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

Constitutional Law II Outline
I. Introduction
A. Notes on Constitution and Interpretation and the Judicial Role
1. Declaration of Independence
-declared independence and created the United States as a separate nation
-listed several reasons/justifications for the separation (list of grievances)
-grievances were all violations of natural rights
-since the English crown violated the colonists’ natural rights, the people can alter or abolish that tyrannical government because the point of government is to protect its citizens’ natural rights

a. Relation with the Constitution
-Constitution lays out the violated rights and institutes safeguards to protect those rights
-purpose of the Constitution is to protect the rights in the Declaration of Independence
-Constitution is to protect natural rights

b. Relation with the First Amendment
-ex. censorship
-state is exercising a state interest while the individual is exercising a liberty interest (speech)
-if a person tells another they are going to “kill them,” the individual has a right to freedom of speech while the state (through anti-terrorism threat statutes) has a right to prevent such threatening language (state interest in prohibiting threats is the protection of the public from violent threats, a police power)
-gov has to protect natural rights of all citizens and protecting people from threats (a form of crime under the statute) must be balanced with protecting free speech

2. Hamilton’s Federalist No. 78 (will v. judgment)
-function of the legislature is to make law (will)
-function of the judiciary is to apply/interpret the law (judgment)
-the Constitution, as the supreme law of the U.S., created both Congress and the Supreme Court, so both branches are governed by it
-if Congress then passes a statute that violates the Constitution, it is the role of the Supreme Court to apply the Constitution to the legislation and strike down those that violate the Constitution
-the people, via the Constitution, therefore, are above the Congress and Supreme Court
-the S.C. is not above Congress, it is the people’s will (Constitution) that is above the statute
-the only way for this system to work is if the courts exercise judgment and not will
-if they exercise will, they would effectively be re-writing the Constitution and would assert its self as supreme to the other branches

3. Sources of Constitutional interpretation
a. Text
b. Original Understanding
c. Judicial Precedent
d. Evolving Legal Traditions
e. Consensus of Popular Values
f. “Policy” Judgments, Natural Law, Moral Philosophy, or Judges’ Values

-judicial restraintists and those believing in a historic Constitution will concentrate on a, b, and c while judicial activists and those believing in a living Constitution will concentrate on d, e, and f

4. Calder v. Bull (Justice Chase v. Justice Iredell)
a. Chase
-could be called an activist who emphasizes natural rights
-if a statute violates a natural right, it should be struck down as unconstitutional because the Constitution was drafted to protect natural rights
-anything that violates natural rights, therefore, must at least implicitly violate the Constitution

b. Iredell
-could be called a restraintists judge who emphasizes text and history
-if a statute goes against the Constitution, it should be struck down simply because the Court is bound by the Constitution to apply the Constitution to the laws passed by Congress
-if Court enforces violations of natural rights, it is imposing its will and not interpreting the Constitution

5. Activism v. Restraintists Justices
a. Judicial Activists
-overriding concern is to protect those natural rights that are not protected in the democratic process (i.e. minority rights)
-associated with “living” Constitution
-Constitution that evolves and changes over time as American values and ideals change
-emphasis on reflecting ideals and administering contemporary justice

b. Judicial Restraintists
-overriding concern is to protect the democratic ideal of majority rule
-associated with “historical” Constitution
-Constitution that has stayed the same through history (some changes through legal traditions, but not through changes in ideals)
-emphasis on stability and governmental restraint

II. Freedom of Expression
A. Philosophy of Free Expression
1. Marketplace of Ideas
-free exchange of ideas will lead to competition and the truth will win out
-but this assumes that people are rational and will always choose the “best” option
-can lead to a government that only supports the majority and suppresses the minority

2. Self-government
-free exchange of ideas is essential in a democracy where the people govern through voting
-if gov could tell the people what they could and could not talk about, they would tell people not to talk about the gov and limit people’s abilities to govern themselves

-people decide what others can and cannot say in a self-governing system and those in power will limit the availability of freedom of expression to those without power
-may only protect political/public speech and suppress non-political speech (art/literature)

3. Individual Autonomy
-as individuals with ability to speak, we have the freedom to exercise that right and speak
-people have the basic freedom to

nlawful Action
-the Espionage and Sedition Acts of 1917 and 1918 were the first issues relating to free speech to capture the attention of the S.C.
-acts were passed in preparation for WWI to ensure the gov could conduct the war effectively and did not want people speaking out against the war effort and draft
-victims of acts were usually German-Americans who were opposed to WWI
-also socialists and pacifists

1. Schaffer v. United States (1919)
-P violated act by shipping a book that condemned the war effort
-“Patriotism is killing in the spirit of the devil”
-concern was not the words in the book but that “the natural and probable effect would be to impede the war effort”
a. Bad Tendency Test
-speech could constitutionally be punished as an attempt to cause forbidden/undesirable conduct if it has a bad tendency and done with conductive intent

2. Masses Publishing Co. v. Patten (1917)
-postmaster refused to mail the “revolutionary” newsletter the publisher wanted delivered and so the P filed an injunction
a. Majority
-wanted to focus on the Content of the speech and not the Intent

i. Express Incitement Test
-if someone has expressed and express incitement for someone to break the law, then the gov can limit that speech
-if not, then the gov cannot restrict that speech
-must say it is in someone’s interest or duty to violate the law in order to have your rights restricted

3. Schenck v. United States (1919)
-Ds were charged with violating the Espionage Act for passing out pamphlets describing how the draft was wrong and encouraging those drafted not to acknowledge it
a. Justice Holmes
i. Clear and Present Danger Test
-gov can punish speech when it creates a clear and present danger to the gov
-Holmes said that the timing of the pamphlet, handed out in the middle of the war, present the danger to the draft being obstructed
-critics have said that this is just another way of applying the Bad Tendency Test

ii. Test Factors
-clear means clarity with a relatively high probability
-present means is must be imminent
-requires a high degree of danger
-look to the express language