PUBLISHED BY
LAW WISE SEPTEMBER 2017 • ISSUE 1
Coordinators:
on. G. Joseph Pierron Jr., Chair, Law-Related Education Committee H Anne Woods, Public Services Director, Nicolas Shump, Law Wise Editor & Patti Van Slyke, Journal Editor
Greetings from the Kansas Bar Association (KBA). Welcome to this edition of Law Wise, the first of the 2017-2018 school year.
IN THIS ISSUE The Story of the Constitution........................... 1 Terrific Technology for Teachers....................... 4 Civic Engagement............................................ 5 iCivics:............................................................ 5 Mock Trial....................................................... 6 Lesson Plans: Lesson Plan 1: The Articles vs. the Constitution, a Comparative Analysis Grades 9-12................................................. 7 Lesson Plan 2: The United States of ? Creating Your Own Government and Constitution Grades 7-12............................................. 7, 8
Calendar of Events September 17
US Constitution Day
September 17-23 Celebrate Freedom Week
The Story of the Constitution Before the Constitution
A
fter breaking away from England and the tyranny of King George III, the founders feared replacing one monarch and potential tyrant with another. After going through several drafts including one written by Benjamin Franklin, a draft written by John Dickinson of Pennsylvania became the basis for the document submitted to Congress in 1776 after the Declaration of Independence. After a number of revisions Congress submitted the Articles to the states in November of 1777.
By 1779, all the states except Maryland had approved the document. Maryland resisted because of some territorial claims to western territory stretching to the Mississippi River. Thomas Jefferson brokered an agreement resolving this issue of various colonial charters to the western territory. The Articles were ratified and took effect in March of 1781.
Life under the Articles of Confederation There were still unresolved issues and controversies regarding the Articles and the balance of power between the national government and the member states. However, with the U.S. still at war with England, many of these issues remained unresolved. Some of the major issues included taxation, slavery, and the sovereignty of the states. www.ksbar.org/lawwise
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Here are some of the main features of the Articles of Confederation: • Congress could request, but not mandate taxes from the states • No system of federal courts existed • Congress did not have the power to regulate trade or interstate commerce • No provision for a chief executive or President • Unanimous vote required to amend the Articles • A single legislative body • Every state had one representative in the legislature regardless of size • No federal army, states would contribute their own troops • States retained their sovereignty • Legislation required approval of nine of the thirteen states for passage Knowing the type of government and government institutions today, it might seem odd to see such a vastly different form of government. By the conclusion of the Revolutionary War, problems with the Articles and the type of government they created led the American leaders to call for a convention to amend the Articles of Confederation in 1787.
Revision or Replacement Realizing the problems and limitations imposed on the federal government by the Articles of Confederation, James Madison, Alexander Hamilton and George Washington spearheaded the movement to gather the states to address the Articles of Confederation. Several other states followed Virginia’s lead: New Jersey, Pennsylvania, North Carolina, Delaware, and Georgia. In February of 1787, Congress approved the idea of a “Grand Convention” of the states to revise the Articles of Confederation. Soon after New York, South Carolina, Massachusetts, Connecticut, Maryland, and New Hampshire agreed to send delegates to the convention. Only Rhode Island declined to attend. As is often the case with Congressional proclamations and laws, not everyone held the same idea as to what the “Grand Convention” had the authority to do. Congress declared a convention to meet “for the sole purpose of revising the articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.” Congress expressly stated the sole purpose was to revise the Articles of Confederation. However, the statement goes on to say the convention should make the Constitution adequate to govern the United States and to preserve the unity of the young nation.
