. Florence filed a lawsuit against jailers,
maintaining that the jailhouse searches were unreasonable because he was being held for failure
to pay a fine, which is not a crime in New Jersey. Jail officials argued that it was reasonable to
search everyone being jailed, even for minor offenses, and even if there is no suspicion that the
person may be concealing drugs or a weapon. The need for jailhouse security, they claimed,
outweighed any prisoner’s rights against unreasonable search and seizure.
Did these suspicionless searches violate Florence’s Fourth Amendment protection against
unreasonable search and seizure?
______yes
______no
Why? _______________________________ Why not?____________________________
В© The Bill of Rights Institute
Handout F: Cruel and Unusual Punishment?
Directions: Review scenarios from Supreme Court cases and apply the principle of the rule of law
to determine if the sentence from each case could be considered cruel and unusual punishment.
1. Robinson v. California (1962)
A Los Angeles police officer arrested Lawrence Robinson one night because he noticed tracks on
Robinson’s arms similar to those of drug addicts. Robinson was not doing anything illegal or under
the influence of drugs at the time, but he did admit to the officer that he sometimes used illegal
drugs, and a California law made it a misdemeanor to be a drug addict. The next morning, another
officer with long experience in the Narcotics Division reached the conclusion that the marks on
Robinson’s arms were the result of injections of illegal drugs. At his trial, Robinson denied having
used illegal drugs and stated that the marks on his arms were an allergic reaction to a treatment
he had received when in the military. However, the jury found him guilty of being an addict and
sentenced him to 90 days in prison.
Though he denied being an addict, Robinson believed that the California law, which did not require
proof that the defendant bought or used illegal drugs in California, nor that he have any drugs in his
possession, was a violation of his Eighth and Fourteenth Amendment protections against cruel and
unusual punishment.
Given these circumstances, was Robinson’s imprisonment upon being convicted of the
condition of drug addiction a violation of his 8th and 14th Amendment protections against
cruel and unusual punishment?
______yes
______no
Why? _______________________________ Why not?____________________________
2. Furman v. Georgia (1972)
In 1967, William Furman broke into a home during the night intending to carry out a burglary. The
homeowner heard the noises from the kitchen and came to investigate. Furman turned to flee, and
ran out the kitchen door. Furman said he tripped, dropping his gun, which accidentally discharged.
Tragically, the shot struck the homeowner in the chest, killing him instantly. Since the murder took
place during the commission of a felony, Furman was eligible to receive the death penalty under
Georgia law, even though the shooting itself was an accident. Furman was poor, uneducated, and
mentally ill, and the jury found him guilty and sentenced him to death in a one-day trial.
В© The Bill of Rights Institute
Given these circumstances, did the death penalty for Furman violate his 8th Amendment protection
against cruel and unusual punishment?
______yes
______no
Why? _______________________________ Why not?____________________________
3. Gregg v. Georgia (1976)
The Furman decision (1972) invalidated all previously enacted death penalty laws in the U.S. In its
post-Furman statute, the Georgia legislature sought to correct the arbitrary, “freakish,” or “random,”
nature of the imposition of the death penalty in Georgia. This new law provided guidelines
regarding the jury’s consideration of both aggravating and mitigating factors, and it required
mandatory review by the Georgia Supreme Court of any death penalty sentence.
In 1974, Troy Leon Gregg was convicted of having committed armed robbery and murder of two
men who had given him and a companion a ride when they were hitchhiking the previous year.
The trial judge was careful to follow all the new law’s guidelines in conducting Gregg’s case.
Before it could impose the death penalty, the jury must find at least one of 10 different aggravating
circumstances in the crime. Gregg’s jury found that there were two aggravating circumstances:
he had committed the murders during the commission of other capital crimes (armed robbery),
and for the purpose of receiving the victims’ property. The Georgia Supreme Court found that the
sentences for murder did not result from prejudice or other arbitrary factors, and upheld the jury’s
verdict and sentence.
Given these circumstances, did the death penalty for Gregg violate his Eighth Amendment
protection against cruel and unusual punishment?
______yes
______no
Why? _______________________________ Why not?____________________________
В© The Bill of Rights Institute
Rule of Law Module Answer Key
Lesson One: What is the Rule of
Law?
Handout A: Explaining the Founding
Essay
1. Rule of law is important because it limits the
government and the people under the same
set of laws so that they cannot infringe
upon rights.
2. The Founders believed that all men by
nature had equal rights. To protect natural
rights, as well as many of the legal rights
of Englishmen, the Founders wrote the
Declaration of Independence to notify
Britain and the world that their rights
were being infringed. They then wrote
the Constitution to ensure that the new
government they created wouldn’t infringe
upon those natural and legal rights.
3. Locke’s idea of natural rights and its
emphasis on individual freedom and
government by consent combined
powerfully with the older idea of common
law rights to shape the political theory of
the Founders. They used Locke’s principles
of securing life, liberty, and property of the
people in the Declaration of Independence.
They also understood that without rule
of law, people would resort to a state of
nature. Republican government was a way
in which to ensure that rule of law was
upheld and rights were protected.
4. The Founders were influenced by
the ancient republican systems by
understanding that they could protect
individual rights, but that they could be
В© The Bill of Rights Institute
fragile. Citizens in a republic needed to
be virtuous in order for the government to
survive. They also knew that the people
had to put the good of the whole nation
above their own interests to keep the wrong
people from gaining power and infringing
upon natural rights.
Handout C: Viewing Guide for
Constitutional Principle: Rule of Law
Before you watch:
1. Sample answers: rules, laws, police,
judges, searches, crime, arrest, warrant,
trials, due process, fairness, freedom,
equality, etc.
2. Sample answers: Protects peoples’ rights,
warrants must be obtained for arrests
or searches and seizures, jury trials,
witnesses, etc.
While you watch:
1. Attainder
2. Ex post facto
3. Jury
4. Warrant; probable
5. Lawyer; accusers; witnesses; speedy
6. Jeopardy
7. Bail; punishment
8. Grand jury; two; confession
After you watch, answer the following
questions on your own paper:
1. Rule of law means that there are known
and settled laws that were established in a
system that is open for all to see. The rules
are stable and cannot suddenly change
– established legal processes must be
followed.
2. States elected delegates to send to the
Constitutional Convention to modify the
system of government when the Articles
of Confederation were not working. After
the Constitution was written, it was sent
to each state to be ratified by delegates
elected by the people of the state. Despite
many arguments about the Constitution
and its ratification, people did not resort to
violence.
3. Accept reasoned answers.
4. Accept reasoned answers.
5. The rich and powerful have always had the
ability to manipulate the government for
their own ends. By protecting rule of law,
the government is also protecting the rights
of ordinary people who do not have money
or power.
6. Accept reasoned answers.
Amendment 6: Accused persons shall have
the right to a speedy and public trial; trials will
be decided by an impartial jury; trials will be
held in the state and district where the crime
took place; the accused will be informed of the
nature of the accusation; the accused must be
able to confront witnesses and obtain witnesses
in his or her favor; the accused person should
have assistance from an attorney to defend him
or herself.
Amendment 7: If the value in a suit is over
twenty dollars, the suit should be decided by
a jury; no fact determined by a jury should be
retried by any court unless it is according to the
rules of common law.
Amendment 8: Excessive bail or fines or cruel
and unusual punishments must not be inflicted.
7. Accept reasoned answers.
Handout E: Examples of Search and
Seizure Cases
Lesson Two: Rule of Law in the
Constitution
1. Yes – The police did not get a warrant to
wiretap Olmstead’s phone, which violates
the Fourth Amendment.
Handout D: Analysis of Amendments
4, 5, 6, 7, and 8
Amendment 4: Against unreasonable searches
and seizures, warrants shall not be issued
unless there is probable cause; warrants
must describe the place to be search and the
persons or things to be seized.
Amendment 5: A grand jury will decide if a
person is held to answer for a capital crime;
no person shall be tried for the same crime
twice (double jeopardy); no person should
have to testify against himself; no person shall
be deprived of life, liberty, or property without
the due process of law; property will not be
taken for public use without just compensation
(eminent domain).
В© The Bill of Rights Institute
2. Yes – The police should have had a
warrant to search Mapp’s house and seize
her belongings. Even if they had gotten a
warrant, it would have listed the bombing
suspect, not obscene literature, as the
object of their search.
3. No – The Court ruled in a 5-4 decision that
the strip search was permissible in this
case (though not necessarily in every case)
because of the need for jails to keep their
employees and inmates safe. It is too hard
to verify that no contraband is being brought
into the jail unless officials are allowed to
carry out a complete search. The Court’s
dissenters argued that strip searches
in arrests for minor offenses that do not
involve drugs or violence are unreasonable
unless prison officials have reasonable
suspicion that a particular individual has
drugs or contraband.
Handout F: Cruel and Unusual
Punishment?
1. Yes – Robinson was punished severely for
a misdemeanor and his conviction was not
based on evidence.
2. Yes – Furman did not intentionally commit
murder and was mentally ill. The Court’s
decision in this case forced states and the
national legislature to reevaluate, and in
some cases to rewrite, their death penalty
laws in order ensure that the death penalty
was not being used in an unpredictable,
random, or discriminatory manner.
3. No – Gregg’s crimes met the standards for
aggravating circumstances in two ways,
and the sentence was not arbitrary. Gregg’s
trial, conducted under rules set by the
new Georgia death penalty law, provided
due process. The night before he was to
be executed in Georgia in 1980, Gregg
escaped from prison and was killed in a
fight in North Carolina.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Private Property Module
Private Property Module Introduction
Private property is the natural right of all individuals to create, obtain, and control their possessions,
beliefs, faculties, and opinions, as well as the fruits of their labor.
Lesson One: What Is Property? Why
Protect It?
Overview
The Founders viewed private property rights
to be one basis of a free society, as well as
essential to economic prosperity. Property is not
only physical possessions but also ideas, works,
and even what someone should earn in future
wages. While most people think of property as
land or a dwelling, the term has much more
constitutional significance and touches almost
every aspect of citizens’ lives. The Founders,
influenced by English philosopher John Locke,
believed property rights in one’s body and
person to be the root of all rights – rights that
governments are established to protect.
Recommended Time
�
�
�
�
�
Objectives
�
�
�
Students will analyze the definitions of
property as understood by Enlightenment
thinkers, American Founders, and modern
legal minds.
Students will explore the origins of property
rights in the United States.
Students will explore how different groups
viewed property.
Student will explore how property has been
interpreted over time in the United States.
В© The Bill of Rights Institute
Students will evaluate the reasons for the
protection of personal property.
Students will analyze the property rights
protections found in the Bill of Rights.
North Carolina Clarifying Objectives
170 minutes
�
Students will analyze the Founders’ reasons
for protecting property rights.
�
CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
FOUNDING PRINCIPLES COURSE pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
�
�
�
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
AH1.H.1.2: Use Historical
Comprehension to:
1. Reconstruct the literal meaning of a
historical passage.
�
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
1. Identify issues and problems in the past.
Private Property Module
Lesson Two: How Does the Fifth
Amendment Protect Property?
Overview
The Founders believed that property is
among the natural rights governments exist
to protect. One of the ways the Founders
protected property rights was in the Fifth
Amendment. The Fifth Amendment restricts
the government’s ability to take property and
ensures that when it does take property,
it must pay for it. When do governments’
actions become a taking, and when should the
government pay for an intrusion?
Recommended Time
95 minutes
Objectives
�
�
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
�
AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.
В© The Bill of Rights Institute
�
�
Students will understand how the Fifth
Amendment protects property rights.
Students will analyze the Fifth Amendment’s
due process, eminent domain, and just
compensation clauses.
Analyze whether or not certain government
actions should be considered “takings”.
Students will evaluate how the Supreme
Court has interpreted the Takings Clause.
North Carolina Clarifying Objectives
�
CE.C&G.1.2: Explain how the Enlightenment
and other contributing theories impacted the
writing of the Declaration of Independence,
the US Constitution and the Bill of Rights
to help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
FOUNDING PRINCIPLES COURSE �
�
�
�
�
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate the influence of the past on
contemporary issues.
Private Property Module
�
�
�
�
AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH2.H.2.2: Evaluate key turning points
since the end of Reconstruction in terms
of their lasting impact (e.g., conflicts,
legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH2.H.4.2: Analyze the economic issues
and conflicts that impacted the United
States since Reconstruction and the
compromises that resulted (e.g., currency
policy, industrialization, urbanization,
laissez-faire, labor unrest, New Deal, Great
Society, supply-side economics, etc.).
Assessment
Overview
Students will create a visual representation
explaining a local or state eminent domain
case and explain the constitutional issues
surrounding the issue.
Recommended Time
60 minutes
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Private Property Module
Assignments
�
�
�
Explain an eminent domain-related issue in
their area, by completing the following tasks:
Research and summarize a local or
state eminent domain case (examples
might include development of new roads,
highways, or interstates; city expansion or
annexation; urban development; etc.)
Explain how the case relates to property
rights protections found in the Constitution
and Bill of Rights.
�
�
�
Do you agree with the local or state
government in “taking” the property or if you
agree with the property owner? Explain your
answer based on the Constitution and Bill of
Rights.
Explain why property rights are protected by
the Constitution and Bill of Rights.
Include each of these topics in a poster,
PowerPoint, video, etc.
Rubric
Category
1
2
3
4
Research and summarize
a local or state eminent
domain case.
No research or
summary was
included in the
product.
The case was
researched and
summarized, but
key points were
missing from the
summary.
The case was
researched and
summarized
correctly, but
more detail was
needed.
The case was
researched and
summarized
thoroughly and
correctly.
Explain how the case
relates to property rights
protections found in the
Constitution and Bill of
Rights.
No explanation of
property rights in
the Constitution or
Bill of Rights was
given.
A brief explanation
of property rights
in the Constitution
or Bill of Rights
was given.
An explanation
of property
rights in the
Constitution or
Bill of Rights
was given.
A complete
explanation of
property rights in
the Constitution or
Bill of Rights was
given.
Do you agree with the local
or state government in
“taking” the property or if
you agree with the property
owner? Explain your answer
based on the Constitution
and Bill of Rights.
No answer or
explanation was
given.
An answer was
given, but it was
not explained
based on the
Constitution or Bill
of Rights.
An answer and
A complete and
explanation were thorough answer
given.
and explanation
were given.
Explain why property
rights are protected by the
Constitution and Bill of
Rights.
No answer or
explanation was
given.
A brief explanation
of why property
rights are
protected was
given.
An explanation
of why property
rights are
protected was
given.
A complete
explanation of why
property rights
are protected was
given.
Create a visually pleasing
and informative product.
Product produced
was not visually
appealing nor
informative.
Product produced
was visually
pleasing but not
informative.
Product was
informative but
not visually
pleasing.
Product was both
informative and
visually pleasing.
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American
History meet the requirements of the Founding Principles Act.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Private Property Module
Private Property Module: What Is Property?
Why Protect It? Lesson
Overview
The Founders viewed private property rights to be one basis of a free society, as well as essential
to economic prosperity. Property is not only physical possessions but also ideas, works, and even
what someone should earn in future wages. For instance, the secret recipe for a popular soft drink,
such as Coca-Cola, is considered property in the same manner as a beach house on Cape Cod.
The lyrics to a hit song are just as much property as the potential to earn a living.
Recommended Time
170 minutes
Objectives
�
�
�
�
�
Students will analyze the definitions of
property as understood by Enlightenment
thinkers, American Founders, and modern
legal minds.
Handout E: Samuel Adams, James Madison,
and Property
Handout F: The Bill of Rights and Property
North Carolina Clarifying Objectives
�
Students will explore the origins of property
rights in the United States.
Students will analyze the Founders’ reasons
for protecting property rights.
Students will evaluate the reasons for the
protection of personal property.
�
Students will analyze the property rights
protections found in the Bill of Rights.
Materials
Handout A: Property or Not?
Handout B: Background Essay - What Is
Property? Why Protect It?
Handout C: Understanding the Third, Fourth,
Fifth, Seventh, and Eighth Amendments
Handout D: English Origins of Property
Protections
В© The Bill of Rights Institute
�
CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
FOUNDING PRINCIPLES COURSE government, democracy, consent of the
governed. individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
�
�
�
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
AH1.H.1.2: Use Historical Comprehension to:
1. Reconstruct the literal meaning of a
historical passage.
�
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
�
AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.
В© The Bill of Rights Institute
Private Property Module
Lesson Plan
Background [20 minutes]
A. Write the word “property” on the board and
ask students how they would define the
term. Write key terms and ideas on the
board. Ask students to brainstorm examples
of property and continue to record
responses.
пЃ®
Also discuss the importance of property
rights. What if your teacher or a
government official could randomly take
anything that belongs to you without your
knowledge or without reimbursement?
B. Distribute Handout A: Property or Not?
Have students work in pairs to complete
the handout and write explanations for their
answers.
C. As a class, discuss the students’ answers
and explanations.
Activity I [45 minutes]
A. Distribute Handout B: Background
Essay – What Is Property? Why Protect
It?andHandout C: Understanding the
Third, Fourth, Fifth, Seventh, and Eighth
Amendments. Have students complete
Handout B as they read the background
essay.
B. Have the students discuss the answers to
Handout C in pairs or small groups.
Activity II [45 minutes]
A. Distribute Handout D: English Origins of
Property Protections. Read the excerpts
from the Magna Carta and discuss the
questions that follow. Continue the same
method for the excerpts from William
Blackstone and John Locke.
FOUNDING PRINCIPLES COURSE B. Explain in a mini-lecture that when the
British colonists came to America, they
brought with them a strong tradition
of respect for property rights. Colonial
governments enshrined protections for
property and against arbitrary taxation in
the Massachusetts Body of Liberties, the
Fundamental Orders of Connecticut, and
other documents. Property rights were one
foundation of the colonists’ rallying-cry “No
taxation without representation.” James
Otis objected to the British officers’ use
of general search warrants, declaring, “A
man’s home is his castle, and whilst he is
quiet, he is as well guarded as a prince in
his castle.” When the colonies declared
independence from Great Britain, they
charged the King with taxing them without
their consent, seizing their ships, and
denying them due process in Admiralty
Courts.
C. Students will now explore the writings of
two important Founders, Samuel Adams
and James Madison, on property rights.
Their views were complex and varied,
but Adams, Madison, and indeed all the
Founders agreed that property rights were
fundamental to liberty.
D. Distribute Handout E: Samuel Adams,
James Madison, and Property, and divide
the class into groups of four. Have two
students in each group read the excerpts
from Adams’s The Rights of the Colonists
and two read the excerpts from Madison’s
Property and answer the questions for their
assigned section.
E. After they read, students should brief their
group members on how each author used
the word “property.”
В© The Bill of Rights Institute
Private Property Module
F. Reconvene the class and go over the
questions on Handout E.
пЃ®
Ask: Which definition(s) of property do
students find most useful?
Wrap-Up [20 minutes]
A. Distribute Handout F: The Bill of Rights
and Property, reminding students that
Madison was highly influential in adopting
the Bill of Rights. Have students return to
working in their groups to determine how
property is protected by the Bill of Rights.
B. After the students have finished, assign
each group to represent either “physical
property” (e.g. material goods) or “the most
sacred property” (e.g. conscience). Read
aloud the Bill of Rights and have students
stand whenever they believe their type of
property is being protected.
C. As you proceed, pause when needed to
debrief the class. Are there any instances
where everyone is standing up? Are there
times when no one is standing? What does
this tell you about the property protections
in the Bill of Rights?
D. Also discuss the term
Homework/Extensions
1. Students should write a brief journal entry
explaining the different types of property
discussed by James Madison and the
importance of property rights in a republic.
a. Students should analyze and respond to
these specific excerpts from Madison’s
Property:
1. “A man’s land, or merchandise, or
money is called property.”
2. “A man has property in his opinions
and the free communication of them.”
FOUNDING PRINCIPLES COURSE Private Property Module
3. “He has a property very dear to
him in the safety and liberty of his
person.”
4. “In a word, as a man is said to have
a right to his property, he may be
equally said to have a property in his
rights.”
b. Rubric:
Category
1
2
3
4
Examples of
different types of
property.
No examples
of property are
given.
One example
of a type of
property is
given.
Two examples of
types of property
are given.
Three or more
examples
of types of
property are
given.
Analysis and
response to
Madison’s
quotations
Accurate
analysis and
response to one
of the quotes.
Accurate
analysis and
response to two
of the quotes.
Accurate
analysis and
response to
three of the
quotes.
Accurate
analysis and
response to four
of the quotes.
Explanation of
the importance of
property rights in a
republic.
No explanation
regarding the
importance of
property rights is
given.
Explanation of
the importance
of property rights
is weak.
Explanation of
the importance
of property is
articulated and
examples are
given.
Explanation of
the importance
of liberty
is strongly
articulated and
examples are
thoroughly
explained.
В© The Bill of Rights Institute
Handout A: Property or Not?
Property Not Property
1. Yourself _________ _________
2. Your music collection _________ _________
3. Your iPod _________ _________
4. The sheet music to a song you composed _________
_________
5. The lyrics you wrote to go with your song _________
_________
6. The guitar you play your song on _________ _________
7. The money you earn from your record contract _________
_________
_________
_________
8. The money that stations will pay you in the future
to play your song on the radio
В© The Bill of Rights Institute
Handout B: Background Essay - What Is
Property? Why Protect It?
The students returned to class on Monday after
enjoying a relaxing weekend. As they streamed
in from the parking lot and buses, many were
shocked to see the brown row of lockers that
had been in the main hallway was gone. Many
students used their lockers to store not only
their books, but also other personal belongings
like clothing, music, and food. Confused, they
walked to the principal’s office.
“What happened to our lockers?” they
demanded.
The principal informed them that the school
planned to fix up the front hallway and turn it
into an alumni welcome center. Their lockers
had been torn down.
“What happened to all our stuff?” the students
asked, becoming angry.
The principal shrugged. “Oh, we just threw all
those things out.”
What Is Property?
One might say the Founders were not only
concerned with property rights, they were
passionate about them. Half of the Bill of
Rights deals with property. Most people think of
property as land. Property, however, includes
much more than just land. It involves houses,
cars, and other material things. It also includes
information, ideas, and creative works. It
sometimes includes things of the future, such
as future profits from the sale of an object or
idea. More than just securing these things for
individuals, property rights secure freedom.
В© The Bill of Rights Institute
What Are the Origins of American
Property Rights?
Eighteenth century Americans had many things
in mind when they used the word “property.”
Rather than saying, “That horse is my property,”
most Americans would have said, “I have a
property in that horse.” That phrase meant they
had a legal right to use the horse. They also
had a right of exclusion, meaning they could
stop others from using the horse.
Another example of property is one’s own body.
People usually do not refer to themselves as
“property,” but they clearly have a general right
to do what they want with their bodies and to
keep others from doing things to them. Thus,
individuals have a property in their body. This
concept is associated with English natural
rights philosopher John Locke. It is called selfownership, and helps explain why the Founders
took many steps to protect property.
The Founders were deeply influenced by Locke
as well as by English documents. Magna Carta
(1215) and the Declaration of Rights (1689)
restricted the power of the king or queen to
take belongings or put people in jail at random.
Eventually, British abuse of property rights
pushed many colonists to argue for revolution.
They had had enough of forced housing
of troops, searches with no warrants, and
excessive fines.
How Did the Founders View Property?
Thomas Jefferson used one of Locke’s famous
phrases dealing with property in the Declaration
of Independence (1776). Locke wrote that
people have natural rights to “life, liberty, and
property.” Jefferson changed it to “life, liberty,
and the pursuit of happiness.” He did not
change Locke’s meaning so much as expand
it. Colonists would have thought of ideas as
well as material things as “property.” Jefferson
believed the enjoyment of material things and
the satisfaction of creativity were essential to
happiness.
takes property. The Seventh Amendment
addresses the right to a jury trial in common
law suits involving more than twenty dollars,
and the Eighth protects the freedom from
excessive fines. The Founders understood that
the protection of all kinds of property was key to
protecting all rights.
James Madison, author of the Bill of Rights
(1791), believed property rights to be the key
to protecting all rights. These rights are the
purpose of all “just government,” as he put
it. His famous work, Property, was published
one year after the Bill of Rights. In it, Madison
argues that man has a property in not just his
body and possessions. He also has a property
(an interest) in the maintaining and exercise
of opinions and religious beliefs. Madison
noted that security of property plays a big role
in personal growth. It allows each person “the
free use of his faculties and free choice of the
objects on which to employ them.”
Questions of property law are at the center of
many social concerns today. Some examples
are environmental issues, conservation of
endangered species, and even the legality of
music-exchange websites. Individual property
rights must be balanced with legitimate state
concerns about natural resources, and Internet
music sharers must consider whether they are
“sharing” or “stealing.”
How Do Property Laws Affect Modern
Life?
Madison strongly believed in a commercial
republic. He urged Americans to protect the
acquiring and owning of property through
hard work. He criticized excessive taxes.
Madison concluded with a warning to his fellow
citizens: “If the United States mean to obtain
or deserve the full praise due to wise and just
governments, they will equally respect the
rights of property, and the property in rights.”
Items that are intangible, like music, art,
discoveries, and inventions, are considered
intellectual property. Intellectual property
is protected by Article I, Section 8 of the
Constitution: “To promote the progress of
science and the useful arts, by securing for
limited times to authors and inventors the
exclusive right to their respective writings
and discoveries.” These types of property are
protected by trademarks, copyrights, patents,
and the like. Intellectual property has become
a hot-button issue in recent decades with
the expansion of Internet-based sharing of
property.
It is no accident that half the Bill of Rights
contains property protections. The Third and
Fourth Amendments assure freedom and
security of one’s home and possessions, while
the Fifth Amendment guarantees due process
and just compensation when the government
The property protections in the Bill of Rights are
essential to liberty. If the government can take
anything from anybody at any time, no one can
be free. As students and as citizens, your right
to control your own property is one way you
have the power to live as you wish.
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Comprehension Questions
1. What is self-ownership? How did the Founders use this philosophy in the Constitution and Bill
of Rights?
2. How did James Madison define property?
3. Why did the Founders believe that protecting property was key in protecting all rights?
4. How has the growth of the Internet caused concerns for property rights?
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Handout C: Understanding the Third, Fourth,
Fifth, Seventh, and Eighth Amendments
Directions: Below each Amendment, explain how each provision safeguards individual property
rights.
1. Third Amendment: No Soldier shall, in time of peace, be quartered in any house, without the
consent of the Owner; nor in time of war, but in a manner to be prescribed by law.
2. Fourth Amendment: The right of the people to 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.
3. Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself; nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be taken for public use
without just compensation.
4. Seventh Amendment: In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be
otherwise re-examined in any Court of the United States, than according to the rules of the
common law.
5. Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor
cruel or unusual punishments inflicted.
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Handout D: English Origins of Property
Protections
Directions: Read the following excerpts from legal and philosophical sources, and answer the
questions that follow each excerpt.
Magna Carta (1215)
“12. No scutage (tax) or aid shall be imposed
on our kingdom, unless by common counsel of
our kingdom.”
“27. If any freeman shall die intestate (without
a will), his chattels shall be distributed by the
hands of his nearest kinsfolk or friends, under
the supervision of the Church, saving to every
one the debts which the deceased owed to
him.”
“30. No sheriff or bailiff of ours (the King), or
other person, shall take the horses or carts of
any freeman for transport duty, against the will
of the said foreman.”
“31. Neither [the King nor his] bailiffs shall take,
for our castles or for any other work of ours,
wood which is not ours, against the will of the
owner of that wood.”
“55. All fines made with us unjustly and against
the law of the land … shall be entirely remitted
(set aside)…”
1. What kinds of property protections do
you see in the Magna Carta excerpts?
William Blackstone, Commentaries 1:137-38
(1765)
“…Neither his majesty, nor his privy council,
have any jurisdiction, power, or authority by
English bill, petition, articles … or by any other
arbitrary way whatsoever, to examine, or draw
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into question, determine or dispose of the lands
or goods of any subjects of this kingdom; but
that the same ought to be tried and determined
in the ordinary courts of justice, and by course
of law.”
1. In his explanation of English common
law, what power does Blackstone
say the King does NOT have over his
subjects’ property?
2. Who or what does Blackstone say
may have the power over the “lands
or goods” of subjects?
John Locke, Second Treatise of Civil
Government (1689)
“[People are] willing to join in society with
others … for the mutual preservation of their
lives, liberties, and estates, which I call by
the general name, property. The great and
chief end, therefore, of men’s uniting into
commonwealths, and putting themselves
under government, is the preservation of their
property.”
1. Why does philosopher John Locke
say that people choose to unite into
societies?
2. What does Locke say is the most
important reason people need
government?
Handout E: Samuel Adams, James Madison,
and Property
Excerpts from The Rights of the
Colonists (1772), by Samuel Adams
“Among the natural rights of the Colonists are
these: First, a right to life; Secondly, to liberty;
Thirdly, to property; together with the right to
support and defend them in the best manner
they can…
The Legislative has no right to absolute,
arbitrary power over the lives and fortunes
of the people; nor can mortals assume a
prerogative not only too high for men, but for
angels, and therefore reserved for the exercise
of the Deity alone.
There should be one rule of justice for rich
and poor, for the favorite at court, and the
countryman at the plough…
The supreme power cannot justly take from
any man any part of his property, without his
consent in person or by his representative.
These are some of the first principles of natural
law and justice… Now what liberty can there be
where property is taken away without consent?”
1. What role does Adams argue the
government should have with respect
to “property”?
Excerpts from Property (1792), by James
Madison
“This term [property] … means “that dominion
which one man claims and exercises over the
external things of the world, in exclusion of
every other individual.”
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In its larger and juster meaning, it embraces
every thing to which a man may attach a value
and have a right; and which leaves to every
one else the like advantage.
In the former sense, a man’s land, or
merchandise, or money is called property.
In the latter sense, a man has property in his
opinions and the free communication of them.
He has a property of a peculiar value in his
religious opinions, and in the profession and
practice dictated by them.
He has a property very dear to him in the safety
and liberty of his person.
He has an equal property in the free use of
his faculties and free choice of the objects on
which to employ them.
In a word, as a man is said to have a right to
his property, he may be equally said to have a
property in his rights…
Conscience is the most sacred of all
property…”
1. What do you believe James Madison
means by “property”?
2. Circle each kind of property to which
Madison refers. Are these what you
normally think of as “property”?
Explain.
Handout F: The Bill of Rights and Property
Directions: Read over the Bill of Rights and underline the words and phrases that secure
protections for physical (or “real”) property. Then circle the words and phrases that secure
protections of the other kinds of property Madison mentions.
First Amendment
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.
Second Amendment
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.
Third Amendment
No Soldier shall, in time of peace, be quartered
in any house, without the consent of the
Owner; nor in time of war, but in a manner to be
prescribed by law
Fourth Amendment
The right of the people to 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.
Fifth Amendment
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
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presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness
against himself; nor be deprived of life, liberty,
or property, without due process of law; nor
shall private property be taken for public use
without just compensation.
Sixth Amendment
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the state and district wherein
the crime shall have been committed, which
district shall have been previously ascertained
by law, and to be informed of the nature and
cause of the accusation; to be confronted with
the witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the assistance of counsel for his
defense.
Seventh Amendment
In Suits at common law, where the value
in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved,
and no fact tried by a jury shall be otherwise
reexamined in any Court of the United States,
than according to the rules of the common law.
Eighth Amendment
Tenth Amendment
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel or unusual
punishments inflicted.
The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively,
or to the people.
Ninth Amendment
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or
disparage others retained by the people.
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FOUNDING PRINCIPLES COURSE Private Property Module
Private Property Module: How Does the Fifth
Amendment Protect Property?
Overview
The Founders believed that property is among the natural rights governments exist to protect.
