U.S. Government
Social Studies
Unit: 06
Lesson: 03
Suggested Duration: 3 Days
Judicial Activism vs. Judicial Restraint
Lesson Synopsis:
In this lesson, students differentiate between judicial activism and judicial restraint by analyzing multiple landmark cases.
TEKS:
G.8
Government. The student understands the structure and functions of government created by the U.S. Constitution.
The student is expected to:
G.8F
Analyze selected issues raised by judicial activism and judicial restraint.
G.13
Citizenship. The student understands rights guaranteed by the U.S. Constitution. The student is expected to:
G.13C
Identify the freedoms and rights guaranteed by each amendment in the Bill of Rights.
G.13D
Analyze United States Supreme Court interpretations of rights guaranteed by the U.S. Constitution in selected cases
including: Engle v. Vitale, Schenck v. U.S., Texas v. Johnson, Miranda v. Arizona, Gideon v. Wainwright, Mapp v.
Ohio, and Roe v. Wade.
Explain the importance of due process rights to the protection of individual rights and in limiting the powers of
government.
G.13E
Social Studies Skills TEKS:
G.20
G.20A
G.20B
G.20D
G.21
G.21A
G.21B
G.21C
G.21D
Social studies skills. The student applies critical-thinking skills to organize and use information acquired from a
variety of valid sources including electronic technology. The student is expected to:
Analyze information by sequencing, categorizing, identifying cause-and-effect relationships, comparing, contrasting,
finding the main idea, summarizing, making generalizations and predictions, and drawing inferences and
conclusions.
Create a product on a contemporary government issue or topic using critical methods of inquiry.
Analyze and evaluate the validity of information from primary and secondary sources for bias, propaganda, point of
view, and frame of reference.
Social studies skills. The student communicates in written, oral, and visual forms. The student is expected to:
Use social studies terminology correctly.
Use standard grammar, spelling, sentence structure, and punctuation.
Transfer information from one medium to another, including written to visual and statistical to written or visual,
using computer software as appropriate.
Create written, oral, and visual presentations of social studies information.
GETTING READY FOR INSTRUCTION
Performance Indicator(s):
•
Create a poster to present to the class about a Supreme Court case that raised the issue of judicial restraint or
judicial activism. The poster will include the title of the case, the year it was heard in the Supreme Court, a
summary of relevant facts of the case, the constitutional question or issue in the case, arguments for each side,
and the Court’s opinion and reasoning as well as any dissenting opinions if applicable. (8F; 13D, 21C)
2H; 3D; 3H
Key Understandings and Guiding Questions:
•
A judge’s belief in philosophy of judicial activism or judicial restraint often determines decisions on policy that are
made by the Court.
— What is meant by the term “judicial activism”?
— Why is it sometimes called “legislating from the bench”?
— How has activism been used to protect the rights of the minority against the will of the majority?
— How did the Court demonstrate judicial activism in deciding Miranda v. Arizona?
— What is meant by the term “judicial restraint”?
— How did the Court use judicial restraint in deciding the case of Schenck v. U.S.?
©2013, TESCCC
04/26/13
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U.S. Government
Social Studies
Unit: 06 Lesson: 03
Vocabulary of Instruction:
•
judicial activism
•
•
judicial restraint
public policy
Materials:
•
Refer to Notes for Teacher section for materials.
Attachments:
•
Handout: Miranda v. Arizona (1 per student)
References and Resources:
•
None identified
Advance Preparation:
1.
2.
3.
4.
Become familiar with the content and procedures for the lesson.
Schedule the computer lab and library for Day 2 and possibly Day 3.
Preview websites according to district policy.
Copy handouts as needed.
Background Information:
Work with your school librarian to pull a selection of books on landmark cases and put these on reserve for use in the
library. It is also recommended that teachers read peer reviewed articles about judicial activism and judicial restraint from
different sources to get a balanced presentation of these philosophies.
GETTING READY FOR INSTRUCTION SUPPLEMENTAL PLANNING DOCUMENT
Instructors are encouraged to supplement and substitute resources, materials, and activities to differentiate instruction to address the needs of learners.
The Exemplar Lessons are one approach to teaching and reaching the Performance Indicators and Specificity in the Instructional Focus
Document for this unit. Instructors are encouraged to create original lessons using the Content Creator in the Tools Tab located at the top of the page.
All originally authored lessons can be saved in the “My CSCOPE” Tab within the “My Content” area.
INSTRUCTIONAL PROCEDURES
Instructional Procedures
Notes for Teacher
ENGAGE – Miranda v. Arizona
1. Ask students to list the Miranda warning rights. Make a list of their
suggestions on the board. Make no comment on whether their
suggestions are correct or not – by the end of the lesson they will
find out the correct rights that are part of this warning.
2. Ask students from what source they get their knowledge of the
Miranda rights.
3. Ask if they know why these rights are called “Miranda” rights.
4. Tell the class that they will be completing a case study on the
Miranda v. Arizona (1966) case.
EXPLORE
1. Distribute copies of the Handout: Miranda v. Arizona, or use the
©2013, TESCCC
05/07/13
NOTE: 1 Day = 50 minutes
Suggested Day 1 – 5 minutes
Materials:
• textbook and supplementary materials about
the case
TEKS: G.8F; G.13C, G.13D, G.13E
Purpose:
• Students analyze the case of Miranda v.
Arizona as it relates to rights guaranteed in
the Fifth and Sixth Amendments as well as
the rights under the due process clause of
the Fourteenth Amendment;
• Students analyze the decision in Miranda v.
