How the Constitution changes: amendments, judicial review and ways of reading the text

Grade 12 Social Studies Worksheet - Challenge Me

Circle the best answer.

1. Read this first

   Use this

   Cards A to C on three ways of reading the text. Card A, "The Fourth Amendment" (National Archives transcript, exact): "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Card B, "Three approaches" (summary in our words, not a quotation): Textualism focuses on the ordinary meaning of the words. Originalism reads the words as people understood them when they were adopted. A living-constitution approach applies the text's principles to new conditions. Judges and scholars disagree about which is best, and many use more than one. Card C, "A case in Hollis" (invented, for practice): Officials of Hollis open and read the files on a resident's home laptop with no warrant. The files are letters and tax records. The only question is whether the files are among the resident's "papers." Judge Reed writes: "People in 1791 kept letters and records as their papers. A file is the same kind of thing kept in a new form." Judge Park writes: "Papers today means records a person keeps for personal use, and these files fit that ordinary meaning." Judge Lowe writes: "The amendment's principle is to protect private records from government search, and that principle covers new forms of record."

2. 1.

   Hollis's lawyer argues: 'Files did not exist in 1791, so the amendment cannot reach them.' Bo asks which judge answers the lawyer without leaving the 1791 understanding the lawyer relies on.

   • Judge Reed: in 1791 papers meant private records, and a file is the same kind of thing in a new form
   • No judge can, because an argument from 1791 meaning cannot reach a thing that 1791 did not know
   • Judge Park: the ordinary meaning of papers today covers records a person keeps for personal use
   • Judge Lowe: the amendment's principle of protecting private records covers new forms of record
3. 2.

   Esme reads this argument: 'An approach that applies principles to new conditions lets a judge reach any result.' Which reply does Card C best support?

   • The objection fails because the three judges reach the same result in the Hollis case
   • The objection is right, since Card B says a living-constitution approach applies principles however conditions change
   • Lowe reasons from a principle in the text, protecting private records from search, and asks if new facts serve it
   • The objection fails because living-constitution judges reach the same result in any case they decide
4. 3.

   Jun reads this argument: 'All three judges reached the same result, so the approach a judge picks does not matter.' What does it assume?

   • That the three approaches are really one method under three different names
   • That agreement in one case predicts agreement in all cases, though Card C shows only one
   • That Hollis's officials acted lawfully when they opened and read the files without any warrant at all
   • That the words of the Fourth Amendment have no ordinary meaning that a judge could apply

5. Use this

   Cards A to D on the flag-salute cases. Card A, "The First Amendment" (National Archives transcript, exact, first part): "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;" Card B, "Minersville School District v. Gobitis (1940)" (opinion of the Court, exact): "The ultimate foundation of a free society is the binding tie of cohesive sentiment." "National unity is the basis of national security." Card C, "West Virginia State Board of Education v. Barnette (1943)" (opinion of the Court, exact): "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Card D, "The two cases" (summary in our words, not a quotation): Gobitis was decided June 3, 1940, by a vote of 8 to 1, and upheld a school board's rule that students salute the flag. Barnette was decided June 14, 1943, by a vote of 6 to 3. It overruled Gobitis and held that a state may not force students to salute the flag and say the pledge. In both cases the students who refused did so for religious reasons.

6. 4.

   Kira compares the excerpts in Cards B and C. How do they differ?

   • Gobitis protects beliefs from official force, while Barnette says national security can override them
   • Barnette rejects national unity as a goal, while Gobitis treats it as the sole goal
   • They agree on the First Amendment's meaning and differ in the year they were written alone
   • Gobitis backs the board's aim of unity; Barnette limits what officials may force a citizen to profess
7. 5.

   Luz applies the cards to an invented case: Alder's school board suspends a student who refuses, for reasons of conscience, to recite a pledge to the town. What do the cards show?

   • The board wins, because Gobitis held that school boards decide such rules and Barnette left that unchanged
   • The suspension cannot stand under Barnette, which overruled Gobitis and bars officials from forcing a profession of belief
   • The suspension is barred because Barnette protects a student's refusal of any school rule, not just a pledge
   • The suspension stands under Gobitis, which still controls because it was decided by a larger majority of the justices
8. 6.

   Milo reads this claim: 'Barnette proves the Gobitis decision was simply wrong.' What is the strongest objection that Card D supports?

   • A different later majority shows the reading changed, not by itself that the first one was wrong
   • If Gobitis were wrong, the Court would have fixed it at once rather than after three years
   • Gobitis was not about the First Amendment, so Barnette changed no reading of it
   • Gobitis had eight justices and Barnette six, so the larger majority must have been right
9. 7.

   Noah reads Card B's sentence: 'National unity is the basis of national security.' What must be true for it to justify the board's salute rule?

   • That Congress, not a local school board, is the one body that may require such a salute
   • That the First Amendment protects no student in any public school, whatever the school's aim
   • That students who refuse to salute are disloyal to the nation and a danger to its security
   • That making students salute really produces the unity that security depends on

10. Use this

    Cards A to D on who interprets the Constitution. Card A, "Article III, section 2" (National Archives transcript, exact, first clause): "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;" Card B, "Article VI" (National Archives transcript, exact, first paragraph): "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Card C, "Federalist No. 78" (Alexander Hamilton, 1788; exact): "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." "If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." Card D, "The words" (note in our words): The words "judicial review" do not appear in the Constitution.

11. 8.

    Invented case: the state of Alder passes a law declaring its school dress rules 'the supreme law within Alder, whatever the Constitution says.' Ren applies Card B. What follows?

    • A federal judge alone may interpret the Constitution, so Alder's judges have no part to play
    • It cannot prevail: under Card B the Constitution is supreme and binds every state's judges
    • Alder's judges must ignore all Alder laws, since Card B makes state laws void
    • The declaration prevails inside Alder, since Card B limits the courts of other states alone
12. 9.

    Tala reads this claim: 'Hamilton's argument shows the courts have the last word on the Constitution.' What is the strongest objection that Card C supports?

    • Card C has judges prefer the Constitution to a statute in a case; it does not say how other branches respond
    • Federalist No. 78 was written to win support for ratification, so its claim about courts has no weight
    • Card B shows that state judges decide what the Constitution means in their states, so no single last word exists
    • Card A shows that Congress, not the judges, decides which cases arise under the Constitution
13. 10.

    Zee reads Hamilton: when a statute and the Constitution conflict, 'the Constitution ought to be preferred to the statute.' What does the sentence assume?

    • That judges are elected by the people, which is why their reading of the Constitution is preferred
    • That Congress does not pass a law that conflicts with the Constitution, so no conflict can arise
    • That the Constitution outranks a statute, which Card B supports by calling it the supreme law
    • That judges may rewrite a statute until it fits the Constitution, rather than set it aside