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How History Affects Supreme Court Decisions and Supreme Court Decisions Affect History: A Look at the Fourteenth Amendment
by Judy Zimmer, Street Law, Inc.



Intro   Learning Activities   Culminating   Cross-curricular   Community
INTRODUCTORY ACTIVITY (5 minutes):

DAY ONE:

  1. Ask students to take out a sheet of paper and then ask these questions:

    • Try to think of what was happening in the United States prior to the start of the Civil War. Write down at least two reasons the United States had a Civil War from 1861 to 1865.

    After about three minutes, discuss students' answers. If students are struggling, you might offer one of the suggestions below.

    • Deep divisions existed in the country about slavery. Northern abolitionists fought to abolish it and prevent it from spreading into new states. Southerners defended slavery as part of their culture and economic viability.

    • The Supreme Court's 1857 decision in the Dred Scott case proved incendiary in the conflict over slavery. This decision held that a black slave's residence in a free state did not necessarily make him free. It also said that Congress has no right to prohibit slavery in the territories and made the Missouri Compromise unconstitutional.

    • Lincoln was elected president with very little support from the slave states.

    • Ten Southern states seceded from the Union in 1861. In 1861, a new country was formed in Montgomery, Alabama called the Confederate States of America. In 1861, Confederate troops fired on Fort Sumter in Charleston, South Carolina.

    • Now, try to think of two results brought about by the Civil War.

    Answers will vary, but will likely include:

    • Slavery ended.

    • African Americans gained constitutional rights and protections.

    • The Union survived, but deep divisions remained between the North and the South.

    • The Reconstruction era began.

LEARNING ACTIVITIES

Introduction to "A New Kind of Justice" and the Fourteenth Amendment (20 minutes):

  1. Tell students:

    Law and history are intertwined. As we know, history has significantly affected the development of our laws and our laws have had major impact on our history. The conflicts in our courts often reflect changes in our basic values.

  2. Tell students that the passage of the Thirteenth, Fourteenth, and Fifteenth amendments in the years following the Civil War represented a major shift in values. These amendments represent the ideals for which Northern abolitionists fought the war.

  3. Ask students to open their books (or other resource) to find the Thirteenth Amendment. Working with a partner, ask students to take three minutes to summarize the Thirteenth and Fifteenth amendments.

    At the end of three minutes, confirm that students have a basic understanding of the amendments:

    The Thirteenth Amendment prohibits slavery and involuntary servitude except when it is part of a sentence when someone has been properly convicted of a crime. This is true throughout the United States and in any place the United States controls.

    The Fifteenth Amendment says that citizens of this country cannot be denied the right to vote based on race or color or because they were previously slaves. Congress can enforce this amendment by passing laws.

  4. Divide the class into groups of three or four students. After they have moved, distribute Handout #1: U.S. Constitution: Fourteenth Amendment: Sections 1 and 5.

    Ask students to read the top part of the handout together and answer questions A and B as a group. Tell them they have seven minutes for this assignment and write the ending time on the board.

    As students are working, circulate around the room to assist them. If they need prompting, feel free to use the information provided below.

    1. The Fourteenth Amendment:

      Section 1. 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.

      Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    2. Answers will vary.

      When they have finished, ask them to preview question C, so they know what to watch for as they view the video segment.

  5. Begin the first film segment, "A New Kind of Justice," when you see the title page, A NEW KIND OF JUSTICE, and you hear the narrator say, "The carnage that Oliver Wendell Holmes had witnessed was only a small window on the enormity of the Civil War." End the segment after the narrator says: "In 1883, that law was challenged. The case, besides rewriting the nation's long-running racial drama, would produce the Supreme Court's first great dissent ... and its first great dissenter."

    When the segment ends, ask students to take a minute to answer question C.

    • Answers will include: getting married, starting businesses, buying property, getting educated, serving on juries, testifying in court, voting, becoming elected officials, etc.

Applying What You Have Learned About the Fourteenth Amendment (25 minutes):

  1. Explain to students that they will work with the same group of three or four students to complete the next activity. Distribute Handout #2: Announcing the Passage of the Fourteenth Amendment.

    Review the directions and be sure students understand their task. Give each small group a large sheet of paper, some markers, and tape. Remind them they have 15 to 20 minutes and write the ending time on the board. Circulate around the room to observe and assist student groups.

