American Constitutionalism in Historical Perspective (packet)

Stopping vs. delaying contracts. Not impairing contracts forever (rt vs. remedy) just doing it temporarily in response to the consequences.

Normative rt has transformed into positivist right in Great Depression Moral change in way govt thought about contracts: Madison thought of contract as natural law, moral rt. In Great Depression, took more regulatory, positivistic view of contracts, not basic right.

Ex: Cruel & unusual punishment in 8^th A: in 1781 meant to address torture. Moral view has expanded to excess pain in punishment and so judicial criticism of the DP. See also equal protection clause..

Richardson v. Ramirez 1974 (p.203): Dissent:

1. 
   Just b/c at the time they exempted ex-felons from 14^th A, section 1, d/n mean that now we should do the same. Now more things are considered felonies.
   
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   Our court has extended full section 1 analysis to gender and age (now can vote at age 18)—why not to ex-felons?
   

4. Federalist No. 10 and McCulloch (packet, pp. 205-213)

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   Federalist No. 10
   
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      Background: Madison trying to justify a republican form of gov’t. Most believed a republic could only exist in ethnically homogenous, small community with military imperialism. (Montesquieu). #10 says that you can have republican govt in large, diverse, pluralistic, commercial territory which can be economic republic. Would be more rights respective than Athenians b/c we would have to do business w/ ppl we hate and learn to live w/ others.
      
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         Definition of faction: “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
         
      2. 
         Arguments
         
         1. 
            Federalism argument is procedural and democratic. Madison wanted to design democracy aligned w/n human rts. Congressional negative was political device that was to constrain democratic politics.
            
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