State Good AC

Framing
Because there is no objective truth as to what is just, and those
concepts are only created through interaction of individuals, then any
claim of justice must arise from the individual,
Parrish 1,
Perhaps the single most telling quote from Hobbes on this point comes from The Philosophical Rudiments Concerning Government and Society (usually known by its Latin name, De Cive), in which he states that “to know truth, is

truth is a function of language,

the same thing as to remember that it was made by ourselves by the very usurpation of the words.” “For Hobbes logic and

not of the relation between language and some extralinguistic reality”

so the “connections between names are not natural.” They are and objects artificially

constructed by persons, based on individual psychologies and desires. These desires are individual for

the only measure of good and bad, because value terms “are ever
Hobbes

used with relation to the person that used them, there being nothing simply and absolutely so, nor

[there is not] any common rule of good and evil to be taken from the
nature of objects themselves.” Since “there are no authentical
doctrines concerning right and wrong, these labels are placed good and evil,”

upon things by humans in acts of creation rather than discovered as

extrinsic facts.
It is impossible for the statement that something ought to be done to
be false before the creation of the covenant of the state.
Parrish 2,

nothing is owed to a person before the conclusion of a

“Hobbes seems to determine that
contract. "injustice is no other than the not
He puts this most bluntly in Leviathan, where he writes that

performance of covenant," and he expands this idea by explaining that "where

no covenant hath preceded, there hath no right been transferred, and
every man has right to everything; and consequently, no action can be
unjust." "the breach or violation of covenant, is that which
143 Elsewhere Hobbes writes that

men call injury, consisting in some action or omission, which is

therefore called unjust,"144 which again shows that no person owes or

1 Derrida`s Economy of Violence in Hobbes` Social Contract, Richard Parrish

is owed anything at all by nature, that is, before expressly agreeing to
it.”
The responsibility to reconcile different ideologies of what is just falls
onto the most powerful entity. This means it is the state’s
responsibility to reconcile the differences between them and create a
common standard for morality, because they are definitionally the
most powerful entity,
Parrish 3,

the sovereign’s most fundamental job is

All of the foregoing pints to the conclusion that in the commonwealth first and

to be the ultimate definer. Several other commentators have also reached this conclusion. By way of elaborating upon the importance of the moderation of individuality

peace “is possible only if the ambiguity and

in Hobbes’ theory of government, Richard Flathman claims that

disagreement that pervade general thinking and acting are eliminated

by the stipulations of a sovereign.” Pursuant to debunking the perennial misinterpretation of Hobbes’ mention of people as wolves, Paul Johnson

the primary functions of the sovereign is to provide

argues that “one of unity the necessary

of meaning for the primary terms in which [people]

and reference conduct men try to

their social lives.” “The [purpose in the sovereign’s ruling] whole raison d’entre of sovereign

lies in the defusing of interpretive clashes,” without which

helmsmanship squarely chronic

humans would “fly off in all directions” and fall into the violence of inevitably

the natural condition.

We can never question the sovereign's interpretive choice – to do so
is unintelligible.
Parrish 4,

“There is to be no question of the truth or falsity of the sovereign's

definitions because "there are no authentical doctrines concerning
right and wrong, good and evil, besides the constituted laws in each realm
and government."67 In fact, Hobbes specifically says that one of the "diseases of a
commonwealth" is that "every private man is judge of good and evil
actions."68 Only when individual persons agree to follow the meanings
promulgated by the sovereign, which of course includes refraining from
trying to impose their own meanings on others, can persons live
together in peace -- when they take it upon themselves to impose
meaning on situations of public import, they descend into violence again.”
The State is the only entity that can define what is true. All other
theories fail because they rely on the meanings of words.
 My sole contention is to preserve the constitution.
The constituted laws in the United States are found in the constitution
and the Supreme Court’s rulings.
Madison 1787, Article VI of the Constitution of the United States of America

Th[e] Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be
the supreme law of the land; and the judges in every state shall be bound thereby.
The Supreme Court makes laws in pursuance of the constitution.
Hughes 32, Cornerstone Address
"EQUAL JUSTICE UNDER LAW"-These words, written above the main entrance to the Supreme Court Building, express the ultimate

The Court is the highest tribunal in the

responsibility of the Supreme Court of the United States.

