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How do Judges Interpret the Constitution?


OverviewThis lesson can be used

in:Teaching strategies

National standards for

civics and government

Students explore competing approaches to interpreting the Constitution.

Government, Civics, Law, and Current Events courses

Group work, Document Based Question

II. A. What is the American idea of constitutional government?III. D. What is the place of law in the American constitutional system?

Essential QuestionHow do judges interpret the Constitution?

OutcomesAs a result of this lesson, students will be able to do the following:

Explain the basic tenets of the Originalist and the Living Constitution approaches to Constitutional Interpretation.

List several factors that judges consider when interpreting the Constitution.

Apply knowledge about Constitutional Interpretation to critically evaluate Supreme Court opinions.

HandoutsI. The Minnefornia ElectionsII. Background & Video Viewing GuideIII. DBQ—Originalism & a Living Constitution

© 2012 Street Law, Inc. 1


IV. Evaluating Opinions—Roper v. Simmons

CreditsThis lesson was developed with support from the Supreme Court Historical Society.

Preparing to teachAs written, this lesson includes four main activities spread over two days. The activities will not be necessary or appropriate for all students, so you should decide which components to use to meet the needs of your class. If you are pressed for time, consider omitting the “Minnefornia Elections” activity. There are also suggestions for extension activities and differentiation strategies at the end of the lesson.

Before teaching, copy the handouts for all students, and test the link for the video used on Day 1.

Day 1Introduction1) Remind the students of a divided ruling in an important Supreme Court

case that they have studied recently. For example, in Texas v. Johnson, the Supreme Court ruled that the government couldn’t make burning the American flag a crime. They said such laws were prohibited by the First Amendment. Have a volunteer read the text of the portion of the Constitution at issue in the case. In this example, the text reads “Congress shall make no law … abridging the freedom of speech.”

2) Ask the students if it’s absolutely clear to them what those words mean, and that (in this example) a law about burning a flag would be prohibited by them. Tell the students that many people disagree about exactly what all the words in any part of the Constitution mean, and that the Constitution doesn’t come with a guide to figuring it out.

3) The job of figuring out what it means and applying it belongs to judges. Judges must carefully study the law and the cases before them to figure out how the law applies. It’s not always easy, and they sometimes disagree about what a law or the Constitution means.



The Minnefornia Elections4) Tell the students that they’re going to work on figuring out what the

text of the Constitution means. Distribute Handout 1: The Minnefornia Elections to the students. Ask them to read the instructions. Clarify students’ task:

Carefully read the selected portion of the Constitution about the requirements for being a Representative in the U.S. House.

Together with a partner, read about the elections in Minnefornia and the three people who want to run in the election.

In each case, decide whether or not you think the person will successfully appear on the ballot on election day.

5) Allow 10–15 minutes for students to work. When the pairs have addressed all three examples, bring the class back together to discuss their answers. Call on different pairs to share the reasoning behind their answers for each of the three examples. An answer and discussion guide can be found at the end of this lesson.

Constitutional Interpretations: The Justices’ Thoughts6) Ask the students why it was tough to figure out what the Constitution

meant when it listed the requirements for being a member of the House of Representatives. Ask what clues they used to figure it out. If students don’t suggest the following, point them out as options:

The words—their definitions

History—how elections have been handled in the past

Consequences—what will happen as a result of their decision

Purpose or intent—why was the rule or law written that way in the first place

Precedent—how have other courts and judges decided similar cases

7) Tell them that much as they did, the justices on the Supreme Court sometimes disagree about how to figure out what the Constitution means. Share background information with students, either by distributing and having students read the first page of Handout 2:



Background & Video Viewing Guide, or by stating the concepts in your own words.

