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222. FOUNDATIONS OF THE FIRST AMENDMENT

April-May 2014

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. Do not rely on outdated, printed copies of this site! 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: 8:30am daily. Class will start promptly each day at the same time but will end at a variety of different times. On exam days, class time may go to 10:30 or 11, but on other days it may be over before 9:30am and the work of the course can continue in a group setting. Quizzes will be especially important in the first week, even on the first day, as a way of setting expectations and providing specific feedback about performance. Students will have a chance to ask questions about the day's assigned reading before taking the quiz over it. After the quiz, the focus will shift to the next reading assignment. Contrasting views of the 1st Amendment insure that discussion is the basis for learning in this class and everyone will be expected to participate, which will require much work in a group setting. See below an outline for group study. Some groups will meet longer than others, as people in them realize the difficulty of the assignments and the level of mastery expected. Such mastery will be determined by quizzes in the course and low quiz scores may prompt some groups to longer and more frequent group meetings. Three hours a day of class and group meetings is commonplace, though additional time may be needed as the date for an exam approaches and exam review sessions are added to class and group meetings.

TEXTS: J. S. Mill, On Liberty (on line edition); David Lowenthal, Present Dangers Parts I & II (in Moodle)

GRADES:

  • EXAMS: Three Exams (I-20%, II-20%, & III-20%)
  • QUIZZES (20%) and GROUP PERFORMANCE--20% The number of unannounced quizzes and the value of each quiz will vary.

GROUPS:

  • GROUP OBJECTIVES
    • Understanding through small group study and discussion the principles and arguments that inform the current controversy over whether Barak Obama is a "lawless president." Mill's On Liberty and Lowenthal's Present Dangers are essential to understanding the three most important responses to the question by the "establishment," conservative Republicans, who initially raised the question, by the "libertarians," who are the most adamant about an answer, and by the Progressive Democrats, who form the strongest support for President Obama's policy leadership and practices. The controversy is central to understanding and applying the First Amendment as well as the rest of the Constitution.
    • Leading class discussion in weeks three and four of the course based on readings selected and assigned by each group on the specific days reserved for it. The FIRST GROUP WILL introduce the class to the term, "lawless presidency," as initially raised by Rep. Paul Ryan and developed by other Republican leaders, broadly understood. A SECOND GROUP will develop the term with arguments and examples of "presidential lawlessness" that appeal especially to libertarians, A THIRD GROUP will respond in ways that confirm the legitimacy of the Obama Presidency.
  • GROUP FORMATION & OPERATION
    • Since a quick, smooth start is essential for group success, each group will have the help of a mentor, Gerin Eaton (geaton15@cornellcollege.edu), who has experience in helping 2013 groups succeed in this course. Ms. Eaton will figure importantly in helping you with On Liberty but she is also available to help convene groups on the first day, clarify confusion about what groups will be doing, assist in the initial tasks of getting groups organized and running in preparation for the challenges of difficult reading in the first week, and advise students outside of class on how best to prepare for the quizzes and exams.
    • The coordinator of the group will be chosen by the group, will organize the early collaborative efforts of the group, including methods of contact, developing a consensus on meeting frequency and times, confirming, keeping track, and following up on who will do what tasks, especially as reports and posting dates come due. Such coordination is also essential for group success on the days the group leads the class (see schedule below). The following tasks need to be scheduled: researching the subject, selecting what the class will read on the subject, identifying the concepts that form the basis for the group's argument, the examples that show how the argument applies to official acts by the President, and writing questions that help the class focus on the key contentions of the group. The coordinator is also responsible for making sure each group member has an important role to play on the days that the class leads discussion. which means that each group member has a clear understanding of what that role is and has support of the group in successfully carrying it out. Please note that group success is more and more at risk the more the coordinator actually has to do all these tasks personally. Enabling other group members to match their best efforts in these tasks with the high expectations of the course is the core achievement of a good coordinator
    • The reporter will 1) document the activity for the group and its members for the group record (see Note 1 below), 2) provide reports to the instructor at times designated in the schedule below, 3) email readings for the group to be read by other members of the class (see Note 2 below), and 4) email the questions, approved by the group, to guide reading of the assignment made for the class day for which the group is responsible. (See Note 3 below) Group performance suffers if the reporter is not very conscientious, observant, and analytical. A good reporter needs to be able to keep track of and specify steps in the day by day process of meeting course expectatons.
      1. No group record can be complete without reliable contact information for each group member, a consistently updated schedule of group meetings posted well in advance of the time they begin, an account of when, where, and how long groups meet, who attended and for how long, what was decided, and which individual was assigned to what task. No record will be considered complete without a note about missing and late members, if there are any. The group record is due to the Instructor two times in the course: once on the day of the second exam and once on the last day assigned to the group for leading class discussion.
      2. An email to the Class is expected from each group (see schedule below). The message may be: serious (like a question about recent readings that the Moodler's group had trouble answering or a reference to a current news article related to the course or its readings) or comic, (like a gripe, a confusion, a paradox)
      3. Reporter success culminates in the two key elements essential for Group Class Days: to have a reading assignment due each day and to insure that all members of the class can access the reading plus a set of questions to guide the class in getting the most out of their assignment.
    • Assignment minders/Discussion leaders/Question writers--group success ultimately stands or falls on how conscientiously every group member assumes responsibility for assignments, discussion, and clear answers to clear questions that are challenging enough to be on quizzes and exams the class will take. Thus, every class member plays this role throughout the whole course and is individually responsible for the quality of work as reflected in the member's course performance.
  • ADDITIONAL HELP: Outside of class and office hours, especially during the evening or weekend when the instructor is less available, help in planning the readings, questions, and discussion is best gained from Gerin Eaton, a Politics Department work study student who knows this course and the ideas important to it better than any current student. She also has a wealth of experience in making effective arguments based on the ideas of the course. The hours that Ms. Eaton spends with members of the class are part of her work study assignment. Contact: Gerin Eaton (geaton15@cornellcollege.edu) Other students willing to help include Thomas Cooke (TCooke15@cornellcollege.edu) and Claire McGuire. (CMcGuire14@cornellcollege.edu)

