Taking Sides: Clashing Views on Legal Issues

This twelfth edition of TAKING SIDES: LEGAL ISSUES presents current controversial issues in a debate-style format designed to stimulate student interest and develop critical thinking skills. Each issue is thoughtfully framed with an issue summary, an issue introduction, and a postscript. An instructor’s manual with testing material is available for each volume. USING TAKING SIDES IN THE CLASSROOM is also an excellent instructor resource with practical suggestions on incorporating this effective approach in the classroom. Each TAKING SIDES reader features an annotated listing of selected World Wide Web sites and is supported by our student website, www.dushkin.com/online.

PART 1. Law and the Individual

ISSUE 1. Should Persons Who Are Declared to Be "Enemy Combatants" Be Able to Contest Their Detention Before a Judge?

YES: Sandra Day O’Connor, from Majority Opinion, Hamdi, et. al. v. Rumsfeld, U.S. Supreme Court (June 28, 2004)

NO: Clarence Thomas, from Minority Opinion, Hamdi, et al. v. Rumsfeld, U.S. Supreme Court (June 28, 2004)

Supreme Court Justice Sandra Day O’Connor finds that the Authorization for Use of Military Force passed by Congress does not authorize the indefinite detainment of a person found to be an "enemy combatant." Justice Clarence Thomas believes that the detention of an "enemy combatant" is permitted under the federal government’s war powers.

ISSUE 2. Is Abortion Protected by the Constitution?

YES: Sandra Day O’Connor, from Majority Opinion, Planned Parenthood of Southeastern Pennsylvania et al. v. Casey et al., U.S. Supreme Court (1992)

NO: William H. Rehnquist, from Dissenting Opinion, Planned Parenthood of Southeastern Pennsylvania et al. v. Casey et al., U.S. Supreme Court (1992)

Supreme Court Justice Sandra Day O’Connor upholds a woman’s constitutional right to abortion under most circumstances and reaffirms the central holding of Roe v. Wade. Supreme Court Chief Justice William H. Rehnquist argues that Pennsylvania regulations on abortion should be upheld and that it is appropriate to overrule Roe v. Wade.

ISSUE 3. Are Restrictions on Physician-Assisted Suicide Constitutional?

YES: William H. Rehnquist, from Majority Opinion, Washington et al. v. Glucksberg et al., U.S. Supreme Court (June 26, 1997)

NO: Stephen Reinhardt, from Majority Opinion, Compassion in Dying v. State of Washington, U.S. Court of Appeals for the Ninth Circuit (1996)

Supreme Court Chief Justice William H. Rehnquist rules that although patients have the right to refuse life-sustaining treatment, physician-assisted suicide is not constitutionally protected. Judge Stephen Reinhardt argues that forbidding physician-assisted suicide in the cases of competent, terminally ill patients violates the due process clause of the Constitution.

ISSUE 4. Do People Have a Legal Right to Clone Themselves?

YES: Cass Sunstein, from “The Constitution and the Clone,” in Martha C. Nussbaum and Cass R. Sunstein, eds., Clones and Clones: Facts and Fantasies About Human Cloning (W. W. Norton, 1998)

NO: Cass Sunstein, from “The Constitution and the Clone,” in Martha C. Nussbaum and Cass R. Sunstein, eds., Clones and Clones: Facts and Fantasies About Human Cloning (W. W. Norton, 1998)

Professor of law and political science Cass Sunstein, writing as fictional Supreme Court Justice Monroe, argues that the right to cloning is analogous to established rights of reproductive privacy and autonomy and is therefore constitutionally protected. Professor of law and political science Cass Sunstein, writing as fictional Supreme Court Justice Winston, argues that the constitutional protection of “reproductive choice” does not extend to the decision to replicate oneself.

ISSUE 5. Does the Sharing of Music Files Through the Internet Violate Copyright Laws?

YES: Ruth Bader Ginsburg, from Concurring Opinion, Metro-Goldwyn-Mayer Studios v. Grokster, U.S. Supreme Court (June 27, 2005)

NO: Stephen Breyer, from Concurring Opinion, Metro-Goldwyn-Mayer Studios v. Grokster, U.S. Supreme Court (June 27, 2005)

Justice Ginsburg believes that the copyright laws are violated by a company when its software is used primarily for illegal file sharing, and lawful uses in the future are unlikely. Justice Breyer does not want the copyright laws to hinder technological innovation and is more willing to take into account the potential use of the software for lawful file sharing.

ISSUE 6. Should the Insanity Defense Be Abolished?