  2. When time is up, ask each group to hang its flip-chart paper in various corners or other wall spaces around the room. Ask one team member to stand next to the cover design to answer questions from other students. Then ask the other students to circulate around the room in a "carousel" style, viewing the other cover designs and asking questions if they have any. After a few minutes, let the students who were stationed near their poster switch with another student from their group so they can also see the work of other groups.

  3. Summary reflection:

    Ask students:

    • Why do you think that Supreme Court Justice David Souter has called the Fourteenth Amendment "the most significant structural provision adopted since the original Framing" [of the Constitution]? (McCreary County v. ACLU of Kentucky [2005]).

    Discuss student answers.

DAY TWO

Ask a student to summarize what they learned in the prior class. (This will help refresh students' memories and help those who were absent have some context for today's work.)

Introduction to Civil Rights Cases (1883) (30 minutes):

  1. Ask students to consider the last part of the film segment they saw yesterday. (This part of the video focused on the background for the passage of the Civil Right's Act of 1875 and its most important provisions.) If necessary re-play film segment #1, "A New Kind of Justice."

    Ask students:

    • What was the environment that created the need for the Civil Rights Act of 1875?

    Congress had passed the Civil Rights Act of 1866, which guaranteed to blacks the same rights as whites regarding contracts and property. Congress had also passed the Enforcement Acts of 1870 (referred to as the Ku Klux Klan Acts). These laws attempted to protect blacks from the efforts of Southern whites to keep them from voting.

    The Civil Rights Act of 1875 focused on accommodations. Southerners made a concerted effort to block enforcement of these laws.

  2. Project Transparency #1: The Civil Rights Act of 1875 (excerpt).

    Have students read the language of sections 1 and 2. (This could be read aloud by a student.) As students read the transparency, circle or highlight vocabulary terms or other difficult passages and then explain them.

    Ask students:

    • What areas get special attention in Section 1?

    Public accommodations such as inns, theaters, access to water or land, etc.

    • What is prohibited?

    Denying people access to public accommodations based on their race or color

    • What can happen if you violate Section 1?

    A person who violates the law can be convicted of a misdemeanor, fined between $500 and $1,000 (payable to the court), imprisoned between 30 days and one year, and required to pay the victim $500.

    • Who might not like this act?

    Answers will vary.

  3. Distribute Handout #4: The Civil Rights Cases (1883).

    Review the directions with students, paying attention to the second page of the handout as well. Give students five to seven minutes to make their own decisions about the statements. Write the ending time on the board and circulate around the room to observe and assist students.

    When time is up, ask students to turn to the person next to them and discuss their decisions in pairs for a few minutes.

  4. Debrief the activity by going through each of the statements and asking students how they classified the arguments. These statements are actual quotes from the majority opinion written by Justice Joseph Bradley and the dissent written by Justice Harlan.

    Use the information below to assist with the discussion.

    A = "U" -- This is from the opinion of Justice Joseph Bradley. It supports the position that the Civil Rights Act of 1875 is unconstitutional.

    B = "U" -- This is from the opinion of Justice Joseph Bradley. It supports the position that the Civil Rights Act of 1875 is unconstitutional.

    C = "C" -- This is from the opinion of Justice John Marshall Harlan. It supports the position that the Civil Rights Act of 1875 is constitutional.

    D = "C" -- This is from the opinion of Justice John Marshall Harlan. It supports the position that the Civil Rights Act of 1875 is constitutional.

    E = "C" -- This is from the opinion of Justice John Marshall Harlan. It supports the position that the Civil Rights Act of 1875 is constitutional.

  5. Tell students that they will watch a video segment that will tell them how the Court decided. Ask them to pay particular attention to the views expressed by Justice John Marshall Harlan and how he may have reached his opinion.

    • Begin the second film segment, "The Civil Rights Cases," when you hear the narrator say, "In 1883, that law was challenged," and you see an image of a quill pen. Stop the film when you hear Michael J. Klarman say, "We're gonna return to the status quo, which is: upper class whites in the South get to decide what race relations are gonna look like."

    When the segment ends, ask students to describe the key aspects of the Court's decision in the 1883 Civil Rights Cases.

    • The Court determined that the law was unconstitutional and that each of the people listed in the cases lost.

