Property Rights vs. The Communal Good – Two Early Supreme Court Cases

May 12, 2020June 4, 2023 ~ Blue Cereal

The dilemma of any effort to compile “must know” Supreme Court cases is deciding where to draw the line. If you narrow it to a list of 12, there are at least 3 or 4 others that really MUST be added in the name of consistency. If you expand the list to, say… 24, you’re sacrificing another half-dozen that should simply NOT be neglected if you’re to retain ANY credibility.

Then there’s the actual summarizing. How much background really matters to the casual reader or panicked student? Is it enough to say that the Dred Scott decision declared that slaves weren’t people and Congress couldn’t limit slavery in the territories, or is it necessary to explain how this helped lead to the Civil War? What about the individuals involved and their stories? Even notoriously bad Supreme Court decisions are built around real situations, the details of which matter very much to the outcome. Besides, decisions (good or bad) mean nothing out of their historical context, do they?

It’s in that spirit I’ve decided to add a dozen or so cases to my ongoing effort to publish my own compilation of accessible, enlightening, brilliantly witty summaries of the “Landmark Supreme Court Cases” every American should know and every worried student can reference before the AP Exam or Semester Test. Rather than duplicate my approach with the current fifteen or so, these additions will be one-page summaries hitting the highlights of each case along with a brief excerpt from the Court’s majority opinion.

In my draft, I’m calling these “Worth A Look.” Because they’re, well… you know.

The two cases below occurred forty years apart and involved very different circumstances. In Charles River Bridge v. Warren Bridge (1837), the issue was whether or not Massachusetts owed it to a company with whom they’d done business to stick to the implied terms of their original contract. In Munn v. Illinois (1877), the question was whether or not the state could regulate private business in the name of public good. Both, however, dealt with the question of property rights and individual autonomy vs. the social contract – what was good for society as a whole. It’s that aspect I find most interesting, and most relevant all these years later.

**Worth A Look: Charles River Bridge v. Warren Bridge (1837)**

{W}hat is a monopoly, but a bad name, given to anything for a bad purpose? Such, certainly, has been the use of the word in its application to this case… A monopoly, then, is an exclusive privilege conferred on one, or a company, to trade or traffick in some particular article; such as buying and selling sugar or coffee, or cotton, in derogation of a common right. Every man has a natural right to buy and sell these articles; but when this right, which is common to all, is conferred on one, it is a monopoly, and as such, is justly odious. It is, then, something carved out of the common possession and enjoyment of all, and equally belonging to all, and given exclusively to one.
But the grant of a franchise is not a monopoly, for it is not part or parcel of a common right. No man has a right to build a bridge over a navigable river, or set up a ferry, without the authority of the state. All these franchises, whether public property or public rights, are the peculiar property of the state… and when they are granted to individuals or corporations, they are in no sense monopolies; because they are not in derogation of common right.
{from the Court’s Majority Opinion, by Chief Justice Roger B. Taney}

In 1785, the Massachusetts legislature worked out a deal with the Charles River Bridge Company (CRBC). In exchange for building and maintaining a bridge across the Charles River (connecting Boston and Cambridge), the company would have the right to collect tolls from those traveling over the bridge. The bridge was built and the company because quite wealthy from the tolls, which they kept rather steep even long after their initial costs were recouped. Over time, as Massachusetts continued to grow, people grew rather annoyed with the high tolls and demanded their elected representatives do something about it.

In 1828, the state legislature granted a new charter to the Warren River Bridge Company (WRBC), who built a second bridge not all that far from the first. This bridge, however, was to be toll-free once initial costs were recovered and a reasonable profit earned for the company. Not surprisingly, people liked this bridge much better. The Charles River Bridge Company sued in state court, claiming the new charter violated their property rights and represented a broken contract by the State of Massachusetts. Not only was this very naughty, they argued, but it violated Article I, Section 10 of the U.S. Constitution, which says (among other things) that “no state shall… pass any… law impairing the obligation of contracts…”

The case worked its way to the Supreme Court, which found that Massachusetts had neither broken their original contract with CRBC nor violated the “contract clause” of the Constitution. While the original contract with CRBC may have been reasonably understood to suggest monopoly rights for the life of the company or the bridge, the contract never actually stated that, so… oops.

The Charles River decision was important for several reasons beyond “read the small print before you sign.” It was an early demonstration of Chief Justice Roger B. Taney’s desire to pull back from the passionate nationalism of his predecessor, John Marshall. Taney was a big believer in States’ Rights, which would shape a generation of Supreme Court decisions in various ways – most infamously in the Dred Scott decision authored by Taney in 1857.