YES: Jonathan Rowe, from “Why Liberals Should Hate the Insanity Defense,” The Washington Monthly (May 1984)

NO: Richard Bonnie, from Statement Before the Committee on the Judiciary, U.S. Senate (August 2, 1982)

Editor Jonathan Rowe examines the insanity defense as it is now administered and finds that it is most likely to be used by white middle- or upper-class defendants and that its application is unfair and leads to unjust results. Professor of law Richard Bonnie argues that the abolition of the insanity defense would be immoral and would leave no alternative for those who are not responsible for their actions.

ISSUE 7. Can the Police Require Individuals to Identify Themselves?

YES: Anthony Kennedy, from Majority Opinion, Larry D. Hiibel v. Sixth Judicial District Court (June 21, 2004)

NO: James P. Logan et al., from A Brief for the Petitioner Hiibel v. Sixth Judicial District Court (2004)

Supreme Court Justice Anthony Kennedy holds that requiring an individual to identify himself does not violate the right to remain silent and does not infringe rights guaranteed by the Fourth and Fifth Amendments. In a brief filed by the Office of the Nevada State Public Defender, the argument is put forward that when persons are detained on less than probable cause, it is unconstitutional for police to demand that such persons identify themselves and provide the police with their names.

PART 2. Law and the State

ISSUE 8. Do Religious Groups Have a Right to Use Public School Facilities After Hours?

YES: Clarence Thomas, from Majority Opinion, Good News Club et al. v. Milford Central School, U.S. Supreme Court (June 11, 2001)

NO: David Souter, from Dissenting Opinion, Good News Club et al. v. Milford Central School, U.S. Supreme Court (June 11, 2001)

Supreme Court Justice Clarence Thomas affirms the right of religious groups to use school facilities after the school day ends, maintaining that restricting such use is a violation of free speech rights. Supreme Court Justice David Souter, dissenting from the Court’s opinion, contends that the use of school facilities by religious groups blurs the line between public classroom instruction and private religious indoctrination and therefore violates the establishment clause of the Constitution.

ISSUE 9. Does the Use of High-Technology Thermal Imaging Devices Violate the Fourth Amendment Search and Seizure Guarantee?

YES: Antonin Scalia, from Majority Opinion, Danny Lee Kyllo v. United States, U.S. Supreme Court (June 11, 2001)

NO: John Paul Stevens, from Dissenting Opinion, Danny Lee Kyllo v. United States, U.S. Supreme Court (June 11, 2001)

Supreme Court Justice Antonin Scalia maintains that thermal imaging devices reveal information “that would previously have been unknowable without physical intrusion” and that using such devices for surveillance without a warrant constitutes a violation of the Fourth Amendment. Supreme Court Justice John Paul Stevens asserts that the Court’s application of search and seizure rules to new technology is too broad and that collecting thermal imaging data from outside the home is not a violation of privacy rights.

ISSUE 10. Are Laws Requiring Schools and Public Libraries to Filter Internet Access Constitutional?

YES: William H. Rehnquist, from Majority Opinion, United States et al. v. American Library Association, Inc. et al., U.S. Supreme Court (June 23, 2003)

NO: John Paul Stevens, from Dissenting Opinion, United States et al. v. American Library Association, Inc. et al., U.S. Supreme Court (June 23, 2003)

Supreme Court Chief Justice William H. Rehnquist rules that a federal law withholding funds from public libraries that fail to install filters on computers that are connected to the Internet does not violate the First Amendment. Supreme Court Justice John Paul Stevens argues that filters on computers that are connected to the Internet are flawed and that the Children’s Internet Protection Act violates the First Amendment.

ISSUE 11. Does the "Cruel and Unusual Punishment" Clause of the Eighth Amendment Bar the Imposition of the Death Penalty on Juveniles?

YES: Anthony Kennedy, from Majority Opinion, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons, U.S. Supreme Court (March 1, 2005)

NO: Antonin Scalia, from Minority Opinon, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons, U.S. Supreme Court (March 1, 2005)

Supreme Court Justice Anthony Kennedy holds that the Constitution prohibits the execution of a person who was under the age of eighteen at the time of the offense. Supreme Court Justice Antonin Scalia believes that the Constitution does not preclude the execution of a juvenile.

ISSUE 12. Is a Sentence of Life in Prison for Stealing $150 Worth of Videotapes Constitutional?

YES: Sandra Day O’Connor, from Majority Opinion, Bill Lockyer, Attorney General of California, v. Leandro Andrade, U.S. Supreme Court (March 5, 2003)

NO: David Souter, from Dissenting Opinion, Bill Lockyer, Attorney General of California, v. Leandro Andrade, U.S. Supreme Court (Mar ch 5, 2003)

Supreme Court Justice Sandra Day O’Connor rules that a decision in a case involving the theft of $150 worth of merchandise that resulted in two consecutive terms of 25 years to life in prison for a "thi...