Nation for all cases and controversies arising under the Constitution or the
laws of the United States. As the final arbiter of the law, the Court is charged
with ensur[es]ing the American people the promise of equal justice under
law and, thereby, also functions as guardian and interpreter of the
Constitution. The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed.
Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much
influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the
history of nations and of jurisprudence. "The representative system of government has been adopted in several states of Europe," he remarked,
"but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more
imposing judicial power was never constituted by any people." The unique position of the Supreme Court stems, in large part, from the deep
commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an
unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy"
with the oldest written Constitution still in force. The Constitution of the United States is a carefully balanced document. It is designed to
provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect
the guaranteed rights of citizens; it permits a balance between society's need for order and the individual's right to freedom. To assure these
ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided
continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of
government. The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions
which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial
responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to

While the function of judicial review is not explicitly

complicated new situations.

provided in the Constitution, it had been anticipated before the adoption of

that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions.
Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton
and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the
Constitution. Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as
expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of
the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather
than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining,
Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit. Despite this
background the Court's power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice
John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that
the Supreme Court's responsibility to overturn unconstitutional legislation
was a necessary consequence of its sworn duty to uphold the Constitution.
That oath could not be fulfilled any other way. "It is emphatically the province of the judicial

department to say what the law is," he declared. In retrospect, it is evident that constitutional
interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that
document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in
McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal
code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its
important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
The Constitution limits the Court to dealing with "Cases" and "Controversies." John Jay, the first Chief Justice, clarified this restraint early in the
Court's history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The
Court does not give advisory opinions; rather, its function is limited only to deciding specific cases. The Justices must exercise considerable
discretion in deciding which cases to hear, since approximately 7,000-8,000 civil and criminal cases are filed in the Supreme Court each year
from the various state and federal courts. The Supreme Court also has "original jurisdiction" in a very small number of cases arising out of
disputes between States or between a State and the Federal Government. When the Supreme Court rules on a constitutional issue, that
judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the
Court. However, when the Court interprets a statute, new legislative action can be taken. Chief Justice Marshall expressed the challenge which
the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . .
intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

The Constitution is the constituted law of the sovereign. To question it

is nonsensical.
College codes restrict constitutionally protected speech, which
includes hate speech and all other types of speech,
Juhan 12
R.A. V. v. City of St. Paul concerned a city ordinance banning symbols
that aroused anger, alarm, or resentment based on [the category of the
individual.] race, color, creed, religion, or gender.21 Local youths burned a cross on a black family's
yard; forgoing an array of available charges such as trespass or vandalism, the city prosecuted the youths under the ordinance.22 Even

though the Minnesota Supreme Court construed the statute to cover

only "fighting words,"23 the U.S. Supreme Court found the ordinance
unconstitutional because it outlawed speech "solely on the basis of the
subjects the speech covers."24 The regulation represented both content and
viewpoint dis crimination, causing the ordinance to be presumptively and facially
invalid.25 Most importantly for this Note's purposes, the Court [said] that
hate speech is a category of speech to which Amendment protection
applies.26 Thus, R.A.V. "seriously under mines the basic theory supporting the use of campus [speech] codes,"27 severely limiting the
methods universities may use to combat hate speech.28 After R.A.V., the Supreme Court passed judgment on a cross burning statute in Virginia
v. Black™ The defendants were prose cuted for burning crosses during Ku Klux Klan rallies in rural Virginia.30 The Court upheld as constitutional
the Commonwealth's ban on such burnings when they are conducted with intent to in timidate.31 From this, one could plausibly argue that a
state may regulate hate speech generally. Two reasons cut against that conclusion, however. First, as the Court noted, cross burning has a
uniquely pernicious history, as it represents a virulent form of intimidation that often signals im pending violence.32 Thus, cross burning is
distinguishable from the purely verbal epithets that are often the subject of campus speech codes. Second, the Court held unconstitutional
Virginia's law that made cross burning per se evidence of the intent-to-intimidate element required to convict under the statute.33 Thus, while
Black suggests that at least some hate speech (cross burning) can be regu lated if done "with intent to intimidate," something exogenous to the
hate speech itself must serve as evidence of intent. As a result, as long as hate speech is not accompanied either by conduct or a bold-faced
statement of intent to intimidate, it will be difficult to make the necessary showing.34 All told, Black (1) applies to a narrow, historically unique
subset of hate speech that (2) is symbolic, rather than pure, speech, and (3) does not disturb R.A.V.'s conclusion that hate speech generally falls
within the First Amendment's ambit. At first glance, the sixty-year-old case Beauharnais v. Illinois35 seems to imply that the government can
regulate hate speech in a manner consistent with the First Amendment. Beauharnais, who distributed racist pamphlets, was convicted under a
state statute outlawing portrayals of classes of citizens of any "race, color, creed or religion" as "deprav[ed], criminal[], unchastfe], or lackfing]
in virtue."36 The Supreme Court upheld the conviction as a valid criminalization of "group libel."37 Subsequent changes in libel and First
Amendment law, however, leave Beauharnais's authority du bious. Although the view is not unanimous,3S the weight of opinion from an
ideologically diverse list of scholars holds that, in the wake of New York Times v. Sullivan? Brandenburg v. Ohio,40 R.A.V.,41 and other cases,
Beauharnais is now bad law.42 With that brief survey of Supreme Court doctrine in tow, a discussion of lower court cases regarding college
hate speech and speech codes is in order. Although a number of cases could be discussed,43 this Note focuses upon three cases that are among

