Rationale
The purpose of this curriculum unit is to have students learn reasoning through a process of constitutional analysis. Students will read primary sources from the Founding Fathers to increase their exposure to documents they may come in contact with throughout the year on various standardized exams. AP U.S. History teachers must cover three hundred years of history in less than thirty-two weeks while giving important topics equal breadth and depth. We are also challenged with the goal to help boost the achievement gap by allowing any student with a desire to learn more about the Advanced Placement program a seat in the course. This directive forces teachers to find creative simulations to cover both content and skills. Getting students to realize they have a duty to attend school is simple as it is the law. The Pennsylvania Constitution of 1790 was the basis for the Free Public School Act of 1834 that is the underpinning of today's system of schools operating throughout the Commonwealth. These schools were created to educate children to be useful citizens, loyal to the principles upon which our Republic was founded, and aware of their duties as citizens to maintain those ideals. 2 Through an analysis of the founding of America as a representative democracy, my students will fulfill the goals of the state. Perhaps they will even turn on PCN cable channel and watch the call for a new constitutional convention at the state level.
By "doing history" student retain the information in a distinctive way to connect social, cultural and political aspects of American History. This unit will supplement the Pittsburgh Public Schools curricula and meet ongoing PA state requirements. Public education provides opportunities for students to acquire knowledge, develop integrity, process information, think critically, work independently, collaborate and adapt to change. 3
Constitutional Background
We can make sense of the Constitution by understanding it in light of what our best thinking shows Americans stand for as a people past, present and future. 4
The Constitutional Convention took place from May to September of 1787. Although the delegates were called to revise the Articles of Confederation they thought it would be easier and more democratic to draft a new constitution. One of the biggest concerns for the nascent republic was enforcing taxes on unwilling states as this power was not enumerated in the Articles of Confederation. There was tension around the process of creating new rules for the government so close to the Revolution. Rhode Island did not send delegates for fear of losing their state power, and was the last state to ratify the U.S. Constitution.
What the delegates formulated was a system of representative government with checks in place to balance the democratic power. The three main branches are given separate powers and legislative, executive and judicial duties as enumerated in the first three articles. Article I details the powers granted the bicameral legislative body. The House election is the first section. Qualifications of twenty-five years, seven years a citizen and inhabitant of the state are enumerated in Article I, Section 2, Clause 2. Article I is the most extensive section with fifty-two clauses. The Founding Fathers were careful to list most of the responsibility for governance with the Congress as it was the closest to the people. They were intelligent men who knew they would not think of all future problems. Article I, Section 8, Clause 18, is known as the Elastic Clause because it gives the Congress power "to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested..." It is this clause that started the great debate between the expansion of federal power and retention of rights by the people. Strict Constructionists like Thomas Jefferson believed each word in the U.S. Constitution should be followed but they feared aspects not enumerated may be ignored, like individual rights. Loose Constructionists were fans of the necessary and proper clause which allowed the federal government broad interpretation to expand its power, especially under the Marshall Court (1801-1835). Although ways of viewing the constitution may change, the Constitution endures because its meaning and application have been shaped by an ongoing process of interpretation. 5
Federalists
Men in favor of ratifying the U.S. Constitution as it stood in 1787 rallied support of the people prior to ratification by state conventions. In a series of newspaper columns called Federalist Papers, Alexander Hamilton, James Madison and John Jay wrote eighty-five essays to clarify their view that the U.S. Constitution was "a more perfect union." To disguise their own interests and win the trust of their audience they chose the pseudonym of Publius. These Federalists, as they called themselves, poured energy into their cause of ensuring the future greatness of America with impressive arguments. They envisioned the United States as the "envy of the world."
Anti-Federalists
Idealists, the anti-Federalists, saw themselves as true federalists. Many authors in this group chose monikers to depict their suspicions of anti-democratic activity: Brutus, Sentinel and Cato. Patrick Henry and Melancton Smith were outspoken Anti-Federalists who believed in small government with retention of power in the states and individuals. Unfortunately, this group did not have the rhetorical skills of their counterparts. They had one major success in the addition of the first ten amendments, the Bill of Rights, but most of their objections were overcome by the Federalists. When Thomas Jefferson is sworn in as the third president, these views about popular sovereignty and democracy grew more influential.
