Overview

Lesson Procedure

75-80 minutes of class time across 5 phases.

1. Warm-Up10 minutes
2. Direct Instruction25 minutes
3. Guided Practice20 minutes
4. Independent Practice15 minutes
5. Closure5-10 minutes

1. Warm-Up10 minutes

   Project the scenario and give students three minutes to write before discussing.

   Warm-Up Prompt

   "A student handbook says: 'The principal may make any rule needed to keep students safe.' The principal then bans student cars from the parking lot on Fridays, saying it is a safety rule. A student says the Friday ban has nothing to do with safety. (1) What exactly would someone have to decide to settle the dispute? (2) Who should decide it: the principal, the students, or someone else? Why?"

   Collect answers on the board in two columns: What must be decided and Who decides. Students usually say the question is whether the rule is "really" about safety. Translate their words: the handbook is the principle (a grant of power with a limit), "is it really about safety?" is the test, and applying the test to the Friday ban is the application. The "who decides" column is the question of judicial review. Tell students that today's texts argue about both columns, with a real law and real stakes.

2. Direct Instruction25 minutes

   Part 1: The case. In 1895 New York passed a law limiting employees in bakeries to 10 hours a day and 60 hours a week. Joseph Lochner, who owned a bakery in Utica, was convicted of letting an employee work more than 60 hours in one week. He argued that the law violated the Fourteenth Amendment, which says that no State shall "deprive any person of life, liberty, or property, without due process of law." In 1905 the Supreme Court agreed, 5-4. Justice Peckham wrote for the majority; Justice Harlan (joined by two others) and Justice Holmes wrote dissents. Define police power: the power of a State to pass laws for the public's health, safety, morals and general welfare.

   Part 2: What to delineate. Introduce the terms with the table and Diagram 2. Stress that a dissent has no legal force, but its reasoning can be delineated and evaluated exactly like a majority's.

   Parts of legal reasoning and of public advocacy

   Term	What it means	Question to ask
   Delineate	Lay out the reasoning step by step, in the writer's order	What comes first, and what depends on what?
   Constitutional principle	The clause, or the idea drawn from it, that governs the case	Which words of the Constitution are in play?
   Test (standard)	The question a court asks to turn a principle into a decision	What would make the law pass or fail?
   Application	Fitting the facts of the case to the test	Which facts does the court rely on, and are they shown or only asserted?
   Holding	What the court decides	Who wins, and on what ground?
   Dissent	A justice's written disagreement with the majority	At which step does the dissent part from the majority?
   Premise	A statement an argument starts from; it may be stated or unstated	What must a reader already accept?
   Purpose	What the writer wants a particular audience to believe or do	Who is the audience, and what is at stake for them?
   Argument	The chain of reasons that leads from premises to a claim	Does each step follow from the one before?

   Part 3: Model with the majority opinion. Read the Peckham passage aloud. Model the five-step delineation on paragraphs 1-3 with worked examples 1 and 2 and Diagram 1, then model evaluation with examples 3 and 4. Gloss "wards of the State" (people the State must protect because they cannot protect themselves, like children).

   1It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext—become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.

   2This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the State it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the State? and that question must be answered by the court.

   3The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.

   • Delineating the principle and the test (Peckham)

     In paragraph 1, find the constitutional principle the majority starts from, its reason for limiting the police power, and the test it will apply.

     Result: Principle: the Fourteenth Amendment protects liberty of contract, and the State's police power may limit it, but "there is a limit to the valid exercise of the police power." Reason for the limit: without one, any law said to protect health would be valid and the police power would be "a mere pretext." Test: "Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty"?

   • Tracing the application (Peckham)

     In paragraph 3, which possible justification for the bakery law does the majority reject, and which does it leave for the rest of the opinion?

     Result: Rejected: the law as "a labor law, pure and simple," because bakers are "in no sense wards of the State." Left: "The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker." Later in the opinion (not printed here) the majority finds no "direct relation" between the hours limit and bakers' health and reverses the conviction.

   • Evaluating a premise (Peckham)

     Paragraph 3 says, "There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades." How much weight can this premise carry?

     Result: It is asserted, not supported: the passage gives no evidence about bakers. The rejection of the labor-law ground also needs an unstated premise, that a worker equal in intelligence is equal in bargaining power. A reader can ask whether a baker who needs the job can refuse a 70-hour week. The premise may be true of intelligence and still miss the point of an hours law.

   • Testing a claim against the opinion's own method (Peckham)

     Paragraph 2 says, "This is not a question of substituting the judgment of the court for that of the legislature." Does the test in paragraph 1 support this claim?

     Result: Only in part. The majority separates the wisdom of a law (for the legislature) from its power (for the court). But its test asks whether a law is "reasonable," "appropriate" or "unnecessary," words that require the court to weigh the law's benefits. The claim holds only if a court can apply those words without judging policy, which is the point the dissents dispute.

