D2.Civ.10.9-12: How Personal Interests and Perspectives Shape Virtues, Principles and Rights

Overview

Lesson Procedure

60-80 minutes of class time across 5 phases.

1. Warm-Up5-10 minutes
2. Direct Instruction15-20 minutes
3. Guided Practice20 minutes
4. Independent Practice15-20 minutes
5. Closure5-10 minutes

1. Warm-Up5-10 minutes

   Warm-Up Prompt

   "Suppose 90 percent of the voters in your town want every student to begin the school day by reciting a pledge. Should the school board be able to require it of every student? Does your answer change if a student refuses for religious reasons? For political reasons?"

   Students write for two minutes and then share in pairs. Record reasons on the board in two columns, "The majority should decide" and "Some things are not up to a vote." Tell students that in 1942 West Virginia's state board of education faced this question, and that the Supreme Court's answer in 1943 is still quoted today. Introduce the lesson's question: When should people's personal interests and perspectives shape how rights and principles are applied, and when should they be set aside?

2. Direct Instruction15-20 minutes

   Part 1: Key terms. Go through the table and Diagram 1. Stress that the standard asks about both impact (what interests and perspectives actually do) and appropriate roles (what they should do), and that the answer changes with a person's role.

   Key terms for D2.Civ.10.9-12 (working definitions)

   Term	Meaning	Example from this lesson
   Personal interest	What would benefit or harm a person, family or business	A resident who wants quiet near her home
   Perspective	How experience, faith, work or background shape what a person sees and values	A judge who belongs to a persecuted minority
   Civic virtue	A habit that helps people govern themselves: honesty, fairness, respect, tolerance, civility	Listening fully to a speaker before answering
   Democratic principle	A rule for fair self-government: consent of the governed, majority rule with minority rights, rule of law, equality before the law	"Government by consent of the governed"
   Constitutional right	A right protected by a constitution and enforced by courts	Freedom of speech and worship under the First Amendment
   Human right	A right claimed for every person because he or she is human, set out in declarations and treaties	Freedom of opinion in the 1789 Declaration and the 1948 Universal Declaration

   Part 2: The case. In January 1942, a month after the United States entered World War II, West Virginia's state board of education required all public school students to salute the flag and recite the Pledge of Allegiance. Students who refused could be expelled, and their parents could be prosecuted. The Barnett family (the Court's records misspelled the name as "Barnette") and other Jehovah's Witnesses refused, because they believed the salute broke a religious commandment against bowing to images. The Supreme Court had upheld a similar rule in Minersville School District v. Gobitis (1940). On June 14, 1943, Flag Day, it overruled Gobitis, 6 to 3. Glosses: vicissitudes are ups and downs; orthodox means officially approved; to confess a faith is to declare it.

   1The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

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   2National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement. [...]

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   3It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

   4The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

   5If 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. If there are any circumstances which permit an exception, they do not now occur to us.

   Ask: whose interests and perspectives does Jackson think should not decide the case? Students should point to majorities and officials (paragraph 1) and to the board's view of what patriotism requires (paragraph 4).

3. Guided Practice20 minutes

   The dissent (Source 2). Justice Felix Frankfurter, who wrote the Gobitis opinion in 1940, dissented. He was Jewish and had come to the United States from Austria as a boy. Glosses: libertarian here means favoring individual liberty; mischievous means harmful; the Due Process Clause of the Fourteenth Amendment forbids states to take liberty without due process of law; "my brethren" are the other Justices.

   1One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the "liberty" secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.

   • The role of public opinion (Source 1)

     Jackson writes, "Authority here is to be controlled by public opinion, not public opinion by authority" (paragraph 3). What role does this give the majority's views, and how did the 1942 rule go against it?

     Result: Jackson grounds American government in "consent of the governed" and says "the Bill of Rights denies those in power any legal opportunity to coerce that consent" (paragraph 3). Public opinion, including a majority's interests and views, is meant to flow upward: citizens argue, vote and replace officials, and laws change as opinion changes. The 1942 rule reversed that flow, because officials used their power to make students declare a view. Majority opinion may properly shape what officials do; officials may not use their power to dictate what citizens believe.

   • The standard a judge applies (Source 2)

     If Frankfurter will not use his own view of the flag salute, what question does he ask instead?

     Result: He asks only "whether legislators could in reason have enacted such a law" (paragraph 1). For him, the judge's job is to check whether the law is within reason, not whether it is wise, since he is "not justified in writing my private notions of policy into the Constitution." Under that standard, he finds that "reasonable legislators could have taken the action," so he votes to uphold the rule even though he would personally oppose it.

   • How perspectives limited a human rights declaration (Source 3)

     Article One says "Men are born, and always continue, free and equal in respect of their Rights." Whom did the National Assembly of 1789 apply this to?

