Law Wise • October 2017

PUBLISHED BY

LAW WISE OCTOBER 2017 • ISSUE 2

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 second edition of Law Wise for the 2017-2018 school year.

IN THIS ISSUE A More Perfect Union..................................... 1 Best of the Rest of the Constitutional Amendments................................................. 2 The Father of Judicial Review.......................... 3 Terrific Technology for Teachers....................... 4 October Buzz (from ESU)................................ 4 Lesson Plan 1 Symbolic Speech........................................... 5 iCivics:............................................................ 5 Lesson Plan 2 An Anthem, A Flag and Individual Liberties... 6

Calendar of Events October 9th

Columbus Day

October 22-27 Celebrate Pro Bono Week

“A More Perfect Union” This poetic phrase from the Preamble to the U.S. Constitution illustrates both the goal the American founders had for the new government they had created and the realization that no government or written constitution is perfect. This perfection might never be reached, however, the founders did not use this an excuse to not strive for this goal.

Some of the most vehement challenges to the Constitution during the ratification phase concerned what critics saw as a lack of explicit freedoms for the average citizen. The umbrella term given to these freedoms is Bill of Rights.

The Road to the Bill of Rights When we hear the phrase Bill of Rights we might think of the first ten amendments to the Constitution, however as with the other founding documents, there had been earlier documents articulating these freedoms and protections. In 1772, Samuel Adams wrote The Rights of Colonists before the revolutionary fervor overtook Adams and other prominent leaders throughout the colonies. Adams articulated three main areas of rights for the colonists: 1. Rights as Men 2. Rights as Christians 3. Rights as Subjects In Virginia, almost simultaneously with the writing of the Declaration of Independence, George Mason introduced the Virginia Declaration of Rights into the Virginia Convention in June of 1776. In fact, this was passed even prior to Virginia’s State Constitution. A decade later, Thomas Jefferson penned the Virginia Statute for Religious Freedom in www.ksbar.org/lawwise

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1786, which James Madison worked to secure passage of in the Virginia Assembly.

Should we attribute these documents and declarations as subversion to the Constitution and national government? I would not doubt the sincerity of these men several of whom had fought both within the Constitutional Convention and back home in their respective state legislatures. Instead, their reticence and watchfulness sprung from a desire to better understand and to as fully as possible articulate the terms under which the states would agree to this federal union as the newly formed United States. Political theorists including Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, among others, had written and debated these very notions in their writing on the origins and aims of government. Our founders would be no less thorough as they were actually forming a new government, not merely speculating on the best form of government.

George Mason wrote one of the most complete and eloquent objections to the U.S. Constitution which were originally circulated only to delegates at the Constitutional Convention, including George Washington. Washington later arranged for the publication of these objections in the Virginia Journal in November of 1787. Washington’s decision was not a sign of agreement; he wanted them published so he could have the chance to refute them.

In his objections, Mason noted the lack of a “Declaration of Rights.” He systematically went through the various articles making specific objections to what he saw as “usurpations... upon the rights and liberties of the people.” He also noted specific protections missing from the document including freedom of the press and trial by jury. He offered the following prediction for the future of the American republic: “This government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”

Thankfully we did not have to wait to see if Mason’s prediction came true as the first ten amendments to the Constitution were passed by Congress in September of 1789 and ratified on December 15, 1791.

First Amendment Second Amendment Third Amendment Fourth Amendment Fifth Amendment Sixth Amendment Seventh Amendment Eighth Amendment Ninth Amendment Tenth Amendment

Freedoms, Petitions, Assembly Right to Bear Arms Quartering of Soldiers Search and Seizure Rights in Criminal Cases Right to a Fair Trial Rights in Civil Cases Bail, & Cruel and Unusual Punishment Rights retained by the People States’ Rights

While there are twenty-seven Constitutional amendments, these first ten retain a place of special importance in American history and law.

The Best of the Rest of the Constitutional Amendments As the Bill of Rights reflected the concerns held by men such as Thomas Jefferson, James Madison, George Mason and others, so the remaining seventeen amendments reflect conflicts and issues in the history of the American Republic. One can almost read the amendments as an outline of American history.

Perhaps no issue in American history has surpassed slavery for its impact not only on American law, but on American history. In fact, Article I section 2, better known as the threefifths clause, determined how slavery impacted taxation and representation in the slave-holding states of the Union. Later, in section 9 of the same article, the Constitution allowed for the importation of slaves for twenty years. Finally, in Article 4 section 2, slaves who fled from a slave-owning state to a free

state were not guaranteed their freedom. This was known as the fugitive slave clause. What is most interesting is the fact that the word “slavery” does not appear in the text of the Constitution.