Constitutional Inspirations Both contemporary and historical accounts of the Constitutional Convention and the document produced justly celebrate the unique nature of this undertaking. While Thomas Jefferson’s characterization of the delegates as “demi-gods” might be hyperbole, as Alexander Hamilton noted in Federalist Paper 1,
never before had a government been established through reason and deliberation and not war and bloody rebellion. The Constitutional delegates were certainly the best and brightest America had to offer. They had excellent classical educations which served them well as they worked to create a document to allow America to govern itself, a document that has endured to this day. The Greek philosopher Aristotle’s treatise, “The Politics,” served as a fundamental inspiration for the delegates. In this work, Aristotle, having collected and read numerous written constitutions from all over Greece, as well as observing various nations and leaders, developed a framework for the best and worst forms of government. He categorized government into the following areas: • Government of the one • Government of the few • Government of the many He concluded the best form of government would be a “polity,” which he viewed as the best form of government of the many. Perhaps surprisingly, Aristotle viewed democracy as a deficient form of government of the many. The English philosopher John Locke had given inspiration to Thomas Jefferson and other colonists with his argument that governments come from the people and not from God, who had been the authority behind the belief in the “divine right of kings” theory of absolute monarchy. Both Locke and the American founders believed in the “consent of the governed.” Furthermore, the belief that when a government of any form no longer preserved the rights of the people, the people had a “right to rebellion.” Having observed the English Civil War of the seventeenth century, Locke felt the legislature should have a central role in government to check the power of a monarchy or central executive. A French writer, the Baron de Montesquieu had recently expressed this notion of “checks and balances” and the separation of powers of government in his work The Spirit of the Laws published in 1748. Montesquieu served as the president of the parlement of Bourdeaux. In eighteenth century French society, the parlements served as local judicial bodies composed of nobles who believed they had the right to challenge laws passed by the king and to limit royal authority. Additionally, Montesquieu claimed each type of government had a particular identity or spirit. The spirit of monarchy was honor, the spirit of tyranny was fear, and the spirit of republics was virtue. Closer to home, the colonists at the Constitutional Convention drew inspiration for their new government from the longstanding Iroquois Confederacy that predated the arrival of English colonists by several hundred years.
The Constitutional Convention Once a sufficient number of delegates assembled, the Convention began in earnest. The delegates agreed to keep the deliberations secret to encourage open discussion with no concern for what others might think. James Madison kept notes that serve as the best record of these meetings. Another matter of business involved electing a President of the Convention. The delegates elected George Washington to preside over the
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deliberations. Given their leadership in calling the Convention, it is not surprising that the Virginia delegation introduced the Virginia Plan to fulfill the duty to revise the Articles of Confederation. This plan advocated giving considerable power to the federal government and greatly lessening the sovereignty of the states in sharp contrast to the existing powers given to states under the Articles. It provided for separation of powers and did not set term limits for public office. As might be expected, the states were not pleased with the Virginia proposal and advocated a New Jersey Plan to correct what many delegates saw as federal overreach. A lesser known plan known as the Hamilton plan, after Alexander Hamilton, tried to give even more power to the federal government by arguing for a life term for the president, among other measures. The Convention found itself deadlocked over the competing Virginia and New Jersey Plans. Moreover, given the extensive new proposals of the Virginia Plan, many delegates questioned whether they were failing to comply with the explicit charge to only “revise” the Articles of Confederation. A larger concern was the concern of the particular form of government advocated by the delegates. Knowing their history and political science, the delegates worried that forming a republic in such a large country as the United States would not be effective. Historically, republics have worked best in smaller geographical areas. It is worth mentioning that the area being discussed was east of the Mississippi River. The United States had not yet purchased the Louisiana Territory or gained the American Southwest following the Mexican-American War. Oliver Ellsworth offered a compromise position between an entirely national or an entirely federal model. This became known as the Connecticut Compromise which allowed the delegates to continue to structure the evolving document and government. The Convention delegates outlined the powers explicitly given to Congress and what became the three branches of government. To resolve the issue of what type of representation the states would have in the national government, the House of Representatives was to be popularly elected, while the states would appoint the members to serve in the Senate. One of the most controversial and important issues debated by the Convention was the issue of slavery. Southern delegates, including Convention President George Washington, owned slaves; and slavery played a central role in the economy of the South. Initially, the Convention recommended that Congress not have the ability to regulate or discourage the slave trade through tariffs and other economic measures. However, the approved Constitution did give Congress the power to regulate
and discourage the slave trade. To appease the delegates from slave states, Congress could not regulate the slave trade until 1808. Additionally, slaves were counted as 3/5 of a person for purposes of population and Congressional representation. Much ambivalence existed regarding the election of the president, as many of the delegates did not believe the citizenry had the necessary education and experience to be trusted to vote for such an important office in this new republic. Therefore, the Convention created the Electoral College, which combined both popular votes with electors chosen by the states. On September 17, 1787 the Convention presented the Constitution to the states for ratification.
