History 420 - Dr. Gayle Olson-Raymer

Understanding our Rights: How do we teach our students about their rights?

Painting of Bill of Rights

Introduction: One of the main themes of this course is "Controversy, conflict and compromise shaped and continues to shape both historical dialog and debate." As we have already learned, every right that we have as Americans stems from the controversy, conflict, and compromises the Founding Fathers and our legislators have experienced throughout history. Today we are going to discuss how to teach our students their rights AND their responsibilities as American citizens. And just why is this so important in the 21st Century? The answer is both shocking and sad - most Americans have little to no understanding of their Constitutional rights as embodied in the Bill of Rights or in the remainder of the Constitutional Amendments.

The Bill of Rights was not a part of the original Constitution. In fact, it was drafted and passed a year after the Constitution was ratified. What was the Political Cartoon of Bill of Rightsproblem? The northern delegates to the Constitution felt that there was no need to list - or enumerate - particular rights because it was implicit in the contract between the people and the new government that it would protect all the rights of the people. The southern delegates, however, did not trust the newly-created federal government to protect rights that the states had enacted, so it required built in protections for the states via the Bill of Rights. In fact, to them freedom of speech simply meant that state and federal legislators - not "we the people" - had the right to criticize the U.S. government. In reality, the Bill of Rights was originally written by the Founding Fathers to protect the states against the abuses of the federal government, NOT to secure rights for individual Americans.

While most Americans know nothing about this controversial origins of our Bill of Rights, they are even more ignorant about what our rights actually are. According to the McCormick Tribune Freedom Museum poll in 2006,* only 28% of Americans were able to name more than one of the five fundamental freedoms guaranteed to them by the First Amendment to the U.S. Constitution. Further,

In the same poll, only 8% of Americans were able to name at least three freedoms guaranteed under the First Amendment and .1 percent of Americans (1 in 1,000) were able to name all five freedoms guaranteed under the First Amendment. So today, we are going to think about the Bill of Rights and our responsibilities as educators to teach it well.

Goals for Today's Discussion:

  1. To think clearly about rights and responsibilities.
  2. To help your students learn about their rights and responsibilities.
  3. To discuss teachable points about the Bill of Rights.
  4. To understand the importance of the Freedom Amendments.
  5. To discover how the Bill of Rights has been applied over the past 200 years

But first, we need to clarify some of the issues related to our final requirements for the semester: changes to the course syllabus, and specific requirements for the lesson plan.

Changes to the Course Syllabus:


Requirements for the Lesson Plan:

Goal #1: To think clearly about rights and responsibilities

What is a right, and where does it come from? A right is freedom that is protected by tradition or law.

What is a responsibility? A responsibility is a duty or something you should do because you are part of something bigger than yourself.

Methods Discussion: Group Discussion. There are many times you will want your students to sit down and have a small discussion among themselves BEFORE you begin a new topic of discussion. This is what we are going to do with the Bill of Rights. So please follow the directions below:

  1. Get into four groups of 4-5 each. Choose someone to take down notes on the 3M poster.
  2. Take another 6 minutes to do the same as above with responsibilities.

Class discussion:

  1. What is the difference between rights and responsibilites? Must both be taught in our history classrooms? Why?
  2. What happens when people don't accept responsibility?

Now, let's assume that one of our responsibilities - a responsibility we want to teach in our classrooms - is understanding how our government operates under the rules in our Constitution. This means our students should know the answers to these questions: How many branches of government?  Which branch is responsible for passing laws?  What are the responsibilities of the Chief Executive?  What is impeachment?  Has any president ever been impeached?  If so, who?  Who is the commander in chief of the United States.  What does the U.S. Supreme Court do? DO YOU KNOW THE ANSWERS?

Goal #2: To help your students learn about their rights and responsibilities

It is not enough for our students to know about the Constitution and the Bill of Rights. They have to know THEIR rights. Fortunately for us, the American Civil LibertiesUnion (ACLU) publishes several handbooks on student rights to express their political and social rights at school, the rights of LGBTQ students, and rights related to police questioning or arrest of young people. Additionally, the ACLU has a series of excellent "Know Your Rights" publications - especially in regard to immigration. These handouts will also help you.

