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The Fairfax County Times just ran a featured piece in their educational section on FantasySCOTUS and the Harlan Institute. Here is a taste:

With autumn comes fantasy leagues, all night “draft picks” and clinical-like research on key players’ stats. The competitive- minded place bets on everything — sports teams, races and even election results.

Why not place odds on U.S. Supreme Court verdicts?

The article also focuses on the Harlan Institute’s creation of FantasySCOTUS.org, a Fantasy Supreme Court league for High School Students.

The quick rise to success led Blackman and fellow players to create a game-program for high school students, with the hope it will raise awareness for constitutional law in classrooms across the nation.

The Harlan Institute has created lesson plans on five cases before the U.S. Supreme Court, including Snyder v. Phelps, which tackles the debate between free verses hate speech brought on by protesters outside of a military service member’s funeral, and Schwarzenegger v. Entertainment Merchants Association, which will decide whether restricting the sale of violent video games is a free speech violation.

Teachers have really latched onto FantasySCOTUS.

Fellow Mason law grad Mattias Caro, 30 of Great Falls, who was a history teacher, serves on the Harlan Institutes Teacher Advisory Network for Fairfax County.

“Right now, where we have so much demand with Standards of Learning … we’re giving them something set. They don’t have to do lesson planning. They can just pick up the ball running,” Caro said. “This is trying to get the kids really into learning about the Supreme Court. When you teach the Supreme Court, it’s really in a very limited way [focusing on past cases]. They may learn about Dred Scott … or even Roe v. Wade. It’s a very distant thing to them; but it shouldn’t be.

“We’re really trying to get them to see both sides of these issues. As a teacher that’s something you’re trying to build up to.”

Caro said he has been surprised by the feedback so far, especially the students’ enthusiasm for studying the Supreme Court this way. Fifty schools in the nation already have signed up to play. Of those, one is in Virginia, in the Virginia Beach area, Aft said.

For now, the Harlan Institute is aiming to expand its base among educators by visiting classrooms and promoting the program.

“This isn’t just for the students who are the future policy wonks,” Caro said.

FantasySCOTUS has been rolled out in classrooms across the country, and hundreds of students are already playing. Here are some video testimonials from Harlan Institute teachers. All of the teachers comment that FantasySCOTUS is a unique product in the market, and really engages their students. Sign up your class today at www.HarlanInstitute.org.

Professor Charles Fritz posts an interesting article, titled: Out from Under the Shadow of the Federal Constitution: An Overlooked American Constitutionalism. This article discusses the role of early state constitutions–after 1776 and before 1787–and how they should affect our understanding of the Federal Constitution. This mirrors a point I made more pointedly in original citizenship, though I focus on a specific portion of our Constitution–the status of the United States citizen. Here is the abstract:

Most scholars of constitutional law and history equate American constitutionalism with the Federal constitution. This spotlight on the Federal constitution rests on a series of modern assumptions that elevate the status of the Federal constitution over the rich history of state constitutions, and inevitably neglect the central constitutional tenet of the American Revolution – the sovereignty of the people. Viewing American constitutionalism from the perspective of the constitutional legacy of the Revolution suggests a modified paradigm in which state constitutions play a critical role in our understanding the full meaning of American constitutionalism.

The idea of a collective sovereign introduced a tension and implicit challenge to one of the most sacrosanct constitutional values that we take for granted today – the rule of law as written and enforced by elected officials. The acknowledgment of sovereignty linked to the authority of the people opened up the possibility that the collective sovereign might be expressed without such constraints. The claims for a broader popular authority – reflected in the slogan of vox populi, vox dei (the voice of the people is the voice of God) and its corollary commitment to the rule of raw majoritarianism would today be rejected out of hand as inconsistent with our notion of codified proceduralism as one of the cornerstones of the modern notion of the rule of law. Such a perspective was hardly so clear, unequivocal, and uncontested during the early years of our Republic. Initially, the powerful constitutional idea and vocabulary of a collective sovereign as often expressed in the Post-Revolutionary period could (and did) push and pull people in various ways and produced a far more complicated calculus than we are willing to entertain today. Nonetheless, the historical experience with written constitutions in America suggests that the rule of law, as written and administered by representatives of the people, was not so inevitable to all Americans of earlier generations, particularly among those willing to extend the logic of the sovereignty of the people to its fullest extent.

