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LAW WISE

September 17 US Constitution Day

September 17-23 Celebrate Freedom Week

Calendar of events

Greetings from the Kansas Bar Association (KBA). Welcome to this edition of Law Wise, the first of the 2017-2018 school year.

Coordinators: Hon. G. Joseph Pierron Jr., Chair, Law-Related Education Committee Anne Woods, Public Services Director, Nicolas Shump, Law Wise Editor & Patti Van Slyke, Journal Editor

SEPTEMBER 2017 • ISSUE 1PUBLISHED BY

The Story of the ConstitutionBefore the Constitution

After breaking away from England and the tyranny of King George III, the founders feared replacing one monarch and potential tyrant with another. After going through several drafts including one writ-

ten by Benjamin Franklin, a draft written by John Dickinson of Pennsylvania became the basis for the document submitted to Congress in 1776 after the Declaration of Independence. After a number of revisions Congress submit-ted the Articles to the states in November of 1777.

By 1779, all the states except Maryland had approved the document. Maryland resisted because of some territorial claims to western territory stretching to the Mississippi River. Thomas Jefferson brokered an agree-ment resolving this issue of various colonial charters to the western terri-tory. The Articles were ratified and took effect in March of 1781.

Life under the Articles of Confederation

There were still unresolved issues and controversies regarding the Ar-ticles and the balance of power between the national government and the member states. However, with the U.S. still at war with England, many of these issues remained unresolved. Some of the major issues included taxation, slavery, and the sovereignty of the states.

IN THIS ISSUE

The Story of the Constitution .......................... 1

Terrific Technology for Teachers ...................... 4

Civic Engagement ........................................... 5

iCivics: ........................................................... 5

Mock Trial ...................................................... 6

Lesson Plans: Lesson Plan 1: The Articles vs. the Constitution, a Comparative Analysis

Grades 9-12 ................................................ 7

Lesson Plan 2: The United States of ? Creating Your Own Government and

Constitution Grades 7-12 ............................................ 7, 8

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Here are some of the main features of the Articles of Con-federation:

• Congress could request, but not mandate taxes from the states

• No system of federal courts existed• Congress did not have the power to regulate trade or

interstate commerce• No provision for a chief executive or President• Unanimous vote required to amend the Articles• A single legislative body• Every state had one representative in the legislature re-

gardless of size• No federal army, states would contribute their own

troops• States retained their sovereignty• Legislation required approval of nine of the thirteen

states for passage

Knowing the type of government and government institu-tions today, it might seem odd to see such a vastly different form of government. By the conclusion of the Revolutionary War, problems with the Articles and the type of government they created led the American leaders to call for a convention to amend the Articles of Confederation in 1787.

Revision or Replacement

Realizing the problems and limitations imposed on the fed-eral government by the Articles of Confederation, James Mad-ison, Alexander Hamilton and George Washington spearhead-ed the movement to gather the states to address the Articles of Confederation. Several other states followed Virginia’s lead: New Jersey, Pennsylvania, North Carolina, Delaware, and Georgia. In February of 1787, Congress approved the idea of a “Grand Convention” of the states to revise the Articles of Con-federation. Soon after New York, South Carolina, Massachu-setts, Connecticut, Maryland, and New Hampshire agreed to send delegates to the convention. Only Rhode Island declined to attend.

As is often the case with Congressional proclamations and laws, not everyone held the same idea as to what the “Grand Convention” had the authority to do. Congress declared a con-vention to meet “for the sole purpose of revising the articles of Confederation and reporting to Congress and the several leg-islatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”

Congress expressly stated the sole purpose was to revise the Articles of Confederation. However, the statement goes on to say the convention should make the Constitution adequate to govern the United States and to preserve the unity of the young nation.

Constitutional Inspirations

Both contemporary and historical accounts of the Constitu-tional Convention and the document produced justly celebrate the unique nature of this undertaking. While Thomas Jeffer-son’s characterization of the delegates as “demi-gods” might be hyperbole, as Alexander Hamilton noted in Federalist Paper 1,

never before had a government been established through rea-son and deliberation and not war and bloody rebellion.

