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

Professor Nowlin
Spring 2006

– 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 – division of power between federal government and states
· Separation of Powers – 3 branches; balance and diffuse power to prevent tyranny
· Individual rights
· Judicial Review – power of S. Ct. to invalidate legislation it feels in conflict with the Constitution
– 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
· Lawyers have special duty to treat Constitution with respect and reverence
– 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
Pros of Judicial Review:
1. Separation of Powers: part of the form of our government; another Constitutional check to balance and diffuse power.
2. Popular Sovereignty: Simply enforcing the Constitution (e.g. 1st Amendment), which was ratified by the people. [Can also argue bad interpretation.] 3. Uniformity of the law over the states
4. Protection of political minorities
5. Protection of Constitutional rights: through Constitutional remedies
6. Consistency

Cons of Judicial Review

iary to say what the law is given through the separation of powers – Courts to interpret the law
(b) if such a duty exists, must uphold Constitution over statute
(c) Constitution binds the judiciary as much as the legislation under the Constitution
(2) Article III: arising under – judiciary has jurisdiction over all cases arising under the con
(3) Oath:to uphold the Constitution

– 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) – 1st time court says we believe Marbury stands for Judicial Supremacy
§ 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
President has the supreme authority to interpret the Constitution