Constitutionally
Speaking
presents
A Teacher’s Guide
How Does the Constitution
Keep Up with the Times?
Twelve Lessons on the
Nation’s Founding Document and
Its Application in 21st Century America
A collaboration of
NH Humanities Council l NH Supreme Court Society
NH Institute for Civic Education l UNH School of Law
Constitutionally
Speaking
Dear Educator,
Leadership Group
Dianne Kearns Duncan
Chair
Mary Susan Leahy
Treasurer
Deborah A. Watrous
Secretary
John T. Broderick, Jr.
William L. Chapman
John M. Greabe
Neil Levesque
Christine C. Rath
Sherilyn Burnett Young
Before extolling the value of civics education generally and this study guide in
particular, allow me to thank you. By the very act of accessing these materials,
you are demonstrating an interest in preparing your students to become engaged
participants in the civic life of their communities, their state, and their nation.
No task is more important, or more challenging. In a media-driven culture that seems
to focus on failing schools, at-risk kids, and competing educational philosophies,
teachers too often become targets of blame rather than recipients of our gratitude
and support. So again, on behalf of the partners in Constitutionally Speaking, I offer our
sincere thanks as you join our effort to make civics education as fundamental as reading
and math in every New Hampshire classroom from kindergarten through 12th grade.
Nearly two centuries ago, Thomas Jefferson warned: “If a nation expects to be
ignorant and free, it expects what never was and never will be.” Those are words
worth heeding. Our democracy depends on an informed citizenry that takes seriously
its right and responsibility to vote. Sadly, an alarming percentage of young people
do not show up at the polls on Election Day – and the percentage of those who don’t
is significantly greater when formal education ends with graduation from high school.
What the correlation between education level and voting suggests is that much more
needs to be done pre-college to inspire a lifelong commitment to voting.
That is where you come in. Educating students about the structure of our government
and its constitutional underpinnings must become the baseline of civics education in our
schools. Without that foundation, graduating high school seniors simply will not have the
tools necessary to make informed choices about the complex issues of our times.
Consider, for example, the government’s electronic surveillance data mining program.
No serious discussion of its legality can occur without a basic understanding of the
constitutional prohibition against unreasonable search and seizure.
Together with our Twelve Lessons on the Nation’s Founding Document and Its
Application in 21st Century America DVD -- a collection of video clips drawn from
several events held during Constitutionally Speaking’s pilot year – this companion
study guide provides detailed lesson plans and suggested readings for use in New
Hampshire classrooms. In addition, our website provides access to video of all pilotyear presentations in their entirety, and includes a list of civics resources developed
by several NH educators who categorized the materials by grade level
for maximum benefit to teachers. Please partake liberally!
With warm regards,
Dean John T. Broderick Jr.,
UNH School of Law
TABLE OF CONTENTS
Relevant N.H. Social Studies Standards
Chapter 1: Constitutional Values
Abstract, Relevant Videos
Chapter Outline
Learning Objectives
Relevant U.S. Supreme Court Cases
Important Terms
Learning Activities and Assessments
Additional Resources
Chapter 2: Federalism
Abstract, Relevant Videos
Chapter Outline
Learning Objectives
Relevant U.S. Supreme Court Cases
Important Terms
Learning Activities and Assessments
Additional Resources
Chapter 3: Defining Equality
Abstract, Relevant Videos
Chapter Outline
Learning Objectives
Relevant U.S. Supreme Court Cases
Important Terms
Learning Activities and Assessments
Additional Resources
Chapter 4: Privacy and the Fourth Amendment
Abstract, Relevant Videos
Chapter Outline
Learning Objectives
Relevant U.S. Supreme Court Cases
Important Terms
Learning Activities and Assessments
Additional Resources
APPENDIX A: APPARTS Template
APPENDIX B: Debate Team Carousel
APPENDIX C: A Federal System of Government Chart
Page
i-ii
1
2
3
4-5
6-7
8-24
25-26
27-28
29
30
31
32-34
35-44
45-46
47
48
49
50
51-52
53-63
64
65
66
67
68
69-70
71-81
82
Relevant N.H. Social Studies Standards
from K-12 Social Studies New Hampshire Curriculum Framework
Theme B:
Theme E:
Theme H:
Theme I:
Civic Ideals, Practices, and Engagement
Cultural Development, Interaction, and Change
Individualism, Equality and Authority
Patterns of Social and Political Interaction
SS:CV:1: The Nature and Purpose of Government - Students will demonstrate an understanding
of the nature of governments, and the fundamental ideals of government of the United States.
SS:CV:12:1.2: Examine how institutions and individuals make, apply, and enforce rules
and laws, e.g., the Federal Communications Commission regulations on television
broadcast standards or local public hearings on zoning regulations. (Themes: B: Civic
Ideals, Practices, and Engagement, E: Cultural Development, Interaction, and Change)
SS:CV:12:1.3: Evaluate how the purposes of government have been interpreted , e.g.,
promoting the general welfare or protection of private property. (Themes: B: Civic Ideals,
Practices, and Engagement, D: Material Wants and Needs)
SS:CV:12:1.4: Explain how in the United States legitimate authority derives from
custom, law and consent of the governed, e.g., the Mayflower Compact or local curfews.
(Themes: B: Civic Ideals, Practices, and Engagement, E: Cultural Development,
Interaction, and Change, H: Individualism, Equality and Authority)
SS:CV:2: Structure and Function of United States and New Hampshire Government - Students
will demonstrate an understanding of major provisions of the United States and New Hampshire
Constitutions, and the organization and operation of government at all levels including the
legislative, executive, and judicial branches.
SS:CV:12:2.1: Describe how the fundamental ideals and principles of American
government are incorporated in the United States Constitution and the New Hampshire
Constitution, e.g., the rule of law or individual rights and responsibilities. (Themes: H:
Individualism, Equality and Authority, I: Patterns of Social and Political Interaction, J:
Human Expression and Communication)
SS:CV:12:2.2: Analyze the evolution of the United States Constitution as a living
document, e.g., the Bill of Rights or Plessy v. Ferguson. (Themes: E: Cultural
Development, Interaction, and Change, H: Individualism, Equality and Authority, I:
Patterns of Social and Political Interaction)
SS:CV:12:2.3: Describe the roles and responsibilities of the United States and New
Hampshire judicial systems, e.g., resolution of conflict between states or New Hampshire
Legislature’s use of advisory opinions from the New Hampshire Supreme Court.
(Themes: A: Conflict and Cooperation, E: Cultural Development, Interaction, and
Change)
i
SS:CV:12:2.4: Evaluate how individual rights have been extended in the United States,
e.g., Truman’s integration of the Armed Services or the Miranda decision. (Themes: H:
Individualism, Equality and Authority, I: Patterns of Social and Political Interaction)
Relevant Common Core Standards
Reading Standards for Literacy in History/Social Studies
RH.11-12.1: Cite specific textual evidence to support analysis of primary and
secondary sources, connecting insights gained from specific details to an
understanding of the text as a whole.
RH.11-12.2: Determine the central ideas or information of a primary or secondary
source; provide an accurate summary that makes clear the relationships among the
key details and ideas.
RH.11-12.4: Determine the meaning of words and phrases as they are used in a
text, including analyzing how an author uses and refines the meaning of a key
term over the course of a text (e.g., how Madison defines faction in Federalist No.
10).
RH.11-12.5: Analyze in detail how a complex primary source is structured,
including how key sentences, paragraphs, and larger portions of the text
contribute to the whole.
RH.11-12.7: Integrate and evaluate multiple sources of information presented in
diverse formats and media (e.g., visually, quantitatively, as well as in words) in
order to address a question or solve a problem.
Writing Standards for Literacy in History/Social Studies, Science, and Technical Subjects
6–12
WHST.11-12.1: Write arguments focused on discipline-specific content.
WHST.11.12.2: Write informative/explanatory texts, including the narration of
historical events, scientific procedures/ experiments, or technical processes.
WHST.11-12.7: Conduct short as well as more sustained research projects to
answer a question (including a self generated question) or solve a problem;
narrow or broaden the inquiry when appropriate; synthesize multiple sources on
the subject, demonstrating understanding of the subject under investigation.
WHST.11-12.9: Draw evidence from informational texts to support analysis,
reflection, and research.
ii
Chapter 1: CONSTITUTIONAL VALUES
Abstract
Separation of powers among the executive, legislative, and judicial branches of
government is a fundamental principle of the United States Constitution. Concerned that
ambitious officials in one branch would attempt to encroach upon the authority of the
others, the Framers established a structure of government designed to prevent that. The
exercise of judicial review and expansive constitutional interpretation by the U.S.
Supreme Court – powers not explicitly granted by the Constitution – have evolved as
additional judicial checks on powers claimed by the President, the Congress, and the
states. As part of Constitutionally Speaking’s inquiry into the question: “How Does the
Constitution Keep Up with the Times?” the materials that follow explore the history of
judicial review, approaches to constitutional interpretation, and the practical application
of constitutional values such as freedom of speech.
Relevant Constitutionally Speaking Videos
An Assignment Left to the Future
Speakers: David H. Souter, U.S. Supreme Court Justice (Retired)
Adam Liptak, New York Times columnist
Duration: 5 min 12 sec
Synopsis: Justice Souter and Mr. Liptak address the role and timing of the U.S. Supreme
Court in the practical application of constitutional values. Their discussion
touches upon the lack of specificity in constitutional language (i.e., Commerce
Clause, freedom of speech, security in people’s houses) and the absence of a
template for constitutional interpretation.
A Play of Constitutional Values
Speakers: David H. Souter, U.S. Supreme Court Justice (Retired)
William Chapman, Esq. Shareholder, Orr & Reno
Duration: 8 min 02 sec
Synopsis: Justice Souter and Attorney Chapman discuss the First Amendment, what
rights it encompasses in order to give practical value to the general right of
freedom of speech (i.e., freedom of association), and its limitations.
References are made to the Espionage Act that criminalized anti-war writings
and protests during World War I, Justice Holmes’ dissent in the Abrams case,
and the tension between the constitutional values of liberty and equality
reflected in the Citizens United case.
1
Chapter Outline
Learning Objectives
Page 3
Relevant U.S. Supreme Court Cases
Pages 4-5
Important Terms
Pages 6-7
Learning Activities and Assessments
Pages 8-24
Additional Resources
Pages 25-26
2
Learning Objectives
Goal Students will be able to examine the U.S. Supreme Court’s power of judicial
review and critique the various approaches justices take when interpreting the
Constitution. Further, students will understand how the constitutional right to free
speech has evolved over time.
Students will understand that....
 The U.S. Supreme Court is the supreme authority over the meaning of the
U.S. Constitution and has changed its interpretation of the Constitution over
time.
 Supreme Court justices have differing approaches to constitutional
interpretation.
 The Court’s decisions have a profound impact on everyday lives of American
citizens.
 Changing interpretations of the Constitution allow it to keep up with the
times.
Essential Questions
 How was the power of judicial review established?
 What basic approaches to constitutional interpretation have justices of the
Supreme Court adopted?
 How can opposing judicial philosophies have an affect on constitutional
interpretation?
 How has the interpretation of the First Amendment changed over time?
 What rights are afforded to American citizens under the First Amendment?
Students will know...
 Important terms regarding judicial review, constitutional interpretation, and
the First Amendment.
 Key facts about establishing the principle of judicial review and how the
Supreme Court has exercised that power over time.
 Key Supreme Court cases on constitutional interpretation and the Bill of
Rights.
 Key Supreme Court cases on the First Amendment and free speech.
Students will be able to...
 Recognize, define, and use vocabulary in context.
 Read, comprehend, and analyze the text of the U.S. Constitution.
 Interpret, compare, and evaluate Supreme Court analysis of the Constitution
over time.
 Express their learning orally during class discussions and in writing.
 Collaborate successfully with their peers to improve and express their
learning.
3
Relevant U.S. Supreme Court Cases
Each case is followed by a link to the full-text opinion at Cornell University's Legal
Information Institute and a case summary at Oyez.org.
Title (year)
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Judicial Review
Marbury v. Madison (1803)*
Cooper v. Aaron (1958)
Constitutional Interpretation
McCulloch v. Maryland (1819)*
Ex Parte Milligan (1865)
Watkins v. United States (1957)
Roe v. Wade (1973)*
U.S. v. Nixon (1974)*
Cipollone v. Liggett Group (1991)
Planned Parenthood v. Casey (1992)
Clinton v. City of New York (1998)
Roper v. Simmons (2005)
District of Columbia v. Heller (2008)
McDonald v. Chicago (2010)
Affordable Care Act cases (2012)**
First Amendment and Free Speech
Schenck v. United States (1919)
Debs v. United States (1919)
Abrams v. United States (1919)
Gitlow v. New York (1925)
Chaplinsky v. New Hampshire (1942)
West Virginia v. Barnette (1943)
United States v. O’Brien (1968)
Tinker v. Des Moines (1969)*
Brandenburg v. Ohio (1969)
Cohen v. California (1971)
Miller v. California (1973)
Island Trees School District v. Pico (1982)
Bethel School District v. Fraser (1986)
Hazelwood v. Kuhlmeier (1988)
Texas v. Johnson (1989)
R.A.V. v. St. Paul (1992)
Reno v. ACLU (1997)
Watchtower Bible and Tract Society c. Stratton (2002)
4
McConnell v. FEC (2003)
Virginia v. Black (2003)
Virginia v. Hicks (2003)
United States v. American Library Association (2003)
Ashcroft v. ACLU (2004)
Morse v. Frederick (2007)
Citizens United v. FEC (2010)
Full Text
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Summary
Summary
Summary
Summary
Summary
Summary
Summary
*Teaching materials – including case summaries and excerpts – are available for
these cases at Landmark Supreme Court Cases of the U.S. Supreme Court.
**Additional case summaries and excerpts are available for these cases in Street
Law Inc.’s Resource Library.
5
Important Terms
appellate jurisdiction
The power of a court to hear appeals from lower courts.
This includes the power to reverse or modify the lower
court’s decision. In the federal system, the circuit courts
have appellate jurisdiction over the cases of district courts
and the Supreme Court has appellate jurisdiction over the
decision of the circuit courts.
Bill of Rights
The first ten Amendments to the Constitution, setting out
individual rights and liberties. Enforced only on the federal
government at the time of its adoption, through the legal
doctrine of incorporation, most of the Bill of Rights now
applies to the states under the Due Process Clause of the
Fourteenth Amendment.
civil liberties
Rights granted to citizens under the Constitution (and
derived primarily from the First Amendment) to speak
freely, think, assemble, organize, worship, or petition
without government interference or restraints.
civil rights
Enforceable rights or privileges, which if interfered with by
another gives rise to an action for injury.
constitution
The most fundamental law of a country or a state. The
term is capitalized only when referring to a specific
constitution (e.g. U.S. Constitution, Texas Constitution.)
court
An official tribunal presided over by a judge or judges in
which legal issues or claims are heard and determined.
express authority
An agent’s power to act on behalf of a principal, explicitly
granted by an agreement between the agent and the
principal.
federal
Typically used to refer to the U.S. government, its
legislative, executive, and judicial branches, and the
statutes, rules and regulations enacted by those branches of
government.
First Amendment
Protects the right to freedom of religion and freedom of
expression from government interference.
implied authority
An agent’s power to act on behalf of a principal,
intentionally granted by the principal as a result of the
principal’s conduct, but without express agreement.
6
Failure to object after prior exercise of such power may
give rise to implied authority.
judicial review
The doctrine under which the actions of the executive and
legislative branches of government are subject to review
and possible invalidation by the judicial branch. Judicial
review allows the Supreme Court to take an active role in
ensuring that laws and executive actions conform with the
U.S. Constitution.
jurisdiction
Power of a court to adjudicate cases and issue orders.
original jurisdiction
A court’s power to hear and decide a case before any
appellate review. A trial court must necessarily have
original jurisdiction overt the types of cases it hears.
precedent
A case or issue decided by a court that can be used to help
answer future legal questions.
stare decisis
Latin for “to stand by things decided.” Stare decisis is
essentially the doctrine of precedent. Courts cite stare
decisis when an issue has previously been brought to the
court and a ruling issued. Generally, courts will adhere to
the previous ruling, though this is not universally true.
Supremacy Clause
Article VI, Paragraph 2 of the Constitution is commonly
referred to as the Supremacy Clause. It establishes that the
U.S. Constitution, and federal laws generally, take
precedence over state laws and even state constitutions.
supreme court
The highest court in a jurisdiction.
unconstitutional
In opposition to the Constitution. Used to describe a
statute, governmental conduct, court decision, or private
contract that violates one or more provisions of the
Constitution. Can be used in reference to the federal
constitution or a state constitution.
7
Learning Activities & Assessments
Part 1: The Power of “Judicial Review”
The goal of these activities is to understand the meaning of “judicial review” and to
determine if the practice finds its basis in the U.S. Constitution.
Step 1: The Role of the U.S. Supreme Court
At the beginning of class have students respond to the following prompt:
What is the role of the U.S. Supreme Court?
To see the collective response of the class, have students write their responses on a
random or designated spot on the classroom whiteboard, chalkboard, or chart paper.
After everyone has recorded a response, have students walk around and analyze their
classmates’ answers. Create a chart to note similarities, differences, and surprises. Have
students return to their seats and initiate a class discussion about the results.
Step 2: A Definition of “Judicial Review”
Define, post, and explain the term “judicial review” for students (see Important Terms,
page 7). Explain that the U.S. Supreme Court uses this power to review acts of the
executive and legislative branches of the federal government and the states. If laws are in
conflict with the Constitution, the Supreme Court may invalidate them by declaring them
unconstitutional. If necessary, review the structure of the federal judiciary and how a
case reaches the Supreme Court. Walk students through how a case made its way to the
Court and the outcome of the case (e.g. Brown v. Board of Education). Note: Do not use
Marbury v Madison as your example. This case will be used later in the lesson.
Step 3: What the Constitution Says
Ask students what they believe is the source of the Supreme Court’s power of judicial
review. Presumably, students will suggest the power is derived from the U.S.
Constitution. Distribute copies of Article III of the Constitution. Have students refer to
the text to answer the following questions:
1. Under Article III, what are the roles, responsibilities, and powers of the
Supreme Court? Are there any limitations? Explain.
2. Does Article III give the Supreme Court authority to determine if acts of the
executive branch, legislative branch, or the states are constitutional? Where?
Explain.
3. Does Article III give the Supreme Court the authority to invalidate laws
passed by Congress or states if those measures do not comport with the
Constitution?
4. In your own words, describe what you understand the role of the Supreme
Court to be under Article III of the United States Constitution.
8
Next, divide students into small groups. Each group should have a facilitator and a
timekeeper. Facilitators will lead the discussion by soliciting input from each group
member, ensuring no one person dominates the conversation, drawing quieter students
into the conversation, and asking clarifying questions to keep the conversation moving.
Timekeepers will keep the group informed of how much time discussion remains.
(Consider modeling this process for the class.) Once the roles have been established,
each group should discuss responses to each question for two to three minutes.
Then, lead the whole class in a discussion. Have students cite text from Article III when
addressing each question, and determine as a class if the text cited supports their
assertions. Explain to students that despite the lack of explicit language in the
Constitution, the U.S. Supreme Court has used the power of judicial review since as early
as 1796. Note: You may wish to review with your students the difference between the
terms explicit and implicit. Ask students to look at Article III and Article VI, Section II
and determine if there is implicit language supporting judicial review. Is it implied by the
structure of government that the Supreme Court should have this power?
Part 2: The Establishment of “Judicial Review”
In these activities students will examine Marbury v. Madison (1803), the case that
established judicial review as a power of the U.S. Supreme Court; compare and contrast
conceptions of judicial review; and express and support their positions on the legitimacy
of judicial review.
Step 1: Analysis of Marbury v. Madison
Individually or in groups, have students research the background of Marbury v. Madison,
the landmark 1803 case that established judicial review; the issues the U.S. Supreme
Court considered; and the decision the Court rendered. Consider using Street Law’s Case
Study strategy, included in the links below.
1. Case Study Strategy
http://www.streetlaw.org/en/landmark/teaching_strategies/case_study
b. Extended Background
http://edsitement.neh.gov/sites/edsitement.neh.gov/files/worksheets/marbury_background
.pdf
c. Brief Background
http://www.streetlaw.org/en/Page/272/Background_Summary__Questions_
d. Full Text of the Majority Opinion
http://www.ourdocuments.gov/doc.php?flash=true&doc=19
e. Excerpts from the Majority Opinion
http://www.streetlaw.org/en/Page/290/Key_Excerpts_from_the_Majority_Opinion
9
f. Summary of the Decision
http://www.streetlaw.org/en/Page/292/Summary_of_the_Decision
After the case studies have been completed, divide students into small groups to share
what they have learned, then reassemble the class for a wider discussion and to check for
understanding.
Discussion Questions
 What did the Court hold in Marbury v. Madison?
 Why is it such an important case in United States history?
 Did the outcome enhance or erode the system of checks and balances created by
the Constitution?
Step 2: Early Debate on the Supreme Court’s Role
Have students use primary sources to explore differing opinions about the exercise of
judicial review. To begin, set up stations with one document per station and have
students fill out a primary source analysis sheet for each. (Use the APPARTS method in
APPENDIX A when completing the primary source analysis.) Students can then use the
primary source analysis sheets to answer the follow up questions. The documents are as
follows:
a. Federalist 78 (1788)
http://www.streetlaw.org/en/Page/280/The_Power_of_the_Judicial_Branch_The_Federali
st_Number_78_and_the_AntiFederalist_78
http://www2.hn.psu.edu/faculty/jmanis/poldocs/fed-papers.pdf
b. Anti-Federalist 78 (1788)
http://www.streetlaw.org/en/Page/280/The_Power_of_the_Judicial_Branch_The_Federali
st_Number_78_and_the_AntiFederalist_78
c. Federalist 80 (1788)
http://www2.hn.psu.edu/faculty/jmanis/poldocs/fed-papers.pdf
d. Virginia & Kentucky Resolutions (1798, 1799)
http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginiaand-kentucky-resolutions/
e. Thomas Jefferson to Spencer Roane (1819)
http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html
Next, have students consider the following questions and discuss their responses as a
class, keeping track of significant text from the documents by using an overhead or
10
projector to point out this language and having students highlight or write down the
important passages.
Discussion Questions
 How did Federalists and Anti-Federalists differ in their views about the tenure of
justices and the role of the Supreme Court? Did their attitudes toward federal
authority and liberty influence these views?
 Is the “check” mentioned in Anti-Federalist 78 a necessary check on the judicial
branch or would it strip the Court of a meaningful role in government?
 In writing the Virginia and Kentucky Resolutions, how did Jefferson and Madison
propose nullifying unconstitutional federal laws, and where did Jefferson suggest
this authority came from? How would this affect the relationship between the
federal government and the states? Is this a superior approach to the current
process?
 What did Thomas Jefferson mean by the following:
The Constitution, on this hypothesis, is a mere thing of wax in the hands of the
judiciary, which they may twist, and shape in any form they please.
Step 3: Thinking Critically about Judicial Review
Ask students to write down alternative approaches for determining the constitutionality of
laws. Share the ideas as a class and vote on which suggestions are worthy of
consideration. Are these approaches problematic? If not already mentioned, share some
approaches to judicial review proposed by Thomas Jefferson and other critics of the
principle.
As a wrap up exercise, form groups of four to five students and complete a Debate Team
Carousel exercise from APPENDIX B, using one or more of the following prompts:
1. Should the Supreme Court have the power of judicial review?
2. Is judicial review undemocratic? Explain.
3. Does judicial review exempt or preclude the other branches from considering
the constitutionality of their actions?
4. How would our country be different without judicial review?
Using the Debate Team Carousel directions and template, students should consider the
primary sources, analysis sheets, and follow up questions when answering the above
prompts. Discuss the responses as a class and create a list of the most compelling
arguments.
Learning Extension
First, ask students to read the articles below to deepen their understanding of judicial
review and the decision in Marbury v Madison.
Grossman, Joel B. “The 200th Anniversary of Marbury v. Madison: The Reasons
We Should Still Care About the Decision, and The Lingering Questions It Left
11
Behind.” FindLaw, 24 Feb. 2003. Web. 9 July 2013.
<http://writ.news.findlaw.com/commentary/20030224_grossman.html>.
Rappaport, Mike. "The Constitutional Basis for Judicial Review." Library of Law
and Liberty. Liberty Fund Inc., 24 Jan. 2013. Web. 9 July 2013.
<http://www.libertylawsite.org/2013/01/24/the-constitutional-basis-for-judicial-review/>.
Then, as homework or using the Debate Team Carousel format in class, have students
consider the arguments put forth by Grossman and Rappaport and address the following
questions:
1. Should the Judiciary have a monopoly on interpreting the Constitution?
2. Did the Founders expect the Supreme Court to engage in judicial review?
3. Is there a constitutional basis for judicial review?
Alternatively, have students complete a case study, using Street Law’s Case Study case
study format.
Short Answer/Essay/Debate Prompts
 Why is judicial review such an important power of the Supreme Court?
 Does the power of judicial review support or undermine the doctrine of checks
and balances?
 Should lifetime appointments to the Supreme Court be discontinued in favor of
the election of judges subject to recall?
 Why is it important for the Supreme Court to be insulated from politics?
 Is the Supreme Court accountable to the American people?
Summative Assessments