Written Constitution
Why is the U.S. Constitution written down? Thomas Jefferson, principle drafter of the Declaration of Independence, believed in the security of the Republic through a written Constitution. Perhaps they only scribed their thoughts to be able to have a record, but with the failure of the Articles of Confederation, it seemed valid to enumerate powers in greater detail. The Constitution quickly became the envy of future republics. "It was a fixed objective document that could be consulted and applied...yet the Constitution's principles and provisions were general and ambiguous enough to allow of varying interpretations." 6
The U.S. Constitution is now the shortest written constitution in the world, with seven articles and twenty-seven amendments. At the time it was drafted there was nothing like it so the drafters had the added pressure to "get it right." The Founding Fathers knew they had to deliberate the needs of the people and the ultimate role of government, a daunting task. They believed man was a rational animal and the citizens had to be connected to the government but the government reigned supreme. "If men were angels no government would be necessary," became the Federalist mantra. Gordon Wood said the sacrifice of individual interests to the greater good formed the essence of republicanism and comprehended for Americans the idealistic goal of their revolution. 7
Many people take issue with a few enlightened men meeting in secret to hash out the details of the most important document for the nation. Investigation of the process will reveal that the United States was never intended to be a direct democracy but a Republic. The core was set up on guiding principles from the Declaration of Independence and what the enlightened group believed was best for the common good. Power was checked in the process as an example for future politicians.
Living Constitution
The U.S. Constitution is considered by many scholars to be a living document but the extent to which it must keep up with the times is often a source of debate. Current discussions on hot topics include the possibility of legalizing marijuana and restricting who can marry whom. Most reasonable people realize the U.S. Constitution cannot be all things to all people yet it lays the framework for our representative democracy. In The Constitution Goes to College, Rodney A. Smolla believes the most important Constitutional concern is whether or not we have a living Constitution. He calls this query the "mother of all American constitution debates, an issue that transcends all questions of constitutional law." 8 Smolla's thesis and the focus of his book center around academic freedom as an implied right since the words do not appear in the text of the U.S. Constitution. He says, "if academic freedom is to be recognized as an implied right, it must be one implied by contemporary understandings of the meaning of the constitutional text rather than historical understandings." 9
So, one way to view the U.S. Constitution is as a living document. This means the "spirit and letter" of the Constitution are not static. The American principles of freedom and liberty are enumerated in the framework of government established by the U.S. Constitution. I must agree with a dynamic view not only for my lessons in this unit but also for my personal belief in the power of the people to evoke change.
Popular Consent
This unit addresses some challenges to the Constitution while encouraging high school students to engaging in the practices of popular consent and rule by the people.
Although fifty-five men comprised the Constitutional Convention, they made sure to send their finished work to seven-hundred representatives in twelve states. The concept of consent of the governed is a revolutionary ideal listed in the Declaration of Independence and delicately embodied in the framework of the U.S. Constitution. The Founding Fathers deliberated at length on how they would create an equilibrium to "establish justice", "insure domestic tranquility", "provide for the common defense", "promote the general welfare", and "insure the blessings of liberty". The process of considering the needs of each individual was simplified to a general will of the majority through popular consent. Even the Federalists saw a need to stay in touch with the people as the ultimate authority. Hamilton said "the power surrendered by the people is divided...", acknowledging that the people legitimize the government. In Federalist 51, Hamilton assures his readers checks will be established: " In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." Responsibility to government is a theme of The Anti-Federalist letter Sentinel number 1: "A republican, or free government, can only exist where the body of the people are virtuous...in such a government the people are the sovereign..." 1 0 The Antifederalist caution that if you complicate the structure people will easily become confused and fall prey to demagogues. A balanced must be maintained so ultimate power rests with the people.
The U.S. Constitution was drafted from the plans of the existing "states" and the people in the former British colonies who recently deposed the king. Direct democracy was a common practice in New England and small towns along the East Coast. In the struggle to create a balanced system, much discussion was given to the power of the chief executive. There was a consensus amongst the Founding Fathers that George Washington would be the first executive since he was a trusted military leader. Perhaps the entire branch was modeled after Washington's characteristics. This may be why the delegates and ratification conventions put their trust in one person to rule the executive branch.
How to balance power between the three branches is a topic of many Federalist Papers and also a concern in the Anti-Federalist Papers. What some may find surprising are the areas of agreement. There was only one place in the world in the late 1700's where a group of government drafters accepted the following:
The principle of representative government; a bicameral legislature; a means to amend the Constitution in the future; a fixed time for elections; federalism and the supremacy of the national government over the states.
Disagreement arose over the need for a strong union, broad taxing powers, election procedures, the role of a standing army and the need for a Bill of Rights.