8) Tell students that they’ll now get to hear what two Supreme Court justices think about interpreting the Constitution. The video is a discussion with Justice Stephen Breyer and Justice Antonin Scalia, filmed at the Supreme Court as part of the 2010 Leon Silverman Lecture Series. The video is available at www.c-spanvideo.org/program/Intenta. Tell them that Justice Scalia is considered an Originalist, and Justice Breyer is a Living Constitutionalist. In the video, they’ll talk about their different philosophies and why they approach tough cases that way. Have students turn to the second page of Handout 2: Background & Video Viewing Guide. If students need extra support, review the guide with them:

Justice Scalia will begin by talking about who he’s thinking of when he reads “We, the People” in the Constitution, and what those people thought about the death penalty.

Justice Breyer will talk about how the Constitution must last indefinitely. He will list six things judges look at in difficult cases. Write them down in the chart. He will also mention which four of those Justice Scalia prefers to consider. Write them down in the chart.

Both justices will then outline Justice Scalia’s problems with Justice Breyer’s approach. Describe Justice Scalia’s concerns.

9) Watch the video. Start the video at 15:30, and play until 24:30. If students need extra support, rewind key passages and watch again.

10) Discuss the video and the points students recorded on their Viewing Guides. Answer questions that the students have about the justices’ remarks.

Document Based Question—Originalism or Living Constitutionalism?11) The DBQ (Handout 3) asks students to examine which approach is

better – Originalism or Living Constitutionalism. The handout provides excerpts of speeches or writing from four Supreme Court justices and a former attorney general. Select the excerpts you want to use with your


http://www.c-spanvideo.org/program/Intenta


students (note that the John Marshall excerpt has particularly difficult vocabulary and phrasing). Instruct students to carefully read each excerpt and answer the accompanying questions. After reading all excerpts, they should use the chart on the fifth page of the handout to organize the arguments for each constitutional interpretation approach. Students should restate key points in their own words and note which document the argument comes from. You might assign students to finish the assignment for homework, or you might complete the activity on Day 2.

12) Distribute Handout 3: DBQ—Originalism & a Living Constitution. Tell students how long they have to work in class.

Day 213) Finish DBQ in class, if not done for homework.

Identifying Interpretations: Roper v. Simmons14) Discuss the students’ work on the DBQ—what arguments did they

identify as being in favor of the Originalist approach? The Living Constitutionalist? Which were the most compelling to them?

15) Tell students that they will now work to apply their understanding of Originalism and Living Constitutionalism by examining quotes from actual Supreme Court opinions. Distribute Handout 4: Evaluating Opinions: Roper v. Simmons. Instruct students to read the background information and then examine each quote. For each, decide whether it demonstrates Originalism or Living Constitutionalism. Label each quote with an O or LC, accordingly. The purpose of this activity is to have students begin to think about the ways in which the justices’ stated philosophies work in practice.

16) After students have recorded their thoughts, have them discuss their answers with a partner. Bring the class back together and go over each quote – have students share what made them think a quote was an example of Originalism or Living Constitutionalism. Discuss the differences between the approaches taken in these quotes. Citations and comments for this Handout are provided in the Teacher Guide, at the end of this lesson.



Summary and Debrief17) Ask the students: What challenges do judges face in interpreting the

Constitution? How does each approach embody American notions of democracy? What approach would the students try to take if they were responsible for deciding difficult cases?

18) Consider assigning students extension activities, including:

Give students Justice Breyer’s checklist of the things a judge examines when deciding a case (text, history, traditions, precedent, values, and consequences) and have them read a Supreme Court opinion and identify examples of the analyses listed. Kyllo v. United States is one case you might use for this exercise.

Write an essay describing the student’s preferred interpretation approach that lists supporting arguments.

Write their own opinion in a Supreme Court case using a chosen or assigned Constitutional interpretation approach.

Note: Suggestions for DifferentiationTo accelerate the activities for advanced students, consider providing them with longer passages for DBQ analysis, or even complete speeches. The sources for the DBQ readings are listed in the Teacher Guide. The extension activities suggested above are also appropriate for advanced students.