One of the ways the Founders protected property rights was in the Fifth Amendment. The Fifth
Amendment restricts the government’s ability to take property and ensures that when it does take
property, it must pay for it. When do governments’ actions become a taking, and when should the
government pay for an intrusion?
Recommended Time
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
95 minutes
Objectives
�
�
�
�
Students will understand how the Fifth
Amendment protects property rights.
�
Students will analyze the Fifth Amendment’s
due process, eminent domain, and just
compensation clauses.
Analyze government actions to determine
whether or not the actions would be
considered a “taking.”
Students will evaluate how the Supreme
Court has interpreted the Takings Clause.
Materials
�
Handout A: The Takings Clause
Handout B: Background Essay - How Does the
Fifth Amendment Protect Property?
Handout C: Property and the Supreme Court
Handout D: Updates
�
North Carolina Clarifying Objectives
�
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
В© The Bill of Rights Institute
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
FOUNDING PRINCIPLES COURSE �
�
�
�
�
�
Private Property Module
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those rights
have been upheld by democratic government
in the United States.
Materials
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ® Identify issues and problems in the past.
пЃ® Consider multiple perspectives of various
peoples in the past.
пЃ® Analyze cause-and-effect relationships
and multiple causation.
пЃ® Evaluate the influence of the past on
contemporary issues.
Handout C: Property and the Supreme Court
AH1.H.1.4: Use Historical Research to:
пЃ® Formulate historical questions.
пЃ® Obtain historical data from a variety of
sources.
пЃ® Support interpretations with historical
evidence.
пЃ® Construct analytical essays using historical
evidence to support arguments.
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH2.H.2.2: Evaluate key turning points
since the end of Reconstruction in terms
of their lasting impact (e.g., conflicts,
legislation, elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH2.H.4.2: Analyze the economic issues
and conflicts that impacted the United
States since Reconstruction and the
compromises that resulted (e.g., currency
policy, industrialization, urbanization, laissezfaire, labor unrest, New Deal, Great Society,
supply-side economics, etc.).
В© The Bill of Rights Institute
Handout A: The Takings Clause
Handout B: Background Essay - How Does the
Fifth Amendment Protect Property?
Handout D: Updates
Lesson Plan
Background/Homework [15 minutes]
A. Have the students work in pairs or groups to
complete Handout A: The Takings Clause.
B. As a large group, discuss the definitions
they arrived at by consensus and clear up
any misconceptions.
Warm-Up [20 minutes]
A. Have students read Handout B:
Background Essay - How Does the Fifth
Amendment Protect Property?
B. Discuss each definition on Handout Bas a
class.
Activity [40 minutes]
1. Cut out the scenario cards on Handout C:
Property and the Supreme Court. Ask two
students to come to the front of the room,
assume the roles of the people on the first
scenario card, and present the information
to the class in role-play form.
2. After students have finished presenting,
conduct a large-group discussion about the
situation.
a. Ask the class:
i. Is the situation described a “taking”
of property?
ii. Is the situation described
a constitutional exercise of
government power?
FOUNDING PRINCIPLES COURSE iii. If so, what would be the best way to
determine just compensation?
b. Repeat this process for all three
scenarios.
A. After the scenarios have all been
discussed, distribute or read aloud
Handout D: Updates to share with the
students how the Supreme Court ruled
on each case. Ask students to share their
reactions to the ruling.
Wrap-Up [20 minutes]
A. As a large group, discuss the following
questions:
a. In which case did the government
attempt to take physical property?
(Nollan v. California Coastal
Commission, 1987)
b. In which case did the Court rule that a
“taking” had occurred, even though no
land was actually taken? (United States
v. Causby, 1946)
c. In which case did the Supreme Court
interpret “public use” as “public benefit?
Is there a difference? (Kelo v. New
London, 2005)
d. How does the Kelo ruling differ from
the other property rulings? Why do you
think it has been a very controversial
decision?
e. Is redevelopment through eminent
domain the only way to revitalize a
neighborhood? Is it the best way? What
other methods can you think of?
В© The Bill of Rights Institute
Private Property Module
Assessment
A. Have students respond in a one-paragraph
journal entry to an excerpt from Sandra Day
O’Connor’s dissent in Kelo v. New London
(2005):
a. “The specter of condemnation hangs
over all property. Nothing is to prevent
the State from replacing any Motel
6 with a Ritz-Carlton, any home with
a shopping mall, or any farm with a
factory.”
B. The Supreme Court decision in Kelo v. New
London (2005) has prompted some states
to enact laws preventing the use of eminent
domain to take non-blighted property for
economic development. Eleven state
supreme courts have forbidden Kelo-style
use of eminent domain under their state
constitutions.
a. Have students create a PowerPoint
or oral presentation that explains the
background of the Kelo case, gives
examples of state supreme court rulings
regarding eminent domain after Kelo,
and the possible long-term effects of the
Kelo decision.
FOUNDING PRINCIPLES COURSE Private Property Module
b. Rubric:
Category
1
2
3
4
Case
background
on Kelo v. New
London (2005)
Kelo case
background
is missing or
incomplete.
Kelo case
background is
included.
Kelo case
background is
explained.
Kelo case
background is
explained in
detail.
State supreme
court case
regarding
eminent
domain.
State supreme
court cases
regarding
eminent
domain are not
addressed.
One state
supreme court
case regarding
eminent domain
is addressed.
Two state
supreme court
cases regarding
eminent domain
are addressed.
Three or more
state supreme
court cases
regarding
eminent domain
are addressed.
Long-term
effects of Kelo.
No long-term
effects of the
Kelo decision are
addressed.
One example
of a long term
effect of the
Kelo decision is
addressed and
explained.
Two examples
of a long term
effects of the
Kelo decision are
addressed and
explained.
Three or more
examples of long
term effects of the
Kelo decision are
addressed and
explained.
Presentation
Presentation
lacks clarity and/
or creativity.
Presentation is
somewhat clear
and/or creative.
Presentation
is clear and
creative.
Presentation is
extremely clear
and creative.
В© The Bill of Rights Institute
Handout A: The Takings Clause
Directions: Read the following excerpt from the Fifth Amendment. With your group members,
come to a consensus about how best to define the terms below. Then, in the space below,
brainstorm facilities or purposes that could be considered “public use.”
“No person shall… be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.”
1. Definition of “due process of law”:
2. Definition of “taking”:
3. Definition of “public use”:
4. Definition of “just compensation”:
5. Examples of things that could be considered “public use”:
В© The Bill of Rights Institute
Handout B: Background Essay – How Does the
Fifth Amendment Protect Property?
If a person owns some beautiful land and
wants to build her home there, who is to say
she cannot? But what if there were threethousand-year old redwood trees on that
land and building would mean cutting them
down? Or what if the land is on the beach
where construction would cause erosion and
destruction of the shoreline? Are these valid
reasons for the government to take the land?
What Does the Fifth Amendment
Guarantee?
Among other things, the Fifth Amendment
guarantees that people have the right to their
life, liberty, and property. The government
cannot randomly decide to meddle with
those things without a reason, or without
following due process. Due process means
the government must act fairly and obey legal
procedures when it tries to take property.
The just compensation clause of the Fifth
Amendment means the federal government
must pay for any private property it does take
for public use.
What Is a Taking?
Although the Constitution protects private
property, the government can sometimes seize
or restrict the use of that property. It can take
property in the name of the public good. This is
called a taking.
What Is Eminent Domain?
The Founders realized they needed to
balance taking property for government use
В© The Bill of Rights Institute
and protecting individuals’ rights to property.
Sometimes the government needs land to build
a road, school, post office, or military base.
Historically, most takings happened through
eminent domain. Eminent domain refers to
the government’s right to acquire private
property for public use. In the 1800s, eminent
domain was used to claim land for railroads.
In the twentieth century, it was used to remove
residents from land along planned interstate
highway routes. Even in cases of eminent
domain, the government must provide just
compensation.
What Is Just Compensation?
Individuals can sue the government to be
reimbursed (paid back) for the lost value
of their property. They are asking for just
compensation. It is often difficult to determine
the amount of just compensation. Today, the
Supreme Court generally uses the fair market
value standard, defining just compensation as
“what a willing buyer would pay in cash to a
willing seller at the time of the taking.”
Recently, the government has been required
to pay citizens, even if it did not actually take
land. Some people have lost some or all of their
property’s value through regulation or other
government actions. They have claimed a right
to be paid for a partial taking.
In Lucas v. South Carolina Coastal Commission
(1992), the Court ruled that the owner of
beachfront land must be paid back after a
state law stopped all new construction on the
property. Lucas had intended to build singlefamily homes on the land. Since he could no
longer do this, the land’s economic value was
reduced to zero. The Court ruled that this was
a taking even though the land had not literally
been taken away, because the state took away
all of the economic value of the land
More recently, in general, the Court has not
taken the side of private property rights. It has
generally sided with state and federal power to
regulate. In Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency (2002),
the Tahoe Regional Planning Agency called a
halt on new building at Lake Tahoe for nearly
three years, but this delay went on to last for
nearly twenty years. Property owners claimed
that this ban was a taking and they should
be paid back. The Court did not agree. In its
decision, the Court ruled that, “a temporary
restriction causing a diminution in value is not
[a taking].”
Kelo v. New London (2005) became the
landmark case surrounding the government’s
ability to exercise eminent domain and changed
the concept of public use versus private use
forever. Suzette Kelo was forced from her
property in New London, Connecticut when the
local government used the Takings Clause of
the Fifth Amendment. The Takings Clause of
the Fifth Amendment allows the government
to take private land for the purpose of “public
use.” While the term “public use” formally
relates to the building of highways, railroads, or
other uses that constituted the public welfare or
public interest, Kelo’s land was to be used for a
private business venture.
The Court ruled that the taking of Kelo’s
property was constitutional because the
В© The Bill of Rights Institute
public would benefit from increase in jobs, tax
revenue, and economic development. In the
majority opinion, Justice Stevens stated, “The
city has carefully formulated a development
plan that it believes will provide appreciable
benefits to the community.” However, in
the dissenting opinion, Justice Sandra Day
O’Connor asserted that, “Any property may
now be taken for the benefit of another private
party, but the fallout of this decision will not be
random. The beneficiaries are likely to be those
citizens with disproportionate influence and
power in the political process, including large
corporations and development firms.”
The ruling in Kelo has spurred legislation
at both the state and federal level in an
attempt to clearly define “public use” and
“just compensation.” As for the land in the
Kelo case, it remains vacant. The economic
development which forced Suzette Kelo out of
her home never materialized.
Are Ideas Property?
Property is not always touchable or concrete.
Authors, researchers, inventors, and artists
also have a strong interest in protecting their
rights to the products of their minds. These
things are called intellectual property. Songs,
books, or poems are property, just like cars,
houses, or land.
The Internet has been an unmatched way of
issuing information, but it has also made it
much easier to steal intellectual property. Books
and music can be downloaded for free, taking
payment away from the authors and musicians.
Some argue that if these owners do not think
they will be justly paid for their work, they may
produce less. The consequences to our culture
may be huge: fewer novels, fewer medicines,
fewer inventions, and less art. Others argue
that few ideas are truly and wholly original but
build on the efforts of prior artists and creators.
Therefore, they say, giving too much protection
to intellectual property can have the effect of
reducing creative output.
The Founders believed that protecting private
property was key to economic prosperity.
As James Madison wrote, “Government is
instituted to protect property of every sort … [It]
will equally represent the rights of property, and
the property in rights.”
В© The Bill of Rights Institute
Comprehension Questions
1. What does the Fifth Amendment
guarantee?
2. What is just compensation?
3. Why was the case Lucas v. South Carolina
Coastal Commission considered a taking?
4. Why was the Kelo v. New London case
considered a landmark Supreme Court
case?
Handout C: Property and the Supreme Court
Scenario One
Scenario Two
1. My name is Bob Dale, and I work on the
Ventura, California Coastal Commission. We’re
very proud of our gorgeous beaches. As our
population has grown, more and more people
want to experience them. Congestion on public
beaches is worsening. We’ve made it a rule now
that whenever people apply for building permits
to do new construction on the beach, they will
have to provide public walkways on their land.
We believe this will cut down on congestion.
1. My name is Thomas Lee Causby. My wife
Tinnie and I bought 2.8 acres of land in North
Carolina several years ago. We decided it
would be the perfect place for raising chickens.
It was the perfect place until Army planes
started taking off from the nearby airport.
Now it’s unusable because of all the airplane
noise. Therefore, I believe we’re entitled to just
compensation from the government, since the
government is causing the noise.
2. My name is Mr. Nollan. My wife and I have
a small bungalow on our Ventura beach front
property. It has gotten kind of run down, and
we’d like to tear it down and build a new, threebedroom house similar to the other ones in
the area. We applied to the city for a building
permit, but we were told we would not be able
to get one unless we let the government build a
public walkway through the middle of our land
so people can walk across it. We don’t want
to do this, and furthermore, we believe it’s an
unconstitutional demand.
2. I am Rachel Ash, an attorney for North
Carolina. I don’t believe the Causbys are
entitled to compensation from the government.
Their land was not taken from them. The
government has never set foot on their land
and has not physically intruded on it in any way.
Furthermore, the Causbys knew the land was
close to the airport when they bought the land.
3. Dale: We believe that a walkway would serve
a legitimate public purpose, especially since the
Nollan’s land is surrounded by public beach on
all sides. We told everyone we were going to
make these walkways a condition of new building
permits, so I don’t know what they’re complaining
about. The government is not taking their land
away; we’re just asking that they let people walk
through a small part of it. If they don’t like it, then
they don’t have to build a new house.
4. Nollan: They can’t restrict the use of our
land this way without paying us for it.
В© The Bill of Rights Institute
3. Causby: We knew it was just over 2,000 feet
from an airport, but only a few commercial flights
and crop dusters took off from there. It was many
years after we bought that the Army started using
the airport. Their planes are constantly flying right
over us–just 67 feet over us to be exact. The
noise keeps us awake and we lost 150 chickens
because they would get so scared from the noise
that they’d fly into the walls of the barn and die.
I think that even though the government didn’t
physically “take” our land, that we are entitled to
just compensation.
4. Ash: I don’t know why Mr. Causby is
complaining; he and his wife still own
every acre of land that they did before. The
government has not “taken” anything.
Scenario Three
1. My name is Suzette Kelo. About seven
years ago I bought a Victorian home on the
Thames River in Connecticut. I spent seven
years restoring my house and I really love it
here. The city has been somewhat depressed
economically, although the area surrounding
my home is in good shape. Now I just found out
that the city wants to take my land so that the
area can be re-energized.
3. Kelo: I think this is an unconstitutional
taking, because the Fifth Amendment only
says that property can be taken “for public
use.” This means something like a library or
highway— something the public will actually
use. I am fighting this because I believe it is
an unconstitutional infringement on my right to
private property. Fourteen of my neighbors are
joining me.
2. My name is Jason Helm, and I am on the
New London City Council. We plan to take
Ms. Kelo’s land using our power of eminent
domain and turn it over to a private developer.
The developer will build a new facility for
a pharmaceutical company that will create
hundreds of jobs and $680,000 in new tax
revenue for the city. They will also build upscale
condominiums. All these things will benefit the
community and therefore amount to “public
use.”
4. Helm: The residents of New London can
certainly “use” the additional money that will
be brought in to this depressed area by the
new development. I believe this taking is
constitutional because it will benefit the city.
В© The Bill of Rights Institute
Handout D: Updates
Scenario One
Scenario Three
In Nollan v. California Coastal Commission
(1987) the Court held that “where individuals
are given a permanent and continuous right to
pass to and fro, so that the real property may
continuously be traversed,” there was a taking
of property. Therefore, the government could
not make the public walkway a condition of a
building permit. If the government wished to
take the property, it would have to exercise
its power of eminent domain and provide the
owners with just compensation: “If it wants an
easement across the Nollans’s property, it must
pay for it.”
The Supreme Court ruled on Kelo v. New
London in 2005. The Court agreed with
the city of New London and held that the
government could take land from citizens in
order to turn it over to a private developer. The
Court explained that it had “rejected a literal
requirement” of the phrase “public use” in the
Takings Clause of the Fifth Amendment. The
phrase “public use” could be interpreted as
“public benefit.” Therefore, the government can
take private property from an individual in order
to turn it over to a private developer because
the taking will result in “economic development”
for the region.
Scenario Two
The Court found a taking in United States
v. Causby (1946) when low-flying jets at an
airbase made farming impossible on nearby
land even though the government never
actually claimed the land itself. The Court held,
“As a result of the noise, respondents had to
give up their chicken business. As many as six
to ten of their chickens were killed in one day
by flying into the walls from fright... Production
also fell off. The result was the destruction
of the use of the property as a commercial
chicken farm.” The Causbys were entitled to
just compensation from the government. “It is
the owner’s loss, not the taker’s gain, which is
the measure of the value of the property taken.”
В© The Bill of Rights Institute
Private Property Module Answer Key
Lesson One: What Is Property? Why
Protect It?
Handout A: Property or Not?
1.
2.
3.
4.
5.
6.
7.
Property
Property
Property
Property
Property
Property
Property
Handout B: Background Essay - What
Is Property? Why Protect It?
1. Ownership means one has the legitimate
right to control and direct the use of an
object or idea. Self-ownership means a
person has control and directs the use of
him or herself, as long as it does not harm
another or interfere with others’ rights to do
the same.
2. Madison believed that man has a property
in not just his body and possessions.
He also has property (an interest) in the
maintaining and exercising of opinions and
religious beliefs.
3. Accepted reasoned answers.
4. Intellectual property rights are more difficult
to protect as people share copyrighted
materials online.
Handout C: Understanding the Third,
Fourth, Fifth, Seventh, and Eighth
Amendments
1. Third: Recognizes the right of people to
control the property in their homes.
В© The Bill of Rights Institute
2. Fourth: Recognizes the right of people to
control (be secure) in their persons (selfownership) and homes (physical property).
3. Fifth: Safeguards private property
ownership by ensuring due process when
the government tries to take property.
The Fifth Amendment also provides for
government to pay property owners in those
times when it does take their property.
4. Seventh: Ensures a jury trial to safeguard
property rights in disputes.
5. Eighth: Protects property rights (money) by
prohibiting excessive bail and fines.
Handout D: English Origins of
Property Protections
Magna Carta
1. The Magna Carta protects money, chattels,
horses, carts, and wood.
Blackstone
1. Blackstone says the king and his privy
council cannot arbitrarily give or remove
land from citizens unless determined by a
court.
2. Blackstone says that only the courts or the
course of law have power over lands or
goods.
Locke
1. Locke said that people join societies to
preserve their property rights.
2. Locke believed that people need
government to protect their property.
Handout E: Samuel Adams, James
Madison, and Property
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.
Adams
1. The government cannot justly take from any
man any part of his property, without his
consent in person or by his representative.
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Madison
1. Madison believed property included: a
man’s land, merchandise, money. He also
believed that a man has property in his
opinions and the free communication of
them including religious opinions, and the
free use of his faculties. Property can also
be found in the safety and liberty of one’s
self.
2. See previous answer and accept reasoned
answers.
Handout F: The Bill of Rights and
Property
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Real property examples:
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The right of the people to keep and bear
arms.
No soldier shall, in time of peace, be
quartered in any house, without the consent
of the Owner.
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures.
Nor be deprived of life, liberty, or property,
without due process of law.
Nor shall private property be taken for public
use without just compensation.
Excessive bail shall not be required.
Other property examples:
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Congress shall make no law respecting
an establishment of religion, or prohibiting
В© The Bill of Rights Institute
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No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand
Jury.
Nor shall any person be subject for the
same offense to be twice put in jeopardy of
life or limb.
Nor shall be compelled in any criminal case
to be a witness against himself.
The accused shall enjoy the right to a
speedy and public trial, by an impartial jury
of the state and district wherein the crime
shall have been committed.
To be informed of the nature and cause of
the accusation; to be confronted with the
witnesses against him.
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and
no fact tried by a jury shall be otherwise reexamined in any Court of the United States.
Lesson Two: How Does the Fifth
Amendment Protect Property?
Handout A: The Takings Clause
1. Due Process: Due process means the
government must act fairly and obey legal
procedures when it tries to take property.
2. Taking: The government can sometimes
seize or restrict the use of property. It can
take property in the name of the public
good.
3. Public Use: The use of land for the benefit
of the public.
4. Just Compensation: The Just
Compensation Clause of the Fifth
Amendment means the federal government
must pay for any private property it does
take for public use.
5. Examples of things that could be
considered “public use”: roads, schools,
post offices, military bases, railroads,
interstate highways, canals.
Handout B: Background Essay - How Does
the Fifth Amendment Protect Property?
1. The Fifth Amendment guarantees that
people have the right to their life, liberty,
and property. The government cannot
randomly decide to meddle with those
things without a reason, or without following
due process.
2. The Court ruled that this was a taking even
though the land had not literally been taken
away, because the state took away all of
the economic value of the land.
3. Lucas v. South Carolina Coastal
Commission was considered a taking
because the state had taken away the
value of the land because owners were not
allowed to build on it.
4. Kelo v. New London (2005) became
the landmark case surrounding the
government’s ability to exercise eminent
domain and changed the concept of public
use versus private use forever.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Due Process Module
Founding Principles Module:
Due Process Introduction
The Founding principle of due process means that the government must interact with all citizens
according to duly-enacted laws, applying these rules equally among all citizens.
Lesson One: How Do Due Process
Protections for the Accused Aim to
Protect Us All?
Objectives
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Students will:
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Overview
Throughout history, many governments’
treatment of the accused has served as a
hallmark of tyranny and unlimited government.
While British subjects were some of the
freest people on earth in the 1700s, American
colonists experienced a variety of legal abuses
at the hands of the mother country and
found themselves outside of many common
protections afforded to English citizens. The
Founders paid close attention to the rights of
the accused because they realized that this
was one group of people who particularly
needed protection from government. Nearly
half of the Bill of Rights involves some aspect
of these protections. Numerous “checks” within
legal processes help ensure the system is as
free of bias as possible, and protect individuals
from the potentially overwhelming power and
resources of government. Understanding
how the Fourth, Fifth, Sixth, and Eighth
Amendments operate to guarantee such
protection and how they work to both ensure
individual liberty and limit government power, is
vital to maintaining free citizenship.
Recommended Time
50 minutes
В© The Bill of Rights Institute
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Explain why criminal and civil procedure
protections came to be included in the
Bill of Rights.
Identify ways in which these protections
serve to ensure liberty and limit
government.
Analyze specific protections found in the
Fourth, Fifth, Sixth, Seventh, and Eighth
Amendments.
Evaluate Supreme Court rulings
concerning the Eighth Amendment’s
Cruel and Unusual Punishment Clause.
North Carolina Clarifying Objectives
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule of
FOUNDING PRINCIPLES COURSE law, limited government, democracy, consent
of the governed, etc.).
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CE.C&G.2.6: Evaluate the authority federal,
state, and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of how the
words in the Constitution and Bill of Rights
have been interpreted and applied throughout
their existence (e.g., precedents, rule of law,
stare decisis, judicial review, supremacy, equal
protections, “establishment clause”, symbolic
speech, due process, right to privacy, etc.).
Due Process Module
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CE.C&G.3.7: Summarize the importance of
the right to due process of law for individuals
accused of crimes (e.g., habeas corpus,
presumption of innocence, impartial tribunal,
trial by jury, right to counsel, right against
self-incrimination, protection against double
jeopardy, right of appeal).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those rights
have been upheld by democratic government
in the United States.
В© The Bill of Rights Institute
пЃ®
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2. Differentiate between historical facts
and historical interpretations.
4. Analyze visual, literary and musical
sources.
1. Identify issues and problems in the
past.
3. Analyze cause-and-effect relationships
and multiple causation.
5. Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
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1. Reconstruct the literal meaning of a
historical passage.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
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CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
AH1.H.1.2: Use Historical Comprehension to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support arguments.
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
FOUNDING PRINCIPLES COURSE Lesson Two: The Fourteenth
Amendment and Incorporation
Overview
Incorporation—the application of parts of
the Bill of Rights to the states through the
Fourteenth Amendment—is a complex legal and
constitutional issue. Incorporation deals with
two significant questions: Does the Constitution/
Fourteenth Amendment permit states to
understand the fundamental rights of Americans
in fundamentally different ways? Which level of
government can best protect those rights? The
concept of incorporation is key to understanding
the explosion of cases involving the Bill of Rights
in the 20th and 21st centuries, as well as the
increased role of the Supreme Court in defining
and defending the rights of Americans.
Due Process Module
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North Carolina Clarifying Objectives
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Recommended Time
50 minutes
Objectives
Students will:
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Contrast the Founders’ divergent views
about which level of government can best
protect individual liberty.
Explain the constitutional significance of the
Fourteenth Amendment.
Analyze the constitutional implications of
incorporation.
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Evaluate how the Fourteenth Amendment
has been used to protect individual rights.
Analyze the various approaches to
incorporation in the twentieth and twentyfirst centuries.
Understand the concept of “fundamental
fairness”.
В© The Bill of Rights Institute
Contrast the Founders’ divergent views
about which level of government can best
protect individual liberty.
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.2.6: Evaluate the authority federal,
state, and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
FOUNDING PRINCIPLES COURSE Due Process Module
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
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CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.7: Summarize the importance of
the right to due process of law for individuals
accused of crimes (e.g., habeas corpus,
presumption of innocence, impartial tribunal,
trial by jury, right to counsel, right against
self-incrimination, protection against double
jeopardy, right of appeal).
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CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
1. Identify issues and problems in the
past.
3. Analyze cause-and-effect relationships
and multiple causation.
5. Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
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4. Analyze visual, literary and musical
sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
пЃ®
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2. Differentiate between historical facts
and historical interpretations.
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support arguments.
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
Assessment
AH1.H.1.2: Use Historical Comprehension to:
Overview
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1. Reconstruct the literal meaning of a
historical passage.
В© The Bill of Rights Institute
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AH2.H.5.2: Explain how judicial, legislative
and executive actions have affected the
distribution of power between levels of
government since Reconstruction (e.g., New
Deal, Great Society, Civil Rights, etc.).
Recommended Time
60-90 minutes
FOUNDING PRINCIPLES COURSE Due Process Module
Assignment
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Have students find an online article about a
fundamental freedom protected by the Bill
of Rights and write a response to the article.
Students should:
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Identify and define the fundamental right.
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Identify the amendment protecting that
fundamental right and how the right is
protected by the amendment.
Describe what action is being taken by
either the federal or state government
concerning the fundamental right.
Explain whether or not the action violates
a fundamental right.
Determine the best way to resolve any
conflict between the individual’s freedom
and the government’s position.
Rubric
Category
1
2
3
4
Identify and define the
fundamental right.
Student does
not identify or
define the right.
Student identifies
the right.
Student identifies
the right, but
does not give
a complete
definition.
Student identifies
and clearly defines
the right.
Identify the amendment
protecting that
fundamental right
and how the right
is protected by the
amendment.
Student does
not identify the
amendment or
protections.
Student identifies
the amendment,
but does not
explain how
the right is
protected by the
amendment.
Student identifies
the amendment,
but gives
incomplete
information about
how the right is
protected by the
amendment.
Student identifies the
amendment and how
it protects the right.
Describe what action is
being taken by either
the federal or state
government concerning
the fundamental right.
Student does
not describe the
action.
Student states
what action was
taken but no
further explanation
is given.
Student briefly
explains the action
taken but does not
include a specific
description.
Student gives a
thorough description
and explanation of
the action taken.
Explain whether or not
the action violates a
fundamental right.
Student does
not state or
explain whether
or not an action
violates a
fundamental
right.
Student states
whether or not the
action violates a
fundamental right
but no explanation
is given.
Student gives an
explanation of
whether or not the
action violates a
fundamental right
but lacks specific
examples.
Student gives a
thorough explanation
of whether the
action violates
a fundamental
right and includes
examples.
Determine the best way
to resolve any conflict
between the individual’s
freedom and the
government’s position.
Student does
not state the
best way to
resolve the
conflict.
Student states
a way to resolve
the conflict that is
unrealistic.
Student states
a way to resolve
the conflict with
possible outcomes
or effects.
Student states a way
to resolve the conflict
with outcomes
and effects of the
resolution.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Due Process Module
Due Process Module: How Do Due Process
Protections for the Accused Aim to Protect Us
All? Lesson
Overview
While British subjects were some of the freest people on earth in the 1700s, American colonists
experienced a variety of legal abuses at the hands of the mother country and found themselves
outside of many common protections afforded to English citizens. The Founders paid close
attention to the rights of the accused because they realized that this was one group of people
who particularly needed protection from government. Understanding how the Fourth, Fifth, Sixth,
and Eighth Amendments operate to guarantee such protection and how they work to both ensure
individual liberty and limit government power, is vital to maintaining free citizenship.
Recommended Time
pursuit of happiness, self-government,
representative democracy, equal opportunity,
equal protection under the law, diversity,
patriotism, etc.).
50 minutes
Objectives
Students will:
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Understand why criminal and civil procedure
protections came to be included in the Bill of
Rights.
Identify ways in which these protections
serve to ensure liberty and limit government.
Understand and articulate specific
protections found in the Fourth, Fifth, Sixth,
Seventh, and Eighth Amendments.
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Evaluate Supreme Court rulings concerning
the Eighth Amendment’s Cruel and Unusual
Punishment Clause.
North Carolina Clarifying Objectives
�
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
В© The Bill of Rights Institute
�
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.2.6: Evaluate the authority federal,
state, and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of how the
words in the Constitution and Bill of Rights
have been interpreted and applied throughout
their existence (e.g., precedents, rule of law,
stare decisis, judicial review, supremacy, equal
FOUNDING PRINCIPLES COURSE Due Process Module
protections, “establishment clause”, symbolic
speech, due process, right to privacy, etc.).
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CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.7: Summarize the importance of
the right to due process of law for individuals
accused of crimes (e.g., habeas corpus,
presumption of innocence, impartial tribunal,
trial by jury, right to counsel, right against
self-incrimination, protection against double
jeopardy, right of appeal).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
• AH1.H.1.2: Use Historical Comprehension to:
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1. Reconstruct the literal meaning of a
historical passage.
2. Differentiate between historical facts
and historical interpretations.
4. Analyze visual, literary and musical
sources.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
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1. Identify issues and problems in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
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AH1.H.1.4: Use Historical Research to:
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5. Evaluate the influence of the past on
contemporary issues.
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support arguments.
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH1.H.4.1: Analyze the political issues and
conflicts that impacted the United States
through Reconstruction and the compromises
that resulted (e.g., American Revolution,
Constitutional Convention, Bill of Rights,
development of political parties, nullification,
slavery, states’ rights, Civil War).
Materials
Handout A: Background Essay - How Do Due
Process Protections for the Accused Aim to
Protect Us All?
Handout B: Criminal and Civil Procedure
Protections
Handout C: Defining Cruel and Unusual
Handout D: Cruel and Unusual?
FOUNDING PRINCIPLES COURSE Lesson Plan
Background/Homework [20 minutes
the day before]
A. Have students read Handout A: Background
Essay - How Do Due Process Protections
for the Accused Protect Us All? Instruct
students to answer the questions at the end
of the Background Essay.
Warm-up [5 minutes]
A. Point students back to the bullet-pointed
descriptors of a society without criminal
procedure protections, contained in the very
beginning of Handout A.
B. Conduct a brief class discussion,
considering the following questions:
a. If you lived in such a society, would you
be free? Why or why not?
b. Would the government have any
limitations on its powers if society looked
like this? Why or why not?
c. What types of governments/nations/
societies around the world still look like
this?
Activity I [20 minutes]
A. Distribute Handout B: Criminal and Civil
Procedure Protections and a copy of the Bill
of Rights. Put students into groups of 4.
