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LAW WISE    

March 2004

Greetings from the Kansas Supreme Court and the Kansas Bar Association. The theme for this edition of Law Wise is the Governing Process: The Constitution, Its Amendments, and Concepts of Federalism.

• Calendar of Events
• The Governing Process
• Practicing Law in Kansas Complimentary video
• Peer Mediation and Youth Court Grants available
• Law Matters
• On Your Own and For the Record Booklets Available Free of Charge
• Appellate Courts Welcome You
• Resources at the Law-Related Education Inventory
• Lesson Plan #1: The Street in Front of Our School: Local Laws - Grade level 3-6
• Lesson Plan #2:Learning About State Constitutions and How to Amend Them - Grade level 6-8,9-12
• Technology for Teachers

Calendar of Events

The Governing Process: The Constitution, Its Amendments, and Concepts of Federalism The Constitution Basically, the Constitution is the highest law in the United States. All other laws come from the Constitution in some way. The Constitution also provides a framework for the government of the United States. It creates things like the President, the Congress, and the Supreme Court. Each state has its own constitution that is the highest law for the state - but even then, the United States Constitution is higher. The Bill of Rights is an add-on to the Constitution. Called "amendments," these add-ons list some of the rights of the people. By listing these rights, it is illegal for the government to violate those rights. As of 2004, there are 27 amendments to the Constitution. Not all of them involve rights, but many do. Amending the Constitution Amending the United States Constitution is no small task. There are essentially two ways spelled out in the Constitution. One has never been used. The first method is for a bill to pass both halves of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken. Regardless of which of the two proposal routes is taken, the amendment must be approved by three-fourths of states. The amendment as passed may specify whether the bill must be passed by the state legislatures or by a state convention. Another way the Constitution's meaning is changed is often referred to as "informal amendment." This phrase is a misnomer, because there is no way to informally amend the Constitution, only the formal way. However, the meaning of the Constitution, or the interpretation, can change over time. There are two main ways that the interpretation of the Constitution changes. The first is simply that circumstances can change. One prime example is the extension of the vote. In the times of the Constitutional Convention, the vote was often granted only to monied land holders. Over time, this changed and the vote was extended to more and more groups. The informal status quo became law, a part of the Constitution, because that was the direction the culture was headed. The second major way the meaning of the Constitution changes is through the judiciary. As the ultimate arbiter of how the Constitution is interpreted, the judiciary wields more actual power than the Constitution alludes to. Because of judicial changes in the interpretation of the Constitution, the nation's outlook on these issues changed. In neither of these cases was the Constitution changed. Rather, the way we looked at the Constitution changed, and these changes had a far-reaching effect. These changes in meaning are significant because they can happen by a simple judge's ruling and they are not a part of the Constitution and so they can be changed later. The general process for making a bill into a law is described in the Constitution. As with many things, however, the Constitution leaves most of the details to the people of the day, dictating just the overall picture. Before we delve into those details, however, a look at the general process is useful. First, a bill must pass both houses of Congress by a majority vote. After it has passed out of Congress, it is sent along to the President. If the President signs the bill, it becomes law. The President might not sign the bill, however. If he specifically rejects the bill, called a veto, the bill returns to Congress. There it is voted on again, and if both houses of Congress pass the bill again, but this time by a two-thirds majority, then the bill becomes law without the President's signature. This is called "overriding a veto," and is difficult to do because of the two-thirds majority requirement. Alternately, the President can sit on the bill, taking no action on it at all. If the President takes no action at all, and ten days passes (not including Sundays), the bill becomes law without the President's signature. However, if the Congress has adjourned before the ten days passes and without a Presidential signature, the bill fails. This is known as a pocket veto. Each state has its own constitution and body of laws. The process for making laws and amending each state's constitution may vary, but the format discussed for the U.S. Constitution and billmaking explains the basic process. The States and the Federal Government The Constitution does provide some very specific powers to both the states and the federal government. These powers are traditionally divided into three categories. Reserved powers are those that have been granted specifically to the states or are of a traditionally state scope. These consist mostly of police powers, such as providing fire and police protection, establishment of health regulations, licensing, and education. Granted powers, also known as express, enumerated, implied, delegated, and inherent powers, are those specifically listed in Article 1, Section 8, such as the power to coin money, to raise an army and navy, to provide for patent and copyright protections, to establish a post office, and to make treaties and war with other nations. An express, delegated, or enumerated power is one specifically listed; an implied or inherent power is one that exists to carry out an express or enumerated power. For example, Congress can raise an army; this implies the ability to specify regulations concerning who can join the army. Concurrent powers are those held to some extent by both the federal and state governments. Both, for example, have taxation power, the ability to construct and maintain roads, and other spending for the general welfare. Many things are denied of both or either levels of government. States, for example, have no authority to coin money or wage war. Neither may pass a bill of attainder or any ex post facto law. Much of the Bill of Rights applies restrictions to both states and the federal government, while all of the Bill of Rights applies restrictions to the federal government. Note that the Bill of Rights originally had no effect of restriction on the states, but judicial interpretation of the 14th Amendment's due process clause has incorporated much of the upholding of civil rights to the states. This article was adapted from several topics and articles from the U.S. Constituion Online website found at http://www.usconstitution.net/const.html