    • The Supreme Court's majority opinion in this case struck down the Civil Rights Act of 1875 on the basis that the act exceeded the powers given to Congress under the Constitution.

    • One of the key aspects of the decision was that the Court said the Fourteenth Amendment protects citizens from the actions of the government, not from the actions of private individuals (such as people who own inns or who run railroads.)

The Important Role of Dissenting Opinions in the Court (15 minutes):

Distribute Handout #4: Reflections on Dissent. Review the directions and give students the remainder of the class time to work on their essays.

OPTIONAL

If you plan to do the optional extension activity to connect the civil rights cases of the 1880s to the 1960s, distribute Handout #5: President John F. Kennedy, Address to the Nation on Civil Rights for homework. You should also plan how to debrief this assignment with students on the following day or as part of an assessment of this lesson.

DAY THREE

Ask a student to summarize what they learned in the prior class. (This will help refresh students' memories and help those who were absent have some context for today's work.)

Introduction to the Fourteenth Amendment and the Liberty of Contract (25 minutes):

  1. As a transition from the previous day's lesson, tell students that Justice John Marshall Harlan dissented in cases involving working-class people, not just in cases involving African Americans. In these cases, Harlan disagreed with other justices about how the protections of the Fourteenth Amendment should be applied.

  2. Ask students to describe the time period after Reconstruction when the industrial revolution took root, between the 1880s and 1920s. In particular, what do they know about how industrialization changed the dynamics of socioeconomic class in this country?

    Answers will vary. During this time, the population grew dramatically with a wave of immigration and the economy flourished under capitalism. With industrialization, a small group of people grew very, very wealthy and a nearly permanent "underclass" developed. Leaders of the progressives attempted to protect working-class people and the underclass, but with limited success.

    Ask students to work with two others for the following activity. After they have moved, distribute Handout #6: The Fourteenth Amendment and Protections for Workers.

    Review the directions together as a class and confirm that students understand their tasks. Tell them they have 10 minutes to complete their work and put the ending time on the board.

    As students are working, circulate around the room to observe their work and to help as needed.

  3. When time has ended, ask students to share their speculations about the order in which the cases were decided. Each student should give his or her reasons for this order.

    Explain to the students the order of the cases and the years the cases were decided.

    (Lochner came first, in 1905, and Parrish came in 1937.)

    Then tell students that a further study of the history of the times when those cases were decided will help them make sense of those decisions in context.

    Advise the students that you are going to show a video segment about the Lochner decision. As they watch the segment, they should think about what was happening at the time of the case and the decision that may have influenced the Court's decision. They should take notes about their ideas in the blank lines on Handout #4.

    Begin the third film segment, "Worker's Rights," when you see the photograph of the Justices and you hear the narrator say, "Just three years into Holme's tenure, a case came before the court that highlighted stark divisions among the justices, drawing the battle lines for a quarrel that would play out over the next thirty years." Stop the film when you see the photograph of Justice John Marshall Harlan and you hear the narrator say, "John Marshall Harlan - joined by two other justices - dissented in Lochner. The state of New York presented compelling facts as to the health hazard to bakers. That was good enough for him."

  4. Tell students that the next video segment sets the context for the last decision, West Coast Hotel Co. v. Parrish, handed down by the Court in 1937. Students should pay particular attention to how attitudes about workers' rights changed during the depression and the New Deal.

    Begin the fourth and final video segment, "Reflections on Dissent," when you see images of the Great Depression and you hear Louis Weinberg say, "By the early thirties, the Court, the nine old men, found itself sitting at the top of of a situationÍ" Stop the video when you see Joseph Kobylka speaking and he says, "When the Court switches in 1937, they basically say, 'We will get out of the way and let the train come through. Government can regulate as it chooses.'''

    At the conclusion of the fourth segment, give students about five minutes to work with a partner to complete Handout #4. If they have questions, you may want to refer to the following notes.

    • Help students understand why each Supreme Court decision might fit within the time frame it was decided.

    For example, in the early 1900s, the Court favored letting capitalism run its course, even if it meant that workers might not receive minimum wage or might have to work long hours. This was a time when many people believed in the theory of social Darwinism -- that life is about competition and only the strongest will survive.

    During the New Deal era, the Court (and the country) shifted more dramatically to allow legislatures to pass laws intended to protect workers from the forces of a market economy that tends to separate rich and working-class people.