No Amendment has been proposed by the states or the people directly, yet "refom via convention has a much better chance of being comprehensive." Thomas Jefferson said, "Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.—It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only." 1 1
Amending the Constitution
Thomas Jefferson believed each generation could set the course for its own future and continue to improve the government through its own involvement. By keeping the Constitution current in the classroom we can keep democracy alive. "The reason the United States Constitution is the world's most enduring written constitution is not simply the genius of the fifty-five men who met in Philadelphia in 1787. Rather, it is the way that generation after generation of Americans has made the Constitution ours. The Constitution endures because its meaning and application have been shaped by an ongoing process of interpretation. 1 2 Dissection of the Constitution will show "the ultimate goal of our constitutional order is to produce not merely democratic procedures but a democratic culture: a culture in which all citizens can participate and feel they have a stake..." 1 3 Fred Karger believes we can "begin the dialog and show our 16- and 17-year-olds that we value them and their opinions. They can drive, pay taxes, enlist in the military at 17 and even vote in certain state primaries at 17 as long as they turn 18 by the general election." 1 4
Some may think it too lofty a goal to ask students to devise a future amendment. I realized through simple internet searches this task is often given to law students in a Constitutional Law course. My aim is simply to engage students in the process as a fun way to bridge necessary content. "Concerned collective action takes time to organize, but before it can be organized, its organizers must first understand the system. They must understand where the system may need to change and where the system can be changed in a way that has no exact precedent." 1 5
Congress
For a document that is over two centuries old to only have twenty-seven changes is quite remarkable but also problematic. Article V outlines the process of ratification either by 2/3 of Congress or 3/4 of the states. Since the Articles of Confederation required unanimous support, the Founding Fathers took illegitimate means to create a better framework. Perhaps one reason for the lack of amendments is the difficulty of the process.
"More than four thousand amendments have been proposed in Congress over the past forty years, with a grand total of six sent to the states for their consideration..." 1 6 Larry Sabato believes many of these proposals were worthy of consideration and they may have had a chance at the state level, "being closer to the people and insulated from many of the paralyzing forces that make progress difficult in Washington, D.C." 1 7 Any amendment dealing with Congress, like term limits, is a long shot as the members are not likely to cede power in the future, yet several state constitutions have such limits. 1 8 Some parliamentary systems have a check of a confidence vote by the public. If the representative does not hold a majority of public approval they are removed from office. The United States has recall and referendum votes at the local level but not federal. The GOP's famous Contract for America in 1994 promised to bring the issue to a House vote. They went through the motions but did not get enough votes for ratification by the states. 1 9
The twenty-sixth amendment was part of the original amendment group but did not gain approval with the Bill of Rights in 1791. The consideration for congressional compensation was not brought back until discovered by a student in 1982. The practice of asking Congress members to face the electorate before increasing their own compensation took 202 years to move through Congress.
Are federal term limits feasible? Could this be the 28th Amendment?
Judiciary
Many Anti-Federalist papers warn about the strength of the judiciary since minimal direction is given in Article III. Real direction for the American court system is given in the Judiciary Act of 1789, but still no qualifications were listed. The Constitution lists minimal age and citizen requirements for the president, senators and representatives yet no guidelines for the Supreme Court. The number of judges was not even codified in Article III, but left to Congress. There is no set path to the High Court, one only needs the nomination of the President and confirmation in the Senate. The Anti-Federalist Brutus calls for a totally independent judicial branch to allow courts to execute their power. He feared a concentration of power in the federal government which will necessarily limit the states. 2 0 Other critics call for the High Court to be supreme but not eternal. Even Justice Roberts argued for a fifteen-year limit on Supreme Court service. 2 1
Are elected federal judges the future? Could this be the 28th amendment?
Likewise, by participating in local jury trials, in civil as well as criminal cases, the people in their states acquired knowledge of the laws and the operation of government, and thereby, argued the Anti-Federalists, they become more responsible citizens. It was feared that this responsibility would be lost when cases were appealed to the proposed national Supreme Court, which had jurisdiction on appeal over all questions of law.
Under the judicial power, the courts would be able to expand powers of the legislature and interpret laws in a way Congress did not intend. Brutus interpreted the grant of judicial power to all cases arising under the Constitution as a grant of "judicial review." He opposed this grant, because he thought the judges, who were appointed for life, should leave it to Congress to interpret the constitutional reach of its powers. "The insularity produced by a lifetime tenure...often means that senior judges represent the views and outlooks of past generations better than current day." 2 2
Anti-Federalists including Brutus objected as well to the extensive appellate jurisdiction of the supreme court. Article III section 2 may have guaranteed a jury trial in criminal cases, but on appeal, the fate of the defendant would be up to the judges. The Anti-Federalists wanted to have the right of jury trials extended to civil cases and to have the results protected against appellate reconsideration.
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