Nevertheless, there are several amendments dealing with the issue of slavery and the struggle between federal authority and the power of states and local governments. Certainly, the Southern states prior to and during the American Civil War invoked “states’ rights” as a rallying cry. This same tension erupted during the Reconstruction era and in the battle over desegregation in the 1950s and 1960s. Amendments Thirteen through Fifteen address different issues regarding slavery: abolishing slavery, guaranteeing civil rights for former slaves, and providing the vote for these former slaves. All were passed within five years of the conclusion of the Civil War. Nearly a century later, in the midst of the Civil Rights Movement, the Twenty-Fourth Amendment banned poll taxes as a means for denying the right to vote to African-Americans.

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Several of the amendments deal with the presidency and voting rights. The Twelfth Amendment came in the aftermath of the presidential election of 1800. In that election, although John Adams ran against Thomas Jefferson for the presidency, Aaron Burr tied Jefferson for the most electoral votes. Though Burr was the vice-presidential candidate, prior to the Twelfth Amendment, the offices were not separated.

The Twentieth Amendment set the terms for the office of President and Vice-President right at the beginning of the presidency of Franklin Delano Roosevelt. Though he was a popular president and consistently ranked as one of the best ever, in 1951 the Twenty-Second Amendment set term limits for the office of the President. Roosevelt had been the first and only president to run for and serve more than two terms in office. The unofficial term limit had been two following the precedent set by George Washington.

In 1967, only a few years after the assassination of President Kennedy, the Twenty-Fifth Amendment codified the order of presidential succession.

Just a few years prior to the U.S. entering the First World War, the Seventeenth Amendment changed the process for Senatorial elections. They, too, would now be popular elections. In 1920, in the aftermath of World War I, women finally received the right to vote. Fifty years later, the voting age was set at eighteen.

The United States has endured only one major internal war in its more than two hundred years. The success of the American experiment is thanks in no small part to the ability of the country to engage in self-examination and to seek legal and political solutions as opposed to violent or revolutionary means.

The U.S. Supreme Court building in Washington, D.C.

The Father of Judicial Review Descended from William Randolph, one of the founders of the Commonwealth of Virginia, John Marshall was born in 1755 in Virginia. His father, Thomas Marshall, educated his son at home, with one brief exception when John attended the Campbell Academy along with James Monroe.

Coming from a prominent Virginia family, Thomas Marshall counted George Washington as a good friend. Influenced by Washington, young John joined the American Revolution, serving as a lieutenant in a Virginia regiment. Marshall later served under Colonel Morgan during which he was wounded at the Battle of Germantown. Washington was impressed by Marshall and named him chief legal officer at Valley Forge. Marshall left the army in 1780 to pursue the study of law at William and Mary.

Marshall quickly grasped the law, gaining admission to the bar later that same year.

Throughout the next decade, Marshall practiced law while also serving in elected office on the local and state level. He attended the Virginia Constitutional Ratification Convention where he strongly advocated for its passage to replace the Articles of Confederation.

In 1798, Marshall turned down an appointment to the U.S. Supreme Court. The next year, he won election to the House of Representatives, though he only served for a short time before his appointment as Secretary of State for President John Adams. This was the first time he had accepted a presidential appointment, though both Presidents Washington and Adams had made offers.

John Marshall joined the Supreme Court as the fourth Chief Justice in 1801. Almost immediately, he changed the orientation of—and greatly increased the authority of—the Court. In 1803, a case appeared before the Supreme Court: Marbury v.

Madison. The issue was whether an incoming president could block the commissioning of an office from the previous president. Marbury sued to have the Court force James Madison to deliver Marbury’s commission. Marshall felt Marbury deserved the commission, but determined the Court had no authority to compel Madison to do so. Marshall concluded the Judiciary Act of 1789, which Marbury had used as the basis of his suit, was unconstitutional. He further concluded any laws which contradicted the Constitution were null and void.

These rulings form the basis for judicial review, empowering the Supreme Court to rule on the constitutionality of laws and actions taken by the legislative and executive branches of the federal government.

Marshall wrote significant decisions on other powers of the Constitution in cases such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) which granted more power and authority to the federal government. He died in 1835 after thirty-four years on the Court where he issued more than one thousand decisions and wrote more than five hundred opinions. The Supreme Court would not be the same today without the pioneering work of Chief Justice John Marshall.

