Write a 600-word (2 page, double-spaced) summary of each day’s material, including: (a) a brief summary and analysis of the day’s reading; (b) any questions or concerns you have about the day’s materi

1. Pick a reading (10 -15 pages OR LESS), to be sent to me no later than May 21 2. Present on that reading May 25 or 26 (first people to send readings get first pick of time) 2. Upcoming Assignments, 2: Essay • 5 pages, around 1500 words • Topic 1: Since the Constitution’s ratification, the United States has witnessed a steady shift of power away from states and toward the federal government. What, overall, has this shift meant for civil rights and democracy? Does a strong federal government strengthen these things, or weaken them? In answering, be sure to reference (1) both the Constitution’s main body and its Bill of rights, and (2) at least three Supreme Court decisions. • Topic 2: Choose your own adventure! Email me by midnight Friday , May 21 General Tips • Prioritize precision and clarity over style. • Write conversationally. • Avoid unnecessarily complicated phrases and jargon. • Avoid wordiness. • Proofread! Citations • Your first in -text reference to an author should include first and last name. Subsequent references should include only last name. Never, ever refer to an author only by first name! • Whenever you get an idea from a text, even if you’re not using a direct quotation, cite. When in doubt, it’s much better to over -cite than under. • Only quote when it’s important to reproduce an author’s exact wording. Otherwise, summarize. Citation Format • Cases: Name of the Case , volume of the US Reports in which the case was published first page the case occupies (year) – Example: Brown v. Board of Education of Topeka , 347 U.S. 483 (1954) – Subsequent references can use Name. • Other Citations: pick a citation method and stick to it.

– Political Scientists typically use the Chicago Manual of Style, but I don’t care as long as you’re consistent. Your essay should consist of three parts: introduction, argument, and conclusion. Introduction • Your introduction should do three and only three things: A. Orient the reader to your topic and the question(s) you intend to answer; B. Give a clear sense of the claim(s) you plan to make (your thesis); and C. Provide a brief overview of the rest of the paper. A. Orienting the Reader • Get to the point quickly. • You should begin with a couple of orienting sentences to introduce your topic and its significance, but no need to be too general here. • If you find yourself using sentences like “Since the dawn of time…” or “Many wonder…” something’s gone wrong. B. Thesis • Your first couple sentences should suggest a question, and your thesis should suggest an answer. • It is often helpful here to also provide a few alternative answers (antitheses) to show the reader what’s at stake. • This can be at the end of your first paragraph, but it doesn’t have to be. C. Summary • After stating your thesis, give the reader a roadmap for precisely how you plan to defend it. • Be directive — e.g., “I begin by arguing X. Next, I…” • Regardless of what you may have learned in high school, it is fine — indeed, preferable — to use the first person here. Some General Points About Arguments • Always tell us why you think something is true; do not just tell us that you think it is. • Attempt to think through and answer all possible objections to your argument. If someone might see things another way, tell us that , and make an argument for why your way is better. • When summarizing someone else’s argument, whether or not you agree with it, attempt to present it as strongly as possible. Structuring Arguments • Most academic papers contain multiple, nested arguments, such that the conclusion of one argument becomes a premise for another. Things get complicated. • To make things clearer:

– Be explicit about the claims you’re making and how they fit together. – In addition to providing an outline of the argument in the introduction, occasionally remind readers of where you are and where you’re going. – If you’re making multiple points, enumerate them. Conclusions • Essays should not be like detective novels.

Don’t surprise me. • Just summarize what you’ve said, and perhaps provide a few comments on the argument itself. • Be brief. Rights: What, for Whom, and from Whom Central Questions 1. Since the founding, the “right to have rights” has been increasingly extended to new groups. How do we explain this expansion, and is it always a good thing? 2. It’s common to distinguish between rights that protect and rights that provide . Is there one true or best form of right? 3. On whom should rights impose correlative obligations or duties? Class Today 1. The Conceptual Analysis of Rights 2. Exercise: Rights in Practice 3. Who: Individuals, Corporations, and Other Legal Persons 4. What: Protection vs. Provision 5. From Whom: Federal, State, and Private Actors 6. The 14 th Amendment and Incorporation 1. The Conceptual Analysis of Rights: Who, What, and Who From? • Rights have a triadic form:

– They are held by particular people (including non - human legal “persons”). – They entitle their holders to particular treatment. – By virtue of entitling their holders to particular treatment, rights impose correlative duties on those who must respect them. 2. Exercise: Rights in Practice • For each of the following rights, please make an argument for: (1) who the right should protect or entitle; (2) what it should protect them from or entitle them to; and (3) who owes them this protection or entitlement.

1. Freedom of Speech (Amendment 1: “Congress shall make no law… abridging the freedom of speech…”) 2. The Right to Vote (Amendments 15, 19, and 26) 3. Who: Individuals, Corporations, and Other Legal Persons • Who can have a right — that is, legal personhood — in American law? • First: what do we mean by “persons”?