   • Premises and purpose in a presidential message (Jackson)

     In paragraph 1 of the Jackson passage (below), name the claim Jackson opposes, his premise about precedent, his evidence and the purpose of the paragraph.

     Result: Opposing claim: the bank's constitutionality "ought to be considered as settled by precedent and by the decision of the Supreme Court." Premise: "Mere precedent is a dangerous source of authority" unless the people and the States have clearly accepted it. Evidence: Congress decided for a bank in 1791 and 1816 and against it in 1811 and 1815, so the precedents "were equal." Purpose: to show the Senate, and the public who would read the message, that his veto does not defy settled law.

   Part 4: Model with a presidential message. The standard names presidential addresses as works of public advocacy. Explain that in 1832 Congress voted to renew the charter of the Bank of the United States, which the Supreme Court had upheld in McCulloch v. Maryland (1819), and Jackson vetoed the bill. Read the Jackson passage and work through example 5. Students keep this passage for Activity 3.

   1It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

   2If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

3. Guided Practice20 minutes

   Pairs read Justice Holmes's dissent and delineate it with the same five steps they used for Peckham, highlighting the principle in one color and the test in the other. Gloss the references before reading: laissez faire is the policy that government should leave business alone; Herbert Spencer was an English philosopher whose book Social Statics (1851) argued for very limited government; a shibboleth is a slogan that marks membership in a group; usury laws cap interest rates. Circulate and ask each pair: Which sentence is Holmes's test, and which is his application?

   1This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U. S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U. S. 197. Two years ago we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U. S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U. S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

   2General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

   Debrief and build a side-by-side chart with the majority. Expected findings: Holmes's claim about the majority is in his first sentence, that the case "is decided upon an economic theory which a large part of the country does not entertain." His principle is that a judge's agreement or disagreement "has nothing to do with the right of a majority to embody their opinions in law," and that "a constitution is not intended to embody a particular economic theory." His evidence is a list of laws the Court and the country already accept, from Sunday laws to the eight-hour law for miners upheld in Holden v. Hardy. His test is whether "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." His application: "A reasonable man might think it a proper measure on the score of health." Ask: Do Peckham and Holmes disagree about what the Fourteenth Amendment says, or about how a court should apply it? (About how to apply it: both read "liberty" as a limit on the States, but they disagree about how much a court should demand of a law before letting it stand.)

4. Independent Practice15 minutes

   Students read the Federalist No. 78 passage on their own and answer quiz questions 1-10 and 15-17. Questions 11-14 and 18-20 return to the Peckham and Holmes passages. Hamilton wrote as "Publius" in 1788, while New York was debating whether to ratify the Constitution. The 1863 edition keeps his capitals (Courts, Legislative, People) and his spelling. Remind students to quote the words that support each answer.

   1The complete independence of the Courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the Legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the Courts of justice; whose duty it must be to declare all Acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

   2Some perplexity respecting the rights of the Courts to pronounce Legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the Judiciary to the Legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. [...]

   3There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No Legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the Representatives of the People are superior to the People themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

   4If it be said that the Legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the Representatives of the People to substitute their will to that of their constituents. It is far more rational to suppose, that the Courts were designed to be an intermediate body between the People and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. 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.

   5Nor does this conclusion by any means suppose a superiority of the Judicial to the Legislative power. It only supposes that the power of the People is superior to both; and that where the will of the Legislature, declared in its statutes, stands in opposition to that of the People, declared in the Constitution, the Judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

5. Closure5-10 minutes

   Exit ticket: "In two sentences: What is the difference between disagreeing with a court's holding and finding a flaw in its reasoning? Give one flaw you found today in a text whose conclusion you agree with." Collect and sort the answers into three piles: names a specific step, names only the outcome, and unclear. Open the next class with two answers from the first pile.

   Homework passage. Introduce Justice Harlan's dissent, which students analyze for homework. Harlan, joined by Justices White and Day, starts from the same police-power framework as the majority but reaches the opposite result. Tell students that earlier paragraphs of his dissent, not printed here, quote a treatise on the diseases of workers and a New York labor report.

   Teacher note on language. The 1905 opinions use "man," "men" and "workman" for all people and all workers, and Harlan writes of "civilized peoples," a phrase of the time that ranked societies and is dated today. Read the words as printed, since they are the justices' own, and point out how they reflect their time. The homework passage leaves out one sentence, a quotation from an economist, marked [...].