Charles River also reflected a concern with the “general welfare” of both society and the economy. The perceived exploitation by CRBC as they refused to back down on their rates or otherwise compromise for the good of the collective meant they were standing in the way of prosperity. What if steamboat operators who’d received exclusive rights up and down the river took a similar approach and decided that competition from railroads violated the spirit of that agreement? Should perceived property rights be allowed to hold back society’s progress indefinitely?

States can limit or modify what’s acceptable even in contracts between private citizens or organizations as long as such interference is tempered with reason and done in the name of appropriate state “police powers.” They also have great latitude to serve the “general welfare” of their citizens. That didn’t start with Charles River, but the case certainly helped clarify and strengthen those roles going forward.

**Worth A Look: Munn v. Illinois (1877)**

When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. “A body politic,” as aptly defined in the preamble of the Constitution of Massachusetts, “is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”
This does not confer power upon the whole people to control rights which are purely and exclusively private… but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government…
Under these powers, the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise, it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and, in so doing, to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property…
{from the Court’s Majority Opinion, by Chief Justice Morrison R Waite}

Responding to pressure from the National Grange (a farmers’ cooperative often remembered simply as the “Grangers”), the state of Illinois passed legislation capping the amounts grain elevators and storage warehouses could charge. A Chicago warehouse run by Munn & Scott was caught overcharging and found guilty after a brief trial. They appealed, claiming that the state-imposed limits on their income was a violation of the Fourteenth Amendment which says, in part, that no State may “deprive any person of life, liberty, or property, without due process of law.”

The Supreme Court rejected this line of reasoning and validated the “Granger Laws” as entirely appropriate and constitutional. Since before the founding of the United States, Chief Justice Waite explained, the foundational purpose of enlightened government is to support and regulate the social contract – each citizen giving up a small bit of autonomy for the larger good. In the end, this benefits everyone, including those making these minor sacrifices.

The Court also noted that while the Commerce Clause (in Article I, Section 8 of the U.S. Constitution) gives the federal legislature final power over interstate commerce, that doesn’t prevent states from reasonable regulation and oversight of the portion of that commerce taking place within their borders. The extent to which states could exercise this regulation and oversight was severely rolled back a decade later in Wabash, St. Louis & Pacific Railway Company v. Illinois (1886), after which Congress created the Interstate Commerce Commission to regulate railroad and storage rates, and eventually a wide range of public utilities.

Munn established the validity of legislation regulating any industry or service determined to be essential to public interests. In the short term that primarily meant those related to farming and distribution of crops – meaning even the all-mighty railroads were impacted by the Court’s decision. While which products or services are considered essential to the public good have naturally evolved over the years, but the underlying principle has held ever since.

A Moment of Silence: Wallace v. Jaffree (1985)

May 4, 2020June 4, 2023 ~ Blue Cereal

Is It Constitutional Now? How About Now? Or Now?

Three Big Things:

1. After it became clear that state-sponsored prayer was no longer a realistic option in public education, states began experimenting with the idea of a “moment of silence” during which students could pray (although no one had ever suggested that they couldn’t).

2. Alabama, in particular, kept nudging the idea forward – first it was a “moment of silence,” then a moment in which students might choose to pray, then teachers leading students in “voluntary” prayer, etc.

3. Along the way, one federal judge acknowledged that this was akin to “establishing a state religion,” but determined that was perfectly fine because states could do that. The Supreme Court agreed with the first part of that decision. They did not go along with the second.

Background

In Stone v. Graham (1980), the Court shot down the required posting of the Ten Commandments in public school classrooms. In case anyone had wondered, the Constitution still frowned on pushing religion via the public education system.

But then Reagan took office, and a conservative revolution of sorts swept the nation. At the risk of overdramatizing, the Reagan Era wasn’t just a presidential administration. As President, he championed a sort of American Exceptionalism marinated in Book-of-Revelation Sauce. The passion and righteous zeal of his adherents at times pre-empted reason, law, or precedent. It was a social movement as much as a political shift, comparable to Kennedy’s “Camelot” in impact but quite distinct in its flavor. Evangelicals were emboldened while the media and courts were demonized. Liberals weren’t just political opponents, but America’s enemies – both deceptive and deceived.

It was in this climate that Alabama decided that American Christianity could simply no longer survive without their assistance. It was time to make a statement and test the limits of this silly “wall of separation.” If their righteous fury just happened to appeal to a widely conservative voting base, well… thy will be done.

A Moment Of (Insert Options Here)

In 1978, Alabama passed legislation calling for a “moment of silence” at the start of each school day to allow “for meditation.” They weren’t alone. Many states had instituted some variety of the “moment of silence” after Engel v. Vitale (1962) and Abington v. Schempp (1963) had made it quite clear that overt theological indoctrination or proselytization by representatives of the State were a big “no-no” during the school day.

