Rosa Parks (1913-2005) has been called “The Mother of the Civil Rights Movement.” In a moment of quiet, dignified courage, Parks moved a generation and a nation to end second class citizenship for African Americans.

Parks was born in Tuskegee, Alabama and was raised on a farm. She grew up in the shadow of Jim Crow law, and all aspects of social life were rigidly segregated by law. From water fountains, to city buses, to public schools, facilities were separate for blacks and whites. Parks had been riding the city buses for years. Once, in 1943, she entered the bus in front to pay her fare and then, as required by the bus company, exited and walked around to the rear entrance designated for blacks. But before she could board, the bus drove off.

On December 1, 1955, as Parks was riding the bus home, she was asked to give up her seat and move further back in the bus. She was already seated in the “colored” section, but because more white people had boarded, the “colored” section would need to be moved further back. Parks refused. She was arrested. Recounting the event for a documentary later, she said, “When [the driver] saw me still sitting, he asked if I was going to stand up, and I said, ‘No, I’m not.’ And he said, ‘Well, if you don’t stand up, I’m going to have to call the police and have you arrested.’ I said, ‘You may do that.’”

Parks’ courage led to a boycott of the city buses championed, along with many other leaders, by the relatively unknown Reverend of Dexter Avenue Baptist Church, Martin Luther King, Jr. During the boycott, members of the black community (many of whom would not afford cars), made sacrifices for their rights. Many cab drivers, in solidarity with the boycotters, began charging blacks only 10 cents per ride to assist with the hardships that came with the bus boycott. When the city government announced they would prosecute these cab drivers, leaders began a “private taxi plan” offering coordinated transportation. They risked not only arrest, but police brutality and mob violence.

The boycott was powerful—Montgomery county bus passengers were 75% African American—and it lasted more than a year: 381 days. In November of 1956 the District Court ruled that segregation on buses was unconstitutional and boycott officially ended.

CREDIT: “Woman fingerprinted. Mrs. Rosa Parks, Negro seamstress, whose refusal to move to the back of a bus touched off the bus boycott in Montgomery, Ala.,” 1956. Prints and Photographs Division, Library of Congress. Reproduction Number LC-USZ62-109643.

As judicial review was seldom exercised prior to the 20th century, the case was cited exclusively for its discussion of the particular issues of the case for the first hundred years after it was handed down. Beginning in the early 20th Century, however, the Court began striking down federal laws more frequently. Proponents of judicial review pointed to Chief Justice John Marshall’s decision in Marbury as a source supporting the view that the Supreme Court has the final say on what the Constitution means.

The case of Marbury v. Madison (1803) was the first time the U.S. Supreme Court declared an act of Congress to be unconstitutional. (The case concerned a section of the Judiciary Act of 1789.) In his opinion, Chief Justice John Marshall relied almost exclusively on the specific language of the Constitution, saying that it was the “paramount law of the nation” and that it constrained the actions of all three branches of the national government. The whole point of a written Constitution, Marshall asserted, was to ensure that government stayed within its prescribed limits: “The powers of the Legislature are defined and limited; and [so] that those limits may not be mistaken or forgotten, the Constitution is written.” In cases where a law conflicted with the Constitution, Marshall wrote, then “the very essence of judicial duty” was to follow the Constitution.

Marshall also asserted that the courts had the responsibility to understand and articulate what the Constitution means: “It is emphatically the province and duty of the judicial department to say what the law is.” The decision concluded “a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.”

The Supreme Court did not declare another act of Congress unconstitutional until it struck down the Missouri Compromise in Dred Scott v. Sanford (1857). The power of judicial review was used sparingly for the next several decades. Beginning in the early 20th Century, however, the Court began striking down federal laws more often than ever before. Proponents of judicial review pointed to Chief Justice John Marshall’s decision in Marbury as a source supporting the view that the Supreme Court has the final say on what the Constitution means.

Since then, as the powers of the national government have expanded and as more and more state laws became subject to federal review (as a result of the Fourteenth Amendment and the incorporation of the protections of the Bill of Rights against the states), the Supreme Court has had frequent opportunities to exercise its power of judicial review.

What do you think? Does the power to strike laws that are judged by nine justices to be unconstitutional establish the Supreme Court as a co-equal branch of government alongside Congress and the President? Who should have the final say on what the Constitution means?

Get a free copy of the Marbury v. Madison (1803) lesson plan from our curriculum Supreme Court DBQs .

From the Post piece:

“ the House’s Stop Online Piracy Act and the Senate’s Protect IP (intellectual property) Act…are meant to attack the problem of foreign Web sites that sell pirated or counterfeit goods. They would impose restrictions forcing U.S. companies to stop selling online ads to suspected pirates, processing payments for illegal online sales and refusing to list Web sites suspected of piracy in search-engine results.

