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

Constitutional Law II Outline
Jack Nowlin Fall 2005

I. Introduction: Constitutional Interpretation and the Judicial Review
A. Hamilton’s Federalist No. 78 defends judicial review by distinguishing b/t:
1. “Judgment” – judicial power, and
2. “Will” – legislative power
B. Hamilton’s Federalist No. 78 predate Marbury v. Madison (judicial review of constitutionality of congressional decisions)
1. These decisions are not saying that the SC outranks the legislature but that they are on equal standing and that the constitution outranks or governs all three branches.
a. People à Constitution à SC, Legislature, Executive
2. Using the constitution the judicial branch acts as a neutral body to enforce the will of the people (i.e. judgment v. will)
C. Separation of Powers
1. The legislature makes the law but the courts apply, interpret, and enforce the law on the legislature (Legal interpretation is not the job of the legislature)
a. Legislature – Supreme in making laws
i. Power to make law = will
ii. Leg. can’t make and enforce
b. Courts – supreme in applying laws
i. Power to apply/interpret law = judgment
ii. Court can’t make and interpret
D. Interpreting the Law: sources of Constitutional interpretation
1. Constitutional text
a. Best evidence of the meaning behind the constitution
b. Forced to go beyond the text b/c it is vague and open to different interpretations (i.e. what is a “search” or “free speech”)
2. Original Understanding: What did the composers really think? (what did they in 1792 actually think “free speech” meant?)
a. Historical background gives answers we may not get from the actual text
b. Original intent is authoritative b/c it is evidence of what those who wrote and ratified a text that we have followed for centuries based that text on (offers context)
3. Negatives of this approach: times change and facts, traditions, and situations evolve in ways that were unforeseen to the founders Precedent (Judicial Precedent)
a. Changing courts may have insight
b. Continuity: A slow evolution of the law and its interpretation allows for a stable form of governmen

pports judicial restraint “ the constitution denies the court the right to make or unmake the law b/c they don’t like it.”
a. Can’t turn on open ended policies
b. Look to original intent, precedent, and legal tendencies
c. Also argues Chase’s approach violates the separation of powers
F. The Judicial Role: Judicial Restraint v. Judicial Activism
1. Restraint or “passivist” conception:
a. Judges are deferential to democratic decision makers (leg.)
b. Ground their decisions firmly in the text of the constitution and in traditional legal sources
c. Minimize political discretion
d. Rejects expansive judicial policy making in areas of political importance and controversy
i. Driving foundational concerns:
· Popular sovereignty
· Representative democracy (represents majority)
· Separation of powers
· Federalism
Bicameralism