Consider Supreme Court Justice Antonin Scalia’s 1996 remarks about judicial
review (in italics below), and write position papers or participate in a formal class
debate on whether judicial review is a power that should be exercised by the
Supreme Court even though it is not enumerated in the Constitution.
“The Constitution of the United States nowhere says that the Supreme Court shall
be the last word on what the Constitution means. Or that the Supreme Court shall
have the authority to disregard statutes enacted by the Congress of the United
States on the ground that in its view they do not comport with the Constitution. It
doesn’t say that anywhere. We made it up. Now, we made it up very sensibly
because what we said was,‘Look, a Constitution is a law, it’s a sort of super
law...and what the law means is the job of the courts.”

Create a timeline or diagram that illustrates the debate and evolution of judicial
review over time. Include dates, case names where possible, and descriptions of
how judicial review changed at each point. Students could complete additional
research to add depth to the material covered in class.
12
Part 3: Approaches to Constitutional Interpretation
In these activities students will analyze the constitutionality of historical and
contemporary legal issues; become attuned to constitutional language, both specific and
broad; and describe how the Constitution’s language and subject matter creates a
dichotomy.
Step 1: Discerning Constitutional Meaning
Break students into groups of three to five. Provide each group with one or more of the
following scenarios depicting an action taken by the executive branch, the legislative
branch, or a state. Ask students to decide if each action is constitutional, and to cite the
Article, Section, Clause, or Amendment of the Constitution that supports their
conclusion. Students should be prepared to defend their answers and explain how the
text supports or prevents each action.
1. After protesters in New York City burn the United States flag, Congress
passes a Flag Desecration Act banning any display of contempt directed
against the flag.
2. New Hampshire passes the Separate Car Act declaring that all forms of transit
carrying passengers must provide separate but equal accommodations for
white and nonwhite passengers. Passengers sitting in the wrong shuttle must
pay a $250 fine or face 30 days in jail.
3. Congress passes a law banning the sale of guns to those who have been
deemed dangerous to themselves or others, involuntarily committed, found
not guilty by reason of insanity, or judged incompetent to stand trial.
4. The state of Texas adopts an amendment to its state constitution recognizing
marriage as between one man and one woman. The amendment also states
that Texas may not create or recognize any legal status identical or similar to
marriage.
Note: Teachers may create other scenarios pertinent to other landmark Supreme Court
cases or current events that raise interesting legal questions. Depending on ability levels
in the classroom, you may choose more complex cases or use examples from the
following links:
Power Grab Game
http://score.rims.k12.ca.us/score_lessons/power_grab_game/
Interpreting the Constitution
http://www.icivics.org/teachers/lesson-plans/interpreting-constitution-what-doesmean
After students debate the scenarios in small groups, lead a class discussion. Keep track of
the rationales and explanations offered by students on the board or on a projector.
Discussion Questions
 Does the Constitution make clear the legality or illegality of the action taken in
each scenario? How so? Explain.
13




Did you encounter vague language that made it difficult to determine if each
action was constitutional? What was this language?
How did you determine the meaning of the text?
Was there disagreement over constitutional meaning? Did the group settle this
disagreement or do members still disagree?
If Supreme Court justices disagree about constitutional meaning, how might that
affect the outcome of the case at hand and future cases?
Step 2: How Constitutional Language and Interpretation Intertwine
Show the Constitutionally Speaking video An Assignment Left to the Future, in which
Justice Souter and New York Times columnist Adam Liptak discuss how the
Constitution’s structure and language, coupled with contemporary cultural norms, lead to
different understandings, interpretations, and applications of our Nation’s founding
document. Then, working with partners or in small groups, have students discuss the
following questions.
Video Discussion Questions: An Assignment Left to the Future
1. According to Justice Souter, in what way does the United States have two
Constitutions? What does he refer to these as and what are the characteristics of
each?
2. Justice Souter stated there is “great range of breadth of language” in the
Constitution. What did he mean? What is the practical effect of that “breadth?”
3. What does Justice Souter mean by the following statement:
These general terms, I think, are best understood as kind
of a listing or a menu of approved values, the application of which
has got to be worked out over time.
4. Does Justice Souter’s understanding expand or restrict the Court’s ability to
interpret the language in the Constitution?
5. What assignment did Justice Souter suggest was left to the future? What does this
mean and what does it suggest about Justice Souter’s perception of the
Constitution?
6. According to Mr. Liptak, how has the Supreme Court helped establish rights not
previously recognized? Why have some justices worried that the Court has acted
too fast in doing so?
7. Why does Justice Souter believe it is important for the Supreme Court to explain
why it makes rights and values work the way they do?
Learning Extension
Break students into small groups and have them review different parts of the
Constitution. For example, one or more groups could examine the Bill of Rights while
other groups reviewed Article I, Section VIII. Groups could also examine important
Amendments and clauses such as the Fourteenth Amendment and the Equal Protection
Clause. While examining the Articles and Amendments, students should address the
following questions:
14
1. Is this Article/Section/Clause/Amendment part of the “Structural Constitution” or
“Liberty” Constitution? How so? Explain.
2. How does this Article /Amendment/Section/Clause relate to Justice Souter’s
remark about the breadth of language within the Constitution?
3. What is the practical value of the Article/Amendment/Section/Clause?
4. Can you argue there are implied powers or rights under this Article/Amendment/
Section/Clause?
Step 3: Differing Approaches to Constitutional Interpretation
Have students read “How is the Constitution Interpreted?” an eight-page chapter on
constitutional interpretation that is written at an advanced reading level and can be
accessed by the link below. Then, working individually or in pairs, have students answer
the related discussion questions.
Ritchie, Donald A. Our Constitution. N.p.: Oxford University Press, 2006. 37-44.
Annenberg Classroom, The Leonore Annenburg Institute for Civics. Web. 9 July
2013.
<http://www.annenbergclassroom.org/Files/Documents/Books/Our%20Constitution/CO
MPLETED_Our%20Constitution.pdf>.
Discussion Questions
 What does “judicial activism” mean? How does this term reflect the attitudes
some have about the role of the Supreme Court?
 What is “constitutional law” and how does it differ from other forms of law?
 Explain why the municipality of New York City, but not Congress, succeeded in
challenging President Clinton’s line item veto.
 How might constitutional interpretations by Congress and the President affect
how they carry out their powers?
 Based on the reading and what you know about United States history,
government, and politics, explain how political parties have played a role in
constitutional interpretation.
 How have the branches of government engaged in constitutional conflict?
 How did President Jackson’s response to the Supreme Court ruling on the Indian
Removal Act highlight the conflict between the Court and the other branches of
government?
 How did slavery, the Civil War, and Andrew Johnson’s actions as president
demonstrate the idea of constitutional conflict?
 How did the Fourteenth Amendment allow for the expansion of congressional and
judicial authority?
 How did the Warren Court shift in its outlook and approach to national problems?
 Explain the difference between “originalists” and those who believe in the idea of
a “living Constitution.” Which approach do you favor, and why?
 Do different philosophies always mean different conclusions?
15
Next, lead a class discussion and check for understanding. Survey students about their
thoughts on constitutional interpretation. For example, who believes in the concept of a
“living Constitution”? Who believes in the “originalist” approach? Conduct a Debate
Carousel (see APPENDIX B) or class discussion and create a list of the pros and cons of
each approach.
As a supplement, consider using the Annenberg Classroom lesson plan, A Conversation
on the Constitution: Judicial Interpretation.
Lesson Guide
http://www.annenbergclassroom.org/Files/Documents/LessonPlans/LessonPlanConversat
ionsJudicialInterpretation.pdf
Video
http://www.annenbergclassroom.org/pages.aspx?name=a-conversation-on-theconstitution-judicial-interpretation&AspxAutoDetectCookieSupport=1
Step 4: The Death Penalty and Gun Control: Cases in Point
To further illustrate differing approaches to constitutional interpretation, discuss and
debate the abolition of the death penalty. Explain to students that in 1791, when the Bill
of Rights was adopted, the death penalty was a widely accepted practice. Pose the
following question: Would you consider it acceptable for the U.S. Supreme Court to
abolish the death if modern society viewed the practice as “cruel and unusual,” or do you
think a constitutional amendment should be required to abolish the death penalty?
Alternatively, discuss and debate gun control measures in the United States. Post the text
of the Second Amendment for all students to see.
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
Lead a discussion on the meaning of the text. The Cornell Legal Information Institute
has two excellent readings on this topic (links below), outlining the “individual rights”
theory and “states’ rights” theory. Discuss these two approaches as a class and conduct a
Debate Carousel exercise (see APPENDFIX B). Then, have students review District of
Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). To elicit further
discussion and debate, analyze the assault weapons ban proposed in 2013 by Sen. Dianne
Feinstein, D-CA. Ask students to consider the constitutionality of such legislation, which
failed to win approval in the Senate.
a. Second Amendment
http://www.law.cornell.edu/wex/second_amendment
b. Bearing Arms
http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd2
16
c. Assault Weapons Ban of 2013
http://thomas.loc.gov/cgi-bin/query/D?c113:2:./temp/~c113gMgtE8
Learning Extension
Provide students with the facts, issues, and arguments involved in one or more Supreme
Court cases that highlight differences in the justices’ approaches to interpreting the
Constitution. Ask students to complete case studies, utilizing the Street Law Case Study
Teaching Strategy referenced below. Then, have groups of seven to nine students decide
the outcome of their cases. Those in the majority should write Majority and/or
Concurring Opinions, while those in the minority should write Dissenting Opinions. You
could modify this activity by assigning a specific interpretation approach to students,
with some advancing the “originalist” view and others espousing an “evolutionist”
approach. This activity would also be suitable as a Moot Court exercise.
Street Law: Case Study Teaching Strategy
http://www.streetlaw.org/en/landmark/teaching_strategies/case_study
Street Law: Moot Court Teaching Strategy
http://www.streetlaw.org/en/landmark/teaching_strategies/moot_court
Short Answer /Essay/Debate Prompts
 Should the language within the Constitution, and its various Articles and
Amendments, narrowly define its meaning and interpretation?
 Should the Constitution be understood to mean what the Founders envisioned
when they wrote it? Should its meaning and/or interpretation change over time?
 Is the amendment process an adequate remedy for issues arising under the
Constitution as society changes?
Summative Assessments

Use the activity from the Learning Extension as a summative assessment for this
section.