The “moment of silence” was thus a symbolic move as much as anything. Few non-politicians would argue that taking 5 – 7 seconds (or even the full minute required by some versions) to sit in awkward silence has a measurable impact on students’ mindsets or willingness to learn. Students, of course, had never lost the right to pray whenever and wherever they chose, so long as they did not willfully disrupt classes or become overly aggressive towards the uncooperative. (In other words, they were expected to be better behaved than their political leaders.)

What the “moment of silence” allowed legislatures to do, however, was to step right up to the line of church-state separation and dare the courts to do something about it. Legislators sponsoring these bills often said as much from the floor, dropping subtle little hints like, “We’re doing this because we want to get prayer back into public schools and we dare the courts to do anything about it.”

This reality alone would have been enough to kill any chance of proposed legislation surviving the “Lemon Test,” the first stage of which was that legislation must have a valid secular purpose. It’s possible none of them knew this, but it seems more likely they simply had ulterior motives for pushing the issue anyway. In Alabama, at least, that’s exactly what they did.

After a few years of a “moment of silence” went by without recorded difficulty, Alabama took things a step further. In 1981, the state legislature updated the statute so that the moment of silence would be presented each day as a time “for mediation and voluntary prayer.” Their momentum building, they upped their game yet again in 1982 and instructed teachers to lead “willing students” in a state-written prayer.
That part, not surprisingly, finally triggered the anticipated backlash.

Pray Or Be Prey

Ishmael Jaffree had three kids in Mobile County Public Schools – two in second grade and one in kindergarten. He protested the state-designed prayer, starting at the building level, but to no avail. Although he had plenty of established case law on his side, he didn’t initially focus on the abstract constitutional issues in play. Jaffree’s primary concern was that his kindergartener was being targeted by other kids for not participating in the prayers. His five-year-old was essentially bullied for not falling into line with state-mandated religious activities, and teachers refused to do much to stop it.

He wasn’t alone. In a similar case going on in West Virginia at the same time, a Jewish student was challenged by peers for quietly reading during the “moment of silence.” He needed to pray, they told him, or he’d “go to hell with the rest of the Jews.”

Yes, the prayer was technically voluntary – but as anyone in education knows, “voluntary” can mean many different things. As had been demonstrated a generation before when young Jehovah’s Witnesses quietly refused to pledge their allegiance to the American flag, it matters whether such choices are defended by those in power. There will always be those who hurt others verbally, physically, or otherwise for not sharing their nationalism or their faith, but there will be far more hurting going on when those in the minority are “otherized” by the State (at any level) because of their beliefs.

Establishing A State Religion?

In an interesting wrinkle, the federal district judge who heard this case as it worked its way through the system chose to ignore precedent and acknowledge that while, yes, Alabama was in effect “establishing” a state religion, they were perfectly within their rights to do so. While the federal government was constrained by the First Amendment, the states were not. “Alabama has the power to establish a State religion if it chooses to do so,” he explained. He even had a few pages of convoluted historical analysis to back this up.

Needless to say, that one caught everyone on both sides pretty much off guard. The decision was quickly reversed by the 11th Circuit Court of Appeals, and the case – not surprisingly – eventually ended up in the Supreme Court. It had already been determined in the lower courts that the first version of the law – the “moment of silence” from 1978 – was constitutionally acceptable. Since no one was disputing that, the Supreme Court acknowledged then ignored it. The Court of Appeals had already declared both the second and third versions of the law unconstitutional based on having no legitimate secular purpose. The Supreme Court accepted without debate that determination regarding version three – where teaches led willing students in a “voluntary” prayer.

What remained to be determined, however, was that middle version – the one about “voluntary meditation or prayer.” Was this establishment, or would shutting it down be a violation of free exercise?

The Decision

The Court determined 6 – 3 that Alabama, in their 1981 version of the “moment of silence” law, had violated the Establishment Clause of the First Amendment as applied to the states via the Fourteenth. They cited testimony from the lawmaker sponsoring the bill, who was – to his credit – upfront about its purpose. Because the changes implemented in 1981 clearly had no valid secular purpose, as required by the “Lemon Test,” the law was unconstitutional.

Justice Sandra Day O’Connor wrote an interesting concurring opinion, supported (but not officially joined) by Justice Lewis F. Powell in his own. O’Connor began by reminding everyone of a fact often lost in the political rhetoric: nothing decided by the Court in any way limited the rights of students to pray individually or collectively at school or anywhere else, so long as they were not overly disruptive to the school day. She used the rest of her concurrence to address two facets of Wallace she believed required a little jurisprudential elaboration. In her own words:

I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity. I also write to explain why neither history nor the Free Exercise Clause of the First Amendment validates the Alabama law struck down by the Court today.

