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Constitution Day Presentation by David McCullough from the Constitutional Sources Project

Today is Constitution Day, which urges educators to respond to the federal mandate to teach the Constitution in their classrooms. There are a number of websites, like iCivics and the National Constitution Center, that are offering videos and games to help teachers meet this mandate in a way that engages their students.

We recommend that you check out this video lecture by David McCullough of the Constitutional Sources Project, made available at the ConSource website. In this 30 minute lecture recorded at the National Archives in Washington DC, McCullough describes how our Founding Fathers joined together “and in the midst of crisis… arrived at the words we live by.”

On behalf of Harlan Institute, Happy Constitution Day!

Supreme Court to Decide Whether GPS Tracking Constitutes an “Unreasonable Search”

This fall, the Supreme Court will hear arguments in U.S. v. Jones, a case where modern technology meets the guarantee against “unreasonable search and seizure” in the 4th Amendment. Specifically, the case raises the question: Do police need a warrant to install a GPS tracking device on a suspect’s car and monitor his behavior?

While some courts have applied the protections of the 4th Amendment to cases involving e-mail and cell phone use, the Supreme Court has yet to consider the implications of the police using common and current technology like GPS tracking.  In fact, two of the most recent precedents for this case are Kyllo v. U.S. (which held that police cannot use a thermal imaging device to “search” a suspect’s house without a warrant) and U.S. v. Knotts(a 1983 case dealing with police use of beepers).

The D.C. Court of Appeals held in this case that police must obtain a warrant before attaching a GPS device to the suspects car and tracking his movement for weeks at a time.  Other district courts, however, have held that GPS tracking is no different than the permissible practice of a police “shadow surveillance,” which involves officers staking out and tailing a suspect. These judges reason that the GPS simply allows the officer to tail an individual more efficiently, and therefore, can be done without a warrant.

The New York Times is calling U.S. v. Jones “the most important Fourth Amendment case in a decade,” and certainly the Supreme Court’s holding may have widespread effects on the ability of law enforcement to use GPS and other modern technology for the surveillance of individuals.

Technology in the Classroom: Misguided Investment or Immeasurable Benefit?

As a new school year begins, an article in the New York Times considers a conundrum in the current push for the use of technology in the classroom. The article highlights Kyrene School District where, after major investments, the classes are “decked out with laptops, big interactive screens and software that drills students on every basic subject.” Despite the presence of cutting-edge technology, however, Kyrene has seen no improvement in their students’ math and reading scores. In fact, since the technological upgrade in 2005, the school’s scores have remained stagnant, while the statewide average has risen.

The article considers several possible explanations for stagnant scores in a tech-savvy school like Kyrene; many of which look to the way we assess educational progress in general. For example, while standardized tests reflect that the students at Kyrene have stagnated in past years, the tests do not show the subsequent improvement of students’ technological skills, which are arguably more important in the digital age. Proponents argues that “technology has inspired students and helped them grow, but that there is no good way to quantify those achievements.”

Further, the assessment of technology in the classroom underscores an important point: as the push for more technology increases, “computers are not intended to replace teachers.” To the districts that pour money into laptops and Smart Boards while cutting their budgets and laying off teachers, Bryan Goodwin, spokesman for Mid-continent Research for Education and Learning, points out: “Good teachers can make good use of computers, while bad teachers won’t, and they and their students could wind up becoming distracted by the technology.”

The ideal educational structure, it seems, is one where a teacher can use technological tools to engage with students, as a jumping off point for further discussion or independent analysis. This idea rings true when thinking of the classrooms that use FantasySCOTUS as a teaching tool. While Harlan Institute aims to provide resources that fit into history and civics curricula in the digital age, the important part happens in the classroom as students think critically about cases and respond with blog posts or as classes collaborate to predict the outcome of a case before casting their vote on the website. This year, we have also introduced the Podcast Badge, which allows students to record their responses to certain topics, and we hope some students will experiment with this medium and enhance their oral communication skills.

The National Constitution Center Features the Harlan Institute on Its Constitution Daily Blog

The National Constitution Center, whose extraordinary museum sits directly across from the birthplace of the Constitution in Philadelphia, recently noted the role that the Harlan Institute plays in bringing civics education to the modern classroom.  The NCC featured a blog post by Harlan Institute President and Co-Founder Josh Blackman in which Blackman discussed the success of FantasySCOTUS in teaching students about the Supreme Court, the Constitution and our legal system.  “What makes FantasySCOTUS.org so effective for pedagogical purposes,” Blackman wrote, “is that it is real.”

The NCC has clearly shown the need for a resurgence in civics education and the Harlan Institute is proud to share the NCC’s goal of bringing the Constitution to life in a fun and interactive medium with which students can relate.

Real Life FantasySCOTUS and Health Care Litigation

A recent opinion by the 11th Circuit Court of Appeals declared unconstitutional a portion of the 2010 Patient Protection and Affordable Care Act (the official tongue-twisting name of the 2010 health care bill often referred to by its supporters and detractors as “Obamacare”). Because the 11th Circuit’s opinion is in direct conflict with a recent opinion by the Sixth Circuit Court of Appeals, the issue is now in a prime position for Supreme Court review, likely late in the coming October 2011 term.

The current litigation over the PPACA has demonstrated that Supreme Court prognostication is not just an educational tool limited to the Harlan Institute and FanstasySCOTUS.org; it also has consequential real-life applications. In a search for the correct answer on the constitutionality of the PPACA, the health care legal battle has thus far resulted in several other contrasting opinions: for example, in just the past year, a judge in the U.S. District Court for the Eastern District of Virginia struck down the Act while a judge in Western District of Virginia upheld it. These contradictory results serve as a useful reminder for students of the truth behind Yogi Berra’s oft-quoted adage that “it ain’t over ‘till it’s over” – particularly when it comes to the Supreme Court.

For instance, Professor Orin Kerr of the George Washington University Law School gave a useful example of this uncertainty when he predicted in a recent blog post on SCOTUSBlog.com that the Supreme Court would uphold the Act by a vote of somewhere between 8-1 and 6-3. While it may be frustrating for students (and lawyers, for that matter) to be unable to pin down a precise vote, Professor Kerr’s two-vote range illustrates an important point that students participating in FantasySCOTUS would do well to heed as they participate: FantasySCOTUS – and real-life Supreme Court prediction – can be as much art as it is science. In a February story, NPR’s Nina Totenberg illustrated the historical difficulty of deciding how the Supreme Court will eventually rule based on the tea-leaves of lower courts’ opinions. Totenberg notes that, while such opinions might be useful as guides to whether certain arguments will carry any weight with the Supreme Court (a point particularly apt in PPACA litigation), the ultimate lesson may simply be that students playing FantasySCOTUS should, “in short, assume nothing, at least until the U.S. Supreme Court rules.”

Allie Myers and Charles Kruly wrote this post.

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