To support students with lower reading levels, consider providing vocabulary words and close reading techniques for the DBQ. You might need to define the following words with students before they complete the DBQ: jurisprudence, fundamental, incumbent, ratified, defect, misconceive, abreast, unwavering, inconceivable, objective, fidelity, doctrinaire, incarnation, vantage, glean, eschew, and static. Also consider removing the John Marshall passage from the DBQ, as it uses particularly difficult language, and using the alternative version of Handout 4: Evaluating Opinions. The alternative Handout provides paraphrased versions of the quotes from the Roper v. Simmons opinions.


Handout 1: The Minnefornia Elections The State of Minnefornia has rules that govern its elections. The general election in 2012 will be on Tuesday, November 6. In order to run for Congress, a candidate must file a petition with Minnefornia’s Secretary of State 60 days before the election. If the candidate files the petition and meets the Constitutional requirements for office, the Secretary of State will put his or her name on the election ballot. You will act as the Secretary of State, and must decide whether each candidate’s name will appear on the ballot.

The Constitution says that people who want to serve in the U.S. House of Representatives must be 25 years old, have been a U.S. citizen for 7 years, and live in the state where they are elected. Specifically, it says:

The U.S, Constitution: Article 1, Section 2, Clause 2

No person shall be a Representative who shall not have attained to the Age of twenty five years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

1. Chad lives across the river from Minnefornia in the state of Georgiassippi. He works in Minnefornia and plans to move there before Election Day. He submits the required petition to be a candidate for the U.S. House of Representatives. Will his name be on the ballot?

2. Shannon is a recent graduate of the University of Minnefornia. She turns 25 on November 5, 2012. She turns in the petition to be a candidate for the U.S. House of Representatives. Will her name be on the ballot?

3. Desiree is a college student in Minnefornia. She is 22, and wants to run for the U.S. House of Representatives. She believes that the rule that you must be 25 is unfair, and that the world has changed a lot since the Constitution was written. She thinks that there should not be an age

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limit for public office. She turns in the petition to be a candidate. Will her name be on the ballot?


Handout 2: Background & Video Viewing Guide

BackgroundMany people—judges, legal scholars, political leaders, and citizens—disagree about the best way to interpret the different provisions in the Constitution. Two major competing approaches exist:

Some “Originalists” argue that the document should be interpreted according to the original intent of the people who wrote it in 1787 (often called “the Framers”), while others—including Justice Scalia—argue that it should be interpreted according to the original understanding of Americans when it went into effect in 1789.

Proponents of a “Living Constitution” argue that historical analyses can’t provide all the answers for modern situations and that where they don’t, judges must apply the values of the Constitution in light of modern circumstances.

Originalists criticize the Living Constitution approach because they believe it allows judges to substitute their own, personal values and desired outcomes for the will of the people. Living Constitutionalists criticize the Originalist approach because they believe we can’t tell what the Framers intended it to mean, or what the people of the time understood it to mean. They also believe that for the Constitution to endure, it must be adaptable to circumstances that the Framers could not imagine.

It is worth noting that the Constitution itself says nothing about how it should be interpreted.


As you watch the video, answer the questions below.

Justice Scalia says that when deciding cases, he cares for the people who ratified the Constitution. What does he say those people thought of the death penalty?

Justice Breyer says the Constitution created a workable democracy that is supposed to last for a long time. What is a judge’s job?

List the things that Justice Breyer considers when interpreting the Constitution “in difficult cases” in the left column. List the things he says Justice Scalia is “happier” considering in the right column:

Justice Breyer considers: Justice Scalia considers:1.

2.

3.

4.

5.

6.

1.

2.

3.

4.

Why does Justice Breyer think his approach makes Justice Scalia nervous?

Justice Scalia says that the Constitution is not an ____________________ of change, but rather that its purpose is to ________________change. How does the Constitution provide a flexible system?


Handout 3: DBQ – Originalism & a Living ConstitutionQuestion: Which approach is better—Originalism or a Living Constitution?Examine the following documents and consider the questions about each one. The documents will all discuss the author’s ideas about the best way to interpret the Constitution.