Her historical analysis is interesting enough. Along the way she defends the continued use of the “Lemon Test” while suggesting perhaps it would benefit from some polishing or updating to help maintain its usefulness.
The more relevant part for states and districts post-Wallace, however, is her discussion of similar “moment of silence” laws which may share the goals and even the verbiage of Alabama’s but not its background. In other words, how would this statute – or something very similar – fare if passed without being preceded by the announcement it was intended to be evangelical and almost immediately followed by an “oh just pray with them already!” update? The short version was that they’d probably be fine if they simply avoided being quite so transparent about their religious goals.

While O’Connor expressed confidence the Court could tell the difference between sincere efforts at secular legislation and thinly veiled movements towards state-sponsorship of religion, it’s not much of a leap to infer that the real lesson was that politicians should be a bit less forthcoming about their motivations for this sort of legislation. In short, Alabama had simply made it too obvious what they were trying to do.

Dissents

Each of the three dissenting justices wrote a separate opinion. Justice White’s is brief and not particularly enlightening. The other two, however, are both scathing and poignant. As the balance of power in the nation’s highest court continues to shift, it’s quite possible they’ll find new life in 21st century jurisprudence. It’s not inconceivable they could soon represent the majority view rather than the outraged minority.

Chief Justice Warren Burger primarily disagreed with the idea that the option of voluntarily praying during a moment of silence qualified as government coercion towards religion. He cited other examples of times religion appeared in government functions without great trauma. Burger was particularly unimpressed by the Court’s citations of the law’s sponsor as proof it lacked a valid secular purpose.

Burger pointed out that the comments came after the bill’s passage and were accompanied by an assertion by the same legislator that he simply wanted to make the point that students had every right to pray in school if they so chose. Most significantly, in Burger’s mind, there was no evidence that the comments of one legislator after-the-fact in any way reflected the reasoning of the majority who’d voted to support the legislation in the first place.

Finally, for good measure, he mocks the Court’s use of the “Lemon Test,” calling it a “naive preoccupation with an easy, bright-line approach for addressing constitutional issues.” In short, Burger thinks the majority’s reasoning is absurd and their reactions completely out of proportion to circumstances, and he’s not shy about explaining precisely why.

Justice William Rehnquist (who will eventually become Chief Justice) takes an entirely different approach. His dissent undercuts the validity of the “wall of separation” imagery as an accurate representation of the goal of the First Amendment’s religion clauses to begin with. Most of his dissent is taken up in extended historical analysis of the origins of the Amendment and how very much NOT THERE Jefferson was the entire time. He also cites multiple examples from early American history in which the same men who wrote and ratified the First Amendment clearly didn’t seem to think it prohibited the federal government from proclaiming days of prayer or thanksgiving or otherwise acknowledging the role of the Almighty in their affairs.

It’s a pretty impressive historical case.

In short, Rehnquist prefers Madison’s approach to the “establishment” and “free exercise” clauses – protections from official government religions mandating one flavor of Protestantism over another and severely restricting private religious behavior. The idea that any sort of “wall” – metaphorical or otherwise – was ever intended to be erected between church and state was absurd, according to Rehnquist.

Aftermath

Many other states had similar laws on the books, and others have added them since, without serious constitutional challenge. A “moment of silence” is fine in public schools, as long as there’s no overtly expressed pressure to pray. There’s little to indicate that the 5 – 7 seconds of awkward silence typically beginning morning announcements actually accomplish anything in terms of mentally or emotionally preparing students for the school day, but effectiveness is not part of the “Lemon Test.” All it takes is a plausible assertion of valid secular goals.

Calm, focused students fit that requirement.

Causes, Triggers, Events, and Results

May 1, 2020June 15, 2023 ~ Blue Cereal

This is something I lifted from Rhonda Johnson who used to teach with me in Tulsa. Rhonda is one of the most entertaining and intellectually challenging people I’ve ever known, and I appreciate her agreeing to let me sponge off of her in this way.

Then again, why should this be any different than anything else I’ve borrowed from her over the years?

The “Cause & Effect” Conundrum

It’s not unusual to see history presented in terms of “cause and effect.” It’s a rational, if simplified, method of trying to pull events together and understand the connections and interactions that make it all meaningful. Without cause and effect, history could only be taught as a series of unconnected events – this happened, then that happened, then another thing happened, and probably some other things, until today… so make of this what you will.

While there are those who capitalize off of accusations that teachers are somehow manipulating and abusing students by not presenting history in a completely random, meaningless, way, the reality is that none of us can cover in exacting detail everything that’s ever happened anywhere in the world over the past 10,000 years or more in 180-or-so class periods. Some degree of subjective triage is essential, and “cause/effect” is a useful part of that.