Write a position paper in support of one of the approaches to Constitutional
interpretation.

Write a position paper in support of a Majority, Concurring, or Dissenting
Opinion from one of the cases considered.

Write a judicial opinion from an originalist or evolutionist perspective based on
the facts of a case decided by the Supreme Court or on a fictional case provided
by the teacher.
17
Part 4: The First Amendment and Free Speech
The goal of these activities is to familiarize students with the values the First Amendment
seeks to promote, and to consider when and why the government places limitations on the
freedom of speech.
Step 1: What the First Amendment Says
Post or project the text of the First Amendment for the class to see.
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the government for a
redress of grievances.
Ask students to identify the freedoms contained within the First Amendment and keep a
list that is visible to all. As a class, narrow the list down to the following five:
Religion
Assembly
Press
Petition
Speech
Tell students they will be focusing on the freedom of speech. Divide the class into small
groups to either define free speech or answer the question: What does freedom of speech
mean to me? Have each group create separate lists of what actions by citizens they
believe are protected by the First Amendment’s free speech clause, and what actions are
not. Bring the students back together and create a class definition of free speech.
Have students return to their groups to consider: Under what circumstances is it
acceptable for the government to limit your freedom of speech? Reassemble the class to
compare responses. Familiarize your students with the concept of countervailing interests
(see Important Terms, page 69), and create a class list of acceptable limits on speech in
contemporary society.
Discussion Questions
 Was there any disagreement over how freedom of speech should be defined?
 Is there anything that you consider acceptable that someone else does not, or vice
versa? Why do you think those differences exist?
 Do you think that your definition of free speech is the same as your parents? Your
grandparents? Why or why not?
 Why do you think people have different perspectives on free speech? What
factors may affect how a person views free speech? Where did your opinion come
from - in other words, from whom and when did you learn what was considered
free speech?
18

Why do people disagree about when it is acceptable for the government to limit a
person's speech? How has technological advancement made this a more important
question today than it has been in the past?
Learning Extension
Ask students to interview several adults and/or students outside of class and ask them for
their definition of free speech as well as their response to follow up questions 2-4 above.
These responses can add to the students' understanding of the variations of how free
speech is defined and the reasons for those variations.
Step 2: The First Amendment in Practical Terms
Introduce the Constitutionally Speaking video A Play of Constitutional Values, which
introduces free speech and its role within the context of the Constitution. Then, working
with partners or in small groups, have students answer the related questions below and
discuss in small groups or as a class.
Video Discussion Questions: A Play of Constitutional Values
1. How does the right to free association give practical value to the First
Amendment?
2. What is the role, or value, of the First Amendment in terms of the
Constitution?
3. Do you agree with Justice Souter’s assessment that if First Amendment is
limited narrowly it is not going to mean very much?
4. In his dissent in Abrams v. United States (1919), Justice Oliver Wendell
Holmes wrote the following:
But when men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas -that the best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out. That, at any rate, is the theory of our
Constitution.
What does Holmes mean by this and how does it relate to the First Amendment?
5. How might life be different if the First Amendment were absolute?
6. Explain the “play of constitutional values” that Justice Souter mentioned in
the Citizens United case.
Learning Extension
Justice Souter’s comments about Citizens United provides both a glimpse into his
approach to constitutional interpretation and an opportunity to consider “How does the
Constitution keep up with the times?” in terms of the First Amendment. Have students
write responses to one or more of the following prompts:
19
1. How would you define Justice Souter’s approach to constitutional
interpretation?
2. Do Americans today interpret the First Amendment differently than citizens
did in 1791 when the Bill of Rights was ratified?
3. Has the meaning of the First Amendment changed over time or simply the
applicable circumstances and phenomena?
4. Can the exercise of free speech violate the rights of others? How so and at
what point?
5. What constitutional values may justify the restriction of free speech? In other
words, are there times when other constitutional values “trump” liberty and
free speech?
6. How should we go about defining free speech if the Constitution does not?
Step 3: Protected vs. Unprotected Speech
Reiterate to students that because the Constitution does not spell out precisely what
freedom of speech is, its definition has been shaped by the decisions of the Supreme
Court. Review the terms precedent and stare decisis with students (see Important Terms,
page 7).
Then, have students form small groups and review different Supreme Court cases
defining free speech and determining its limitations. Use Street Law’s Case Study
Teaching Strategy, accessible at
http://www.streetlaw.org/en/landmark/teaching_strategies/case_study
Topics to address with students include, but are not limited to:
1. The right to seek information and ideas
2. The right to receive information and ideas
3. The right to impart information and ideas
4. Symbolic speech
5. Conduct
6. Spoken words
7. Written words
8. Obscenity
9. Defamation
10. Fighting words
11. Copyright
12. Expression intended and/or likely to incite lawless activity
13. Threats to national security
14. Expression on school grounds
15. Commercial speech
16. Political speech
Once groups have reviewed their assigned cases, reassign students so that each new
group has an expert on each different case. Experts will teach the other members of their
groups about their cases so that students can create a list of what constitutes protected and
20
unprotected speech. Groups might also create a timeline of the cases noting how the
interpretation of free speech changed over time and how stare decisis and precedent
affect development of the law.
Short Answer/Essay/Debate Prompts
 Look back at the lists you created in the Introductory Activity. How do these lists
compare to the precedents established in the cases?
 How do the cases reflect the idea of a living Constitution? How do the cases
reflect an originalist approach to Constitutional interpretation?
 How has the Court’s view on speech changed over time? Did the Court reverse
any previous decisions? What may have contributed to this change?
 Was the Court trying to strike a balance between different values in any of these
cases? How so? Explain?
 How has the right to free speech conflicted with other liberties guaranteed under
the Constitution? Have these conflicts been resolved? Explain
 How has the right to free speech conflicted with the function of government?
Have these conflicts been resolved? Explain.
Learning Extension
The Right to Freedom of Speech reading referenced below contains eight pages of
background information and is written at an advanced reading level. It is best used to add
detail to students' existing knowledge and help them conceptualize changes in free speech
protections, apparent in the cases they have already read.
Bodenhamer, David J. Our Rights. N.p.: Oxford University Press, 2006. 57-64.
Annenberg Classroom, The Leonore Annenberg Institute for Civics. Web. 9 July
2013.
http://www.annenbergclassroom.org/Files/Documents/Books/Our%20Rights/Ch
apter_6_Our_Rights.pdf
Discussion Questions
 Why is free speech considered one of our most important rights?
 How did the Supreme Court view freedom of speech prior to the 20th century?
 Explain the test established in Schenck v. United States.
 What test was established in Brandenburg v. Ohio? Did this deviate from
previous decisions of the Court?
 How and why does symbolic speech highlight how contentious the right of free
speech remains in our society?
 In your view, how does the First Amendment contribute to our liberty as
Americans?
 Why does the U.S. government permit citizens to express offensive opinions and
engage in often-bitter conflict over ideas?
21
Step 4: Political speech: What, Who and Why
First, ask students to brainstorm what political speech is. Consider what constitutes
political speech, who might engage in it, and why it is so important. Have students
discuss in small groups and report their findings. Post a master list of student responses
to the what, who, and why questions, and refer back to it during the lesson.
Next, focus the students’ attention on the who aspect. Does the First Amendment apply
to everyone? Are there people or groups who may not be protected by the First
Amendment?
- Do nonprofit organizations have free speech rights?
- Do businesses / for profit companies have free speech rights?
- Sole proprietorships?
- Partnerships
- Corporations?
- Wal Mart
- Apple / Mac
- Do unions have free speech rights?
- Can these organizations engage in political speech?
- Can their speech rights be limited in any way?
Adjust the what and who master lists based on student response and input.
Step 5: Limitations Imposed by McCain-Feingold Act
First, pass out summaries of the Bipartisan Campaign Reform Act of 2002, also known as
the McCain-Feingold Act. This law placed new limits on political contributions and
campaign advertising, many of which were invalidated by the Supreme Court’s 2012
decision in Citizens’ United v. Federal Election Commission. To help students grasp the
implications of the 2002 law and the 2012 decision, explain the difference between
“hard” and “soft” money in political campaigns, and define electioneering and other key
terms.
Federal Election Commission: Campaign Finance Law Quick Reference for Reporters
http://www.fec.gov/press/bkgnd/bcra_overview.shtml
Library of Congress: Bill Summary & Status
http://thomas.loc.gov/cgi-bin/bdquery/z?d107:H.R.2356
Next, have students fold a piece of paper into thirds. Label one column Limits of
Individuals, another Limitations on Organizations, and the third Limitations on Money.
Working in groups, have students review the legislation, determine how it limited these
three categories, and answer the discussion questions.
Discussion Questions
 What would compel lawmakers to adopt the Bipartisan Campaign Reform Act of
2002? What might they have been concerned about?
22