From the article:

Clearly, 1787 was neither the starting point, nor the end point, of American constitutionalism. It is only by recognizing and integrating the longer history of state constitution-making and revision that we can forge a comprehensive and more accurate paradigm of American constitutionalism. Doing so not only corrects the historical record; it may also help us arrive at a more reasoned conversation over what should be a continual debate over questions that involve the value of increased direct citizen participation in government—through the use of the tools of the initiative and referendum, liberalized processes of constitutional amendment, or proportional representation, just to name a few examples.

I’m sure you’ve seen famous historical events, like World War II, portrayed as if they occurred on facebook.

I was chatting with Corey, and we came up with an interesting project for the Harlan Institute. Recreate the Federalist v. Anti-Federalist Debate in this same format.

Brutus and Publius could engage in an all-out flame war, with lots of pwning and fails. Madison, Hamilton, and Jay could like *everything* Publius writes. Thomas Jefferson and John Adams could poke home, missing the United States.

Anyway, just a thought. But something I’ll consider for the future. Definitely a fun and engaging way to explore the debate surrounding the ratification of our Constitution.

I just submitted my draft of Original Citizenship to the Penn Law Review for my forthcoming piece in PENNumbra. I am very excited about this article. It is probably my favorite topic yet. I hope you enjoy it. Please let me know if you have any feedback. either through comments or through e-mail.

Here is the introduction:

The phrase “citizen of the United States” is used in our Constitution in three different locations to set the qualifications for Representatives,[1] Senators,[2] and the President.[3] If these sections—the oft-dubbed “bright-line” constitutional rules—are to have any meaning, the United States of America, and citizenship therein, must have predated our Constitution. This raises two seemingly obvious, yet largely unanswered questions. First, how did one constitutionally become a “citizen of the United States” prior to the ratification of the Constitution in 1789? Second, for purposes of citizenship, and the Constitution, when did the United States of America begin?

The answer to the second question seems simple. The likely starting points are finite: the Declaration of Independence was signed on July 4, 1776, the Articles of Confederation were ratified on 3/1/1781, the Treaty of Paris was signed on 9/3/1784, the delegates to the Constitutional Convention signed the Constitution on 9/17/1787, and the Constitution was ratified on 6/21/1788. The First Congress held its initial meeting on March 4, 1789 at Federal Hall in New York City. If a Senator needed to have “been nine Years a citizen of the United States” on March 4, 1789, the Senator would have needed to be a citizen of the United States on March 4, 1780. This date precedes all of the possible candidates—other than July 4, 1776. Assuming that members of the first Senate met the requisite citizenship qualifications,^[4] simple arithmetic suggests that the United States could only have started with the Declaration of Independence.

While Americans are fond of celebrating the birthday of the United States every year on July 4th, today this date, as well as the Declaration, has no constitutional significance.[5] Fireworks and barbeques aside, for legal purposes the practical starting date of the United States is 1789, when President Washington was inaugurated and the First Congress met. Our Courts do not take cognizance of the Declaration of Independence. Yet to a member of the First Congress or a Federal Judge in 1789, the United States of America was not an infant, but was an old, familiar friend, in which he had been a citizen for quite some time. The Constitution merely represented a new form of government for a preexisting Country. Article VII concludes that this Constitution was submitted to the states in the year “of the Independence of the United States of America the Twelfth.”[6] The Constitution included a direct textual, and historical link with the Declaration of Independence and 1776.