the earliest and most widely cited on the topic of campus hate speech. During the late 1980s, the University of
Michigan adopted a "Policy on Discrimination and Discriminatory
Harassment" that forbade and punished verbal or physical behavior
"stigmatizing or victimizing" individuals on the basis of, among other
categories, their race, sex, religion, sexual orientation, or veteran status.44
Students violating the policy were subject to formal or informal proceedings that
could result in sanctions ranging from reprimand or compelled community service
to suspension or expulsion.45 An anonymous psychology graduate student filed suit, fearing that he would be charged
under the policy if he led a classroom dis cussion on controversial theories of biologically based differences between sexes and races.4" In
Doe v. University of Michigan, a fed eral district court permanently enjoined
parts of the policy that re stricted speech.47 Since its enactment, the court held
that the policy [was]"consistently applied to reach protected
speech."48 The court cited three [an] example[] of the university
regulating protected speech: one in which a student voiced his opposition to homosexu ality; one in which a
student read an allegedly homophobic limer ick in a public speaking class; and one in which a student, during a

class discussion about expected difficulties with the course, expressed

that he had heard minorities were not treated fairly by the grading
system.49 Thus, the Court declared that the policy was overbroad
facially and as applied, in addition to being vague.50 In UWM Post v. Board
of Regents, the University of Wisconsin faced a similar challenge to its
system-wide policy on racist and dis criminatory conduct.51 Nine documented
incidents resulted in sanctions under the policy, most of which involved
either vile, profane, and offensive name-calling or derisive comments based on
the lis tener's race or sex.52 The court declared the policy overbroad and
void for vagueness; it also rebuffed the university's arguments for the
policy under the fighting words doctrine and Title VII.53 Lastly, in Iota Xi
Chapter of Sigma Chi Fraternity v. George Mason University, the U.S.
Court of Appeals for the Fourth Circuit affirmed summary judgment against George
Mason University when school officials sanctioned a fraternity for its
"ugly woman con test," wherein fraternity members dressed in drag as a
fundraising ploy.54 During the event, one member dressed as an offensive, stereotyped caricature of a black woman.55 Several
students decried the event's "racist and sexist implications" and met with a univer sity administrator, who agreed that the event created a

"hostile learning environment" and imposed sanctions on the organization and its members. 56 The court found that
the sanctions violated the fraternity members' free speech rights, noting
that the production was protected and that the university discriminated against
the group on the basis of the speech's content and viewpoint.57 Notably, the university did not
base its sanctions on any formal, written policy, but instead reached its decision based on an ad hoc, discretionary decision by a single
administrator.58 Once litigation commenced, a university administrator's affidavit offered a "mis sion statement" trumpeting principles of
diversity,59 but it hardly provided ex ante notice to the students. Moreover, the school's Vice President claimed that the fraternity's behavior
"was com pletely antithetical to the University's mission."60 That may well have been true, but the sanctions ignored the fact that enforcement
of the school's mission had to operate within First Amendment constraints. Administrators' ability to make ad hoc, discretionary judgments

The lesson of the

regarding hate speech is an important issue that Part II will address in greater detail.

aforementioned cases is straightforward: hate speech is generally

protected by the First Amendment.61 There is no general First
Amendment exception for offensive, prejudiced, or demeaning speech.62
Moreover, as UWM Post and other sources make clear, the fighting words
exception[] has been narrowed to such an extent that hate speech is
unlikely to fit within it.64 Taking this doctrine as a launching point, Part II explores how and why it has not been
adhered to in higher education.

Since the resolution says that public universities ought not restrict any
constitutionally protected speech, and to restrict parts of the
constitution is to question the state, then we ought to affirm the
resolution. If we cross-apply Parrish 4, then to question the
constitution is nonsensical. There is no truth without the sovereign’s
laws. You must affirm.