Legal Cases: Lecture I
I. The Human and Its Others
A.
This quarter: Society
1. Goethe and
Kafka
a. Secularization
b. Individual
fulfillment in human world, not in divine world
c. Individual
v. Community
2. Social
Agreements
a. Can humans
come up with rational agreements allowing for individual fulfillment in the
human world?
b. Inclusions
and exclusions
B. This unit
1. Examine
some of those exclusions and attempts to overcome them in the diverse society
of the
a. African
Americans:
From emancipation to segregation to civil rights
b. Asian
Americans
2. Role of
law: Plessy v.
3. Role of
culture as well as law: China Men (1980)
II. Background to Plessy
A. Emancipation
and Reconstruction
B. Civil War
Amendments
1. 15th Amendment (11)
2. 13th Amendment (11-12)
3. 14th Amendment (14)
a. Citizenship clause
b.
Privileges and immunities clause
c.
Due process clause
d. Equal
protection clause
C. Rights (12-13)
1. Inalienable
rights (230):
Human rights (257)/natural rights (243)
2. Political
rights
3. Social
Rights
4. Civil
Rights
D.
Civil Rights Cases (1883)
1. Civil
Rights Act of 1875 (23)
2. Majority
opinion
3. Harlan
dissent
4. What are
the limits of “state action” in terms of race?
III. “The Freedman’s Case in
Equity” (1885) and the Civil Rights Cases
A. Why appeal
to equity?
1. Equity: the
sense of justice that transcends written law
2. Civil
Rights Cases (256, pdf 418)
B. “Is the
freedman a free man?” (pdf
418)
1. No.
2. Denied his
constitutional rights (262)
3. Because of
prejudices growing out of slavery
a.
Considered an alien (258-9)
b. Considered a menial (259)
C. How correct?
1. Treat as a
citizen (262)
2. Overcome
prejudice of a “race instinct” (pdf 418)
D. Even though
Cable claims to speak for the “intelligence of the South” (263), the “problem” is
national, not regional
IV. Counterargument
A. From Handbook
1. Critique
the assumptions behind a writer’s premises by exposing unfair assumptions or
unstated premises as false.
2. Assess the
truthfulness of the premises themselves.
3. Examine the
strength or relevance of the evidence used to support the argument.
4. Interrogate
the logic of the argument itself and expose any fallacies.
5. Stun your
readers by proposing a superior alternative argument of your own using the same
set of evidence.
6. Supply
additional evidence that supports an alternative conclusion that the original
argument did not account for.
B. Simplified
1. Examine the premises (1 and 2)
2. Examine the logic (4)
3. Examine the evidence (3, 5, and 6)
a. Is it
accurate?
b. Is it
complete?
c. Is it
properly interpreted?
V. “In Plain Black and
White” (1885) as counterargument
A. Grady establishes his ethos by attacking Cable’s
1. Cable is,
in fact, a Northerner (271)
2. Grady, not
Cable, speaks for the South
a. Pathos for
South (282)
b. Let the
South solve the “problem”
3. Cable is
sentimental; Grady is practical (271-272): ethos by adhering to logos
B.
Summary of Cable’s argument (271-2)
C. Are African Americans denied legal protections?
1. Historical evidence (272)
2. Social evidence (278)
D. Do prejudices generated under slavery remain?
1. Not
prejudice, but instinct (273)
2. Not result
of history, but law of nature
E. Equitable solution?
1. Separate
but equal (273, 278, 280)
2. What sort
of equality? Citizen?
3. “Domination
of the white race” (282)