Phl 347
Study Guide for the Second Midterm
(April 6)
The following are
some examples of the kind of questions to expect on the second midterm, October
21st. Be sure to develop at least one argument for your position, and to
consider and respond to at least one objection. Bring a blue book.
- Assume
that the maintenance of the freedom of speech is a compelling state
interest. Could it ever be constitutionally proper for the government to
prohibit certain kinds of political speech, if that speech, by advocating
the repeal of the First Amendment and the establishment of widespread and
very restrictive censorship, posed a clear and present danger to the
survival of the freedom of speech itself? Suppose our society finds itself
in the situation of Weimar Germany in the 1930s -- would the prohibition
of Nazi propaganda in such a situation be constitutional?
- Pick
one theory about the underlying rationale for the First Amendment (for
example, the marketplace of ideas, Mill's fallibility argument, equal
respect neutrality, Scanlon's autonomy argument, Meiklejohn's
self-government theory, etc.). Evaluate whether obscenity (as defined in Miller
vs. California) should be constitutionally
protected, according to that theory.
- Can
the prohibition of certain kinds of pornography be justified as necessary
to protect the rights of women, as MacKinnon has argued? Evaluate the
critiques of MacKinnon by Easterbrooke or Dworkin.
- Was Collins
v. U. S. rightly decided? Can the
emotional and psychic harm done to members of a vulnerable minority ever
override the right to certain forms of self-expression (such as the
display of offensive symbols or caricatures)? Would it be constitutional
for state universities to prohibit the display of such symbols or images
on campus, in order to foster a positive learning environment for all of
its students?
- Assume,
for the sake of argument, that paternalism toward adults is justified in
the case of legal restrictions designed to foster health or safety (such
as mandatory seat belt or helmet laws). Is there any defensible principle that would permit
such forms of paternalism but would prohibit paternalism that is based on
the promotion of moral values or good character (for example, laws against
certain forms of gambling, prostitution, the use of medically harmless
recreational drugs)?
- Is it
reasonable to think, as Douglas argues in Griswold, that there is a generic right to privacy, wide
enough to include such a thing as contraception,, implicit in the Bill of
Rights? Why does the Ninth
Amendment refer to unenumerate d rights? Does the Court have the authority
to create or to recognize such rights, and if so, what criteria should it
use in deciding if something not explicitly mentioned in the text of the
Constitution is a constitutionally protected right?
- Does
it matter whether the right to abortion is conceived of as a right to
privacy or as a form of the right to liberty? Which right has the firmer foundation in the
Constitution? Would the scope
or the gravity of the right to abortion be different on the two
interpretations? If so, how?
- What
does the word religion, as it occurs in the First Amendment, mean? How should the Courts go about
deciding this? Does it matter if the interpretation of the word is
somewhat ethnocentric, determined in part by the forms of tradition common
in American history?
- Explain
the difference between the no-exemption and the exemption interpretations
of the free exercise clause of the First Amendment. Use a couple real examples to
illustrate the difference. Which is correct, and why?
- Is
there a coherent interpretation of the no-establishment clause of the
First Amendment that explains why it is permissible to have such things as
chaplains in the military and the Congress, official days of thanksgiving
and prayer, and religious phrases like nation under God or in God we trust in the pledge
and on the currency? Should
the fact that a practice is rooted in our history and tradition exempt it
from First Amendment scrutiny?
Last updated March 23, 2006
Created by: Robert C. Koons
Send comments to: rkoons at mail
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