The ten middle-school kids sat in a circle on the green carpeted floor outside the lecture hall, glancing nervously at each other. It was the second day of the second week of camp, and they had already ascertained their place in the hierarchy — they were the kids who didn’t participate in class, or if they did, they were the kids who never said anything particularly smart. The teachers seemed thrilled if they even spoke, and they didn’t use big words like their classmates did. Except now they had to talk, because the other kids — the smarter ones, the ones who knew how to speak the teachers’ language — were in the auditorium waiting for a decision.
I, too, was nervous. Today’s activity was one of my most anticipated classroom simulations, the one that our site administrators frequently brought visitors from the main office to watch. Because we had an audience, I always choose my best talkers — the students I could count on to be eloquent, or at least audible — to play the characters in the trial. My quiet kids, my as-yet-unknowns, filled the jury. And now these kids, the ones who were smart at their regular schools but felt totally out of their league at gifted camp, had to wrestle with concepts that most American teenagers had never even considered, much less debated: habeas corpus, free speech, treason, sedition, executive power, constitutional interpretation, and the definition of war. Were we crazy to expect this of them?
This trial was a joint activity between my Civil War class and the Great Cases in American Legal History class. I had helped design it several years earlier, and I’d had good and not-so-good experiences using it in the classroom. The worst — though notable for its passion — was when a student had to leave camp after physically assaulting a classmate who interfered with her cross-examination. Most bad outcomes were more prosaic, involving witnesses whose portrayal of their assigned roles could have served as examples of really bad acting for our colleagues teaching drama, lawyers who failed to ask the right questions, or jurors who just couldn’t move beyond the “Lincoln mystique” to consider the possibility that he might have done something bad (gasp!). On the other hand, I’d had numerous spirited conversations with my students about this trial over the last four years, most memorably with a young man playing Lincoln who was absolutely convinced his classmates should have impeached him. Yet this group of ten terrified jurors would turn out to be the most surprising success story out of twelve consecutive Lincoln trials.
With almost no guidance from either teacher, they held a free-flowing, inclusive discussion, slipping between the questions, exploring their connections. Did Abraham Lincoln overstep his constitutional authority by suspending habeas corpus in Maryland? To whom, exactly, did the Constitution grant the power to suspend habeas corpus? Could Lincoln order generals and armies into position without a Congressional declaration of war? Did you need a declaration to invade your own country? Was the Confederacy actually a country? Did the Commander-in-Chief have the power to dispense War Department funds if Congress hadn’t actually declared war? Could Congress retroactively grant the President permission to do things if he had acted when they were out of session? Did the President have the right to ignore the Supreme Court? Does the answer to that question change if the Chief Justice is a senile racist?
Two things about their discussion truly impressed me. First, they managed to deal with all of these questions in the context of our trial simulation — not what they read in their textbooks, not what was going on in 2004, but what their classmates had presented to them about events in 1862. Second — and perhaps the second was dependent on the first — they actually listened to each other. Sometimes they even changed their minds — and nobody called anybody a flip-flopper. Periodically they stopped to hold a vote on the charges, and each time the vote count changed. I became their cheerleader, refusing to let the lack of a clear consensus discourage their debate.
I’ve found, in previous and subsequent discussions, how hard it is for people to leave behind their preconceived notions and react to new material, whether it’s a trial simulation or a primary document. But this is so important in studying and teaching history — it’s always a great moment when students can forget everything they know now in order to understand the experiences and opinions of people who lived 150 years ago, people who didn’t know how things would turn out. I’m also routinely frustrated in class discussions when students fail to listen to each other, to react and respond in their statements rather than just saying what they had intended at the beginning of the discussion, or just talking to the teacher. In this case, they almost seemed to forget that there were teachers in the room. And while some wanted to give up early in the process, others actually enjoyed hearing what everyone had to say, looking for places of agreement and disagreement, conflict and consensus.
They did this for forty-five minutes. Jury deliberations in previous trials had rarely lasted more than ten, and the end of the class day was rapidly approaching. The other instructor and I looked at each other in amazement, furiously taking notes so we could quote the students in our evaluations. It never even occurred to me to worry about what our teaching assistants were doing to amuse the eighteen kids waiting in the auditorium. We only stopped deliberations when we literally ran out of time. A few of the jurors volunteered to forego activity period in order to keep working, but this was against camp rules. So, at 2:59 we took one final vote on each charge.
The final results mirrored conclusions reached in previous classes — they failed to convict Lincoln for suspending habeas corpus or waging an undeclared war. The only charge on which they managed to come to a unanimous decision was misappropriation of funds. For sending War Department money to Gov. Oliver Morton of Indiana (so that he could run his state without calling the legislature into session), the 10 jurors recommended that Congress impeach Abraham Lincoln. It is perhaps one of the more interesting legacies of the Reagan Revolution that the only offense for which an elected official can never be forgiven is to waste the taxpayers’ money. But I digress.
Because it was the process that made me so proud. Each one of those ten students found his or her voice that afternoon, and even more amazing — given their potential role models in the world of talk radio and cable news — they had acknowledged that the other students in the circle also had voices worth listening to. I wish I’d had a video camera to sneak into the hallway, so I could show the whole class, or even the whole camp, this impressive discussion. It wasn’t always pretty, but it was the democratic process in a nutshell: time-consuming and somewhat fruitless in terms of actual results, but still thought-provoking, awe-inspiring, and full of surprises.