The idea is to cut off the channels that deliver American customers, and their money, to potential pirates. But tech companies see the laws as a dangerous overreach, objecting because, they say, the laws would add burdensome costs and new rules that would destroy the freewheeling soul of the Internet.”

How do you and your students respond? Regardless of how they feel about the wisdom or constitutionality of SOPA and Protect IP legislation, how do today’s protest reveal ways citizens can express views to lawmakers and participate in self government?

Remember you can always check our Teaching with Current Events Resources for daily, updated news stories related to the Constitution and Bill of Rights.

Explore the impact of the First Amendment in this eLesson!

Did you use this eLesson in your classroom to discuss First Amendment rights?  How did your students react to the story?

Philadelphia—The delegates, having now tackled topics as challenging as representation in Congress and several issues related to slavery, are beginning to see a light at the end of the tunnel. But decisions remain related to the separation of powers between the three national branches, as well as to federalism: the assignment of powers between the national government and the state governments.

Enumerated Powers of the National Government

Days were devoted to discussing and finalizing the types of powers, and the specific powers themselves, which would be enumerated, or listed. Guiding the delegates was the understanding that the national government would be one of limited powers—if a power was not given to the national government, it would be assumed not to have it. The Congress would be empowered to make rules for commerce among the states, and, for the purpose of discharging the national debt, be able to “collect taxes, duties, imposts, and excises.” The great writ, or habeas corpus, could not be suspended “unless where in cases of Rebellion or invasion the public safety may require it.”

The delegates discuss the establishment and jurisdiction of the judiciary, with the particular concern of keeping the judiciary independent of the other branches. A motion to empower the executive to remove justices on request of the legislature was soundly defeated (7-1).

Another important topic is the division of war powers. Unlike a king, whose power is marked by the ability to go to war on a whim, the President of the United States would be unable to declare war – that power was given to Congress. The President would be commander in chief of the military when it was called into service by the United States.

A Nationalist’s Last Gasp

A constitutional supremacy clause—holding that the Constitution is the supreme law of the land—had been decided several days earlier.  Consequently, state laws would give way to federal laws made in pursuance of the national constitution.  Consistent with this reasoning, James Madison, supported by James Wilson and Charles Pinckney, makes another attempt to give Congress a veto power over state laws.

Many delegates, including George Mason and John Rutledge, objected, asking: would states have to submit all their laws to the general government for approval? Would the general government be empowered to repeal state laws outright? Rutledge pronounced that no state would “ever agree to be bound hand & foot in this manner.” The proposal was narrowly defeated (6-5), along with Madison’s last gasp for a more supreme national government.

State Matters

The delegates dealt with issues related to states: their powers, their relationship to each other, as well as procedures for new states. As part of a union, the states would have obligations to each other: they would be bound to recognize the laws and proceedings of other states. A fugitive slave clause was added, requiring even free states to deliver runaway slaves to their masters. The national government would also have obligations to states: the guarantee of a republican form of government, protection from invasion, and protection from domestic violence upon a governor’s request.

Ratification

The work of the convention would be meaningless if states did not approve the new Constitution. There was near unanimity (9-1) that the Constitution would only go into effect for the states that actually ratified. After defeating proposals to require 13, and then 10 states to ratify in order for the Constitution to go into effect for those states, the delegates finally settled (8-3) on a magic number of nine states. The Confederation Congress would not have to approve the new Constitution.

The Leftovers: The Brearly Committee

With this, the Convention has concluded its discussion of the Committee of Detail Report. To deal with those questions still outstanding, a new committee was formed will consisting of one delegate from each state. This group entitled “The Committee on Unfinished Parts,” would become known as the Brearly Committee after its New Jersey representative, and would deal with those issues that had been postponed.  These would include Congress’s power to spend for the general welfare, creation of the Electoral College method of electing the President, and the President’s role in treaty-making and in appointment of officers.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Philadelphia –

The Gerry Commission report gave form to the idea, which had been bubbling up in debate, of a union “partly national, partly federal”. Because this idea was gaining momentum, the Gerry Commission report might be seen as the “Nationalists’ Last Gasp.” The bloc of delegates – including James Madison, James Wilson, and Gouverneur Morris – who had hoped to create a new national government that would act on people as individuals (and virtually eliminate any vestiges of state sovereignty), saw the writing on the wall.

July 5 closed with Elbridge Gerry defending the compromise suggested by his committee from attacks by nationalists. “We were neither the same Nation nor different Nations,” he explained, but if the nationalists and the defenders of state sovereignty did not “come to some agreement among ourselves some foreign sword will probably do the work for us.” With this, and with George Mason telling the delegates, in effect, that they would leave over his dead body, debate about the Gerry Committee report began in earnest.