– Black’s Law Dictionary: “In general usage, a human being (i.e. natural person), though by statute term may include a firm, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.” Expanding Personhood to All Persons • African Americans:

– Until (at least) the Civil War and Reconstruction Amendments, African Americans were not given full legal personhood. • 3/5 Compromise • Dred Scott v. Sanford (1857) • Women – Background: William Blackstone and wife -as -husband – Minor v. Happersett (1875): 14 th Amendment’s equal protection clause doesn’t apply to women – 19 th Amendment (1920): women get right to vote. … and to Corporations • Citizens United v. FEC (2010): – The free speech clause of the First Amendment prohibits the government from restricting independent expenditures for communications by nonprofit corporations, for -profit corporations, labor unions, and other associations. • Burwell v. Hobby Lobby Stores, Inc. (2014): – Allows closely -held for -profit corporations to be exempt from regulations its owners object to if those objections are made on religious grounds. 4. What: Protection (freedom from) vs. Provision (freedom to) • Most of the Bill of Rights provides negative rights : protections against invasion by Government.

– No regulation of speech, the right to bear arms, protection against unreasonable search, etc. • FDR’s “Second Bill of Rights” (1944):

– People should be entitled to positive provision:

employment, Food, clothing, and leisure; fair income; housing; medical care; social security; education Negative Rights, Positive Rights, and the Danger of Tyranny • Negative rights always require smaller government. • Positive rights are less clear.

– Some require governments to relinquish control:

voting rights. – Some require government provision: health care, housing, etc. • Isaiah Berlin: positive rights can invite tyranny.

– Being “forced to be free.” 5. From Whom: Federal, State, and Private Actors • The Bill of Rights was originally meant to only constrain the Federal Government.

– This is sometimes explicit (“Congress shall make no law…”), but generally only implicit. – Barron v. Baltimore (1833): the Bill of Rights — in this case, the 5 th Amendment’s prohibition on unreasonable seizure — does not constrain cities or states. • But its protections were expanded by the 14 th Amendment (1868). 6. The 14 th Amendment, 1: As Written “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws …” “No state shall” • In Barron v. Baltimore , Supreme Court ruled that, had the framers intended the Bill of Rights to apply to the states, they would have used language from Art. 1, Sect. 10.

– Each of three paragraphs begins: “No state shall...” • Amendment meant to add to the rights of in - state residents enumerated there:

– “No state shall… pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility” (par. 1). “abridge the privileges or immunities of citizens of the United States” • Privileges is roughly a synonym for “rights,” and “immunities” is a rough synonym for “liberties,” at least negative liberties.

– Thus: “No state shall… abridge the rights or liberties of Citizens of the United States.” • But what are the “rights and liberties of Citizens of the United States”?

– Amar’s answer: those rights and liberties established in the Bill of Rights. “deprive any person of life, liberty, or property, without due process of law” • If the privileges and immunities clause incorporated the whole Bill of Rights, including the 5 th Amendment’s guarantee of due process, why then specifically invoke due process here? • Central point: the 14 th Amendment protects all persons , not just citizens. – Under Dred Scott (1857), the 5 th Amendment only protected citizens (not, at that time, slaves). – The 14 th Amendment extends 5 th Amendment protections to everyone present in the United States. “deny to any person… the equal protection of the laws” • Undoing the legacies of slavery:

– The 13 th Amendment ended slavery, but the extent to which it required full political equality for slaves was unclear. – Here, the 14 th Amendment guarantees to African Americans (and others), in addition to an end of slavery, full equality under US law: they cannot be specifically targeted. The 14 th Amendment, 2: As Interpreted: Slaughterhouse (1873) • Background:

– In the 19 th century, slaughterhouses up the Mississippi River from New Orleans polluted New Orleans’ drinking water with offal, blood, and other biproducts of butchery. – The city made slaughtering upriver illegal, and created a new franchise corporation downriver, from which butchers had to rent space. – Butchers sued, saying their 14 th Amendment rights to life, liberty, and property had been violated. • Ruling – The privileges and immunities clause of the 14 th Amendment refers only to Federal privileges and immunities. – States can still abridge the rights of their citizens as state citizens. Incorporation Since Slaughterhouse • Since the Slaughterhouse era, the Supreme Court has continuously incorporated more and more of the Bill of Rights. • Mechanical vs. Selective Incorporation – Mechanical (or Total): incorporate Amendments 1 through 8 as a whole. – Selective: incorporate only the most important parts Amendments 1 through 8, being cautious not to infringe on states’ rights. A (Very) Brief History of Selective Incorporation: The First Amendment • Gitlow v. New York (1925): free speech — here the free speech of anarchists — cannot be violated by states. • De Jonge v. Oregon (1937): freedom of assembly — here the freedom of the Communist Party — cannot be violated by states. • Everson v. Board of Education (1947): disestablishment applies to state governments and state funding of religious schools.