The Constitutional delegates were certainly the best and brightest America had to offer. They had excellent classical educations which served them well as they worked to create a document to allow America to govern itself, a document that has endured to this day.

The Greek philosopher Aristotle’s treatise, “The Politics,” served as a fundamental inspiration for the delegates. In this work, Aristotle, having collected and read numerous written constitutions from all over Greece, as well as observing various nations and leaders, developed a framework for the best and worst forms of government. He categorized government into the following areas:

• Government of the one• Government of the few• Government of the many

He concluded the best form of government would be a “pol-ity,” which he viewed as the best form of government of the many. Perhaps surprisingly, Aristotle viewed democracy as a deficient form of government of the many.

The English philosopher John Locke had given inspiration to Thomas Jefferson and other colonists with his argument that governments come from the people and not from God, who had been the authority behind the belief in the “divine right of kings” theory of absolute monarchy. Both Locke and the American founders believed in the “consent of the governed.” Furthermore, the belief that when a government of any form no longer preserved the rights of the people, the people had a “right to rebellion.” Having observed the English Civil War of the seventeenth century, Locke felt the legislature should have a central role in government to check the power of a monarchy or central executive.

A French writer, the Baron de Montesquieu had recently ex-pressed this notion of “checks and balances” and the separa-tion of powers of government in his work The Spirit of the Laws published in 1748. Montesquieu served as the president of the parlement of Bourdeaux. In eighteenth century French soci-ety, the parlements served as local judicial bodies composed of nobles who believed they had the right to challenge laws passed by the king and to limit royal authority. Additionally, Montesquieu claimed each type of government had a particu-lar identity or spirit. The spirit of monarchy was honor, the spirit of tyranny was fear, and the spirit of republics was virtue.

Closer to home, the colonists at the Constitutional Con-vention drew inspiration for their new government from the longstanding Iroquois Confederacy that predated the arrival of English colonists by several hundred years.

The Constitutional Convention

Once a sufficient number of delegates assembled, the Con-vention began in earnest. The delegates agreed to keep the de-liberations secret to encourage open discussion with no con-cern for what others might think. James Madison kept notes that serve as the best record of these meetings. Another matter of business involved electing a President of the Convention. The delegates elected George Washington to preside over the

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deliberations. Given their lead-

ership in calling the Convention, it is not surprising that the Virginia delegation in-troduced the Virginia Plan to fulfill the duty to revise the Articles of Confederation. This plan advocated giving considerable power to the federal government and greatly lessening the sovereignty of the states in sharp contrast to the existing powers given to states under the Articles. It pro-vided for separation of

powers and did not set term limits for public office. As might be expected, the states were not pleased with the

Virginia proposal and advocated a New Jersey Plan to correct what many delegates saw as federal overreach. A lesser known plan known as the Hamilton plan, after Alexander Hamilton, tried to give even more power to the federal government by ar-guing for a life term for the president, among other measures.

The Convention found itself deadlocked over the competing Virginia and New Jersey Plans. Moreover, given the extensive new proposals of the Virginia Plan, many delegates questioned whether they were failing to comply with the explicit charge to only “revise” the Articles of Confederation.

A larger concern was the concern of the particular form of government advocated by the delegates. Knowing their history and political science, the delegates worried that forming a re-public in such a large country as the United States would not be effective. Historically, republics have worked best in smaller geographical areas. It is worth mentioning that the area being discussed was east of the Mississippi River. The United States had not yet purchased the Louisiana Territory or gained the American Southwest following the Mexican-American War.

Oliver Ellsworth offered a compromise position between an entirely national or an entirely federal model. This became known as the Connecticut Compromise which allowed the delegates to continue to structure the evolving document and government.

The Convention delegates outlined the powers explicitly given to Congress and what became the three branches of gov-ernment. To resolve the issue of what type of representation the states would have in the national government, the House of Representatives was to be popularly elected, while the states would appoint the members to serve in the Senate.