After examining each document, use the chart on page 5 to organize the arguments to support two different positions: that judges should take an Originalist approach to interpreting the Constitution, or that judges should take a Living Constitutionalist approach to interpreting the Constitution.

Document AChief Justice John Marshall, in the Supreme Court’s opinion from McCulloch v. Maryland (1819), in which the Court had to decide whether the Constitution gave Congress the power to create a national bank:

“[The] Constitution [is] intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.”

What does Chief Justice Marshall say about the Constitution’s adaptability?

© 2012 Street Law, Inc. DBQ: page 1 of 5

Document BEdwin Meese, Attorney General, from a speech delivered in 1985 (excerpted):

“What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence of Original Intention…“This belief in a Jurisprudence of Original Intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent, is a scheme of government no longer popular; the idea of democracy has suffered. The permanence of the Constitution has been weakened. A Constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense.“Those who framed the Constitution chose their words carefully; they debated at great length the most minute points. The language they chose meant something. It is incumbent upon the Court to determine what that meaning was…“It is our belief that only ‘the sense in which the Constitution was accepted and ratified by the nation,’ and only the sense in which laws were drafted and passed provide a solid foundation for adjudication. Any other standard suffers the defect of pouring new meaning into old words, thus creating new powers and new rights totally at odds with the logic of our Constitution and its commitment to the rule of law.”

What does Attorney General Meese say about the words used by the people who framed the Constitution?

What does Meese say will happen if judges ‘pour new meaning into old words’?


Document CChief Justice William Rehnquist, from an article in the Texas Law Review (1976):

“…Serious difficulties flaw the [approach] of the living Constitution. …It misconceives the nature of the Constitution, which was designed not to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times…However socially desirable the goals sought to be advanced… advancing them through a free-wheeling, nonelected judiciary is quite unacceptable in a democratic society.Under [some versions of] the living Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so.”

Who does Chief Justice Rehnquist say should be responsible for addressing the social problems of our country?

Document DJustice Stephen Breyer, from Making Our Democracy Work (2010):

“[We] require a constitution that works well for the people today… The Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how 18th century Americans used a particular phrase, but also how the values underlying that phrase apply today to circumstances perhaps then inconceivable.

“Originalists hope that judges will find answers to difficult constitutional questions by proceeding objectively, almost mechanically, to examine past historical fact. An objective approach will reassure the public that the Court’s interpretation reflects what history shows to have been the framers’ detailed intentions, not the judge’s own. … This historical approach, however, suffers serious problems. For one thing, it is less ‘objective’ than one might think. … history often fails to provide specific objective directions.”


How does Justice Breyer describe his view of the problem with Originalism?


Document EJustice William Brennan, from a speech at Georgetown University (1985):

“There are those who find legitimacy in fidelity to what they call ‘the intentions of the Framers.’ In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. …It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on the application of principle to specific, contemporary questions. Typically, all that can be gleaned is what the framers themselves did not agree about the application or meaning of particular constitutional provisions...Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles of changes to social circumstances.The ultimate question must be, ‘What do the words of the text mean in our time?’ For the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Does Justice Brennan think that we can accurately figure out what the Framers meant when they wrote specific parts of the Constitution? Why or why not?

What does Justice Brennan think is the ‘genius of the Constitution’?


Arguments for Originalism and a Living ConstitutionUse the chart below to organize the arguments presented in the documents. List reasons in favor of the Originalist approach in the left column, and reasons in favor of the Living Constitutionalist approach in the right column.

The Constitution should be interpreted using the Originalist approach:

The Constitution should be interpreted using the Living Constitutionalist approach:

Argument from:

Document _______

Document _______

Document _______

Argument from:

Document _______

Document _______

Document _______


Handout 4: Evaluating Opinions—Roper v. Simmons In 2005, the Supreme Court decided a case about the Eighth Amendment. The Eighth Amendment prohibits “cruel and unusual punishments.” Christopher Simmons, a 17-year-old, was convicted of murdering a woman and was given the death penalty. Simmons appealed his death sentence, arguing to the Court that it was “cruel and unusual punishment” to execute a person who was under the age of 18 at the time the crime was committed. The Supreme Court had to decide whether to ban the death penalty for juveniles.