     Result: At first, mostly to adult men, and political rights only to some of them. The Assembly's members were all men, and many shared the view of their time that women belonged outside public life and that colonial slavery served France's economy. Their perspectives limited how they applied their own principle. Others used the Declaration's words against those limits: in 1791 the writer Olympe de Gouges published a Declaration of the Rights of Woman and of the Female Citizen, and in 1794 France abolished slavery in its colonies (Napoleon restored it in 1802). The impact of a perspective can be to narrow a right; the words of the right can later be used to widen it.

   • Accountability for public power (Source 3)

     An invented town manager refuses to show residents the records of how the town spent a road repair fund. Which article of Source 3 states the principle he ignores?

     Result: Article Fifteen: "every Community has a Right to demand of all its agents an account of their conduct." The town manager is the community's agent; the money is the public's, not his. Keeping the records secret may protect his personal interest in avoiding criticism, but it denies the residents the account the Declaration says they are owed. A democratic principle (accountability) limits what his personal interest may do.

   Pair task: Pairs place Jackson and Frankfurter on Diagram 1. Both are judges, so both belong at the right end, but they disagree about what impartiality requires. Pairs write one sentence for each Justice beginning, "For this Justice, being impartial means ___."

4. Independent Practice15-20 minutes

   Human rights (Source 3). In August 1789, early in the French Revolution, the National Assembly of France adopted the Declaration of the Rights of Man and of Citizens. Thomas Paine, the author of Common Sense, translated it in his 1791 book Rights of Man. Glosses: imprescriptible means it cannot be lost over time; molested means troubled or harassed; to concur is to take part or agree; intrusted is an older spelling of entrusted.

   1The representatives of the people of France, formed into a National Assembly, considering that ignorance, neglect, or contempt of human rights, are the sole causes of public misfortunes and corruptions of Government, have resolved to set forth in a solemn declaration, these natural, imprescriptible, and inalienable rights: that this declaration being constantly present to the minds of the members of the body social, they may be forever kept attentive to their rights and their duties; that the acts of the legislative and executive powers of Government, being capable of being every moment compared with the end of political institutions, may be more respected; and also, that the future claims of the citizens, being directed by simple and incontestable principles, may always tend to the maintenance of the Constitution, and the general happiness.

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   2One: Men are born, and always continue, free and equal in respect of their Rights. Civil distinctions, therefore, can be founded only on Public Utility.

   3Two: The end of all Political associations is the Preservation of the Natural and Imprescriptible Rights of Man; and these rights are Liberty, Property, Security, and Resistance of Oppression.

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   4Four: Political Liberty consists in the power of doing whatever does not Injure another. The exercise of the Natural Rights of every Man, has no other limits than those which are necessary to secure to every other Man the Free exercise of the same Rights; and these limits are determinable only by the Law.

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   5Six: the Law is an expression of the Will of the Community. All Citizens have a right to concur, either personally or by their Representatives, in its formation. It Should be the same to all, whether it protects or punishes; and all being equal in its sight, are equally eligible to all Honours, Places, and employments, according to their different abilities, without any other distinction than that created by their Virtues and talents.

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   6Ten: No Man ought to be molested on account of his opinions, not even on account of his Religious opinions, provided his avowal of them does not disturb the Public Order established by the Law.

   7Eleven: The unrestrained communication of thoughts and opinions being one of the Most Precious Rights of Man, every Citizen may speak, write, and publish freely, provided he is responsible for the abuse of this Liberty, in cases determined by the Law.

   8Twelve: A Public force being necessary to give security to the Rights of Men and of Citizens, that force is instituted for the benefit of the Community and not for the particular benefit of the persons to whom it is intrusted.

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   9Fifteen: every Community has a Right to demand of all its agents an account of their conduct.

   Applying the ideas (Source 4). Students read the invented town council case and complete an analysis chart with three columns: the person, his or her personal interest or perspective, and whether its role in the decision was appropriate, with a reason based on a source.

   1The Friends of Cedar Creek, a local group that opposes a planned highway through the creek valley, applied for a permit to hold a rally in Riverton's Town Square on a Saturday in May. The group expects about 300 people and wants to use loudspeakers. The Riverton Town Council, with five members, must vote on the permit.

   2Councilmember Price: "Most people in this town want the highway. I've had dozens of calls. I don't see why we should give the square to a group that most of our residents disagree with. I move that we deny the permit."

   3Town attorney Ms. Feld: "Before you vote, I need to advise you on the law. Under the First Amendment, the town may set rules about the time, place and manner of a rally, such as hours, crowd size and sound levels, as long as the same rules apply to every group, whatever its message. The rules must also be no broader than a real public need, such as safety or quiet for neighbors, requires, and they must leave the group other ways to get its message out. The town may not deny a permit because the council or the public disagrees with what the group will say."