   1We judicially know that the question of the number of hours during which a workman should continuously labor has been, for a long period, and is yet, a subject of serious consideration among civilized peoples, and by those having special knowledge of the laws of health. Suppose the statute prohibited labor in bakery and confectionery establishments in excess of eighteen hours each day. No one, I take it, could dispute the power of the State to enact such a statute. But the statute before us does not embrace extreme or exceptional cases. It may be said to occupy a middle ground in respect of the hours of labor. What is the true ground for the State to take between legitimate protection, by legislation, of the public health and liberty of contract is not a question easily solved, nor one in respect of which there is or can be absolute certainty. There are very few, if any, questions in political economy about which entire certainty may be predicated. [...]

   2We also judicially know that the number of hours that should constitute a day's labor in particular occupations involving the physical strength and safety of workmen has been the subject of enactments by Congress and by nearly all of the States. Many, if not most, of those enactments fix eight hours as the proper basis of a day's labor.

   3I do not stop to consider whether any particular view of this economic question presents the sounder theory. What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion. There are many reasons of a weighty, substantial character, based upon the experience of mankind, in support of the theory that, all things considered, more than ten hours' steady work each day, from week to week, in a bakery or confectionery establishment, may endanger the health, and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the State, and to provide for those dependent upon them.

   4If such reasons exist that ought to be the end of this case, for the State is not amenable to the judiciary, in respect of its legislative enactments, unless such enactments are plainly, palpably, beyond all question, inconsistent with the Constitution of the United States. We are not to presume that the State of New York has acted in bad faith. Nor can we assume that its legislature acted without due deliberation, or that it did not determine this question upon the fullest attainable information, and for the common good. We cannot say that the State has acted without reason nor ought we to proceed upon the theory that its action is a mere sham. Our duty, I submit, is to sustain the statute as not being in conflict with the Federal Constitution, for the reason—and such is an all-sufficient reason—it is not shown to be plainly and palpably inconsistent with that instrument. Let the State alone in the management of its purely domestic affairs, so long as it does not appear beyond all question that it has violated the Federal Constitution. This view necessarily results from the principle that the health and safety of the people of a State are primarily for the State to guard and protect.

Differentiation Strategies

Assessment Guidance

1. Question 1 of 20 · Multiple Choice

   In paragraph 1, what does Hamilton mean by "a limited Constitution"?

   AOne that limits how long judges may serve before the People must choose them again BOne that sets specific exceptions to legislative power, such as no ex post facto laws COne that the legislature may change by ordinary law whenever the People agree to it DOne that limits the powers of the states while leaving Congress free of any limits

2. Question 2 of 20 · Multiple Choice

   Paragraph 3 begins, "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." For this principle to apply to Congress, what must be true?

   ACongress must hold delegated power under a commission, the Constitution, from the People BJudges must have more legal experience and training than the members of Congress have CThe states must first agree, by a vote of their legislatures, that the act is unconstitutional DThe People must be unable to change the Constitution by any means once it has been ratified

3. Question 3 of 20 · Multiple Choice

   Paragraph 3 says that denying the principle "would be to affirm, that the deputy is greater than his principal; that the servant is above his master." What kind of support is this?

   AStatistics showing how often state legislatures have broken the limits of their constitutions BA precedent from an earlier court decision about a deputy who went beyond his instructions CAnalogies: the legislature is to the People as a deputy to a principal or a servant to a master DAn appeal to the reader's fear of a President who might try to rule without the consent of Congress

4. Question 4 of 20 · Multiple Choice

   What is the purpose of paragraph 2 ("Some perplexity respecting the rights of the Courts...") in Hamilton's argument?

   ATo concede that the courts will in fact be superior to the legislature, as critics claim BTo describe how the courts of Great Britain have handled the acts of Parliament CTo attack the character and motives of the people who oppose the new Constitution DTo state an objection (that the courts become superior) so that he can answer it

5. Question 5 of 20 · Multiple Choice

   In paragraph 4, Hamilton writes, "It is far more rational to suppose, that the Courts were designed to be an intermediate body between the People and the Legislature." What does "It is far more rational to suppose" show about this step?

   AIt quotes the clause of the Constitution that gives the courts the power to void laws BIt reports what the Supreme Court had already decided about a law passed by Congress CIt marks an inference about the framers' design, argued as the likelier reading DIt admits that the conclusion of the essay is probably false but still worth defending

6. Question 6 of 20 · Multiple Choice

   Which objection does Hamilton answer in paragraph 4?

   AThat the legislature judges its own powers, and its reading binds the other branches BThat judges appointed for life will grow corrupt, because no election can remove them CThat the Constitution will be too hard to amend once the courts start interpreting it DThat the new federal courts will cost the states too much money to build and to staff

7. Question 7 of 20 · Multiple Choice

   How does paragraph 5 answer the objection stated in paragraph 2?