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4 LAW WISE | OCTOBER 2017 TERRIFIC TECHNOLOGY FOR TEACHERS

• National Center for Constitutional Studies

• U.S. Supreme Court Opinions and Cases

• Bill of Rights and Letter Amendments

• Landmark Cases of the U.S. Supreme Court

• U.S. Constitutional Amendments

• The Supreme Court Historical Society

• National Constitution Center

• Supreme Court Cases

www.caselaw.findlaw.com/court/us-supreme-court

www.nccs.net

www.ushistory.org/documents/amendments.htm www.constitution.findlaw.com/amendments.html

www.landmarkcases.org/en/landmark/home www.supremecourt.org

www.aclu.org/defending-our-rights/court-battles/ supreme-court

www.constitutioncenter.org

• Bill of Rights

www.billofrights.institute.org

• Supreme Court of the United States www.supremecourt.gov

October Buzz

By Janice Romeiser Fall has arrived, and with Constitution Day fresh in our minds, we aim to remind you of the great resources available for you here at the Teachers College Resource Center on the beautiful campus of Emporia State University.

We are located on the second floor of Visser Hall, and our resources generously funded by the Kansas Bar Association have quite a continuum of items, from hands-on to DVDs to scholarly efforts by Supreme Court Justices. Short synopses of a sampling of these resources follow.

• Lessons on the Constitution: contains valuable background information, as well as ready-made lessons to complement American History or American Government classes.

• The Bill of Rights: A User’s Guide: is an award-winning compilation of how each of the Bill of Rights amendments became the law.

• The New Nation: is an historical perspective on all of us, with lesson plans included.

• The History of the Supreme Court: a DVD set containing 36 lectures of 30 minutes each, including a book, for 5th grade and up.

These offerings and many more are available here at the Resource Center for citizens of Kansas. We would love to have you come and browse, but we understand that geography sometimes impedes that. So we offer our web address, http:// emporiastate.worldcat.org , then use the drop-down box for Resource Center for browsing or searching. You may also call 620-341-5292 to check out resources during our hours, 9-6, Monday through Thursday, and 9-5 on Friday. We are able to mail out items with no charge to patrons, due to the generosity of the Kansas Bar Association.

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 www.ksbar.org/lawwise

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Lesson Plan 1: Symbolic Speech (Based on material found at landmarkcases.org) Tinker v. Des Moines Independent Community School District 1969 The Facts of the Case In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam War. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year’s Eve. The principals of the Des Moines school learned of the plan, and met on December 14 to create a policy to deal with the situation. It stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year’s Day, the planned end of the protest.

Through their parents, the students sued the school district for violating the students’ right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district’s actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion.

Question Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students’ freedom of speech protections guaranteed by the First Amendment?

Symbolic Speech Definition (from legal-dictionary.thefreedictionary.com) The term symbolic speech is applied to a wide range of nonverbal communication. Many political activities, includingmarching, wearing armbands, and displaying or mutilating the U.S. flag, are considered forms of symbolic expression.

The U.S. Supreme Court has held that this form of communicative behavior is entitled to the protection of the First Amendment to the U.S. Constitution, but the scope and nature of that protection have varied.

Activity 1- Have the students debate whether or not this protest meets the definition of symbolic speech and is protected by the First Amendment.

Activity 2- Have the students read the case summary found at Oyez.org (https://www.oyez.org/cases/1968/21), Allow them to further discuss this issue of symbolic speech and the First Amendment.

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iCivics The Civil Rights unit covers the early days of expansion of slavery in the U.S. through the momentous 1950s and 60s and into the modern Civil Rights Movement. In the Road to Civil Rights unit students will be able to:

• describe the processes that led to the expansion of rights for African Americans,

•

• explain the significance of civil rights Supreme Court cases.

identify the roles of the three branches of government in establishing and protecting rights, and

Visit www.iCivics.org to additional learning objectives for The Road to Civil Rights unit.

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Lesson Plan 2: An Anthem, A Flag, and Individual Liberties Lesson plan found at www.billofrightsinstitute.org When American football player Colin Kaepernick began sitting (and later kneeling) during the National Anthem to protest racial injustice in the country, he intended to draw attention to race relations in the United States. However, his actions have also sparked a discussion regarding the individual liberties of American citizens. This conversation has since extended to other symbols of patriotism beyond the national anthem—such as respect for the American flag.