One of the most controversial and important issues debated by the Convention was the issue of slavery. Southern delegates, including Convention President George Washington, owned slaves; and slavery played a central role in the economy of the South. Initially, the Convention recommended that Congress not have the ability to regulate or discourage the slave trade through tariffs and other economic measures. However, the approved Constitution did give Congress the power to regulate

and discourage the slave trade. To appease the delegates from slave states, Congress could not regulate the slave trade until 1808. Additionally, slaves were counted as 3/5 of a person for purposes of population and Congressional representation.

Much ambivalence existed regarding the election of the president, as many of the delegates did not believe the citizenry had the necessary education and experience to be trusted to vote for such an important office in this new republic. There-fore, the Convention created the Electoral College, which com-bined both popular votes with electors chosen by the states.

On September 17, 1787 the Convention presented the Con-stitution to the states for ratification.

Constitutional Improvements

Here are some of the main changes or improvements in the Constitution that allowed the national government to func-tion more efficiently.

• Congress was given the ability to collect taxes• The Constitution established a national system of courts

including a Supreme Court• Congress could regulate trade and interstate commerce• A Chief Executive or President controlled the executive

branch of government • Constitutional amendments would require only 2/3

votes of Congress and 3/4 of states for ratification• Two houses of legislature were established, one based on

popular representation (House of Representatives), and on equal representation (Senate)

• Congress was allowed to raise a national army• The Constitution was made the supreme law of the land• Passage of laws in Congress would require only a major-

ity vote and the signature of the President

Ratifying the Constitution Indoors

Historians and constitutional scholars often characterize the ratification process as involving two arenas in what are termed the “In-Doors” and “Out-of-Doors” debates. The various state legislatures debated the merits of the Constitution in their own chambers indoors, while many tracts circulated all throughout the states attempted to sway public opinion to either ratify or reject the Constitution. Quickly, the two camps adopted the labels “Federalist” and “Antifederalist” which have come down to us today.

Delaware, New Jersey, and Georgia all unanimously voted to ratify the Constitution. Pennsylvania joined these three states in approving the Constitution before the end of 1787. Connecticut approved the Constitution in January of 1788.

Massachusetts spent January of 1788 debating the Constitu-tion before ratifying it in early February. Massachusetts’ ap-proval made it the sixth state to ratify. Maryland and South Carolina spent the spring of 1788 debating and eventually rati-fying the Constitution in April and May respectively.

The Constitution required only nine states to be formally ad-opted as the new form of government. However, New Hamp-shire, Virginia, and New York all had strong opposition with their state legislatures to the Constitution.

Virginia had two delegates from the Constitutional Conven-tion who voted against the document, so there were serious

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concerns regarding this document in Virginia. George Mason, Thomas Jefferson, and others felt there needed to be a Bill of Rights similar to one contained in the Virginia Constitution. However, the Virginia delegation did approve the Constitu-tion, though it, too, asked for Congress to submit a Bill of Rights for ratification by the states.

Shortly before Virginia voted, New Hampshire became the ninth state to ratify the Constitution, which made it of-ficially the new law of the land. By the time New York voted on ratification, ten states had approved the document. New York followed suit, leaving only North Carolina which had rejected the Constitution in August of 1788 and Rhode Island which declined to attend the Constitutional Convention. Vot-ing again in November of 1789, North Carolina approved the Constitution. Rhode Island approved the Constitution by two votes in May of 1790 making ratification of the Constitution complete throughout the states.

The Out-of-Doors Debate

As would be expected in the late eighteenth century, there was considerable public discussion and debate over the Con-stitution. Opponents and proponents used the media of the day— primarily newspapers—to attempt to persuade readers to either ratify or reject the Constitution. The supporters of the Constitution adopted the name “Federalists” with opponents of the Constitution known as “Antifederalists.”