Causes, Triggers, Events, and Results (CTER)

The anchors of the whole “CTER” approach are whatever major historical events you choose to prioritize in class. Surely we can all agree that some stuff that’s happened over time is more important than other stuff (at least for educational purposes). While no one wants to shortchange Coleman Sellers’ patenting of the Kinemascope in 1861 (allowing the illusion of motion when exhibiting stereoscopic pictures and eventually leading to what we today call “movies”), most biased, brainwashing history teachers set that aside in favor of discussing the secession of the South and the onset of the American Civil War.

The Civil War, then, was an “Event.”

Like most Events, the war had multiple Causes. Causes are generally ongoing – they can be in place for days, weeks, months, or years without the event actually happening. Debates over slavery, sectionalism, tariff disputes, cultural differences, vocal antagonists on both sides – these were all Causes of the Civil War.

Events also have Results. Like Causes, Results can be short-term or long-term, and sometimes interact in unexpected ways. Reconstruction, the end of slavery, three new constitutional amendments, nearly a million dead Americans, a dramatic increase in the power of the federal government – these were all Results.

Just to keep things interesting, the Results of one Event easily become Causes for the next. (History’s wacky that way.)

The new wrinkle (for me) was Rhonda’s concept of the “Trigger.” While Causes may occur for an extended time without an Event actually beginning, Triggers convert all of that potential into action. They strike the match that ignites the fuel and timber. Without the Trigger, Causes might continue or eventually fade, but the Event wouldn’t occur – at least not when it did and how it did.

I’d argue that the firing on Ft. Sumter was the Trigger for the Civil War, because until people are shooting at each other, all we have is conflict and tension. You could reasonably make a case that the election of Abraham Lincoln in 1860 was the Trigger, or the secession of the southern states – and I could live with that.

So, yeah – Triggers can prove a bit subjective and some stuff happens without them, but I’ve found it to be quite useful in helping students organize the general flow of events in any history class.

CTER: An Easy Example

The American colonies had been restless for decades regarding British rule. Enlightenment ideals shaped the thinking of their most accomplished citizens. They enjoyed the benefits of “salutary neglect.” It was difficult for an island so far away to effectively rule a continent. Then came more specific antagonisms – the Proclamation of 1763, the Sugar Act, the Stamp Act, the Boston Massacre, etc. Individuals and small groups begin pushing back more forcefully – the Boston Tea Party, Thomas Paine’s “Common Sense,” and so on. These were all Causes of the American Revolution.

But every one of them occurred without a revolution starting – at least not in the violent “you’re not my mommy anymore!” sense. Some had been going on for years and may have continued for many more.

Then came Lexington & Concord – the “Shot Heard ‘Round the World.” At this point, those causes were suddenly activated, lit on fire, and exploded into the Event. The American Revolution began and lasted nearly a decade. (It was a pretty big deal, so it’s an “Event.”)

Many things after the Revolutionary War weren’t the same as they had been before. The colonies were now independent and resented Great Britain for generations afterwards. They called themselves the United States of America and wrote a constitution called the “Articles of Confederation.” George Washington was forever after known as the “Father of Our Country.” 40,000+ men who’d been alive before the war were dead. Because war is expensive, there was also debt. Debt meant new taxes, and since not everyone felt equally represented in the new government, there were some who objected to this new taxation without—

Well, you get the idea. Some of the results of the American Revolutionary War became Causes of the next major event – replacing the Articles of Confederation with the U.S. Constitution to which was quickly added a “Bill of Rights.” The process continues through Manifest Destiny, the Civil War, the Gilded Age, a few world wars, the 1960s, grunge, and Donald Trump somehow getting elected President. One way or the other, it all connects and more-or-less flows together.

Using CTER In Class

There are two ways I like to use CTER in class. The first is as an introduction or overview for major events or eras. Students are given a CTER graphic organizer for one or two events from the upcoming unit. As we move through the unit, they use their CTER organizers to keep new information coherently tied together. (If you choose, however, you could just as easily use them as unit summaries or quizzes.) CTERs don’t require deep analysis, but they do require a “big picture” understanding of main events and why stuff happened the way it did – and that ain’t nothin’.

The second way I love to use CTER is as end-of-semester review. Students work in small groups and each group is given a stack of index cards. On each card is written a Cause, Trigger, Event, or Result. (I never label them as such, but Causes are all one color, Triggers are all another color, etc. Whether or not I share this system with students depends on the group.) Groups are assigned to place the Events in chronological order and to identify the Causes, Trigger, and Results of each event.

The activity requires factual recall, but also a degree of ongoing analysis and understanding of how things connect. There are few things which promote retention and understanding more than impromptu debates over whether a card makes more sense as a Result of this Event or a Cause of that one, or whether such-and-such was truly the Trigger or just another Cause. Sometimes students organize things differently than I would have; if they can justify it, that’s fine.

