12AD.5 What Makes a Law Constitutional? Does that ever Change? Who Decides?

The courts play a unique role among the three branches because the framers intended the courts to be insulated from public opinion in order to independently interpret the laws. Students begin their study of the work of the Court by reviewing Marbury v. Madison (1803) to answer the question, What is judicial review, and how does it work? Students concentrate on how the courts have interpreted the Bill of Rights over time, especially themes such as due process of law and equal protection as guaranteed by the Fourteenth Amendment, by answering the question, What makes a law or an action unconstitutional, and does that determination ever change?

Whenever possible, students should learn through illustrations of the kinds of controversies that have arisen because of challenges or differing interpretations of the Bill of Rights. For example, the unit can be organized around case studies of specific issues, such as the First Amendment’s cases on free speech, free press, religious liberty, separation of church and state, academic freedom, and the right of assembly, or the Fourth Amendment’s warrant requirements and protections against unreasonable search and seizure.

Supreme Court and other federal court decisions may be debated or simulated in the classroom following readings of original source materials, including excerpts from the cases of Texas v. Johnson (flag burning), West Virginia v. Barnette (flag salute in schools), Tinker v. Des Moines (symbolic speech in schools), New York Times Co. v. United States (press prior restraint), Engel v. Vitale (school prayer), and Mapp v. Ohio (search and seizure). These cases once again reflect tensions between individual rights and societal interests; they also illustrate how each case involved real people and how the present laws resulted from the debates, trials, and sacrifices of ordinary people.

In examining the evolution of civil rights under the equal protection clause of the Fourteenth Amendment, students can draw upon their knowledge of the Civil War and the passage of the Reconstruction-era amendments. Students may examine the changing interpretation of civil rights law from the Plessy v. Ferguson decision of 1896 to the Brown v. Board of Education decision of 1954. Although it is not possible to analyze every decision that marked the shift of the Supreme Court from 1896 to 1954, critical reading of the Yick Wo v. Hopkins, Korematsu v. United States, Mendez v. Westminster School District (US Circuit Court of Appeals, 1947), and Sweatt v. Painter decisions remind students that racial discrimination affected not only African Americans but other groups as well, including Asian Americans and Hispanics.

Subsequent Court cases addressed the rights of women (Reed v. Reed, 1971); American Indians (Morton v. Mancari, 1974); and the lesbian, gay, bisexual, and transgender community (Lawrence v. Texas, 2003, and Obergefell v. Hodges, 2015). The Brown decision and the cases of Bakke v. Regents of the University of California and Grutter v. Bollinger provide students with the opportunity to deliberate and debate whether affirmative action is an appropriate way to address inequality. School-related cases of Tinker v. Des Moines (1969), Fricke v. Lynch (1980), New Jersey v. T.L.O (1985), Henkle v. Gregory (2001), and the 2013 Resolution Agreement announced by the United States Department of Education in Student v. Arcadia Unified School District offer additional perspectives relevant to students on free speech, privacy, nondiscrimination, and civil rights for students in schools.

Students may use materials from these cases and others to analyze majority and minority opinions; participate in classroom courts; write simple briefs extracting the facts, decisions, arguments, reasoning, and holding of the case or editorial pieces stating their views; and using evidence to support their conclusions about the decision.