Practicing Law In Kansas Complimentary Video

A number of years ago, the Kansas Bar Association, established a task force to respond to a growing concern within the legal profession: The concern that students were entering law school with an incomplete understanding of the rewards and responsibilities associated with a legal career.

The task force's broad purpose was to assist students seeking information about a career as an attorney. At the same time, the task force wanted to impress upon students the ideals of the legal profession and how these ideals interact with the economics and day-to-day realities of practicing law.

The result of the task force's work is a video entitled Practicing Law in Kansas. The video is a collection of Kansas attorneys willing to share their experiences and thoughts on practicing law and their role as attorneys in the social fabric of this state. The interview segments are woven together with narration by Bill Curtis, a native Kansan who produces television programs for the A&E network, including "American Justice".

This video is free of charge to counselors and teachers. We encourage you to call the Kansas Bar Association at (785) 234-5696 to receive your complimentary copy. Also available is a "Practicing Law In Kansas" guide that will help facilitate the discussion. The guide expands upon some of the issues raised in the video and provides relevant statistics relating to salaries, employment opportunities, and average hours worked.

If you have further questions or would like more information, please contact Btissam Touijer at (785) 234-5696 or email btouijer@ksbar.org.

Peer Mediation and Youth Court Grants

The Kansas Bar Association, with funding from the Kansas Bar Foundation is making available grant funds to be used by schools in developing peer mediation and youth court programs. The $500 grants can be used to produce seminars, hire consultants, and/or pay for supplies or other expenses associated with starting or continuing a program. Peer mediation programs are defined as programs which are developed to reduce in-school conflicts between students by using students to mediate the disputes. Youth courts are programs that use students in youth court settings to hear minor violations and to decide on appropriate disciplines.

Applications for grant funds should be in letter format and should include the following information:

• the statement of need,
• the goals of the project,
• the methods of accomplishing the goals, and
• a short budget as to how the funds will be used.

The deadline to submit grant applications is April 9, 2004. If you receive a grant, your school/organization will be required to forward any evaluation information resulting from the conflict resolution program to the KBA. This detailed information will help continue the funding of conflict resolution programs.

If you would have any questions or wish to submit an application, contact Btissam Touijer at the Kansas Bar Association, (785) 234-5696, P.O. Box 1037, Topeka, KS 66601-1037 or email btouijer@ksbar.org

The ABA has a free newsletter that contains information on law-related education. Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is published three times each year (winter, summer, fall). For information on ordering, contact the ABA at (312) 988-5735 or abapubed@abanet.org.

On Your Own and For The Record booklets available to teachers & students

The Kansas Bar Association distributed more than 10,000 On Your Own and For The Record booklets during a school year.

The On Your Own booklet is geared toward high school students and it explains legal issues that young people should be aware of as they prepare to leave school and enter the work force. The For the Record booklet is directed at middle school students and it stresses the rights students have under our form of law and their responsibilities that come with those rights.

Both booklets are available in Spanish and are available through the KBA website www.ksbar.org/public02/public_resources/public_info_pamphlets/

These resourceful booklets are funded through a grant from the Kansas Bar Foundation. If you would like a copy of the booklets to review or a number of copies for a presentation to your class or a copy to include in the graduates packets, please contact Btissam Touijer at (785) 234-5696 or email btouijer@ksbar.org.

The Kansas Supreme Court is the highest court in the state, and includes seven members. Students are also welcome at oral arguments before the Supreme Court. The high court holds its hearings only in Topeka. The Supreme Court will be hearing oral arguments during the week beginning May 10. If you have any questions concerning the Kansas appellate courts, or if you would like to bring your class to either the Kansas Supreme Court or the Kansas Court of Appeals, teachers may contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, 301 West 10th Avenue, Topeka, Kansas 66612-1507, (785) 296-4872, for assistance. You can also contact Mr. Keefover via email at Keefoverr@kscourts.org.

Resources at the Law-Related Education Inventory

The Law-Related Education Inventory has the following items which might be useful in discussing the Constitution, how it can be amended, and the concept of federalism:

1. The Constitution: A Framework to Govern a Nation. This video is for high school students discusses amending the Constitution, branches of government, the Bill of Rights, etc. Library number 342.02/C766f.
2. Our Changing Constitution. This filmstrip is geared for high school and gives students an understanding of the U.S. Constitution through a discussion of the amendments and the amendment process. Library number 342.03/Ou7.
3. Constitutional Amendment Poster Set. A set of posters allows all ages to learn about constitutional amendments such freedom of speech and freedom to assemble through reproductions and actual photographs. Library number 342.73/C766a.