A collection of 85 essays written by Alexander Hamilton, John Jay, and James Madison collectively known as The Fed-eralist Papers survive as the best-known documents in this debate. Published in New York, these essays make a compel-ling and eloquent case for adopting the new Constitution. The choice to publish in New York might have to do with other Antifederalist documents also published in New York

and written most likely by Antifederalists based in New York, some of whom might have attended the Constitutional Con-vention representing New York, one of the last states to ratify the Constitution. Anonymous authors using the pseudonyms Brutus and Cato, well known historical figures from Ancient Rome, wrote a series of essays critiquing the judicial and ex-ecutive branches of the proposed new government. Finally, a shorter collection of five letters signed by “The Federal Farmer” expressed concern with the possibility that the states would simply become one government and asked for a Bill of Rights, a request made by many states concerned with the scope of national power enumerated in the Constitution. The Virginia politician Richard Henry Lee likely wrote these letters. These efforts, combined with the deliberations in the various states, provided for a rigorous consideration of the Constitution prior to its eventual ratification.

Next month’s Law Wise will feature Constitutional Amend-

ments and major Supreme Court cases which expanded or clari-fied certain civil rights and/or civil liberties.

About the Law Wise Editor:

Nicolas Shump teaches courses in Ancient and Modern World History, Creative Writ-ing, English, Film, Sport in American Culture, World Philosophy, and A.P. courses in Com-parative Government and Politics, European History, and U.S. History and Government at

The Barstow School in Kansas City, MO. He is a columnist for the Topeka Capital-Journal and a Talk About Literature in Kan-sas (TALK) discussion leader for the Kansas Humanities Coun-cil. He can be reached at nicshump@gmail.com

Center for Civic Educationhttp://www.civiced.org/

Constitution Board Gamehttp://texaslregames.org/games_web_eng/crelay/index.html

ConstitutionFacts.Comhttps://www.constitutionfacts.com/

Constitution for Kids https://www.usconstitution.net/constkids4.html

Constitution of the United Stateshttp://constitutionus.com/

Forming a New Nationhttp://www.mountvernon.org/george-washington/constitution-al-convention/

Liberty Day Institutehttp://www.libertyday.org/packet/

(James Madison) Montpelier’s Guide to the Constitutionhttps://www.montpelier.org/learn/montpelier-guide-to-the-constitution

National Constitution Centerhttps://constitutioncenter.org/

Pirates of the Preamble Gamehttp://texaslregames.org/games_web_eng/piratepreamble/Pi-ratesPreamble_Instructions.html

U.S. Constitutionhttp://constitution.findlaw.com/

U.S. Constitution-Facts and Summaryhttp://www.history.com/topics/constitution

U.S. Constitution Apps

U.S Constitution: Analysis and Interpretation (Free)Library of Congress

The U.S. Constitution-Flash Card Trivia (Free)International Research

Constitution for iPhone and IPod Touch (Free)Clint Bagwell Consulting

Interactive Constitution (Free)

National Constitution Center

TERRIFIC TECHNOLOGY FOR TEACHERS

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Civic Engagement: Not Just A Social Studies ThingIf civic engagement remains only in the social studies class-

room we will never get the informed, thoughtful, and engaged citizens we seek. Below is a countdown of 10 things every teacher in every classroom can do to improve civic engage-ment.

#10 Make connections to the real world. Whatever you teach to whomever you teach it, make a connection to what is going on in the world today. Have your class “spill over” into the real world and allow the real world to “spill over” into your class.

#9 Use classroom discussion. Use moderated classroom discussion to talk about issues considered by students as im-portant. Teach students how to respectfully disagree, give criti-cal feedback, and understand the perspectives of others

#8 Teach Reflection. Direct instruction and practice on the fixing of the mind on some subject. Giving a subject deep and serious thought improves self-awareness, openness, perspec-tives, and builds a community of learners.

#7 Demonstrate Enthusiasm and Passion. Enthusiasm is contagious. Use your passion to fuel theirs. Enlist the class in a school or community project you are passionate about.

#6 Student Choice. Give students choice. Choice empowers students. Students who feel like they can change the world will.

