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222. FOUNDATIONS OF THE FIRST AMENDMENT

May 2012

Dr. Robert W. Sutherland, Instructor

Reading assignments are subject to change, so the online syllabus is the only definitive version. Check this site regularly, at least once every other day. Changes in reading assignments will not be made within 24 hours immediately preceding class meetings.

HOW TO REACH THE INSTRUCTOR: My office is South 15; my extension is 4226. The best time to see me for a brief conversation is immediately before or after class. Other times are available by appointment arranged before and after class or by e-mail.

CLASS MEETINGS: 9:15 for the 1st week in South Hall 302, then 9:30am for the rest of the term, except the first and last day. See the schedule below. The time that a particular class ends may vary. The total of 50 hours of class time includes group meetings and exam reviews set outside of the times posted above.

TEXTS: J. S. Mill, On Liberty (on line edition); David Lowenthal, Present Dangers (The Cornell Bookstore has photocopied the book, which is currently out of print; pick your copy at the Bookstore)

GRADES:

  • EXAMS: Three Exams (I-25%, II-25%, & III-25%)
  • QUIZZES and GROUP PERFORMANCE--25% The number of unannounced quizzes and the value of each quiz will vary.
  • Materials for group projects in the last three days of the course will be available in the Moodle site for this course. Each of the three groups will have a day in which to lead the class to understand the central questions faced by the Supreme Court Cases on the Patient Protection and Affordable Care Act. The first group will focus on the national government's case (see Briefs for the U. S. DHHS). The second group will focus on the arguments of the state governments(see Briefs for the Florida, et. al.) The third group will help the class to understand how justices raised the constitutional questions that will figure in their decision this summer.Each groups will be responsible for reading assignments, instructions or questions for what to look for in the reading, and discussion of the reading in class on May 25, 28, & 29. The following roles should be determined early and assigned by consensus.
    • The coordinator of the group will organize the collaborative efforts of the group, including methods of contact, a time-line that meets the schedule below for questions and class discussion, and updates to the instructor about group concerns.
    • The recorder will document the activity for the group and its members, including when and how long groups meet, who attended and for how long, what was decided, and which individual was assigned what task. The group record is due to the Instructor on the day assigned to the group for leading class discussion.
    • Discussion leaders/Question writers--every group member does both to some degree since all members are required to review all the materials in preparation for class discussion, but some members may have specific assignments, which should be noted by the recorder..
    • See schedule below
  • Outside of class and office hours, especially during the evening when I am less available, help in planning the readings, questions, and discussion is best gained from Neil McCray, a Politics Department work study student who knows this course and the ideas important to it better than almost any one else. He also has a wealth of experience in making effective arguments based on the ideas of the course. The hours that Mr. McCray spends with members of the class are part of his work study assignment. Contact: NMcCray14@cornellcollege.edu

CLASS POLICY: The most serious penalty for missing class is a missed quiz, individual or group class performance, or exam, which usually has significant impact on the final grade. Students who notify me by email BEFORE the class that they will be forced to miss will be allowed ONCE to use the average of scores on their other quizzes or exams in place of the missed quiz or exam. No make-up quizzes and exams will be given. Group class performance cannot be made up and those who miss group class meetings will receive no credit. Documented health absences will be considered on a case by case basis.

  • ACADEMIC HONESTY: Cornell College expects all members of the Cornell community to act with academic integrity. An important aspect of academic integrity is respecting the work of others. A student is expected to explicitly acknowledge ideas, claims, observations, or data of others, unless generally known. When a piece of work is submitted for credit, a student is asserting that the submission is her or his work unless there is a citation of a specific source. If there is no appropriate acknowledgement of sources, whether intended or not, this may constitute a violation of the College's requirement for honesty in academic work and may be treated as a case of academic dishonesty. The procedures regarding how the College deals with cases of academic dishonesty appear in The Compass, our student handbook, under the heading "Academic Policies--Honesty in Academic Work."
  • DISABILITIES POLICY: Students who need accommodations for learning disabilities must provide documentation from a professional qualified to diagnose learning disabilities. For more information, see: http://www.cornellcollege.edu/disabilities/documentation/index.shtml. Students requesting services may schedule a meeting with the disabilities services coordinator as early as possible to discuss the needs and develop an individualized accommodation plan. Ideally, this meeting would take place well before the start of classes. At the beginning of each course, the student must notify the instructor within the first three days of the term of any accommodations needed for the duration of the course.
  • Portions of the Catalog on adding and dropping courses are incorporated here by reference.
  • GRADING SCALE for the course is A = 1750-2000, A- = 1650-1749, B+ = 1550-1649, B = 1450-1549, B- = 1350-1449, C+ = 1250-1349, C = 1150-1249, C- = 1050-1149, D+ = 950-1049, D = 850-949, D- = 750-849, F = 000-749. The number of points possible on any given exam or paper can be calculated by multiplying 20 points (A++) by the value (a percentage) of the exam or paper in determining the final grade. For letter grade equivalents, multiply the percentage times: 18 = A, 17 = A-, 16 = B+, 15 = B, 14 = B-, 13 = C+, 12 = C, 11 = C-, 10 = D+, 9 = D, 8 = D-.