B. Assign one amendment - Fourth, Fifth,
Sixth, or Eighth - to each group. Have
groups complete the portion of Handout
B that is applicable to their assigned
amendment only. Instruct students to
discuss each element/clause of their
amendment, and arrive at an agreed upon
interpretation for each clause.
В© The Bill of Rights Institute
Due Process Module
C. Have one group who read the Fourth
Amendment explain their interpretations. If
there is a second group who worked with
the Fourth Amendment, have them share
their interpretations only if they feel their
interpretations are substantially different
from the ones just presented. Compare
student responses to the answer key and
clarify any misunderstandings.
D. Repeat procedure for the Fifth, Sixth, and
Eighth Amendments, in each case making
sure that each element of the amendment
is identified and its meaning clarified.
Activity II [20 minutes]
A. Have students get out Handout C:
Defining Cruel and Unusual and put
students into groups of five.
B. Instruct students to spend a few minutes
sharing their individual thoughts/ideas
about Handout C. Explain that they
are now acting, in their groups, as the
Supreme Court. Have them construct a
one-sentence, group definition of cruel
and unusual that they can apply to Eighth
Amendment scenarios. Walk around to
the room, visiting groups, to keep their
discussion focused and assist them in
coming to a group definition for Handout C.
C. Distribute Handout D: Cruel and
Unusual? to all students. Instruct groups
to select one student in each group to read
Scenario 1 aloud to his/her group, while
the other students read along. Then, have
students discuss and complete questions
1-3 for Scenario 1, deciding, as a Supreme
Court, whether the punishment involved
in Scenario 1 is cruel and unusual. In
deciding, each group should carefully
FOUNDING PRINCIPLES COURSE apply their definition of cruel and unusual
as written in Handout C, and should vote,
just as the real Supreme Court might do
to answer question 3 (3 students agreeing
constitutes a majority of the group, and thus
is their ruling). Have students individually
answer question 4 and briefly discuss with
their group if anything would have changed
their view.
D. Have students continue the process for
Scenarios 2 and 3.
E. Wrap up by conducting a class discussion
to answer the following questions:
a. How do several Bill of Rights
amendments protect due process?
b. How does due process itself protect our
liberty?
c. How should “cruel and unusual” be
defined?
d. Why should law abiding citizens care
about protections for criminals?
Homework and Extension Options
A. Have students locate one local or national
news article about an individual who is
accused of committing a crime (students
should use a newspaper or news-station
website for local stories; or http://www.
billofrightsinstitute.org for daily headlines of
national stories). Students should cut out
or print the news article, and submit a 2paragraph response on the following:
a. A brief summary of the individual
involved, the crime he/she is accused
of committing, and any other pertinent
details;
В© The Bill of Rights Institute
Due Process Module
b. Identification/explanation of particular
elements of the Bill of Rights that are
evident in the article (mentions of a
search, representation by an attorney,
trial, punishment, etc.). In doing so,
students should make specific reference
to the amendment(s) that are evident.
B. Have students visually depict the WHY and
the HOW of Due Process. The Fourth, Fifth,
Sixth, and Eighth Amendments trace the
criminal procedure process in order, from
the initial search/seizure/questioning, to
trial, to punishment. Have students create
a collage using images found online tracing
this process (an image of a search warrant,
for example). Students can do a posterboard,
or an electronic collage/presentation through
Prezi or Glogster. Images should illustrate
a variety - but not necessarily all - of the
protections, with a brief statement below each
of what particular right is illustrated and the
amendment that protects it. Students should
title their presentations with a statement or
slogan about WHY the constitutional principle
of due process is important. (e.g. “Protecting
the accused protects us all.”)
C. Invite your School Resource Officer (or a local
police officer, if your school does not have
one assigned) to speak to your class. Prior
to his/her visit, brainstorm with students a list
of questions to ask, centering on how he/she
follows and upholds the protections of the
Fourth, Fifth, Sixth, and Eighth Amendments
in the course of their job enforcing the law
and dealing with suspected criminals. Ask
the officer to share police department policies
relating to these protections, real scenarios
they’ve encountered, etc.
FOUNDING PRINCIPLES COURSE D. As of 2013, 33 states and the federal
government have the death penalty as an
option for particular violent crimes. Utilizing
the “State by State” section of the Resources
tab at http://www.deathpenaltyinfo.org, have
students do research to answer the following
questions:
a. Does your state allow the death penalty?
If so, for which crimes? If not, when was
it abolished?
b. Do you agree with your state’s position
on the death penalty? What do you
believe about the death penalty itself? Is
it cruel and unusual? Or is it appropriate
punishment in certain circumstances?
Explain your position thoroughly using
the Constitution, legal precedent, facts,
and figures.
В© The Bill of Rights Institute
Due Process Module
Handout A: Background Essay - How Do Due
Process Protections for the Accused Aim to
Protect Us All?
Imagine living a society in which your
government can do the following things to you:
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Demand to enter your home for no particular
reason and forcibly enter if you object.
Ignore your demands to know why your
home or property is being searched.
Bring you up on charges that you’re not
even aware of, and force you to confess
your guilt.
Find you guilty in secret a very long time
after your arrest.
Keep putting you on trial over and over until
a jury decides you are guilty.
Take your property without paying you for it.
If you lived in such a society, would you be
free? If government could do these kinds of
things, would there be any real limit on its
powers?
Why Did the Founders Include So Many
Provisions Regarding the Rights of the
Accused?
People are often surprised to find how much
of the Bill of Rights involves protections for
those who have been accused of a crime.
Four amendments in the Bill of Rights deal
with some aspect of criminal procedure – the
Fourth, Fifth, Sixth, Seventh, and Eighth
Amendments. History and experience told
the Founders that if there were not specific
protections provided for citizens who commit
crimes, and corresponding rules for the
В© The Bill of Rights Institute
government to follow, then citizens could not
live freely and the government would have
unlimited power. The traditional principle was
that it was better for guilty people to go free
than for the judicial system to condemn even
one innocent person.
Gathering Evidence: What Does the Fourth
Amendment Protect?
One of the most common violations that the
American colonists experienced at the hands
of the British was the use of “general” search
warrants. These warrants were easy to get
and did not list a particular person or place to
be searched. Any official who held a general
warrant could search for anything they pleased,
and British officers often used these warrants
to harass colonists. The Founders sought to
eliminate this type of tyranny with the Fourth
Amendment. It requires that warrants be issued
only when probable cause supports it, and that
the warrant must state the particular person
and place to be searched. Law enforcement
officials must present evidence to a judge
showing the probable cause that the individual
is involved in a crime or may be involved in a
future crime. It also requires that the warrant
specifically list the items that officials may
search for and seize. The Fourth Amendment
demands that government officials go beyond
simple suspicion and balance citizen rights with
proper enforcement of laws.
Government Power: What Does the Fifth
Amendment Protect?
The Fifth Amendment contains a variety of
protections for individuals after a search has
been conducted or an arrest has been made.
One of the most important safeguards in
the Fifth Amendment is protection from selfincrimination. Also known as the right to remain
silent, this protection prevents the government
from forcing an individual to offer up evidence
against himself. A person may refuse to answer
police questions that might make them seem
guilty, and, at trial, they cannot be required to
take the stand and testify under oath.
The Fifth Amendment also provides a
guarantee that the government cannot
endlessly try an accused individual for the
same crime. Without a ban on double jeopardy
(as it is also known), the government could just
keep trying an individual over and over using
its vast resources until it got the guilty verdict it
wanted.
Determining Guilt or Innocence: What Does
the Sixth Amendment Protect?
The Sixth Amendment guarantees a jury trial
for all individuals accused of a criminal offense.
Trials must be speedy, public, and be held
in the location where the alleged crime took
place. It also requires that citizen juries, not a
judge, determine the guilt or innocence of the
accused. (This protection is also in the body
of the Constitution.) Accused individuals have
a right to know the specific crime(s) for which
they are being tried, to examine all evidence
the government has against them, to confront
their accuser(s), to call witnesses in their
defense, and to have a lawyer to assist in
their defense. The Sixth Amendment is vital to
В© The Bill of Rights Institute
liberty, and it is crucial in protecting individuals
from the overwhelming power and resources of
the government.
Jury Overruled? What Does the Seventh
Amendment Protect?
The Seventh Amendment to the Constitution
guarantees a right to trial by jury in common
law cases where the value disputed is over
$20. It also states that cases decided by a
jury cannot be overturned unless there was
a factual error. A judge can set aside a jury’s
verdict, but he or she cannot state a verdict
or call a new trial. The Supreme Court upheld
this clause in Slocum v. New York Insurance
Co. (1813). The Court stated that, “Under the
rules of the common law, an appellate court
may set aside a verdict for error of law in the
proceedings and order a new trial, but it may
not itself determine the issues of fact.”
Guilty: What Does the 8th Amendment
Protect?
The Founders recognized that individual
rights do not end when someone is found
guilty, even of a hideous crime. The Eighth
Amendment requires that fines and penalties
for guilty persons not be excessive. Most
people understand this as the principle that the
punishment must fit the crime. While the Bill
of Rights does not specify what is “excessive,”
the Supreme Court has defined it as one that
is extremely out of balance with the offenses
committed (United States v. Bajakajian, 1988).
Perhaps more challenging to define is the
Eighth Amendment’s requirement that no “cruel
and unusual punishments” be imposed upon
guilty individuals. Generally, this protection was
meant to prevent punishments such as drawing
and quartering, whipping, or other methods
common throughout history. What constitutes
“cruel and unusual” punishment is often hotly
debated.
Criminal Procedure Protections and You
Most citizens are law-abiding. But the principle
of due process does not protect just those
people who find themselves on the wrong
side of the law. It is important for us all. The
Founders wrote the Constitution to “establish
justice” and “to secure the blessings of liberty”
for themselves and future generations. A
big part of that was protecting minorities
(including suspected criminals who are often
disliked) from the “tyranny of the majority.”
The protections of the Fourth, Fifth, Sixth, and
Eighth Amendments all help strike the balance
between individual rights and the powers of
government.
Comprehension and Critical Thinking
Questions
1. What amendments contained in the Bill
of Rights address protections for those
accused of crimes? Why were they included
by the Founders in the Bill of Rights?
В© The Bill of Rights Institute
2. What specific protections for the accused
are contained in the Fourth Amendment? In
the Fifth Amendment?
3. In what ways does the Sixth Amendment
protect an accused individual after he has
been charged with a crime?
4. Consider the following quote from the
Supreme Court case of Mapp v. Ohio
(1961), which held that evidence obtained
in violation of the Constitution could not be
used against defendants at trial:
“The criminal goes free, if he must, but
it is the law that sets him free. Nothing
can destroy a government more quickly
than its failure to observe its own laws, or
worse, its disregard of the charter of its own
existence.”
How does this quote illustrate the
importance of criminal procedure
protections? Do you think the Founders
would agree with this statement? Why or
why not? (2-3 sentences)
5. Imagine you were talking to someone who
said that she didn’t worry about protecting
the rights of the accused because she
never planned to commit a crime. How
would you respond?
Handout B: Criminal Procedure Protections
Directions: Using a copy of the Bill of Rights, complete the chart of due process protections for
accused persons in the Fourth, Fifth, Sixth, and Eighth Amendments. Several are completed for
you.
Fourth Amendment
Interpretation
1. “the right of the people to be secure . .
against unreasonable searches and
seizures, Shall not be violated...”
2.
3.
1. People and their homes, possessions, etc.,
cannot be searched or taken without reason.
2.
3.
Fifth Amendment
Interpretation
1. “No person shall be held to answer for a
capital...crime unless on a presentment or
indictment of by a Grand Jury”
2. “nor shall any person be subject for the
same offense to be twice put in jeopardy of life and
limb…”
3.
4.
1. People suspected of very serious crimes
must be indicted [formally accused] by a Grand
Jury.
2.
3.
4.
Sixth Amendment
Interpretation
1. “the accused shall enjoy the right to a
speedy and public trial, by an impartial
jury.”
2. “[the accused shall] be informed of the
nature and cause of the accusation.”
3.
4.
5.
1.
2. People must be told what crime they are
accused of committing.
3.
4.
5.
Seventh Amendment
1: “where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be
preserved”
2.
Interpretation
1.
2.
Eighth Amendment
Interpretation
1. Excessive bail shall not be imposed.
2.
3.
1.
2.
3.
В© The Bill of Rights Institute
Handout C: Defining Cruel and Unusual
Punishment
Directions: Pretend that your group is the Supreme Court. As the Justices, your job is to not only
interpret the words of the Constitution, but apply your interpretation to cases and situations that
affect the lives of millions of people. Taking what you know about the Constitution into account,
think about how you would interpret the ban on “cruel and unusual punishment” in deciding the
constitutionality of government action. Discuss the guiding questions below.
Text of the Eighth Amendment:
“…nor cruel and unusual punishments inflicted.”
“Cruel:”
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How do you know if a punishment is cruel?
Is a cruel punishment one that…
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 …is unnecessarily lengthy to carry out?
 …involves other considerations that are not mentioned here?
Does the type of crime committed, the characteristics of the accused, or the method of
punishment matter to how you interpret this word?
“Unusual:”
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How do you know if a punishment is unusual?
Where is the line drawn between “usual” and “unusual”? How uncommon does a punishment
have to be to be called unusual?
What comparisons should be used to determine what is unusual? State and federal laws and
practices? International laws and practices?
Notes:
В© The Bill of Rights Institute
Handout D: Cruel and Unusual?
Directions: Read each of the three scenarios, and answer the questions that follow each.
Scenario 1
Christopher, a high school Junior who was
within months of his 18th birthday, told two of
his friends, aged 15 and 16, that he wanted to
murder someone. He had a plan. Christopher
would break into someone’s home, tie them up,
and throw them off a nearby bridge. His two
friends, while hesitant, decided to be a part of
his plan when Christopher assured them they
could “get away with it” because they were
minors. The three boys met at 2:00 am on
the night of the murder, but Christopher’s 16
year old friend was nervous and backed out.
Christopher and his 15 year old accomplice set
out to commit their pre-planned crime.
His first-degree murder trial occurred 9 months
later, after he had turned 18. After hearing
about the plan, Christopher’s bragging, and
watching the videotaped reenactment, the
jury quickly convicted him and recommended
the death penalty. The judge agreed, and
Christopher was sentenced to death.
The pair entered Shirley’s home through an
open window, awakening her. She turned on
a hallway light and called out “who’s there?”
Christopher went down the hall and entered
Shirley’s bedroom. He realized he recognized
her from a car accident the two had been
involved in, which he later admitted reinforced
his decision to kill. The boys bound Shirley’s
hands, covered her eyes with duct tape, and
drove her to a nearby bridge. They tightened
her bindings and threw her into the river
below, where she drowned. Christopher was
overheard bragging about the murder the
next day at school, where police arrested him.
He waived his rights to remain silent and to
have an attorney present. Christopher then
confessed to the murder and agreed to reenact
the crime on videotape.
3. How would you rule in this case?
В© The Bill of Rights Institute
1. What arguments would convince you that
the punishment in this situation IS NOT
cruel and unusual?
2. What arguments would convince you that
the punishment in this situation IS cruel and
unusual?
4. Is there anything about the details of this
case that, if different, would change your
ruling? Explain.
Scenario 2
Evan was a very troubled 14-year-old who
had been in and out of foster care for years.
His mother was addicted to drugs and alcohol,
and he had been abused by his stepfather.
Evan himself was a regular user of drugs and
alcohol, and he had attempted suicide four
times, the first attempt coming when he was
only 6 years old.
One night Evan was at home with his two
friends, Colby and Cole. The two friends came
to make a drug deal with Evan’s mother, who
sold them marijuana and gave them alcohol. All
three boys left and went to Cole’s trailer, where
they smoked their drugs and played drinking
games. Eventually, Cole passed out. Evan
decided to steal Cole’s wallet, grabbing it from
the pocket of his passed out friend. Evan and
Colby split the $300 between them. When Evan
was trying to put the wallet back into Cole’s
pocket, Cole woke up and grabbed Evan by the
throat. Evan got hold of a nearby baseball bat
and repeatedly hit Cole with it. After a number
of hits, Evan placed a sheet over Cole’s head,
said “I am God, I’ve come to take your life,” and
hit Cole one more time. Evan and Colby then
ran from Cole’s trailer, but quickly returned to
cover up their crime. They lit two fires, burning
the trailer and leaving Cole to die from trauma
and smoke inhalation.
Alabama tried Evan as an adult, pointing to his
mental maturity and his record of past crimes.
He was charged with murder in the course
of arson, a crime that carried a mandatory
sentence of life without the possibility of parole.
A jury convicted Evan, and he was sentenced
to life in prison.
1. What arguments would convince you that
the punishment in this situation IS NOT
cruel and unusual?
2. What arguments would convince you that
the punishment in this situation IS cruel and
unusual?
3. How would you rule in this case?
4. Is there anything about the details of this
case that, if different, would change your
ruling? Explain.
В© The Bill of Rights Institute
Scenario 3
The death penalty has been available as a
punishment for certain crimes in most American
states since before the Founding era. Methods
of carrying out the death penalty, though, have
changed over the years in an effort to make the
process more humane. Plenty of Americans
disagree entirely with the death penalty,
however, arguing that it is outside the powers
of properly limited government, or that it is a
moral, religious and social wrong no matter
how it is carried out.
By the mid-1800s, hanging was the nearly
universal method of execution throughout
the country. In 1888, New York’s Governor
commissioned a study to determine the most
humane method of executing dangerous
criminals. The committee’s answer was the
electric chair, which the state legislature
adopted. The electric chair became the
preferred method of execution for the vast
majority of states for the next 100 years. But
there were growing concerns about the pain
and suffering caused by the electric chair. In
response, Oklahoma became the first state to
seek a different method. Upon the advice of
the head of anesthesiology at the University of
Oklahoma’s College of Medicine, it replaced
the electric chair with lethal injection. Lethal
injection is now the primary way condemned
prisoners are put to death in the United States.
Kentucky uses lethal injection. Medical
personnel are responsible for setting up the
IVs, drugs and dosages. The prison warden
typically conducts the execution from a
separate room with doctors overseeing the
process for any signs of trouble. In some
instances it is difficult for the prison warden to
find a doctor willing to oversee the execution.
This is because they are sworn to abide by
the Hippocratic Oath, which commands each
doctor to “do no harm.”
Two Kentucky death row inmates, both
sentenced to death for their role in a double
homicide, contend that the lethal injection
process itself is cruel and unusual. They argue
it can lead to pain, torture, suffering and an
unnecessarily long death if it is not carried
out with exact timing, dosages, and medical
expertise.
1. What arguments would convince you that
the punishment in this situation IS NOT
cruel and unusual?
2. What arguments would convince you that
the punishment in this situation IS cruel and
unusual?
3. How would you rule in this case?
4. Is there anything about the details of this
case that, if different, would change your
ruling? Explain.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Due Process Module
Due Process Module: The Fourteenth Amendment
and Incorporation Lesson
Overview
Incorporation—the application of parts of the Bill of Rights to the states through the Fourteenth
Amendment—is a complex legal and constitutional issue. Incorporation deals with two significant
questions: Does the Constitution/Fourteenth Amendment permit states to understand the
fundamental rights of Americans in fundamentally different ways? Which level of government can
best protect those rights? The concept of incorporation is key to understanding the explosion of
cases involving the Bill of Rights in the 20th and 21st centuries, as well as the increased role of the
Supreme Court in defining and defending the rights of Americans.
Recommended Time
North Carolina Clarifying Objectives
50 minutes
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Objectives
Students will:
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Contrast the Founders’ divergent views
about which level of government can best
protect individual liberty.
Explain the constitutional significance of the
Fourteenth Amendment.
Analyze the constitutional implications of
incorporation.
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Evaluate how the Fourteenth Amendment
has been used to protect individual rights.
Analyze the various approaches to
incorporation in the twentieth and twentyfirst centuries.
Understand the concept of “fundamental
fairness”.
Contrast the Founders’ divergent views
about which level of government can best
protect individual liberty.
В© The Bill of Rights Institute
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.2.6: Evaluate the authority federal,
state, and local governments have over
individuals’ rights and privileges (e.g., Bill
of Rights, Delegated Powers, Reserved
Powers, Concurrent Powers, Pardons, Writ
of habeas corpus, Judicial Process, states’
rights, Patriot Act, etc.).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
Due Process Module
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CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.7: Summarize the importance of
the right to due process of law for individuals
accused of crimes (e.g., habeas corpus,
presumption of innocence, impartial tribunal,
trial by jury, right to counsel, right against
self-incrimination, protection against double
jeopardy, right of appeal).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
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CE.C&G.4.4: Analyze the obligations of
citizens by determining when their personal
desires, interests and involvement are
subordinate to the good of the nation or
state (e.g., Patriot Act, Homeland Security,
sedition, civil rights, equal rights under the
law, jury duty, Selective Services Act, rule of
law, eminent domain, etc.).
AH1.H.1.2: Use Historical Comprehension to:
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4. Analyze visual, literary and musical
sources.
1. Identify issues and problems in the
past.
3. Analyze cause-and-effect relationships
and multiple causation.
5. Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:
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2. Differentiate between historical facts
and historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
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1. Reconstruct the literal meaning of a
historical passage.
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support arguments.
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
FOUNDING PRINCIPLES COURSE �
AH2.H.5.2: Explain how judicial, legislative
and executive actions have affected the
distribution of power between levels of
government since Reconstruction (e.g., New
Deal, Great Society, Civil Rights, etc.).
Materials
Handout A: Background Essay - What Is
Incorporation?
Handout B: The Nation, the States, and Liberty
Handout C: Background Essay - Who Should
Define Our Fundamental Freedoms?
Handout D: Fundamental Freedoms?
Handout E: Incorporation Chart
Lesson Plan
Warm-Up
A. Have students read Handout A:
Background Essay - What Is
Incorporation? Encourage students to
think about the Critical Thinking questions
at the end of the essay.
B. Briefly review with the students the key
points and/or the Critical Thinking questions
from Handout A.
C. Distribute (or project on a whiteboard)
Handout B: The Nation, the States, and
Liberty.
a. Give students 4-5 minutes to answer
the questions. Spend a few minutes
discussing their responses.
Activity
A. Distribute Student Handout C:
Fundamental Freedoms? along with a
copy of the Bill of Rights. Give students
about ten minutes (working in pairs) to
complete their list.
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Due Process Module
B. Ask students to circle those rights which
they think are fundamental freedoms. They
can circle as few or as many, but should be
prepared to discuss their selection.
C. Distribute Handout D: Incorporation
Cases Chart and give students time to
indicate in the Incorporation column on
Handout C which freedoms have been
incorporated against the states.
a. Discuss the following questions with the
entire class:
i. Which rights listed in the Bill of
Rights have not been incorporated?
Why?
ii. Would your conscience be “shocked”
if some rights listed in the Bill of
Rights were denied you by your
state government? Which rights are
those?
iii. Are those rights fundamental
freedoms?
iv. Which list of fundamental freedoms
is longer, yours or the Supreme
Court’s (as indicated by the rights
that have been incorporated)? How
do you account for the differences?
Is your list too long? Is the Court’s
too short?
v. Looking at Handout D, do you
observe any patterns in the cases;
e.g. types of issues decided; when
they were decided; amendments
which were referenced?
Homework and Extension Options
A. Have each student research their state
constitution and bill of rights. They could
create a chart, listing their state provisions
FOUNDING PRINCIPLES COURSE in one column and the provisions of the
federal Bill of Rights in the other.
a. Does the federal Bill of Rights protect
certain rights that the state constitution
does not? Or vice-versa?
b. Do the citizens of their state “need” the
Fourteenth Amendment to secure their
rights?
B. Have students choose one of the rights
which is not incorporated and write a “Letter
to the Editor” either opposing or supporting
incorporation.
a. Their letter should include an
explanation of why the right is/is not a
fundamental freedom, and why it would
be better for the citizens of their state if
the right were/were not incorporated.
C. Have each student research one of the
incorporation cases and write a one
paragraph explanation of why and how the
Supreme Court incorporated the specific
right in the case.
В© The Bill of Rights Institute
Due Process Module
Handout A: Background Essay - What Is
Incorporation?
Does the Bill of Rights protect you when your
parents limit your freedom of speech and tell you
to stop texting? When they require you to attend
religious services? When they don’t explain their
actions and simply say, “Because I said so?”
Obviously, the Bill of Rights does not yet protect
you against actions by your parents. In fact, the
Bill of Rights was written and, for nearly 100
years, the Bill of Rights protected individuals
only against the national government; today,
the Supreme Court applies those protections
against state and local governments. The story
of that change is the story of incorporation.
were passed by Congress and ratified by the
states. The Thirteenth Amendment abolished
slavery. The Fourteenth Amendment guaranteed
citizenship to the freed slaves. The Fifteenth
Amendment guaranteed the right to vote to
former male slaves.
Whose Actions Did the Bill of Rights Limit?
How Did the Fourteenth Amendment Change
the Bill of Rights?
In 1791, the Bill of Rights protected American
citizens only against the actions of the national
government. Forty years later, the Supreme
Court confirmed this situation. In Barron v.
Baltimore (1833), the Court noted that the
federal constitution did not prohibit an individual
state from executing heretics, shutting down
newspapers, or confiscating property. The
Bill of Rights protected individuals against
the actions of the federal government. It did
not limit state action. Individual states had
their own bills of rights, but these differed
from state to state. Many thought the Court’s
decision supported the constitutional principle
of federalism. Others were concerned that the
states could limit fundamental liberties.
Why Was the Fourteenth Amendment
Written?
After the Civil War, America was struggling over
how to treat former slaves. Three amendments
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The first section of the Fourteenth Amendment
states that all who are born or naturalized in
the United States are citizens. The Amendment
continues, “No State shall make or enforce
any law which shall abridge the privileges or
immunities of the citizens of the United States. . .”
The significant part of this statement is the
first two words: “No State. . .” The Founders
intended that the Bill of Rights be protections
against the federal government only. Now, the
Fourteenth Amendment placed limitations on
what the state governments could do.
Five years later, a case about butchers (the
Slaughter House Cases, 1873) provided
an opportunity to clarify which rights, if any,
were protected against both state and federal
governments. The answer: not very many.
The clause did not “bring within the power
of Congress the entire domain of civil rights
heretofore belonging exclusively to the States.”
Twenty years later, the Courts had a different
view of these protections.
What is the Due Process Clause?
The next section of the Fourteenth Amendment,
the Due Process clause, also places limits on
the actions of states: “…nor shall any State
deprive any person of life, liberty, or property,
without due process of law.” Due process
means that the laws themselves are fair. The
procedures for enforcing those laws must also
be fair.
In Quincy Railways v. Chicago (1897), the
Supreme Court ruled that the state of violated
due process when it took property without
paying just compensation. By using the
Fourteenth Amendment to apply part of the Bill
of Rights to a state action, the Court opened
the door for similar protections.
A good example of the expanded protection
is Frank Palko of Connecticut. In 1935, Palko
stole a phonograph. He killed two police officers
and made his escape. He was found guilty of
second-degree murder. Prosecutors appealed
and a state law permitted a second trial. In that
trial, he was found guilty of first-degree murder.
Palko took his case to the Supreme Court.
His attorneys argued that, because of the
due process protection of the Fourteenth
Amendment, the Connecticut law that had
permitted two different trials was in violation of
the Fifth Amendment protection against double
jeopardy. The Court agreed with Palko.
What is the Equal Protection Clause?
Finally, the “equal protection” clause of the
Fourteenth Amendment says, “[No State will]
deny to any person within its jurisdiction the
equal protection of the laws.”
This clause means that states must apply
the law equally. States cannot discriminate
В© The Bill of Rights Institute
against people or groups of people arbitrarily.
Of course, all people do not have to be treated
the same way. For example, states can require
vision tests to receive a driver’s license.
However, they cannot ban people from driving
because of their race.
The understanding of the equal protection
clause has changed over time. In Plessy v.
Ferguson (1896), the Supreme Court held that
racial segregation by a state-owned railroad
did not violate the equal protection clause. In
Brown v. Board of Education (1954), the Court
ruled that “separate but equal” segregated
classrooms were in violation of the Fourteenth
Amendment. Today, the clause is understood
to protect various classes of people from
discrimination by government.
What Is Incorporation and Why is It
Controversial?
During the twentieth century, protections
provided by the Bill of Rights against the
national government were incorporated
(meaning “included within”) the protections
against state or local governments. In the
Gitlow v. New York (1925) case, the Supreme
Court ruled that the Bill of Rights applied to the
states as well as the federal government.
You are still not protected against your parents’
decisions, but the federal government has
been given the responsibility of protecting you
against just about everything else.
Many debate whether incorporation is a good
idea. Incorporation can speed up the process
of ensuring that everyone’s basic liberties are
protected. Some have even referred to the
Fourteenth Amendment as the “second” Bill of
Rights.
Others argue that the Founders were very
clear that the Bill of Rights should apply only to
actions of the federal government. Keeping the
federal government out of state issues is a way
to help to ensure that the federal government
cannot get too much power.
Incorporation means that thousands of
controversies have been decided by federal
judges. In 1895, around 400 cases were filed
with the Supreme Court. Today, over 10,000
cases are filed annually. It seems that fewer
people are making more decisions about the
nature of our fundamental rights.
Who Should Define Our Fundamental
Freedoms?
“You have the right to remain silent. Anything
you say may be used against you in a court
of law. You have the right to consult with
an attorney. ”You probably recognize these
statements as part of the “Miranda warning”.
This “warning” is named after a famous
Supreme Court case, Miranda v. Arizona
(1966). The Court ruled that suspects had the
right to be informed of their rights.
Miranda is known as a “landmark” Supreme
Court case because of the directions it offers
for future decisions. You may be familiar with
other landmark cases: Gitlow v. New York
(1925), Everson v. Board of Education (1947),
Mapp v. Ohio (1961), Gideon V. Wainright
(1963). What do all these landmark cases
have in common? Each decision reviewed
protections against the federal government
provided by the Bill of Rights and made
those protections effective against the state
governments. Each of these decisions
incorporated the Bill of Rights against the
states.
В© The Bill of Rights Institute
In the Gitlow case, the Supreme Court
interpreted the Fourteenth Amendment to
mean that the protections in the Bill of Rights
should be recognized at the state level as well
as the national level. Up to this point, the Bill of
Rights only applied to the federal government.
This meant that states could establish religions
or refuse you due process rights if those
rights were not protected in their own state
constitutions.
What Is Selective Incorporation? What Is
Total Incorporation?
There are two different approaches to
incorporation. In the 1940s, some Supreme
Court justices favored total incorporation:
every single part of the Bill of Rights should be
applied to the states.
By the 1960s, other judges developed the idea
of selective incorporation: only those rights
guaranteed in the first eight amendments that
are “fundamental and essential in the concept
of ordered liberty” should be incorporated.
The Court has to look at the “fundamental
fairness” of laws. Are the laws fairly written?
Are they fairly applied? Incorporation should
only happen when the actions of a state
violate a fundamental freedom and “shock the
conscience.”
Over the last 80 years, the Bill of Rights has
been incorporated selectively. Each right has
been incorporated as a result of a specific
Supreme Court decision. But, almost every
single right has been incorporated. So, the
result is almost total incorporation.
Why Does It Matter?
Whether the federal government or state
governments can more effectively promote
individual liberties is a question that has been
debated since the Founding.
When the Founders ratified the Bill of Rights,
individuals had very little contact with the
federal government. Most people thought of
themselves as citizens of their states. Most
political decisions occurred at the state level.
The influence of the federal government was
generally limited to national defense and
foreign relations. Citizens felt protected by their
own state’s bill of rights.
Incorporation increased the role of the federal
government in citizens’ lives. Many people now
expect that the federal government—not the
states—will be the main protector of individual
rights. The Bill of Rights was originally a list of
limits on the federal government. Incorporation
means that these limits are enforced by the
federal government.