   4Ms. Cho (resident, during public comment): "I live above the bakery on the square, and I have a newborn. I'm not taking a side on the highway. I'm only asking that the loudspeakers not run all afternoon."

   5Councilmember Rivera: "I'll be honest: I support the highway, and I think this group is wrong. But my opinion of their message is exactly what the attorney says I can't use. I'd rather defend their right to say it than set a rule that could be used against a group I agree with someday. I move that we grant the permit, from 10 a.m. to 1 p.m., the standard hours for amplified events in the square, with loudspeakers limited to the same sound level our rules set for every event in the square."

   6Price withdrew his motion. Rivera's motion passed, 4 to 1, with Price voting no.

5. Closure5-10 minutes

   Exit ticket: "Jackson says some rights 'depend on the outcome of no elections.' Frankfurter says a judge may ask only 'whether legislators could in reason have enacted such a law.' Which Justice's view of the role of majorities and courts do you find more convincing, and why?" Accept either answer; score the reasoning and the use of evidence.

   Teacher note on the sources: Sources 1 and 2 are quoted exactly from the U.S. Reports. Barnette is settled law, but the larger question the two Justices debate, how far courts should go in overruling elected officials to protect rights, is still argued by judges and scholars of every view; present both Justices as serious thinkers. The case involves Jehovah's Witnesses' religious beliefs; treat them as a historical and civic fact, without judging any belief. Source 3 uses "Men" and refers to "the Supreme Being" in a sentence the excerpt leaves out; note that the Declaration's promises were not at first applied to women or to enslaved people in French colonies. Source 4 is invented; its highway debate is a vehicle for the rights question, and students should not argue the highway itself.

   Homework passage. Source 5 is an invented scenario about a judge with two cases. To step aside (recuse) is for a judge to give a case to another judge.

   1Judge Ana Moreno serves on the Northfield County trial court. Two cases have been assigned to her this month.

   2Case 1. A family is suing Northfield Power Company, saying a power line the company failed to repair started a fire that burned their barn. The family asks for $85,000. Judge Moreno's retirement account owns 300 shares of Northfield Power stock, now worth $40 a share. No one in the case knows this yet.

   3Case 2. A mail carrier is suing a homeowner after being bitten by the homeowner's dog. When Judge Moreno was eight years old, a neighbor's dog bit her, and she still has a scar. She mentioned this once in a newspaper interview years ago. The homeowner's lawyer has read the interview and asks the judge to step aside, saying she cannot be fair in a dog-bite case.

   4The county's rules for judges say that a judge must step aside in any case in which the judge's impartiality might reasonably be questioned, including any case in which the judge has a financial interest in a party, however small. A judge may give a case to another judge, and the parties then have to wait about two months for a new trial date.

Differentiation Strategies

Assessment Guidance

1. Question 1 of 20 · Multiple Choice

   According to Source 1, paragraph 1, what was "the very purpose of a Bill of Rights"?

   ATo let each state decide which rights its own citizens would have BTo put some subjects out of reach of majorities and officials CTo list the duties citizens owe to the national government in wartime DTo make sure that rights could be changed by a vote of the people

2. Question 2 of 20 · Multiple Choice

   In Source 1, paragraph 4, what does Jackson say is "the test of its substance" for freedom to differ?

   AWhether people may differ only on things that do not matter very much BWhether the majority of voters agrees to allow the difference CWhether people may differ on what touches the heart of the order DWhether the difference causes no harm to anyone's feelings

3. Question 3 of 20 · Multiple Choice

   An invented state law requires every public employee to sign a statement that one political party's program is best for the country. Which passage of Source 1 most directly answers whether this is constitutional?

   A"National unity as an end which officials may foster by persuasion and example is not in question." B"The case is made difficult not because the principles of its decision are obscure." C"No official, high or petty, can prescribe what shall be orthodox in politics." D"We can have intellectual individualism and the rich cultural diversities."

4. Question 4 of 20 · Multiple Choice

   In Source 1, paragraph 2, what does Jackson say about the goal of national unity?

   AIt is a goal that the government may never pursue in any way at all BOfficials may pursue it by persuasion; the question is forcing it CIt can be achieved only through ceremonies that are required DIt matters more than any one person's freedom of conscience

5. Question 5 of 20 · Multiple Choice

   In Source 2, why does Frankfurter mention that he "belongs to the most vilified and persecuted minority in history"?

   ATo show his own views favor liberty, though he sets them aside BTo argue that minorities should be excused from the flag salute CTo claim that Jewish judges should decide all religious liberty cases DTo suggest that the Court's majority was biased against minorities

6. Question 6 of 20 · Multiple Choice

   What does Frankfurter mean by "as judges we are neither Jew nor Gentile, neither Catholic nor agnostic" (Source 2)?