Goal #3: To discuss teachable points about the Bill of Rights

  1. Bills of rights that emphasize respect for liberty and suspicion of government are an American tradition.Copy of Bill of Rights
  2. A significant number of the Founding Fathers originally opposed the Bill of Rights.
  3. The Bill of Rights was the result of political debate and compromise.
  4. The Bill of Rights was designed to protect the minority against the majority.
  5. The Bill of Rights at first only applied to the federal government, not the states. The first words of the Bill of Rights say that “Congress shall make no law” restricting certain rights.
  6. The final Bill of Rights did not contain all of the original amendments proposed by Madison.
  7. The enforcement of the Bill of Rights depends not on the federal government, but on the vigilance and education of all Americans.
  8. The Bill of Rights was based upon "negative rights;" the quest for "positive rights" continues.
  9. The Constitution and the Bill of Rights only limit the actions of the government, not private parties. Therefore, freedom of speech does not apply to the private workplace, and the Second Amendment does not guarantee the right to carry a gun in the office. Private employers can require drug testing, even when the federal government cannot.

There are a total of 27 Amendments to the Constitution and the first ten are important for us to understand. While the others are extremely important, there are three that are incredibly important to teach - and to teach well.

Goal #4: To understand the importance of the Freedom Amendments.

Without the dedication of a small group of Radical Republicans, the so-called Freedom Amendments - the 13th, 14th, and 15th Amendments - would never have happened.

Methods Discussion: Using your now expert understanding of the Think/Pair/Share method, take a minute to think about who the Radical Republicans were and The three freedom amendmentswhat their goals were for the U.S. once the Civil War was over. Turn to your neighbor and take another minute to make sure you agree.

So, it was this small, but determined group of Congressmen who really pushed through these amendments.

Political cartoon of 15th Amendment

Methods Discussion: Working in Small Groups of 3-4, take 10 minutes to discuss what you believe to be the 2-3 most teachable points about the Freedom Amendments. Be sure that you have a clear rationale for each point.

Goal #5: To discover how the Bill of Rights has been applied over the past 200 years

Bill of Rights illustrated with  pictures

Applying the Bill of Rights - A Selected Chronological Journey (Everything in red indicates a U.S. Supreme Court decision.)

1798 - Congress passed the Sedition Act to quiet Pro-French, anti-federalist dissenters who disapproved of a possible war between the U.S. and France.  The Act required criminal penalties for persons who said or published anything “false, scandalous, or malicious” against the federal government, Congress, or the president.  Twenty-five American citizens were arrested under the Act, including a Congressman convicted and imprisoned for calling President Adams a man who had “a continual grasp for  power.”  The Act expired in 1801 and President Jefferson Political cartoon about 14th Amendmentpardoned those convicted under its powers.  (Read the Act at http://www.law.ou.edu/ushistory/sedact.shtml)

1833 - U.S. Supreme Court in Barron v. Baltimore decided that only the federal goverment was bound by the Bill of Rights. John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses. The question on appeal to the court was does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner? The Court's answer - announced without even hearing the arguments of the City of Baltimore - was no. Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government and were not applicable to the states. (Read the entire case at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=32&invol=243)

1861 - President Lincoln signed the “Writ of Habeas Corpus Relating to the Events in Baltimore” which suspended the constitutional guarantee giving prisoners the right to be brought to court to determine if they were being legally held as well as the right to challenge their detention through independent judicial review.  He then ordered military authorities to arrest and detain those in the northern and border states who aided the rebel cause, were believed to be Confederate spies, and who resisted the draft - and detained them until the war’s conclusion.  He also ordered that all arrested under this law could be tried and punished by military courts as regular courts were deemed to be inadequate during a rebellion and all those who opposed the Union endangered “the public safety.”  (Read the executive order at http://www.civilwarhome.com/Writ.htm)

1917 - Congress passed the Espionage Act that outlawed statements “obstructing the war effort” and “aiding the enemy;” forbade “false statements” designed to “obstruct” enlistment into the armed services and conspiracies designed to cause “disloyalty” or “insubordination;” and banned from the mail materials considered to be treasonable.  Those found guilty were subject to heavy fines and imprisonment of up to 20 years. (Read the Act at http://www.thirdworldtraveler.com/Civil_Liberties/Espionage_Act_1917.htm

1918 - Congress passed the Sedition Act which prohibited the utterance or publication of anything “disloyal, profane, scurrilous, or abusive” about the U.S. government or the American flag.  Those found guilty could face up to a 21-year prison sentence. (For the full text, see http://www.thirdworldtraveler.com/Civil_Liberties/Sedition_Act_1918.htmImage of Schenk's pamphlets