Some legal scholars support incorporation.
They see it as the fulfillment of the Declaration
of Independence and its promise of
“inalienable” rights. The Bill of Rights protects
us against the federal government. So, it seems
only logical that those same rights should also
be protected against the state government.
Incorporation also gives more power to
American citizens. They now have a way to
challenge most government action in federal
court.
Other scholars think that incorporation gives
the Supreme Court too much power to define
“fundamental fairness.” Essentially the federal
government has veto power over state law.
James Madison wanted this power for the
federal government, but other Founders
overruled him.
В© The Bill of Rights Institute
What Is the Future of Incorporation?
In 2010, the Supreme Court incorporated
one more right: the individual right to own
handguns. In the landmark decision of
McDonald v. Chicago (2010), the Court held
that the right of an individual to “keep and
bear arms” is a fundamental right. That right is
incorporated by the due process clause of the
Fourteenth Amendment. Therefore, it applies to
the states.
One justice disagreed with this reasoning.
Associate Justice Stephen Breyer wrote, “In
sum, the Framers did not write the Second
Amendment in order to protect a private right
of armed self-defense. There has been, and
is, no consensus that the right is, or was,
�fundamental.’”
If members of the Supreme Court disagree
about what is a fundamental right, how
can ordinary Americans figure it out? If the
Supreme Court is the only institution to define
“fundamental fairness”, what options do citizens
have if they disagree with those definitions?
Incorporation continues to be a controversial
subject for all Americans.
Critical Thinking Questions
1. What are the three important clauses [parts
of sentences] in the first section of the
Fourteenth Amendment?
2. Can you think of a time when you (or
someone you know) was denied due
process or equal protection under the law?
3. Why do some people call the Fourteenth
Amendment the “Second Bill of Rights”?
4. What is incorporation? Briefly describe the
two different approaches to incorporation.
5. Do you agree/disagree with most of the
Founders that the Bill of Rights should
apply only to actions of the federal
government? Why?
6. What actions taken by your state
government would “shock” your
conscience? What would be the best way to
ensure that these actions don’t occur?
7. How has incorporation increased the role of
the federal government in people’s lives?
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8. The Bill of Rights was originally a list
of limits on the federal government.
Incorporation means that these limits are
enforced by the federal government. What
conflicts, problems, or tensions could this
situation create?
9. Does the Supreme Court have too much
power to define fundamental rights?
10.What are five or six fundamental rights
shared by all Americans?
Handout B: The Nation, the States, and Liberty
In the 1780s, James Madison believed that the greatest threat to liberty came from the individual
states, not from Congress. Accordingly, he favored allowing Congress to veto state laws.
“A constitutional negative [veto] on the laws of the States seems equally necessary to secure
individuals again encroachments [limitations] on their rights.”—James Madison to Thomas
Jefferson, 24 October, 1787
“No state shall violate the equal rights of conscience…”—James Madison
1. Restate each of Madison’s ideas in your own words.
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2. How did Madison’s proposal for protecting individual liberties above differ from the language
used in the final version of the First Amendment?
Congress shall make no law respecting the establishment of religion, or the free exercise
thereof…
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
3. Restate in your own words each of these excerpts from the Fourteenth Amendment.
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 deprive any person of life, liberty, or property, without due process of law.
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
В© The Bill of Rights Institute
[No State shall] deny to any person within its jurisdiction the equal protection of the laws.
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
4. As a result of incorporation, individuals who are unhappy with how states protect their liberties
can bring suit in federal courts. Does it matter whether the state governments or the federal
government has the power to protect our rights?
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
В© The Bill of Rights Institute
Handout C: Fundamental Freedoms?
Directions: Using a copy of the Bill of Rights, list the specific rights or freedoms guaranteed by
each amendment. The number of blanks corresponds to the number of freedoms. Next, circle
those rights which you think are “fundamental freedoms.” Circle as many or as few as you want to,
but be prepared to defend your selections. When you are done, use Handout D: Incorporation
Cases to determine which of these freedoms have been incorporated against the states. Circle
“Yes” or “No” in the column.
Amendment and Freedoms
Incorporated?
First Amendment
1.
Yes No
2.
Yes No
3.
Yes No
4.
Yes No
5.
Yes No
6. Freedom to associate (an additional right inferred by the Court)
Yes No
Second Amendment
Yes No
1.
Third Amendment
Yes No
1.
Fourth Amendment
1.
Yes No
2.
Yes No
3. Freedom from unlawfully seized evidence (an additional right inferred by
the Court)
Yes No
Fifth Amendment
1.
Yes No
2.
Yes No
3.
Yes No
4.
Yes No
В© The Bill of Rights Institute
Sixth Amendment
1.
Yes No
2.
Yes No
3.
Yes No
4.
Yes No
5.
Yes No
6.
Yes No
7.
Yes No
8.
Yes No
Seventh Amendment
1.
Yes No
2.
Yes No
Eighth Amendment
1.
Yes No
2.
Yes No
3.
Yes No
В© The Bill of Rights Institute
Handout D: Incorporation Cases Chart
Directions: Use this chart to determine which freedoms listed on Handout C: Fundamental
Freedoms have been incorporated against the states.
Year
Case
1869
The Justices v. Murray
1897
Chicago, Burlington, & Quincy Railway Co. v.
Chicago
1925
Gitlow v. New York
1st -right to free speech
1931
Near v. Minnesota
1st -right to free press
1932
Powell v. Alabama
6th -right to counsel in capital cases
1937
DeJonge v. Oregon
1st -freedom to peaceful assembly
1940
Cantwell v. Connecticut
1947
Everson v. Board of Education
1948
In re Oliver
1949
Wolf v. Colorado
1958
NAACP v. Alabama
1961
Mapp v. Ohio
4th –freedom from unlawfully seized evidence
1962
Robinson v. California
8th -freedom from cruel & unusual punishment
1963
Gideon v. Wainwright
6th -right to counsel in all felony cases
1963
Edwards v. South Carolina
1963
Ker v. California
4th -right to specified standards for legal
warrants
1964
Malloy v. Hogan
5th -freedom from self-incrimination
1964
Aguilar v. Texas
4th -right to legal warrants
1965
Pointer v. Texas
6th -right to confront witnesses
1966
Parker v. Gladden
6th -right to impartial jury
1967
Klopfer v. N. Carolina
6th -right to speedy trial
1967
Washington v. Texas
6th -right to process for obtaining witnesses
1968
Duncan v. Louisiana
6th -right to jury
1969
Benton v. Maryland
5th -freedom from double jeopardy
1972
Rabe v. Washington
6th -right to notice of accusation
1972
Argersinger v. Hamlin
6th -right to counsel in all criminal cases with
a jail term
2010
McDonald v. Chicago
2nd -right to own handguns
В© The Bill of Rights Institute
Amendment/Fundamental Right
7th –freedom from re-examination of facts at
trial
5th -right to just compensation
1st -freedom to practice religion
1st -freedom from establishment of religion
6th -right to public trial and notice of accusation
4th -freedom from unreasonable search &
seizure
1st -freedom to associate
1st -freedom to petition
Due Process Module Answer Keys
Lesson One: How Do Due Process
Protections for the Accused Aim to
Protect Us All?
Handout A: Background Essay - How
Do Due Process Protections for the
Accused Aim to Protect Us All?
1. The Fourth, Fifth, Sixth, and Eighth
Amendments of the Bill of Rights address
a variety of protections for the accused.
These were included in the Bill of Rights
by the Founders because they knew, from
experience, that if specific safeguards were
not in place for those who commit crimes,
the government could exercise unlimited
power and liberty would be endangered.
2. Fourth Amendment: no unreasonable
searches and seizures by government
without a warrant; warrant only issued
upon probable cause; warrant must be
specific to who will be searched, the
place to be searched, and the items to be
searched/seized. Fifth Amendment: the
accused cannot be forced by government
to self-incriminate (right to remain silent);
no double jeopardy/cannot be tried for the
same crime twice.
3. The Sixth Amendment protects the accused
after having been charged with a crime in
the following ways: a speedy and public
trial by a citizen jury; trial must occur where
the alleged crime was committed; know
the specific crimes/accusations/evidence;
confront accuser; call witnesses in defense;
right to a lawyer.
4. Answers will vary, but students should point
out that the protections of the Fourth, Fifth,
Sixth, and Eighth Amendments require
government to follow the rule of law as
well; if government is not bound by law,
the principle of due process is no more;
the government cannot commit crimes
or disregard its own rules while trying to
enforce laws.
5. Answers will vary, but students should
explain the principle that justice and
due process require that the rights of all
individuals – even those who are ostracized
as suspected criminals – are likely to be
protected and laws be enforced equally.
Handout B: Criminal Procedure
Protection
Fourth Amendment:
2. “No warrants shall issue, but upon probable
cause.” Police must show probable cause
to a judge in order to get a search warrant
3. “…describing the place to be searched and
the persons or things to be seized.” The
warrant must name the place or person that
police will search, as well as what they are
looking for.
Fifth Amendment:
2. People may not be put on trial more than
once for the same crime;
3. “No person…shall be compelled to be a
witness against himself.” People do not
have to give evidence that may make them
appear guilty;
4. “No person shall be deprived of life, liberty
or property without due process of law.”
В© The Bill of Rights Institute
If the government wants to take away
someone’s life, liberty, or property, it must
follow duly-enacted laws and apply them in
the same way to everyone.
Handout C: Defining Cruel and
Unusual
Accept reasoned answers
Sixth Amendment:
Handout D: Cruel and Unusual?
1. “The accused shall enjoy the right to a
speedy and public trial by an impartial jury.”
People accused of crimes have the right to
a trial by jury in a timely and open manner;
Scenario 1
3. “To be confronted with witnesses against
him.” Defendants have the right to know
who the witnesses are against them and to
ask them questions.
4. “…to have compulsory process for
obtaining witnesses in his favor…
”Defendants have the right to legally
demand witnesses who might help their
case to testify at their trials.
5. “…and to have the assistance of counsel
for his defense. ”Defendants have the right
to a lawyer to help defend them.
Seventh Amendment:
1. All cases with $20 or more at stake should
be decided by a jury.
2. “No fact tried by a jury, shall be otherwise
re-examined in any Court of the United
States, than according to the rules of the
common law. ”Courts will not decide on a
case after a jury has declared a verdict.
Eighth Amendment:
1. Bail cannot be unreasonably high.
2. “…nor excessive fines imposed.” Bail
cannot be unreasonable.
3. “…nor cruel and unusual punishments
inflicted.” Punishments may not be brutal or
bizarre.
В© The Bill of Rights Institute
1. Answers will vary, but students may
suggest: the murder was planned in
advance; Christopher bragged about his
role in it, both before and after; he is very
close to 18 and his decisions show adultlike behavior. Some may also suggest
that sentencing someone to death for
intentionally causing the death of another is
neither cruel nor unusual.
2. Answers will vary, but students may
suggest: Christopher is a minor, and
sentencing a minor to death is cruel and
unusual; he showed child-like immaturity in
bragging about it both before and after; he
showed child-like immaturity in convincing
other, even younger friends to go along
with him. Some may also suggest that
sentencing someone to death is always
cruel and unusual, no matter the crime they
commit.
3. Answers will vary as to each group’s
ruling; accept reasoned answers. The
U.S. Supreme Court, in Roper v. Simmons
(2002), ruled that both American and
international “standards of decency” have
evolved so that executing individuals who
were legally minors when their crime was
committed is now both cruel and unusual.
In its ruling, the Court cited that the vast
majority of state legislatures have done
away with the death penalty for minors, and
that it is a disproportionate punishment for
juveniles.
4. Answers will vary, but students may state
the following factual changes might have
made their ruling different: if Christopher had
been an adult, not a minor; if the murder had
not been planned in advance. Some may
also voice continued opposition to the death
penalty, no matter the circumstances.
4. Answers will vary, but students may state
the following factual changes might have
made their ruling different: if Evan had
been an adult, not a minor; if the murder
had been planned in advance; if Evan did
not have a history of physical and/or drug/
alcohol abuse.
Scenario 2
Scenario 3
1. Answers will vary, but students may
suggest: Evan intentionally caused the
death of his friend Cole; they went back to
the crime scene to cover up the evidence
of their crime, showing adult-like behavior.
Some may also suggest that a sentence of
life in prison without parole for an extreme
crime is neither cruel nor unusual.
1. Answers will vary, but students may
suggest: careful medical considerations
have been taken to ensure the condemned
do not suffer; the method is quick and
painless, particularly in comparison to past
methods of execution; medical personnel
who are trained in the administration of
drugs are responsible for preparing the
conditions of the execution. Some may
also suggest that sentencing someone to
death for intentionally causing the death of
another is neither cruel nor unusual.
2. Answers will vary, but students may
suggest: Evan, while guilty of murder, did
not originally set out or plan to murder
Cole; that he is very clearly a minor at age
14, and exhibited a variety of child-like,
immature actions throughout the scenario;
that Evan had a long history of a troubled
life that should be taken into consideration
as mitigating factors. Some may also
suggest that a sentence of life in prison
without parole for someone so young is
cruel and unusual.
3. Answers will vary as to each group’s ruling;
accept all reasoned answers. The U.S.
Supreme Court, in Miller v. Alabama (2012),
ruled that children are constitutionally
different than adults and should be treated
differently when sentencing them for their
crimes. While a life sentence for such a
crime by an adult does not violate the
Eighth Amendment, the Court ruled it is
disproportionate for a child, amounting to
cruel and unusual punishment.
В© The Bill of Rights Institute
2. Answers will vary, but students may
suggest: the process, if not followed
exactly, can lead to prolonged suffering
and death; the actual execution, while set
up by medical personnel, is conducted by
the warden, who is not himself trained in
medicine and the administration of drugs.
Some may also suggest that sentencing
someone to death is always cruel and
unusual, no matter how it is carried out.
3. Answers will vary as to each group’s ruling;
accept all reasoned answers. The U.S.
Supreme Court, in Baze and Bowling v.
Rees (2008), ruled that Kentucky’s lethal
injection process and procedures similar
to it in other states, did not amount to cruel
and unusual punishment. The Court noted
a lack of evidence supporting the claim
that even an incorrect administration of
drugs would lead to unconstitutional pain
and/or suffering. The Court did suggest,
however, that a state may violate the Eighth
Amendment if it continued to use method(s)
that have been shown to produce needless
pain or suffering and/or an unnecessarily
prolonged process of death.
4. Answers will vary, but students may state
the following factual changes might have
made their ruling different: if it can be
shown that the lethal injection process does
indeed cause pain and suffering, and/or
needlessly prolongs the execution if not
carried out in an exact medical manner;
if there have been a number of “botched”
lethal injection procedures, as has been
the case for the electric chair throughout
history; if there is no doctor/medical
personnel willing to oversee the execution.
Lesson Two: The Fourteenth
Amendment and Incorporation
Handout A: Background Essay - What
Is Incorporation?
1. The three important clauses in the
Fourteenth Amendment are the “no state”
clause, the due process clause, and the
equal protection clause.
2. Accept all reasoned responses.
3. Some people call the Fourteenth
Amendment the “second Bill of Rights”
because it ensures that everyone’s basic
liberties are protected.
4. Incorporation means that the protections
of the Bill of Rights against the federal
government are also protections against
state or local governments. Total
incorporation suggests that every single
part of the Bill of Rights be applied against
В© The Bill of Rights Institute
the states. Selective incorporation suggests
that only those rights guaranteed in the first
eight amendments which are “fundamental
and essential in the concept of ordered
liberty” be incorporated.
5. Accept all reasoned responses.
6. Accept all reasoned responses while
encouraging students to focus on whether
or not these actions violate our fundamental
freedoms.
7. Because of incorporation, individuals’
identification with their nation has increased
while their identification with their state
has decreased. People expect that
the federal government—not the state
governments—will be the main protector of
individual rights. The federal government
now enforces protections instead of being
the institution that people needed protection
from.
8. Problems could arise since the institution
which is protecting individuals (e.g., the
federal government) is also the institution
that individuals are being protected
against. This creates a conflict of interest.
This situation also makes the federal
government the sole determiner of which
rights will/will not be protected.
9. Accept all reasoned responses while
reminding students both of the Founders’
vision of the purpose of the Bill of Rights as
well as the potential problems in giving one
branch of government the ability to define
our rights.
10.Accept all reasoned responses. Most
student will likely reference life, liberty,
pursuit of happiness, due process (both
procedural and substantive), property,
conscience, etc.
Handout B: The Nation, the States,
and Liberty
1. A veto on state laws is necessary to protect
liberties. States shall not interfere with
freedom of religion.
2. Madison’s drafts refer to protections
against state limitations on liberties; the first
amendment refers to protections against
congressional limitations on liberties.
3. Drawing upon their experience with Great
Britain, the Founders were wary of the
threats to liberty posed by a powerful
central government. Accept all reasoned
responses.
4. Anyone born in the United States is a
citizen both of the country as well as of
the state where they were born. All people
are entitled to protections of life, liberty,
and property. Each state must ensure that
anybody living within the state is equally
protected by the state’s laws.
5. Accept all reasoned responses. Some
students may say that state governments,
since they are closer to the people, are
better protectors of rights. They may argue
that the federal government cannot protect
people against the federal government.
Others may argue that the federal
government, which takes a national view
of rights and liberties, is best positioned to
ensure that anyone, no matter which state
they live in, is guaranteed the same basic
rights.
Handout C: Fundamental Freedoms?
First Amendment
1. Freedom from establishment of religion
2. Freedom to practice religion (free exercise)
В© The Bill of Rights Institute
3.
4.
5.
6.
7.
Freedom of speech
Freedom of the press
Freedom to peaceably assemble
Freedom to petition
Freedom to associate (an additional right
inferred by the Court)
Second Amendment
1. Right to keep and bear arms
Third Amendment
1. Freedom from quartering of soldiers
Fourth Amendment
1. Freedom from unreasonable search and
seizure
2. Right to valid search warrants
3. Freedom from unlawfully seized evidence
(an additional right inferred by the Court)
Fifth Amendment
1. Right to indictment by a grand jury
2. Freedom from double jeopardy
3. Freedom from self-incrimination
4. Right to just compensation when property is
taken
Sixth Amendment
1. Right to a speedy trial
2. Right to a public trial
3. Right to an impartial jury
4. Right to a jury trial selected from residents
where the crime was committed 5. Right to notice of accusations
6. Right to confront adverse witnesses
7. Right to process for obtaining witnesses
(subpoena)
8. Right to counsel
Seventh Amendment
1. Right to jury trial in civil cases
2. Freedom from re-examination of facts in
trials
Eighth Amendment
1. Freedom from excessive bail
2. Freedom from excessive fines
3. Freedom from cruel and unusual
punishment
All rights have been incorporated except the
Third Amendment; the Fifth Amendment’s
guarantee to the right of indictment by a grand
jury; the Sixth Amendment’s guarantee to a jury
trial selected from residents where the crime
was committed; and the Eighth Amendment’s
protections against excessive bail and
excessive fines.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Individual Rights Module
Individual Rights as Set Forth in the Bill of Rights
Module Introduction
Individuals inherently have rights. Rights are not the grant of government; government is based
on the presumption of liberty. Except where authorized by the people through the Constitution,
government does not have the authority to limit freedom.
Lesson One: The Origins and Effects
of the Bill of Rights
Overview
The Founders saw themselves as heirs to a
legacy of freedom stretching back at least to
the Magna Carta. Events and philosophies
from British and colonial history shaped the
Founders’ ideas about natural rights as well as
the rights of Englishmen. These rights impact
all of our daily lives in a free society. Students
will understand the background leading to the
development of the Constitution and the Bill
of Rights by analyzing English documents
and common law. Students will also analyze
the debate between the Federalists and the
Anti-Federalists over the bill of rights. They will
understand that it was not an argument over
whether rights exist, but about how best to
protect those rights.
Recommended Time
�
�
�
�
�
Objectives
Students will:
�
Understand the importance of the rights of
Englishmen and natural rights.
Identify similarities between historical
statements about rights and current
applications.
В© The Bill of Rights Institute
Analyze how the history behind the rights
of Englishmen and natural rights influenced
the American Founding documents.
Evaluate the significance of individual rights
in the daily lives of Americans.
North Carolina Clarifying Objectives
130 minutes
�
Analyze how the colonial experience
affected the development of the Bill of
Rights.
�
CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
FOUNDING PRINCIPLES COURSE government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
�
�
�
�
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
Individual Rights Module
2. Differentiate between historical facts and
historical interpretations.
�
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.
�
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.4.2: Explain how the development
of America’s national identity derived
from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).
AH1.H.1.2: Use Historical Comprehension to:
1. Reconstruct the literal meaning of a
historical passage.
В© The Bill of Rights Institute
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.
�
�
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
FOUNDING PRINCIPLES COURSE Individual Rights Module
Lesson Two: The United States Bill of
Rights
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
Overview
The addition of the Bill of Rights to the
Constitution was celebrated as a victory for
the champions of individual liberty. But for
the Bill of Rights to remain more than what
Madison referred to as a “parchment barrier,”
citizens must understand the purpose, content,
and meaning of this most important American
document. In this lesson, students will identify
and analyze the protections in the Bill of Rights,
as well as evaluate Supreme Court decisions in
cases centered on Bill of Rights protections.
Recommended Time
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150 minutes
Objectives
Students will:
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Identify the rights protected in the Bill of
Rights.
Exemplify the rights protected in the Bill of
Rights.
Explain the significance of the rights
protected in the Bill of Rights throughout
history and today.
Apply provisions of the Bill of Rights through
guided scenarios.
Evaluate Supreme Court rulings on cases
regarding the protections in the Bill of Rights.
North Carolina Clarifying Objectives
�
�
CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
В© The Bill of Rights Institute
�
�
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).
FOUNDING PRINCIPLES COURSE �
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
2. Consider multiple perspectives of
various peoples in the past.
significance of the Bill of Rights. They will
take on roles of Enlightenment philosophers
and the Founders to explain the origins of
rights, the debate about a bill of rights, and the
applications of rights in United States history.
3. Analyze cause-and-effect relationships
and multiple causation.
Recommended Time
1. Identify issues and problems in the past.
�
Individual Rights Module
5. Evaluate the influence of the past on
contemporary issues.
�
AH1.H.1.4: Use Historical Research to:
�
1. Formulate historical questions.
3. Support interpretations with historical
evidence.
�
�
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
Assessment
Overview
Students will create a skit in order to gauge
their understanding of the origins and
В© The Bill of Rights Institute
10-15 minutes for each presentation to the
class.
Assignment
4. Construct analytical essays using
historical evidence to support
arguments.
�
60-90 minutes for preparation. (Some
preparation can be done outside of class.)
Students will work in groups of 4-6 to
create a skit where they explain the origins
and significance of the Bill of Rights. They
should choose identities from each category
in the list below and develop a script.
пЃ®
пЃ®
Federalists (Madison, Hamilton, etc.)
пЃ®
Anti-Federalists (Mason, Henry, etc.)
пЃ®
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Enlightenment philosophers (Locke,
Montesquieu, etc.)
19th, 20th, and 21st century historic figures
(Supreme Court justices, Civil Rights
leaders, presidents, etc.)
Give students time to work in class or
outside of class to develop their script.
In writing the script, students should answer
the following questions:
пЃ®
пЃ®
пЃ®
пЃ®
What are the origins of rights according
to the philosophers?
What historical documents include
protections for individual rights?
What were the arguments for and against
adding a bill of rights to the Constitution?
What specific rights did the Founders
include in the Bill of Rights? Explain their
reasoning for protecting these rights.
FOUNDING PRINCIPLES COURSE �
�
How has the interpretation of these rights
changed throughout U.S. history? Give
specific examples.
Students should each complete their own
rubric about how their group did on the
script and presentation. They should also
complete rubrics for the other groups to
assess their scripts and presentations.
Finally, the teacher should complete a
rubric for each group, and compile the selfevaluation and classmate rubrics in the final
grade.
В© The Bill of Rights Institute
Individual Rights Module
FOUNDING PRINCIPLES COURSE Individual Rights Module
Rubric
Category
1
2
3
4
Participation
One group member
did all of the work.
Two group
members did all the
work.
Three group
members did all of
the work.
The entire group
did the worked
together.
Presentation of
Skit
Presentation had
too many errors
for audience to
understand the
presentation.
Presentation had
several errors,
which caused
some problems
with the audience
understanding the
presentation.
Presentation had
minor errors, but
the audience was
able to understand
the presentation.
Presentation
went smoothly
with few errors,
and the audience
was able to
understand the
presentation.
Cast of characters
represented
in script and
presentation.
One character
group was
represented in the
script.
Two character
groups were
represented in
the script and
presentation.
Three character
groups were
represented in
the script and
presentation.
All four character
groups were
represented in
the script and
presentation.
What are the
origins of rights
according to the
philosophers?
The origins of rights
were not explained.
The origins of
rights were briefly
explained.
The origins of rights
were somewhat
explained.
The origins of
rights were fully
explained.
What historical
documents
include
protections for
individual rights?
No historical
documents
about rights were
explained.
One historical
documents
about rights was
explained.
Two historical
documents
about rights were
explained.
Three or more
historical
documents
about rights were
explained.
What were the
arguments for and
against adding a
bill of rights to the
Constitution?
Neither side of the
arguments about
the bill of rights
were explained.
Arguments
from either the
Federalists OR the
Anti-Federalists
were addressed
and explained.
Arguments from
both the Federalists
and Anti-Federalists
were addressed
OR explained.
Arguments
from both the
Federalists and
Anti-Federalists
were addressed
and explained.
What specific
rights did the
Founders include
in the Bill of
Rights? Explain
their reasoning for
protecting these
rights.
None of the rights
the Founders
included in the
Bill of Rights
were identified or
explained.
One right the
Founders included
in the Bill of Rights
was identified and
explained.
Two rights the
Founders included
in the Bill of Rights
were identified and
explained.
Three or
more rights
the Founders
included in the
Bill of Rights
were identified
and explained.
How has the
interpretation
of these rights
changed
throughout U.S.
history? Give
specific examples.
The interpretation
of rights throughout
U.S. history was
not explained and
no examples were
given.
Examples of the
interpretation of
rights throughout
U.S. history were
given but were not
explained.
The interpretation
of rights throughout
U.S. history was
explained, but
specific examples
were not given.
The
interpretation of
rights throughout
U.S. history was
explained, and
examples were
given.
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American History meet the
requirements of the Founding Principles Act.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Individual Rights Module
Individual Rights Module: The Origins and Effects
of the Bill of Rights Lesson
Overview
The Founders saw themselves as heirs to a legacy of freedom stretching back at least to the
Magna Carta. Events and philosophies from British and colonial history shaped the Founders’
ideas about natural rights as well as the rights of Englishmen. These rights impact all of our daily
lives in a free society. Students will understand the background leading to the development of the
Constitution and the Bill of Rights by analyzing English documents and common law. Students will
also analyze the debate between the Federalists and the Anti-Federalists over the bill of rights.
They will understand that it was not an argument over whether rights exist, but about how best to
protect those rights.
Recommended Time
controversies regarding appropriate powers
of government versus individual rights.
130 minutes
�
Objectives
Students will:
�
�
�
�
�
�
�
�
Understand the importance of the rights of
Englishmen and natural rights.
Identify similarities between historical
statements about rights and current
applications.
�
Analyze how the history behind the rights
of Englishmen and natural rights influenced
the American Founding documents.
Explain the arguments of the Federalists
and Anti-Federalists regarding a bill of
rights.
Identify and evaluate continuing
В© The Bill of Rights Institute
Participate in civil discourse in order to
understand how individual rights are
protected in the Bill of Rights.
North Carolina Clarifying Objectives
Analyze how the colonial experience
affected the development of the Bill of
Rights.
Evaluate the significance of individual rights
in the daily lives of Americans.
Analyze the ongoing implications of
Federalist and Anti-Federalist positions.
�
CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
FOUNDING PRINCIPLES COURSE Individual Rights Module
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
�
�
�
�
�
CE.C&G.1.3: Evaluate how debates on
power and authority between Federalists
and Anti-Federalists have helped shape
government in the United States over
time (e.g., Hamilton, Jefferson, Madison,
Federalist Papers, strong central
government, protection of individual rights,
Elastic Clause, Bill of Rights, etc.).
the governed, popular sovereignty, religious
and political freedom, separation of powers,
etc.).
�
1. Reconstruct the literal meaning of a
historical passage.
2. Differentiate between historical facts and
historical interpretations.
�
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.4.2: Explain how the development
of America’s national identity derived
from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of
В© The Bill of Rights Institute
AH1.H.1.2: Use Historical
Comprehension to:
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.
�
AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.
B. AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
FOUNDING PRINCIPLES COURSE C. AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
Materials
�
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Handout A: Background Essay - The Origins
of the Bill of Rights
Handout B: Foundations of Our Rights
Handout C: Founding Documents and
Philosophies
Handout D: Documents Protecting Rights
Handout E: Background Essay - Why a Bill
of Rights? What Impact Does it Have?
Handout F: Understanding Positions of
Federalists and Anti-Federalists
Handout G: Federalists and Anti-Federalists
Venn Diagram
�
Handout H: Classifying Quotes
�
Founders’ Quote Posters
Lesson Plan
Background/Homework [10 minutes
the day before]
A. Have students skim Handout A:
Background Essay - The Origins of
the Bill of Rights and use highlighters or
colored pencils to color code the essay:
Individual Rights Module
Activity I [20 minutes]
A. Divide class into pairs to fill in Handout B:
Foundations of Our Rights.
B. Distribute Handout C: Founding
Documents and Philosophies. Student
pairs should discuss and answer the
questions on Handout C.
C. Bring the class back together and go over
Handout C as a large group.
D. Have the class discuss this quote from
James Madison’s Federalist No. 51
(1788). Point out to students that the quote
illustrates that the Founders themselves
were very concerned about the proper
balance between security and liberty.
a. Ask them to consider: how can liberty
be abused? What constitutional
principles… Given this discussion, how
should government be structured to best
protect liberty?
Activity II [40 minutes]
D. Have students compare and contrast the
Magna Carta, the English Bill of Rights, the
Massachusetts Body of Liberties, and the
Declaration of Independence. Excerpts of
these documents can be found on Handout
D: Documents Protecting Rights. Have
students write a short response in their
journals answering these questions:
a. How are the ideas about rights and
government similar in these documents?
How are they different?
Information about documents written in
England: yellow
Information about documents written in
America: green
Activity III [60 minutes]
Violations of rights in the American
colonies: red
A. Have students read Handout E:
Background Essay - Why a Bill of
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b. How do these documents protect
citizens’ rights?
FOUNDING PRINCIPLES COURSE Rights? What Impact Does it Have?
Along with the essay, give students
Handout F: Understanding Positions of
Federalists and Anti-Federalists to fill in
as they read.
a. Divide students into pairs or trios and
ask them to share their homework
Handout F chart responses and
compare their answers.
b. Have each group identify which
argument they feel is strongest for
each heading — Federalists and AntiFederalists.
B. Give each group a copy of Handout G:
Federalists and Anti-Federalists Venn
Diagram, instructing them to complete the
Venn diagram using key words to record
the positions of the Federalists and AntiFederalists.
a. Go over the Venn diagrams as a class,
and answer any questions.
C. Before class, print Founders’ Quote
Posters, laminate them, and tape them up
around the room.
a. Have pairs of students walk around
the room to read and discuss each of
the Founders’ Quote Posters. Have
each pair, using a copy of Handout
H: Classifying Quotes, decide and
record whether each quote represents
Federalist or Anti-Federalist beliefs.
Students may move from poster to
poster in any order.
b. After everyone has finished, discuss
each quotation as a class and reveal
who was the author in each case.