ASSIGNMENTS--To be done before class on the day indicated:
Wk DAY TIME READING EXAM/PAPER
I 1 TBD Berkowitz  
2
9:15 Shenck v. U.S.; Brandenburg v. Ohio; On Liberty, Ch. 1  
3
9:15 On Liberty, Ch. 2  
4
9:15 On Liberty, Ch. 2-3  
 
5
9:15 On Liberty, Ch. 4; Selections from Harriet Taylor Mill's writings  
II
6
9:30 On Liberty, Ch. 5 1st Exam
 
7
9:30 Present Dangers, pp. ix-xxxii, 3-44;  
 
8
9:30 Present Dangers, pp. 45-86; Watson, "The Curious Constitution of Oliver Wendell Holmes, "Constitutional Power Hour;" & "Congress Rediscovers the Constitution" .  
 
9
9:30

Present Dangers, pp. 89-137

 
 
10
9:30 Present Dangers, pp. 138-178  
III
11
9:30 To Be Arranged 2nd Exam
 
12
9:30 Present Dangers, pp.181-233; Group I Readings & Questions due
 
13
9:30

Present Dangers, pp.234-270;

Group II Readings & Questions due
 
14
9:30 Present Dangers, pp.271-283 Group III Readings & Questions due
 
15
9:30 To be Determined by Group 1: M. Bryant, S. Smith, L. Moser, N. Zelek--for the DHHS Recorders Report Due
IV
16
9:30 To be Determined by Group II: J. Bethel, K. Oeltjenbruns, T. Cooke, T. Canty--for the states Canty Report Due
 
17
8:30 To be Determined by Group III: S. Brown, G. Eaton, L. Chen--Oral Argument on the two main questions before the Court Recorder's Report Due
 
18
8:30   Third Exam

FIRST AMENDMENT TEXT

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

STUDY GUIDE QUESTIONS & OUTLINES

Note: These questions are designed to help you get the most out of what you read. They should be largely ignored during your first reading of the assignment but carefully studied during a second reading in order to identify main ideas and to fix them securely in mind. Notes based on these questions may be used on quizzes but not on exams.

Berkowitz, "Conservatism and the University Curriculum"

  1. What is Berkowitz's main point or argument?
  2. What problem does he identify?
  3. What does he mean by "conservatism"
  4. What remedy to the problem does he dismiss? What remedy does he propose?

SCHENCK V.US:

  1. What is the indictment, including specific counts & the finding for each?
  2. What arguments and objections were made in behalf of the defendant?
  3. What conclusion does Holmes draw about the their intention and expected effect?
  4. Why weren't public figures that said the same things as the defendant similarly charged?
  5. What is the action of the Court?
BRANDENBURG V. OHIO:
  1. What is the indictment & the action of the lower court?
  2. What argument was made in behalf of the defendant?
  3. What principle or test does the Court invoke to decide the case?
  4. What conclusion and action follows?
  5. What is Douglas's caveat and by what means does he explain it?

ON LIBERTY

Chapter #1--

  1. What has been the progress of liberty up to Mill's day? (3 stages)
  2. What is the gravest threat to further progress; what question must be answered before the threat can be addressed?
  3. Why has so little additional progress been made? (4 reasons)
  4. In what sense is religion an exception?
  5. What answer does Mill give to the questions referred to in #2 above?
  6. What exceptions apply? What limitations?
  7. What three implications may be drawn from the answer?
  8. How urgent is the need for further progress?
Chapter #2--
  1. What are four objections to free speech for dissenters who are right in what they say and how does Mill reply to each?
  2. What are three objections to free speech for dissenters who are wrong? Mill's replies?
  3. Which relationship between right and wrong is most common in politics and what conclusion does Mill draw from its prevalence?
Chapter #3--
  1. What force stands opposed to individuality, what is Mill's criticism of it, and what objection does he anticipate?
  2. What is the utility of individuality to the one who has it?
  3. What two great benefits does individuality offer to those who don't have it?