The excerpts below come from the Supreme Court justices’ opinions in this case. Read each excerpt and decide whether it represents an Originalist (O) approach or a Living Constitutionalist (LC) approach to interpreting the Eighth Amendment’s ban on “cruel and unusual punishments.”

____“We share a common history with the United Kingdom, and … often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought.”

____ “If the meaning of [the Eighth] Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7–year–old children today. … The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment.”

____ “[In a previous case, the] Court determined that executing mentally retarded offenders ‘has become truly unusual, and it is fair to say that a national consensus has developed against it.’ … [There is] evidence of national consensus against the death penalty for juveniles … 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but … exclude juveniles from its reach.”

____ “[The majority’s conclusion is that] the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed….[It finds], on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists.”

____ “… the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our


own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment…The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.”


Handout 4 (alt): Evaluating Opinions—Roper v. Simmons In 2005, the Supreme Court decided a case about the Eighth Amendment. The Eighth amendment prohibits “cruel and unusual punishments.” Christopher Simmons, a 17-year-old, was convicted of murdering a woman and was given the death penalty. Simmons appealed his death sentence, arguing to the Court that it was “cruel and unusual punishment” to execute a person under the age of 18. The Supreme Court had to decide whether to ban the death penalty for juveniles.

The excerpts below are paraphrased from the Supreme Court justices’ opinions in this case. Read each excerpt and decide whether it represents an Originalist (O) approach or a Living Constituionalist (LC) approach to interpreting the Eighth Amendment’s ban on “cruel and unusual punishments.”

____ A lot of America’s history is the same as England’s history—some of our laws are based on theirs. When interpreting some parts of the Constitution, we should therefore consider what legal scholars in England in the 1700’s would have thought about the meaning of words.

____ In 1791, when the Eighth Amendment was written, the execution of a 7-year-old would not have been considered “cruel and unusual punishment.” America’s standards of decency have changed since then and we can no longer read the Eighth Amendment as allowing something like that.

____ In a previous case, the Supreme Court said that executing mentally retarded people was “cruel and unusual” because most of the states agreed that it was wrong. There is now evidence that most of the states agree that it’s wrong to execute juveniles. Therefore, executing juveniles might also be “cruel and unusual.” Thirty states don’t allow the death penalty for people under 18. Twelve of those states have no death penalty at all and the other 18 still have the death penalty but don’t allow the execution of juveniles.

____ The justices in the majority think that the meaning of the Constitution has changed in the past 15 years. The Court ruled 15 years ago that it was not “cruel and unusual” to execute juveniles. The majority is not saying that the ruling 15 years ago was wrong, but that the meaning of the Constitution has changed in that time. It finds that there is now an agreement among most states that the execution of juveniles is wrong, even though nothing has actually changed since the ruling 15 years ago.

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____ The majority has decided that its own judgment matters more than the judgment of the people who were elected to write laws. Judges should not use their own judgment, or the opinions of foreign courts, to determine what is morally right for the Nation.


Teacher Guide

Additional information The following terms tend to show up in class, textbooks, and in the media. They are not terms that are truly helpful in understanding constitutional interpretation, but it’s helpful to know what they are used to mean.

Judicial activism It’s bad to be accused of judicial activism. This term is used when there is (allegedly):

a failure to defer to a political branch of government a failure to follow constitutional text a failure to follow established precedent a decision based on a judge’s political values a decision you just plain don’t like

This term is not reserved for use exclusively with politically liberal or conservative decisions. Both sides accuse the other of being “activist.”

Judicial RestraintIt’s good to be accused of judicial restraint. This term is used when there is (allegedly):

proper deference to a political (democratic) branch (or to a state court decision)

adherence to constitutional text adherence to established precedent “judicial modesty” a decision you do like

This term is not reserved for use exclusively with politically liberal or conservative decisions.