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Individual Rights Module
D. Wrap up by asking students about a time
when they either experienced their own
rights being abridged, or witnessed this
happen to someone else. What was, or
what should be, the reaction of other
individuals to abridgment of rights? What
was, or should be, the government’s role in
protecting everyone’s rights?
Homework and Extension Options
A. Have students research the constitution of
one of the original thirteen colonies. They
should create a presentation explaining
how the original constitution of the colony
compares to the U.S. Constitution and U.S.
Bill of Rights.
a. Based on their research, was the
colony’s constitution used as a guide
for the U.S. Constitution or did the U.S.
Constitution help guide the colony’s
constitution?
b. How is the colony’s constitution similar
to the U.S. Constitution? How is it
different?
c. What similarities did the colony’s
constitution have to the Magna Carta,
the Petition of Right, or the Declaration
of Rights?
B. Have students read excerpts from the
Federalist Papers and the Anti-Federalist
Papers. Have students write a paper
to evaluate how debates on power and
authority between Federalists and AntiFederalists have helped shape government
in the United States over time.
Handout A: Background Essay – What Are the
Origins of the Bill of Rights?
Many American colonists felt betrayed by the
British government as their rights were taken
away. The colonists were forced to allow
British soldiers to stay in their homes; they
were taxed by the British government without
being represented in Parliament; and they had
their own weapons taken away. They also saw
restrictions put on speech and the press and
were not even allowed to gather together freely.
Ironically, the colonists’ ideas about “essential
rights” originated in their British background.
Now it was the British government that
challenged those principles.
What Is the Magna Carta?
These rights were part of a centuries-old
heritage. In fact, much of American colonial law
was based on the rights of Englishmen. The
oldest document in the British and American
heritage of rights, the Magna Carta, was written
in 1215, and it includes the statement that the
rights it lists are “ancient.”
This heritage is alive in America today. More
than half the Amendments in the Bill of Rights
have roots in the Magna Carta. A group of
barons forced England’s King John to agree to
preserve the freedom of the Church and to hear
petitions from the barons (First Amendment).
He also agreed to remove foreign armies from
England (Third Amendment); not to seize land
to pay for debts (Fourth Amendment); not
to take life or liberty without due process or
repayment (Fifth Amendment). He swore not
to delay court proceedings or punish without
hearing from witnesses (Sixth Amendment), as
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well as to repay unjust fines and not to issue
extreme punishments (Eighth Amendment).
The Founders believed that these rights were
natural and all citizens had them.
How Were Rights Protected and Expanded?
Through the centuries, Magna Carta freedoms
found their way into English common law.
Englishmen were fiercely protective of these
rights when the King tried to withdraw them.
In the 17th century, King Charles I disbanded
Parliament and said he would rule England
on his own. House of Commons member Sir
Edward Coke presented a list of complaints.
This list came to be called the Petition of Right,
which helped establish the principle that the
King was not above the law. Charles’s abuses
of the law included violation of due process
(Fifth Amendment); unjust taking of property or
imprisonment (Fourth and Fifth Amendments);
denying the right to trial by fellow Englishmen
(Sixth Amendment); and unjust punishments or
fines (Eighth Amendment). Although Charles
first agreed to stop breaking the law, he soon
went back on his word. He was beheaded in
1649.
Prince William of Orange and his wife Mary
were invited to the throne by Parliament in
the 1688 Glorious Revolution. As a condition
of their rule, William and Mary accepted the
Declaration of Rights and the Toleration Act in
1689. The Toleration Act expanded freedom
of religion. It granted Protestants who did
not attend the Church of England the right to
freely exercise their faith (First Amendment).
The Declaration of Rights gave Parliament
total freedom of speech during debate (First
Amendment). The Declaration also included:
the right to assemble peacefully and to petition
(First Amendment); the right to keep arms
(Second Amendment); protections of property
and liberty (Fourth and Fifth Amendments);
rights of the accused (Sixth Amendment); and
rights of criminals (Eighth Amendment).
What Was the Purpose of Government?
Forty years after Charles’s execution and just
after the Declaration of Rights, John Locke
wrote Two Treatises of Government (1690).
Locke argued that men are by nature free and
equal and that they own their “persons [bodies]
and possessions.” He said people must “unite
into a community for their comfortable, safe,
peaceable living” in order to defend their rights.
Locke believed that a government’s purpose is
to protect individual natural rights such as life,
liberty, and property. Therefore, people must
have the right to dissolve a government that is
not protecting them.
And so it was in the thirteen colonies. When
the British ignored English laws in the American
colonies, the colonists were armed with a
tradition justifying their demand that those laws
be followed.
What Did the Colonial Experience Teach the
Founders?
The colonists brought their rights as
Englishmen to the earliest American colonies.
Massachusetts adopted the “Body of Liberties”
in 1641. The document included protection for
free speech and petition (First Amendment),
just compensation for property taken for public
use (Fifth Amendment), protection from double
jeopardy (Fifth Amendment), right to trial by jury
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and counsel (Sixth Amendment), and protection
from cruel punishments and excessive bail
(Eighth Amendment).
Between 1763 and 1776, the British
government began to limit freedoms especially
relating to taxation without representation.
The colonists’ resolve was tested. For example,
the 1765 Quartering Act demanded colonists
give British troops shelter (Third Amendment).
The 1774 Coercive Acts included: restricting
the rights of free speech, press, and assembly
(First Amendment); confiscating of colonists’
weapons (Second Amendment); lifting
protections of property (Fourth and Fifth
Amendments); prosecuting colonial activists
in English courts, or holding them without trial
(Sixth Amendment). The colonists responded
to these acts with protest and eventually
revolution. The colonists later addressed these
issues in the United States Bill of Rights.
How Did History Repeat Itself?
The conflict reached a breaking point in 1776.
As Locke had written, the people had the
right to dissolve a government that was not
protecting their rights. Americans realized
they needed self-government and issued a
Declaration of Independence. Locke had listed
life, liberty, and property as natural rights, while
Thomas Jefferson substituted “life, liberty, and
the pursuit of happiness.” The Declaration of
Independence went on to list ways the British
had violated the rights of Englishmen.
The colonists then had to begin creating their
own government. They threw out the colonial
charters and wrote new constitutions. Seven
colonies included a Declaration of Rights. The
most important of these, historians agree,
was Virginia’s. The Virginia Declaration of
Rights, written by George Mason, protected the
press, exercise of religion, arms, property, the
accused, and criminals. James Madison later
used it as a model when he wrote the United
States Bill of Rights.
After the Revolution, the states united under
the Articles of Confederation from March
1781 to June 1788. The Articles proved to
be an inadequate system of government. To
replace it, the Founders in 1787 drafted a new
document: the Constitution of the United States
of America. This document created a central
government.
Why Add a Bill of Rights?
There were some Americans who feared the
central government was too strong under
the Constitution alone. They believed that
a separate listing of rights was needed to
protect individual rights and states’ powers.
A compromise eased the debate. The new
Constitution was ratified in 1789 and two years
later amended to include what Madison said
“might be called a bill of rights.”
The Founders inherited a tradition of rights that
they cherished. They created the American
system of government with great care to
ensure future generations would enjoy all
the “blessings of liberty.” In the end, it is not
the governments who are sovereign, but the
people.
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Comprehension Questions
1. Name at least 3 ways in which the
Declaration of Rights and Toleration Act
limited the power of British kings.
2. As a result of his violation of the rights
of Englishmen, what happened to King
Charles I?
3. What is the fundamental reason why,
according to Locke, government’s main
purpose must be to protect the rights of
individuals?
4. Name at least three ways in which the
British violated the “traditional rights of
Englishmen” in their North American
colonies.
5. What document established the first attempt
of the former American colonies to organize
a united government?
Handout B: Foundations of Our Rights
Directions: Fill in the chart, placing check marks to show which specific rights were guaranteed by
each document. Then fill in the chart below with the purpose of each document.
Bill of
Rights
(1791)
reference
Right
Right
Right
Right
Right
Right
Right
First
Religion,
speech,
press,
assembly,
petition
Second
Right to
keep and
bear arms
Third
Freedom
from
quartering
troops
Fourth
Search
and
seizure
rights
Fifth
Due
process
rights
Sixth
Fair trial
rights
Eighth
Freedom
from cruel
and unusual
fines and
punishment
Magna
Carta
(1215)
Petition
of Right
(1621)
Mass. Body
of Liberties
(1641)
Declaration
of Right and
Toleration
Acts (1689)
Right
violated in
colonies?
Document
Two Treatises of Government (1690)
Declaration of Independence (1776)
United States Constitution (1789)
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Purpose
Handout C: Founding Documents and
Philosophies
1. What does the Declaration of Independence have in common with Locke’s Two Treatises of
Government?
___________________________________________________________________________
___________________________________________________________________________
2. How are these two documents different?
___________________________________________________________________________
___________________________________________________________________________
3. How does the Constitution differ from the Articles of Confederation?
___________________________________________________________________________
___________________________________________________________________________
4. Why do you think some specific rights appear more often than others in the documents?
___________________________________________________________________________
___________________________________________________________________________
5. At the start of class, we discussed which rights the class believed were most important. Which
right, and why, do you think is most important to your parents? Discuss this question with them
and report their answers back to the class.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
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Handout D: Documents Protecting Rights
Directions: Read the excerpts of the Magna Carta, the English Bill of Rights, the Massachusetts
Body of Liberties, and the Declaration of Independence below. Write a journal entry answering
these questions:
1. What are the similarities and differences between the documents?
2. How do these documents protect citizens’ rights?
Excerpts from the Magna Carta (1215)
1. … the English Church shall be free, and
shall have her rights entire, and her liberties
inviolate…
13. [T]he city of London shall have all its ancient
liberties and free customs… furthermore…all
other cities, boroughs, towns, and ports shall
have all their liberties and free customs…
20. A freeman shall not be amerced for a slight
offense, except in accordance with the degree
of the offense; and for a grave offense he shall
be amerced in accordance with the gravity of the
offense…
Excerpts from the English Bill of
Rights (1689)
And thereupon the said Lords Spiritual and
Temporal and Commons, pursuant to their
respective letters and elections, being now
assembled in a full and free representative
of this nation, taking into their most serious
consideration the best means for attaining the
ends aforesaid, do in the first place (as their
ancestors in like case have usually done) for
the vindicating and asserting their ancient rights
and liberties declare
That the pretended power of suspending the
laws or the execution of laws by regal authority
without consent of Parliament is illegal;
28. No constable or other bailiff of ours shall take
corn or other provisions from anyone without
That the pretended power of dispensing with
immediately tendering money therefore, unless
he can have postponement thereof by permission laws or the execution of laws by regal authority,
as it hath been assumed and exercised of late,
of the seller…
is illegal;
39. No freemen shall be taken or imprisoned or
diseased or exiled or in any way destroyed…
That the commission for erecting the late Court
except by the lawful judgment of his peers or by
of Commissioners for Ecclesiastical Causes,
the law of the land…
and all other commissions and courts of like
nature, are illegal and pernicious;
40. To no one will we sell, to no one will we
refuse or delay, right or justice…
That levying money for or to the use of the
42. It shall be lawful in future for anyone
(excepting always those imprisoned or
outlawed in accordance with the law of the
kingdom…) to leave our kingdom and to
return…
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Crown by pretence of prerogative, without
grant of Parliament, for longer time, or in other
manner than the same is or shall be granted, is
illegal;
That it is the right of the subjects to petition the
king, and all commitments and prosecutions for
such petitioning are illegal;
That the raising or keeping a standing army
within the kingdom in time of peace, unless it
be with consent of Parliament, is against law;
That the subjects which are Protestants may
have arms for their defence suitable to their
conditions and as allowed by law;
That election of members of Parliament ought
to be free;
That the freedom of speech and debates or
proceedings in Parliament ought not to be
impeached or questioned in any court or place
out of Parliament;
That excessive bail ought not to be required,
nor excessive fines imposed, nor cruel and
unusual punishments inflicted;
That jurors ought to be duly impanelled and
returned, and jurors which pass upon men in
trials for high treason ought to be freeholders;
That all grants and promises of fines and
forfeitures of particular persons before
conviction are illegal and void;
And that for redress of all grievances, and for
the amending, strengthening and preserving
of the laws, Parliaments ought to be held
frequently.
And they do claim, demand and insist upon all
and singular the premises as their undoubted
rights and liberties, and that no declarations,
judgments, doings or proceedings to the
prejudice of the people in any of the said
premises ought in any wise to be drawn
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hereafter into consequence or example;
to which demand of their rights they are
particularly encouraged by the declaration of
his Highness the prince of Orange as being
the only means for obtaining a full redress and
remedy therein. Having therefore an entire
confidence that his said Highness the prince
of Orange will perfect the deliverance so far
advanced by him, and will still preserve them
from the violation of their rights which they have
here asserted, and from all other attempts upon
their religion, rights and liberties.
Excerpts from the Massachusetts
Body of Liberties (1641)
1. No man’s life shall be taken away, no man’s
honor or good name shall be stained, no man’s
person shall be arrested, restrained, banished,
dismembered, nor any ways punished, no
man shall be deprived of his wife or children,
no man’s goods or estate shall be taken away
from him, nor in any way damaged under color
of law, or countenance of authority, unless it be
by virtue or equity of some express law of the
Country warranting the same established by
a General Court and sufficiently published, or
in case of the defect of a law in any particular
case by the word of God. And in capital
cases, or in cases concerning dismembering
or banishment, according to that word to be
judged by the General Court.
2. Every person within this jurisdiction,
whether inhabitant or foreigner, shall enjoy the
same justice and law, that is general for the
Plantation, which we constitute and execute
one towards another, without partiality or delay.
8. No man’s cattle or goods of what kind soever
shall be pressed or taken for any public use or
service, unless it be by warrant grounded upon
some act of the General Court, nor without
such reasonable prices and hire as the ordinary
rates of the Country do afford. And if his cattle
or goods shall perish or suffer damage in
such service, the owner shall be sufficiently
recompensed.
11. All persons which are of the age 21 years
and of right understanding and memory,
whether excommunicate or condemned,
shall have full power to make their wills and
testaments, and other lawful alienations of their
lands and estates.
13. No man shall be rated [taxed] here for
any estate or revenue he hath in England, or
foreign parts, till it be transported hither.
15. All covenous [conspired] or fraudulent
alienations [transfer of ownership] or
conveyances of lands, tenements, or any
hereditaments, shall be of no validity to defeat
[free] any man from due debts or legacies, or
from any just title, claim or possession of that
which is thus fraudulently conveyed.
16. Every inhabitant that is a householder
shall have free fishing and fowling in any great
ponds and bays, coves and rivers, so far as
the sea ebbs and flows within the precincts of
the town where they dwell, unless the Freemen
of the same town or the General Court have
otherwise appropriated them, provided that
this shall not be extended to give leave to any
man to come upon others property without their
leave.
17. Every man of or within this jurisdiction
shall have free liberty, notwithstanding any civil
power, to remove both himself and his family at
their pleasure out of the same, provided there
be no legal impediment to the contrary.
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23. No man shall be adjudged to pay for
detaining any debt from any creditor above
eight pounds in the hundred for one year
(8% simple interest), and not above that rate
proportionable for all sums whatsoever, neither
shall this be a color or countenance to allow
any usury amongst us contrary to the law of
God.
29. In all actions at law it shall be the liberty of
the plaintiff and defendant by mutual consent to
chose whether they will be tried by the bench
or by a jury, unless it be where the law upon
just reason hath otherwise determined. The like
liberty shall be granted to all persons in criminal
cases.
40. No conveyance, deed, or promise
whatsoever shall be of validity if it be gotten
by violence, imprisonment, threatening, or any
kind of forcible compulsion called duress.
42. No man shall be twice sentenced by civil
justice for one and the same crime, offense, or
trespass.
Excerpts from the Declaration of
Independence (1776)
IN CONGRESS, July 4, 1776.
The unanimous Declaration of the thirteen
united States of America,
When in the Course of human events, it
becomes necessary for one people to dissolve
the political bands which have connected them
with another, and to assume among the powers
of the earth, the separate and equal station to
which the Laws of Nature and of Nature’s God
entitle them, a decent respect to the opinions of
mankind requires that they should declare the
causes which impel them to the separation.
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.–That to secure these
rights, Governments are instituted among Men,
deriving their just powers from the consent of
the governed, –That whenever any Form of
Government becomes destructive of these
ends, it is the Right of the People to alter or
to abolish it, and to institute new Government,
laying its foundation on such principles and
organizing its powers in such form, as to them
shall seem most likely to effect their Safety and
Happiness. Prudence, indeed, will dictate that
Governments long established should not be
changed for light and transient causes; and
accordingly all experience hath shewn, that
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mankind are more disposed to suffer, while
evils are sufferable, than to right themselves
by abolishing the forms to which they are
accustomed. But when a long train of abuses
and usurpations, pursuing invariably the same
Object evinces a design to reduce them under
absolute Despotism, it is their right, it is their
duty, to throw off such Government, and to
provide new Guards for their future security.–
Such has been the patient sufferance of these
Colonies; and such is now the necessity which
constrains them to alter their former Systems
of Government. The history of the present King
of Great Britain is a history of repeated injuries
and usurpations, all having in direct object
the establishment of an absolute Tyranny
over these States. To prove this, let Facts be
submitted to a candid world.
Handout E: Background Essay - Why a Bill of
Rights? What Impact Does it Have?
All have heard the saying, “Great minds think
alike.” When many great minds of the colonies
gathered to create a new government, two
rarely thought exactly alike. The Bill of Rights
was created through the kind of debate and
exchange of ideas that it protects to this day.
The Declaration of Independence states that
the purpose of government is to protect our
basic natural or inalienable rights. This was one
principle on which all the Founders did agree.
But if they created a great system to protect
rights, why did they disagree about a bill of
rights?
Who Were the Federalists and AntiFederalists?
The Constitutional Convention was divided
into two groups – the Federalists and the
Anti-Federalists. Both the Federalists and
Anti-Federalists wanted to have checks on the
power of the government, but they differed on
the manner in which to prevent the government
from taking power from the people. The AntiFederalists supported amending the Articles
of Confederation, while the Federalists sought
to create an entirely new Constitution with a
central government. The Federalists wanted to
limit the amount of power held by the states.
The Federalists believed that the Constitution
would create a central government that
would be balanced in separate branches and
checked by the state governments in order
to keep it from growing too powerful. Many
Anti-Federalists were concerned that putting
too much power in any concentrated central
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government would inevitably diminish citizens’
rights. They believed that the power should
remain in the state governments because the
states could be more responsive to the needs
of their citizens.
During the ratification of the Constitution, two
groups formed during the discussion over a
bill of rights. Federalists strongly supported the
Constitution as it was written and did not think
a bill of rights was needed. Anti-Federalists
believed that a bill of rights was necessary
to prevent the central government from
threatening states’ authority and oppressing
citizens.
Leading Federalists were Alexander Hamilton
from New York and James Madison from
Virginia. They believed a bill of rights was not
needed because the Constitution itself limited
the government’s powers. They also feared
that creating a list of rights might lead to other
dangers, such as implying powers that had not
been granted to the government. It would be
impossible to list every right. Federalists did not
want certain rights to be ignored or violated just
because they were not listed.
Leading Anti-Federalists were George Mason
and Patrick Henry of Virginia. Anti-Federalists
wanted to protect against a powerful central
government taking away the freedoms they had
fought a revolution to preserve. They believed
a bill of rights needed to be added to the
Constitution so that citizens would be protected
against the government infringing upon rights.
George Mason had written a similar document
to protect the rights of Virginians called the
Virginia Declaration of Rights. Some of the
language in this document was used to develop
the amendments used in the United States Bill
of Rights.
1791, Virginia’s state convention became the
last state needed to ratify the ten amendments
that protected individual and states’ rights. The
Bill of Rights now joined the Constitution as the
governing document of the United States.
Why Did Madison Change His Mind?
What Is the Impact of the Bill of
Rights?
The Constitutional Convention ended in late
1787, but the debate went on. Nine states
ratified (approved) the Constitution by the
summer of 1788. However, New York, Virginia,
and Massachusetts submitted long lists of
proposed amendments to guarantee rights. It
became clear the people wanted a bill of rights.
Madison sought the advice of Thomas
Jefferson, John Adams, George Mason,
and President George Washington. They all
expressed support for a bill of rights. Mason
(the author of Virginia’s Declaration of Rights)
suggested using state bills of rights as a
guide. Madison agreed to add a bill of rights
to discourage the attempt to call a second
Constitutional Convention. Madison offered
his proposed changes to Articles I and III of
the Constitution on June 8, 1789. He initially
made additions and changes to the original
text of the Constitution. Some Anti-Federalist
Congressmen, led by Roger Sherman,
objected, arguing that Congress did not have
the power to change the original form of the
Constitution that had been ratified by the
states. They decided the Amendments would
be added as a separate list.
The House of Representatives debated through
the summer. On August 24, 1789, the House
sent a list of seventeen amendments to the
Senate. The Senate approved twelve. Those
twelve were sent to the states for ratification,
but only ten were ratified. On December 15,
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The Bill of Rights limited only actions taken by
the federal government against people. The
Founders assumed citizens would be protected
against state governments by their home
states’ constitutions. For this reason, the Bill
of Rights did not strongly impact Americans’
lives until the Fourteenth Amendment was
passed in 1868. The Fourteenth Amendment
states that the federal government must not
violate people’s life, liberty, or property without
due process. But beginning in the 1920s,
the Supreme Court began to apply the Bill of
Rights to the states to fulfill the Fourteenth
Amendment’s guarantee of “liberty.” Gradually,
one issue at a time, the Supreme Court has
interpreted most of the provisions of the Bill
of Rights to apply as limits on state and local
governments through the due process clause of
the Fourteenth Amendment
In the twentieth century, the role of the federal
government shifted. As a result of the federal
government’s expanded role, its size, purpose,
and significance have changed. The change
also affected the national view of the Bill of
Rights. The document that had rarely affected
Americans’ lives prior to the 1920s now took
center stage in American society, politics, and
conversation.
The Bill of Rights began with debate over its
very existence. Perhaps it is fitting that it still
brings about questions and controversy today.
Comprehension Questions
1. Why did Federalists think a bill of rights
was unnecessary and could even be
dangerous?
2. Why did James Madison change his
mind about adding a bill of rights to the
Constitution?
3. Why did the Bill of Rights not strongly
impact citizens’ lives until after 1920s?
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Handout F: Understanding Positions of
Federalists and Anti-Federalists
Directions: As you read the background essay, fill in the chart below with positions of Federalists
and Anti-Federalists. Then answer the questions below.
Federalists (Alexander Hamilton, James Madison)
Anti-Federalists (George Mason, Patrick Henry)
1.
1.
2.
2.
3.
3.
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Handout G: Federalists and Anti-Federalists
Venn Diagram
Directions: Fill in the diagram with the positions of Federalists, Anti-Federalists, and the points on
which they agreed.
Federalists
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Both
Anti-Federalists
Handout H: Classifying Quotes
Directions: Read each quote and decide whether it represents Federalist or Anti-Federalist views.
Explain what words or understandings about Federalists and Anti-Federalists led you to that
conclusion.
1. “I do not conceive we can exist long as a nation without having…a power which will pervade
the whole Union….” Federalist
Anti-Federalist 2. “The State Declarations of Rights are not repealed by this Constitution; and being in force are
sufficient.”
Federalist
Anti-Federalist
3. “The laws of the general government being paramount to the laws and constitutions of the
several states, the Declaration of Rights in the separate states are no security.”
Federalist
Anti-Federalist
4. “…State Legislatures have no security for the powers now presumed to remain to them, or the
People for their Rights.”
Federalist
Anti-Federalist
5. “There is no Declaration of any kind for preserving the Liberty of the Press, the Trial by Jury in
civil Causes; nor against the Danger of standing Armies in time of Peace…”
Federalist
Anti-Federalist
6. “Repeated violations of these parchment barriers have been committed by overbearing
majorities in every State.”
Federalist
В© The Bill of Rights Institute
Anti-Federalist
Founders’ Quote Posters
“I do not conceive we can exist long as a nation without having lodged somewhere a power, which
will pervade the whole union in as energetic a manner as the authority of the state governments
extends over the several states.”
“The State Declarations of Rights are not repealed by this Constitution; and being in force are
sufficient.”
“The laws of the general government being paramount to the laws and constitutions of the several
states, the Declaration of Rights in the separate states are no security.”
“State legislatures have no security for the powers now presumed to remain to them, or the people
for their rights.”
“There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil
causes; nor against the danger of standing armies in time of Peace…”
“Repeated violations of these parchment barriers have been committed by overbearing majorities
in every state.”
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Individual Rights Module
Individual Right Module: The United States Bill
of Rights Lesson
Overview
The addition of the Bill of Rights to the
Constitution was celebrated as a victory for
the champions of individual liberty. But for
the Bill of Rights to remain more than what
Madison referred to as a “parchment barrier,”
citizens must understand the purpose, content,
and meaning of this most important American
document. In this lesson, students will identify
and analyze the protections in the Bill of Rights,
as well as evaluate Supreme Court decisions in
cases centered on Bill of Rights protections.
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.).
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Objectives
Students will:
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Identify the rights protected in the Bill of
Rights.
Exemplify the rights protected in the Bill of
Rights.
Explain the significance of the rights
protected in the Bill of Rights throughout
history and today.
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Apply provisions of the Bill of Rights through
guided scenarios.
Evaluate Supreme Court rulings on cases
regarding the protections in the Bill of
Rights.
North Carolina Clarifying Objectives
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CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
В© The Bill of Rights Institute
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
FOUNDING PRINCIPLES COURSE from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of
the governed, popular sovereignty, religious
and political freedom, separation of powers,
etc.).
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AH1.H.1.3: Use Historical Analysis and
Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate the influence of the past on
contemporary issues.
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AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
2. Support interpretations with historical
evidence.
3. Construct analytical essays using
historical evidence to support
arguments.
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AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
В© The Bill of Rights Institute
Individual Rights Module
Materials
Handout A: The United States Bill of Rights
Handout B: What Rights Are Protected by the
Bill of Rights?
Handout C: YOU Be the Judge!
Handout D: Outcome Discussion Cards
Handout E: The Bill of Rights Today
Handout F: Mock Supreme Court Procedures
Handout G: The Bill of Rights Song
Recommended Time
150 minutes
Background/Homework [10 minutes
the day before]
A. Have students read Handout A: The
United States Bill of Rights and complete
Handout B: What Rights Are Protected
by the Bill of Rights?
Warm-Up [20 minutes]
A. Have students discuss their answers to
Handout B: What Rights Are Protected
by the Bill of Rights? in pairs.
Activity [80 minutes]
A. Divide students into eight groups and
distribute Handout C: You Be the Judge.
B. Assign one scenario to each group and
instruct students to read and discuss their
scenario. They should then discuss and
answer the questions at the end. Allow
groups about 15-20 minutes to complete
this part of the activity.
C. Once all groups have finished, reconvene
the class and ask the group that worked
with Scenario 1 to read their situation to the
class and report their answers.
FOUNDING PRINCIPLES COURSE D. As a large group, locate the rights/
amendments in the Bill of Rights involved
with each scenario.
E. Conduct a class vote to determine which
side of the argument students agree with in
the scenario. Record the results of the vote
on the board.
F. Continue until all scenarios have been
presented.
Wrap-Up [40 minutes]
A. Distribute the cards on Handout D:
Outcome Discussion Cards to students
who are strong readers. Point out to
students that the fictional scenarios they
just discussed were all based on actual
Supreme Court cases. Have them read the
Supreme Court rulings for each scenario
and allow class discussion on each.
B. Make sure to emphasize to students that
Supreme Court rulings are not substitutes
for the Constitution’s text. The Court often
overturns itself, and all citizens have the
responsibility to evaluate their rulings in
light of the Constitution.
C. Ask students if they agree with the Court’s
rulings. How would they use the Bill of
Rights to support their opinions? Conduct
a large group discussion to answer the
questions:
a. How does the Bill of Rights protect
liberty?
b. At their core, what do the protections in
the Bill of Rights have in common?
c. Why must government power be limited
to protect individual rights?
В© The Bill of Rights Institute
Individual Rights Module
Homework and Extension Options
A. Distribute Handout E: The Bill of Rights
Today. Have students research recent/
current events news stories that illustrate
the individual rights and protections
guaranteed by the Bill of Rights. Students
could begin by searching the Teaching
with Current Events pages on www.
BillofRightsInstitute.org. Students should
locate at least four examples and complete
the graphic organizer to summarize the
stories and draw connections to their lives.
B. Using Handout F: Mock Supreme Court
Procedures, have students hold a Mock
Supreme Court hearing using either the
Kelo v. New London, 2005 property rights
case or the Safford Unified School District
# 1, et al. v. Redding, 2008 search and
seizure case. Information on the cases can
be found at www.Law.Cornell.edu.
C. Have students learn Handout G: Bill of
Rights Song (to the tune of “The Twelve
Days of Christmas”).
Handout A: The United States Bill of Rights
Amendment I
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.
Amendment II
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.
Amendment III
No soldier shall, in time of peace be quartered
in any house, without the consent of the
owner, nor in time of war, but in a manner to be
prescribed by law.
Amendment IV
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.
Amendment V
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when in actual service
in time of war or public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty,
В© The Bill of Rights Institute
or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the
crime shall have been committed, which district
shall have been previously ascertained by law,
and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise
reexamined in any court of the United States,
than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or
disparage others retained by the people.
Amendment X
The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively,
or to the people.
Handout B: What Rights Are Protected
by the Bill of Rights?
Directions: As you read the Bill of Rights, think about seven to ten of the rights protected in the
entire document. Use the left column to write the specific right(s) protected in the Bill of Rights.
Use the right column to explain why the Founders believed there was a need to include the right(s)
in the Bill of Rights.
A right that must be protected is…
Because…
1. __________________________________
___________________________________
2. Right to bear arms
___________________________________
3. __________________________________
___________________________________
4. __________________________________
___________________________________
5. __________________________________
___________________________________
6. Right to a speedy and public trial
___________________________________
7. __________________________________
___________________________________
8. No cruel or unusual punishments
___________________________________
9. __________________________________
___________________________________
10. __________________________________
___________________________________
В© The Bill of Rights Institute
Handout C: YOU Be the Judge
Scenario 1
Scenario 3
Mary saved for and bought a piece of land
outside an Iowa town. She wanted to build
a home on the land. Mary applied for a
building permit and found out that the Iowa
legislature recently passed a law preventing
further construction on land designated as
“protected wetlands.” Her land, it turns out,
was designated as “protected wetlands,”
and she was denied a building permit for
any future building on the property.
Benny has been found guilty of a heinous
crime: attacking and killing his boss in a fit
of rage. In the sentencing phase of his trial,
Benny’s lawyers produced two psychologists
who testified to the fact that Benny was, in
fact, mentally retarded. Benny’s lawyers and
psychologists argued that the jury should not
be allowed to assign the death penalty as
punishment for Benny’s crimes. It was quite
probable, the psychologists testified, that
Benny did not fully understand the outcome
of his actions, and while this fact does not
absolve him of punishment, he should not be
put to death.
1. What protection(s) and amendment(s)
are involved?
2. Should the State of Iowa pay Mary for
the inability to use her land?
Scenario 2
The student body of Lakewood High School,
a public school, took a vote. By a vast
majority, they voted to conduct a studentled prayer over the public address system
of their football stadium before the kick-off
of each home game. They elected Paul,
the student body president, to conduct
the non-denominational prayer. Jane, an
atheist, objected. She was neither required
to participate, nor punished for refusing.
Nonetheless, Jane believed the public
prayer itself to be unconstitutional.
1. What protection(s) and amendment(s)
are involved?
2. Should the students of Lakewood
High School be allowed to vote on a
prayer to be read publicly at games?
В© The Bill of Rights Institute
1. What protection(s) and amendment(s)
are involved?