Why would nonprofit organizations, businesses, corporations, and unions be
interested in the outcome of elections?
Should the First Amendment protect the free speech rights of corporations and
unions?
Thinking back to the First Amendment case studies, and the list of countervailing
interests, is there support for the provisions within the BCRA?
In your opinion did the BCRA of 2002 violate the First Amendment?
Provide students with a Debate Carousel sheet (see APPENDIX B). Follow the
directions and post one of the following prompts on the board or projector:
Special interests have too much influence over government and politics.
Money buys undue influence in our political system.
Is money the equivalent of speech and/or expression?
After students have reviewed their Debate Carousel sheets, conduct a class discussion
about the results. Ask students to share the most compelling arguments for and against
the prompt and create a master list to refer back to throughout the lesson.
Step 6: Citizens United v. Federal Election Commission (2010)
Hand out the two-page reading from the Bill of Rights Institute lesson on Citizens United
(pages 4-5 in the link below) to familiarize students with how the United States has gone
about limiting the political influence of special interest groups and big business
throughout history.
Background Reading
http://billofrightsinstitute.org/wp-content/uploads/2012/10/Citizens-United-lesson.pdf
In small groups, have students complete a case study following the Street Law format.
Be sure students can describe the facts, understand the issues before the Court,
comprehend the arguments, review the Opinions, and evaluate the outcome. Use a full
text or summary of the case as well as additional background readings and Opinions.
After completing the case study for Citizens United, conduct a class discussion to check
for understanding.
Learning Extension
To further illuminate the relevant facts, issues, arguments, and outcome of Citizens
United – as well as reactions to the ruling – have students read the article on the
SCOTUS blog and/or the videos and article available on the C-SPAN website.
Summary of Decision
http://www.scotusblog.com/2012/06/opinion-recap-citizens-united-solidified/
23
Explanation of Ruling
http://www.c-spanvideo.org/clip/3817900
Reactions to Ruling
http://www.c-spanclassroomdeliberations.org/issues/money-in-politics
Short Answer/Essay/Debate Prompts
 How would you characterize the Supreme Court’s view of the First Amendment
according to the reading?
 What interests or values were Congress and the Supreme Court attempting to
uphold through their actions?
 Is there a conflict of constitutional values at play in any of these cases or
historical events?
 How might an originalist approach Citizens United v. FEC? Someone who
believes in a living or evolving Constitution?
Learning Extension
To illustrate the relevance of the First Amendment and free speech in students’ lives,
review the following landmark cases on the level of constitutional protection afforded to
student speech in public schools: Tinker v. Des Moines, Bethel School District v. Fraser,
Hazelwood v. Kuhlmeier, and Morse v. Frederick (see Relevant Cases, pages 4-5). After
reviewing the cases, have students apply their holdings to a lower court case, such as J.S.
v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002), or provide them with a
fictional case scenario of your own creation.
24
Additional Resources
Judicial Review
A More Perfect Union: The Creation of the U.S. Constitution
Annenberg Classroom’s Best Civics Sites for Teachers
Articles of Confederation
Constitution of New Hampshire (1776)
C-SPAN Classroom: Marbury v. Madison
Exploring Constitutional Conflicts: Judicial Review
Edsitement: How the Court Became Supreme
iCivics: The Judicial Branch
iCivics: Supreme Decision Game
Street Law: Landmark Supreme Court Cases
Yale Law School: The Federalist Papers
Constitutional Interpretation
Annenberg Classroom: A Conversation on the Constitution
iCivics: Interpreting the Constitution: What Does that Mean?
Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom
Teaching the Constitution resources at Annenberg Classroom
The Court and Constitutional Interpretation
Your Bill of Rights videos at Time Magazine
The First Amendment and Free Speech
Annenberg Classroom: Free Speech: Finding the Limits
Bill of Rights Institute: Citizens United v. FEC
25
C-SPAN Classroom: Money in Politics
First Amendment Center: Free Speech Lesson Plans
Freedom of Speech: Bill of Rights Institute
iCivics: You’ve Got Rights
National Constitution Center: Respecting Free speech
Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom
Our Rights, an eBook on civil rights from Annenberg Classroom
The Bill of Rights Institute
U.S. Courts: What Does Free Speech Mean
26
Chapter 2: FEDERALISM
Abstract
The U.S. Constitution created a structure of government in which some powers are held
exclusively at the federal level, some are reserved to the states, and still others are held
concurrently by both the federal and state governments. This system – the product of one
of the many compromises made during the Constitutional Convention of 1787 – was
designed to address the need for a more powerful central government, while at the same
time protecting the right of states to self-governance and of citizens to individual liberty.
As part of Constitutionally Speaking’s inquiry into the question: “How Does the
Constitution Keep Up with the Times?” the materials that follow explore the role of the
U.S. Supreme Court in the evolution of the balance of powers between the federal
government and the states.
Relevant Constitutionally Speaking Videos
A Lesson in Compromise
Speakers:
David H. Souter, U.S. Supreme Court Justice (Retired)
William Chapman, Esq., Shareholder, Orr & Reno
Duration:
4 min 37 sec
Synopsis:
Justice Souter and Attorney Chapman emphasize the critical role of
compromise in the Constitution’s adoption. The representational make-up
of the House and Senate – as well as counting slaves as three-fifths of a
person in state population tallies – are cited as examples. Reference is
made as well to the Articles of Confederation; the well-educated elite who
attended the Constitutional Convention in 1787; and colonial charters as
precedent for a written Constitution.
When Laws Conflict
Speaker:
Michele Martinez Campbell, Associate Professor, Vermont Law School
Duration:
8 min 43 sec
Synopsis:
Professor Martinez Campbell addresses the intersection of states’ rights
and federalism in criminal law, focusing on the 2012 legalization of the
recreational use of marijuana in Colorado and Washington states. Her
discussion also references California’s medical marijuana law, as well as
the U.S. Constitution’s Commerce and Supremacy clauses.
Rights Retained by the People
Speaker:
Calvin R. Massey, Professor, UNH School of Law
Duration:
7 min 34 sec
27
Synopsis:
Professor Massey examines in detail the powers reserved to the states and
the rights reserved to the people by the Ninth and Tenth Amendments, and
delves into the role of the Supreme Court as the proper interpreter of the
federal government’s powers.
A Precious Right
Speaker:
Carol Nackenoff, Professor, Swarthmore College
Duration:
8 min 3 sec
Synopsis:
Professor Nackenoff surveys the 100-year-plus legislative and courtmandated expansion of voting rights, dating from the late 19th century.
She also probes more recent case law to determine whether voting is a
fundamental right protected by the Constitution.
28
Chapter Outline
Learning Objectives
Page 30
Relevant U.S. Supreme Court Cases
Page 31
Important Terms
Pages 32-34
Learning Activities and Assessments
Pages 35-44
Additional Resources
Pages 45-46
29
Learning Objectives
Goal Students will be able to analyze how the interpretation of the U.S.
Constitution over time impacts the balance of power between the federal and state
governments within the United States.
Students will understand that....
 Compromise played a central role in the creation of the Constitution.
 The Constitution created a federal system of government where power is shared
between the federal government and the states.
 The Commerce Clause and the Necessary and Proper Clause can be interpreted to
give Congress broad authority to create national laws.
 The Supreme Court’s interpretation of the Constitution plays a central role in
determining how much power states have to govern themselves.
 Voting rights in the United States are controlled by federal and state laws that
allow for wide variation in the rules and procedures for voting.
 The Supreme Court’s interpretation of the Constitution – specifically the power of
the federal government over the states – changes over time.
Essential Questions
 How is power shared by the federal government and the states under the
Constitution?
 Why did the founders choose a federal system of government for the United
States? What are the positive and negative effects of a federal system?
 What authority does the federal government have under the Commerce Clause
and the Necessary and Proper Clause and how has that power changed over time?
 How are voting rights and regulations affected by the changing balance of power
between the federal government and the states over time?
Students will know...
 Important terms regarding federalism.
 Key facts about the changing interpretation of the power of the federal
government versus the states over time.
 Key Supreme Court cases on constitutional federalism.
 The history, content, and effects of the Voting Rights Act of 1965.
Students will be able to...
 Recognize, define and use federalism vocabulary in context.
 Read, comprehend and analyze the text of the U.S. Constitution.
 Interpret, compare and evaluate Supreme Court analysis of the Constitution over
time.
 Express their learning orally during class discussions and in writing.
 Collaborate successfully with their peers to improve and express their learning.
30
Relevant U.S. Supreme Court Cases
Each case is followed by a link to the full-text majority opinion at Cornell University's Legal
Information Institute as well as a link to a case summary at Oyez.org unless otherwise indicated.
Title (year)
Full Text
Summary
Full Text
Full Text
Summary
Summary
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Full Text
Full Text
Full Text
Full Text***
Summary
Summary
Summary
Summary
Necessary and Proper Clause
McCulloch v. Maryland (1819)*
U.S. v. Comstock (2010)
Commerce Clause
Gibbons v. Ogden (1824)*
Swift v. U.S. (1905)
Schechter Poultry Corp. v. U.S. (1935)
NLRB v. Jones (1937)
Wickard v. Filburn (1942)
U.S. v. Lopez (1995)
U.S. v. Morrison (2000)**
Gonzales v. Raich (2005)**
Affordable Care Act cases (2012)**
Voting
Harper v. Virginia Board of Elections (1966)
Bush v. Gore (2000)
Crawford v. Marion County Election Board (2008)
Shelby County v. Holder (2013)
*Teaching materials – including case summaries and excerpts – are available for
these cases at Landmark Supreme Court Cases of the U.S. Supreme Court.
**Additional case summaries and excerpts are available for these cases in Street
Law Inc.’s Resource Library.
***The full text opinion of the Shelby v. Holder case is available at the Supreme
Court’s website. The Washington Post has an excellent summary of the case and
the arguments on both sides on its website as well.
31
Important Terms
commerce
The sale or exchange of goods and/or services.
Commerce Clause
Article I, Section 8, Clause 3 of the U.S. Constitution,
which grants Congress the power to “regulate commerce
with foreign nations, and among the several states, and with
the Indian tribes.” The commerce power is the most cited
power used by Congress when creating federal law.
concurrent powers
Powers shared by the federal and state governments under
the U.S. constitution.
enumerated powers
Powers explicitly stated in the U.S. Constitution. The
powers explicitly granted to the federal government in the
U.S. Constitution are called the federal government’s
enumerated powers.
Equal Protection Clause
Fourteenth Amendment, Section I, Clause 4 of the U.S.
Constitution, which states that “No State shall…deny to
any person within its jurisdiction the equal protection of the
laws.” The Equal Protection Clause protects one group of
citizens from having a law applied differently to its
members than it is to another group of citizens. When
analyzing whether state laws are constitutional under the
Equal Protection Clause, the Supreme Court looks at the
type of discrimination and what rights are affected. As an
example, the right to vote has been ruled a fundamental
right by the Supreme Court and thus enjoys strict
protection under the Equal Protection Clause. The Supreme
Court ruled in Harper v. Virginia Board of Elections in
1966 that a state poll tax violated the Equal Protection
Clause because conditioning the right to vote on wealth
denied citizens the equal protection of the law.
federalism
A system of government where power is divided between a
national government and smaller regional governments (i.e.
state governments in the United States). In the United
States, the national or federal government has exclusive
power in some areas, the state governments have exclusive
power in some areas, and the two levels of government
share power in other areas. This is called a federal system
of government.
literacy tests
In the context of voting, literacy tests were given to
potential voters to prove their intelligence and thus their
32
worthiness to vote. The tests were popular in the Jim Crow
South as a way to keep uneducated voters, who were
disproportionately black, from voting. Literacy tests were
effectively prohibited by the Voting Rights Act of 1965.
Necessary and Proper
Clause
Article I, Section 8, Clause 17 of the U.S. Constitution,
which grants Congress the power to “make all Laws which
shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in
any Department or Officer thereof.”
poll taxes
In the context of voting, a poll tax is a tax a citizen is
required to pay in order to vote in a political election. Poll
taxes were a popular method of discouraging blacks (who
were disproportionately poor) from voting in southern
elections during the Jim Crow era. Poll taxes were
prohibited in federal elections by the Twenty-Fourth
Amendment to the U.S. Constitution (ratified 1964) and in
state elections by Harper v. Virginia Board of Elections
(1966).
preclearance
The requirement under Section 5 of the Voting Rights Act
of 1965 that states covered by the Act submit any proposed
changes to state voting or election laws to the U.S.
Department of Justice or the U.S. District Court for the
District of Columbia for pre-approval. The requirement was
designed to protect minorities from being denied the right
to vote through changes to state law without a lawsuit
having to be filed after the fact. Examples of changes to
state voting and election laws that are required to be precleared under Section 5 include voter eligibility
requirements, candidate eligibility requirements, and voter
precinct boundaries. Section 4 of the Act, which specified
the formula used to determine what states were covered by
the Act, was recently ruled unconstitutional by the U.S.
Supreme Court in Shelby County v. Holder. Until a new
formula is approved by Congress and the President, the
Section 5 requirement for preclearance can no longer be
enforced.
reserved powers
Powers left to the states under the U.S. Constitution. The
powers not granted to the federal government under the
U.S. Constitution are said to be reserved for the states.
33
suffrage
The right to vote in political elections. Also referred to as
the franchise. Universal suffrage refers to the uninhibited
right to vote for all citizens.
Supremacy Clause
Article VI, Section 2, Clause 1 of the U.S. Constitution,
which states, “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the Supreme Law
of the Land”. This clause makes the Constitution, all
federal laws and all U.S. treaties legally enacted, superior
to any state, county and other local laws within the United
States.
34
Learning Activities & Assessments
Part 1: Introducing the Concept of Compromise and the Constitution
The goal of these activities is to familiarize students with the concept of compromise and
explore the role compromise played in the creation of the U.S. Constitution.
Step 1: What is Compromise?
Students will first complete a Frayer Model for concept formation for the term
compromise. The model should include characteristics, a definition, examples, and nonexamples. Have the students complete the model individually or in pairs first and then
share out to a larger group or the class. Ask the students to reflect on the positive and
negative effects of compromise, using examples from their own lives to enrich the
discussion.
Note: A template of a Frayer Model can be found in the Vocabulary Strategies
section of the NH Social Studies Education Wiki.
Step 2: The Role of Compromise in the Constitution’s Creation
Show the Constitutionally Speaking video A Lesson in Compromise to facilitate your
students’ understanding of the role of compromise in the creation of the U.S.
Constitution.
Video Discussion Questions: A Lesson in Compromise
1. According to Justice Souter, what did James Madison believe was the most
serious issue facing the Constitutional Convention in 1787? Do you agree or
disagree with Justice Souter's assessment? Why?
2. What were some of the compromises made by the delegates at the Constitutional
Convention of 1787? Are there any common themes you can identify?
3. “So compromise matters, it's fundamental to debate, to the way we govern. We've
seen, I think both at the national level and here in New Hampshire, what happens
when people are unwilling to compromise." William Chapman, Esq.,
Shareholder, Orr & Reno
What did Attorney Chapman mean when he stated that compromise is
"fundamental to debate, to the way we govern"? Provide a recent example in
which government officials were unwilling to compromise and describe how the
lack of compromise affected the government and our society.
The readings below are recommended to supplement the material introduced in the video.
Have students focus on the following question while reading: What compromises were
made during the creation of the U.S. Constitution and why were those compromises
necessary?
"The Constitution and the Idea of Compromise" at PBS
35
"A More Perfect Union: The Creation of the U.S. Constitution" at the National
Archives
"The Constitutional Convention" at ThisNation.com
Part 2: Our Constitutional Federal System
The goal of these activities is for students to explore the division of power between the
federal government and the states created by the U.S. Constitution.
Step 1: The Concept of Federalism
Review the general definition of federalism with your students (see Important Terms,
page 32). Explain to students that one of the major compromises that occurred at the
Constitutional Convention was the division of power between the federal and state
governments.
Note: For more information on the different variations of federalism students can
read "What is Federalism" at ThisNation.com. The questions below can be used
with the reading:



What did federalism mean under the Articles of Confederation?
How did the definition change under the Constitution?
How is Constitutional federalism an example of compromise?
Contrast the definitions provided for dual, permissive, and
cooperative federalism. What makes each approach to federalism
different from the other?
Note: Federalist No. 39 (James Madison) is an excellent primary source to use for
a more in-depth and challenging exploration of the idea of a federal system and
Madison’s view of the difference between a national versus a federal government.
Step 2: A Constitutional Division of Power
In this activity students will create a graphic tool that organizes the powers of the federal
government and the state governments under the U.S. Constitution. Students must
explore the text of the Constitution in order to identify and record the source of the
following:
(a) enumerated powers of the national government;
(b) powers reserved to the states
(c) powers shared concurrently by both the national and state governments;
(d) powers denied to the national government; and
(e) powers denied to the states.
36
A simple chart with one column for power and another column for source would be
sufficient (see APPENDIX C), as would a variation of a Venn diagram. Students can
complete the activity individually, in pairs or in small groups. You could assign each
group one or more of the categories (a-e) above or use the jigsaw model within each
group and differentiate the assignment of categories as needed.
Note: There is an excellent summary of the breakdown of federal and state power
at ThisNation.com that can be used to supplement this activity or aid students who
need additional assistance.
Discussion Questions
 When a state passes a law contradicting a federal law, which law has supremacy?
Where in the Constitution is this issue addressed?
 Is there a delegation or restriction of power that surprised you? If so, why?
 Are there powers delegated to the federal government that you think should be
left to the states? If so, why?
 Are there powers reserved to the states that you think should be exercised by the
federal government? If so, why?
 Is a sharing of some powers between the federal and state governments an
effective way to govern? Why or why not?
Step 3: Analyzing the Necessary and Proper Clause and the Commerce Clause
In this activity students will analyze the interpretation of the Necessary and Proper
Clause and/or the Commerce Clause by the U.S. Supreme Court over time in order to
better understand the extent of federal power over the states. Refer to Relevant Cases,
page 31, and provide the full text, a summary, excerpts, or a combination of the three,
depending on the reading abilities of the students. Note: If you are planning to complete
Part 3 with your class do not use the Gonzales v. Raich case as part of this activity.
Format Options
 Students choose two cases to analyze, then report back to the full class or discuss
their findings in small groups that focus on the same or different cases.
 Students are divided into groups that analyze one case together and report their
findings to the full class.
 Students are divided into groups in which each student analyzes a different case.
After completing their analyses, students share their findings with peers who
examined the same case, to confirm what they have learned, then report back to
their specific groups (a jig saw cooperative learning model).
Regardless of the activity format, students should focus on the following for each case
they analyze:
a) The facts of the case, including the federal law or action that is at the center of
this case.
b) The central question of the case? (i.e. “The Supreme Court must decide if…”)
c) The ruling of the Court.
37
d) How the text of the Constitution was interpreted to support the Court’s ruling.
Discussion Questions
 Has the Supreme Court’s interpretation of the Necessary and Proper Clause
changed over time? If so, how? Use evidence from the cases to support your
conclusions.
 Has the Supreme Court’s interpretation of the Commerce Clause changed over
time? If so, how? Use evidence from the cases to support your conclusions.
 Why does the Supreme Court’s interpretation of the Constitution sometimes
change?
 Did you disagree with the Supreme Court in any of the cases? If so, explain what
you think the Court’s decision should have been and why.
 Is the Supreme Court’s interpretation of the Necessary and Proper Clause and/or
the Commerce Clause consistent with the federal system of government that the
framers of the Constitution intended? Why or why not? Use evidence to support
your conclusions.
Part 3: Gonzalez v. Raich and the Extent of the Commerce Power
In Gonzalez v. Raich the U.S. Supreme Court examined whether the Controlled
Substances Act, which among other things prohibited the production of marijuana for
personal consumption, was a constitutional exercise of Congress’s power to regulate
interstate commerce under the Constitution’s Commerce Clause. The goal of these
activities is for students to explore the modern interpretation of the extent of federal
power under the Commerce Clause.
Step 1: Introducing the Topic Using Two Constitutionally Speaking videos
Introduce the topic to your class and show two Constitutionally Speaking videos in this
order: When Laws Conflict and Rights Retained by the People. These two videos provide
an excellent introduction to Congress’s use of the Commerce Power to regulate national
marijuana use, as well as to the powers reserved to the states and the rights reserved to
the people by the Ninth and Tenth Amendments.
Video Discussion Questions: When Laws Conflict
1. What does Professor Martinez Campbell mean when she says that the federal and
state criminal justice systems are “parallel”?
2. What is the difference between a federal and a state crime?
3. What is different about the marijuana legalization laws passed in Colorado and
Washington?
4. Does the Constitution give the federal government broad police power? What part
of the Constitution gives the federal government power to enact criminal laws?
5. What has the Supreme Court already said about the federal government’s power
to prohibit medical marijuana? How did the Court use the Constitution’s
Commerce Clause to justify its decision?
38
6. When a federal law conflicts with a state law, which law is superior? What part of
the Constitution answers this question?
Video Discussion Questions: Rights Retained by the People
1. What were the two main concerns of the framers when writing the Constitution?
2. What “unprecedented” device did the framers use to protect liberty in the
Constitution (before the Bill of Rights)?
3. The following hypothetical was discussed in the video:
Imagine one nation with two states of equal population:
State 1---Urbania---90% of people favor a hunting ban
State 2---Rustica---20% of people favor a hunting ban
If a national hunting ban is passed then 55% of the people in the nation would
be happy. If each state was allowed to decide its own hunting laws (and
Urbania prohibited hunting while Rustica permitted it) then 85% of people in
the nation would be happy.
Given the argument presented in this hypothetical, why do we have national laws
at all? Are state or local laws always the most effective way to ensure happiness
for the greatest number of people? Why or why not?
4. According to Professor Massey, what idea is “at the heart of the rights retained by
the people” in the Ninth Amendment and is “critical to the preservation of
liberty”?
Step 2: Analyzing the Majority Opinion in Gonzalez v. Raich
In this activity students will analyze the facts and Supreme Court’s reasoning in Gonzalez
v. Raich to understand the majority’s interpretation and application of the Commerce
Clause. Using the full text of the case, excerpts, or a case summary (the version produced
by Street Law Inc. is outstanding and is available in website’s Resource Library), have
students in small groups read and identify the following:
1. What federal law is being challenged in this case? How is the federal law being
challenged? In other words, what part of the Constitution is being used to
challenge the legality of the law?
2. What did the Supreme Court rule? What arguments did the Court use to justify its
decision?
3. Did you agree with the Supreme Court’s interpretation of the Commerce Clause
and how it was applied in this case? Why or why not?
4. Based on the opinion in this case, what types of activities would fall outside of the
federal government’s commerce power? Give examples and justify your
selections using evidence from the Court’s analysis in this case.
39
Step 3: Analyzing the Dissents in Gonzalez v. Raich
This exercise uses dissents authored by Justices O’Connor and Thomas, presenting their
arguments for why the production of marijuana for personal use falls outside of the
federal government’s commerce power. First, assign the full-text or excerpts of one
dissent to pairs of students for analysis. Each pair of students should identify the specific
arguments used by the Justice to reach a different conclusion in the case. Second, group
two pairs of students together – one pair that was assigned each dissent – and have them
compare the Justices’ arguments and identify similarities and differences.
Discussion Questions
 Did Justices O’Connor and Thomas agree with the majority on anything? If so,
what?
 What did Justices O’Connor and Thomas agree on in their dissents? What did
they disagree on?
 What did Justices O’Connor and Thomas fear would occur based on the
interpretation of the Commerce Clause given by the majority?
 How did the dissenters use the history of the framers in their arguments? Should
the intent of the framers matter when deciding how to interpret the Constitution
today?
 Who made the best argument – the majority, Justice O’Connor or Justice
Thomas? Use specific evidence from the opinion and dissents to justify your
response.
Alternative Activity to Complete Before Step 2
Complete Part 2 of this guide without assigning Gonzales v. Raich to any students for
analysis. Supply students with the factual background only to Gonzales and have them
use the case precedents they studied in Part 2 to write opinions on how the case should be
decided. Students should use case precedents in their opinions and make clear arguments
as to why the Commerce Power does or does not include the power to prohibit the
production of marijuana for personal use only. Encourage them to incorporate historical
evidence and/or research the intent of the framers as well. Students can formally write
their opinions and then participate in a class debate or mock trial before analyzing the
Supreme Court’s opinion and dissents in Gonzales.
Part 4: Voting Rights and the Constitution
In these activities students will explore the role of the Constitution in determining the
sharing of power over voting rights and election procedures in the United States.
Step 1: The Power to Regulate Voting
First brainstorm as a class what it means to vote and/or have your students complete a
Frayer Model for concept formation for the word vote. Pose this question as part of your
discussion: Why do many people believe that voting is one of the most important rights of
citizens?
40
Show the Constitutionally Speaking video A Precious Right before or after the activity as
an introduction to voting within our federal system. Use the questions below to tease out
the video’s key points:
Video Discussion Questions: A Precious Right
1. Describe how the federal government and states share power over voting and
election laws. What differences are found (or have been found in the past) among
voting and election laws among the states?
2. How did the Voting Rights Act of 1965 improve access to voting for minorities in
the United States?
3. Professor Nackenoff referred to an excerpt from the Supreme Court’s majority
opinion in Harper v. Virginia Board of Elections (1996), written by Justice
William Douglas and reprinted below (citations omitted):
Likewise, the Equal Protection Clause is not shackled to the
political theory of a particular era. In determining what lines are
unconstitutionally discriminatory, we have never been confined to
historic notions of equality, any more than we have restricted due
process to a fixed catalogue of what was at a given time deemed to
be the limits of fundamental rights. Notions of what constitutes
equal treatment for purposes of the Equal Protection Clause do
change. This Court, in 1896, held that laws providing for separate
public facilities for white and Negro citizens did not deprive the
latter of the equal protection and treatment that the Fourteenth
Amendment commands. Seven of the eight Justices then sitting
subscribed to the Court’s opinion, thus joining in expressions of
what constituted unequal and discriminatory treatment that sound
strange to the contemporary ear.
(a) What is Justice Douglas’s central argument?
(b) To what famous 1896 Supreme Court case was Justice Douglas
referring?
(c) Do you agree with Justice Douglas that the interpretation of the
Constitution – including what is considered “unequal and
discriminatory treatment” – can change over time? Why or why
not?
Have students examine the U.S. Constitution and New Hampshire voting regulations to
better understand the connection to federalism and to identify what areas of voting New
Hampshire regulates, and what areas are regulated by the federal government. Assign
some students to review the Constitution and identify powers and/or rules regarding
voting, while others review New Hampshire rules for voting (which can be found on the
New Hampshire Secretary of State’s website titled Voting in New Hampshire). Students
can share what they have learned in pairs, in small groups, or with the class as a whole.
41
Discussion Questions
 What does the Constitution say about voting? What rules regarding voting must
all states follow?
 What parts of the voting process do states have power to control?
 Which government has more power over voting in the United States, the federal
government or the states? Justify your response using evidence from the
Constitution and the New Hampshire Secretary of State’s Voting in New
Hampshire website.
 What are the positive and negative effects of allowing states so much control over
the voting process?
Learning Extension
Have students compare New Hampshire voting regulations with those of one or more
other states in order to analyze differences in state laws and infer how those differences
might affect the voting experiences of citizens.
Step 2: Voting Rights and the U.S. Constitution
In this activity students will examine Supreme Court cases and one federal law to analyze
how the Constitution shapes voting rights in the United States.
First, divide your students into groups of 5, assigning a different topic from the following
list to each of the five members of each group: Voting Rights Act of 1965; Harper v.
Virginia Board of Elections (1966); Bush v. Gore (2000); Crawford v. Marion County
(2008); Shelby County v. Holder (2013).
Use full text, excerpts, or summaries of the Supreme Court cases where appropriate. The
Voting Rights Act of 1965 can be used as a full text document or the Department of
Justice has an excellent summary of the Voting Rights Act – including history and the
effects of the Act – that would be highly useful for this activity.
Next, have students analyze their topic by answering the questions below (where
applicable):
1. How did the case/law change and/or clarify the voting rights of citizens?
2. How did the case/law change and/or clarify the powers of the federal
government?
3. How did the case/law change and/or clarify the powers of state governments?
When the analyses are done, congregate the students by topic so they may review and
confirm their findings. Then, have all students return to their initial group to share their
insights (this is a jig saw cooperative learning model).
Discussion Questions
 What significant changes to voting rights in the United States have occurred in the
last 50 years?
 How has the Constitution shaped voting rights in the United States?
42