#5 Student Voice. Give students a say in the learning and living environment at school. Allow students to create tasks, rubrics, and/or classroom rules.

#4 Comfort the uncomfortable. Like enthusiasm, compas-sion is also contagious. Students who are in need of comfort and receive it tend to return the favor. Students who witness it tend to imitate it.

#3 Make uncomfortable the comfortable. Challenge their thinking, perceived realities, prejudices, and biases. Don’t make it easy for confident/comfortable students to slide by. Force them to confront their values and real world problems. Create cognitive dissonance.

#2 Be a Role Model. In order for your student’s to be civi-cally engaged they need to see adults being civically engaged. Volunteer, support a cause, vote . . . Tell them when you vote,

have jury duty, attend a meeting, read the news, or write your representative. “Be the change you want to see in your kids.”

#1 Be a Mentor. A wise, trusted, influential counselor or supporter. Some kids need more help than others. You will im-pact their lives greatly and they yours. It will be your greatest and most rewarding contribution to civic engagement.

These may not be the 10 best practices and you may have some ideas that are better, but if every teacher in every class-room in every school in the state implemented these 10 prac-tices in their classrooms we would be graduating many more informed, thoughtful, and engaged citizens.

Submitted by Don Gifford, KBA LRE Committee member and Educational Program Consultant for History, Govern-ment, and Social Studies at the Kansas State Department of Education. Learn more about the Civic Engagement Initiative at http://www.ksde.org/Agency/Division-of-Learning-Servic-es/Career-Standards-and-Assessment-Services/Content-Area-F-L/History-Government-and-Social-Studies

iCivics Making a Difference in Your Community

Check out the “Up Your Game” Back-to-School section for new resources, upgraded games, and professional learning op-portunities. https://www.icivics.org/b2s/upyourgame.html

The Plan Ahead section features resources for Constitution Day https://www.icivics.org/b2s/plan.html

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September Buzz

@ The Law-Related Collection, Emporia State University, Teachers College Resource CenterBy Janice Romeiser

Welcome to a new school year! We are ready to help you with items to bring more depth and breadth to your teach-ing. You may browse our resources by going to emporiastate.worldcat.org and choosing the “Resource Center” drop down box. There you will see a full array of resources and materials. If you are in the area, we are always proud to give guided tours of the Center. If you locate what you need, you may call (620) 341-5292 during our work hours 9-6, Monday through Thurs-day, or 9-5 on Fridays. We are able to mail out items with no charge to patrons, thanks to the generosity of the Kansas Bar Association and the Kansas Bar Foundation.

With Constitution Day coming up, you may find several re-sources to support your lessons:

• A DVD History of the U. S. Constitution, a 4 volume set: This set begins with the first Legislative Assembly in 1619; the documents that signify the growing pains of our country; the Continental Congress; the needs and Amendments; and more current controversies.

• A basic DVD that is appropriate for younger learners, Symbols in America: Uncle Sam. This resource focuses upon common symbols of the United States.

• A book, The Signers of the Constitution, showcases each of the signers and tells their “back story” as well as what happened to them after the signing.

We are proud to be a part of the Teachers College. We hold to the highest standards, and are always pleased to offer indi-vidual help for patrons and their learners! Visit us in person or online. jromeise@emporia.edu

Although the Mock Trial competition is still seven months away, the Mock Trial chairs would like you to know the prob-lem will be released around November 1st this year. This year’s problem will be a criminal case!

As always, we are looking for sponsors, judges and volun-teers. If you are interested in sponsorship, please email Bill Walberg at wwalberg@emlawkc.com.

Thank you and we look forward to the 2018 competition.

Mock Trial Liaison: Bill Walberg

Bill is a second year attorney at Evans & Mullinix, PA in Shawnee, Kan., practic-ing general litigation as well as corporate law and estate planning. Bill attended the University of Kansas for both undergradu-ate and law school. In between, Bill was a

teacher with the Teach for America program in Kansas City, Mo. Bill continues to serve students as he enters into his sec-ond year as Mock Trial Co-Chair.