2. Should the jury be allowed to assign
the death penalty as punishment for
Benny’s crime?
Scenario 4
Scenario 5
Kate and Jim were ardent followers of the
Amish faith, and, following Amish doctrine,
did not wish to enroll their children in
school beyond the 8th grade. Their state
legislature, however, had passed a law
requiring all children to attend school until
age 16. Such a law, Kate and Jim believed,
violated the duties required of them as an
Amish family, and they refused to comply
with the law. The state prosecuted and
punished Kate and Jim for violating the law
and refusing to send their children to school.
Darren was arrested on suspicion of
kidnapping and rape. He was taken to
the police station, where the victim picked
Darren out of a lineup. An officer pointed
to a woman in the police station and asked
if she was the victim. Darren told them,
“Yeah, that’s her.” The police then took
him to an interrogation room where he
was questioned for two hours. He verbally
confessed to the crime, and signed a written
statement, prepared by the police, admitting
his guilt. Darren’s confession included a
statement that he was aware of his rights,
and that any statements he made could be
used against him. However, the police made
little effort throughout the interrogation
to allow Darren access to a lawyer, or
generally notify of him of his rights.
1. What protection(s) and amendment(s)
are involved?
2. Should Kate and Jim be prosecuted
for refusing to send their children to
school?
1. What protection(s) and amendment(s)
are involved?
2. Should Darren’s confession be
allowed as evidence at trial?
В© The Bill of Rights Institute
Scenario 6
Scenario 7
Elaine, a respected physician in the
community, was accused of murdering
her husband, Adam. Elaine continually
maintained her innocence in Adam’s death.
The murder trial was a media sensation
- reporters were in the courtroom, and were
even assigned seats between the jurors and
the defendant. The story was all over the
local and state press for weeks. Editorials
demanded a guilty verdict. The jury was not
sequestered and had access to the media
coverage. Elaine was found guilty. After her
conviction, Elaine claimed that the extensive
media coverage tainted her prosecution,
and led to an unfair guilty verdict. She
appealed her conviction, arguing that the
media coverage biased the opinions of
those in her community, requiring that her
guilty verdict be overturned.
Sara, a public high school student, was
caught smoking cigarettes in the school
bathroom. The teacher who caught Sara
took her to the principal’s office, where a
school official questioned her about whether
she was smoking in the bathroom. She
denied it. The principal, not believing her
story, decided to take further action by
looking into Sara’s purse. He found a pack
of cigarettes as well as a bag of rolling
papers commonly associated with drug
use. The official then decided to thoroughly
search Sara’s purse. He discovered a
bag of marijuana and various papers that
seemed to indicate that Sara was dealing
marijuana. He placed Sara on suspension
and called the police.
1. What protection(s) and amendment(s)
are involved?
2. Should Elaine’s conviction for
Adam’s murder be overturned?
В© The Bill of Rights Institute
1. What protection(s) and amendment(s)
are involved?
2. Was it appropriate for the school
official to examine the contents of
Sara’s purse?
Scenario 8
Matt was a prominent leader of the Ku Klux
Klan. At a Klan rally, Matt advocated support
for the Klan ideal of “white power.” He gave
a speech full of racial epithets. He also said,
in an apparent threat, “If our President, our
Congress, our Supreme Court, continues
to suppress the white, Caucasian race, it’s
possible that there might have to be some
revenge taken.” He was afterwards arrested
for violating a state law that prohibited the
advocacy of crime, sabotage, or violence as
a means of accomplishing political reform.
The law also prohibited the gathering of
any society or group formed to teach or
advocate such messages. Matt was fined
$1,000 and sentenced to ten years in
prison.
1. What protection(s) and amendment(s)
are involved?
2. Should Matt have been arrested for
his advocacy of, and rally for, Klan
ideals?
В© The Bill of Rights Institute
Handout D: Outcome Discussion Cards
Scenario 1
Scenario 2
Court Ruling: In Lucas v. South Carolina
Coast Council (1992), the Supreme Court
ruled that Lucas must be justly compensated
for residential land that he had purchased
in 1986. Lucas was prevented from
constructing “habitable structures” under a
1988 South Carolina law designed to prevent
erosion and destruction of the State’s barrier
islands, where Lucas owned his land. The
Court declared that “when the owner of real
property has been called upon to sacrifice
all economically beneficial uses in the name
of the common good...he has suffered a
taking...” and must be justly compensated as
required by the Fifth Amendment.
Court Ruling: In Santa Fe Independent
School District v. Doe (2000), the Supreme
Court ruled that the school district had
violated the Establishment Clause of the
First Amendment by a policy authorizing,
via a vote of the student body, a student
led, student-initiated prayer over the
public address system prior to a football
game. The school policy made the prayer
“public speech,” because it took place on
government property, with government
approval, at a government-sponsored
event. “[T]he realities of the situation plainly
reveal that [the district’s] policy involves
both perceived and actual endorsement
of religion.” The Court noted that the
voting process did not make the prayer
permissible. In fact, the vote caused
religious coercion of the minority by the
majority.
Did the Court make the right decision?
Why or why not?
Did the Court make the right decision?
Why or why not?
В© The Bill of Rights Institute
Scenario 3
Scenario 5
Court Ruling: In Atkins v. Virginia (2002)
the Supreme Court ruled that the execution
of mentally retarded individuals constituted
“cruel and unusual punishment.” The
Court reasoned that since many states
have discounted death as an appropriate
punishment for the mentally retarded,
due to their lessened accountability, an
�evolving standard of decency’ dictated
that it be deemed a violation of the Eighth
Amendment. “[W]e therefore conclude that
such a punishment is excessive and that the
Constitution places a substantive restriction
on the state’s power to take the life of a
mentally retarded offender.”
Court ruling: In Miranda v. Arizona (1966),
the Supreme Court ruled that police had to
notify the accused of their rights to counsel
and freedom from self-incrimination prior to
any criminal interrogation. Further, the Court
barred prosecutors from using any evidence
obtained during illegal interrogation against
defendants at trial. “The modern practice of
in-custody interrogation is psychologically
rather than physically oriented” and “the
blood of the accused is not the only
hallmark of an unconstitutional inquisition.”
Did the Court make the right decision?
Why or why not?
Did the Court make the right decision?
Why or why not?
Scenario 6
Court ruling: In Wisconsin v. Yoder (1972),
the Supreme Court determined that the
Wisconsin law mandating public school
attendance until age sixteen violated the
Exercise Clause by punishing those who
chose not to send their children to school for
religious reasons. The Court ruled that the
individual right to free exercise of religion
outweighed the state’s interest in ensuring
that school children received what the state
deemed a proper education, and that the
values and curriculum of the public school
setting were “in sharp conflict with the
fundamental mode of life mandated by the
Amish religion.”
Court Ruling: In Sheppard v. Maxwell
(1966), the Court ruled that the pretrial
publicity, as well as the behavior of the
media during the trial itself, had so biased
the jury that jurors were rendered incapable
of providing a fair and impartial decision.
“Due process requires that the accused
receive a trial by an impartial jury free from
outside influences.” The Court reasoned
that while the press plays an important
role in the preservation of a “public” trial, it
cannot be so intrusive that it fundamentally
prevents the administration of justice. The
Court noted that Sheppard’s trial judge
should have taken measures to “place
the interest of justice first,” ahead of the
demands of the news media.
Did the Court make the right decision?
Why or why not?
Did the Court make the right decision?
Why or why not?
Scenario 4
В© The Bill of Rights Institute
Scenario 7
Scenario 8
Court ruling: In New Jersey v. T.L.O.
(1985), the Supreme Court ruled that the
search and seizure was constitutional
and did not violate the student’s Fourth
Amendment rights. The Court decided that
a lighter standard of “reasonableness” could
be applied (as opposed to the “probable
cause” the Fourth Amendment requires
for search warrants to be issued) due to
the nature of the school environment. “The
initial search for cigarettes was reasonable
… the discovery of the rolling papers
then gave rise to a reasonable suspicion
that respondent was carrying marijuana
… and this suspicion justified the further
exploration that turned up more evidence of
drug-related activities.”
Court ruling: In Brandenburg v.
Ohio(1969), the Supreme Court ruled that
Ku Klux Klan leader Brandenburg’s right to
free speech had been violated by an Ohio
law that sought to criminalize public speech
that advocated “crime, sabotage, violence
… as a means of accomplishing … political
reform.” In its ruling, the Court applied a
two-part test, allowing such speech to be
prohibited only if it is (a) “directed at inciting
or producing imminent lawless action,” and
(b) likely to incite or produce such action.”
The Court reasoned that since Ohio’s law
made the mere advocacy and teaching
of such doctrine illegal without taking into
consideration whether the speech would
actually lead to “imminent lawless action,”
the law was too broad and criminalized
speech in a manner that violated the First
Amendment.
Did the Court make the right decision?
Why or why not?
Did the Court make the right decision?
Why or why not?
В© The Bill of Rights Institute
Handout E: The Bill of Rights Today
Directions: Complete the graphic organizer below by locating news articles about issues related to
the Bill of Rights today. Begin by searching the Teaching with Current Events pages at
www.BillofRightsInstitute.org. You may use other newspapers and periodicals. Attach article or
printouts to this page.
Headline/Topic of
Article
В© The Bill of Rights Institute
Summary of Article
Related Amendment
Ways This Issue
Touches My Life
Handout F: Mock Supreme Court Procedures
Preparation
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пЃ®
Encourage students to use the background
knowledge they have developed. Attorneys
and Justices of the U.S. Supreme Court
apply a great deal of background and
historical knowledge.
Caution students that “gotcha” questions
within the classroom context are not
productive. “Justices” should not ask
questions that, based on their background
and class activities, would not be fair game.
Decide whether students will be allowed to
use online resources via their smartphones
during the exercise—there are good
arguments both for using and for not using
them.
Recommendation—do not allow “Justices”
to interrupt the attorneys in the first time or
two that you run moot courts. They can ask
their questions at the end of each attorney’s
oral arguments.
Encourage teamwork among “attorneys” in
their presentations. Each team should have
a lead attorney, but others will help fill in as
needed.
Divide class into 3 groups: (A fourth group
could be journalists.)
�
9 Justices
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Advocates for petitioner
�
Advocates for respondent
пЃ®
Give time for planning: Justices decide
what questions they want answered in
oral arguments; advocates for each side
plan their oral arguments.
В© The Bill of Rights Institute
пЃ®
Allow equal time for presentation of
each side, including interruptions from
Justices (or not—your choice). In the
U.S. Supreme Court, each side has
30 minutes, and the Justices interrupt
continuously.
Justices deliberate and announce
decision. Deliberation is actually done in
strict privacy in the U.S. Supreme Court
conference, but you decide for your class.
At the beginning of each session of the
Supreme Court, the Marshal of the Court
(Court Crier) announces:
“Oyez! Oyez! Oyez! All persons having
business before the Honorable, the
Supreme Court of the United States, are
admonished to draw near and give their
attention, for the Court is now sitting. God
save the United States and this Honorable
Court!”
The Chief Justice will begin the oral
argument phase by saying, “Petitioner, you
may begin.”
The petitioner’s attorney says, “Mr. Chief
Justice, and may it please the Court…”
Debrief: Discuss both the content of the case
(Constitutional principle and its application) and
the processes employed. Consider thinking
and planning process, civil discourse process,
and the application of these skills outside the
classroom.
Handout G: The Bill of Rights Song
(sung to the tune of “The Twelve Days of Christmas”)
TheВ First AmendmentВ guarantees religion,
speech, and press
Petition and assembly, too.
TheВ Second AmendmentВ guarantees a right to
bear arms,
Religion, speech, and press,
Petition and assembly, too.
TheВ Third AmendmentВ guarantees no
quartering of troops,
A right to bear arms,
Religion, speech and press,
Petition and assembly, too.
TheВ Fourth AmendmentВ guarantees a warrant
for a search,
No quartering troops,
A right to bear arms,
Religion, speech and press,
Petition and assembly, too.
TheВ Fifth AmendmentВ guarantees DUE
PROCESS RIGHTS!
Warrant for a search,
No quartering troops,
A right to bear arms,
Religion, speech and press,
Petition and assembly, too.
TheВ Sixth AmendmentВ guarantees a fair and
speedy trial.
DUE PROCESS RIGHTS!
Warrant for a search,
No quartering troops,
A right to bear arms,
Religion, speech and press,
Petition and assembly, too.
TheВ Seventh AmendmentВ guarantees a jury if
you’re sued.
Fair and speedy trial,
DUE PROCESS RIGHTS!
Warrant for a search,
No quartering troops,
В© The Bill of Rights Institute
A right to bear arms,
Religion, speech and press,
Petition and assembly, too.
TheВ Eighth AmendmentВ guarantees no cruel
punishment.
A jury if you’re sued,
Fair and speedy trial,
DUE PROCESS RIGHTS!
Warrant for a search,
No quartering troops,
A right to bear arms,
Religion, speech and press
Petition and assembly, too.
TheВ Ninth AmendmentВ guarantees our unlisted
rights.
No cruel punishment,
A jury if you’re sued,
Fair and speedy trial,
DUE PROCESS RIGHTS!
Warrant for a search,
No quartering troops,
A right to bear arms,
Religion, speech and press
Petition and assembly, too.
(Slower on this final verse)
TheВ Tenth AmendmentВ guarantees power to the
states.
Our unlisted rights,
No cruel punishment,
A jury if you’re sued,
Fair and speedy trial,
DUE PROCESS RIGHTS!
Warrant for a search,
No quartering troops,
A right to bear arms,
Religion, speech and press
Petition and assembly, too.
Individual Rights Module Answer Keys
Lesson One: The Origins and Effects
of the Bill of Rights Lesson
Handout A: Background Essay – What
Are the Origins of the Bill of Rights?
1. At least three of the following: right of
Protestants to practice their faith; protections
of property; rights of the accused; rights of
criminals.
2. As a result of his violation of the rights of
Englishmen, King Charles I was beheaded
in 1649.
3. Locke argued that government’s main
purpose must be to protect the rights of
individuals because all men are by nature
free and equal.
4. At least three of the following: forced
quartering of troops; weapons were taken
away; restrictions on speech, press, and
assembly.
5. The Articles of Confederation were the first
attempt of the former American colonies to
organize a united government.
Handout C: Foundations of Our Rights
Magna Carta: 1st, 3rd, 4th, 5th, 6th, 8th
Petition of Right: 4th, 5th, 6th, 8th
Massachusetts Body of Liberties: 1st, 5th, 6th, 8th
Declaration of Right and Toleration Acts: 1st, 2nd,
4th, 5th, 6th, 8th
Rights violated in the colonies: All
Two Treatises of Government (1690): Explains
the concept of natural rights and the purposes
of government—primarily to protect rights.
Declaration of Independence (1776): Explains
why people must demand that government
protect rights; announces and justifies formal
В© The Bill of Rights Institute
separation of the colonies from Great Britain.
United States Constitution (1787): Framework
of system for providing a limited central
government that would protect individual rights
as well as preserving the powers of state and
local government.
Handout D: Founding Documents and
Philosophies
1. Both John Locke’s Two Treatises of
Government and the Declaration of
Independence are explanations of why
people should expect government to protect
individual rights.
2. The Founders wrote the Constitution to
provide a stronger central government than
that provided under the Articles.
3. Each document reflected concern about the
biggest abuses of its time period.
4. Answers will vary. Accept well-reasoned
responses.
Handout E: Documents Protecting
Rights
Accept reasoned responses based on the text
of the documents and understanding of how the
documents protect citizens’ rights.
Handout E: Background Essay - Why
a Bill of Rights? What Impact Does it
Have?
1. Federalists believed a bill of rights was
unnecessary because the Constitution itself
limited government’s powers. They believed
it could be dangerous because it would be
impossible to list every right, and they did
not want rights to be ignored or violated just
because they were not specifically listed.
2. Madison changed his mind because he
corresponded with colleagues whose
opinions he valued, and they all supported
the addition of a bill of rights.
3. The Bill of Rights did not strongly affect
most citizens’ lives because it only limited
the actions of the federal government and
did not apply to the states until after the
Fourteenth Amendment was ratified in 1868.
In the 1920s the Supreme Court began to
interpret the Fourteenth Amendment’s Due
Process Clause to protect certain liberties
from action by the states.
Handout G: Federalists and AntiFederalists Venn Diagram
Federalists:
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A bill of rights was not needed because the
Constitution created a government of limited
powers.
Composing a list of rights might endanger
any rights not listed.
A strong central government is needed to
protect rights of minorities.
State constitutions already included
declarations of rights.
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The central government could not be
trusted—it might grow too strong and
suppress freedoms.
Several states (MA, SC, NH, VA, NY, NC)
approved the new Constitution only on the
condition that a list of rights be added.
Popular opinion supported development of a
bill of rights.
В© The Bill of Rights Institute
A strong central government is needed to
protect rights of minorities.
State constitutions already included
declarations of rights.
The central government could not be
trusted—it might grow too strong and
suppress freedoms.
Several states (MA, SC, NH, VA, NY, NC)
approved the new Constitution only on the
condition that a list of rights be added.
Popular opinion supported development of a
bill of rights.
Both Federalists and Anti-Federalists:
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Anti-Federalists:
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Composing a list of rights might endanger
any rights not listed.
Anti-Federalists:
Handout F: Understanding Positions
of Federalists and Anti-Federalists
Federalists:
A bill of rights was not needed because the
Constitution created a government of limited
powers.
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The purpose of government is to protect
unalienable rights (life, liberty, pursuit of
happiness).
Both central authority and some level of
state authority was needed.
A somewhat stronger form of government
than that provided under the Articles of
Confederation was needed.
Certain founding principles were essential:
separation of powers, checks and balances,
federalism, rule of law, due process, limited
government, majority rule/minority rights,
popular sovereignty, and representative
government.
Handout H: Classifying Quotes
1. Federalist – George Washington
2. Federalist – Roger Sherman
3. Anti-Federalist – George Mason
4. Anti-Federalist – George Mason
5. Anti-Federalist – Robert Whitehill
6. Federalist – James Madison
Lesson Two: The United States Bill of
Rights Lesson
Handout B: What Rights Are
Protected by the Bill of Rights?
Rights protected:
1. Amendment I: no established religion; free
exercise of religion; freedom of speech;
freedom of the press; right to assemble
peaceably; right to petition the government
for a redress of grievances
2. Amendment II: right to a militia; right to
keep and bear arms
3. Amendment III: no quartering of soldiers
without consent of owner
4. Amendment IV: no unreasonable searches
or seizures; no searches or seizures without
warrants
5. Amendment V: must have indictment by
grand jury for capital crimes; cannot be tried
for the same offense twice; cannot be forced
to be a witness against yourself; cannot be
deprived of life, limb, or property without due
process; private property cannon be taken
for public use without just compensation
6. Amendment VI: speedy and public trial;
impartial jury in state and district where
crime committed; informed of nature and
cause of accusation; confronted with
witnesses; obtain witnesses in your favor;
have assistance of counsel for defense
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7. Amendment VII: trial by jury preserved in
lawsuits for amounts over $20
8. Amendment VIII: no excessive bail or fines;
no cruel or unusual punishments
9. Amendment IX: these rights cannot deny
or infringe rights to others; listing of some
rights does not imply that these are our only
rights
10.Amendment X: the powers not delegated in
the Constitution are reserved for the states
or to the people
Because:
Accepted reasoned answers
Handout C: You Be the Judge!
1. Just compensation for taken property, Fifth
Amendment
2. Freedom from government-established
religion, First Amendment
3. No cruel and unusual punishment, Eighth
Amendment
4. Free religious exercise, First Amendment
5. Right against self-incrimination, Fifth
Amendment; right of the accused to have
access to counsel, Sixth Amendment
6. Due process, Fifth Amendment; right to a
fair trial by impartial jury, Sixth Amendment;
related issues: freedom of the press, First
Amendment; public trials, Sixth Amendment
7. Freedom from unreasonable searches and
seizures, Fourth Amendment
8. Freedoms of speech and assembly, First
Amendment
Handout D: Outcome Discussion
Cards
Accept reasoned answers.
FOUNDING PRINCIPLES COURSE Equal Protection Module
Equal Protection Under the Law Module
Introduction
The principle of equal justice under law means that every individual is equal to every other person
in regards to natural rights and treatment before the law. There are no individuals or groups who
are born with the right to rule over others.
Lesson One: The Foundations of
American Justice
Overview
The foundations of the principle of equal justice
under the law has roots in documents like the
Magna Carta and the English Bill of Rights
as well as from the writings of philosophers
like John Locke and Baron de Montesquieu.
The Founders used their understandings of
these documents and writers to create the
Declaration of Independence, the Constitution,
and the Bill of Rights. In this lesson, students
will analyze these documents to help them
understand the significance of equal justice.
Montesquieu’s The Defense of the Spirit of
Laws to understand the foundations of equal
justice prior to the American Founding.
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North Carolina Clarifying Objectives
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Recommended Time
130 minutes
Objectives
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Students will:
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Understand and exemplify the definitions of
the terms equal and fair.
Understand the importance of equality
and rights in a representative government
and how equal treatment under the law is
important for a self-governing society.
Analyze documents including the Magna
Carta, the Mayflower Compact, the Petition
of Right, the English Bill of Rights, Locke’s
Second Treatise of Civil Government, and
В© The Bill of Rights Institute
Explain how the foundational documents led
the Founders to protect equal justice in the
American Founding Documents.
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CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
FOUNDING PRINCIPLES COURSE �
Equal Protection Module
AH1.H.1.2: Use Historical Comprehension to:
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
1. Reconstruct the literal meaning of a
historical passage.
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2. Differentiate between historical facts and
historical interpretations.
Lesson Two: Equal Protection and the
Supreme Court
AH1.H.1.3: Use Historical Analysis and
Interpretation to:
Overview
1. Formulate historical questions.
The Equal Protection Clause of the Fourteenth
Amendment states that no state shall “deny
to any person within its jurisdiction the equal
protection of laws. In this lesson, students
will learn how to analyze primary source
documents from Supreme Court cases using a
document based question (DBQ) model. Most
document based questions require students
to write essays to show understanding. This
lesson will walk students through a document
analysis activity for one Supreme Court case
as a class. They will then be asked to write a
document-based question essay individually.
2. Obtain historical data from a variety of
sources.
Recommended Time
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.
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AH1.H.1.4: Use Historical Research to:
3. Support interpretations with historical
evidence.
60 minutes
4. Construct analytical essays using
historical evidence to support
arguments.
Objectives
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
В© The Bill of Rights Institute
Students will:
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Understand the significance of the
Fourteenth Amendment’s Equal Protection
Clause.
Analyze the how the American Founding
Documents protect equal justice and
individual rights.
Analyze primary source documents relating
to landmark Supreme Court cases about the
Equal Protection Clause.
Analyze laws and policies relating to
“separate but equal,” segregation, and
desegregation and explain the history
behind such laws.
FOUNDING PRINCIPLES COURSE �
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Evaluate Supreme Court decisions on equal
protection.
Equal Protection Module
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Evaluate the causes and effects of Supreme
Court decisions.
Apply historical understanding to evaluate
Supreme Court rulings.
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North Carolina Clarifying Objectives
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights – life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
В© The Bill of Rights Institute
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CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.5.2: Analyze state and federal
courts by outlining their jurisdictions and the
adversarial nature of the judicial process
(e.g., Appellate, Exclusive, Concurrent,
Original, types of federal courts, types of
state courts, oral argument, courtroom
rules, Supreme Court, opinions, Court
Docket, Prosecutor/Prosecution, Complaint,
Defendant, Plaintiff, hearing, bail,
indictment, sentencing, appeal, etc.).
AH1.H.1.2/AH2.H.1.2: Use Historical
Comprehension to:
1. Reconstruct the literal meaning of a
historical passage.
2. Differentiate between historical facts and
historical interpretations.
3. Analyze data in historical maps.
4. Analyze visual, literary and musical
sources.
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AH1.H.1.3/AH2.H.1.3: Use Historical
Analysis and Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
FOUNDING PRINCIPLES COURSE Equal Protection Module
since Reconstruction and the compromises
that resulted (e.g., Populism, Progressivism,
working conditions and labor unrest, New
Deal, Wilmington Race Riots, Eugenics,
Civil Rights Movement, Anti-War protests,
Watergate, etc.).
5. Evaluate the influence of the past on
contemporary issues.
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AH1.H.1.4/AH2.H.1.4: Use Historical
Research to:
1. Formulate historical questions.
2. Obtain historical data from a variety of
sources.
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3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.
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AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH2.H.2.2: Evaluate key turning points
since the end of Reconstruction in terms
of their lasting impact (e.g., conflicts,
legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH2.H.4.1: Analyze the political issues and
conflicts that impacted the United States
В© The Bill of Rights Institute
AH2.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems since Reconstruction
(e.g., “separate but equal”, Social
Darwinism, social gospel, civil service
system, suffrage, Harlem Renaissance,
the Warren Court, Great Society programs,
American Indian Movement, etc.).
Assessment
Overview
After completing both lessons, have students
write a document based question essay
analyzing Regents of the University of
California v. Bakke (1978). Students may
use the Documents Summary or Case Briefing
Sheets from Lesson 2, but they should
NOT have the Tips for Thesis Statements
and Essays, the Key Question Scoring
Guidelines for All Essays, or the Rubric for
Evaluating DBQ Essays.
Recommended Time
60 minutes
Assignment
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Students should answer the Key Question
regarding Regents of the University
of California v. Bakke (1978) in a wellorganized essay that incorporates their
interpretations of Documents A-M, as well
FOUNDING PRINCIPLES COURSE �
as their own knowledge of history. They
have 60 minutes to complete the essay.
E. President Lyndon Johnson, Speech at
Howard University, 1965
Key Question: Appraise the claim that
the University of California at Davis
special admissions program resulted in
unconstitutional reverse discrimination.
F. Program Demographics, 1970-1974
Materials
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Equal Protection Module
Regents of the University of California v.
Bakke (1978) Document Based Question
Assessment
Regents of the University of California v.
Bakke (1978) Documents:
A. Section of the Fourteenth Amendment,
1868
B. Executive Order 10925, 1961
C. “Civil Rights Legislation,” 1963
G.Education by Race Statistics, 1940-1980
H. Alan Bakke’s Credentials, 1973-1974
I. UC-Davis’s Reply to Bakke’s Query on
Age, 1972
J. Oral Arguments, 1978
K. Justice Thurgood Marshall’s Memo,
1978
L. Plurality Decision (5-4), Regents of the
University of California v. Bakke, 1978
M.Justice Marshall’s Separate Opinion,
Regents of the University of California v.
Bakke, 1978
D. Title VI of the Civil Rights Act of 1964
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American history meet the
requirements of the founding Principles course.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
Regents of the University of
California v. Bakke (1978)
Document Based Question Assessment
Directions
Read the Case Background and Key
Question. Then analyze Documents A-M.
Finally, answer the Key Question in a wellorganized essay that incorporates your
interpretations of Documents A-M, as well as
your own knowledge of history.
Case Background
The phrase “affirmative action” first appeared
in a 1961 executive order by President John
F. Kennedy, barring federal contractors from
discriminating on the basis of race, creed, color,
or national origin. President Lyndon B. Johnson
echoed this phrasing in his own policies and
speeches. Congress later passed the Civil
Rights Act of 1964, barring discrimination by
any institutions receiving federal money.
The University of California at Davis Medical
School, a public school, was founded in 1966.
The п¬Ѓrst class of п¬Ѓfty students was made up of
forty-seven white students and three of Asian
descent. In order to achieve a more racially
diverse student body, in 1970 the University
took what it described as affirmative action by
creating two separate admissions programs.
The general program required a 2.5 GPA, an
interview, letters of recommendation, and test
scores. The special program, for which only
disadvantaged members of minority groups
were eligible, had no GPA cutoff.
В© The Bill of Rights Institute
By 1973, the class size had doubled to
100, and of those 100 spaces, sixteen
were reserved for minority applicants in the
special program. Applicants to the special
program competed only against each other
for admission, and did not compete against
applicants to the general admissions program.
Allan Bakke, a Caucasian, applied twice to the
medical school, and was rejected both times.
His GPA and test scores, however, were higher
than those of any of the students accepted
into the special program. He sued the school,
charging that the special admissions program
amounted to a quota system that discriminated
against whites.
Key Question
Appraise the claim that the University of
California at Davis special admissions
program resulted in unconstitutional reverse
discrimination.
Documents you will examine:
A. Section of the Fourteenth Amendment,
1868
B. Executive Order 10925, 1961
C. “Civil Rights Legislation,” 1963
D. Title VI of the Civil Rights Act of 1964
E. President Lyndon Johnson, Speech at
Howard University, 1965
F. Program Demographics, 1970-1974
FOUNDING PRINCIPLES COURSE Equal Protection Module
G. Education by Race Statistics, 1940-1980
H. Alan Bakke’s Credentials, 1973-1974
I. UC-Davis’s Reply to Bakke’s Query on Age, 1972
J. Oral Arguments, 1978
K. Justice Thurgood Marshall’s Memo, 1978
L. Plurality Decision (5-4), Regents of the University of California v. Bakke, 1978
M. Justice Marshall’s Separate Opinion, Regents of the University of California v. Bakke, 1978
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT A
Section of the Fourteenth Amendment, 1868
No state shall … deny to any person within its jurisdiction the equal protection of the laws.
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Why was this amendment passed in 1868?
DOCUMENT B
Executive Order 10925, 1961
Establishing The President’s Committee On Equal Employment Opportunity
[Federal government contractors] will not discriminate against any employee or applicant for
employment because of race, creed, color, or national origin. The contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated during employment,
without regard to their race, creed, color, or national origin.
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What does “affirmative action” mean?
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What does “without regard to” mean?
DOCUMENT C
“Civil Rights Legislation,” 1963
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What is the point of view of the cartoonist?
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT D
Title VI of the Civil Rights Act of 1964
No person in the United States shall, on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any program
or activity receiving federal п¬Ѓnancial assistance.
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Does the policy stated in this document differ from that in Document B? If so, how?
DOCUMENT E
President Lyndon Johnson, Speech at Howard University, 1965
You do not wipe away the scars of centuries by saying: “Now, you are free to go where you want,
do as you desire, and choose the leaders you please.” You do not take a man who for years has
been hobbled by chains, liberate him, bring him to the starting line of a race, saying, “You are
free to compete with all the others,” and still justly believe you have been completely fair. …This
is the next and more profound stage of the battle for civil rights. We seek not just freedom but
opportunity—not just legal equity but human ability—not just equality as a right and a theory, but
equality as a fact and as a result. 4 Restate this excerpt from Johnson’s speech in your own words.
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How does this understanding of equality differ from that expressed in Documents B and D?
DOCUMENT F
UC-Davis Medical School Program Demographics, 1970-1974
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Summarize the chart data in one or two sentences.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT G
Education by Race Statistics, 1940-1980
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Summarize the chart data in one or two sentences.
DOCUMENT H
Alan Bakke’s Credentials, 1973-1974
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How did Bakke’s GPA and MCAT scores compare to those of students accepted from
both the regular and special programs?
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT I
UC-Davis’s Reply to Bakke’s Query on Age, 1972
Note: By 1971, Alan Bakke had served four years as a United States Marine, including one tour
in Vietnam. He had also completed a Master’s Degree in mechanical engineering, was a father of
two, and was 32 years old. When he decided to apply to medical school, he wrote to more than ten
medical schools, including UC-Davis, asking about their policy on considering applicants’ ages.
[Dear Mr. Bakke:] When an applicant is over thirty, his age is a serious factor which must be
considered. …The Committee believes that an older applicant must be unusually highly qualified if
he is to be seriously considered.…
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Does this information change your assessment of Bakke’s credentials from Document H?