The answer to the first question—how did one constitutionally become a “citizen of the United States” prior to 1789—is to be found by studying these preceding years of Independence. While in many cases the record and views on citizenship conflict, inevitably a single theory emerges—our traditional view of citizenship cannot be correct. Scholars seemed to have entirely overlooked this issue, and likely assumed that the absence of any discussion of citizenship in the Constitution indicated that this topic was intentionally disregarded. Alexander Bickel wrote, “the concept of citizenship plays only the most minimal role in the American constitutional scheme.”^[7] Citizenship, although not addressed, was not ignored. We just were not looking in the right places to find the answer. Tragically, the promise of citizenship for all people was not realized until the ratification of the 14th amendment. Yet, by fully appreciating the status of the first thirteen years of our Republic, and the constitutional and legal issues our nascent government faced, the riddle of original citizenship, as well as the validity of the abolitionist’s reliance on the Declaration, is unraveled.

Part I traces the birth of the “United States of America” from our “unanimous Declaration,” to the “Confederation and perpetual Union,” to our “more perfect Union.” The continuity of the style reflected the permanence of the sovereignty of this country, despite changes in the form of governance. Throughout the early years of our Republic, a national community was formed—the United States of America—and in this national community resided “citizens of the United States.”

Part II discusses the legal and theoretical doctrines of citizenship as articulated by Lord Coke in Calvin’s Case and John Locke in his Second Treatise on Government. These theories provided the jurisprudential framework that influenced citizenship in the early years of America. Part III explorers how our early Republic and the states under the Continental Congress defined citizenship. Immigrants who arrived in the United States after the Declaration of Independence—the antenati—received citizenship in accordance with the naturalization policies of the states, as this role was reserved to the states under the Continental Congress. The citizenship of those who lived in the United States prior to the Declaration of Independence—the postnati—was determined under two primary doctrines, both based on a Lockean social compact theory. The first theory postulated that by virtue of residing in the United States at the moment of Independence and separation with Britain, a person became automatically became citizen—regardless of whether he was a Yankee or a dissenting loyalist. The second theory contended that citizenship and allegiances could not be imposed on anyone—to do so would be contrary to the spirit of the Declaration of Independence. Rather, following Independence a person could choose, or “elect” whether he wanted to become a citizen of the United States. Alternatively, he could exercise his right of expatriation within a reasonable period of time, and thereby decline citizenship. For the most part, all states adopted a naturalization policy that mirrored one of these strands.

Part IV analyzes how these doctrines were applied before the ratification of the Constitution, during the First Congress, and following the First Congress. First, in treason cases, in order to distinguish between a disloyal citizen and a foreign alien, the court needed to determine if the accused was a citizen of the United States. Second, because “[e]ach House shall be the Judge of the Elections, Returns, and Qualifications of its own Members,”[8] early records of contested elections in the House and Senate help to explicate the contours of the original understanding of America citizenship for House qualifications. Third, in cases that interpreted Jay’s Treaty, the courts needed to determine whether a claimant was a citizen at the time of the Revolution in order to determine whether certain barriers to recovery existed.

Despite the absence of any debates on this topic, the Constitution implicitly adopted these theories of citizenship, as applied by the states, in order to define citizenship of the United States. By doing so, the ratifying states recognized that American citizenship began not with the ratification of the Constitution on June 21, 1788, not with the signing of the Treaty of Paris on September 3, 1783, not with the ratification of the Articles of Confederation on March 1, 1781, but in Philadelphia on July 4, 1776 with the signing of the Declaration of Independence.

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[1] U.S. Const. art. I, § 2 (“No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”)(emphasis added).

[2] U.S. Const. art. I, § 3 (“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”)(emphasis added).

[3] U.S. Const. art. II, § 1 (“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”)(emphasis added).

[4] There was a prominent challenge to the qualifications of one member of the House in 1789. See infra XX; M. St. Clair Clarke & David A. Hall, Cases of Contested Elections in Congress 23 (1834) (discussing the case of David Ramsay v. William Smith of South Carolina).

[5] See e.g., Cotting v. Godard, 183 U.S. 79 (1901).

[6] U.S. Const. art. VII

[7] Alexander Bickel, The Morality of Consent 33-36 (1977).

[8] U.S. Const. art. I, § 5.