Mock Trial Liaison: Casey Walker

Casey has a litigation-focused practice based in Overland Park which takes her all over Kansas, Missouri, and often into many other states. Although engaging in a wide variety of litigation work, Casey’s practice focuses on the defense of health care providers in malpractice actions as

well as corporate health care law. Casey obtained her law de-gree from the University of Kansas School of Law, and remains an active alumna. Casey is originally from Hutchinson, Kan. Her spare time is spent enjoying community activities and be-ing at home in Lenexa, Kan., with her husband and three dogs, Khan, Sam, and Q.

The State Bar of Nevada and the Nevada Bar Foundation will host the 2018 National Championship in Reno, Nevada. The 2018 National Championship will take place May 10-13, 2018.

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Lesson Plan 1The Articles vs. The Constitution:

A Comparative AnalysisGrades 9-12

IntroductionIn this lesson students will engage in primary source document analysis by comparing the strengths and

weaknesses of the Articles of Confederation and the United States Constitution. Organizing students in small groups will make it easier for students to complete their document analysis. Allow students to deter-mine in their groups how they will divide the reading and analysis of each document.

Reading Guide for the Document Analysis• Is there a leader or chief executive for this document and form of government?• What expressed powers does the national government possess?• What expressed powers do the state governments possess?• How is the legislature or Congress organized?• What type of electoral system exists in this government?• What type of judicial system exists in this government?• What type of tax system exists in this government?• What type of military exists in this government?• How are relations among the states regulated?• What is the process for passing national laws?• What is the process for amending this document?

Comparative Analysis Questions1. Having read these two documents, would you agree it was necessary for the delegates at the Con-

stitutional Convention to create a new document? 2. Identify what you believe to be the major problems or weaknesses with the Articles in terms of the

ability of the United States to govern its citizens and to conduct relations with other countries?3. Only considering the original Constitution and not any Constitutional Amendments, what poten-

tial problems or issues could you see with this document? 4. Are the powers of the national government and the powers reserved to the state governments clearly

stated in the document?5. Which document do you think provides for the better form of government? Defend your answer

with specific reference to the texts.

Lesson Plan 2The United States of ?

Creating Your Own Government and ConstitutionGrades 7-12

IntroductionIn this lesson plan, you are the founders of your very own new government. Your responsibility is to work

together to determine what type of government you will have and to account for all the basic institutions necessary for your government to succeed.

Teachers may choose to divide the students into groups to have them work on a smaller part of their own written Constitution. However, the groups may choose to consult with each other to ensure the various parts of the government are compatible.

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Law WiseFAQsWe have a list of FAQs available at http://www.ksbar.org/LWFAQ.

The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

Visit www.ksbar.org/lawwise to see archived issues, frequently asked questions, and to sign-up to receive six issues a year via email.

Writing the ConstitutionYour Constitution must have the following elements:• Some form of leader or chief executive• A manner for choosing this leader• Term of office for this leader• Qualifications for this leader• Specific powers granted to this leader• A legislature• The number of legislative assemblies in your country• The size of these legislative assemblies• The manner of election for these legislative bodies• The length of office for these legislators• The qualifications for these legislators• Specific functions of government controlled by these legislative bodies• A judiciary• The type of court system for your country• Levels of courts within your country• System for appointing justices • Length of judicial appointments at the various court levels• Other elected or appointed officials (Cabinet ministers)• System for appointing or electing cabinet officials• Tax system• Types of taxes your government will assess and collect• Military• Branches of military• Type of military service (compulsory service or voluntary service)• Relationship between branches of government (checks and balances?)• Determination if branches of government are equal or one branch is above the others• Rights and freedoms granted to citizens• Method for citizens to hold the government accountable• Determination if citizens have the right to rebel or overthrow the government

ReflectionAfter students have formed their government and written their Constitution, have the students write a short

reflection explaining how they determined the nature of whatever part of the government they worked on.What did they learn about the Constitution and government from this exercise?

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