One provision of the report, which said money bills should originate in the lower house, was dealt with rather quickly. Gouverneur Morris – who was (next to Alexander Hamilton) the most vocal defender of aristocracy, and a powerful Senate, in the Convention  – objected forcefully. Benjamin Franklin seems to have been more persuasive in stating that power over the purse strings should be lodged in the house that was most closely tied to the people.

The question of representation – of who should be heard, and how loudly – continued to be difficult. Smaller states were fearful of the proposed ratio of one representative for 40,000 inhabitants; tiny Delaware, it was noted, had just 35,000 inhabitants. In the first enumeration based on this ratio, there would only be 56 representatives in the lower house of Congress. All had to consider how the addition of new states would affect the balance of power. A later compromise fixed this number at 65. For some, even this was too small. George Mason observed that 38 members would make a quorum, and thus 20 votes could make a majority; Madison proposed (unsuccessfully) that the size of the lower house be doubled from 65. Roger Sherman (CT) and John Rutledge (SC) thought 65 too large, as it would be difficult to find enough individuals of a characters fit for public office.

Did the Delegates Count Slaves as Three-Fifths of a Person?

Nationalist James Wilson articulated the paradox facing the delegates over the issue of slavery and how it affected the current debate over the nature of the government. Were enslaved people citizens? If so, then why not count them towards state population counts? Or were they property? If so, then why were other forms of property not figured into the equation for determining taxation?

The delegates began to see their way clear once they tethered representation to taxation: direct taxes would be in proportion to representation.

But William Davie of North Carolina saw a conspiracy to ensure slave holding states would not be able to count any of their slave populations towards representation at the convention. It was “high time to speak out now,” he said. North Carolina would never agree to any terms of confederation unless black populations were counted at least by a ratio of at least 3/5ths. If black populations were going to be excluded altogether, “the business was at an end.” Many delegates balked at the the 3/5ths ratio. Morris answered Davie’s challenge by pointing out the voluntary nature of the compact the states would be entering. Morris summed up his position like this — he would have to offend either the Southern states or human nature himself, and given that choice, he would offend the Southern states.

The delegates approved (6-2-2) the 3/5ths ratio, settling that question, though pointed exchanges about slavery would continue. The arguments may have been nuanced, emotional, and even explosive, but reason for them was simple: Representation in Congress meant power. And part of that power might have been brought to bear against slavery itself. Had the 3/5ths clause, as it has become known, not been ratified, what might have been the alternative? If the less populous slave states had been able to count their entire slave populations towards representation, that would have meant much greater power in Congress for the South. If they had been able to count none of their slave populations, perhaps there would have been no Constitution.

Connecticut Compromise

Similar types of arguments surfaced in debates over representation in the national legislature: would states be represented (in other words, would the confederation still be a confederacy?) or would the people (establishing a national government that drew its power from and acted on individuals)?

Madison, architect of the Virginia Plan and still a promoter of a national system, argued against the idea that the government could be partly national and partly federal. When, he asked, would the central government be called upon to act in a way that did not impact individuals? “In all cases where the general government is to act on the people, let the people be represented and the votes be proportional. In all cases where the government is to act on the States as such, in like manner as Congress now act on them, let the States be represented and the votes be equal.”

After the weekend break, the delegates returned to approve (5 – 4 – 1) the Gerry Committee Report. Representation in the House of Representatives would be proportional and based on population; Senate representation would be equal for each State, and money bills would originate in the House and be un-amendable in the Senate. This is also known as the Connecticut Compromise, and is seen by many as a significant turning point in the Convention.

Philadelphia—The bold Virginia Plan remains the center of debate this week at the federal convention. After addressing questions of the power of the national government, the delegates find themselves circling back to various questions of the form and structure the new government will take.

Small or Extended Republic?

Within the context of determining the place of states in the new system of government, June 7 saw debate on the nature of republics and which form—small or extended—led to greater happiness. Having studied the dismal histories of ancient republics, James Madison was convinced that an extended republic would best balance order and liberty. While Roger Sherman of Connecticut asserted that small republics, where government was closer to the people, led to greater happiness, Madison countered that extended republics prevented factions from combining to oppress minorities. Madison would later address these points in Federalist 10.

A veto over state laws?

James Madison and Charles Pinckney, perhaps giving more ammunition to those who would accuse some delegates of a covert plan to create a consolidated national government, proposed giving Congress a “negative” or veto power over state laws. This proposal was voted down, handing Madison – who had seen this power as a republican remedy for the republican danger of majority tyranny – a frustrating defeat.

