American Constitutionalism in Historical Perspective (packet)

C. Historiography, Political Theory, and Interpretation (packet, 135-204)

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   Denotations: what word applies to. Originalists want to stay close to word’s meaning given by founders, particularly if based on similar fact and value situation. Looks at founders’ intent and history.
   
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      Williams v. Florida, 1970: disagreement over the word jury. Denotative meaning was 12 ppl and unanimity. White majority chooses to follow connotative meaning of 6 ppl (faster decisions, other countries have < 12 ppl)
      
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         Harlan dissent criticizes use of connotative meaning as unprincipled (why 6 not 8?). The choice of 6 over 12 and unanimity is a legislative one, the judiciary should stay out unless have a compelling reason (stare decisis). Here, founders valued protection of human rights and thought this was a good way to do it, should leave it alone.
         
         1. 
            History of protection vs. religious theocracy in power using 12 man jury, viscinage (jury comes from local community) & unanimity although not explicitly mentioned in text
            
         2. 
            Same skepticism about the power of govt today as at the founding.
            
         3. 
            Smaller jury less likely to be rep of minorities, more likely to convict, critical in DP states.
            
      2. 
         But if stick to Harlan’s originalist meaning of jury, it would also reject women and property owners.
         
   2. 
      Lovett v. US, 1946: Fed statute identified govt officials as Communists and eliminated their salaries to prevent gov’t participation. Frankfurter dissent argued that since there was no death penalty or corruption of the blood this w/n within the originalist meaning of bill of attainder and ex post facto laws.
      
      1. 
         Bill of attainder
         

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   Parliament passes legislative act that says a person/group is guilty of a crime.
   
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   No judicial trial and imposes death.
   
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   Corruption of the blood, even children are guilty—instrument of TERROR
   

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   Ex post facto: Attempt to give retroactive application of criminal law.
   
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      Legality: c/n be guilty of crime not on the books at time of the crime-no new crimes w/out notice.
      
   2. 
      No higher punishments retroactively
      
   3. 
      C/n render punishment more likely by passing law of evidence that eases prosecution.
      
1. 
   U.S. v. Brown, 1965: Criminal statute banning members of communist parties from having positions in Unions. White dissent finds this case not about bills of attainder, court should have relied on 1^st A violation, if c/n make case there, d/n have one.
   
   1. 
      Honors separation of powers and procedural guarantees b/c there is no attempt to conceal criminal law, will go thru prosecutor, judges and jury so NOT ex post facto.
      
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      Label is overinclusive and underinclusive—free speech concept
      
2. 
   Home Building & Loan Ass’n v. Blaisdell, 1934: states impairing contracts during Depression by extending payment periods to prevent default. Looks like state is impairing the contract and Article I, Section X forbids state to do this, however desirable this may be.
   
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      Dissent: Sutherland (p.188) argues that this situation was similar to economic problems as the founding (after disastrous Articles of Confederation) that led to the inclusion of the contracts clause in response to stay laws passed by the states (forbidding stay laws no matter the emergency).
      
   2. 
      Founders debated & resolved this issue. Fear that loose interpretive stance can lead to abrogation of other clear rts like free speech and religious liberty and threaten united economy.
      
3. 
   Richardson v. Ramirez, 1974: CA constitution forbids convicts from voting. Rehnquist says this is OK since explicitly mentioned in the constitution.
   
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