DOCUMENT J
Oral Arguments, 1978
Colvin [representing Bakke]: Race is an improper classification in this system… we believe it to be
unconstitutional.
Justice Burger: Why? Because it is rigidly limited to sixteen [spots set aside in each class for
minorities]?
Colvin: No, because the concept of race itself as a classification becomes in our history and in our
understanding an unjust and improper basis on which to judge people.
Justice Marshall: Would it be constitutional if it was one [space that was set aside for minority
students]?
Colvin: No. Whether it is one, one hundred, two—
Justice Marshall: You are talking about your client [Bakke’s] rights. Don’t these underprivileged
people have rights?
Colvin: They certainly have the right to compete—
Marshall: To eat cake.
Colvin: They have the right to compete. They have the right to equal competition.
Marshall: So the numbers are just unimportant?
Colvin: The numbers are unimportant. It is the principle of keeping a man out because of his race
that is important.
Marshall: You’re arguing about keeping someone out, and the other side is arguing about getting
somebody in.
Colvin: That’s right.
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Contrast Bakke’s lawyer’s argument with President Johnson’s assertion in Document E.
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT K
Justice Thurgood Marshall’s Memo, 1978
Note: This memo was circulated while the Justices were considering the case.
The decision in this case depends on whether you consider the action of [UCD Medical School] as
admitting certain students or excluding certain other students.
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What two approaches to the Bakke case does Justice Marshall identify?
DOCUMENT L
Plurality Decision (5-4), Regents of the University of California v. Bakke, 1978
The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit. …The
guarantee of equal protection cannot mean one thing when applied to one individual and something
else when applied to a person of another color. If both are not accorded the same protection, then it
is not equal. …Preferring members of any one group for no reason other than race or ethnic origin
is discrimination for its own sake…. Hence, the purpose of helping certain groups whom the faculty
of the Davis Medical School perceived as victims of “societal discrimination” does not justify a
classification that imposes disadvantages upon persons like [Bakke], who bear no responsibility for
whatever harm the beneficiaries of the special admissions program are thought to have suffered….
[A] diverse student body … clearly is a constitutionally permissible goal for an institution of higher
education. …Ethnic diversity, however, is only one element in a range of factors a university
properly may consider in attaining the goal of a heterogeneous student body…. In summary,
it is evident that the Davis special admissions program involves the use of an explicit racial
classification never before countenanced by this Court. It tells applicants who are not Negro, Asian,
or Chicano that they are totally excluded from a specific percentage of the seats in an entering
class. No matter how strong their qualifications, quantitative and extracurricular, including their own
potential for contribution to educational diversity, they are never afforded the chance to compete
with applicants from the preferred groups for the special admissions seats. In enjoining petitioner
[UC-Davis] from ever considering the race of any applicant, however, the courts below failed to
recognize that the State has a substantial interest that legitimately may be served by a properly
devised admissions program involving the competitive consideration of race and ethnic origin. For
this reason, so much of the California court’s judgment as enjoins petitioner from any consideration
of the race of any applicant must be reversed.
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Of the two approaches identified by Marshall in Document K, which does the Court
appear to have adopted?
How does the Court define terms such as “equal” and “protection” in this ruling?
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
DOCUMENT M
Justice Thurgood Marshall’s Separate Opinion, Regents of the University of California v. Bakke, 1978
I agree with the judgment of the Court only insofar as it permits a university to consider the race of
an applicant in making admissions decisions. I do not agree that petitioner’s admissions program
violates the Constitution. For it must be remembered that, during most of the past 200 years, the
Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms
of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy
of discrimination, I cannot believe that this same Constitution stands as a barrier…. The position
of the Negro today in America is the tragic but inevitable consequence of centuries of unequal
treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains
a distant dream for the Negro…. It is because of a legacy of unequal treatment that we now must
permit the institutions of this society to give consideration to race in making decisions about who
will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to
those positions have been shut to Negroes. If we are ever to become a fully integrated society, one
in which the color of a person’s skin will not determine the opportunities available to him or her, we
must be willing to take steps to open those doors….
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In what way does Marshall agree with the majority decision? How does he depart from it?
В© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Equal Protection Module
Equal Protection Under Law: The Foundations of
American Justice Lesson
Overview
The foundations of the principle of equal justice
under the law has roots in documents like the
Magna Carta and the English Bill of Rights
as well as from the writings of philosophers
like John Locke and Baron de Montesquieu.
The Founders used their understandings of
these documents and writers to create the
Declaration of Independence, the Constitution,
and the Bill of Rights. In this lesson, students
will analyze these documents to help them
understand the significance of equal justice.
North Carolina Clarifying Objectives
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Recommended Time
130 minutes
Objectives
Students will:
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Understand and exemplify the definitions of
the terms equal and fair.
Understand the importance of equality
and rights in a representative government
and how equal treatment under the law is
important for a self-governing society.
Analyze documents including the Magna
Carta, the Mayflower Compact, the Petition
of Right, the English Bill of Rights, Locke’s
Second Treatise of Civil Government, and
Montesquieu’s The Defense of the Spirit of
Laws to understand the foundations of equal
justice prior to the American Founding.
Explain how the foundational documents led
the Founders to protect equal justice in the
American Founding Documents.
В© The Bill of Rights Institute
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CE.C&G.1.2: Explain how the
Enlightenment and other contributing
theories impacted the writing of the
Declaration of Independence, the US
Constitution and the Bill of Rights to
help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
AH1.H.1.2: Use Historical
Comprehension to:
1. Reconstruct the literal meaning of a
historical passage.
2. Differentiate between historical facts and
historical interpretations.
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AH1.H.1.3: Use Historical Analysis and
Interpretation to:
1. Identify issues and problems in the past.
FOUNDING PRINCIPLES COURSE 2. Consider multiple perspectives of
various peoples in the past.
2. Obtain historical data from a variety of
sources.
Handout C: Excerpts from the Magna Carta
(1215)
Handout D: Excerpts from the Mayflower
Compact (1620)
Handout E: Excerpts from the Petition of Right
Handout F: Excerpts from the English Bill of
Rights (1689)
Handout G: Comparing the Documents
Handout H: Excerpts from John Locke’s
Second Treatise of Civil Government (1690)
Handout I: Excerpts from Montesquieu’s The
Spirit of the Laws (1748)
Handout J: Comparing Locke and Montesquieu
Handout K: Attitude Inventory Review
3. Support interpretations with historical
evidence.
Lesson Plan
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.
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AH1.H.1.4: Use Historical Research to:
1. Formulate historical questions.
4. Construct analytical essays using
historical evidence to support
arguments.
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Equal Protection Module
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems through Reconstruction
(e.g., natural rights, First Great
Awakening, Declaration of Independence,
transcendentalism, suffrage, abolition, “
slavery as a peculiar institution”, etc.).
Materials
Handout A: “Equal Protection and Affirmative
Action” by Warner Winborne, Ph.D.
Handout B: Attitude Inventory
В© The Bill of Rights Institute
Background/Homework [10 minutes
the day before]
A. Have students read Handout A: “Equal
Protection and Affirmative Action” by
Warner Winborne, Ph.D. and complete
Handout B: Attitude Inventory.
Warm-Up [15 minutes]
A. After reading the essay and completing the
attitude inventory, hold a class discussion.
Ask students what the terms “equal” and
“fair” mean.
a. Write the students’ definitions and
examples on the board.
b. Have a few students look up definitions
of each terms using dictionaries.
c. By the end of the exercise, students
should have an understanding of the
similarities and differences between
equality and fairness.
FOUNDING PRINCIPLES COURSE Activity I [45 minutes]
A. Have students read the excerpts from the
Magna Carta, the Mayflower Compact,
the Petition of Right, and the English
Bill of Rights provided in Handouts CF. They should also use copies of the
Declaration of Independence, Constitution,
and Bill of Rights to complete Handout G:
Comparing the Documents. They can do
this individually or in groups.
a. The students should look for ways in
which the documents promote equal
justice and protect the people.
B. After students have completed the reading
and Handout G, conduct a class discussion
on the ways in which the documents they
read are similar to or different from each
other.
a. Ask the class to think about what
ideas or principles from Handouts C-F
were used in the American Founding
Documents.
Activity II [45 minutes]
A. Have students read the Handout H:
Excerpts from John Locke’s Second
Treatise of Civil Government (1690) and
Handout I: Excerpts from Montesquieu’s
The Spirit of the Laws (1748) Students
should concentrate on the ways in which
both authors think about liberty, justice, and
rights and record their findings on Handout
J: Comparing Locke and Montesquieu.
В© The Bill of Rights Institute
Equal Protection Module
a. After students have read the excerpts
and completed Handout J, have them
discuss this question with a partner:
i. Many of the Founders read the
writings of Locke and Montesquieu.
How did the Founders incorporate
Locke and Montesquieu’s ideas into
the Founding Documents?
Wrap-Up [15 minutes]
A. Have students complete Handout K:
Attitude Inventory Review. With a partner,
in groups, or as a class, discuss how their
opinions have changed since the beginning
of the lesson.
Homework/Extensions
A. Have students write a response to these
questions in their journals:
a. In what ways did the Founders include
the protections of equal justice in the
Magna Carta, the Mayflower Compact,
the Petition of Right, the English Bill
of Rights, Locke’s Second Treatise,
and Montesquieu’s Spirit of Laws
when creating the American Founding
Documents?
b. Why did the Founders believe that equal
justice needed to be protected?
c. Does equal justice still need to be
protected today? Explain your answer.
FOUNDING PRINCIPLES COURSE Equal Protection Module
B. Rubric:
Category
1
2
3
4
Protections of
equal justice
in historical
documents used
in Founding
Documents
Student did not
explain how
the documents
influenced
the Founding
Documents.
Student explained
how two or three
of the documents
influenced
the Founding
Documents.
Student explained
how four or five
of the documents
influenced
the Founding
Documents.
Student explained
how each of the
six documents
influenced
the Founding
Documents.
Protection of
equal justice
Student did not
explain why
the Founders
believed equal
justice should be
protected.
Student explained
one reason
the Founders
believed equal
justice should be
protected.
Student explained
two reasons
the Founders
believed equal
justice should be
protected.
Student explained
three or more
reasons the
Founders
believed equal
justice should be
protected.
Does equal
justice still need
to be protected?
Student did
not answer the
question or explain
why the equal
justice should
or should not be
protected.
Student answered
the question, but
did not explain why
the equal justice
should or should
not be protected.
Student answered
the question and
explained why
the equal justice
should or should
not be protected.
Student answered
the question and
explained why
the equal justice
should or should
not be protected
with specific
examples.
В© The Bill of Rights Institute
Handout A: “Equal Protection and Affirmative
Action” by Warner Winborne, Ph.D.
That “all men are created equal” was a truth
so obvious, it needed no defense, according
to the Declaration of Independence. Indeed,
equality itself appeared to need no defense, as
the Declaration next claimed that the function
of government was not to guarantee natural
equality, but to protect natural rights, and in
particular, the right to liberty. Thus, the purpose
of government was the prevention of tyranny,
and not the promotion of equality.
That focus shifted following the Civil War. The
Reconstruction Congress found the oppression
of an entire race abhorrent and drafted the
13th, 14th, and 15th amendments to correct
the situation. These amendments, which
Southern states were required to ratify before
readmission to the Union, were intended to
end this unequal treatment by correcting those
portions of the Constitution which could be
used to support slavery or discrimination. And
two Supreme Court Cases in particular, Prigg
v. Pennsylvania (1842) and Barron v. Baltimore
(1833) appear to have been especially
targeted. Prigginvolved the Fugitive Slave Act
and Article IV, Section 2 of the Constitution.
Edward Prigg, who captured and returned a
fugitive slave to her owner, was arrested and
charged with kidnapping. The Court ruled that
Article IV, Section 2, the “service or labour”
clause, required states to assist in returning
fugitive slaves to their owners. But several of
the Justices went further, reading in the clause
a positive affirmation of the property right of the
slave-owner to the slave.
В© The Bill of Rights Institute
According to the Declaration of
Independence, the function of government
was not to guarantee natural equality, but
to protect natural rights. That focus shifted
following the Civil War.
Of similar trouble to the Reconstruction
Congress was Barron v. Baltimore, which
involved not issues of equality, but property (as
arguably did Prigg). In Barron, Mr. Barron lost
his property and his livelihood because of the
actions of the City of Baltimore. He claimed
that this constituted a “taking” in violation of his
rights guaranteed in the 5th Amendment. The
Court agreed that Baltimore’s act amounted
to a “taking” but argued that the guarantees
contained in the Bill of Rights applied only to
national action, not action by the states.
These two cases find their ultimate expression
in Dred Scott (1856), the case that affirmed
the property rights of slave owners, denied the
claims to citizenship and equality of the Negro
race, and voided the Missouri Compromise.
Although it is grounded in some measure by a
most curious understanding of race relations
at the Founding, following on the heels of
Prigg and Barron, and to some degree bound
by stare decisis, the Court defends slavery
and denies that the civil liberties enshrined
in the Bill of Rights extend to the citizens of
the states. That is, following Prigg, slaves are
property, not persons, and following Barron,
the states are free to deny constitutionallyguaranteed civil rights and civil liberties.
It is this which the Civil War Amendments
in general and the 14th Amendment in
particular, attempted to change. The result
is the requirement that the states extend to
all citizens of the United States, the “equal
protection of the laws.”
later, the Court ruled that the Equal Protection
Clause applied with equal force to Asians (Yick
Wo v. Hopkins, 1886). And in 1927, the Court
defended the rights of minorities to participate
in political primaries (Nixon v. Herndon, 1927).
But this is perhaps easier said than done.
The Founders either took human equality for
granted, or believed that government need
not enforce equality. But with the adoption
of the 14th Amendment which requires the
equal protection of the laws, it was the task of
government, especially the Court, to determine
just what “equal protection of the laws”
required. Unsurprisingly, the Court interpreted
the Equal Protection Clause as a group of
lawyers might; what was protected, they said,
was legal and political equality, not social or
economic equality.
But it was not until 1954 that the Equal
Protection Clause was extended beyond
the legal and political realms to social and
economic activity. In Brown v. Board of
Education, the Court found persuasive the
claim raised in Plessy that segregation
necessarily stigmatized the excluded race,
and that therefore, separate conditions could
never be equal. A unanimous Court ordered
the end of de jure segregation in education,
finding, “We conclude that in the field of public
education the doctrine of �separate but equal’
has no place. Separate educational facilities
are inherently unequal. Therefore, we hold
that the plaintiffs and others similarly situated
for whom the actions have been brought are,
by reason of the segregation complained of,
deprived of the equal protection of the laws
guaranteed by the Fourteenth Amendment.”
In Plessy v. Ferguson (1896), the Court
determined that separate accommodations for
the races are constitutionally permissible. The
Equal Protection Clause does not require the
intermingling of the races, merely their equal
treatment under the law. Indeed, the Court
suggested that legislation requiring integration
was likely to fail, and that racism could only be
eradicated by the slow and informal process of
voluntary social interaction. The Court found
the claim that segregation imposes a stigma
on the excluded race without merit, as such a
stigma is the result of that race’s assumptions
regarding the purpose of the segregation.
Although the Court defended the notion
of “separate but equal” regarding social or
economic conditions, it protected the legal and
political equality of the races. In 1880, the Court
defended the rights of blacks to serve on juries
(Strauder v. West Virginia, 1880). Six years
В© The Bill of Rights Institute
In its interpretation of the Equal Protection
Clause, the Court developed a doctrine of
“suspect classifications” which, if involved
in the policy at issue, would trigger “strict
scrutiny.” In University of California Regents
v. Bakke, Justice Powell, writing for a divided
Court, employed the doctrine of suspect
classifications to find a policy setting aside
seats for minority students violated the Equal
Protection Clause. He noted that suspect
classifications had not been reserved only
for those in minority positions. “Nor has this
Court held that discreteness and insularity
constitute necessary preconditions to a holding
that a particular classification is invidious.
…These characteristics may be relevant in
deciding whether or not to add new types
of classifications to the list of “suspect”
categories or whether a particular classification
survives close examination. Racial and ethnic
classifications, however, are subject to stringent
examination without regard to these additional
characteristics.” Thus, the Equal Protection
Clause protects against reverse discrimination
as well as discrimination against minorities.
Nevertheless, Justice Powell also concluded
that although racial quotas could not be
established, race could be considered as a
factor in admissions since a diverse student
body was a compelling interest.
The Equal Protection Clause protects
against reverse discrimination as well as
discrimination against minorities.
В© The Bill of Rights Institute
The Court’s reasoning in Bakke was recently
confirmed in Gratzv. Bollinger and Grutterv.
Bollinger, two cases testing admissions policies
at the University of Michigan and the University
of Michigan Law School respectively. In both
cases, the admission of traditionally underrepresented minorities constituted a compelling
state interest, but the law school considered
the applicants as individuals, thus meeting the
requirement that the procedure be “narrowly
tailored.” On the other hand, the University
of Michigan treated all minorities equally,
automatically awarding them twenty percent of
the score needed for admission, and was thus
not sufficiently narrowly-tailored to survive strict
scrutiny.
Dr. Warner Winborne is Assistant Professor of
Political Science at Hampden-Sydney
College in Virginia.
Handout B: Attitude Inventory
Directions: Rate your agreement with each statement.
1. I understand the principle of “equal justice/protection under the law.”
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
2. When judging how well a country exemplifies the principle of equality under law, it should be
judged against an ideal.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
3. When judging how well a country exemplifies the principle of equality under law, it should be
judged against how well other countries do so.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
4. Since all people are created equal, all people should have equal outcomes.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
5. “Equal protection of the law” means treating everyone the same.
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
6. “Equal protection of the law” means treating everyone differently based on their unique
circumstances.
1 2
3
4
5
6
Completely Disagree 7
В© The Bill of Rights Institute
8
9
10
Completely Agree
Handout C:
Excerpts from the Magna Carta (1215)
1. … the English Church shall be free, and shall have her rights entire, and her liberties inviolate…
13. [T]he city of London shall have all its ancient liberties and free customs… further more…all
other cities, boroughs, towns, and ports shall have all their liberties and free customs…
20. A freeman shall not be amerced for a slight offense, except in accordance with the degree
of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the
offense…
28. No constable or other bailiff of ours shall take corn or other provisions from anyone without
immediately tendering money therefore, unless he can have postponement thereof by permission
of the seller…
39. No freemen shall be taken or imprisoned or diseased or exiled or in any way destroyed…
except by the lawful judgment of his peers or by the law of the land…
40. To no one will we sell, to no one will we refuse or delay, right or justice…
42. It shall be lawful in future for anyone (excepting always those imprisoned or outlawed in
accordance with the law of the kingdom…) to leave our kingdom and to return…
В© The Bill of Rights Institute
Handout D: The Mayflower Compact (1620)
In the name of God, Amen. We, whose
names are underwritten, the loyal subjects of
our dread Sovereigne Lord, King James, by
the grace of God, of Great Britaine, France
and Ireland king, defender of the faith, etc.
having undertaken, for the glory of God, and
advancement of the Christian faith, and honour
of our king and country, a voyage to plant the
first colony in the Northerne parts of Virginia,
doe by these presents solemnly and mutually
in the presence of God and one of another,
covenant and combine ourselves together
into a civil body politick, for our better ordering
and preservation, and furtherance of the ends
aforesaid; and by virtue hereof to enacte,
constitute, and frame such just and equall laws,
ordinances, acts, constitutions and offices,
from time to time, as shall be thought most
meet and convenient for the generall good
of the Colonie unto which we promise all due
submission and obedience. In witness whereof
we have hereunder subscribed our names at
Cape-Codd the 11. of November, in the year of
the raigne of our sovereigne lord, King James,
of England, France and Ireland, the eighteenth,
and of Scotland the fiftie-fourth. Anno Dom.
1620.
John Carver
Edward Tilley
Degory Priest
William Bradford
John Tilley
Thomas Williams
Edward Winslow
Francis Cooke
Gilbert Winslow
William Brewster
Thomas Rogers
Edmund Margeson
Issac Allerton
Thomas Tinker
Peter Browne
Myles Standish
John Rigdale
Richard Britteridge
John Alden
Edward Fuller
George Soule
Samuel Fuller
John Turner
Richard Clarke
Christopher Martin
Francis Eaton
Richard Gardiner
William Mullins
James Chilton
John Allerton
William White
John Crackston
Thomas English
Richard Warren
John Billington
Edward Dotey
John Howland
Moses Fletcher
Edward Leister
Stephen Hopkins
John Goodman
В В© The Bill of Rights Institute
Handout E: Excerpts from The Petition of Right
(1628)
III.В В В В В And where also by the Statute called The
Great Charter of the Liberties of England, it is
declared and enacted, That no Freeman may
be taken or imprisoned, or be disseised of his
Freehold or Liberties, or his Free Customs,
or be outlawed or exiled, or in any manner
destroyed, but by the lawful Judgment of his
Peers, or by the Law of the Land.
IV.В В В В And in the Eight and twentieth Year of the
Reign of King Edward the Third, it was declared
and enacted by Authority of Parliament, That
no Man of what Estate or Condition that he be,
should be put out of his Land or Tenements,
nor taken, nor imprisoned, nor disherited, nor
put to Death, without being brought to answer
by due Process of Law.
VI.В В В В В And whereas of late great Companies of
Soldiers and Mariners have been dispersed
into divers Counties of the Realm, and the
Inhabitants against their Wills have been
compelled to receive them into their Houses,
and there to suffer them to sojourn, against the
Laws and Customs of this Realm, and to the
great Grievance and Vexation of the People.
IX.В В В В В And also sundry grievous Offenders, by
colour thereof claiming an Exemption, have
escaped the Punishments due to them by
В© The Bill of Rights Institute
the Laws and Statutes of this Your Realm,
by reason that divers of your Officers and
Ministers of Justice have unjustly refused or
for born to proceed against such Offenders
according to the same Laws and Statutes,
upon Pretence that the said Offenders were
punishable only by Martial Law, and by
Authority of such Commissions as aforesaid:
Which Commissions, and all other of like
Nature, are wholly and directly contrary to the
said Laws and Statutes of this Your Realm:
XI.В В В В В All which they most humbly pray of Your
most excellent Majesty as their Rights and
Liberties according to the Laws and Statutes
of this Realm; and that Your Majesty would
also vouchsafe to declare, that the Awards,
Doings and Proceedings, to the Prejudice
of Your People in any of the Premises shall
not be drawn hereafter into Consequence or
Example; and that Your Majesty would be also
graciously pleased, for the further Comfort and
Safety of Your People, to declare Your Royal
Will and Pleasure, that in the Things aforesaid
all your Officers and Ministers shall serve You
according to the Laws and Statutes of this
Realm, as they tender the Honour of Your
Majesty, and the Prosperity of this Kingdom.
Handout F: Excerpts from the English Bill of
Rights (1689)
The pretended power of suspending the laws or the execution of laws by regal authority without
consent of Parliament is illegal;
It is the right of the subjects to petition the king, and all commitments and prosecutions for such
petitioning are illegal;
The raising or keeping a standing army within the kingdom in time of peace, unless it be with
consent of Parliament, is against law;
The subjects which are Protestants may have arms for their defense suitable to their conditions
and as allowed by law;
Election of members of Parliament ought to be free;
Freedom of speech and debates or proceedings in Parliament ought not to be impeached or
questioned in any court or place out of Parliament;
Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted;
Jurors ought to be duly impaneled and returned…
And that for redress of all grievances, and for the amending, strengthening and preserving of the
laws, Parliaments ought to be held frequently….
В© The Bill of Rights Institute
Handout G: Comparing the Documents
Document Name
Magna Carta (1215)
The Mayflower
Compact (1620)
The Petition of Right
(1628)
The English Bill of
Rights (1689)
Declaration of
Independence (1776)
Articles of
Confederation (1781)
United States
Constitution (1788)
United States Bill of
Rights (1791)
В© The Bill of Rights Institute
Summarize
How
does this
document
promote
justice?
How is this
document
similar to
the other
documents?
How is this
document
different
from the
other
documents?
Handout H: Excerpts from John Locke’s Second
Treatise of Civil Government (1690)
The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves
under government, is the preservation of their property.
First, There wants an established, settled, known law, received and allowed by common consent to
be the standard of right and wrong, and the common measure to decide all controversies between
them: for though the law of nature be plain and intelligible to all rational creatures…
Secondly, In the state of nature there wants a known and indifferent judge, with authority to
determine all differences according to the established law…
Thirdly, In the state of nature there often wants power to back and support the sentence when right,
and to give it due execution…
But though men, when they enter into society, give up the equality, liberty, and executive power
they had in the state of nature, into the hands of the society… to preserve [themselves, their] liberty
and property…
The power of the society, or legislative constituted by them, can never be supposed to extend
farther, than the common good; but is obliged to secure everyone’s property …. And all this to be
directed to no other end, but the peace, safety, and public good of the people.
В© The Bill of Rights Institute
Handout I: Excerpts from Montesquieu’s The
Spirit of the Laws (1748)
In every government there are three sorts of power; the legislative; the executive… [and] the
latter we shall call the judiciary power…
There would be an end of every thing were the same man, or the same body…to exercise those
three powers that of enacting laws, that of executing the public resolutions, and that of judging
crimes….
The executive power ought to be in the hands of a monarch; because this branch of government,
which has always need of expedition, is better administered by one than by many: Whereas,
whatever depends on the legislative power, is oftentimes better regulated by many than by a
single person.
When once an army is established, it ought not to depend immediately on the legislative, but on the
executive power, and this from the very nature of the thing; its business consisting more in action
than in deliberation.
From a manner of thinking that prevails amongst mankind, [armies] set a higher value upon
courage than timorousness, on activity than prudence, on strength than counsel. Hence, the
army will ever despise a senate, and respect their own officers…
В© The Bill of Rights Institute
Handout J: Compare and Contrast Locke and
Montesquieu
Directions: After reading the excerpts from Locke and Montesquieu, complete the table below.
Think about the ways in which each author hopes to promote and protect liberty, justice, and rights.
Locke
Montesquieu
Liberty
Justice
Rights
How are Locke’s and Montesquieu’s understandings of liberty, justice, and rights similar?
How are they different?
В© The Bill of Rights Institute
Handout K: Attitude Inventory Review
Directions: Rate your agreement with each statement. How have your opinions changed since the
beginning of the lesson?
1. I understand the principle of “equal justice/protection under the law.”
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
2. When judging how well a country exemplifies the principle of equality under law, it should be
judged against an ideal.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
3. When judging how well a country exemplifies the principle of equality under law, it should be
judged against how well other countries do so.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
4. Since all people are created equal, all people should have equal outcomes.
1 2
3
4
5
6
7
8
9
10
Completely Disagree Completely Agree
5. “Equal protection of the law” means treating everyone the same.
1 2
3
4
5
6
7
Completely Disagree 8
9
10
Completely Agree
6. “Equal protection of the law” means treating everyone differently based on their unique
circumstances.
1 2
3
4
5
6
Completely Disagree 7
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8
9
10
Completely Agree
FOUNDING PRINCIPLES COURSE Equal Protection Module
Equal Protection Under the Law Module: Equal
Protection and the Supreme Court Lesson
Overview
The Equal Protection Clause of the Fourteenth
Amendment states that no state shall “deny
to any person within its jurisdiction the equal
protection of laws.” In this lesson, students
will learn how to analyze primary source
documents from Supreme Court cases using a
document based question (DBQ) model. Most
document based questions require students
to write essays to show understanding. This
lesson will walk students through a document
analysis activity for one Supreme Court case
as a class. They will then be asked to write a
document-based question essay individually.
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60 minutes
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Students will:
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Understand the significance of the
Fourteenth Amendment’s Equal Protection
Clause.
Analyze the how the American Founding
Documents protect equal justice and
individual rights.
Analyze primary source documents relating
to landmark Supreme Court cases about the
Equal Protection Clause.
Analyze laws and policies relating to
“separate but equal,” segregation, and
desegregation and explain the history
behind such laws.
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Evaluate the causes and effects of Supreme
Court decisions.
Apply historical understanding to evaluate
Supreme Court rulings.
North Carolina Clarifying Objectives
Recommended Time
Objectives
Evaluate Supreme Court decisions on equal
protection.
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CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans
with Disabilities Act, equal opportunity
legislation).
FOUNDING PRINCIPLES COURSE �
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CE.C&G.3.3: Analyze laws and policies in
terms of their intended purposes, who has
authority to create them and how they are
enforced (e.g., laws, policies, public policy,
regulatory, symbolic, procedural, etc.).
CE.C&G.3.4: Explain how individual rights
are protected by varieties of law (e.g.,
Bill of Rights, Supreme Court Decisions,
constitutional law, criminal law, civil law,
Tort, Administrative law, Statutory law and
International law, etc.).
various peoples in the past.
3. Analyze cause-and-effect relationships
and multiple causation.
4. Evaluate competing historical narratives
and debates among historians.
5. Evaluate the influence of the past on
contemporary issues.
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CE.C&G.5.2: Analyze state and federal
courts by outlining their jurisdictions and the
adversarial nature of the judicial process
(e.g., Appellate, Exclusive, Concurrent,
Original, types of federal courts, types of
state courts, oral argument, courtroom
rules, Supreme Court, opinions, Court
Docket, Prosecutor/Prosecution, Complaint,
Defendant, Plaintiff, hearing, bail, indictment,
sentencing, appeal, etc.).
2. Obtain historical data from a variety of
sources.
3. Support interpretations with historical
evidence.
4. Construct analytical essays using
historical evidence to support
arguments.
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AH1.H.1.2/AH2.H.1.2: Use Historical
Comprehension to:
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Reconstruct the literal meaning of a
historical passage.
Differentiate between historical facts and
historical interpretations.
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Analyze data in historical maps.
Analyze visual, literary and musical
sources.
AH1.H.1.3/AH2.H.1.3: Use Historical
Analysis and Interpretation to:
1. Identify issues and problems in the past.
2. Consider multiple perspectives of
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AH1.H.1.4/AH2.H.1.4: Use Historical
Research to:
1. Formulate historical questions.
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
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Equal Protection Module
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AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.2.2: Evaluate key turning points
from colonization through Reconstruction
in terms of their lasting impact (e.g.,
conflicts, legislation, elections, innovations,
leadership, movements, Supreme Court
decisions, etc.).
AH2.H.2.1: Analyze key political, economic,
and social turning points since the end
of Reconstruction in terms of causes and
effects (e.g., conflicts, legislation, elections,
innovations, leadership, movements,
Supreme Court decisions, etc.).
AH2.H.2.2: Evaluate key turning points
since the end of Reconstruction in terms
of their lasting impact (e.g., conflicts,
FOUNDING PRINCIPLES COURSE legislation, elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
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AH2.H.4.1: Analyze the political issues and
conflicts that impacted the United States
since Reconstruction and the compromises
that resulted (e.g., Populism, Progressivism,
working conditions and labor unrest, New
Deal, Wilmington Race Riots, Eugenics,
Civil Rights Movement, Anti-War protests,
Watergate, etc.).
AH2.H.5.1: Summarize how the
philosophical, ideological and/or religious
views on freedom and equality contributed
to the development of American political and
economic systems since Reconstruction
(e.g., “separate but equal”, Social Darwinism,
social gospel, civil service system, suffrage,
Harlem Renaissance, the Warren Court,
Great Society programs, American Indian
Movement, etc.).
Materials
Plessy v. Ferguson (1896) Case Background
and Key Question
Documents Summary
Plessy v. Ferguson (1896) Documents A-M
Case Briefing Sheet
Tips for Thesis Statements and Essays
Brown v. Board of Education (1954) Case
Background and Key Question
Brown v. Board of Education (1954) Documents
A-K
Key Question Scoring Guidelines for All Essays
Rubric for Evaluating DBQ Essays (for teacher)
Lesson Plan
Background [15 minutes]
A. Distribute Plessy v. Ferguson (1896)
Case Backgroundand Key Question to
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Equal Protection Module
each student. Explain that they will be
participating in a document based question
(DBQ) lesson where they will analyze
sources relating to the topic to answer the
key question. Also tell them that students
would usually write an essay to answer the
key question in DBQs, but that today you
will start by learning how to analyze the
documents as a class.