Chapter #4--

  1. How does Mill respond to the charge that he promotes "selfish indifference?" To what extent does Mill agree with George on moral truth and political morality?
  2. What response is appropriate in the case of objectionable self-regarding actions?
  3. What objection does he anticipate to the distinction between self & other regarding actions?
  4. What two replies does Mill offer to it? What examples support the second?
  5. What are Mill's observations and judgments about "Mormanism?"

Selection I-- Harriet Taylor on Toleration

  1. What is the remedy for conformity?
  2. What is the effect of tradional morality on conformity and its remedy?
  3. What "truth" confirms the remedy?
  4. How is the "admiring state of mind" related to the remedy?
  5. From what premise must the education of others begin?
  6. With what prediction does the essay end?

Selection II-- Mill on Writing On Liberty"

  1. What role did Harriet Taylor Mill play in writings attributed to Mill; what was Mill's role?
  2. How was the "Liberty" distinguished from the other writings in the role each played?
  3. What is Mill's estimate of the value of the "Liberty?"

Chapter #5--

  1. What two maxims form the subject here?
  2. What limitations pertain to which?
  3. To which maxim is "police power" more directly related and why is the preventative function of such power more likely to be abused than the "punitory?"
  4. What issues lie on the boundary between them?
  5. What self-regarding actions are forbidden?
  6. What "misapplied notions (at least two) of liberty" does Mill address in this chapter?
  7. What three reasons does Mill give for restrictions on government interference?
  8. Review the Libertarian Party website in some detail. What connection to On Liberty continues in the Party's statements and activities?

Present Dangers

First Assignment, pp. ix-xxxii, 3-44

  1. What three questions form the "basis for the tripartite organization of this book?" Eaton
  2. What is the "internal coherence" of the 1st Amendment and how is it related to Locke's philosophy of government? Brown
  3. How are "founders" distinguished from "framers"? Who is a "libertarian"? Canty
  4. Why has the author put his discussion of religion and the 1st Amendment last rather than first and how is the shift related to recent events? Bryant
  5. What is the more general purpose of the book and why should it be read, even by those who disagree with some of the author's specific interpretations? Moser
  6. What is the current understanding of the 1st Amendment's protection for revolutionary groups and why is it dangerous to freedom? Oeltjenbruns
  7. What understanding preceded the current one and why is more likely to preserve freedom? Be specific about Blackstone as a source of such understanding and how it was reflected in the the constitutions of both the US and the states but also in the Alien and Sedition Acts of 1798? What was Hamilton's understanding of the "liberty of the press?" To what extent was it still recognized as late as 1917? Bethel
  8. What early sources provided a partial basis for the current understanding? What "constitutional revolution" led to the current understanding, who led it, when and how did it succeed? Smith

Why Colleges Don't Teach the Federalist Papers

  1. In what terms does the author describe the content and importance of the Federalist to earlier generations than our own? Zelek
  2. At elite colleges and universities, and others that imitate them, how often do students, undergraduate, graduate, and law, encounter the Federalist? Cooke
  3. What view do Progressives generally take of the Federalist and how do they justify it? Chen

Second Assignment, pp. 45-86; the "Curious Constitution of Oliver Wendall Holmes, Jr.;" "Constitutional Power Hour;" & "Congress Rediscovers the Constitution"

  1. Who is the "new founding father" and how faithful was he to either the basic principle of independence he asserts or to the Declaration of Independence? What expectations render his creation flawed from the beginning? Eaton
  2. How was the reinterpretation of the Constitution accomplished? What was the key concept and who were its promoters? Brown
  3. Why is it fair to consider the results dangerous? What is the danger and how does Justice Jackson attempt to address it in Dennis? To what extent is it confirmed by Berns? Canty
  4. How does history and current events confirm their concerns? Bryant
  5. What are the ten defects of the "clear and present danger" rule? Moser
  6. What does the author propose doing and why? Oeltjenbruns
  7. According to Watson, from what Amercian sources did Holmes draw in developing "legal realism?" Bethel
  8. How is such realism reflected in the "clear and present danger" standard? Smith
  9. How is Holmes's realism related to Mill's ideas? How is it related to the philosophical assumptions on which the founders and framers based their work? Zelek
  10. How do Progressives in Congress (Waxman and Frank) confirm the Progressive view of the Constitution? What is their purpose? What is the Conservative response and what is their contrasting purpose? Cooke