Arizona as an example of judicial activism.
Suggested Day 1 (continued) – 45 minutes
Materials:
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U.S. Government
Social Studies
Unit: 06 Lesson: 03
Instructional Procedures
Notes for Teacher
district-adopted textbook or other district-approved materials to
provide students with information about the case.
2. Read the language of the Fifth Amendment as it applies to selfincrimination.
•
•
Handout: Miranda v. Arizona (1 per
student)
butcher paper and markers for five groups
3. Read the language of the Sixth Amendment as it applies to the
assistance of a lawyer:
4. Divide the class into five groups for the Jigsaw portion of the
Explore. (Allow students 15 minutes to complete their section.)
5. Give each group a sheet of butcher paper and markers to record
their answers to questions about the case. These will be displayed
to the class and presented for discussion.
6. Designate one group to explain to the class one of the following
aspects of the Miranda v. Arizona case:
• Facts group – Explain what happened in the case. Who was
Miranda? What was his crime? What exactly was read to him
at the time of his confession about his rights? What right was
missing from this?
• Issue group – There are two constitutional amendments
involved in this case, the Fifth Amendment and the Sixth
Amendment. Formulate the constitutional issue for the case.
Use the formula learned in an earlier lesson by first identifying
the actor (A) in the case, the action that caused the case to go
to the Supreme Court (B), the recipient of the action (C), the
right involved (D), and the part of the Constitution where that
right is found (E). Then combine all of these into a question for
the Court: When A did B to C, did this violate C’s right to D
under the E Amendment?
• Arguments for Miranda group – Give reasons why Miranda
believed his rights had been violated when his confession was
obtained.
• Arguments for Arizona group – Give reasons why Arizona
believed they had acted correctly in obtaining Miranda’s
confession.
• Decision group – Explain what the Supreme Court decided in
this case, covering the following points about the decision:
• What was the vote in the case?
• Could Arizona use Miranda’s confession against him?
• What changed about the application of the Fifth
Amendment’s protection against self-incrimination as
a result of the decision?
• If a suspect decides he wants to answer police
questions, who has the burden of proof that the
suspect knew and understood his rights at the time of
the confession?
• What rights must be read to suspects before
interrogation as a result of this case?
7. Students read the material (and any other classroom materials that
support this learning) as they prepare to participate in the class
discussion about the case.
©2013, TESCCC
05/07/13
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U.S. Government
Social Studies
Unit: 06 Lesson: 03
Instructional Procedures
Notes for Teacher
8. Presentation of components of the case study:
When all groups have finished, call on each group to present their
part of the case to the class. (4 groups, a maximum of 5 minutes
each to present)
• For the facts group, be sure to emphasize the importance of
the exact wording of the statement that was read to Miranda at
the time of his confession. The entire case hinges on this.
• For the issue group, point out that the Fourteenth Amendment
made both the 5th and 6th amendments apply to the states.
• For the arguments groups, ask the class which arguments for
each side are the strongest.
• For the decision group, point out the following:
• At Miranda’s second trial, his original confession could not
be mentioned in any way.
• Students may have concerns about the ability to find an
impartial jury due to the publicity that the case received,
but the retrial occurred over three years after the original
trial, and many people did not pay close attention to news
about the case.
• In warning suspects of their rights, the government has to
prove that the suspect was aware of his rights and
understood them. For someone who is under the influence
of drugs or alcohol, the police must wait until they are
sober to read them their rights and question them.
• Before confessions are obtained without attorneys present
in Texas, the suspect is taken before a judge who reads
the rights to the person and questions him to be certain
the rights are understood. Then the judge and the suspect
both sign a form agreeing the rights have been read and
understood.
• If the suspect has an attorney, the attorney signs that he
has read the rights to his client and that they have been
understood.
• The Supreme Court’s requirement that rights be read only
applied to interrogations being conducted to elicit a
confession. It did not require rights to be read at the
moment of arrest, but police routinely do read them at that
time. The rights would be read again before an
interrogation at the police station.
• Suspects can reclaim the right to remain silent in the
middle of an interrogation. Anything they have said up to
that time may be used, but police cannot force them to
continue answering questions.
9. Students read appropriate sections in their textbook to support
their learning about the Miranda case and judicial activism and
judicial restraint. (This could be done as homework.)
EXPLAIN
Suggested Day 2(continued) – 20 minutes
1. Explain to students that this case represents a very strong
example of judicial activism. The Court specifically told law
enforcement officials what they had to say to warn suspects of
their rights. This is definitely new policy.
2. Students discuss and then explain judicial activism and judicial
©2013, TESCCC
05/07/13
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U.S. Government
Social Studies
Unit: 06 Lesson: 03
Instructional Procedures
Notes for Teacher
restraint, using the cases looked at to support their ideas. (This
could be a formative assessment.)
EVALUATE – Researching a Landmark Decision
• Create a poster to present to the class about a Supreme Court case
that raised the issue of judicial restraint or judicial activism. The
poster will include the title of the case, the year it was heard in the
Supreme Court, a summary of relevant facts of the case, the
constitutional question or issue in the case, arguments for each
side, and the Court’s opinion and reasoning as well as any
dissenting opinions if applicable. (G.9F; G.14B, G.14C, G.14D,
G.14E; G.17B) ELPS: 2H; 3D; 3H
©2013, TESCCC
05/07/13
Suggested Day 2-3 – 80 minutes
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