12AD.5 What Makes a Law Constitutional? Does that ever Change? Who Decides?
This inquiry set asks students to examine primary documents – from amendments to the U.S. Constitution to an African American woman’s handwritten plea to the court after being forcibly ejected from a streetcar, to a photo of a Mexican American family who challenged race discrimination in public schools – that will enable them to understand both the enduring primacy of the Constitution and the different ways it has been interpreted by the courts over time.
- HSS 12.5.1 Understand the changing interpretations of the Bill of Rights over time, including interpretations of the basic freedoms (religion, speech, press, petition, and assembly) articulated in the First Amendment and the due process and equal-protection-of-the-law clauses of the Fourteenth Amendment.
- HSS 12.5.3 Evaluate the effects of the Court\'s interpretations of the Constitution in Marbury v. Madison, McCulloch v. Maryland, and United States v. Nixon, with emphasis on the arguments espoused by each side in these cases.
- HSS 12.5.4 Explain the controversies that have resulted over changing interpretations of civil rights, including those in Plessy v. Ferguson, Brown v. Board of Education, Miranda v. Arizona, Regents of the University of California v. Bakke, Adarand Constructors, Inc. v. Pena, and United States v. Virginia (VMI).
Explain ideas, phenomena, processes, and text relationships (e.g., compare/contrast, cause/effect, evidence-based argument) based on close reading of a variety of grade-appropriate texts, presented in various print and multimedia formats, using phrases, short sentences, and a select set of general academic and domain-specific words.
Explain inferences and conclusions drawn from close reading of grade-appropriate texts and viewing of multimedia, using familiar verbs (e.g., seems that).
Use knowledge of morphology (e.g., common prefixes and suffixes), context, reference materials, and visual cues to determine the meaning of unknown and multiple-meaning words on familiar topics.
Explain ideas, phenomena, processes, and relationships within and across texts (e.g., compare/contrast, cause/effect, themes, evidence-based argument) based on close reading of a variety of grade-appropriate texts, presented in various print and multimedia formats, using increasingly detailed sentences, and a range of general academic and domain-specific words.
Explain inferences and conclusions drawn from close reading of grade-appropriate texts and viewing of multimedia using a variety of verbs and adverbials (e.g., indicates that, suggests, as a result).
Use knowledge of morphology (e.g., affixes, Greek and Latin roots), context, reference materials, and visual cues to determine the meaning of unknown and multiple-meaning words on familiar and new topics.
Explain ideas, phenomena, processes, and relationships within and across texts (e.g., compare/contrast, cause/effect, themes, evidence-based argument) based on close reading of a variety of grade-level texts, presented in various print and multimedia formats, using a variety of detailed sentences and precise general academic and domain-specific words.
Explain inferences and conclusions drawn from close reading of grade-level texts and viewing of multimedia using a variety of verbs and adverbials (e.g., creates the impression that, consequently).
Use knowledge of morphology (e.g., derivational suffixes), context, reference materials, and visual cues to determine the meaning, including figurative and connotative meanings, of unknown and multiple-meaning words on a variety of new topics.
Explain how successfully writers and speakers structure texts and use language (e.g., specific word or phrasing choices) to persuade the reader (e.g., by providing evidence to support claims or connecting points in an argument) or create other specific effects.
Explain how successfully writers and speakers structure texts and use language (e.g., specific word or phrasing choices) to persuade the reader (e.g., by providing well-worded evidence to support claims or connecting points in an argument in specific ways) or create other specific effects, with moderate support.
Explain how successfully writers and speakers structure texts and use language (e.g., specific word or phrasing choices) to persuade the reader (e.g., by providing well-worded evidence to support claims or connecting points in an argument in specific ways) or create other specific effects, with light support.
Explain how a writer\'s or speaker\'s choice of phrasing or specific words (e.g., describing a character or action as aggressive versus bold) produces nuances or different effects on the audience.
Explain how a writer\'s or speaker\'s choice of phrasing or specific words (e.g., using figurative language or words with multiple meanings to describe an event or character) produces nuances and different effects on the audience.
Explain how a writer\'s or speaker\'s choice of a variety of different types of phrasing or words (e.g., hyperbole, varying connotations, the cumulative impact of word choices) produces nuances and different effects on the audience.
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.
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.
Evaluate various explanations for actions or events and determine which explanation best accords with textual evidence, acknowledging where the text leaves matters uncertain.
What makes a law constitutional, and does that determination ever change?
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.
- 1a. Excerpts from US Constitution, Article 1 and Article 3
- 1b. California Constitution [Spanish]
- 2a. Citation: US Constitution, First Amendment
- 2b. Photo of Charlotte Gabrielli, age 9, 1936
- 4a. US Constitution, Fourteenth Amendment
- 4b. Charlotte Brown’s plea to the court against Omnibus Railway Company
- 5a. Yick Wo laundry in San Francisco (photo)
- 5b. San Francisco ordinance barring wooden laundries
- 6a. Photo of “Colored” sign on courthouse lawn
- 6b. Headline in San Francisco Call (1897) about suit against Sutro Baths
- 7a. Photo of parents Gonzalo and Felicitas Mendez
- 7b. Photo of Hoover “Mexican school”
- 8a. Photo of mother and daughter on steps of US Supreme Court building with newspaper announcing ruling in Brown v. Board
- 9a. Photo of Phyllis Lyon and Del Martin with San Francisco Mayor Gavin Newsom
- The Library of Congress. The Library of Congress’ Primary Source Analysis Tool supports an inquiry model of instruction by asking students to first observe, then reflect, then question. Their customizable tool includes specific prompts for student interrogation of books and other printed materials, maps, oral recordings, photographs and paintings, and many other types of primary sources.
- The National Archives and Records Administration (NARA). NARA has developed a vast collection of document analysis worksheets, ready for classroom use. Their website offers teachers a wide collection of customizable tools – appropriate for working with photographs, maps, written documents, and more. NARA has also customized their tools to meet the needs of young learners, and intermediate or secondary students.