CLASS POLICY: Group meetings of the class are the basis for successful performance in the course, not only on the days for which the group is responsible but also on the quizzes and exams as well. Group meeting dates and times are arranged by agreement of the group members and members will suffer who agree to a meeting and later fail to attend meetings to which they agreed. Missing a group meeting is likely to lead to a poor score on the quiz for the day (there will be quiz every day for at least the first week). Contact the coordinator of your group immediately if there is an obstacle that prevents you from attending a group meeting. Persons missing a meeting will be noted in the group report and the instructor will follow up with appropriate actions. Class meets daily, sometimes twice daily, if needed, and every student is expected not only to be present but to be on time. The final exam covers the whole course and the final exam review class meeting will provide substantial insight into the following day's examination.

  • 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 New, Reports, etc
I 1
8:30
Berkowitz , Thornton , Belkin & GrossReviewWeeklyStandard  
2
8:30
On Liberty, Chs. 1-2, Paragraphs 1-20  
3
8:30
On Liberty, Ch. 2, Paragraphs 21-44; 10th Federalist  
4
8:30
On Liberty, Ch.3  
 
5
8:30
On Liberty, Ch.4 FIRST EXAM  
II
6
8:30
On Liberty, Ch.5 Selections from Harriet Taylor Mill's writings  
 
7
8:30
Shenck v. U.S.; Brandenburg v. Ohio Watson, "The Curious Constitution of Oliver Wendell Holmes." Libertarian News
 
8
8:30
Present Dangers, pp. ix-xxxii, 3-64; Conservative News
 
9
8:30
Present Dangers, pp. 65-109; Progressive News
 
10
8:30
SECOND EXAM; Libertarian Readings & Questions Emailed Group Reports Due
III
11
8:30
Libertarian Initial Discussion, Conservative Readings and Questions Emailed Libertarian News
 
12
8:30
Libertarian Concluding Discussion Conservative News Libertarian Report Due
 
13
8:30

Conservative Initial Discussion, Progressive Readings and Questions Emailed

Progressive News
 
14
8:30
Conservative Concluding Discussion Libertarian News Conservative Report Due
 
15
8:30
Progressive Initial Discussion Conservative News
IV
16
8:30
Progressive Concluding Discussion. Progressive News Report
 
17
TBD
FINAL EXAM REVIEW Email Group Assessment & Evaluation by 5pm
 
18
8:30
FINAL EXAM FINAL 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?

THORNTON

  1. What is the author's purpose and why does he consider it important?
  2. What is the "Eutopian" project and why does the author think it a failure? Be able to explain the argument in enough detail to make each count of the indictment clear.
  3. What are the "EU's Progressive Principles" and how differ from "America's Founding Principles?"
  4. What is "American Exceptionalism" and what are its prospects?

BELKIN

  1. Who is Steven Hayward and why is he important?
  2. What evidence supports the need for his position?
  3. How would Berkowitz discount the effort?

