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



FALL 2010


A. Declaration of Independence

· Tells us the purpose of Constitution was to enshrine and preserve the political principles articulated in the Declaration of Independence (Lincoln’s view)

· What are these principles?

– That all men are created equal

– We are all equal in our rights – life, liberty and the pursuit of happiness

· So, according to Declaration of Independence, the purpose of gov’t is to promote equality and these unalienable rights

– What implications does this purpose have on 1st amendment?

o 1st amend. involves both state interests on justifications of suppressing speech AND limits on state censorship

B. Role of Courts

· Judicial Supremacy – Supreme Court is supreme interpreter of the Constitution

· Hamilton’s Federalist No. 78

– Although Hamilton doesn’t claim to support judicial supremacy himself, proponents often use Federalist No. 78 to justify judicial supremacy

– Hamilton says that judicial review does not make the Court above Congress, but rather the Constitution is above both Congress and the Court, and the People are above the Constitution; Court srRehould follow Constitution when it is conflict w/a statute b/c the People and the Constitution is above Congress

– But why does Supreme Court get to decide whether a statute is conflict w/Constitution? Why doesn’t Congress get to decide?

o Hamilton’s response: Congress exercises “will” or legislative authority (power to create the law), and Court exercise “judgment” or judicial authority (power to interpret and apply the law) – Court should interpret the Constitution – it is their province to interpret the law

C. Constitutional Interpretation

· It’s important that the Court defers to Congress as the lawmaker and that Congress defers to the Supreme Court as the interpreter of the law

· Sources of Constitutional Interpretation:

1. Constitutional Text

– start interpretation by looking at the text. However, looking at text alone is usually not enough b/c words are often ambiguous, so we must look beyond the text

2. Original Understanding

– May be helpful to look to framers’ intent or the context of writing of the Constitution

– Downside to this source of interpretation: original understanding may be out of date, different world today w/different values, issues, etc.; original understanding is often unclear

3. Judicial Precedent

– Stare decisis – look to prior Court decisions and stand by the earlier decision

– Problems w/ looking to precedent to resolve Constitutional issues:

o Inapplicable if we’re dealing w/a case of 1st impression

o May think the prior decision is outdated or a bad decision

4. Evolving Legal Traditions

– Why look at legal tradition to interpret the Constitution? It provides stability in the law, and tradition can be a natural source of answers – it’s authoritative

– Problems w/legal tradition as a source of interpretation:

o There might not be a clear legal tradition to follow, especially if dealing w/some new issue

o We might not like the past legal tradition – it might be bad now

5. Consensus or Popular Values

– Recent legal traditions may overlap or blur w/consensus values

– Reasons to look to consensus: it’s the People’s Constitution, so we might think the people’s values should be used to interpret the Constitution or authoritative

– Problems/Limits w/consensus values as a source of interpretation:

o It would create a majority rule system

o Might cause instability since people’s opinions change a lot

o Looking to consensus in not looking at law, so maybe it’s not the right method of interpretation

6. “Policy” judgments, natural law, moral philosophy, or the judge’s own values

– Why look to policy as source of constitutional interpretation?

o Court decisions often have policy implications, so policy implications should be considered

o Also, we might say “justice” is purpose of Constitution – so, the policy implications by Court decisions on this purpose should be considered

– Problems/Limits:

o Get into a structural debate about who should be making policy – many think policy-making is legislative branch’s role, not Court’s

o Won’t have any clear answers

D. Judicial Activism and Restraint

1. Judicial Activism

· Court should be non-deferential to the Legislature

· Constitution should be interpreted as a living Constitution – considering the text in light of consensus values of today and policy concerns. Why? Federal Courts are designed to protect minority rights b/c they are the only branch of fed. gov’t not elected, so are only one that doesn’t reflect majority values/views.

2. Judicial Restraint

· Court should be deferential to policy-making institutions – legislature, President, states; Court should respect the majority’s views

· Should interpret text of Constitution based on legal tradition and original understanding and intent

3. Calder v. Bull (1798)

· Justice Chase says in an activist fashion that when interpreting the Constitution we have to consider its purpose – to promote “natural justice.” So, if something is not expressly unconstitutional under the Constitution but is implicitly unjust, then J. Chase would say it would be implicitly unconstitutional

· Justice Iredell’s response (restraint response) is that the reason we wrote the Constitution is so that our original understanding and legal traditions are respected; it’s too uncertain to interpret Constitution based on this loose sense of “natural justice.” If it’s not expressly unconstitutional based upon the text, original understanding, or legal tradition, Court should defer to legislature

D. Living Constitution and the Historical Constitution

1. Living Constitution

· Constitution is flexible, so that it may last for ages after it was written, which means we must emphasize things like consensus values and policy that can respond to changing values and changing facts

2. Historical Constitution

· Key to Constitution isn’t flexibility, it’s constraint – meant to constrain gov’t and allowing Constitution to be interpreted flexibly doesn’t coincide w/Constitution’s purpose of limiting gov’t