The specifics of the activity vary with the needs of the moment. Sometimes I end up dropping hints to keep groups from getting overly frustrated. Other times, I’ll allow students to use their textbooks or technology to look stuff up as they go. Most of you are educators – you know how this stuff works. It’s also easy to simplify the activity for some classes or make it a bit more challenging for others.

We wrap up by walking around and seeing what other groups did, then discussing. You can even hand them cards and assign a new Event or two to create their own for later review. Once you’ve established the concept, it’s infinitely flexible.

The attachments below represent all sorts of variations of this particular activity. Most are primarily American History, but some are from World. You can use them “as is” or modify them to fit your needs. If you really go to town with the idea, you can do right by the rest of us by sharing whatever you create with me and I’ll add it here.

Intro to CTER (Presentation) – Google Slides

Sample CTER Events w/ Causes, Triggers, and Results (for Teachers) – Google Document

CTER Individual Practice GO – PDF

CTER Two Events Generic – PDF

CTER Protestant Reformation – Columbus 1492 – PDF

CTER Sample – American Revolution (Completed) – PDF

CTER Fr-In War – Declaring Independence (w Key) – PDF

CTER Am Rev (basic) – PDF

CTER Am Rev – Fr Rev – PDF

CTER Key – 4 Early 19th Century Events – Google Slides

CTER Civil War – Reconstruction (w Other Stuff) – PDF

CTER World War I – PDF

CTER WWI Assignment (w/ Other Stuff) – Google Slides

CTER Bolshevik Revolution – PDF

CTER Great Depression (basic) – PDF

CTER Recap of Late 19th Century / CTER Assignment: Great Depression – Google Slides

CTER Great Depression – WWII – PDF

Those Circle Things

April 25, 2020June 16, 2023 ~ Blue Cereal ~ 1 Comment

Sometimes it’s the simplest ideas that end up being the most useful.

Several years ago I co-presented a workshop with an amazing woman named Ayn Grubb. While I pride myself on getting along with other consultants or trainers or whatever they happen to be called that week, I’m sure it won’t surprise you to learn that there are really only a handful I genuinely admire and for whom I maintain an irrepressible teacher-crush. Ayn is one of that handful. Her style is quite different than mine, but she works a room of educators like Yo-Yo Ma works a bow or a hibachi chef works a seafood combo for eight.

At one point, she went up to the white board at the front of the room and drew the simplest little thing – a circle divided into four quadrants. In each quadrant, she wrote a single word. (I don’t even remember what the topic was; I was too busy having a life-changing experience.) She asked us which one didn’t belong and why, then gave us time to discuss.

I immediately stole the idea and never looked back. I have no idea if she lifted it from somewhere else or came up with it herself. I’m sure it would never occur to her to take credit either way. And, to be fair, the underlying idea does sorta go way back…

I started using variations of what I’ve come to simply think of as “Those Circle Things” in workshops, in class, and sometimes just to annoy friends at parties. They make great bell-ringers, discussion-starters, and I’ve even used them as informal assessments.

They’re also pretty easy to use with Google Slides or Pear Deck or whatever technological platform makes you tingle, and work equally well for synchronous or asynchronous discussion. They’re especially useful when you need ideas for “e-learning” on snow days, or when something else you had planned completely falls apart at the last minute.

Whatever the context, I always begin with something non-threatening and not content-based. Since I’m a sucker for superheroes, here’s one I used for many years:

What do these four things have in common? Which one doesn’t fit, and why?

The first few times I use something like this, whether with students or teachers, we’re establishing norms or procedures or classroom dynamics – whatever you call it in your world. See, we don’t actually CARE about these four characters, at least academically. What we care about is the process and the approach.

At the risk of preaching to the pedagogical choir, I’ll be annoyingly specific about what I mean.

We’re learning a new skill with non-threatening content (and usually learn new content with familiar skills).
The first few slides shouldn’t require much in the way of specialized content knowledge in order to participate. Anyone can come up with a few things even if they’re not particularly deep. This should be encouraged.
As it becomes clear that some of us know more about the topic than others, this should be celebrated. It demonstrates that we all have different backgrounds and bring different insights to the discussion. If I know more about Luke Cage than you do, that’s not because I’m “smart” or you’re “stupid.” One’s depth of knowledge regarding Luke Cage is not actually how we evaluate one’s usefulness or potential as a human being these days (although we’ve all endured worse metrics, I’m sure).
It’s better to be “wrong” than to be afraid. If someone suggests that three of the characters have superpowers and one (Agent Carter) doesn’t, others might disagree and argue that Green Arrow is really just a guy with money and toys who exercises. As a result of this discussion, however, we may end up exploring how we’re using terms like “super” or “hero” or “abilities” in useful, enlightening ways. If the person who was “wrong” about Green Arrow hadn’t floated his or her idea to begin with, we might never have gotten there, and that would be sad.
As with many classroom discussions, it’s important to find ways to be inclusive. The most basic is to encourage students or participants to ponder each slide in small groups for a few minutes before we talk about them as a whole. This allows individuals to bounce ideas off of one another, resolve minor errors, and learn from one another before “speaking up” and taking what often feels like a greater risk before the entire group.
When we’re learning a new skill or procedure, the process is more important than the content. We’re modeling academic courtesy and discussion, learning to take risks with information about which we may be uncertain, and practicing the sort of listening to one another and civil disagreement which is often essential for real learning to occur.