Review of Neil Gross's WHY PROFESSORS ARE LIBERAL, ETC.

  1. What are Professor Gross's own politics and what other occupational group does he belong to that rivals sociologists in their commitment to liberal political view?
  2. What is the most common explanation for why so few conservatives are found among college faculty? the next most common?
  3. How have liberal professors tried to defend their dominant role in academia?
  4. Why is academia liberal and what is the impact of Gross's answer to the question?

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 the "two hypotheses" and how are they related to assuming infallibility?
  2. What are four objections to free speech for dissenters who are right in what they say and how does Mill reply to each?
  3. What are three objections to free speech for dissenters who are wrong? Mill's replies?
  4. Which relationship between right and wrong is most common in politics and what conclusion does Mill draw from its prevalence?
  5. What resemblance exists between Mill & Madison on the prospects for political genius?
Chapter #3--
  1. What force stands opposed to individuality, what is Mill's criticism of it, and what objection does he anticipate?
  2. How are custom, immitation, and conformity related? What does Mill associate with individuality?
  3. What is the utility of individuality to the one who has it?
  4. What two great benefits does individuality offer to those who don't have it?
  5. What is Mill's view of "oridinary" or "average" people? To what extent do they influence the society he saw emerging as well as the one he saw around him?

Chapter #4--

  1. How does Mill respond to the charge that he promotes "selfish indifference?"
  2. To what extent does Mill's response depend on clear knowledge of morality and moral conduct that applies to all and is accessible to all who consult it?
  3. How does Mill distinguish between "faults" and "vices"? Name some particular faults, bad habits, and vices and what responses are deserved to them.
  4. What response is appropriate in the case of objectionable self-regarding actions?
  5. What objection does he anticipate to the distinction between self & other regarding actions?
  6. What two replies does Mill offer to it? What examples support the second reply?

Selection I-- Harriet Taylor on Toleration

  1. What does HT mean by the "spirit of conformity"?
  2. Who exhibits it and what is their impact? What paradox results?
  3. What is the remedy for conformity?
  4. What is the effect of tradional morality on conformity and its remedy?
  5. What "truth" confirms the remedy and why is it important?
  6. How is the "admiring state of mind" related to the remedy?
  7. From what premise must the education of others begin?
  8. 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 work on "Liberty" distinguished from the other writings in the role each played?
  3. What is Mill's estimate of the value of "On 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. Why is Mill concerned with growth of a bureaucracy and how is related to his admiration for Americans?
  9. What "practical principle" does Mill offer to guide us in balancing centralized and decentralized power?

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?\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?

The Curious Constitution of Oliver Wendell Holmes Jr.

  1. According to Watson, from what Amercian sources did Holmes draw in developing "legal realism?"
  2. How are law and morality related for Holmes and other "realists?" Does Holmes agree that "might makes right?" Does he subject his own views to the same rule he uses to fault the views of others?
  3. How is such realism reflected in the "clear and present danger" standard?
  4. 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?

Present Dangers

First Assignment, pp. ix-xxxii, 3-65

  1. What three questions form the "basis for the tripartite organization of this book?"
  2. What is the "internal coherence" of the 1st Amendment and how is it related to Locke's philosophy of government?
  3. How are "founders" distinguished from "framers"? Who is a "libertarian"?
  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?
  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?
  6. What is the current understanding of the 1st Amendment's protection for revolutionary groups and why is it dangerous to freedom?
  7. What understanding preceded the current one and why is it 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?
  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?
  9. 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?
  10. How was the reinterpretation of the Constitution accomplished? What was the key concept and who were its promoters?
  11. Be able to contrast in clear, full terms the old and new understanding of judicial review and explain the sources of each

Present Dangers II, 65-109

  1. Why is it fair to consider the results of the new understanding of judicial review to be dangerous? What is the danger and how does Justice Jackson attempt to address it in Dennis? To what extent is it confirmed by Berns?
  2. How do history and current events confirm their concerns?
  3. What are the ten defects of the "clear and present danger" rule?
  4. What does the author propose doing and why?
  5. What is the "moral revolution," how long ago did it become a force, and what promotes it?
  6. How do Washington and Jefferson point the nation in a very different direction?
  7. How does the legal tradition reflect such a direction in a discussion of "police power?"
  8. How was the tradition reflected in the first recorded obscenity case in America. What came to be the "test" for obscenity?
  9. How did the Supreme Court in Roth embark on a new direction?
  10. According to Lowenthal, what is so important about obscenity law? How is it related to the mass media?
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