Legal Cases: Lecture I

Background to Plessy

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. 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 (2, 15)

B. “Is the freedman a free man?” (14)

1. No.

2. Denied his constitutional rights (7)

3. Because of prejudices growing out of slavery

a. Considered an alien (3-4)

b. Considered a menial (4)

C. How correct?

1. Treat as a citizen (7)

2. Overcome prejudice of a “race instinct” (14)

D. Even though Cable claims to speak for the “intelligence

of the South” (8-9), 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)