Lesson Plan #1:  
The Street In Front of Our School: Local Laws

Grades 3-6

This lesson introduces children to many local laws by considering something very near to them, something which they observe every day. This lesson should help children understand that there are local as well as state and federal laws. In other words, young children are being introduced to the concept of federalism.

OBJECTIVES:

1. Realize that the law is close to all of us at all times.
2. Realize some laws are made by their local government.
3. Learn who makes laws, ordinances, and codes locally.
4. Understand that the national government could not make laws governing each street, etc.

TIME REQUIRED:

MATERIALS NEEDED:

1. Chalk board
2. Paper
3. Pencil
4. Crayons and Markers

PROCEDURE:

1. Have students draw from memory the street in front of their school.
2. Walk to the sidewalk and ask class to observe and see if they forgot anything.
3. On a chalk board do a brain writing exercise with street in front of school in a circle.
4. Ask students to give you words or phrases that describe the street and its use and put each concept in a circle.
5. After the board is full of descriptive concepts draw lines between the ideas that deal with materials, those that deal with the size, those that deal with safety, those that deal with users, etc.
6. List these concepts under a) Use and users, b) Materials and construction, c) Safety.
7. Ask students if they can think of laws that deal with safety and the other categories.
8. Invite someone from the public works department to talk about codes, fair bids, storm sewers, etc, and the laws that apply and how these laws are made and enforced.
9. Invite someone from law enforcement to talk about the laws that deal with safety.
10. Invite someone from city planning or zoning to talk about codes, signs, etc.
11. As an entire class make a list of all the laws that effect the street in front of the school.
12. Send thank you pictures and letters to the local officials who visited.
13. Again, emphasize that some laws are made locally, some by the state and some nationally and that there are many local laws.

Lesson Plan #2:     Learning About State Constitutions and How to Amend Them

Grades: 6-8, 9-12

Overview of Lesson Plan:

Suggested Time Allowance: 1 hour

Objectives:

Students will:

1. Consider the differences between state constitutions and the federal Constitution.
2. Examine recent attempts to amend the Texas Constitution for the 411th time, by reading and discussing "Hue and Cry Replaces Yawns in Vote on Texas Constitution." (This article can be found at http://www.nytimes.com/learning/teachers/featured_articles/20030915monday.html.)
3. Explore another state's constitution to create a constitutional profile.
4. Write the preamble, three articles, and outline of amendment process for a school or local community constitution.

Resources / Materials:

• pens/pencils
• paper
• student journals
• copies of "Hue and Cry Replaces Yawns in Vote on Texas Constitution" (one per student)
• resources about the states and constitutions of the United States (geography textbooks, legal references, encyclopedias, computers with Internet access)

Activities / Procedures:

1. WARM-UP/DO-NOW: Ask students to respond to the following prompt, written on the board prior to class: "What is a state constitution? How do you think a state's constitution differs from the federal Constitution? Should states be allowed to amend their constitutions in the same manner as the United States Constitution? Why or why not?" Allow students a few minutes to share their responses. You may wish to share with the students the definition of a constitution (from the Merriam-Webster 11th Collegiate Dictionary): "the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it." Ask them by what means, and how, state constitutions should be amended.

   Should it be easier, more difficult, or the same for states to change their constitutions as the U.S. Constitutional amendment process? Why?

2. As a class, read and discuss "Hue and Cry Replaces Yawns in Vote on Texas Constitution," using the following questions:

   a. What is so remarkable about the constitution in the state of Texas, according to the article?

   b. How many times has the Texas Constitution been amended?

   c. Which state's constitution is longer?

   d. According to the article, what do other states' legislators do to create policy instead of drafting constitutional amendments?

   e. What types of referenda, or propositions, are on the agenda for the fall 2003 elections, according to the article?

   f. Which proposition has created controversy?

   g. What are some examples of groups or individuals who are for (or would vote "Yes" to) the Proposition 12?

   h. What are their reasons for supporting it?

   i. What are some examples of groups or individuals who are against (or would vote "No" to) the Proposition 12?

   j. What are their reasons for criticizing it?

   k. Why does Cathy Adams, president of the Texas Eagle Forum, say, "It's so misleading that people are being told this will save their doctor"?