1919 - U.S. Supreme Court in Schenck v. United States upheld the Sedition Act. In 1918, Charles Schenck, general secretary of the American Socialist Party, was arrested and convicted for sending 15,000 anti-draft circulars through the mail to men scheduled to enter the military. The circular called the draft law a violation of the 13th Amendment's prohibition of slavery and urged draftees to "petition for repeal." The government accused Schenck of illegally interfering with military recruitment under the Espionage Act. Schenck admitted that he had sent the circulars, but argued he was exercising his 1st Amendment right to freedom of speech.  The Court ruled that freedom of speech could be limited by the government - but only when there was a "clear and present danger" such as during war.  Chief Justice Holmes wrote the opinion for the unanimous court, declaring that, “Free speech would not protect a man falsely shouting fire in a theater and causing panic.”  (Read the decision at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=249&invol=47

The U.S. Supreme Court in Abrams v. U.S.  reiterated the "clear and present danger" test in Schenck.  In 1918, Jacob Abrams and others were convicted of distributing pamphlets criticizing the Wilson administration for sending troops to Russia. While the government was unable to prove that the pamphlets actually hindered the operation of the military, a lower court judge found that they might have done so and, in turn, found Abrams and his co-defendants guilty. On appeal, seven members of the Supreme Court used Holmes's "clear and present danger" test from Schenck v to sustain the conviction.  Justices Holmes and Brandeis dissented in what soon became widely recognized as the starting point in modern judicial concern for free expression. (Read the decision at http://www.bc.edu/bc_org/avp/cas/comm/free_speech/abrams.html

1925 - U.S. Supreme Court in Gitlow v. New York was the first case to require the states to guarantee freedom of speech. Benjamin Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for establishing socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued the unconstitutionality of the New York courts' decisions that anyone who advocated the doctrine of violent revolution violated the law. The question before the court was does the New York law punishing the advocacy of overthrowing the government comprise an unconstitutional violation of the free speech clause of the First Amendment? The Court decided that the First Amendment applied to the states by virtue of the liberty protected by due process that no state shall deny (14th Amendment). (Read the decision at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=268&invol=652)

1931 - U.S. Supreme Court in Near v. Minnesotawas the first case to require to states to guarantee freedom of the press. Jay Near published a scandal sheet in Minneapolis, in which he charged that public officials were involved with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The question before the Court was does the Minnesota "gag law" violate the free press provision of the First Amendment? The Court ruled that the Minnesota law targeting publishersof "malicious" or "scandalous" newspapers violated the First Amendment to the United States Constitution (as applied through the Fourteenth Amendment). (Read the decision at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0283_0697_ZS.html)

1937 - U.S. Supreme Court in Palko v. Connecticut was the first case to ponder whether protection against double jeopardy applied to the states. In 1935, Frank Palko had been charged with first-degree murder but was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. The question before the court was does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause? The Supreme Court upheld Palko's second conviction, arguing that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. However, protection against double jeopardy was not a fundamental right. Palko died in Connecticut's electric chair on April 12, 1938. (Read the decision at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0302_0319_ZO.html)

1947 - U.S. Supreme Court in Everson v. Board of Education of Ewing Townshipwas the first case to require states to guarantee religious freedom. A New Jersey law parents to be reimbursed if they sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy. The question before the Court was did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment? A divided Court held that the lawBill of Rights political cartoon did not violate the Constitution, arguing that services like bussing and police and fire protection for parochial schools were "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment.The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school.

1961 - U.S. Supreme Court in Mapp v. Ohio was the first case to require states to uphold the exclusionary rule in cases search and seizure. Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. The question before the Court was may evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding? The Court declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. (Read the decision at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=367&invol=643)

1962 - U.S. Supreme Court in Robinson v. California was the first case to require states to apply cruel and unusual punishment guarantees. A California statute made it a criminal offense for a person to "be addicted to the use of narcotics." Lawrence Robinson was convicted under the law, which required a sentence of at least ninety days in jail. A state appellate court affirmed Robinson's conviction on appeal. The questions before the Court: was the California law an infliction of cruel and unusual punishment prohibited by the Eighth Amendment? In a 6-to-2 decision, the Court held that laws imprisoning persons afflicted with the "illness" of narcotic addiction inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court likened the law to one making it a criminal offense "to be mentally ill, or a leper, or to be afflicted with a venereal disease," and argued that the state could not punish persons merely because of their "status" of addiction. The Court noted that the law was not aimed at the purchase, sale, or possession of illegal drugs. (Read the decision at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=370&invol=660)