What are the challenges facing states today when it comes to regulating the voting
process? What are the challenges facing the federal government?
Do state governments have more or less power to regulate voting today than they
did 50 years ago?
Does the federal government have more or less power to regulate voting today
than they did 50 years ago?
Is voting in the United States today more or less fair than it was 50 years ago? 10
years ago?
Short Answer/Essay/Debate Prompts
 How and why did the Supreme Court’s interpretation of the extent of federal
government authority change over time?
 Does the federal government have too much power under the Constitution? Why
or why not?
 Do current federal laws invade the rights reserved to the states under the
Constitution? Why or why not?
 Has the U.S. Supreme Court expanded federal authority beyond what was
intended by the framers of the Constitution? Why or why not?
 Is the federal system of government created by the Constitution the most efficient
way to govern the United States of America? Why or why not?
 Has the federal system of government created by the Constitution kept up with the
times? Why or why not?
Summative Assessments

Create a graphic tool that illustrates how the division of power in our
constitutional federal system has been clarified and/or changed over time by the
Supreme Court and/or federal law. Include an explanation of how the division of
power was clarified or changed by each case and/or law. Students could complete
additional research to add depth to the material covered in class.

Prepare a position paper on and debate the question: Has the Supreme Court’s
interpretation of the balance of power between the federal and state governments
kept up with the times? Additional research could be required to add depth to the
position papers and debate.

Compare two or more Supreme Court cases on the extent of federal government
authority, specifically describing the facts and holding of each case, the reasoning
used by the Court, and how the extent of federal power was clarified and/or
changed as a result of the later case.

Write a letter to a federal government official that explains why you agree or
disagree with the extent of the power exercised by the federal government over
the states over time or recently in one specific case. The letter should include
43
evidence based in the Constitution and its interpretation by the U.S. Supreme
Court that supports your conclusion(s).

Research the Affordable Care Act and argue for or against its passage as a valid
exercise of the authority granted to the federal government by the Constitution.
Use Supreme Court cases, historical documents and other evidence to support
your reasoning. Analyze the Supreme Court’s determination of the
constitutionality of the Affordable Care Act in 2013 and compare and contrast the
Court’s holding and reasoning in those cases to your own arguments.
44
Additional Resources
Federalism
A More Perfect Union: The Creation of the U.S. Constitution
Annenberg Classroom’s Best Civics Sites for Teachers
Articles of Confederation
Constitution of New Hampshire (1776)
Constitution USA: Federalism (PBS)
Executive Order 13132 - "Federalism"
Federalist No. 44: Restrictions on the Authority of the Several States (Madison)
Federalist No. 46: The Influence of the State and Federal Governments Compared
(Madison)
iCivics game Power Play
National Constitution Center's blog posts on federalism
The New York Times Room for Debate series: State Politics vs the Federal Government
Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom
Our Constitution, an iBook with commentary from Annenberg Classroom
The Pursuit of Justice, an eBook on powerful Supreme Court cases from Annenberg
Classroom
Presidential Memorandum Regarding Preemption
Teaching the Constitution resources at Annenberg Classroom
Your Bill of Rights videos at Time Magazine
Marijuana laws and policy
Colorado marijuana legalization law (full text)
How safe is recreational marijuana?
45
Medical marijuana debate at ProCon.org
Medical marijuana laws by state
New Hampshire medical marijuana law (HB 573)
Office of National Drug Control Policy’s Marijuana Resource Center
Recent Gallup poll on marijuana use and legalization
Washington marijuana legalization law (full text)
Voting Rights
Full Text of the Voting Rights Act of 1965 at the Avalon Project (Yale)
The Right to Vote in Annenberg’s eBook Our Rights (pdf)
The Voting Rights Act of 1965 at Our Documents
46
Chapter 3: DEFINING EQUALITY
Abstract
One of the most litigated parts of the U.S. Constitution, the Fourteenth Amendment has
been at the forefront of America’s search for equality. The meaning of this obscure
constitutional value has evolved over time as a result of changing cultural conceptions
and legal interpretations of the Constitution's Amendments. As part of Constitutionally
Speaking’s inquiry into the question – “How Does the Constitution Keep Up with the
Times?” – the materials that follow explore how the constitutional value of equality has
evolved throughout American history.
Relevant Constitutionally Speaking Videos
Choice of Principles
Speakers: David H. Souter, U.S. Supreme Court Justice (Retired)
William Chapman, Esq., Shareholder, Orr & Reno
Patrick Shin, Assistant Dean & Professor, Suffolk University Law School
Length: 9 min 06 sec
Theme: Justice Souter, Attorney Chapman, and Professor Shin contrast the societal
norms of 1896 when Plessy v. Ferguson was decided with those of 1954 when
the Brown v. Board of Education ruling came down. The “separate but equal”
doctrine is placed in its historical context, coming as it did 58 years before the
Warren Court declared segregated schools unconstitutional.
The Great Dissenter
Speaker: Patrick Shin, Assistant Dean & Professor, Suffolk University Law School
Length: 4 min 00sec
Theme:
Professor Shin examines Justice John Marshall Harlan’s Plessy v. Ferguson
dissent, which provides the historical basis for the idea of a “color-blind”
Constitution. Replete with racist content, Harlan’s dissent nonetheless
expresses an aspirational view of the Constitution as conferring equality
on all citizens regardless of skin color or economic class.
In the Interest of Equality
Speaker: Patrick Shin, Assistant Dean & Professor, Suffolk University Law School
Length:
6 min 15 sec
Theme: Professor Shin explores the tension between diversity and equality as the two
values relate to affirmative action in higher education. In the absence of true
racial equality, Shin considers the necessity for allowing consideration of race
in university admissions decisions.
47
Chapter Outline
Learning Objectives
Page 49
Relevant U.S. Supreme Court Cases
Page 50
Important Terms
Pages 51-52
Learning Activities and Assessments
Pages 53-64
Additional Resources
Page 65
48
Learning Objectives
Goal Students will be able to analyze how the constitutional value of equality has
changed over time.
Students will understand that....
 The U.S. Supreme Court is the supreme authority over the meaning of the U.S.
Constitution and has changed its interpretation of the Constitution over time.
 While the concept of equality was included in the Declaration of Independence,
its meaning has changed over time.
 The Fourteenth Amendment prohibits states from denying any person within its
jurisdiction the equal protection of the laws.
 Decisions of the Supreme Court have a profound impact on everyday lives of
American citizens.
 Changing interpretations of constitutional values allow the Nation’s founding
document to keep up with the times.
Essential Questions
 How has the principle of equality changed over time?
 Why was the Fourteenth Amendment adopted?
 Is preferential treatment consistent with the constitutional value of equality?
 How far have we gone as a country in achieving equality for all?
 How far do we still have to go as a country to achieve equality for all?
 How does the Constitution keep up with the times?
Students will know...
 Important terms regarding equality and the Fourteenth Amendment.
 Key facts about the Fourteenth Amendment and how the Supreme Court has
interpreted it over time.
 Key Supreme Court cases on equality and the Fourteenth Amendment.
Students will be able to...
 Recognize, define, and use vocabulary in context.
 Research Supreme Court cases and recent news on equality and the Fourteenth
Amendment to add depth to their understanding of its development over time.
 Express their learning orally during class discussions and in writing.
 Collaborate successfully with their peers to improve and express their learning.
49
Relevant U.S. Supreme Court Cases
Each case is followed by a link to the full-text opinion at Cornell University's Legal
Information Institute and a case summary at Oyez.org.
Title (year)
Full Text
Summary
Full Text
Full Text
Full Text
Full Text
Full Text
Summary
Summary
Summary
Summary
Summary
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Equal Treatment
Dred Scott v. Sanford (1857)*
Plessy v. Ferguson (1896)*
Brown v. Board of Education (1954)*
Hollingsworth v. Perry (2013)
United States v. Windsor (2013)
Affirmative Action
Regents of the University of California v. Bakke (1978)
United Steel Workers of America v. Weber (1979)
Fullilove v. Klutznick (1980)
Memphis Fire Department v. Stotts (1984)
Wygant v. Jackson Board of Education (1986)
U.S. v. Paradise (1987)
Johnson v. Transportation Agency (1987)
City of Richmond v. Croson (1989)
Adarand Constructors v. Pena (1995)
Grutter v. Bollinger (2003)
Gratz v. Bollinger (2003)
Fisher v. University of Texas** (2013)
*Teaching materials – including case summaries and excerpts – are available for these
cases at Landmark Supreme Court Cases of the U.S. Supreme Court.
**The full text opinions of the Fisher v. University of Texas are available at the Supreme
Court’s website but is not yet available through Cornell University’s Legal Information
Institute. The New York Times has an excellent summary the case and the arguments on
both sides on its website as well.
50
Important Terms
affirmative action
A set of procedures designed to eliminate discrimination
between applicants, remedy the results of such prior
discrimination, and prevent such discrimination in the
future. Applicants may be seeking admission to an
educational program or looking for professional
employment.
discrimination
Different treatment for similarly situated parties, especially
when no legitimate reason appears to exist. An employer
who rejects all male applicants and hires the first female
applicant with the same qualifications might be
discriminating on the basis of gender. The more repugnant
the discrimination, the more likely it is to be found
unlawful under the U.S. Constitution or some other law.
due process
The Constitution states only one command twice. The Fifth
Amendment says to the federal government that no one
shall be "deprived of life, liberty or property without due
process of law." The Fourteenth Amendment, ratified in
1868, uses the same eleven words, called the Due Process
Clause, to describe a legal obligation of all states. These
words have as their central promise an assurance that all
levels of American government must operate within the law
("legality") and provide fair procedures.
Equal Protection
Clause
The Equal Protection Clause of the 14th amendment of
the U.S. Constitution prohibits states from denying any
person within its jurisdiction the equal protection of the
laws. See U.S. Const. amend. XIV. In other words, the laws
of a state must treat an individual in the same manner as
others in similar conditions and circumstances.
intermediate scrutiny
Intermediate scrutiny is a test courts sometimes use to
determine if a law is constitutional. To pass intermediate
scrutiny, the challenged law must further an important
government interest by means substantially related to that
interest. Intermediate scrutiny is less rigorous than strict
scrutiny, but more rigorous than rational basis review. It is
used in Equal Protection challenges to gender
classifications, as well as in some First Amendment cases.
procedural due process
Constitutional principle that a citizen must be given notice
and an opportunity to be heard before the state or federal
51
government acts in such a way that denies life, liberty, or
property interest.
rational basis
Rational basis review is the most lenient form of judicial
review, sometimes used to determine a law's
constitutionality. To pass rational basis review, the
challenged law must be rationally related to a legitimate
government interest. It is generally used when in cases
where no fundamental rights or suspect classifications are
at issue.
stare decisis
Latin for “to stand by things decided.” Stare decisis is
essentially the doctrine of precedent. Courts cite stare
decisis when an issue has previously been brought to the
court and a ruling already issued. Generally, courts will
adhere to the previous ruling, though this is not universally
true.
strict scrutiny
Strict scrutiny is a form of judicial review that courts use to
determine the constitutionality of certain laws. To pass
strict scrutiny, the legislature must have passed the law to
further a "compelling governmental interest," and must
have narrowly tailored the law to achieve that interest. For
a court to apply strict scrutiny, the legislature must either
have significantly abridged a fundamental right with the
law's enactment or have passed a law that involves a
suspect classification. Suspect classifications have come to
include race, national origin, religion, and alienage.
substantive due process
A doctrine holding that the Constitution’s 5th and 14th
Amendments require that all governmental intrusions into
fundamental rights and liberties be fair and reasonable and
in furtherance of a legitimate governmental interest. During
the middle of the 20th century, the U.S. Supreme Court
used substantive due process to give added force to the 4th,
5th and 6th Amendments by constraining certain actions by
law enforcement, prosecutors, and judges.
52
Learning Activities & Assessments
Part 1: Equality and the Constitution
In these activities students will construct a definition of equality; trace the evolution of
equality over the course of American history; and consider how the constitutional value
of equality is applied in practical terms.
Step 1: The Declaration of Independence
Write or project the following text from the Declaration of Independence on the board or
screen:
We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness.
Ask students to write down whether they think this phrase applied to everyone at the time
the Declaration was written. Who did the phrase apply to and who was not covered?
Have students share their responses with partners or in small groups for several minutes,
then lead a class discussion. Create a list of the students’ responses that is visible to the
class.
Step 2: Defining Equality
Ask students to define the word equality. Rather than writing their responses down on
paper, have students record their answers on a random or designated spot on the
classroom whiteboard, chalkboard, or chart paper. When all of the responses have been
posted, have students walk around and analyze their classmates’ responses. Develop a
chart to note similarities, differences, and surprises. Have students return to their seats
and lead a class discussion about the results.
Discussion Questions
 Does the word equality mean different things to different people? Why?
 Does treating people equally mean treating them the same?
 Is equality a desirable outcome for society? Why or why not? Explain.
 Is equality an achievable outcome for society? Why or why not? Explain?
 Is equality an inherent right of all people?
 Does context change the meaning of equality?
o Racial equality?
o Equal opportunity?
o Equal access?
o Equal ability?
o Historical time period?
o Does everybody deserve to be treated equally? Is inequality ever
justified?
53
Use these results and discussion to create a class definition. When the class has finalized
its definition, write it on the board, a large piece of paper posted on the wall, or another
location that will remain visible for the duration of the lesson. Use the class definition
throughout the lesson and allow it to change as students discuss the idea of equality and
their thinking evolves.
Step 3: The Road to Equality
Ask students to fold a piece of paper in half so they can create two lists. Entitle one list
‘Inequality in the Past,’ and the other list ‘Inequality Today’. Ask students to list the
inequalities people have faced throughout American history and the inequalities people
endure today. Have students check their lists against the class definition of equality and
adjust the definition if necessary. Ask probing questions to encourage deeper thinking
among students.
Using the lists created by students, create a master list on the board or projector for
students to see. Discuss and debate the examples given and determine if each is an
example of past or present inequality, adjusting the lists as necessary.
Discussion Questions
 Based on the lists, has there been noticeable progress on any issues of inequality?
What accounts for this progress?
 Based on the lists, has there been any noticeable lack of progress on any issues of
inequality? What accounts for this lack of progress?
 Have there been any attempts at rectifying these inequalities? With what results?
 Does government play any role in trying to eradicate these inequalities?
 What can society do, if anything, to eradicate these inequalities?
As a wrap up exercise, define and discuss strict scrutiny, intermediate scrutiny, and
rational basis review (see Important Terms, pages 51, 52). Then, provide each student
with a Debate Carousel sheet (see APPENDIX B). Have students respond to the prompt
below:
Is it ever acceptable for the government, individuals, or institutions to
discriminate against individuals or groups of people?
After completing the Debate Carousel, lead a class discussion.
Discussion Questions
 Why might people disagree about discrimination and/or equality?
 Do you think other generations would respond the same way you did?
 Why might historical/political context affect responses to this question?
 Where do individual concepts of equality come from? Where did you learn about
equality and from whom?
 Do you think your response to this question would vary depending on the context
of the discrimination?
54
Learning Extension
Conduct a Constitutional Convention Role Play exercise. First, divide students into five
groups to research what life was like for communities of people at the time of the
Constitutional Convention. They might also consider how the social, political, and
economic issues facing their communities influenced their views on the proposed
adoption of a new Constitution. The groups could include:
1.
2.
3.
4.
5.
Workers (e.g. shoemaker from N.H.)
Southern Planters (e.g. tobacco planter)
Farmers (e.g. small farmer from Massachusetts)
Enslaved African American (e.g. slave from Virginia tobacco plantation)
Banker / Merchant (e.g. banker from New York)
Let students know they are going to have to resolve some issues at a Constitutional
Convention based on their research. Issues to be addressed could include:
1.
2.
3.
4.
5.
6.
Should slavery be legal in any states?
Should the slave trade be legal?
Should Northerners be forced to return runaway slaves to their owners?
Can states allow debts to be “paid in kind”?
Should bonds issued during the Revolutionary War be paid back?
Who should be allowed to vote in general elections? Should states be able to
exclude certain classes or groups of people from voting?
Open the Convention. Have each group present its positions on the issues under
consideration, then vote on each question. After members of the Convention have made
their decisions, compare their results to what actually happened by reviewing the United
States Constitution.
Discussion Questions
 Were all groups treated equally at the Constitutional Convention?
 Should we scrutinize the Constitutional Convention with a modern or historical
lens?
 Did the Constitution at the time of its adoption provide a means through which
underrepresented groups could achieve equality?
Part 2: The Fourteenth Amendment & Equality
These activities will help students articulate the meaning of the Fourteenth Amendment;
examine how over time the Supreme Court has changed its interpretation of equality and
the Fourteenth Amendment; and evaluate the outcome of landmark cases and the
evolving meaning of equality.
55
Step 1: The Impact of the Civil War on American Values
Ask students to consider how American values have changed since the Civil War. Have
them fold a piece of paper in half to create two columns. Title one column “Causes of
the Civil War”, and the other “Outcomes of the Civil War.” Divide students into small
groups to discuss what they believe were the causes and outcomes of the Civil War, then
report their findings to the class. Keep a master list on the board or projector for
reference during a class discussion.
Discussion Questions
 How did the Civil War affect American values?
 How might these changes in values influence the United States Constitution?
 Can you think of specific examples of how the Constitution/ laws/society changed
after the Civil War?
 How did the Civil War affect the idea of equality?
Step 2: Equality and Constitutional Text
Explain to students that while equality is a deeply regarded constitutional and cultural
belief, it is not mentioned in the United States Constitution. The closest the text comes to
addressing the concept of equality is the Equal Protection Clause of the Fourteenth
Amendment, ratified in 1868. Section I of the Fourteenth Amendment reads as follows:
“All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”
To better understand this text, have students rewrite the language from Section I of the
Fourteenth Amendment in their own words. Tell students the point is to capture the
meaning of the text, not to engage in a word-for-word translation. When students have
completed their interpretations, divide them into groups to consider what their classmates
have come up with. Alternatively, small groups could discuss and debate the meaning of
the text and develop a group interpretation, then report to the class verbally or by writing
it somewhere that is visible to all. The class can use the various interpretations to
develop a class understanding of the text.
Step 3: The Evolving Meaning of the Fourteenth Amendment
First, have students read The Fourteenth Amendment in its entirety as well as the four
pages of background information (link below), which is written at an advanced reading
level.
Ritchie, Donal A. Our Constitution. N.p.: Oxford University Press, 2006. 158162. Annenberg Classroom, The Leonore Annenberg Institute for Civics. Web.
9 July 2013.
56
http://www.annenbergclassroom.org/Files/Documents/Books/Our%20Constitutio
n/Fourteenth%20Amendment_Our%20Constitution.pdf
Based on the reading and using the questions that follow, lead a class discussion or
ask students to write out their responses.
Discussion Questions
 What was the original intent of the Fourteenth Amendment?
 Why was the Fourteenth Amendment necessary if the Declaration of
Independence stated all men were created equal?
 What are the main components of the Fourteenth Amendment?
 What is the difference between due process and equal protection? What are the
two types of due process and what is the difference between them?
 How does the Fourteenth Amendment limit the power of the states?
 How has the Fourteenth Amendment affected the composition of Congress?
 How has Congress used the last section of the Fourteenth Amendment to enforce
its provisions?
 Explain the concept of incorporation and how it has been carried out.
 Using the timelines from the reading, explain how interpretations of equality and
the Fourteenth Amendment have changed over time.
Step 4: Supreme Court Interpretations of Equality
Have students review Dred Scott v. Sanford, Plessy v. Ferguson, and Brown v. Board of
Education (links provided below). These Supreme Court cases deal specifically with
equality and the Fourteenth Amendment, and illustrate the evolving nature of both. Use
Street Law’s Case Study Teaching Strategy while reviewing the cases.
http://www.streetlaw.org/en/landmark/teaching_strategies/case_study
Dred Scott v. Sanford (1857)
http://www.streetlaw.org/en/landmark/cases/dred_scott_v_sandford
Plessy v. Ferguson (1896)
http://www.streetlaw.org/en/landmark/cases/plessy_v_ferguson
Brown v. Board of Education (1954)
http://www.streetlaw.org/en/landmark/cases/brown_v_board_of_education
Discussion Questions
 How did the Court’s interpretation of equality change over time?
 What about the facts mattered to the Court in each of these cases? Did what they
considered facts and what the facts meant change over time?
 How did the Court’s interpretation of the Fourteenth Amendment change over
time?
57