3. Divide students into pairs. Based on the article's description of the State of Texas Constitution, students will research other states' constitutions to create "constitutional profiles." Each pair should choose (or be assigned) a different state or U.S. territory. Students will be responsible for finding the following information (which may be written on the board for easier access, or typed and copied in the form of a worksheet):

   Date of statehood

   Date of adoption

   Names of signatories

   Date of ratification

   Preamble

   How the constitution is organized (number of articles, amendments, etc.)

   Features unique to, or representative of, the state (ex: article on forestry [Utah], state motto as part of preamble [Hawaii])

   Brief analysis of the language, structure, and length of the constitution (How might this constitution reflect the historical, political, social, or economic features of the state or its residents?)

   All state constitutions and codes can be found at the Legal Information Institute Web site ( http://www.law.cornell.edu/statutes.html). Encourage students to keep in mind the language of the constitutions they are analyzing. How do they compare to the language of the federal Constitution? How might they be worded or organized differently if the territory were receiving statehood today?

4. WRAP-UP/ HOMEWORK: Once students have completed their state constitutional profiles, they should present at least the preambles, state-specific constitutional features, and analyses in class. Keeping in mind the uniqueness of each state's constitution, students draft their own constitutions for homework. In language that is "constitutional," yet appropriate to their age group and geographical region, each student writes a preamble and at least three articles, as well as an outline for the amendment process, for a constitution to represent the school or local community.

Further Questions for Discussion:

• Do you think states should be more uniform in their constitutional procedures? Or, should a state's constitution represent its own unique history and politics? Explain.
• Why do you think Proposition 12 has been so controversial, even among members of the same political party, in Texas?
• What are the advantages and disadvantages of legislating through constitutional amendment, rather than passing bills?

Evaluation / Assessment:

Students will be evaluated based on participation in the Warm-up exercise, research and written profile of a state constitution, and thoughtfully written school or community constitutional preamble, articles, and amendment process.

Vocabulary:

amendment, bulging, plebiscites, minutiae, electorate, soporific, proposition, surplus, referendum, obscurity, jurists, mobilizing, malpractice, prostate, flashpoint, disfigurement, monetary, obstetrician, cynically, unwieldy, statute, gummed up, Magna Carta, judicial review

Extension Activities:

1. Research current proposed amendments to the federal Constitution. How might issues such as election reform or women's rights impact future Constitutional politics? If you could draft an amendment on an issue you feel strongly about, what would it be?
2. In addition to having the second longest state constitution, Texas also has one of the largest separatist groups in the country, known as the "Republic of Texas" movement. The group has established its own "interim government" and constitution. Research the Republic of Texas and write a balanced summary of its political agenda in a class presentation. Why do supporters of this movement think that independence is the best way to ensure citizens' constitutional rights? Is independence necessary or does the existing political organization of the state allow for a fair process of law? What advantages and disadvantages would independence have over the existing political organization of the state?
3. The article mentions Phyllis Schlafly as the founder of the Eagle Forum, a "conservative pro-family group." Who is Ms. Schlafly, and in what other ways did she contribute to conservative politics in the United States in the 1970s and 1980s? Research and write a short biography on this famous proponent of "family values."

Interdisciplinary Connections:

Economics- Research and compare the most expensive types of medicine to practice in the United States, based on the amount of malpractice insurance health care practitioners require. Aside from obstetric medicine mentioned in the article, what other medical fields are considered "risky business" and why?

Geography- On a political map of the United States, chart the years in which each state gained statehood. Then, color-code the states in 20 to 30 year chronological increments (make sure to create a key explaining this color code) to illustrate the order in which these territories became states.

Global History- Research and compare the charters or constitutions of at least four countries from around the world. When were they written, and how might other countries' political philosophies or foundations have influenced them?

Journalism- Interview a doctor or other health care professional on the health care system in the United States. How have "managed care" and legal issues such as malpractice suits impacted the way health care providers treat patients? Publish your interview in the school or local paper.

   Terrific Technology for Teachers

1. Go to http://www.law.cornell.edu/statutes.html for the federal and each state's constitution, as well as information on bills and the legislature in general.
2. The U.S. Constitution Online found at http://www.usconstitution.net/const.html is a great source for information for young and old regarding the Constitution.
3. To search the Library of Congress and see what is happening in the United States Congress, click on http://thomas.loc.gov/

Law Wise is published by the Kansas Bar Association during the school year. The Kansas Bar Foundation, with Interest on Lawyers Trust Accounts funding, provides support for this publication. Published free, on request, for teachers or anyone interested in law-related education, it is edited by Crystal Marietta, Pittsburg, (620) 231-5620. For further information about any projects or articles, contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, Topeka, (785) 296-4872, or Btissam Touijer, Public Services Director of the Kansas Bar Association, Topeka (785) 234-5696. Law Wise is printed at the Kansas Bar Association, 1200 Southwest Harrison, P.O. Box 1037, Topeka, Kansas 66601-1037.