This eLesson asks students to consider what constitutes protected speech, and how far patriotic symbols and actions can be legally protected from acts of protest. Through this lesson, students will better understand the rights guaranteed by the First Amendment to the United States Constitution. They will use this understanding to analyze a variety of current events, and assess whether they constitute protected speech. Students will then apply their understanding and analysis through respectful debate to further clarify their position on this controversial topic.

Resources

BRI Landmark Supreme Court Cases: Texas v. Johnson (1989) Oyez Database: Texas v. Johnson (1989) If Colin Kaepernick has First Amendment Rights to Protest, Do Police Too? History Teacher who ‘Stomped’ on American Flag during Class is Suspended

Background or Warm-Up Activity

Assign students to read the case brief and answer the discussion questions found in the Bill of Rights Institute’s activity on Texas v. Johnson (1989). Students should use this review to familiarize themselves with the circumstances of the case and the court’s decision. They should come to class prepared to discuss their answers.

Activity: Debate

1. As a class, review the discussion questions answered in the Texas v. Johnson After the discussion, take a poll as to who agrees or disagrees with the court’s decision. Divide your class along these lines.

If the numbers are disproportionate, randomly assign students to one side or the other. Inform your students that they will be debating the following question: To what extent should national symbols be protected from actions that many would deem disrespectful.

2. Once your students are organized into groups, give each group time to research similar Supreme Court decisions. Encourage your students to research both the majority and dissenting opinions to further strengthen their position: n Minersville School District v. Gobitis (1940) [Later overturned] n West Virginia State Board of Education v. Barnette (1943) n Texas v. Johnson (1989) n United States v. Eichman (1990) 3. The following online resources can help your students in their research: n United States Courts website n Oyez Database from ITT Chicago-Kent College of Law n Legal Information Institute from Cornell University Law School 4. Give your students approximately 15 minutes to review and research the Supreme Court cases listed above. Encourage students from both groups to split into smaller groups to cover each case to make the best use of this time.

5. It is now time to debate! n Prior to beginning preparation for the debate, remind your students of the following rules for civil debate: a. Speak courteously: No raised voices or insults of any kind. b. Listen courteously: No interruptions. c. Argue authoritatively: Use primary sources to support reasoning. n Each group should elect a spokesperson to deliver a speech—no more than a minute long—in favor of their position. n At the end of each side’s speech, the other side should appoint an individual (different from the main spokesperson) to “cross-examine” the other side. During this period, the cross-examiner may only ask questions. These are designed to clarify the first speaker’s arguments and ask questions that were unanswered or not considered earlier in the discussion. n The next side should give their speech followed by cross-examination. n Each group’s third speaker will then give a brief response addressing concerns raised during the cross examination. www.ksbar.org/lawwise

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n Have your students cast a secret ballot to determine which side’s argument was most compelling to the class. Encourage students not to simply vote for the side they participated in, but to truly consider which side had the more compelling argument.

6. After the debate, complete the following “Debriefing” activity with your students designed to further their understanding of First Amendment protections Debriefing Activity

Ask your students the following critical thinking questions to further help them better understand First Amendment protections and the role of federalism and separation of powers: 1. Does the First Amendment to the U.S. Constitution protect only free speech, or does it also protect freedom of expression as demonstrated by Johnson burning an American flag or the North Carolina teacher stepping on the flag?

2. The American flag, national anthem, and pledge of allegiance are treated with respect and patriotism by many; should that impact whether individuals are able to take actions seen by some as disrespectful to these national symbols?

3. In North Carolina, a teacher was suspended after stepping on the American flag as part of a lecture on free speech . While no legal action is being taken against the teacher, under North Carolina law, the teacher’s actions are still considered a misdemeanor for flag desecration. Under Texas v. Johnson, should the teacher’s actions be protected by the First Amendment? Why or why not?

4. Some who disagree with the protests of the National Anthem have suggested that the National Football League should implement a policy mandating players to stand during the anthem. Even though private organizations have the ability to implement these rules, should professional sports leagues compel players to stand during the national anthem? What individual liberties should the players have with respect to the national anthem?

Extension Activity:

Let your students debate with students from across the country on this topic through the Bill of Rights Institute’s Bridge the Divide (www.thinkthevote.com/bridge-the-divide/) debate platform. Students have an opportunity to answer the question, “Should national symbols be protected from actions many deem disrespectful?” Instruct your students to use their research and in-class discussion to assist in developing a well-reasoned argument from a constitutional perspective, using the materials provided as well as the previously discussed material. After submitting a post, students will have an opportunity to view the responses of students from across the country.

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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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