Strict Constructionist This is a political term that doesn’t have a serious meaning. Various presidents, for example, have said they wanted to appoint federal judges (including Supreme Court justices) who are “strict constructionists.” At different times in the last 40 years this term has been used to identify judges who adhered to the text of the constitution, did not invent new rights and were: against school desegregation, against abortion rights, for states rights, for the death penalty, etc.


Clearly the term doesn’t mean what it says – people who support having strict constructionists appointed to the Court do not think that “Congress shall make no law…” in the First Amendment really means NO LAW, or that the word EQUAL in the equal protection clause of the 14th Amendment really means EQUAL. A more legal and less political interpretation of this phrase is that it means being a textualist, or deferring to the actual text of the constitution – although no one is really against deferring to the text of the constitution where the text makes the outcome of a case clear.


AnswersHANDOUT 1: THE MINNEFORNIA ELECTIONS1. Although this is not a situation that the U.S. Supreme Court has ruled

on, Chad’s name should probably appear on the ballot. He will inhabit Minnefornia before his possible election. As such, Chad would “when elected, be an Inhabitant of that State… .” All other requirements are met.

2. Although this is not a situation that the U.S. Supreme Court has ruled on, Shannon’s name should probably appear on the ballot. She will turn 25 before Election Day and before beginning her service as a Representative if she is elected. As such, Shannon would be “a Representative… attained to the Age of twenty five years…. ” All other requirements are met.

3. Although this is not a situation that the U.S. Supreme Court has ruled on, Desiree will be out of luck. The Constitution is clear for her case. One must be 25 years old in order to serve as a Representative – not 22 or even 23 or 24. Desiree’s situation does not suggest she would meet the age requirement by the time of election or when service as a Representative would begin.

HANDOUT 2: BACKGROUND & VIDEO VIEWING GUIDEJustice Scalia …What does he say those people thought of the death penalty?

He says there is no doubt that no American ever voted for a limited death penalty when they voted to ratify the Eighth Amendment—death was the penalty for all felonies. Saying that the Constitution prohibits the death penalty is not being faithful to the will of the people.

Justice Breyer …What is a judge’s job?

To apply the words to circumstances today. List the things that Justice Breyer considers… List the things he says Justice Scalia considers.

1. Read the words2. Look at the history3. Examine traditions surrounding

words4. Look at precedent5. Consider the purpose or values6. Look at the consequences of the

1. Read the words2. Look at the history3. Examine traditions surrounding

words4. Look at precedent


decision through the lens of values

Why does Justice Breyer think his approach makes Justice Scalia nervous?

Justice Scalia’s afraid judges will substitute their subjective ideas for something objective.

Justice Scalia says that the Constitution is not an instrument of change, but rather that it’s purpose is to impede change. How does the Constitution provide a flexible system?

You can persuade your fellow citizens to join your position and vote.


HANDOUT 3: DBQWhat does Chief Justice Marshall say about the Constitution’s adaptability?

The Constitution must be adapted to new crises and problems. The Framers couldn’t have forseen all potential problems, and they necessarily wrote an adaptable document.

What does Attorney General Meese say about the words used by the people who framed the Constitution?

That the framers chose their words carefully and debated minute points at great length.

What does Meese say will happen if judges ‘pour new meaning into old words’?

Judges will create new powers and new rights that are at odds with the logic of our Constitution.

Who does Chief Justice Rehnquist say should be responsible for addressing the social problems of our country?

Through the popularly elected branches (not the unelected judiciary).

How does Justice Breyer describe his view of the problem with Originalism?

It is less objective than it appears to be because history often fails to provide specific objective directions.

Does Justice Brennan think that we can accurately figure out what the Framers meant when they wrote specific parts of the Constitution? Why or why not?

No, he thinks it is arrogant to assume we could gauge their intent. It is problematic to figure out what they would have thought about today’s problems.