Let’s try another one. Keep in mind we want to discuss ways they’re all the same as well as identify which one doesn’t fit, and why: (And yes, I should update this example before using these again.)

You probably figured out pretty quickly that there’s usually more than one solution to which one doesn’t fit and why. These aren’t multiple choice questions with one objectively “correct” answer. It’s the process of examining each item in comparison with the others that forces us to review what we already know, reinforces the information we use to argue whatever point we choose to make as a result, stretches our understanding of each item a bit, and lays the groundwork for actual analysis and argument should we eventually go there.

It’s a critical thinking thing. It just doesn’t look like it right away because… Twilight.

Once the idea is established, these can be used in endless iterations depending on your needs and goals and the depth of knowledge expected of your students. If you’re using them to introduce a topic, their existing content knowledge may be less important. If you’re using them as an informal assessment, on the other hand…

I’ll leave you with a few of my favorites in recent years. Some are a bit more complex than others based on the classes I had at the time. You’ll notice that sometimes the visuals are related to the text and sometimes they’re not – an inconsistency I should eventually address. I can tell you from experience you’ll want to clarify up front whether you expect students to consider the visuals or just the words in the circle.

Those Circle Things (Intro Ideas) – Google Slides

Those Circle Things (U.S. History) – Google Slides

Those Circle Things (World History) – Google Slides

Hammurabi, King of Babylon (from “Have To” History)

April 22, 2020June 4, 2023 ~ Blue Cereal

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About Hammurabi, King of Babylon…

Three Big Things:

1. Responsible for the best-known and arguably most influential set of legal codes in the ancient world. Key issue: they were written down and publicly posted.

2. Brought Mesopotamia together as a more-or-less united empire (this time with Babylon as the seat of central authority) for the first time since Sargon six centuries prior.

3. Seriously, the written law thing. It’s just huge. “An eye for an eye”? That was his. Innocent until proven guilty? Also his, although not phrased quite so smoothly. A chance for the accused to defend themselves? Punishment fitting the crime? Throwing people in rivers to see if they float? That’s Hammurabi, baby.

Background

Mesopotamia had been united under Sargon of Akkad around the 24th Century B.C. It held together for a century or so after his death, then fell back into a collection of various city-states, no doubt vying for power and influence, sometimes uniting against nomadic outsiders or other external threats and sometimes uniting with those outsiders against one another.

Hammurabi was the sixth king of Babylon, having assumed the throne from his unfortunately-named father, Sin-Muballit. They seem to have been Amorites, originally a tribe from western Syria and one of the groups most often mentioned in the Old Testament as both scary and deserving of slaughter whenever possible. Then again, records from this time period are fragmentary and the language maddeningly inconsistent, so a term like “Amorite” may have been more of a title or categorization than a specific ethnic group or family name. Like much from this era, the issue is cloaked in contradictory evidence and academic debate.

It can seriously get heated, in the right crowd… which is oddly awesome and tragic at the same time.

Hammurabi began his reign around 1800 B.C. and for several years remained fairly conservative. He excelled at the complexities of running a complex nation via correspondence and financing and bureaucracy, and had a personal focus on detail not always associated with absolute power. Hammurabi and his peeps restored some temples, completed some public works projects, and otherwise followed in daddy’s footsteps – until Babylonian territory was invaded by Elam (outsiders we don’t actually care about right now). That seems to have unleashed Hammurabi’s aggressive side, for he not only effectively repelled the invaders, he expanded his own domain in the process.

And he kept expanding it for the remainder of his rule.

Hammurabi was apparently quite the realpolitikster, making and breaking treaties and side deals with rapid but cold-hearted brilliance, thousands of years before “Machiavellian” was even a word. His army won more than they lost, which helped, and they could be merciless. One of Hammurabi’s trademark moves was to dam up major rivers before they reached enemy territory, then either starve the entire region or drown them by releasing the waters as an unstoppable flood.

Dude.