What factors led the Court to rule the way it did in each of these cases? Do you
think Americans’ concept of equality played a role?
How might society be different today if “separate but equal” had remained
constitutional?
Step 5: Choice of Principles Video Presentation
Show the Constitutionally Speaking video Choice of Principles to facilitate your
students’ understanding of the Supreme Court’s changing interpretation of the Fourteenth
Amendment and the constitutional value of equality. Students will need time after the
video ends to complete the questions. They may benefit from working with a partner or
in a small group. Discuss the answers in small groups and/or as a class.
Video Discussion Questions: Choice of Principles
1. How did the Court’s view of equality change between Plessy v. Ferguson and
Brown v. Board of Education?
2. Why does Justice Souter believe it is unrealistic and unfair to suggest Plessy
was wrong the day it was decided?
3. Why is it significant that the Court not only considered the objective, physical,
measurable facts in Brown v. Board of Education, but also what those facts
meant?
4. How can “what we see” affect how the Supreme Court interprets the meaning
of the Constitution and its specific provisions?
5. Why did the Warren Court consider separate but equal educational facilities
inherently unequal in Brown v. Board of Education?
6. How does our capacity to determine the meaning of facts change over time?
Step 6: An Impassioned Dissent
Ask students to reread Plessy v. Ferguson. If they have not done so already, have them
read the Dissenting Opinion authored by Justice John Marshall Harlan. Key excerpts can
be found at the Street Law website (link below). After students have read Harlan’s
dissent, have a class discussion to check for understanding.
http://www.streetlaw.org/en/Page/434/Key_Excerpts_from_the_Dissenting_Opinion
Discussion Questions
 How can dissenting opinions affect the outcome of future cases?
 How does this illustrate the concept of the Constitution keeping up with the
times?
 Is there text in the Brown decision that reflects Harlan’s sentiments in Plessy?
 How, if at all, does this relate to stare decisis, the Court’s deference to previous
rulings, and judicial review?
Next, introduce the Constitutionally Speaking video The Great Dissenter, in which
Professor Shin introduces students to the social context in which Justice Harlan wrote his
58
dissent. After viewing, have students discuss the questions below, either in small groups
or as a class.
Video Discussion Questions: The Great Dissenter
1. Explain the competing concepts of color blindness espoused by Justice Harlan
in his dissent in Plessy v. Ferguson (1896).
2. Are Justice Harlan’s words regarding race in America encouraging or
discouraging given the historical and political context of the case?
3. How do Justice Harlan’s words illustrate Justice David Souter’s assertion that
our understanding of the Constitution changes over time?
4. Did Justice Harlan’s Dissenting Opinion have a significant impact on the
outcome of Brown v. Board of Education (1954)?
Learning Extension
Break students into small groups and have them review different cases related to equality
and the Fourteenth Amendment. Each group could review one or multiple cases and the
cases could address different topics (e.g. Due Process, Equal Protection, Suspect
Classifications). Particular attention should be paid to Hollingsworth v. Perry, the
challenge to California’s ban on same-sex marriage that was decided by the U.S.
Supreme Court in June 2013, and United States v. Windsor, the U.S. Supreme Court’s
ruling on the constitutionality of the federal Defense of Marriage Act. Use the Case
Study Teaching Strategy from Street Law when reviewing cases.
http://www.streetlaw.org/en/landmark/teaching_strategies/case_study
Once students have mastered the material, reassign the groups so that each new group has
one student expert on each case. Have students explain their cases and record outcomes
for a master list of chronologically ordered developments in Fourteenth Amendment
rulings. Individually or by group, have students diagram the changes that have occurred
over time.
Discussion Questions
 How has the Supreme Court’s interpretation of equality and the Fourteenth
Amendment changed over time?
 What text of the Fourteenth Amendment did the Court cite in their decisions?
Why did the Court cite these sections? Did the interpretation of these sections
change over time?
 Did you agree with the Court’s view in each case? With which rulings did you
disagree? Why? With which decisions did you agree? Why?
 Was there a “play of constitutional values” taking place in any of these cases? In
other words, did the Court have to strike a balance between equality and another
value such as liberty? Which principle prevailed and why?
 Did shifts in the attitudes of American society played a role in how the Supreme
Court ruled in any of these cases?
59
Short Answer/Essay/Debate Prompts
 How has the constitutional interpretation of equality changed over time?
 Why has the constitutional interpretation of equality changed over time?
 Does the Supreme Court’s current view of equality and the Fourteenth
Amendment reflect the views of 21st century Americans? Does it adequately
protect equality? Why or why not?
 Do your views of the Fourteenth Amendment and equality mesh with the
Supreme Court’s view?
Summative Assessments

Conduct a class debate or have students create position papers on the following
question: Has the Supreme Court’s interpretation of equality kept up with the
times? This could be a research project with students presenting their papers or
taking part in a formal debate.

Create a timeline illustrating the evolution of equality throughout the course of
American history. Include specific historical events, court cases, figures, and
explanations about how the view/interpretation of equality changed at each
juncture. This could be done as a long-term project broken into chunks.

Conduct a Moot Court related to a case not already reviewed by the students. The
case could be historical or from a lower court, but should be related to equality
and the Fourteenth Amendment.

Compare two or more cases related to equality and the Fourteenth Amendment
using the Case Study Teaching Strategy. After reviewing the cases, students
could explain how the interpretation of equality has changed over time.

Research the Civil Rights Act of 1964. What were the key components of the
legislation and why were they included? How does the Civil Rights act relate to
the Supreme Court cases reviewed in class, and how does it relate to a change in
the views towards equality and Fourteenth Amendment?