What does Justice Brennan think is the ‘genius of the Constitution’?

Its adaptability to cope with current problems and current needs.

Organization of the arguments:

Student’s lists will differ. Generally arguments for the Originalist approach will come from documents B and C, while arguments for the Living Constitutionalist approach will come from documents D and E. Students should paraphrase accurately and completely.


HANDOUT 4: EVALUATING OPINIONS – ROPER V. SIMMONS“We share a common history with the United Kingdom….” — Justice O’Connor, Dissenting Opinion

This is best categorized as an Originalist interpretation, as Originalists are concerned with the way that the people of the 1700’s would have understood each word and phrase of the Constitution. Living Constitutionalists do this as well, but they look at the history more for background than for guidance.


“If the meaning of [the Eighth] Amendment had been frozen…” — Justice Stevens, Concurring Opinion

This is best categorized as a Living Constitutionalist interpretation, as Living Constitutionalists believe that the meaning of provisions in the Constitution can change over time to reflect current societal standards. Here, Justice Stevens refers to “evolving standards of decency,” indicating that people today no longer think it’s ok to execute young children.

“…Court determined that executing mentally retarded offenders…” — Justice Kennedy, Majority Opinion

This is best categorized as a Living Constitutionalist interpretation, as Living Constitutionalists are more likely to consider how the nation as a whole has come to regard the issue at hand. This does not necessarily determine their decisions, but it is an important factor to consider.

“…the meaning of our Constitution has changed over the past 15 years…” — Justice Scalia, Dissenting Opinion

This is best categorized as an Originalist interpretation, as Originalists don’t believe that “national consensus” can be used as a guide because it would cause the meaning of the Constitution to change so often as to nullify the fundamental principles of the document.

“…The Court thus proclaims itself sole arbiter of our Nation’s moral standards…” — Justice Scalia, Dissenting Opinion

This is best categorized as an Originalist interpretation, as Originalists fear that interpreting the Constitution as a “living” document will ultimately result in important issues being decided solely by the preferences of the justices of the Supreme Court at any given time.

ResourcesCitations for the readings used in the DBQ:

The Supreme Court’s opinion in McCulloch v. Maryland: www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZS.html

Chief Justice William Rehnquist, The Notion of a Living Constitution, from the Texas Law Review, 1976: www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf


http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZS.html

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZS.html

Attorney General Edwin Meese, Speech to the American Bar Association, 1985: www.justice.gov/ag/aghistory/meese/1985/07-09-1985.pdf

Justice William Brennan, Speech at Georgetown University, 1985: www.pbs.org/wnet/supremecourt/democracy/sources_document7.html

Justice Stephen Breyer, Making our Democracy Work, 2010, Alfred A. Knopf: New York, NY, pages 83-84.

Street Law provides summaries of dozens of recent Supreme Court cases, as well as lessons and activities about other Constitutional concepts and Supreme Court procedures on its website:

Lesson plans and teaching strategies: www.streetlaw.org/sclessons


http://www.streetlaw.org/sclessons

http://www.pbs.org/wnet/supremecourt/democracy/sources_document7.html

http://www.justice.gov/ag/aghistory/meese/1985/07-09-1985.pdf

http://www.justice.gov/ag/aghistory/meese/1985/07-09-1985.pdf

Case studies: www.streetlaw.org/sccasestopic Materials on 17 Landmark Supreme Court cases:

www.landmarkcases.org

Note: Use of Community Resource PeopleWhile Street Law typically advocates the integration of legal professionals and community resource people into classroom lessons, this material may pose particular challenges. It may be difficult for teachers to find a legal expert who specializes in this area of constitutional law, but still possesses the ability to make the material accessible to students. If you do invite a legal expert to join your class for this lesson, choose someone who you feel fits those criteria and share the lesson plan with them in advance.


http://www.landmarkcases.org/

http://www.streetlaw.org/sccasestopic

street law, inc. work... · web viewjudges must carefully study the law and the cases before them...

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