Which justice has the better argument, and why?

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Question:

Compare and contrast Justice Frankfurter’s majority opinion in Minnersville School District v. Gobitis (1940) with Justice Jackson’s majority opinion in West Virginia State Board of Education v. Barnette (1943). In your view, which justice has the better argument, and why?

Discussion:

The first thing to notice is that you are being asked to compare two texts, Frankfurter’s opinion in Gobitis and Jackson’s opinion in Barnette.  These are texts of a certain kind; they are both majority opinions in Supreme Court cases.  Each offers an argument about what the case is really about, which constitutional rights are in question, and what should be done, and why, under the First Amendment to the U.S. Constitution.  Each opinion has to reconcile competing values. We can think of competing values as different things or ideas that we value, and that are in tension or conflict.  For example, there is value (in other words, it is generally good) in allowing state and local elected officials to make thousands of decisions and rules about public education. This would be mainly the value of the democratic process, and, also, perhaps in addition, the value of “localism,” that is, letting smaller units of government (closer to the ordinary people) have decision-making power, if those small units can handle the subject matter, on the theory that different solutions will suit different communities.

Moreover, here, the democratic process has determined that requiring the flag salute as a condition of attending the public schools promotes some other substantive value that is vitally important (here, patriotism and love of country). The Jehovah’s Witnesses claim that their fundamental right to free exercise of religion is being violated.  One could also claim that a different fundamental right, the right that all students arguably have to freedom of conscience, freedom of thought, and freedom of expression, is being violated (here, the students’ motive for not saluting could be religious OR secular (non-religious).

It would be difficult to respond well to this difficult assignment without offering at least a summary of each justice’s argument. An argument seeks to persuade. Here, each justice resolves the conflict by giving reasons for taking one position or another. So, you are being asked to show that you understand the arguments of Frankfurter and Jackson, respectively, and to offer your own argument about how the case should be resolved and why.  So, you might think about what is really wrong with one argument and what is really right about the other one. You might add something that you don’t find stated or developed in either judicial opinion. But the point of the paper is to persuade the reader that your view of the case and how it should be resolved is the best one. Everything that you write in the paper should have something to do with convincing me that your view is the correct or best one, all things considered.

Here are some additional suggestions:

1. You should develop a thesis statement and you should set it forth at or near the beginning or your essay. Here, your thesis will likely take the form of the response that you give to the question asked. The form of this statement can be simple and direct (“In this essay, I will argue that…”), or you might be more imaginative about how you present your basic argument. This is the basic proposition that you will try to support in the rest of your essay.

2. You might want to consider the following questions: How does each justice talk about and balance the values of democracy (conceived here primarily as “majority rule”) and individual liberty? How does Justice Jackson’s opinion in Barnette justify the Court’s departure from the precedent set in Gobitis?

3. This is a “writing assignment.” It does not require any additional or outside research, although you may consult any sources you would like. If you consult any sources, you must list them in a bibliography or reference list. What I am looking for, however, is a close reading of these two judicial opinions. Try to stay close to and to make good use of these texts.

4. If you consult outside sources, or borrow ideas or language from any sources, you must note this and cite specifically to the source and pages, such that I can easily locate your source if I choose to do so. For citations to the texts of the two opinions, you may use a parenthesis and page number, e.g. (pdf, p. 46), or (Gobitis, p. 51).

5. I will be looking for evidence that you have read and considered the “How To” Chapter on how to write papers in college, handed out in class and posted to Blackboard.

6. Good writing counts: (a) use the active voice; (b) proofread and spell check for mistakes; (c) remember that good writing is re-writing; and, (d) above all, be clear.

7. You are encouraged to discuss your paper and the argument you will be making with your classmates and/or with me. Of course, all written work must be entirely your own.

Requirements: Your paper must be between 3-4 pages in length, typed, double-spaced, with a twelve-point font and one inch margins on all four sides.

Your paper must be submitted electronically through “turn it in” on Blackboard before 5:00 PM on Monday, September 16th, AND handed in (hardcopy) in class that day. For late papers, 3 points will be deducted from the grade for every day beyond the deadline.

Consider also the following suggestions:

In some fashion, you should answer the question that you are asked to answer, and not some other question.
Stay close to and make good use of the text. In other words, follow, explicate, and critically evaluate the nature and quality of the arguments (or “reasoning”) in the texts. “Critically evaluate” does not necessarily mean “criticize.” Generally, “critically evaluate” means defend or criticize, or some combination of these things, by giving reasons for taking a certain view of a text or a position on an issue.
Choose words carefully. Keep a dictionary at hand when you write. If you have any doubt about whether you are using a word properly, look it up to check its actual meaning.
Write simple, clear, short sentences. If a sentence goes on for more than two or three lines, consider whether it would be better rendered as two sentences.
Use the active voice, as opposed to the passive voice. Make the agent or actor in the sentence “act.” For example, instead of writing “It was decided by the Supreme Court…” (passive voice), write “The Supreme Court decided that…” (active voice).
Use paragraphs appropriately. Paragraphs should express one idea (and only one idea), or make and develop one point (and only one point). Paragraphs are generally between four and eight sentences long, although this is just a rule of thumb.
Make sure that the overall structure of your paper is both logically ordered and intellectually coherent. Every sentence and paragraph in a paper should do real work in the effort to persuade the reader that the paper’s thesis or argument is sound.

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