American Constitutionalism in Historical Perspective (packet)

Violates separation of powers—legislature can go after dissenters w/out constitutional protections. Need to have indep prosecutor.

Looks at bills of attainders in Cummings v. VA and Ex parte Garland

1. 
   After Civil War, law d/n allow one to work in profession if still have Confederate loyalty
   
2. 
   Looked regulatory but was still condemned as bill of attainder b/c went after dissent and threatened their civil liberty.
   

Law was retributive b/c was trying to prevent ppl from moving to the left and becoming part of Communist party.

U.S. v. Brown, 1965: Warren looks to the purpose of the bill of attainder, separation of power. Finds the legislature improperly usurping authority from the judiciary. The legislation targets fundamental individual beliefs, stigmatizing a point of view, imposing criminal liability without trial by using communist party membership as proxy for tendency to create political strikes. Penalty is directed at particular group for what they did in the past—retributive. More ex-post facto case

Home Building & Loan Ass’n v. Blaisdell, 1934: Hughes ignores historical context and precedent vs. stay laws and uses interpretive practice of applying the commerce clause. The state law is not extinguishing the debt but only extending the period to repay it and so d/n alter the remedy. Ex: lease enforcement cases -not all impairments of contracts are constitutional impairments of contracts.

1. 
   Argues that must have continuity of interpretive practice. States can exercise their power to prevent economic collapse and d/n violate contract clause. Cites McCulloch “constitution not a code.”
   
2. 
   The fact situation has changed: economic situation of Depression different from economic crisis founders faced, stay laws may not have stabilized their economy.
   
3. 
   Changing values: changing conception of human and property rts so d/n want to give up interpretive practice in area of human rights. Abstract readings are sensitive to changing facts & morals.
   
   1. 
      Fact-sensitive: More flexible abstract meaning of contract clause based on changing facts. Changes in meaning of “commerce among the states” which implies more national power now, and the “rt to be secure in your person and property under the 4^th A.” which can now be extended to electronic bugging.
      
   2. 
      Norm-sensitive: abstract readings sensitive to moral change
      
      1.