Research Hollingsworth v. Perry. How does this case relate to the issues of
equality and the Fourteenth Amendment? Is it a violation of the Fourteenth
Amendment for states to prohibit same sex marriage?
Part 3: Equality and Equal Treatment
These activities will introduce students to the history of affirmative action and the tension
between the constitutional values of equality and equal treatment.
Step 1: Introductory Activity: Defining Affirmative Action
First, ask students to write their own definitions of affirmative action on a random or
designated spot on the classroom whiteboard, chalkboard, or chart paper. After everyone
60
has finished, have students walk around and analyze their classmates’ responses. Create
a chart to note similarities, differences, and surprises. Have students return to their seats
and compare their definitions with the definition in Important Terms (see page 51) and
adjust accordingly. Discuss examples of affirmative action so students better understand
the practice.
Step 2: In the Interest of Equality Video Presentation
Introduce the Constitutionally Speaking video In the Interest of Equality, which explores
the tension between the constitutional values of equality and equal treatment in the
affirmative action context. Pause the video at the 1:07 mark and have students complete
a Debate Carousel exercise (see APPENDIX B) using the following prompt:
Is it consistent with the constitutional value of equality to give some people a
preference in order to make a particular community more diverse?
After students have reviewed their completed Debate Carousel sheets, conduct a class
discussion about the results. What were the most compelling arguments?
Resume the video at the 1:07 mark. After the viewing, have students discuss its key
points in small groups or as a class.
Video Discussion Questions: In the Interest of Equality
1. Is it in conflict with the constitutional value of equality to give underrepresented populations a “boost” in order to achieve diversity?
2. What is affirmative action and what is its purpose or goal?
3. Why did the Supreme Court find affirmative action within higher education
consistent with the constitutional value of equality?
4. Does diversity serve the constitutional value of equality?
5. Is affirmative justifiable outside of higher education?
Step 3: Executive & Legislative Affirmative Action Initiatives
Tell students they are going to explore affirmative action and anti-discrimination
practices through the use of primary sources. Set up stations with one document per
station and have students fill out a primary source analysis sheet for each. Use the
APPARTS method (see APPENDIX A) when completing the primary source analysis.
Students can then use the primary source analysis sheets to answer the follow up
questions. The documents are as follows:
Executive Order 10925
http://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html
Executive Order 11246
http://www.dol.gov/ofccp/regs/compliance/ca_11246.htm
Civil Rights Act of 1964
http://www.archives.gov/education/lessons/civil-rights-act/
61
Voting Rights Act of 1965
http://www.ourdocuments.gov/doc.php?flash=true&doc=100
Title IX of The Education Amendments of 1972
http://www.justice.gov/crt/about/cor/coord/titleixstat.php
Individually or in groups, have students address the questions below using the primary
source documents and analysis sheets. Discuss the responses as a class and keep track of
significant excerpts and text from the documents. Use an overhead or projector to point
out this language to students and have them highlight or write down these passages.
Discussion Questions
 What was the intent of these Executive Orders and Acts of Congress?
 How does each Executive Order and Act represent changing views on equality
and how society should go about achieving it?
 Do these Executive Orders and Acts appeal to the values of the Fourteenth
Amendment? If so, cite specific sections or clauses.
 In your view, have Americans’ views of equality changed to the point where these
Executive Orders and Acts are unnecessary?
 How does affirmative action differ from diversity?
Step 4: Supreme Court Rulings on Affirmative Action
To facilitate student exploration of how the Supreme Court has weighed in on affirmative
action, select cases from those listed under Affirmative Action (page 50) – reserving
Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v. University of Texas at Austin for
later in the lesson. Using Street Law’s Case Study Teaching Strategy, have students
work in small groups to complete case studies.
http://www.streetlaw.org/en/landmark/teaching_strategies/case_study
Once students have mastered the material, reassign the groups so that each new group has
one student expert on each case. Have students explain their cases and record outcomes
for a master list of chronologically ordered developments in affirmative action rulings.
Individually or in groups, have students diagram the changes that have occurred over
time.
Next, have students review Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), and
Fisher v. University of Texas at Austin (2013).
Discussion Questions
 How has the Supreme Court’s interpretation of equality and affirmative action
changed over time?
 What different circumstances did the Court consider in each case?
62





Has the Court historically viewed affirmative action as absolute or permissible
only under certain circumstances?
Do you disagree with the Court’s decision in any of the cases? Which ones and
why?
Do you agree with the Court’s decision in any of these cases? Which ones and
why?
What did the Court decide in Grutter and Gratz? What did it rule in Fisher and
what are its implications for university admissions policies in the future?
Is discrimination/sexism /racism still an issue that needs to be addressed by
Congress, the Court, and the various states?
Short Answer/Essay/Debate Prompts:
 Has your opinion toward the question from the Debate Carousel exercise
changed? If so why? If not, what affirmed their position?
 Do you agree with the Supreme Court’s pre-Fisher ruling that affirmative action,
in the context of higher education, is permissible?
 Did the Court reach its decision in a similar fashion in Brown v. Board of
Education? Was it necessary to look beyond the “measurable facts” and consider
what those facts meant?
 Is affirmative action permissible in any context other than higher education?
 Does affirmative action conflict with or serve the constitutional value of equality?
 Is it consistent with the constitutional value of equality to give some people a
preference in order to make a particular community more diverse?
Summative Assessments

Create position papers on or debate the following question: Does affirmative
action conflict with or serve the constitutional value of equality?

Conduct a Moot Court related to an affirmative action or equality case not already
reviewed by the students. The case could be historical or from a lower court.

Create a graphic tool that illustrates the evolution of equality over time. Include
dates, case names where possible, and descriptions of how equality changed at
each point. Students could undertake additional research to add depth to the
material covered in class.

Compare two or more Supreme Court cases on equality, specifically describing
the facts and holding of each case; the reasoning used by the Court; and how the
understanding of equality as a right changed as a result of the later case.

Write a letter to a federal government official that explains why you agree or
disagree with the Supreme Court’s current interpretation of equality and ask the
official to take a specific action in support of or to challenge existing case law.
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Additional Resources
Your Bill of Rights (Time magazine online)
11 short videos explaining the history and meaning of each Amendment in the Bill of Rights.
Equality
Annenburg Classroom: A Conversation on the Constitution-The 14th Amendment
Best Civics Sites for Teachers at Annenberg Classroom
Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom
Our Rights, an eBook on civil rights from Annenberg Classroom
Teaching the Constitution resources at Annenberg Classroom
American Bar Association Lesson Plans
Affirmative Action
American Civil Liberties Union: Affirmative Action
United States Department of Labor: Hiring-Affirmative Action
Miller Center: National Discussion and Debate Series- The Future of Affirmative
Action
Cornell Legal Information Institute: Affirmative Action
Bill of Rights Institute: Affirmative Action and the Constitution
New York Times: Times Topics- Affirmative Action
American Bar Association: What’s Next for Affirmative Action
64
Chapter 4: PRIVACY and
The FOURTH AMENDMENT
Abstract
The right of privacy is not explicitly stated in the U.S. Constitution. Rather, the Supreme
Court has ruled over time that privacy is implicitly protected by numerous constitutional
amendments. Changing cultural conceptions, technological advancements, and Supreme
Court rulings have played a role in the evolution of this right, which is sometimes
implicated when the government exercises its police power. Limitations on how far the
government can go in conducting “search” fall within the Fourth Amendment. As part of
Constitutionally Speaking’s inquiry, “How Does the Constitution Keep Up with the
Times?" the materials that follow explore changes in the constitutional right of privacy
and what constitutes a legal search and seizure.
Relevant Constitutionally Speaking Videos
Reasonable Expectations of Privacy
Speaker:
Professor Jessica Silbey, Suffolk University Law
Length:
6 min 39 sec
Synopsis:
Professor Silbey discusses the three areas of privacy that are afforded
varying degrees of constitutional protection: bodily, spatial, and
informational. Each raises thorny issues, from the right to refuse medical
treatment, to the legitimate use of electronic surveillance in and around a
person’s home, to what reasonable expectation of privacy an individual
has when disclosing information online.
Your House is Your Castle
Speaker:
The Honorable James Duggan, New Hampshire Supreme Court (Retired)
8 min 19 sec
Length:
Synopsis:
Justice Duggan traces the evolution of the Fourth Amendment definition
of “search.” From microphones attached to phone booths to GPS devices
attached to cars, advances in technology have provided new investigative
tools that potentially conflict with the individual’s right to be “secure in
their persons, houses, papers and effects against unreasonable search and
seizure …”
65
Chapter Outline
Learning Objectives
Page 67
Relevant U.S. Supreme Court Cases
Page 68
Important Terms
Page 69-70
Learning Activities and Assessments
Pages 71-81
Additional Resources
Page 82
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Learning Objectives
Goal Students will be able to analyze how the constitutional right of privacy and
the definition of search and seizure have evolved over time.
Students will understand that....
 The U.S. Supreme Court is the supreme authority over the meaning of the U.S.
Constitution and can change its interpretation of the Constitution over time.
 The U.S. Supreme Court has recognized the right of privacy as an implicit right
contained within the Bill of Rights.
 While a general right of privacy has been recognized since colonial times, the
meaning of the right of privacy has changed over time.
 Technological advancements have caused the Supreme Court to reevaluate the
meaning of a search under the Fourth Amendment.
 Changing interpretations of the Constitution allow it to keep up with the times.
Essential Questions
 Why is the Supreme Court permitted to change its interpretation of the U.S.
Constitution?
 What is the difference between an explicit and an implicit legal right?
 How and why has the meaning of the right of privacy changed over time?
 Why has the Supreme Court periodically reevaluated the meaning of a search
under the Fourth Amendment?
 How does the Constitution keep up with the times?
Students will know...
 Important terms regarding the right of privacy and searches under the Fourth
Amendment.
 Key facts about the changing interpretation of the right of privacy and more
specifically the Fourth Amendment.
 Key Supreme Court cases on the right of privacy and more specifically on the
Fourth Amendment.
Students will be able to...
 Recognize, define, and use right of privacy and Fourth Amendment vocabulary in
context.
 Research Supreme Court cases and recent news on the right of privacy and the
Fourth Amendment to add depth to their understanding of its development over
time.
 Express their learning orally during class discussions and in writing.
 Collaborate successfully with their peers to improve and express their learning.
67
Relevant Supreme Court Cases
Each case is followed by a link to the full-text majority opinion at Cornell University's Legal
Information Institute as well as a link to a case summary at Oyez.org unless otherwise indicated.
Title (year)
Full Text
Summary
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Full Text
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Summary
Full Text
Full Text*
Full Text
Full Text
Full Text
Full Text
Full Text
Summary
Right of Privacy in General
Meyer v. Nebraska (1923)
Olmstead v. United States (1928)
Griswold v. Connecticut (1965)
Katz v. United States (1967)
Loving v. Virginia (1967)
Stanley v. Georgia (1969)
Roe v. Wade (1972)
Moore v. East Cleveland (1977)
Bowers v. Hardwick (1986)
Cruzan v. Missouri (1990)
Planned Parenthood v. Casey (1992)
Washington v. Glucksberg (1997)
Lawrence v. Texas (2003)
Fourth Amendment
Olmstead v. United States (1928)
Silverman v United States (1961)
Katz v. United States (1967)
United States v. Knotts (1982)
United States v. Karo (1984)
Kyllo v. United States (2001)**
United States v. Jones (2012) **
Summary
Summary
Summary
Summary
Summary
*Full text majority opinions located at Justia.com’s U.S. Supreme Court Center.
**Additional case summaries and excerpts are available for these cases in Street
Law Inc.’s Resource Library.
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Important Terms
affidavit
A legal document that contains a written declaration of
facts. Government officials often submit affidavits when
seeking search warrants, as proof that there is probable
cause to believe that evidence of a crime exists.
countervailing interest
An interest that counterbalances, counteracts or offsets
another interest. For example, while the First Amendment
appears to protect the act of yelling fire in a crowded movie
theater when there is no fire, the government has a
countervailing interest in protecting public safety by
prohibiting false statements that put people in immediate
danger. Protecting public safety is the countervailing
interest to protecting free speech.
effects
As used in the Fourth Amendment, effects means private
property in general.
explicit right
A right created by direct, specific statements.
implicit right
A right created not by direct, specific statements, but by
language that implies or indirectly suggests it exists.
privacy, private
Free from public attention, knowledge, and/or
observation.
probable cause
In the case of a search warrant, probable cause is the
Fourth Amendment requirement that there is a reasonable
basis for believing that evidence of the crime is present in
the place to be searched.
trespass
Knowingly violating another person's property rights
without permission. This includes such actions as
physically moving onto another person's land or into
another person's house or car without permission, as well as
placing an object on or inside another's person's property
without permission.
warrant
A legal order given by a judge authorizing and/or ordering
a government official to do something. A search warrant
authorizes a government official to search a specific
location and seize specific property. In order to get a
warrant the government must describe the place to be
searched and the property to be seized as well as explain
69
why there is probable cause that the property will be there
and can be legally seized.
wiretapping
Secretly monitoring an electronic conversation between
two or more people (i.e. telephone or Internet).
70
Learning Activities & Assessments
Part 1: The Right of Privacy and the U.S. Constitution
In these activities students will explore the meaning of privacy and the development of
the constitutional right of privacy over time.
Step 1: Introductory Activity: Defining Privacy
In this activity students will define and explore the concept of privacy, types of privacy,
and the concept of countervailing interests.
Have students define the term privacy (or private) on a sheet of paper, or answer this
question: What do we mean when we say something is private? Encourage students to
investigate the word in the dictionary or use online resources. Have students share their
responses with a partner or in a small group setting for several minutes, then lead a class
discussion in order to create a class definition for the term privacy. Alternatively you
could ask each small group to discuss and create a group definition to present to the class.
When it appears the class has settled on a definition, write the definition on the board, on
a large piece of paper to post on the wall, or another location that will remain visible for
the duration of the lesson. Then ask students to make lists of things in their lives they
consider private (general descriptions are encouraged, i.e. my locker combination, my text
messages, my diary, my bedroom, etc…). Create one master list of private things from the
students’ compilations, and display it alongside the class definition of privacy. Discuss
whether the definition needs to be amended based on the lists developed, allowing for
change as the students’ thinking about privacy evolves.
Ask students to group the items on the master list into categories that reflect similarities;
i.e., private information, private places, etc. Theses categories can be called types of
privacy.
Familiarize students with the concept of countervailing interests (see Important Terms,
page 70). In small groups, have students consider the following question: Under what
circumstances is it acceptable for the government to invade your privacy? Discuss the
group responses as a class and create a list of the potential countervailing interests when
dealing with privacy issues.
Discussion Questions
 Was there any disagreement among students in the class over how privacy should
be defined? What were the disagreements about? Were the disagreements
resolved during the discussion or do students still disagree?
 Is there anything that you consider private that someone else does not? Is there
anything that someone else considered private that you do not? Why do you think
those differences exist?
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
Do you think that your definition of privacy is the same as your parents? Your
grandparents? Why or why not?
Why do you think people have different perspectives on what they consider
private? What factors may affect how a person views privacy? Where did your
opinion on privacy come from - in other words, from whom and when did you
learn what was considered private?
Why do people disagree about when it is acceptable for the government to invade
a person's privacy? How has technological advancement made this a more
important question today than it has been in the past?
Learning Extension
Ask students to interview several adults and/or students outside of class and ask them for
their definition of privacy as well as their response to follow up questions 2-4 above.
These responses can add to the students' understanding of the variations in how privacy is
defined and the reasons for those variations.
Step 2: Constitutionally Speaking Video: Reasonable Expectations of Privacy
Show the Constitutionally Speaking video Reasonable Expectations of Privacy to
introduce students to the different types of privacy acknowledged and/or debated in the
United States today. Students will need time after the video ends to complete the
questions and may benefit from working with a partner or in a small group. Discuss the
answers in small groups and/or as a class. Use the questions below to further evaluate the
class's definition and types of privacy.
Video Discussion Questions: Reasonable Expectations of Privacy
1. According to Professor Silbey, some people believe that privacy was the "impetus
behind the Bill of Rights." Impetus can be defined as the force that causes
something to occur. Based on what you know about American history and the Bill
of Rights, do you agree or disagree with her statement? Why?
2. Reread the quote that was referenced in the video:
Instantaneous photographs and newspaper enterprises have invaded the
sacred precincts of private and domestic life, and numerous mechanical
devices threaten to make good the prediction that 'what is whispered in the
closet shall be proclaimed from the house-tops'. On Privacy. Louis
Brandeis and Samuel Warren. 4 Harvard Law Review (1890).
In your opinion, has the prediction made by Brandeis and Warren come true?
Does the combination of technology and the news media threaten to destroy the
idea of privacy as we know it? Why or why not?
3. Three types of privacy are defined in the video. Identify and give examples of
each type of privacy.
4. Professor Silbey ended her lecture with the following statement:
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...our reasonable expectations are evolving with the times and privacy is
measured in part by what we do and what we expect.
a) How are "our reasonable expectations [of privacy]...evolving with the times"?
Describe a few examples in your response.
b) Explain what you think Professor Silbey meant when she said "...privacy is
measured in part by what we do and what we expect."
Step 3: The Changing Nature of the Right of Privacy
In this activity students will identify language in the Bill of Rights that implicitly
acknowledges the existence of a right of privacy and analyze how the right of privacy has
changed over time.
Review with your students the difference between the terms explicit right and implicit
right (See Important Terms, page 70). Explain to students that while the right of privacy
may be a constitutional right recognized by the courts, nowhere does the U.S.
Constitution explicitly state that this right exists.
Have students review the Bill of Rights to identify clauses that indicate the existence of a
right of privacy. Ask students to record the Amendment number, its text, as well as a
short explanation as to why they feel the right of privacy is implicit in the text. (It may be
helpful to first analyze a particular Amendment with the class as an example). Review
and discuss student responses in small groups or as a class. Have students add other
students' suggestions to their own records if they agree.
Divide the class into small groups. Pass out a different Supreme Court case on privacy to
each group (full case or excerpt; one case or multiple different cases). Have each group
read through the text of each case and identify the Amendment(s) relevant to the case and
what was held to be private by the Court.
Example: Griswold v. CT (1965) - The Supreme Court uses the First, Third,
Fourth, Fifth, and Ninth Amendments to hold that a right of privacy exists and it applies
to marital relations (no state can prohibit a married couple from receiving counseling in
contraception).
Once students have mastered the material, reassign group members so that each new
group has one student who is an expert on each case. Have each student/expert teach the
rest of the group about the case so that all students can create a master list of the
information on each case in chronological order. Then, either individually or by group,
students should create a diagram of the evolution of what the Supreme Court has held to
fall within the right to privacy.
Discussion Questions
 Do you believe that the Constitution should be interpreted based only on what is
explicitly stated within it? Or, should the courts be permitted to conclude that – in
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