Third Assignment, pp. 89-137

  1. What is the "moral revolution," how long ago did it become a force, and what promotes it? Chen
  2. How do Washington and Jefferson point the nation in a very different direction? Eaton
  3. Against what background must the Supreme Court's consideration of obscenity be understood? Brown
  4. What cases apply, what standards do they offer, and how adequate are they in the face of the harm done by obscenity, especially in the mass media? Canty
  5. What role have D. H. Lawrence, the Kronhausens, and J. S. Mill played in preparing the way for the direction in which Justice Douglas would lead the Court and the nation? Bryant
  6. What advances in the Court's understanding of obscenity are reflected in the Paris Adult Theater and Miller cases and what were the practical effects? Moser
  7. To what extent does the author both agree and disagree with Justice Burger's principles in these cases and why is a renewal of judicial federalism an attractive prospect? Oeltjenbruns
  8. What changes in the definition of obscenity does the author propose? Bethel
  9. What impact on movies and television is projected by the author in the reregulation of obscenity? Smith
  10. What kind of statutes would advance efforts to renew society and how might they be related to Milton's understanding of moral education? Zelek

Fifth Assignment, pp. 181-233;

  1. What is the "wall of separation" principle, what are its origins, and what extensions or applications of it did advocates of the principle on the Court wish to see? Cooke
  2. What was Jefferson's understanding of the relation between religion and public education and how does it differ from later efforts to advance other principles? Chen
  3. What did the "establishment of religion" and "free exercise" clauses mean to the generation who first embraced the Constitution? Eaton
  4. What variety in uses of the term "religion" characterized our early decades and what singular conviction underlay such variety. Why is that conviction important for the debate between public and private morality? Brown
  5. What recent opinions have undermined such a basic conviction? Canty
  6. What is the "incorporation" controversy and why is it important for the establishment provision of the First Amendment? Moser

Sixth Assignment, pp. 234-270

  1. Explain briefly Lowenthal's account of the Constitution's "establishment clause" and the simplest issues arising from its national application. Oeltjenbruns
  2. Explain also federal aid to education in parochial schools and to religion itself. Bethel
  3. Explain the issues at stake in public school prayer and other activities associated with democratic citizenship. Smith
  4. What errors does Lowenthal claim to find in Justice Black's opinion for Engel v. Vitale? Zelek
  5. How does Lowenthal's position escape, in his view, the equal protection requirements of the 14th Amendments? Cooke
  6. What does the Court understand "free exercise" to mean in Cantwell v. Connecticut, why is it important, and what concerns does Lowenthal express with it? Chen
  7. Why does Lowenthal insist that the Court is likely to make matters worse in future flag salute cases rather than better? Eaton
  8. What evidence of judicial "presumption" does Lowenthal cite in the last 12 pages of the chapter? Brown

Seventh Assignment, pp. 271-283

  1. What background does Lowenthal offer to his assessment of the modern Court's interpretation of the 1st Amendment? Canty
  2. What is the fundamental error that Lowenthal finds underlying the Court's treatment of 1st Amendment questions? Bryant
  3. What simple remedy does Lowenthal propose and how does it directly lead to a better interpretation of the 1st Amendment? Moser
  4. Be specific about the improvement Lowenthal would expect in a variety of case law subjects, from incorporation to obscenity. Oeltjenbruns

GROUP PROJECTS FOR CLASS DISCUSSION ON THE MAIN QUESTIONS RAISED BY THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (PPACA) BEFORE THE SUPREME COURT.

  1. Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.
  2. Does Congress exceed its powers and violate principles of federalism by expanding the Medicaid program and withholding funding from states that don’t participate?

Group I --Readings and Questions from the Merit Briefs of DHHS on both of the questions above.

Group II: Oeltjenbruns, Coordinator; Canty, Recorder; Bethel & Cooke, Researchers and Question Writers--Readings and Questions from the Merit Briefs of the states on both of the questions above

Group III--:Brown, Recorder; Eaton, Researcher & Question Writer; Chen, Coordinator--Readings and Questions from Oral Argument before the Justices of the Supreme Court on both questions above.

 

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