Activity [45 minutes]
A. Divide students into thirteen groups.
Each group should be given one of the
documents from the Plessy v. Ferguson
(1896) document based question resources
(Documents A-M).
a. Have students look at or read the
documents they are assigned and
answer the scaffolding questions.
b. After the groups are finished, go over
each document as a class. Students
should complete Documents Summary
about each of the documents.
c. When all of the documents have been
discussed, ask students to think about
the case and answer these questions:
i. What is the constitutional question in
this case?
ii. What are the strongest arguments on
each side of the case?
iii. How did the Court rule?
iv. Do you agree or disagree with this
ruling based on your understanding
of the Constitution? Explain your
answer.
FOUNDING PRINCIPLES COURSE Homework
A. Now that students understand how to
analyze documents, have them write
an essay using the Brown v. Board of
Education (1954) Case Background
and Key Question and Brown v. Board
of Education (1954) Documents A-K.
In order to develop their argument, they
may also use the Documents Summary,
the Case Briefing Sheet, and the Key
Question Scoring Guidelines for All
Essays.
a. Remind students to answer the key
question in their essay using evidence
from the documents and by thinking
through these questions:
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Equal Protection Module
i. What is the constitutional question in
this case?
ii. What are the strongest arguments
on each side of the case?
iii. How did the Court rule?
iv. Do you agree or disagree with this
ruling based on your understanding
of the Constitution? Explain your
answer.
B. Teachers may use the Rubric for
Evaluating DBQ Essays when grading
these essays.
Handout A: Plessy v. Ferguson (1896) Case
Background and Key Question
Case Background
Although the Declaration of Independence
affirmed that “all men are created equal” and
had inalienable rights including liberty, African
Americans were systematically denied their
liberty with the institution of slavery. Even after
the Civil War and the passage of the Thirteenth,
Fourteenth, and Fifteenth Amendments,
segregation was a fact of life in the United
States. Throughout the country, the races
remained separated by both custom and law.
With the end of Reconstruction, every southern
state, as well as some northern ones, passed
what came to be termed Jim Crow laws. These
policies required segregation in public places.
African Americans were denied equal access
to public facilities like transportation, education,
and the voting booth. In 1878, the Supreme
Court held that states could not require
integration on interstate common carriers. In
1890, the Court held that Mississippi could
require segregation on modes of interstate
transportation.
Five years later, Homer Plessy, a resident of
Louisiana, decided to challenge a Louisiana law
requiring segregation on railcars by purchasing
a train ticket and sitting in a “whites only” car.
Because Plessy was an “octoroon” (1/8th
black), he was subject to the black codes of
Louisiana. When he was questioned as to his
status, he admitted to being an octoroon, and
was arrested when he refused to leave the car.
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He appealed his case to the Supreme Court
of Louisiana and eventually the United States
Supreme Court, claiming that the Louisiana law
violated the Fourteenth Amendment.
Key Question: Evaluate the degree to which
each of the following informed the ruling in
Plessy v. Ferguson: custom, precedent, and
understanding of federalism.
Documents you will examine:
A. The Declaration of Independence, 1776
B. Thomas Jefferson, Notes on the State of
Virginia, 1787
C. The Constitution of the United States, 1789
D. The Tenth Amendment, 1791
E. Thomas Jefferson to Henri Gregoire, 1809
F. Argument of John Quincy Adams, Amistad
Case, 1841
G. “The American Declaration of
Independence Illustrated,” 1861
H. Section of The Fourteenth Amendment,
1868
I. Civil Rights Cases, 1883
J. Final Judgment, Plessy v. Ferguson, 1896
K. Majority Opinion (6-1), Plessy v. Ferguson,
1896
L. Dissenting Opinion, Plessy v. Ferguson,
1896
M. “At the Bus Station,” 1940
Handout B: Documents Summary
Document Name
and Date
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Author
Answers to Scaffolding
Questions
What is the main idea of this
document? How might each
side use this document to
answer the key question?
DOCUMENT A
The Declaration of Independence, 1776
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….
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In what manner does the Declaration of Independence understand all people to be equal?
DOCUMENT B
Thomas Jefferson, “Notes on the State of Virginia”, 1787
Comparing [Negros] by their faculties of memory, reason, and imagination, it appears to me, that
in memory they are equal to the whites; in reason much inferior, as I think one could scarcely be
found capable of tracing and comprehending the investigations of Euclid; and that in imagination
they are dull, tasteless, and anomalous…. This unfortunate difference of colour, and perhaps of
faculty, is a powerful obstacle to the emancipation of these people.
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Contrast Jefferson’s views on racial equality with the assertion of the Declaration of
Independence (Document A).
DOCUMENT C
The Constitution of the United States, 1789
Article I, Section 2, Paragraph 3: Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, according to their respective Numbers,
which shall be determined by adding to the whole Number of free Persons, including those bound
to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
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Who are the “all other Persons” referred to in this document?
How were these “all other persons” counted for the purpose of apportioning a state’s
representatives and direct taxes?
DOCUMENT D
The Tenth Amendment, 1791
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people.
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What does the Tenth Amendment protect?
В© The Bill of Rights Institute
DOCUMENT E
Thomas Jefferson to Henri Gregoire, 1809
Be assured that no person living wishes more sincerely than I do, to see a complete refutation
of the doubts I have myself entertained and expressed on the grade of understanding allotted to
them [Negroes] by nature, and to find that in this respect they are on a par with ourselves. My
doubts were the result of personal observation on the limited sphere of my own State, where the
opportunities for the development of their genius were not favorable, and those of exercising it still
less so. I expressed them therefore with great hesitation; but whatever be their degree of talent it
is no measure of their rights. Because Sir Isaac Newton was superior to others in understanding,
he was not therefore lord of the person or property of others. On this subject they are gaining daily
in the opinions of nations, and hopeful advances are making towards their re-establishment on an
equal footing with the other colors of the human family.
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How does Jefferson clarify his beliefs on the racial inferiority of blacks (Document B)?
DOCUMENT F
Argument of John Quincy Adams, Amistad Case, 1841
Note: In 1839, Africans aboard the schooner Amistad revolted and demanded to be returned home.
The captain instead brought them to New York, and the captives were to be sold as slaves. A legal
battle followed over the question of the status of the captive Africans.
The Constitution of the United States recognizes the slaves, held within some of the States of the
Union, only in their capacity of persons. …The Constitution nowhere recognizes them as property.
The words slave and slavery are studiously excluded from the Constitution. Circumlocutions are
the fig-leaves under which these parts of the body politic are decently concealed. Slaves, therefore,
in the Constitution of the United States are recognized only as persons, enjoying rights and held to
the performance of duties. That Declaration [of Independence] says that every man is “endowed by
his Creator with certain inalienable rights,” and that “among these are life, liberty, and the pursuit
of happiness.” …The moment you come, to the Declaration of Independence, that every man has
a right to life and liberty, an inalienable right, this case is decided. I ask nothing more in behalf of
these unfortunate men, than this Declaration.
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What does Adams argue about the Constitution’s recognition of slaves?
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Why does Adams reference the Declaration of Independence?
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DOCUMENT G
“The American Declaration of Independence Illustrated,” 1861
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What does the artist believe is the promise of the Declaration of Independence?
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DOCUMENT H
Section of the Fourteenth Amendment, 1868
Section 1. 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….
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of
this article.
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What does the Fourteenth Amendment guarantee to residents of every state?
Does Section 5 of this document change the meaning of the Tenth Amendment
(Document D)?
DOCUMENT I
Civil Rights Cases, 1883
[Federal civil rights] legislation cannot properly cover the whole domain of rights appertaining to
life, liberty, and property, defining them and providing for their vindication. That would … make
congress take the place of the state legislatures and to supersede them. It is absurd to affirm that,
because the rights of life, liberty, and property … are by the [Fourteenth] Amendment sought to
be protected against invasion on the part of the state without due process of law, Congress may,
therefore, provide due process of law for their vindication in every case; and that, because the
denial by a state to any persons of the equal protection of the laws is prohibited by the amendment,
therefore congress may establish laws for their equal protection.
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Which level of government does this opinion imply has the power to correct state
violations of rights to life, liberty and property?
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DOCUMENT J
Final Judgment, Plessy v. Ferguson, 1896
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Did the United States Supreme Court affirm or overturn the decision of the Louisiana
court?
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DOCUMENT K
Majority Opinion (6-1), Plessy v. Ferguson, 1896
The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality
of the two races before the law, but, in the nature of things, it could not have been intended to
abolish distinctions based upon color, or to enforce social, as distinguished from political, equality,
or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and
even requiring, their separation, in places where they are liable to be brought into contact, do not
necessarily imply the inferiority of either race to the other, and have been generally, if not universally,
recognized as within the competency of the state legislatures in the exercise of their police power.…
We consider the underlying fallacy of [Plessy’s] argument to consist in the assumption that the
enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so,
it is not by reason of anything found in the act, but solely because the colored race chooses to put
that construction upon it.… The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the negro except by an enforced commingling
of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social
equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a
voluntary consent of individuals.… Legislation is powerless to eradicate racial instincts, or to abolish
distinctions based upon physical differences, and the attempt to do so can only result in accentuating
the difficulties of the present situation. If the civil and political rights of both races be equal, one
cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the
constitution of the United States cannot put them upon the same plane.
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What kinds of laws does the Court say that state legislatures have the rightful power to
pass?
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What does the Court say is the basic flaw in Plessy’s argument?
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What does the Court argue about laws that try to abolish racial prejudices?
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Why is this decision said to have affirmed the doctrine of “separate but equal”?
В© The Bill of Rights Institute
DOCUMENT L
Dissenting Opinion, Plessy v. Ferguson, 1896
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in
achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all
time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.
But in view of the constitution, in the eye of the law, there is in this country no superior, dominant,
ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows
nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
The humblest is the peer of the most powerful…. Sixty millions of whites are in no danger from
the presence here of eight millions of blacks. The destinies of the two races, in this country, are
indissolubly linked together, and the interests of both require that the common government of all
shall not permit the seeds of race hate to be planted under the sanction of law. What can more
certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between
these races, than state enactments which, in fact, proceed on the ground that colored citizens are
so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white
citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.
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What does the dissenting opinion mean by “Our constitution is colorblind”?
What does the dissenting opinion claim is the “real meaning” of the Louisiana
segregation law?
В© The Bill of Rights Institute
DOCUMENT M
“At the Bus Station,” 1940
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How does this photograph from 1940 reveal the legacy of the Plessy decision?
В© The Bill of Rights Institute
Brown v. Board of Education (1954) Document
Based Question
Directions
Read the Case Background and Key Question.
Then analyze Documents A-K. Finally, answer
the Key Question in a well-organized essay that
incorporates your interpretations of Documents
A-K, as well as your own knowledge of history.
had on black school children. One case was
brought on behalf of Linda Brown, a thirdgrader from Topeka, Kansas. Several additional
school segregation cases were combined into
one, known as Brown v. Board of Education.
This case reached the Supreme Court in 1953.
Case Background
Key Question
After the Civil War, the Fourteenth Amendment
was passed to grant citizenship to former slaves
and protect them from civil rights violations in
their home states. Public schools were relatively
rare throughout the United States, but were
often segregated by race where they existed.
The same Congress that passed the Fourteenth
Amendment created racially segregated schools
for the District of Columbia. Beginning in 1877,
many states passed “Jim Crow” laws requiring
segregation in public places. Jim Crow laws
were adopted in every southern state as well as
some in the North. Louisiana’s policy requiring
that blacks sit in separate railcars from whites
was challenged and upheld in the Supreme
Court case Plessy v. Ferguson (1896). The
Court held that there was nothing inherently
unequal—nor anything unconstitutional—about
separate accommodations for races. In the
twentieth century, the National Association for
the Advancement of Colored People (NAACP)
began a litigation campaign designed to bring
an end to state mandated segregation, calling
attention to the shabby accommodations
provided for blacks, as well as arguing the
damaging psychological effects that segregation
В© The Bill of Rights Institute
Assess the role played by the Court as the
protector of individual rights against the tyranny
of the majority in Brown v. Board of Education.
Documents you will examine:
A. Virginia Criminal Code, 1847
B. Section of the Fourteenth Amendment,
1868
C. Majority Opinion, Plessy v. Ferguson, 1896
D. Dissenting Opinion, Plessy v. Ferguson,
1896
E. “Washington, D.C. Public Schools, 1st
Div-Class Making Geometric Forms with
Paper,” 1899
F. “African American Schoolgirls in Classroom,
Learning to Sew,” 1899
G. “Crowded Segregated Classroom,” ca.
1940s
H. Segregation Laws Map, 1953
I. Unanimous Majority Opinion, Brown v.
Board of Education, 1954
J. Majority Opinion, Brown II, 1955
K. “Supreme Court Decision,” 1954
DOCUMENT A
Virginia Criminal Code, 1847
Any white person who shall assemble with slaves, [or] free Negros … for the purpose of instructing
them to read or write … shall be punished by confinement in the jail … and by fine…
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What does this law reveal about African Americans’ access to education in mid-nineteenth
century Virginia?
DOCUMENT B
Section of the Fourteenth Amendment, 1868
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.
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What was the historical context of the passage of this amendment?
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What level of government does this amendment limit?
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What prohibitions did it create?
DOCUMENT C
Majority Opinion, Plessy v. Ferguson, 1896
The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of
the two races before the law, but in the nature of things it could not have been intended to abolish
distinctions based upon color, or to enforce social, as distinguished from political, equality, or a comingling of the two races upon terms unsatisfactory to either.… Laws permitting, and even requiring,
the separation [of races] in places where they are liable to be brought into contact do not necessarily
imply the inferiority of either race to the other, and have been generally, if not universally, recognized
as within the competency of the state legislatures in the exercise of their police power…
�
What is the majority’s opinion in this case?
DOCUMENT D
Dissenting Opinion, Plessy v. Ferguson, 1896
[I]n the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There
is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law….The destinies of the two
races, in this country, are indissolubly linked together, and the interests of both require that the
common government of all shall not permit the seeds of race hate to be planted under the sanction
of law.
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How does the dissent disagree with the majority opinion?
В© The Bill of Rights Institute
DOCUMENT E
“Washington, D.C. Public Schools, 1st Div-Class Making Geometric Forms with Paper,” 1899
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What are the conditions in this classroom?
В© The Bill of Rights Institute
DOCUMENT F
“African American Schoolgirls in Classroom, Learning to Sew,” 1899
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What are the conditions in this classroom? How are they similar or different from those
in Document E?
В© The Bill of Rights Institute
DOCUMENT G
“Crowded Segregated Classroom,” ca. 1940s
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What are the conditions in this classroom? How are they similar or different from those
in Documents E and F?
В© The Bill of Rights Institute
DOCUMENT H
Segregation Laws Map, 1953
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How does this map reflect the legacy of Plessy v. Ferguson?
В© The Bill of Rights Institute
Document I
Unanimous Majority Opinion, Brown v. Board of Education, 1954
In approaching this problem, we cannot turn the clock back to 1868 when the [Fourteenth]
Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must
consider public education in the light of its full development and its present place in American
life throughout the Nation. Only in this way can it be determined if segregation in public schools
deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most
important function of state and local governments. …In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an
opportunity, where the state has undertaken to provide it, is a right which must be made available
to all on equal terms…. To separate [students] from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely to ever be undone. …Whatever may have been the
extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported
by modern authority.… We conclude that in the field of public education the doctrine of “separate
but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold
that the plaintiffs and others similarly situated … are, by reason of the segregation complained of,
deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
�
How did the Brown decision overturn Plessy v. Ferguson in Document B?
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On what grounds did the Court base its decision?
Document J
Majority Opinion in Brown II, 1955
Note: After the 1954 decision in Brown v. Board of Education declared state-mandated segregation
in public schools unconstitutional, the case was reargued to determine how to correct the
violations.
[T]he cases are remanded to the District Courts to take such proceedings and enter such orders
and decrees consistent with this opinion as are necessary and proper to admit to public schools on
a racially nondiscriminatory basis with all deliberate speed the parties to these cases.
�
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What did the Supreme Court order District Courts to do?
How does this document reveal the Court’s dependence on other branches and levels of
government for enforcement of its decisions?
В© The Bill of Rights Institute
Document K
“Supreme Court Decision,” 1954
�
Identify the hands in the cartoon and their symbolic relationship to Brown v. Board of
Education (1954).
В© The Bill of Rights Institute
Case Briefing Sheet
Case Name and Year:_____________________________________________________
Facts of the Case:________________________________________________________________
_______________________________________________________________________________
What is the constitutional question that the Supreme Court must answer?
(This is a yes/no question and spells out the specific part of the Constitution at issue.)
_______________________________________________________________________________
_______________________________________________________________________________
What constitutional principles are indicated in the case?
_______________________________________________________________________________
_______________________________________________________________________________
Summary of one side’s arguments:
_______________________________________________________________________________
_______________________________________________________________________________
Summary of the other side’s arguments:
_______________________________________________________________________________
_______________________________________________________________________________
How would you decide the case and why?
_______________________________________________________________________________
_______________________________________________________________________________
How did the Supreme Court majority decide the case and why?
_______________________________________________________________________________
_______________________________________________________________________________
What were the main points raised in any dissenting opinions?
_______________________________________________________________________________
_______________________________________________________________________________
What other Supreme Court cases are related in important ways?
_______________________________________________________________________________
_______________________________________________________________________________
В© The Bill of Rights Institute
Tips for Thesis Statements and Essays
The thesis statement condenses your arguments to a nutshell and appears in the opening
paragraph, but it is not written until AFTER you have planned your overall response. (Planning
process shown in table below. A good thesis statement:
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Fully addresses all parts of the prompt, while acknowledging the complexity of the issue.
Clearly takes a side—makes a declarative statement that one thing was more important, more
persuasive, etc. than another. Since the verb in the prompt is often something like “assess” or
“evaluate,” the thesis statement should show which side the writer takes.
Suggests a “table of contents” or road map for the essay—shows what elements enter into
consideration.
Begins an essay that is proven by abundant and persuasive facts and evidence.
In a DBQ essay, the student writes a well-organized response to target a specific prompt, analyzing
pertinent documents in order to support his/her thesis. The steps described here will guide the
process of handling the documents. (For Advanced Placement U.S. History the response must
include BOTH outside information AND information from the documents. On U.S. History AP
exams, one of the essays that must be written under timed conditions is the DBQ.)
DBQ Do and Don’t
Step
Do
Don’t
1. Analyze the prompt
and divide it into its
components. A graphic
organizer helps with this
step.
Fully address the prompt. It is better to
address all parts of the prompt, even if
you must do some in a way that is less
complete, than to spend all your time on
just one of two parts or 3 of 4 parts.
Neglect part of the prompt because
you spent too much time on the part
you know more about.
2. Plan to prove your
Organize your thoughts before writing
point. It is best to begin
the thesis statement. What are the logical
by planning the overall
points your essay needs to include?
structure BEFORE even
looking at the documents.
Write a “laundry list” that simply
summarizes each document.
3. Check the documents
to see how you can use
them as tools.
Strive to use all the documents; but be
sure you accurately understand their main
ideas.
Take quotes or ideas out of context to
use them in a manner other than the
author intended.
4. Ask yourself when
writing every paragraph:
“How does this help to
prove my thesis?”
Analyze to prove the position asserted in
the thesis statement. Analysis is not the
same thing as description or narrative.
Merely making a series of true statements
is not analysis. Key to analysis - is the
essay answering the “So what?” question?
Use 1st or 2nd person pronouns: “I think
the Supreme Court has the authority
to use judicial review because…” or
“Have you ever wondered how the
Supreme Court got the authority to
overturn federal laws?”
5. Manage time wisely;
writing long quotes will
eat up thinking time.
Use relevant facts, evidence, and proof. A Use lengthy quotes. Pad the paper
well-chosen brief phrase in quotations and in an attempt to conceal a lack of
worked into your own sentence is powerful. analysis.
6. Give credit to sources.
Cite sources using the author’s name and/
or document title.
Write “According to Document B…”
7. Think as you write!
Let logic and analysis drive the essay.
Let documents drive the essay.
В© The Bill of Rights Institute
Key Question Scoring Guidelines for All Essays
The Good-Excellent Essay
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Asserts a strong, clear, and well-developed thesis in response to the key question.
Supports the thesis with outstanding analysis of Founding documents, custom, legal precedent
and contemporary views.
Intelligently applies and/or critiques the Court’s opinion(s).
Effectively uses many documents and incorporates prior knowledge.
Contains only minor errors; is clearly organized and exceptionally well-written.
The Average-Good Essay
�
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Asserts a thesis in response to the key question.
Supports the thesis with some analysis of Founding documents, custom, legal precedent and/
or contemporary views. Analysis of some aspects may be cursory or absent.
Critiques and/or applies the Court’s opinion(s), but may demonstrate less command of nuance
than the Good-Excellent Essay.
Effectively uses many documents and incorporates prior knowledge.
Contains few significant errors; is acceptably organized and written.
The Below Average-Average Essay
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Asserts a limited thesis or does not fully address the key question.
Analysis is largely incomplete, superficial, or incorrect; may merely paraphrase or quote
documents.
Contains simplistic or incorrect application/critique of the Court’s opinion(s).
Uses few documents and incorporates little prior knowledge.
Contains some significant errors and is poorly organized and written.
The Poor-Below Average Essay
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Lacks a thesis.
Exhibits inadequate understanding of the question and the documents.
Offers no application/critique of the Court’s opinion(s).
Uses very few documents and incorporates no prior knowledge.
Contains numerous significant errors and is poorly organized and written.
В© The Bill of Rights Institute
Rubric for Evaluating DBQ Essays
Score/
Grade
Outside Info Organization
(Required for and Writing
AP courses)
Skill
Thesis
Analysis
Entire
Prompt
Contains a
well-developed
Thesis
which clearly
addresses
all aspects of
the prompt
and shows
organizational
roadmap.
Effective
analysis which
shows & proves
relationships;
fully answers
the “so what?”
questions;
more analytical
than narrative.
Addresses
all aspects
of the
prompt,
though
coverage
may be
slightly
uneven.
Effectively and
appropriately
Uses all (or
almost all)
Documents.
Supports
thesis with
substantial
and relevant
outside
information.
Clearly
organized
& well-written
evident on first
reading, but
we’ll read it
again just for
pleasure.
May
contain
minor
errors.
5-6-7 Contains a
(80-85- thesis which
90) addresses the
prompt.
Limited
analysis; mostly
descriptive;
knowledge &
comprehension
level in use of
facts.
Slights or
neglects
some
parts of
the
Prompt.
Uses some
documents
Effectively.
Supports
thesis with
some outside
information.
Acceptable
organization;
Language errors do not
interfere with
comprehension and do
not indicate
misunderstanding of
the topic.
May
contain
errors that
do not
seriously
detract
from
quality of
the essay.
2-3-4 Presents
(65-70- a limited,
75) confused
and/or poorly
developed
thesis.
Simplistic
explanations
that do not
indicate
mastery of the
content; may
list facts without
analysis.
Deals
with one
aspect
of the
prompt in
a general
way or
with
additional
parts in a
superficial
way.
Quotes or brief Contains
lycites some
little out side
documents,
information.
but does not
use them
as tools to
support thesis.
Demonstrates
weak organization a land/
or writing skills
which interfere
with comprehension.
May
contain
major
errors.
0-1 Contains no
(60 & thesis or a
below) thesis which
does not
address the
prompt.
Shows in
adequateor
inaccurate un
derstanding of
the prompt.
Ignores
Contains
part of the little or no
question. understanding
of the
documents or
ignores them
completely.
Is so poorly
organized or
written that it
is difficult to
understand.
Contains
numerous
errors,
both
major and
minor.
8-9
(95100)
--
В© The Bill of Rights Institute
Documents
Includes
inappropriate,
off-target, or
no outside
information.
Response is completely off-target.
Errors
Equal Protection Under the Law Module
Answer Keys
Lesson One:The Foundations of American Justice
Handout G: Comparing the Documents
Document
Name
Summarize
How does this document
promote justice?
How is this
document
similar to
the other
documents?
How is this
document different
from the other
documents?
Magna
Carta
(1215)
Protects property,
requires no
excessive
punishments,
protects jury trials
by peers, and
protects customs.
It protects customs of cities
throughout England, punishments
should fit crimes, government
officials cannot take property
without paying for it, judgment
by peers for crimes, justice is
protected, anyone can leave
and return unless imprisoned or
outlawed.
Protects jury
trials and
property rights
like the Petition
of Right and
the English Bill
of Rights.
It mentions customs
of the English people
whereas the others
only mention rights.
The
Mayflower
Compact
(1620)
Creates a compact
to preserve order
and preservation,
and pass laws
to protect the
common good.
It creates equal laws, ordinances,
acts, constitutions, and offices for
the general good.
Allows for the
passage of
laws to protect
the rights of
citizens.
Creates a new
agreement to protect
liberties whereas
the other documents
are reiterating the
protection of rights.
The
Petition
of Right
(1628)
Protects due
process and rule
of law in England
and prevents the
government from
overstepping its
role in protecting
citizens’ rights.
It protects English citizens from
being imprisoned or exiled and
removal of property without due
process of law. Protects against
the quartering of soldiers in
private homes against the will
of citizens, government officers
not being punished for breaking
the law, and promises to have
government officials protect the
people.
Protects
property
rights and due
process rights
like the Magna
Carta and
English Bill of
Rights.
Discusses issues
with government
officials overstepping
their power and
infringing upon the
rights of citizens.
The
English
Bill of
Rights
(1689)
Enumerates
the rights of
citizens regarding
suspension of
laws, petitioning
the government,
standing armies,
elections, and
punishments for
crimes.
Protects against suspending of
laws, allows for petitioning the
king, protects against having a
standing army during times of
peace, bearing arms, maintaining
free elections, maintaining
free speech in Parliament,
no excessive fines, bail, or
cruel or unusual punishments,
juries retained, and meeting of
Parliament should be frequent
enough to amend, strengthen,
and preserve laws.
Protects
jury trials
and doesn’t
allow cruel
or unusual
punishment or
excessive bail
or fines like the
Magna Carta
and the Petition
of Right.
Unlike the other
documents, it
discusses the right to
petition the king, free
elections, and the
right to bear arms.
В© The Bill of Rights Institute
Handout J: Comparing Locke and Montesquieu
Locke
Montesquieu
- Uniting under government to protect rights
- Exercise powers to enact laws
- Common consent for government
- Executive power in hands of one person
- Put power in hands of society to preserve those liberties
- Legislative power in hands of many people
- Preserving property of citizens
- Executive business in action, legislative in
deliberation
- Right to preserve liberty through government
- Known and indifferent judge to determine all cases
- Standard of right and wrong
- Common measure to decide controversies
Both Locke and Montesquieu believed that a government is created to protect the liberties of its
citizens. Based on these excerpts, Montesquieu believed that government should be separated
into three branches with different roles to protect liberty, but Locke was more concerned with
protecting the individual liberties of people like property, peace, and safety than about the structure
of the government itself.
В© The Bill of Rights Institute
Lesson Two: Equal Protection and the Supreme Court
Plessy v. Ferguson (1896)
Document A: All people are born with an equality of rights.
Document B: Blacks may be inferior tow hites in their faculties. Jefferson does not say blacks do
not have equal rights.
Document C:
1. Slaves.
2. Three-fifths of the total slave population was added to the total free population to determine the
state population for purposes of representation and taxation.
Document D: Powers not given to the federal government remain with the states and the people.
Document E: Jefferson is open to being proved wrong. Nevertheless, even if blacks are inferior in
understanding, they still have equal rights.
Document F:
1. They are recognized as persons, not property.
2. Slaves are people and have inalienable rights.
Document G: It would lift slaves from the chains of slavery.
Document H:
1. National citizenship, along with the privileges and immunities there unto, due process, and
equal protection of the laws.
2. Yes, as the federal government now had a check on state power.
Document I: State governments.
Document J:
1. Judge of Section “A” Criminal District Court for the Parish of Orleans.
2. Affirmed.
Document K:
1. Laws permitting or requiring separation of races.
2. Separate does not mean inferior.
3. They will not work.
4. Because it asserted that separate accommodations were not necessarily unequal.
В© The Bill of Rights Institute
Document L:
1. It does not reference race or class; it applies to all.
2. To keep blacks inferior in both feeling and fact.
Document M: Segregation was institutionalized for decades to come.
Brown v. Board of Education (1954)
Document A: It was against the law in some states to educate African Americans.
Document B:
1. It was passed after the Civil War to protect the rights of newly-freedslaves.
2. The states cannot deny citizens the privileges and immunities of citizenship, due process of
law, and equal protection of the laws.
Document C: Separate was not inherently unequal. Segregation, therefore, did not violate the
Constitution.
Document D: Both the opinions agreed that the Fourteenth Amendment was designed to
guarantee legal equality of the races. However, the majority asserted that segregation did not
necessarily lead to inequality while the dissenter argued that it does.
Document E: Neat, orderly, full.
Document F: It looks very similar.
Document G: Crowded, cramped, full.
Document H: Many former slave states allowed or required segregation, which was declared to be
constitutional in Plessy v. Ferguson.
Document I:
1. Segregation was declared unconstitutional.
2. Separation of the races was inherently unequal and violated the Fourteenth Amendment.
Segregation creates a feeling of inferiority in black children that would impede their future
success.
Document J:
1. To integrate schools with all deliberate speed.
2. The Court cannot write or enforce laws. It must rely on state and local executive and legislative
bodies for enforcement of its decisions.
В© The Bill of Rights Institute
Document K: The white hands represent the Supreme Court. The black hands represent African
Americans shackled by segregation. The Supreme Court, which in 1954 was comprised entirely
of white justices, was the force demanding the shackles binding black Americans be broken. The
Court was acting as the final force ending the social and legal bindings and effects of slavery on
black Americans.
Module Assessment: Regents of the University of California v. Bakke (1978)
Document A: To protect the rights offormer slaves.
Document B:
1. Positive steps.
2. Paying no attention to.
Document C: Congress is being forced by the demands of African Americans top ass civil rights
legislation.
Document D: Yes. Executive Order 10925 applied only to federal government contractors. Title
VI of the Civil Rights Act of 1964 applied to “any program or activity receiving Federal financial
assistance.”
Document E:
1. Historic disadvantages are not rectified by mere equality of opportunity. True equality is equality
of results.
2. The first document implies that equality of opportunity is sufficient for true equality. Johnson
asserts that equality is measured by results.
Document F: Under the “special program” a significantly higher number of minorities (particularly
blacks and Mexican-Americans) were accepted to medical school than were accepted under
the “general program.” Nationally, most minority medical students went to “traditionally African
American colleges.”
Document G: While the percentages of education achieved for both races increased, blacks
lagged significantly behind whites in all categories.
Document H: His scores for both years were comparable to those accepted into the general
program, but far exceeded the scores of students admitted to the special program.
Document I: Answers will vary.
Document J: Equality is in opportunity, not in results, as asserted by President Johnson.
В© The Bill of Rights Institute
Document K: As admitting certain students on the basis of race, or excluding certain students on
the basis of race.
Document L:
1. The case is about excluding certain applicants on the basis of race.
2 “Equal” means treating everyone the same; “protection” means security from discrimination.
Document M: Marshall agreed that the race of an applicant can be taken into consideration when
determining admission. Marshall disagreed that the Equal Protection Clause prevents a university
from providing additional opportunities to particular races in its admissions policy.
В© The Bill of Rights Institute

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