addition to the explicit statements – there are implicit understandings that are a
part of the Constitution?
Were the Amendments the class identified as implicitly acknowledging the
existence of a right of privacy the same ones used by the Supreme Court?
Explain.
Did the Supreme Court emphasize certain Amendments more than others in these
right of privacy cases? If so, why do you think that is?
What types of privacy that are important to you were not recognized by the cases
we reviewed as a class?
How has the Supreme Court's view on privacy changed over time? Are there
specific events in American history and/or cultural changes that you believe may
have contributed to the Court's decisions? Explain.
Learning Extension: Privacy Reading and Questions
The Privacy reading contains eight pages of background information on the development
of the right of privacy. It is written at an advanced reading level, and requires familiarity
with the Bill of Rights. It is best used to deepen students' existing knowledge so they can
conceptualize the chronological changes in the right of privacy apparent in the cases they
have already read.
Learning Extension: Informational Privacy & NSA Surveillance
Revelations of government surveillance of Americans' Internet and telephone data have
sparked controversy over the extent of constitutional protection of informational privacy.
This activity is useful for additional exploration into data privacy: what information the
government collects, and how it goes about it.
Pose the following questions to frame your students’ inquiry into the topic: When you
surf the Internet do you consider your browsing history private? What about the words
you type into a search bar when searching the Internet through providers like Google?
Ask students to read (or research and find) one or more articles about the National
Security Agency’s (NSA) PRISM program. In small groups or as a class create a diagram
that shows how the Executive Branch acquires information through two alternative
pathways: (1) obtaining a warrant via the Foreign Intelligence Surveillance Court; and (2)
without obtaining a warrant through the PRISM program.
Article on NSA's PRISM program from The Guardian
Article on NSA's PRISM program from the Washington Post
Privacy Policies: Google / Microsoft / Yahoo! / Twitter / Facebook
Have students research and compare at least two privacy policies from major Internet
companies such as Google, Microsoft, Yahoo!, Twitter, or Facebook. Focus on the
circumstances under which the companies share with other people, companies, and/or the
government the information collected while their services are being used.
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Discussion Questions
 From the government's perspective, what is the countervailing interest that
sometimes outweighs informational privacy? In other words, why does the
government believe the PRISM program is necessary?
 Is the warrant procedure through the Foreign Intelligence Surveillance Court
sufficient to meet the government's needs or is the PRISM program a necessity in
today's technologically advanced world?
 Have you ever read the privacy policies of any Internet or telephone company you
have used? Why or why not?
 Based on the privacy policies you compared, does one company protect your
information privacy more than another? Were you surprised at how strong or
weak the protections were? Why? Has reading the policies made you reconsider
how you use these services or if you are going to use them at all? Why or why
not?
 If you knew that none of the information you entered into or accessed from the
Internet would remain private for the rest of your life (whether via computer or
cell phone), would you still use the Internet? Why or why not?
 Does the Constitution protect you from this type of government surveillance?
Why or why not? Use the established case law to support your conclusion.
Part 2: Privacy and the Fourth Amendment
In these activities students will explore the text of the Fourth Amendment and the impact
of technological advancement on the Supreme Court’s interpretation of what constitutes a
search under the Constitution.
Step 1: Introductory Activity on the Evolution of Technology
In this activity students will identify technological differences between colonial times and
the present day that impact their ideas of privacy and the government's ability to search.
Each student should divide a piece of paper into two sections. Section 1 should be filled
with things that people consider private today that either did not exist or were not
considered private during colonial times (students may use the list of things they
considered private created during Part I to help). For example, students should recognize
that text messages, while they may be considered private today, did not exist in colonial
times.
Section 2 should be filled with a list of search techniques - including types of technology
- available to help the government search for evidence today that did not exist in colonial
times. For example, monitoring phone conversations (wiretapping) is search technology
available today that was not available in colonial times.
Discussion Questions
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

What are the differences between what was considered private in colonial times
and what is considered private today? Why do those differences exist?
What are the differences between the search technology available to the
government in colonial times and the search technology available today? What
major technological innovations have improved (or hindered) the government's
ability to search for evidence?
How would your privacy be affected today if the Constitution only protected
things considered private in colonial times?
How would the government's ability to search be affected today if the
Constitution only permitted the use of the search technology available in colonial
times?
Step 2: Introduction to the Fourth Amendment
In this activity students will analyze the meaning of and learn relevant terms contained
within the text of the Fourth Amendment.
First, display the text of the Fourth Amendment and read through it with your class.
Students should write down or be provided with a copy of the full text. Divide the
amendment into sections as indicated below and have students explore how they would
interpret the meaning of each section (the bolded words are important words for students
to attempt to define themselves).
The right of the people to be secure in their persons, houses, papers, and
effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Next, students should create a diagram that illustrates the warrant procedure.
The following are useful resources on the meaning of the Fourth Amendment:
What does the Fourth Amendment mean? at USCourts.gov.
The Right to Protection Against Illegal Search and Seizure at the
Annenberg Classroom (.pdf).
Discussion Questions
 What types of privacy does the Fourth Amendment explicitly protect? What types
of privacy do you think are implicitly protected? Why?
 What do you think is meant by the term unreasonable? When does a search
become unreasonable?
 Does the warrant requirement adequately protect your privacy from unreasonable
government searches? Why or why not?
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Are there times when the government should not have to obtain a warrant to
invade your privacy? Why or why not? If so, what countervailing interest(s)
outweighs the extra privacy protection provided by the warrant procedure?
Step 3: The Changing Interpretation of the Fourth Amendment over Time
In this activity students will be analyze how and why the meaning of the Fourth
Amendment has changed over time. Two formats for conducting this exercise are
included below.
Format 1: First, show the Constitutionally Speaking video Your House is Your Castle as a
brief introduction to the changing nature of a search under the Fourth Amendment.
Video Discussion Questions: Your House is Your Castle
1. What was the legal definition of a search under the Fourth Amendment from
the 1930s through the 1950s?
2. What was the new standard established by the Supreme Court in Katz v. U.S.
(1967) for deciding if a search had occurred?
3. Provide examples of types of legal and illegal searches under the standard
established in Katz v. U.S. (1967).
4. Describe the facts of U.S. v. Jones. What government action did Jones
challenge as an unconstitutional search?
5. What was unexpected about the Supreme Court’s reasoning in U.S. v. Jones?
6. Read the following excerpt from Justice Alito’s concurrence to the majority
opinion. Do you agree that tracking a person’s public movements for 28
straight days is a violation of our reasonable expectations of privacy? Why or
why not?
In the pre-computer age, the greatest protections of privacy were neither
constitutional nor statutory, but practical. Traditional surveillance for any
extended period of time was difficult and costly and therefore rarely
undertaken. The surveillance at issue in this case—constant monitoring of
the location of a vehicle for four weeks—would have required a large
team of agents, multiple vehicles, and perhaps aerial assistance. Only an
investigation of unusual importance could have justified such an
expenditure of law enforcement resources. Devices like the one used in the
present case, however, make long-term monitoring relatively easy and
cheap. In circumstances involving dramatic technological change, the best
solution to privacy concerns may be legislative. A legislative body is well
situated to gauge changing public attitudes, to draw detailed lines, and to
balance privacy and public safety in a comprehensive way.
To date, however, Congress and most States have not enacted statutes
regulating the use of GPS tracking technology for law enforcement
purposes. The best that we can do in this case is to apply existing Fourth
Amendment doctrine and to ask whether the use of GPS tracking in a
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particular case involved a degree of intrusion that a reasonable person
would not have anticipated.
Under this approach, relatively short-term monitoring of a person’s
movements on public streets accords with expectations of privacy that our
society has recognized as reasonable. But the use of longer term GPS
monitoring in investigations of most offenses impinges on expectations of
privacy. For such offenses, society’s expectation has been that law
enforcement agents and others would not—and indeed, in the main, simply
could not—secretly monitor and catalogue every single movement of an
individual’s car for a very long period. In this case, for four weeks, law
enforcement agents tracked every movement that respondent made in the
vehicle he was driving. We need not identify with precision the point at
which the tracking of this vehicle became a search, for the line was surely
crossed before the 4-week mark. Other cases may present more difficult
questions. But where uncertainty exists with respect to whether a certain
period of GPS surveillance is long enough to constitute a Fourth
Amendment search, the police may always seek a warrant. We also need
not consider whether prolonged GPS monitoring in the context of
investigations involving extraordinary offenses would similarly intrude on
a constitutionally protected sphere of privacy. In such cases, long-term
tracking might have been mounted using previously available techniques.
Next, have students analyze significant Supreme Court cases that deal with Fourth
Amendment issues (see Relevant Cases, page 68). This activity can be completed
using independent learning/research, small group work, class discussion, jig saw, or
combinations of these structures. The goal is to have students answer the following
questions about each case.
a) What are the facts of the case?
b) What is the Court's holding in the case?
c) What was the Court's reasoning? What was the standard the Court used to
decide the case? Be sure to explain how the Court defines a search and
how the Court defines what is private under the Fourth Amendment for
each case.
At a minimum, students should analyze the Olmstead and Katz cases in order to
understand the evolving nature of the Supreme Court’s interpretation of the Fourth
Amendment.
Format 2: This alternative structure allows independent analysis of the facts in the
Supreme Court case United States v. Jones. Students will analyze the facts, formulate a
ruling based on case precedent, and explain their reasoning.
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For this exercise, stop the Your House is Your Castle video at 4:14 – before Justice
Duggan introduces the United States v. Jones case. Have students complete their
analyses of Fourth Amendment cases but do not include the Jones case in their analyses.
After students have analyzed and shared their learning on the Fourth Amendment cases
prior to Jones, have them write a chronological history of places they have been in the
past two weeks. Ask them to include the names and/or addresses of the locations they
visited (i.e. school, 15 South Main Street, etc...) as well as how long they were at each
location. Instruct them not to write their names on the paper or share their lists with
anyone. If you are comfortable you can write your own 2-week history somewhere that is
visible to all students. When the students are done, ask if they would feel comfortable
sharing the information with friends. Other students they do not know well or at all?
Teachers? Parents? Police officers? College Admissions officers? Would they feel
differently if their lists included information from only one day? Thirty days? One year?
An extension of this activity is to collect the lists of those students who feel
comfortable sharing them. Mix the lists up, distribute them randomly among the
students, and have students guess the author and/or draw conclusions about what
the person is like based on where they have been over the past 2 weeks. If no
students volunteer to share their lists – but you are comfortable sharing yours –
ask students to draw conclusions about you based on your movements.
Now, pass out a copy of the facts of the case in United States v. Jones. Independently or
in groups, have students issue rulings based on the Fourth Amendment and explain their
reasoning using case precedent if possible. Make sure students decide: (1) if what the
government did constituted a search; and (2) if Jones had a reasonable expectation of
privacy for his public movements in his car over 28 days.
When all students have had an opportunity to explain their rulings, divide them into
smaller groups for brief discussions and follow up with a class discussion or debate.
Show the remainder of the video Your House is Your Castle. Then pass out a copy of the
Court's opinion in the Jones case (full text or excerpts) and have students identify,
analyze and compare the Court's reasoning to their own.
Discussion Questions
 What disagreements emerged in your groups or class over how to rule on this
case? Why did those disagreements occur?
 How did the Supreme Court rule in United States v. Jones? Did the government's
actions constitute a search? Did Jones have a reasonable expectation of privacy
over his public movements in his car for 28 days? What standard did the Court
apply in deciding the case?
 Do you think tracking Jones's public movements for 28 days is reasonable under
the Fourth Amendment? Why or why not?
 In the Jones case, did the Court abandon the reasonable expectation of privacy
standard created in Katz? Explain.
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Why did the Court conclude that the search in the Jones case was fundamentally
different from the search used in the cases of U.S. v. Knotts and U.S. v. Karo?
How was your ruling in United States v. Jones similar to and/or different from the
Supreme Court's ruling?
Read Justice Sotomayor's concurrence in the Jones case. Why does Justice
Sotomayor believe that the reasonable expectation of privacy standard is
sufficient to decide the case? What are Justice Sotomayor's concerns about recent
technological advancements? In what way did Justice Sotomayor accurately
foresee issues that have arisen recently?
Short Answer/Essay/Debate Prompts
 How and why has the constitutional right of privacy changed over time?
 How and why has the interpretation of the Fourth Amendment changed over
time?
 Does the Supreme Court's current interpretation of the constitutional right of
privacy accurately reflect what the average American considers private? Why or
why not?
 Does the Supreme Court's current interpretation of the Fourth Amendment
adequately protect your privacy? Why or why not?
 Is the Supreme Court's current interpretation of the constitutional right of privacy
consistent with your own views? Why or why not?
 In his dissent in the Supreme Court case of Olmstead v. U.S. (1928), Justice
Brandeis made the following statement about the right of privacy:
The makers of our Constitution understood the need to secure conditions
favorable to the pursuit of happiness, and the protections guaranteed by
this are much broader in scope, and include the right to life and an
inviolate personality - the right to be left alone - the most comprehensive
of rights and the right most valued by civilized men. The principle
underlying the Fourth and Fifth Amendments is protection against
invasions of the sanctities of a man's home and privacies of life. This is a
recognition of the significance of man's spiritual nature, his feelings and
his intellect.

Does Justice Brandeis's explanation of the meaning of the right of privacy match
the Supreme Court's more recent interpretation of the right of privacy? Why or
why not?
How has the constitutional right of privacy kept up with the times?
Summative Assessments

Create a graphic tool that illustrates the evolution of the right of privacy over
time. Include dates, case names where possible, and descriptions of how the right
of privacy changed at each point. Students could complete additional research to
add depth to the material covered in class.
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
Prepare position papers for and engage in a debate over the question: Has the
Supreme Court's interpretation of the constitutional right of privacy kept up with
the times? Additional research could be required to add depth to the papers and
debate.

Compare two or more Supreme Court cases on the right of privacy, specifically
describing the facts and holding of each case, the reasoning used by the Court,
and how the right of privacy changed as a result of the later case.

Write a letter to a federal government official that explains why you agree or
disagree with the Supreme Court's current interpretation of the right of privacy
and ask the official to take a specific action in support of or to challenge the
current case law.
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Additional Resources
Abortion, Privacy, and Values in Conflict: Roe v. Wade (1973) in Annenberg’s eBook
Our Rights (pdf)
Best Civics Sites for Teachers at Annenberg Classroom
Finding a Right To Privacy: Griswold v. Connecticut (1965) in Annenberg’s eBook The
Pursuit of Justice (pdf)
Lesson Plan on Privacy from Deliberating in a Democracy
Lesson Plans on the Constitution (including privacy and federalism) from the American
Bar Association
National Constitution Center’s Privacy blog
Our Constitution, an eBook on the U.S. Constitution from Annenberg Classroom
Our Rights, an eBook on civil rights from Annenberg Classroom
Privacy at Cornell University Law School’s Legal Information Institute
Privacy Rights at Justia.com
Privacy video from the PBS series Constitution USA
The Pursuit of Justice, an eBook on Supreme Court cases from Annenberg Classroom
The Right to Privacy at Exploring Constitutional Law
The Right to Privacy full-text article by Samuel Warren and Louis Brandeis for Harvard
Law Review (1890)
Street Law course lessons (including privacy) at the University of Washington School of
Law
Teaching the Constitution resources at Annenberg Classroom
Your Bill of Rights videos at Time magazine
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APPARTS Template
AUTHOR
Who created the source?
What do you known about
the author? What is the
author’s point of view
PLACE & TIME
Where and when was the
source produced? How
might this affect the meaning
of the source?
PRIOR KNOWLEDGE
Beyond information about
the author and the context of
its creation, what do you
know that would help you
further understand the
primary source?
AUDIENCE
For whom was the source
created and how might this
affect the reliability of the
source?
REASON
Why was this source
produced at the time it was
produced?
THE MAIN IDEA
What main point is the
source trying to convey?
What is the central message
of the document
SIGNIFICANCE
Why is this source
important? What inferences
can you draw from this
document? Ask yourself,
“So what?” What should a
student of history or politics
take away from the analysis
of this document
Debate Team Carousel
Create a prompt for students to respond to in box #.1 Pass papers to the right and complete box
#2. Pass to the right and complete box #3. Pass to the right and complete box #4. Return to the
original owner. Limit response times to 2-3 minutes.
1. Give your opinion and explain your
rationale.
Record your opinion and explain your reason for
it.
2. Add a supporting argument.
Read your classmate’s response. In this box, add
another reason that would support your
classmate’s response.
3. Add an opposing argument.
In this box, record a reason that might be used to
argue against what is written in boxes #1 and #2.
4. Add your “two cents.”
Read what is written in the three boxes. Add your
opinion and your reason for it in this box.
Enumerated
federal powers
Source
Powers
reserved to
states
A Federal System of Government
Source
Concurrent
powers
Source
Powers denied
to federal
government
Source
Powers denied
to states
Source