Constitutional Improvements Here are some of the main changes or improvements in the Constitution that allowed the national government to function more efficiently. • Congress was given the ability to collect taxes • The Constitution established a national system of courts including a Supreme Court • Congress could regulate trade and interstate commerce • A Chief Executive or President controlled the executive branch of government • Constitutional amendments would require only 2/3 votes of Congress and 3/4 of states for ratification • Two houses of legislature were established, one based on popular representation (House of Representatives), and on equal representation (Senate) • Congress was allowed to raise a national army • The Constitution was made the supreme law of the land • Passage of laws in Congress would require only a majority vote and the signature of the President
Ratifying the Constitution Indoors Historians and constitutional scholars often characterize the ratification process as involving two arenas in what are termed the “In-Doors” and “Out-of-Doors” debates. The various state legislatures debated the merits of the Constitution in their own chambers indoors, while many tracts circulated all throughout the states attempted to sway public opinion to either ratify or reject the Constitution. Quickly, the two camps adopted the labels “Federalist” and “Antifederalist” which have come down to us today. Delaware, New Jersey, and Georgia all unanimously voted to ratify the Constitution. Pennsylvania joined these three states in approving the Constitution before the end of 1787. Connecticut approved the Constitution in January of 1788. Massachusetts spent January of 1788 debating the Constitution before ratifying it in early February. Massachusetts’ approval made it the sixth state to ratify. Maryland and South Carolina spent the spring of 1788 debating and eventually ratifying the Constitution in April and May respectively. The Constitution required only nine states to be formally adopted as the new form of government. However, New Hampshire, Virginia, and New York all had strong opposition with their state legislatures to the Constitution. Virginia had two delegates from the Constitutional Convention who voted against the document, so there were serious
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concerns regarding this document in Virginia. George Mason, Thomas Jefferson, and others felt there needed to be a Bill of Rights similar to one contained in the Virginia Constitution. However, the Virginia delegation did approve the Constitution, though it, too, asked for Congress to submit a Bill of Rights for ratification by the states. Shortly before Virginia voted, New Hampshire became the ninth state to ratify the Constitution, which made it officially the new law of the land. By the time New York voted on ratification, ten states had approved the document. New York followed suit, leaving only North Carolina which had rejected the Constitution in August of 1788 and Rhode Island which declined to attend the Constitutional Convention. Voting again in November of 1789, North Carolina approved the Constitution. Rhode Island approved the Constitution by two votes in May of 1790 making ratification of the Constitution complete throughout the states.
The Out-of-Doors Debate As would be expected in the late eighteenth century, there was considerable public discussion and debate over the Constitution. Opponents and proponents used the media of the day— primarily newspapers—to attempt to persuade readers to either ratify or reject the Constitution. The supporters of the Constitution adopted the name “Federalists” with opponents of the Constitution known as “Antifederalists.” A collection of 85 essays written by Alexander Hamilton, John Jay, and James Madison collectively known as The Federalist Papers survive as the best-known documents in this debate. Published in New York, these essays make a compelling and eloquent case for adopting the new Constitution. The choice to publish in New York might have to do with other Antifederalist documents also published in New York
and written most likely by Antifederalists based in New York, some of whom might have attended the Constitutional Convention representing New York, one of the last states to ratify the Constitution. Anonymous authors using the pseudonyms Brutus and Cato, well known historical figures from Ancient Rome, wrote a series of essays critiquing the judicial and executive branches of the proposed new government. Finally, a shorter collection of five letters signed by “The Federal Farmer” expressed concern with the possibility that the states would simply become one government and asked for a Bill of Rights, a request made by many states concerned with the scope of national power enumerated in the Constitution. The Virginia politician Richard Henry Lee likely wrote these letters. These efforts, combined with the deliberations in the various states, provided for a rigorous consideration of the Constitution prior to its eventual ratification. Next month’s Law Wise will feature Constitutional Amendments and major Supreme Court cases which expanded or clarified certain civil rights and/or civil liberties. About the Law Wise Editor: Nicolas Shump teaches courses in Ancient and Modern World History, Creative Writing, English, Film, Sport in American Culture, World Philosophy, and A.P. courses in Comparative Government and Politics, European History, and U.S. History and Government at The Barstow School in Kansas City, MO. He is a columnist for the Topeka Capital-Journal and a Talk About Literature in Kansas (TALK) discussion leader for the Kansas Humanities Council. He can be reached at nicshump@gmail.com
TERRIFIC TECHNOLOGY FOR TEACHERS Center for Civic Education http://www.civiced.org/
National Constitution Center https://constitutioncenter.org/
Constitution Board Game http://texaslregames.org/games_web_eng/crelay/index.html
Pirates of the Preamble Game http://texaslregames.org/games_web_eng/piratepreamble/PiratesPreamble_Instructions.html
ConstitutionFacts.Com https://www.constitutionfacts.com/
U.S. Constitution http://constitution.findlaw.com/
Constitution for Kids https://www.usconstitution.net/constkids4.html
U.S. Constitution-Facts and Summary http://www.history.com/topics/constitution
Constitution of the United States http://constitutionus.com/
U.S. Constitution Apps
Forming a New Nation http://www.mountvernon.org/george-washington/constitutional-convention/ Liberty Day Institute http://www.libertyday.org/packet/ (James Madison) Montpelier’s Guide to the Constitution https://www.montpelier.org/learn/montpelier-guide-to-theconstitution
U.S Constitution: Analysis and Interpretation (Free) Library of Congress The U.S. Constitution-Flash Card Trivia (Free) International Research Constitution for iPhone and IPod Touch (Free) Clint Bagwell Consulting Interactive Constitution (Free) National Constitution Center
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Civic Engagement: Not Just A Social Studies Thing If civic engagement remains only in the social studies classroom we will never get the informed, thoughtful, and engaged citizens we seek. Below is a countdown of 10 things every teacher in every classroom can do to improve civic engagement. #10 Make connections to the real world. Whatever you teach to whomever you teach it, make a connection to what is going on in the world today. Have your class “spill over” into the real world and allow the real world to “spill over” into your class. #9 Use classroom discussion. Use moderated classroom discussion to talk about issues considered by students as important. Teach students how to respectfully disagree, give critical feedback, and understand the perspectives of others #8 Teach Reflection. Direct instruction and practice on the fixing of the mind on some subject. Giving a subject deep and serious thought improves self-awareness, openness, perspectives, and builds a community of learners.
