TOPIC #17 — EXERCISE OF JUDICIAL REVIEW: CIVIL LIBERTIES

Q1.     What important “democratic” right is not mentioned anywhere in the Bill of Rights? Why do you think this important right is not included in the Bill of Rights?

Q2.     What two different kinds of rights are protected by different Amendments constituting the Bill of Rights? Which of the two kinds of rights probably presupposes a “democratic” or “popular” form of government, and which might be protected even under a non-democratic or non-popular form of government?

Q3.     On what different grounds can the practice of freedom of speech (and, press, assembly, etc.) be justified? On what grounds does John Stuart Mill justify the free expression of political opinions?

Q4.     Suppose that you are a judge who is fully committed to the proposition that the First Amendment secures the free expression of political opinion, as described by Mill? Does this mean that you can straightforwardly decide every freedom of speech that comes before your Court?

Subject/procedural rights (Amends. 4-8) vs. Citizen (political) rights (Amend. 1 + voting rights)

             Deliberation ==>          Decision ==>    Application

           └─────────────┘ └─────────┘                                       └─────────┘              

            1st Amend. rights          voting rights subject rights

            └─────────────────────────────────────────┘

                                             citizen rights

John Stuart Mill, On Liberty (1859):

          established vs. dissenting opinions

          utilitarian justification for freedom of speech

Justice Homes, "free market of ideas"

Problems in interpreting "the freedom of speech"

          speech vs. action

                     "clear and present danger" doctrine

                                Schenck v. U.S. (1919), Dennis v. U.S. (1951), Yates vs. U.S. (1957)

                     "symbolic speech": Texas v. Johnson (1989)

                     does money “talk”? Buckley v. Valeo (1976)

          "rights in conflict"/prior restraint