· Constitution should be interpreted based on original understanding and older legal tradition, so gov’t is constrained and it must adhere to stable, fixed standards

E. Liberals & Conservatives

1. Liberals – identify w/judicial activists and living Constitution proponents, which also coincides w/judicial supremacy

2. Conservatives – identify w/judicial restraint and historical Constitution proponents; restraint requires following the historical Constitution and following the historical Constitution works to restrain

v Hypothetical: Roper v. Simmons (2005)

· Issue before Supreme Crt. was 8th am. prohibition of cruel punishments and juvenile death penalty (whether death penalty could be enforced for people under age 18, whether it violated 8th amendment)

· Imagining we are judicial activist and living Constitutional proponents, how we would interpret Constitution on this issue:

o Text – doesn’t address punishment for juveniles

o Original understanding – unhelpful here

o Precedent – have some cases saying death penalty is ok for juveniles, but this isn’t dispositive

o Legal tradition –

o Consensus – look at what states are doing today: more states against juvenile death penalty (30), minority in favor of death penalty (20); may also look at how often the states w/juvenile death penalty execute it, which is not often à all this would seem to suggest consensus is against juvenile death penalty

o Policy – deterrence and retribution

· Court: invalidated juvenile death penalty; younger people are less responsible for their action, so aren’t blameworthy enough for punishment of death penalty as retribution for their actions

· Dissent (those closer to judicial restraint and historical Constitution proponents): States should have be able to choose the punishment b/c they have interests that need to be protected; looking at old legal tradition, 16 and 17 yr. olds would be considered adults. Also, of the 38 death penalty states (can’t count ones that don’t have death penalty at all), 20 have juvenile death penalty, so there is no national consensus.

Handout for 8/25 and 8/27/09

· Note 7 quotes on interpretation:

1) Aristotle quote

2) Walt Whitman quote about interpretation – the writing only constitutes the framework for interpretation

3) Thomas Jefferson quote – supportive o

– 1st amendment is a federalism provision meant to protect states’ rights – Jeffersonians agree that seditious speech may be punished but that the states have the authority to punish seditious speech and NOT the federal gov’t b/c the federal gov’t usurped power from the states in passing the Sedition Act, the Act is unconstitutional. It should be up to each individual state to decide whether or not it supports seditious speech prosecutions. – thought the federal govt should not engage in censorship

o Madisonian view (small subgroup of Jeffersonians who followed Madison’s second argument for why Sedition act was unconstitutional)

– Federalism arg. + protected political speech – bc US is based on democracy, and in a democracy, must be able to have protection for political ideas

– Sedition Act was unconstitutional b/c U.S. created a democratic form of gov’t and under that gov’t, it makes no sense for the gov’t to be able to suppress speech of the people (the People must have the authority to criticize the gov’t in order for the democratic process to work)

o In 1798, there was little support for broad freedom of political speech (so little historical support for free political speech shortly after the writing and adoption of the 1A)

o By looking at the different interpretations, difficult to determine what the original understanding was – founders all had different ideas – inconclusive

C. Content-Based Restrictions: Dangerous Ideas and Information

· cases studied here are around WWI time; little free speech discussion b/t Sedition Act of 1798 and WWI Era

· During WWI era, there was support but there was also a lot of domestic opposition. A lot of people who opposed WWI, were German immigrants (b/c we were fighting Germany) and other immigrants whose home countries were on other side of war. WWI was also opposed by isolationists (thought we shouldn’t be intervening in European wars), anarchists, socialists, and pacifists. Many Americans were suspicious of immigrants, especially those who were anarchists, socialists, and pacifists.

· Espionage Act of 1917: made it a crime when the nation is at war for any person (1) willfully to “make or convey false reports or false statements with intent to interfere” with the military success of U.S. or “to promote the success of its enemies,” (2) willfully to “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States”; or (3) to willfully obstruct the recruiting or enlistment service of U.S.

1. Speech That “Causes” Unlawful Conduct – Unlawful Advocacy

a. Espionage Act of 1917 – opposition to WWI – govt trying to stop anti-war movement

b. Shaffer v. United States (9th Cir. 1919)

o Speech at issue was a book that contained anti-war statements that related patriotism w/murder and Satan; speech was thought to violate the Espionage Act of 1917 b/c it was considered to obstruct enlistment/draft

o Bad tendency test – gov’t can punish the conduct if the speech has a bad tendency; constructive intent (intent is inferred from bad tendency of speech – doesn’t have to be clear and imminent.)

o Speech here has a bad tendency, so it is punishable

o Bad tendency test comes from Blackstone (pernicious tendency , subsequent punishment – cases decided by early Federalists (Sedition Act) (p. 1019)

o Elements:

Bad tendency test doesn’t require a lot of clarity or probability, doesn’t require imminence, intent is formally required, but the presumption