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Constitutional Law I
University of Mississippi School of Law
Nowlin, Jack Wade

Professor Nowlin        Spring 2015
Constitutional Law-Day 01 [1.22.15] Declaration of Independence:
§  Declared American independence from British rule and explains their reasoning as to why.
Ø  Considered by the Crown to be an act of treason on part of the colonies.
Ø  If the government has violated the unalienable rights set out by the Declaration of Independence, then the People have a right (almost an obligation) to revolt
Ø  Created a government in order to protect us the People from each other as well as our natural rights. (If the govt. becomes tyrannical, the people can revoke consent from the govt.)
§  People decide if the government is necessary, what kind of government to have, the purpose of the government (to secure rights), and the form of government we have.
§  Foundation: We the People
§  Purpose: Secure Rights (Unalienable); Equality; Life, Liberty, and the Pursuit of Happiness
§  Form: Limitations places on the government; “Republican” type with certain structures and rights (democracy, jury trial, federalism, etc.)
United States Constitution:
§  Constitutes: People (Political Community); Framework (of Rights and Structures [representative democracy, separation of powers); Values; Aspirations (and Principles); Mission Statement (The Preamble.)
Case #1: Texas v. Johnson, 491 U.S. 397 (1989) –email
§  In 1984, Gregory Lee Johnson burned an American flag outside of the National Republic Convention in Dallas, Texas.
Ø  In protest of the policies of President Ronald Regan
§  Johnson was arrested and charged with violating a Texas statute that outlawed the desecration of a venerated object, including the American flag, especially if it incited anger among others.
§  A Texas court tried and convicted Johnson which he appealed and argued that his actions were “symbolic speech” which was protected by the 1st amendment.
Ø  Supreme Court resulted in a 5 to 4 vote in which 5 justices stated that Johnson’s desecration of the flag was protected by the 1st amendment right of freedom of speech. 
Ø  The opposing 4 justices were backed by the President, Congress, States (45+), Polls (the People), yet they still were outnumbered.
§  Johnson v. Texas emphasizes that the courts have the power of interpretation over judicial issues.
*** Homework: Pgs. 25-38 n. 4, 44-47, 55, 65-69, Handouts 1.22.15***
Constitutional Law-Day 02 [1.27.15] Alexis de Tocqueville, Democracy in America (1835) –email
§  Concerning lawyers, judges, and the courts, Tocqueville believes that:
Ø  Judges cannot force the legislature to pass laws but can invalidate the law through judicial review if he believes that it contradicts what is set out by the Constitution.
Ø  The courts are generally more aristocratic.
§  We are taught such ideas in our first year of law school because we are believed to be a part of the group of individuals that will ultimately affect the laws.
Case #1: Marbury v. Madison [5 U.S. (1 Cranch) 137 (1803)] §  William Marbury was the Federal appointee of John Adams being appointed as a justice of the peace as Adams was on his way out of office.
§  Marbury is requesting a writs of mandamus.
Ø  James Madison was the secretary of state to Thomas Jefferson at the time and the Jeffersonian reps. refused to deliver the papers.
Ø  John Marshall was the secretary of state who failed to get all of the commissioning papers submitted by the end of the term. (Did not recue himself in the case.)
§  A number of questions were asked in order to determine if Marbury had a right to his commission papers:
Ø  Question One: Has the applicant a right to the commission he demands?
v  Yes. Anyone appointed to office that needs proof of their appointment must have access to the proper documentation to show such appointment.
v  There is a seal and signature on the commission which entitled Marbury access to it.
Ø  Question Two: If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
v  Marbury does have a right and a remedy is offered by the Federal courts.  
Ø  Question Three: If they afford him a remedy, is it writs of mandamus issuing from this court?
v  Yes, the remedy is appropriate for writs of mandamus.
v  No, the Supreme Court cannot issue the writs of mandamus in this jurisdiction.
·         Article III § 02 of the Constitution establishes the constitutional scope of the Federal court’s powers.
·         In dealing with the Judiciary Act of 1789 (Act of Congress), the court declares a subsection of this statute unconstitutional being that it conflicted with Article III of the Constitution.
§  This case was brought about directly in the Supreme Court making it a case of original jurisdiction. (writs of mandamus: court order to do something; if original jurisdiction)
Ø  Original jurisdiction: The Supreme Court is the original decision maker in a case.
Ø  Appellate Jurisdiction: The lower courts are the original decision makers in the case and
                                       the case was appealed up through the court system.
§  In the case, the Supreme Court is not classified as having original jurisdiction since that is designated to foreign diplomats and states but rather being classified as all else making it fall under appellate jurisdiction.
§  It is not clear that there actually is a conflict between Article III of the Constitution and the Judiciary Act of 1789.
Ø  May be interpreted to confer original jurisdiction.

in their sovereign capacity- popular sovereignty.
Ø  Written Constitution makes all else void since it would only have been written for the purpose of being enforced.
Ø  Supremacy Clause of Article VI of the Constitution states that the Constitution is the supreme law of the land (expressly stated in the document.)
§  Judicial Power:
Ø  Under the Separation of Powers, it is the province and duty of the judicial department to establish what the law is. (Article III of the Constitution-Judicial Power)
Ø  Judges take an oath where they swear to uphold the Constitution.
Ø  Article III provides that the Supreme Court is given the power, by expressed language, to hear cases that arise under the Constitution. (arising under language)
Ø  Constitution binds the court meaning that the court is required to follow Article III of the Constitution and cannot go beyond the limitations set by the document.
The powers in Marbury v. Madison are:
Ø  Judicial Supremacy: States that the Supreme Court is supreme in the exposition of the Constitution, binding the Supreme Court, President, etc. (modern view of the case)
Ø  Departmentalist Co-Ordinate Review: the Court has the power of judicial review, Congress the power of legislative review, and the President the power of executive review with all powers being equal. (contemporary view of the case)
Case #1: McCulloch v. Maryland [17 U.S. (4 Wheat.) 316 (1819)] §  This case is a supplementary judicial review case or Federalism case.
§  Facts of the case:
Ø  Congress wants to create a bank of the United States and the state of Maryland argues that Congress is not given the power to do so.
v  The states argue that only they are given the power to create state banks.
v  If Congress is allowed to do so, Maryland argues that it has the right to tax the bank.
·         Ultimately, the Federal govt. is allowed to create a bank of the United States and Maryland is prohibited from taxing the bank.
§  Settlement Thesis: The best way to ensure that the constitutional divisions are settled in a peaceful manner is to bring it to the Supreme Court.
Ø  Each party agrees to abide by the Supreme Court’s decision and to obey the law of the land.