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

Professor Nowlin
Spring 2005
–          Declaration of Independence
o       Declared independence from Britain and created a political community
o       Declared it is a right of the people to revoke or abolish a govt.
o       List of grievances:
§         Listed examples of how the British govt. violated their natural rights
§         A list of what a govt. should not do
o       Wanted a govt. that would protect natural rights with the foundation of power derived from the governed (the people)
§         Wanted a Republic:
o       A govt. with limits of some kind
·         A representative govt.
·         Federalism
·         Separation of Powers
·         Individual rights
–          Constitution
o       A Constitution creates a govt.
§         Defines the form, substance, powers, limits, rights, values, & beliefs
§         US Constitution created to protect the natural rights espoused in the Declaration of Independence
–          Alexis de Tocqueville, Democracy in America
o       There is hardly a political question in the US which does not turn into a judicial question
§         Lawyers and judges can’t refrain from imposing their own aristocratic values and distaste for representative govt. when ruling on the law
·         Hard not to constrain and shape laws into their own perception
–          Texas v. Johnson (1989)
§         TX had a statute criminalizing American flag desecration
o       S. Ct. invalidated the TX law
§         It would be a core violation of the 1st Amendment and Free Speech if the govt. prohibited expression merely because they disagree with it
·         Anti-populist decision
o       Concurrence:
§         Unfortunately, flag burning is a constitutional right
§         The S. Ct. needs to remain impartial
·         Even though the act sickens the Court, they must not let personal feelings (will) get in the way of interpreting the Constitution
o       Dissent:
§         Govt. merely prohibiting one form of protest, not prohibiting the idea or expression itself
·         Can do other things to express dislike for America
§         The act of burning the flag was done purely to antagonize others
·         The Court draws a line with speech all the time that threatens others, the peace, etc… (Fighting words, Fire!)
o       This was an unpopular decision
§         Congress passed a Flag Protection Act the after this decision, but the Act was struck down
·         Court said need to pass a constitutional amendment
§         Most states had a flag protection statute
§         President, Congress, & majority of public supported protection of flag
–          Marbury v. Madison
o       S. Ct. declared that Court does not have power to issue writ of mandamus
§         Section 13 of the Judiciary Act of 1789 granted Court the power
§         Constitution specifies ways the Court has original jurisdiction:
·         Article III, Section 2, paragraph 2
o       Congress can NOT alter Court’s original jurisdiction
§         Congress can alter the Court’s appellate jurisdiction
o       Marshall read Section 13 as trying to alter the original jurisdiction of the Court
o       Viewed as genesis of Judicial Review by invalidating the statute saying it conflicts with the Constitution
§         Marshall makes the argument that the Court should have final, authoritative say on what is Constitutional or not, but does not specifically claim it
·         It is emphatically the province and the duty of the judicial department to say what the law is.
o       Separation of powers argument
§         Also makes the Article III language argument and the oath argument (see arguments for judicial supremacy below)
–          Constitution is supreme and would trump any statute in conflict:
o       Constitution is fundamental law of the nation governing the people
o       Creates the legislature and creates the power of the legislature that passed the statute
o       Constitution creates limits on the power given to the govt.
o       Article VI Section 2 – Supremacy Clause
–          McCulloch v. Maryland (1819)
o       First clear statement of Judicial Supremacy
§         “By this tribunal alone…”
§         Only the US S. Ct. has this important duty
–          Cooper v. Aaron (1958)
§         Civil Rights case – Arkansas failed to comply with desegregation
o       Asserts the federal judiciary is supreme in the exposition/interpretation of the law and Constitution
§         The Court is entrusted with the special and distinct role as ultimate guardians of the meaning of the Constitution
·         The govt. should look to the Court’s interpretation of the Constitution and take it is authoritative
Power of Constitutional Interpretation:
–          Legislative Supremacy
o       Congress has the supreme authority to interpret the Constitution
§         Jeffersonian extreme
–          Executive Supremacy
o       President has the supreme authority to interpret the Constitution
§         NO known followers
–          Judicial Supremacy
§         The Supreme Court has final authority to interpret the Constitution
·         Modern view
o       Since end of 1880’s judicial supremacy has reigned
o       Majority of Federalist Party
§         Marbury viewed as the seminal case of judicial supremacy, but does not specifically claim it
·         McCulloch & Cooper makes definite, unequivocal declaration
§         If the Court declares a law unconstitutional, should not simply re-pass law or make minor modifications
·         Must have a good-faith belief that law is Constitutional
§         Different branches can disagree with the Court on Constitutionality
·         May try to exert political pressure
o       Ex. FDR threat to pack bench
o       Arguments in favor of Judicial Supremacy:
§         Separation of Powers
·         It is the job of the judiciary to interpret law and the Constitution
o       Legislative is to create law
o       Executive is to enforce the law
·         Questions of law and the Constitution require a legal interpretation and should belong to he judiciary
§         Article III language, “Arising under…”
·         Language specifies that the Court has the power
§         Oath
·         The Court took an oath to uphold the Constitution and Constitutional laws created by Congress
o       Oath says nothing about upholding laws that are in violation with the Constitution
·         Judiciary has to make its’ own determination, as is essential according to the separation of powers
§         Settlement Thesis
o       Derived from McCulloch
·         Only the institution of the S. Ct. can maintain peace and stabi

ionality of any act or law of the US lies with the Supreme Court
§         Otherwise, the states would be blending together legislative and judicial functions and is a less competent tribunal than the S. Ct.
§         Would create discord and unrest with no resort but to resort to force to enforce views
§         Violates Separation of Powers
·         Blends legislative and judicial powers
o       Interpreting the Constitution should left to the judiciary; not the state legislatures
§         Settlement Argument
·         If the states start to disagree regarding the interpretation of the Constitution, it will result in violence
o       Risk tearing the country apart
·         Nullification is one step away from secession
§         If state governments reign supreme over state constitution, then federal govt. should reign supreme over national constitution
–          National Supremacy vs. Departmentalism
o       1790s – nullification crisis
o       1830’s – SC nullification crisis vs. Pres. Jackson
o       1860’s – Civil War
o       1960’s – States resistance to Civil Rights Act; threatening nullification
Methods of Interpretation
–          Alexander Hamilton, Federalist Papers No. 78
o       The Constitution is supreme over all branches of the government
o       The Court is merely enforcing the people’s will of the Constitution over Congress
§         Power will be OK as long as the Court exercises judgment (interpreting) and not will (law making)
§         Judgment: (methods of interpretation)
·         Text
o       What does the text say?
§         May not be clear on complex issues
·         Original intent
o       What did the drafters of the Constitution intend?
§         May be very useful when there is evidence available
·         There may have been a debate originally
§         A source of constraint
·         Judicial precedent
o       Look to previous interpretations of the Constitution
§         Will help resolve questions once build up case law
o       Will provide a sense of constraint of future courts as well as present court
·         Evolving legal traditions
o       Look to the fundamental values as they have evolved over time; what people have done over time
o       A more flexible approach
·         Consensus or popular values
o       Not a reflection of long standing values, views
§         Essentially, a Gallup Poll
o       It’s the people’s Constitution; therefore, it should reflect the current values of the people
o       More flexible
·         Natural law, values
o       The Constitution is supposed to promote and protect natural rights
–          Judicial Activism vs. Judicial Restraint