Representation

Madison was also about to see another key feature of the Virginia Plan challenged – its proposal that representation in both houses of the national legislature be apportioned by size. Roger Sherman, representing the small state of Connecticut, proposed that one house should be made up of representatives based on a state’s population of “free inhabitants” with all states having equal representation in the second house, “otherwise a few large States will rule the rest.” The delegates were touching on sensitive issues. Apparently to avoid an impasse between large and small states, James Wilson and Rufus King made the simple motion that we not apportion representatives like we did under the Articles – with states represented equally – but according to “some equitable ratio”.

Benjamin Franklin

In addition, the great Dr. Franklin chose this as one of the few times during which he would lend the weight of his reputation to keepingthe Convention moving forward. Having prepared remarks that were read by Mr. Wilson, Franklin praised the delegates, noting that prior to this conversation on representation, “our debates were carried on with great coolness & temper.” Yet he warned those who had not engaged in such a collegial way that he hoped such outbursts would “not be repeated; for we are sent here to consult, not to contend, with each other….”

The delegates agreed to the proposal offered by Mr. Wilson and Mr. King, but this did not settle the issue and debate over the form of the legislature continued. Despite Franklin’s attempt to diffuse the situation, the delegates could not settle on equitable ratio of representation.

The 3/5^ths Clause

The issue of representation continued to plague the delegates, complicated as it was by the practice of chattel slavery. Greater populations would mean more power in Congress, and slave states wanted to be able to count their slave populations for purposes of representation. Slaves, of course, were considered property. Elbridge Gerry, taking issue with the Southern state’s desire to count slaves towards their populations, asked provocatively, “Why then should the blacks, who [are] property in the South, be in the rule of representation more than the Cattle & horses of the North?” Still the delegations agreed (9-2) to the 3/5ths compromise. Roger Sherman then threw down the gauntlet, saying the small states would “never agree to the plan on any other principle than an equality of suffrage.” He was outvoted, 6-5.

It was eventually agreed, for the sake of preserving a chance at union among the states, that slave holding states would be permitted to count three-fifths of their slave populations towards representation in Congress. The three-fifths clause today is often referred to as counting enslaved persons as “3/5ths of a person.” No such characterization was made at the convention.

Most of the questions addressed this week—and throughout the summer—naturally had to do with the source of government power. Should consent of the governed come from the people, as James Wilson seemed to advocate? Or from the states (and thereby only indirectly from the people of those states) as advocated by the friends of the former Confederacy such as George Mason or Roger Sherman?

The delegates concluded by agreeing to vote on Amended Virginia Plan with 19 Resolutions. But the delegates from New Jersey had a plan up their sleeve.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

We work to prepare curriculum resources that tie constitutional principles to current events in ways that show young people why their rights matter, why the Constitution matters, and why our constitutional principles continue to be important.

This week’s expanded eLesson provides current events resources along with critical thinking questions to guide discussion of the death of Osama bin Laden in the context of American history and traditions, the Constitution, and the rule of law.

The lesson provides links to news stories and constitutional resources, along with critical thinking questions, to help students answer the question:

“The Constitution divides war-making power between the executive and legislative branches, ensuring that war would not be the result of a King’s personal pride or quest for power. If you were the President of the United States during the time of the September 11 attacks, how would you have sought to balance citizens’ natural desire for arbitrary power with respect for the rule of law?”

The resource will be sent to our eLesson subscribers, and is available here for free download. We hope you will be able to review it and decide how you can use it with your students. If you do, please tell us in the comments how it went. What is the most important lesson for students to take away from this historical event? Download the lesson: Constitutional Principles and the Death of Osama bin Laden.

“It’s up to the individual justice to determine whether he believes that, in fact or appearance, there’s sufficient concern about his impartiality to make recusal appropriate,” said Deborah L. Rhode, a legal ethics scholar and professor of law at Stanford University. “So he [Thomas] should be considering whether he believes he can act in a disinterested manner, but also the court’s credibility with the public, and will Americans, who may differ with him… believes he comes to the table with an unbiased view.”

Justice Thomas is not the only Supreme Court Justice being criticized for a potential conflict of interest. Republican Senator Orrin Hatch has called for Justice Elena Kagan to sit out the case should it reach the Court. He argues that Kagan, as  former Solictor General for the Obama Administration, would have taken part in discussions about the health care law. Kagan has indeed recused herself from dozens of cases this term because of her previous role as the President’s chief advocate.

What do you think? Should either Justice recuse him or herself from the case? What are the strongest arguments on each side? Why is conflict of interest a particularly important issue for judges? How does this situation shine a light on the separation of powers?

Bill of Rights Institute staff members are keeping the victims of the shooting, their families and all those suffering in the wake of this terrible event in our thoughts and prayers.