have jury duty, attend a meeting, read the news, or write your representative. “Be the change you want to see in your kids.” #1 Be a Mentor. A wise, trusted, influential counselor or supporter. Some kids need more help than others. You will impact their lives greatly and they yours. It will be your greatest and most rewarding contribution to civic engagement. These may not be the 10 best practices and you may have some ideas that are better, but if every teacher in every classroom in every school in the state implemented these 10 practices in their classrooms we would be graduating many more informed, thoughtful, and engaged citizens. Submitted by Don Gifford, KBA LRE Committee member and Educational Program Consultant for History, Government, and Social Studies at the Kansas State Department of Education. Learn more about the Civic Engagement Initiative at http://www.ksde.org/Agency/Division-of-Learning-Services/Career-Standards-and-Assessment-Services/Content-AreaF-L/History-Government-and-Social-Studies
#7 Demonstrate Enthusiasm and Passion. Enthusiasm is contagious. Use your passion to fuel theirs. Enlist the class in a school or community project you are passionate about. #6 Student Choice. Give students choice. Choice empowers students. Students who feel like they can change the world will. #5 Student Voice. Give students a say in the learning and living environment at school. Allow students to create tasks, rubrics, and/or classroom rules. #4 Comfort the uncomfortable. Like enthusiasm, compassion is also contagious. Students who are in need of comfort and receive it tend to return the favor. Students who witness it tend to imitate it. #3 Make uncomfortable the comfortable. Challenge their thinking, perceived realities, prejudices, and biases. Don’t make it easy for confident/comfortable students to slide by. Force them to confront their values and real world problems. Create cognitive dissonance. #2 Be a Role Model. In order for your student’s to be civically engaged they need to see adults being civically engaged. Volunteer, support a cause, vote . . . Tell them when you vote,
iCivics
Making a Difference in Your Community Check out the “Up Your Game” Back-to-School section for new resources, upgraded games, and professional learning opportunities. https://www.icivics.org/b2s/upyourgame.html The Plan Ahead section features resources for Constitution Day https://www.icivics.org/b2s/plan.html
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Although the Mock Trial competition is still seven months away, the Mock Trial chairs would like you to know the problem will be released around November 1st this year. This year’s problem will be a criminal case! As always, we are looking for sponsors, judges and volunteers. If you are interested in sponsorship, please email Bill Walberg at wwalberg@emlawkc.com. Thank you and we look forward to the 2018 competition.
Mock Trial Liaison: Bill Walberg
Bill is a second year attorney at Evans & Mullinix, PA in Shawnee, Kan., practicing general litigation as well as corporate law and estate planning. Bill attended the University of Kansas for both undergraduate and law school. In between, Bill was a teacher with the Teach for America program in Kansas City, Mo. Bill continues to serve students as he enters into his second year as Mock Trial Co-Chair.
Mock Trial Liaison: Casey Walker
Casey has a litigation-focused practice based in Overland Park which takes her all over Kansas, Missouri, and often into many other states. Although engaging in a wide variety of litigation work, Casey’s practice focuses on the defense of health care providers in malpractice actions as well as corporate health care law. Casey obtained her law degree from the University of Kansas School of Law, and remains an active alumna. Casey is originally from Hutchinson, Kan. Her spare time is spent enjoying community activities and being at home in Lenexa, Kan., with her husband and three dogs, Khan, Sam, and Q. The State Bar of Nevada and the Nevada Bar Foundation will host the 2018 National Championship in Reno, Nevada. The 2018 National Championship will take place May 10-13, 2018.