   AIt admits that the courts are superior to the legislature but argues that this is safe BIt denies any judicial superiority: the power of the People is superior to both branches CIt says the objection is too unimportant to answer and turns to the tenure of judges DIt says the legislature can overrule any court decision by a two-thirds vote of each house

8. Question 8 of 20 · Multiple Choice

   Which statement best evaluates the claim in paragraph 1 that the Constitution's limits can be kept "in practice" only by the courts?

   AIt is circular, because it uses the word "Constitution" in both the premise and the conclusion BIt fails because Hamilton cites no Supreme Court decisions that struck down a law of Congress CIt is irrelevant, because bills of attainder were already forbidden by the state constitutions DIt says "no other way" but never weighs other checks, such as a veto or the next election

9. Question 9 of 20 · Multiple Choice

   Paragraph 4 moves from "The interpretation of the laws is the proper and peculiar province of the Courts" to the conclusion that courts must prefer the Constitution to a statute. Which sentence bridges the gap between interpreting laws and interpreting the Constitution?

   A"A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law." B"No Legislative act, therefore, contrary to the Constitution, can be valid." C"They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." D"Without this, all the reservations of particular rights or privileges would amount to nothing."

10. Question 10 of 20 · Multiple Choice

    In paragraph 4, what rule does Hamilton use to decide which should prevail when a statute and the Constitution conflict?

    AThe law passed more recently should prevail, because it is the newer expression of the People BThe law passed by the larger majority should prevail, whichever one that turns out to be CThe one with "the superior obligation and validity," the Constitution, as the People's intention DThe courts should choose whichever of the two laws seems wiser for the country at the time

11. Question 11 of 20 · Multiple Choice

    Peckham's paragraph 1 ends: "Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor." What does this add to the majority's application of the Fourteenth Amendment?

    AIt shows that the bakers themselves had asked the legislature to let them work longer hours BIt puts the employer's liberty to buy labor, not only the worker's, under the Amendment CIt proves that the bakery law is a health law, since both parties to the contract are healthy DIt cites a precedent of the Court that decides the case in favor of the employer

12. Question 12 of 20 · Multiple Choice

    In paragraph 2, Holmes writes, "Every opinion tends to become a law." How does the next sentence use this idea?

    AIt warns that judges' opinions will become laws unless Congress steps in to stop them BIt argues that each opinion of the Court should be treated like a new constitutional amendment CIt says that public opinion changes too fast to be the basis of any law about hours of work DIt says "liberty" is perverted when used to block the natural outcome of a dominant opinion

13. Question 13 of 20 · Multiple Choice

    Holmes writes, "It does not need research to show that no such sweeping condemnation can be passed upon the statute before us." Why, under his own test, does he need no evidence about bakers' health?

    ABecause a law fails his test only if every rational and fair man would condemn it BBecause the majority had already admitted that baking is an unhealthy trade for the workers in it CBecause earlier decisions of the Court had already settled the question for bakers in New York DBecause New York had filed statistics on bakers' health that every justice accepted as true

14. Question 14 of 20 · Multiple Choice

    Holmes adds that "Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work." How does this sentence relate to the majority's paragraph 3?

    AIt concedes that the law is unreasonable as a health measure but reasonable as a labor law BIt reopens the labor-law ground the majority dismissed as one reasonable men could accept CIt says that the New York law already limits the hours of work in every trade in the state DIt agrees with the majority that bakers are wards of the State who cannot protect themselves

15. Question 15 of 20 · Short Answer

    Delineate Hamilton's argument in paragraphs 1-5. Write it as a numbered chain of premises and a conclusion, each with its paragraph number, then name the two objections he answers and where he answers them.

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16. Question 16 of 20 · Short Answer

    Explain Hamilton's purpose in this passage. What does he want his readers to accept, and what fear of theirs does he try to remove? Quote the passage.

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17. Question 17 of 20 · Short Answer

    Jackson writes that "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution." Which premise of Hamilton's paragraph 4 does Jackson reject? Whose argument handles the objection from the other side better? Quote both texts.

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18. Question 18 of 20 · Short Answer

    Holmes writes, "General propositions do not decide concrete cases." Does his own dissent escape this criticism? Does the majority's? Use one quotation from each passage.

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19. Question 19 of 20 · Short Answer

    Peckham writes, "Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week." Evaluate this sentence as legal reasoning: what does it prove, what does it not prove, and what kind of support does it offer?

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20. Question 20 of 20 · Short Answer

    A classmate says, "The majority won 5-4, so its reasoning must be better than the dissents' reasoning." Evaluate this claim, using one example from the Peckham passage and one from the Holmes passage.

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These standards connect to RI.11-12.8: prerequisites to review first, parallel standards at the same level, and next steps that build on it.

Standard text: Common Core State Standards for English Language Arts & Literacy. © Copyright 2010. National Governors Association Center for Best Practices and Council of Chief State School Officers. All rights reserved.