Phil 155 – Spring 2011
Anderson
Paper due Thurs. Feb. 24
Typed, double-spaced.
First Writing Assignment
1. Re: The handout “Justice Through the Looking Glass” by Nat Hentoff
Justice Scalia attempted to convince the rest of the Court that, when interpreting statutes, they
should “give nontechnical words their ordinary meaning” but the majority apparently disagreed.
The majority decided that the defendant was guilty of using a firearm even though its “use” in this
case was only as an item of barter in a drug deal. What was the majority’s argument in this case (as
stated by O’Connor)? Who made the better legal case, Scalia or O’Connor?
2. Re: Edward Levi, An Introduction to Legal Reasoning
Levi depicts the doctrine of precedent in case law as reasoning in which “a proposition descriptive of the
first case is made into a rule of law and then applied to a next similar situation” (p. 11). What appears to
be the rule of law that the court used in the case of Longmeid v. Holliday (1851) that led the court to
conclude that Ms. Longmeid was not legally entitled to compensation for her injury from the exploding
lamp? Nowadays, Longmeid would stand a much better chance of receiving compensation for her
injuries than in the 1850s, but what rule of law would the court be likely to use to arrive at a verdict
favorable to the plaintiff?
3. The majority opinion in Lochner v. New York (1905) is widely regarded nowadays as an example of
bad legal reasoning because of its resort to “substantive due process”. What does this expression
mean and why is it considered a bad way to read the Constitution?
4. Re: The handout, “In the Beginning” by Pamela Karlan.
Why does Karlan think the U.S. Constitution has survived much longer than the average lifespan for
constitutions internationally?
Karlan alludes to certain moral principles that are needed to interpret some important clauses in the
U.S. Constitution such as the equal protection clause or the cruel and unusual punishment clause.
Give an example of one such principle. To reach a majority decision on a case does the majority of
the court have to agree on the principle? Do the original authors of the Constitution have to agree
on that same principle? Does the general public have to agree on the principle?
Is it irresponsible and a departure from the rule of law for a judge to interpret a troublesome part of
the Constitution on the basis of a principle that he or she sincerely accepts as true even if her fellow
justices do not?
5. Re: Dworkin, “Constitutional Cases” and Munzer and Nickel, “Does the Constitution Mean What it
Always Meant”
Originalists (or “textualists” as Scalia prefers) maintain that the vague but important clauses in the
Constitution like “equal protection of the laws” and “due process of law” should be interpreted the way
the original authors of those words intended. They often argue that any other way of interpreting the
Constitution would give justices license to impose their own subjective moral and political views on the
legal system. Dworkin (as well as Munzer and Nickel) emphatically reject originalism as the best way to
interpret the Constitution. What are their reasons for this?
6. Dworkin’s own positive theory of how best to interpret the Constitution relies on a distinction
between concepts and conceptions. As Dworkin sees it, the authors of the Constitution intended
that the troublesome clauses be understood as concepts and they left it as a job for the judiciary to
work out particular conceptions of those concepts. Explain in more detail what Dworkin is getting at
here. Be sure to give examples.
7. Re: Dworkin, “Why It Was a Great Victory”
What is Dworkin’s argument for holding that the constitutional right of habeus corpus applies to
aliens, not just citizens? What moral principle does he rely on to reach his conclusion? Who makes
the better argument, Dworkin or Scalia?