September Buzz @ The Law-Related Collection, Emporia State University, Teachers College Resource Center By Janice Romeiser Welcome to a new school year! We are ready to help you with items to bring more depth and breadth to your teaching. You may browse our resources by going to emporiastate. worldcat.org and choosing the “Resource Center” drop down box. There you will see a full array of resources and materials. If you are in the area, we are always proud to give guided tours of the Center. If you locate what you need, you may call (620) 341-5292 during our work hours 9-6, Monday through Thursday, or 9-5 on Fridays. We are able to mail out items with no charge to patrons, thanks to the generosity of the Kansas Bar Association and the Kansas Bar Foundation.
With Constitution Day coming up, you may find several resources to support your lessons: • A DVD History of the U. S. Constitution, a 4 volume set: This set begins with the first Legislative Assembly in 1619; the documents that signify the growing pains of our country; the Continental Congress; the needs and Amendments; and more current controversies. • A basic DVD that is appropriate for younger learners, Symbols in America: Uncle Sam. This resource focuses upon common symbols of the United States. • A book, The Signers of the Constitution, showcases each of the signers and tells their “back story” as well as what happened to them after the signing. We are proud to be a part of the Teachers College. We hold to the highest standards, and are always pleased to offer individual help for patrons and their learners! Visit us in person or online. jromeise@emporia.edu
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Lesson Plan 1 The Articles vs. The Constitution: A Comparative Analysis Grades 9-12
Introduction In this lesson students will engage in primary source document analysis by comparing the strengths and weaknesses of the Articles of Confederation and the United States Constitution. Organizing students in small groups will make it easier for students to complete their document analysis. Allow students to determine in their groups how they will divide the reading and analysis of each document.
Reading Guide for the Document Analysis • • • • • • • • • • •
Is there a leader or chief executive for this document and form of government? What expressed powers does the national government possess? What expressed powers do the state governments possess? How is the legislature or Congress organized? What type of electoral system exists in this government? What type of judicial system exists in this government? What type of tax system exists in this government? What type of military exists in this government? How are relations among the states regulated? What is the process for passing national laws? What is the process for amending this document?
Comparative Analysis Questions 1. Having read these two documents, would you agree it was necessary for the delegates at the Constitutional Convention to create a new document? 2. Identify what you believe to be the major problems or weaknesses with the Articles in terms of the ability of the United States to govern its citizens and to conduct relations with other countries? 3. Only considering the original Constitution and not any Constitutional Amendments, what potential problems or issues could you see with this document? 4. Are the powers of the national government and the powers reserved to the state governments clearly stated in the document? 5. Which document do you think provides for the better form of government? Defend your answer with specific reference to the texts.
Lesson Plan 2 The United States of ? Creating Your Own Government and Constitution Grades 7-12
Introduction In this lesson plan, you are the founders of your very own new government. Your responsibility is to work together to determine what type of government you will have and to account for all the basic institutions necessary for your government to succeed. Teachers may choose to divide the students into groups to have them work on a smaller part of their own written Constitution. However, the groups may choose to consult with each other to ensure the various parts of the government are compatible. Cont’d on Page 8 www.ksbar.org/lawwise
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Writing the Constitution Your Constitution must have the following elements: • Some form of leader or chief executive • A manner for choosing this leader • Term of office for this leader • Qualifications for this leader • Specific powers granted to this leader • A legislature • The number of legislative assemblies in your country • The size of these legislative assemblies • The manner of election for these legislative bodies • The length of office for these legislators • The qualifications for these legislators • Specific functions of government controlled by these legislative bodies • A judiciary • The type of court system for your country • Levels of courts within your country • System for appointing justices • Length of judicial appointments at the various court levels • Other elected or appointed officials (Cabinet ministers) • System for appointing or electing cabinet officials • Tax system • Types of taxes your government will assess and collect • Military • Branches of military • Type of military service (compulsory service or voluntary service) • Relationship between branches of government (checks and balances?) • Determination if branches of government are equal or one branch is above the others • Rights and freedoms granted to citizens • Method for citizens to hold the government accountable • Determination if citizens have the right to rebel or overthrow the government
Reflection After students have formed their government and written their Constitution, have the students write a short reflection explaining how they determined the nature of whatever part of the government they worked on. What did they learn about the Constitution and government from this exercise?
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The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.
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