Select Page

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

Fall 2013
a.      The origins of the US Const.
                                                              i.      Declaration of Independence
1.      Justification for Declaration of Ind. is that British gov. was becoming despotic, ceasing securing natural rights, and violating those rights.
2.      What is the relation of list of grievances to the preamble? List of grievances shows how the British gov. violated its power and became despotic, justifying declaring independence.
3.      How is it that list of grievances is like a Bill of Rights? It is the list of things that the gov. cannot do, so it was the foundation of the list of things in the Bill of Rights that the gov should do.
4.      In what sense do the US Const and Declaration of Ind. Relate?
a.       Before creating a US Const., there should be US (as a nation), and Declaration creates the US as political community. Both documents also set out laws and basic values. The Const. constitutes the framework for federal government.
b.      The Declaration sets out our ideals and values, and basic principles that are the heart of the Const. (according to Lincoln). NR declared in the Decl is the picture and Const is the frame – Const’s purpose is to promote NR.
c.       How does e.g. free speech right of the Const. is connected more specifically to Decl. of Ind.? If there is somebody who threatens to kill somebody? The individual will say he exercised his free speech rights, and the state will say that it has police powers to protect the public. The connection to Decl. Ind. is that there are rights of both stages – state interests and individual rights. Natural right is kind of a gloss of the 1A.
5.      What kind of gov do you expect the drafters of the Declaration to create? democratic, representative, federalism, republic, no monarchy, rights and mechanisms for enforcement of those rights, separation of powers.
b.      The SOURCES of Judicial Decisions: “Text, ‘Representation-Reinforcement, and Natural Law
                                                              i.      Federalist 78 – Hamilton’s arguments
1.      The ct and the congress are on the same level, but the const trumps the statute, so if there is a conflict – the ct may invalidate the statute, b/c the const was created by the people and the congress was elected by the people.
2.      Another argument – congress has will – power to create law, and the ct has judgment – power to interpret and apply law. Supreme ct may only exercise the judicial power.
                                                            ii.      Major sources of constitutional interpretation. How do we know whether the law exercised judgment or will? What do we look at whether the judge uses his judgment?
1.      legal materials – text – US Const. best meaning of the Const is in the C.
2.      original understanding – intent
a.       will – politics
b.      judgment – make sure that the cts exercise judicial power rather than legislative power
3.      precedents – stare decisis, predictability in the law. Cts can overrule precedents, but they are not entitled to ignore them, unlike legislature.
4.       Evolving legal traditions – how long have states have done this, how many states – will of the people.
5.      Consensus or contemporary values – SCt sometimes melt legal traditions and contemporary values together.
6.      Policy judgments – natural law, morality, judge’s own values. What is the difference b/w policy judgment and politics exercising the will?
a.       Imposing their judgments on society?
                                                          iii.      Judgment v. will
1.      Judgment
a.       Text
b.      Precedent
c.       Original understanding
2.      Will
a.       Text
b.      Precedent
c.       Legal traditions
d.      Consensus of popular values
e.       Policy – own values
                                                          iv.      Natural Law – its role in const-l interpretation
1.      Calder v. Bull 1798
a.       Justices Chase and Iredell disagreed on the role of natural law in the const-l interpretation.
                                                                                                                                      i.      Justice Chase: Any legislature that goes against our values is wrong and it is up to the court to declare it void, even w/o constitutional provision that authorized the ct to do so. Goes directly to policy.
                                                                                                                                    ii.      Justice Iredell: the very fact that the C was written down, authorizing or prohibiting certain acts, means that the ct does not have authority to tell the legislature what to do. Also, natural law is abstract and people differ on natural justice. Goes to text to interpret the C.
                                                                                                                                  iii.      Summary: since early history justices applied different tools to interpret the C.
                                                            v.      Judicial Activism v. Judicial Restraint – related debate to debate over the role of natural law in constitutional interpretation
1.      Judicial Activism – Justice Chase
a.       justice – moral conception of justice, individual rights
b.      policy, contemporary values, recent legal traditions, text
c.       less deferential to elected officials
d.      exercise substantial amount of political discretion in determining the meaning of const-l provisions
                                                                                                                                      i.      motivational force behind judicial activism – concern with gov’l violations of individual rights and distrust of ordinary politics as a means of protecting those rights
2.      Judicial Restraint – Justice Iredell
a.       emphasis on stability, constitutional structures that limit courts, law
b.      precedent, text, original understanding, older legal traditions
c.       more deferential to elected officials
d.      minimize their political discretion

ce. If we had speech suppression, that would lead to more conflict b/w political parties
                                                            ii.      History of free expression
1.      1A – Congress shall make no law … abridging the freedom of speech, or of the press
2.      Sedition Act of 1978 – “false, scandalous, and malicious writing against the gov of the U.S.” S.Ct. never ruled on the act, expired in 2 years.
3.      Based on its history, what is potential meaning of speech clause?
a.       Blackstonian view – c/l: freedom of speech is no prior restraints, but subsequent punishment based on the speech’s bad tendency is OK. Prior restraint is licensing of the press.
b.      Madisonian view – self-governance, US is a popular sovereignty, freedom of speech means freedom to talk about politics and the government. Only political speech is protected from both PR and subsequent punishment.
c.       Federalist reading (Hamilton in the Federalist Papers) – “Congress shall make no law” – 1A forbids the Congress from censoring, but the Const. leaves the matter to the states.
4.      Originalist interpretation of speech clause? Not much, b/c there was no single view.
5.      Espionage Act of 1917 – caught the ct’s view.
b.      Content-based restrictions: Dangerous ideas and information
                                                              i.      Speech that causes unlawful conduct – Unlawful advocacy
1.      Considerations by the cts of Espionage Act – tests
a.       Shaffer v. U.S. (9th Cir 1919) (mailed a book Finished Mystery condemning American war efforts, by saying that patriotism is in fact murder in the spirit of the devil) Ct: if speech has a reasonable and natural effect to obstruct the recruiting or enlistment service – no 1A protection. Bad Tendency Test – focus on intent
                                                                                                                                      i.      bad tendency of speech
                                                                                                                                    ii.      mental state – constructive intent inferred from bad tendency b/c one intends the natural and foreseeable consequences of his acts.
b.      Masses Publishing Co. v. Pattern (SDNY 1917) (postmaster refused to deliver issues of the Masses b/c it was against the Espionage Act. Express Incitement Test (Learned Hand): if the content of speech is expressly inciting, only then can Congress regulate – contrary to democratic principles to do otherwise. Focus on content of speech.