The Code of Hammurabi

But what he’s really remembered for are those laws. Two hundred and eighty-two “if X, then Y” statements, spoken with the authority of the gods and claiming to promote the best interests of the little people.

Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak… {They called me to} enlighten the land, to further the well-being of mankind…
When Marduk sent me to rule over men, to give the protection of right to the land, I did right and righteousness… and brought about the well-being of the oppressed…

Nowhere was it claimed he was humble or self-effacing.

2. If anyone bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.
3. If anyone bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.
6. If anyone steal the property of a temple or of the court, he shall be put to death, and also the one who receives the stolen thing from him shall be put to death.
8. If anyone steal cattle or sheep, or an ass, or a pig or a goat, if it belong to a god or to the court, the thief shall pay thirtyfold therefor; if they belonged to a freed man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death.

There was a lot of putting wrong-doers to death. If there were uncertainty, you might be thrown into the river to determine whether or not you were guilty – a pithy reminder that this was still a civilization built around sacred water and the whims of whichever gods controlled its rise and fall.

21. If anyone break a hole into a house (to enter and steal), he shall be put to death before that hole and be buried.
22. If anyone is committing a robbery and is caught, then he shall be put to death.
23. If the robber is not caught, then shall he who was robbed claim under oath the amount of his loss; then shall the community… in whose domain it was compensate him for the goods stolen.
24. If persons are stolen, then shall the community… pay one mina of silver to their relatives.

Those last two are interesting – the community responsibility bit. It’s unclear whether this idea was drawn from existing customs, or if it were perhaps intended to build a sense of mutual accountability.

A tiring number deal with contracts or other types of fiscal or personal liability. Others set specific daily rates for different sorts of labor. There’s guidance for handling accusations of adultery or other marital difficulties.

Some punishments varied by social class – poor people faced greater consequences for the same behavior than the rich, and harming the wealthy carried a greater penalty than harming the commoners. Still, overall, the code suggests the accused have a right to defend themselves before the law and that guilt must be well-established before punitive action is considered.

It’s a bit harsh on filial shortcomings – especially if you were adopted:

191. If a man, who had adopted a son and reared him, founded a household, and had children, wish to put this adopted son out, then this son shall not simply go his way. His adoptive father shall give him of his wealth one-third of a child’s portion, and then he may go. He shall not give him of the field, garden, and house.
192. If a son of a paramour or a prostitute say to his adoptive father or mother: “You are not my father, or my mother,” his tongue shall be cut off.
193. If the son of a paramour or a prostitute desire his father’s house, and desert his adoptive father and adoptive mother, and goes to his father’s house, then shall his eye be put out…
195. If a son strike his father, his hands shall be hewn off.

An Eye For An Eye

The section for which Hammurabi’s Law is most remembered, of course, goes something like this:

196. If a man put out the eye of another man, his eye shall be put out.
197. If he break another man’s bone, his bone shall be broken.
198. If he put out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.
…
200. If a man knock out the teeth of his equal, his teeth shall be knocked out.
201. If he knock out the teeth of a freed man, he shall pay one-third of a gold mina.
202. If any one strike the body of a man higher in rank than he, he shall receive sixty blows with an ox-whip in public.

The “eye for an eye” system is known in legal circles as lex talionis – “retributive justice.” This and many of the other approaches taken by Hammurabi were later echoed in Old Testament law (see Exodus 21 in particular).

Periodic cultural melodrama over this chronology stems from a popular, but false, dichotomy between inspiration and incorporation; there’s nothing particularly suspicious about legal codes sharing common elements or social norms evolving from existing customs. Such reasoning would defrock the most sanctified sermon or inspirational song upon discovering the use of standard rhetorical devices or popular chord changes.

History rarely disproves anything meaningful about faith; faith rarely benefits by twisting history (or science, or math, or human nature) into something it’s not. It is supposedly the truth, after all, which sets one free.

Summary

Hammurabi’s laws were written at a time of expanding Babylonian empire. His kingdom was absorbing a variety of ethnic and tribal groups, speaking different languages, worshipping different gods, and rooted in a disparate tangle of customs and legal traditions. Many considered personal vengeance or ongoing “blood feuds” (think Hatfields and McCoys, or Swift and Perry) to be not only acceptable but honorably essential. Without some clear, firm, unifying set of expectations, as well as a clear message that the state (with a little help from the gods) would address any substantive issues itself – and that attempting to handle things on your own would be dealt with severely – Babylon might well have caved in on itself before outsiders even had a chance to undermine or overthrow it.

Maybe not every nation would flourish under such detailed and unbending rules, but it was most likely exactly what Hammurabi’s Babylon needed for peace and prosperity.

Worth A Look: Charles River Bridge v. Warren Bridge (1837)

Worth A Look: Munn v. Illinois (1877)