   AJudges should not hold any religious beliefs at all BOnly judges of every faith together can decide a case fairly CThe Constitution forbids judges from discussing religion DJudges' religious identities should not decide their rulings

7. Question 7 of 20 · Multiple Choice

   On which point do Jackson (Source 1) and Frankfurter (Source 2) agree?

   AThat a school board may require students to salute the flag BThat courts should never overrule a state legislature CThat good citizenship and national unity are legitimate goals DThat personal views should guide how judges read the Constitution

8. Question 8 of 20 · Multiple Choice

   According to Source 3, Article Four, what limits may be placed on a person's natural rights?

   AAny limits a majority of the community chooses to set BNo limits of any kind, since the rights are natural CLimits set by the king and the National Assembly together DOnly limits needed to secure others the same rights

9. Question 9 of 20 · Multiple Choice

   An invented police chief assigns officers to guard his brother's private business around the clock, while other shops get normal patrols. Which article of Source 3 does this most directly violate?

   AArticle One, on men being born free and equal BArticle Ten, on freedom of religious opinion and belief CArticle Twelve, on the purpose of a public force DArticle Eleven, on communicating thoughts

10. Question 10 of 20 · Multiple Choice

    Which democratic principle does Source 3, Article Six state?

    AAll citizens may help make the law, which must be the same for all BThe law must be written by experts chosen for their virtue alone COnly property owners may elect the representatives who make the laws DEach local community may make its own law for its own people

11. Question 11 of 20 · Multiple Choice

    According to Source 3, Article Two, what is "the end," or purpose, of all political associations?

    ATo build a strong nation that can defend all of its borders BTo preserve natural rights: liberty, property, security and resistance of oppression CTo carry out the will of the majority in every matter DTo keep public order, even when that costs people some rights

12. Question 12 of 20 · Multiple Choice

    In Source 4, which councilmember's argument conflicts with the principle in Source 1 that some rights "depend on the outcome of no elections"?

    APrice, because he would deny the permit since most residents disagree BRivera, because he would grant the permit despite his own view CRivera, because he set the same sound limit used for all events DPrice, because he received many telephone calls from residents of the town

13. Question 13 of 20 · Multiple Choice

    Ms. Cho asks that the loudspeakers not run all afternoon, and the permit Rivera proposes limits them (Source 4). Why is it appropriate for her personal interest to shape the permit in this way?

    ABecause she lives on the square, she has the right to veto events there BBecause she agreed with the group's view on the highway CBecause a resident's interest always outweighs a group's rights DThe limit applies to every group alike, whatever its message

14. Question 14 of 20 · Multiple Choice

    Which civic virtue does Rivera show in Source 4, paragraph 5?

    ATolerance: defending the rights of a group he thinks is wrong BLoyalty to the residents who support the highway CEfficiency: ending the meeting as quickly as he could DModesty: refusing to share his own view on the highway question

15. Question 15 of 20 · Short Answer

    Analyze the impact of the majority's interests and perspectives on students' constitutional rights in Barnette. Use Source 1 and the background in the lesson.

    Show model answer

16. Question 16 of 20 · Short Answer

    Jackson and Frankfurter both claim to keep their personal views out of the case. Evaluate which Justice better describes the appropriate role of a judge's perspective. Support your answer with both sources.

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17. Question 17 of 20 · Short Answer

    Explain the difference between a constitutional right and a human right, using Source 1 and Source 3 as examples. Why might a person rely on one rather than the other?

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18. Question 18 of 20 · Short Answer

    Identify each personal interest or perspective in Source 4 (Price, Ms. Cho and Rivera), and evaluate whether the role it played in the decision was appropriate.

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19. Question 19 of 20 · Short Answer

    An invented school principal has security staff keep a parent he dislikes out of a public school board meeting, although the parent broke no rule. Using Source 3, Articles Four and Twelve, explain what is wrong and what principle should guide the principal.

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20. Question 20 of 20 · Short Answer

    Describe a time when your own interests or perspective shaped how you saw someone else's right (at school, in sports, online or in your community). Explain which civic virtue helped, or would have helped, you apply the right fairly.

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These standards connect to D2.Civ.10.9-12: prerequisites to review first, parallel standards at the same level, and next steps that build on it.

Standard text: National Council for the Social Studies (NCSS), The College, Career, and Civic Life (C3) Framework for Social Studies State Standards: Guidance for Enhancing the Rigor of K-12 Civics, Economics, Geography, and History (Silver Spring, MD: NCSS, 2013). NCSS was not involved in the production of this lesson and does not endorse it.