CULMINATING ACTIVITY (15 minutes)

  1. Tell students that the controversy over the minimum wage and government interference/assistance with the economy continues today.

    Ask students:

    • Will you please raise your hand if you have a job now or have had one in the past?

    • How was your salary determined?

    • What is the minimum wage?

    The minimum wage is established by law and means that there is a minimum amount that employers must pay employees on an hourly/monthly basis.

    The vast majority of workers in the United States are required to be paid a minimum hourly wage according to the Fair Labor Standards Act. At the time of this publication, the federal law required employers to pay $5.15 per hour for certain types of workers. The law allowed employers to pay a "training wage" of $4.25 per hour for certain workers who are less than 20 years old, but this training wage only applied to the first consecutive 90 days of employment -- then the regular minimum wage applied.

    In 2006, workers in some jobs were entitled to a lower minimum wage of $2.13 per hour if they received tips. However, if a worker's tips did not bring him or her up to the rate of $5.15 per hour, the employer must cover the difference.

    Some states have their own minimum wage laws, which may set the wage higher, but not lower than the federal minimum wage.

    • Do you think the minimum wage is a good idea? Explain your reasons.

  2. Point out the continuum that you have hung along one wall of your classroom. Show students that on one end, there is a sign saying "RAISE THE MINIMUM WAGE" and on the other end of the room there is a sign that says "DO NOT RAISE THE MINIMUM WAGE."

    Ask and instruct students:

    • Do you think we should raise the minimum wage in this country? If so, stand along the continuum where the sign says "RAISE THE MINIMUM WAGE."

    • If you do not think the minimum wage should be raised, stand under the other sign.

    • If you are not sure, stand in the middle.

    Ask one student from under each sign to explain his or her reasons for standing there.

    Explain to students that you are going to suggest a number of arguments for and against raising the minimum wage. These arguments will reflect a variety of attitudes and viewpoints. As you read the statements, if students are persuaded to change their "stance" they should move.

    Confirm that students understand the directions and then read each of the following statements slowly, allowing time for students to move between each statement, if they choose. Occasionally, as they move, ask them what persuaded them to change their opinions.

    • We need to raise the minimum wage because too much time has passed since the last increase and people earning minimum wage are becoming impoverished and are unable to maintain a decent quality of life.

    • We should not raise the minimum wage because an increase will mean that employers will have to lay off employees, so people will lose jobs and the entire economy will suffer.

    • We should not raise the minimum wage because market forces should determine wages.

    • We should raise the minimum wage because in our free market/capitalism economy, people at the bottom of the socioeconomic scale cannot be helped by "market forces." It is appropriate for the government to step in to protect people and their ability to earn a decent wage.

    • We should not raise the minimum wage because, according to the interpretation of the Constitution by Supreme Court Justices, the 14th Amendment gives us the "liberty of contract" to enter into financial agreements and work contracts that we think are acceptable. The government should not interfere with that liberty.

    • Neither the 14th Amendment and the Constitution contain the words "liberty of contract." Those are the words of Justices who merely want to support minimal government interference in the economy.

    • Some people believe that changes in the minimum wage laws will affect teens more negatively than other segments of the population.

    Ask students which arguments they found most persuasive and why.

  3. Conclude the lesson by asking students the following questions:

    • Describe the protections offered by the Fourteenth Amendment to the Constitution.

    • How did the Court apply the Fourteenth Amendment to civil rights cases during the Reconstruction era?

    • How did the Court back away from enforcing the Fourteenth Amendment at the end of the Reconstruction era?

    • How did Justice Harlan's dissents in the civil rights cases of the late 1800s influence future decisions in the Court?

    • Which social and economic conditions led to an evolution in the Court's thinking about the Fourteenth Amendment and its relationship to the rights of workers and employers?

    Clarify any outstanding questions and thank students for their participation.

CROSS-CURRICULAR EXTENSIONS

  • Several writing prompts throughout the lesson reinforce writing skills that are essential across curricula.

  • The lesson draws on history, law, and public policy themes and can be integrated into each of those courses.

COMMUNITY CONNECTIONS

Students apply their knowledge of the Fourteenth Amendment and make connections to current events when they "take a stand" on the issue of raising the minimum wage requirements.