1963 - U.S. Supreme Court in Gideon v. Wainwright was the first case to apply right to counsel to the states. Gideon, who was charged in a Florida state court with a felony for breaking and entering, lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison. The question on appeal to the Supreme Court was did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments? In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney and that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. (Read the decision at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=372&invol=335)

1964 - U.S. Supreme Court in Malloy v. Hoan was the first case to apply self-incrimination to the states. William Malloy was arrested during a gambling raid in 1959 by Hartford, Connecticut police. After pleading guilty to pool selling, a misdemeanor, he was sentenced to one year in jail and fined $500, but the sentence was suspended after 90 days and Malloy was placed on two years probation. Some 16 months following his plea, a Superior Court appointed referee ordered Malloy to testify about gambling and other criminal activities in Hartford County. When Malloy refused, "on grounds it may tend to incriminate [him]" he was imprisoned for contempt and held until willing to answer questions. Malloy filed a habeas corpus petition challenging his confinement. On appeal from the Connecticut Supreme Court of Errors ruling, upholding an adverse Superior Court denial, the Supreme Court granted certiorari. The question before the court was does the Fourteenth Amendment protect a state witness's Fifth Amendment guarantee again self-incrimination in a criminal proceeding? In a 5-to-4 opinion, the Court held that the Fifth Amendment's exception from compulsory self-incrimination is protected by the Fourteenth Amendment against abridgement by a state. (Read the decision at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=378&invol=1)

1968 - U.S. Supreme Court in Duncan v. Louisiana was the first case to apply right to a jury trial to the states. Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan was sentenced to 60 days in prison and fined $150. Duncan's request for a jury trial was denied. The question to the Court on appeal was whether the State of Louisiana was obligated to provide a trial by jury in criminal cases such as Duncan's? In a 7-to-2 decision, the Court held that the Sixth Amendment guarantee of trial by jury in criminal cases was "fundamental to the American scheme of justice," and that the states were obligated under the Fourteenth Amendment to provide such trials. (Read the decision at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=391&invol=145)

1969 - U.S. Supreme Court in Benton v. Maryland was the first case to apply double jeopardy to the states. John Dalmer Benton was tried in Maryland on charges of larceny and burglary. Bill of Rights cartoonHe was acquitted of larceny, but found guilty on the burglary count and sentenced to 10 years in prison. Shortly afterwards, the Maryland Court of Appeals ruled in another case that the portion of the Maryland Constitution which had required all jurors to swear their belief in the existence of God was unconstitutional. Since the jurors in Benton's case had been selected under the unconstitutional provision, he was given the option of demanding a new trial. Benton underwent a new trial, but the state again charged Benton with larceny even though he had been acquitted of larceny in the first trial. The second trial concluded with Benton being found guilty of both burglary and larceny. The question before the Court was if the second trial constituted double jeopardy. The Supreme Court ruled that the second trial did constitute double jeopardy and even though no protection against double jeopardy was guaranteed in Maryland's state constitution, the Due Process Clause of the Fourteenth Amendment incorporated the Double Jeopardy Clause of the Fifth Amendment made it enforceable against the states. The case overruled Palko v. Connecticut. (Read the decision at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=395&invol=784)

2008 - U.S. Supreme Court in District of Columbia v. Heller was the first case to to challenge gun control laws and the Second Amendment. After the District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked, a group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The federal trial court in Washington D.C. refused to grant the plaintiffs relief, holding that the Second Amendment applies only to militias, such as the National Guard, and not to private gun ownership. The U.S. Court of Appeals for the District of Columbia Circuit disagreed, voting that the Second Amendment does in fact protect private gun owners such as plaintiffs. The question before the Court was whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violated the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment. (Read the decision at http://www.law.cornell.edu/supct/html/07-290.ZO.html.)

2010 - U.S. Supreme Court in McDonald v. Chicago was the first case to hear how states can apply gun laws under the 2nd Amendment. Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states.

Political cartoon about loss of rights

One last thing that is a really interesting idea to use with your students is to look at a list of amendments that have been proposed over the years. To see a partial list, go to http://www.constitutionfacts.com/us-constitution-amendments/proposed-amendments/