American Constitutionalism in Historical Perspective (packet)

Amendment XIV, sec. 2: “But when the right to vote at any election … is denied to any of the male inhabitants of such state, … or in any way abridged, except for participation in rebellion, or other crime…”

Textual and historical argument prevails. Text expressly removes criminals from rt to vote, other states at time of 14^th A disenfranchised ex-felons, so founders were aware & w’ve fixed it if wanted to do so.

Connotations: a way in which words can be defined and applied, suggests a broader purpose. Words can be applied to the same thing but have different connotations. (morningstar/eveningstar – both Venus (same denotation), but different times of day). Terms invite different contextualization according to different circumstances. Allows for change (commerce clause in 1787 vs. now). Pressure to abstractness in order to give meaning to constitution in modern times.

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   Williams v. Florida, 1970: White relies on anti-originalist interpretation based on connotation – a body of lay people interposed between the judiciary and D. Rejects CL understanding of 12 member jury, unanimous verdict. Leaves policy decision to the state. Intent is set by connotative meaning and it’s up to every generation to do this.
   
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      Viscinage” and “accustomed requisites” are excluded from 6^th A which White says to mean that founders d/n want to constitutionalize their denotative meaning of jury. .
      
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      Relies on the purposes of the jury guarantee and intent of founders to have jury of sufficient size to be representative and resist tyranny: 6 person jury captures connotative function as well as 12.
      
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   Lovett v. US, 1946: Black relied on connotative interpretation to find that the state was criminally punishing these workers for their views. Though not w/in originalist meaning of bill of attainder and ex post facto law, finds compelling reason to make this reading. Need to look at effect of Congress which has force of legislative punishment w/out judicial trial using legislative standards.
   
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