Legal Cases: Lecture I
I.
The Human and Its Others
A.
This quarter: Society
1.
Goethe
and Kleist
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 United States
a.
African
Americans:
From emancipation to segregation
to
civil rights
b.
Asian Americans
2.
Role
of law: Plessy v. Ferguson (1896)/Brown
v. Board of Education (1954)
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.
Unalienable
rights (226):
Human
rights (253)/natural rights (249)
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 (252, 266)
B. “Is the freedman a free
man?” (266)
1.
No.
2.
Denied
his constitutional rights (258)
3.
Because
of prejudices growing out of slavery
a.
Considered an alien (254-5)
b.
Considered
a menial (255)
C. How correct?
1.
Treat
as a citizen (258)
2.
Overcome
prejudice of a “race instinct” (265)
D.
Even though Cable claims to speak for the “intelligence of the South” (260),
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 (269)
2. Grady, not Cable, speaks for
the South
a. Pathos for South (280)
b. Let the South solve the
“problem.”
3. Cable is sentimental; Grady
is practical (269-270): ethos by adhering to logos
B.
Summary of Cable’s argument (269-270)
C.
Are African Americans denied legal protections?
1. Historical evidence (270)
2. Social evidence (276)
D.
Do prejudices generated under slavery remain?
1. Not prejudice, but
instinct (271)
2. Not result of history,
but law of nature
E.
Equitable solution?
1.Separate but equal (271, 276, 278)
2. What sort of equality? Citizen?
3.
“Domination
of the white race” (280)