PS 3255 Development of the American Constitution

Fall 2018

Schedule of readings and assignments below;
see panel at right for other course information.

Click here to jump to CURRENT assignment

 

Outline and Assignments

Notes on sources for readings:

  • "Ackerman WTP2" refers to Bruce Ackerman, We the People. Vol. 2: Transformations.
  • The only other required text is McCormick, The Presidential Game.
  • Some readings can be obtained through direct links in the outline below. If you have trouble obtaining one of these, please let me know.
  • Readings outside the required textbooks and not directly linked below are available in the shared Box folder, indicated by Shared.

1. Introduction

For future reference: some conceptual terminology

(1 week)

Wed. Aug. 29 reading assignment

  • Marshall, "Commentary: Reflections on the Bicentennial of the United States Constitution." Online.
  • Reynolds, "Another View: Our Magnificent Constitution." Online.
  • Sargent, "A group of political scientists says Trump's attacks on our democracy are unprecedented and dangerous." Washington Post (Nov. 7, 2016). Online.
  • Masket, "Is the Liberal Order Really in Crisis?" Pacific Standard (Mar. 13, 2018). Online.
  • Balkin, "Constitutional Rot and Constitutional Crisis." Balkinization blogpost (May 15, 2017). Online.
  • Balkin, "Trumping the Constitution," Balkinization blogpost (June 14, 2017). Online.

Wed. Aug. 29 discussion topics

  • On the Marshall and Reynolds articles
    • Explain Marshall's contention that the Constitution was replaced following the Civil War. How can this be squared with his intention to "celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights" (p. 5)
    • Reynolds calls the original Constitution "the greatest advance for human liberty in the entire history of mankind, then or since" (1346). What liberty-promoting innovations does Reynolds attribute to the Framers of the Constitution?
  • On the Sargent, Masket, and Balkin articles
    • In the political scientists' letter reported by Sargent, what exactly is threatened by the prospect of a Trump presidency? Is the American Constitution threatened?
    • What is the "liberal order" Masket claims is threatened? What is the alternative to a liberal order? How does Masket's worry compare to that of the political scientists?
    • Do those threats amount to "constitutional rot" or to a "constitutional crisis" as described by Balkin?
  • Is the progress of the U.S. Constitution, as seen by Marshall or by Reynolds, at risk because of the factors discussed by Sargent, Masket, and Balkin?

 

Take-aways

from Marshall and Reynolds:

Both emphasize the Constitution’s main role as being the definition and protection of rights. Reynolds also thinks the structure of government it creates the conditions for rights to be developed and defended.

They present different visions of how judges are supposed to apply the constitution

  • Marshall: judges should discern the demands of “equal protection” and “due process” on a case-by-case basis, based heavily on the 14th Amendment and the Bill of Rights. The result: a “living Constitution”
  • Reynolds: judges should examine the constitutional text and history as a guide to its true, original meaning, and uphold the Framers’ understanding of rights

They couch their disagreement in part on whether we have had one or two Constitutions.

  • Reynolds, in particular, believes the Framers set the stage for the eventual perfection of equality under the law, and natural rights in general.
  • Marshall sees the Civil War, the destruction of slavery, and the 14th Amendment as such a huge change and improvement that the result must be seen as, in effect, a new Constitution

from Sargent and Masket

Much of the worry seems to be about the violation of norms of political rhetoric and competition that are seen as necessary to preserving the constitutional system, or at least a democratic liberal order.

How would violation of norms endanger the constitution? Consider the problem of calling into question the legitimacy of elections

  • Trump: “rigged” charge
  • Opponents: “Russians” charge (and Trump refusal to confront it)

What happens if large numbers simply don’t accept an election outcome? Consdier the averted case of the 2000 election.

from Balkin

The idea of constitutional rot: decay in norms & institutions on which democracy depends.

Danger: degeneracy toward hybrid regime, “illiberal democracy”

Source: “the Four Horsemen of Constitutional Rot”

How “propaganda” undermines democratic discourse

 

2. The Major Episodes of Constitutional Development

(3 weeks)

The Framing

Wed. Sep. 5 reading assignment

  • Ackerman WTP2 chs 1-3 (92 pages)

Terms to understand

popular sovereignty; dualist democracy; higher lawmaking; professional narrative; formalism; monopolistic view; hypertextualism

Discussion questions

  • What rules were there for higher lawmaking at the time of the Philadelphia Convention? Where did these come from?
  • What rules governed the activities within the Convention? What rules defined the process for dealing with the Convention's result?
  • How did the newly ratified Constitution gain legitimacy?

Notes and links

Take-aways

The rules were shaky and made up. Some clearly existing rules were dramatically violated. Everybody noticed.

Nevertheless, once the Constitution was (barely) ratified, it attracted the participation of even most of its opponents, and enjoyed widespread legitimacy even to the point of unconstitutionality becoming a powerful argument against the adoption of a policy.

How did this happen? How was legitimacy created for the new constitution?

Some important parts of an answer:

  • Popular sovereignty was widely regarded as a high principle, and its claim was admitted by anti-federalists.
  • Oaths taken by all officials federal, state, and local (Article VI). Oaths were a serious matter in those days. And everybody could see that everybody was taking them.
  • Arguments for the constitution related it to shared political principles, such as republican values of rule of law, freedom, civic virtue.
  • It answered (if not ideally for everybody) some important domestic and foreign policy needs.
  • In the developing party politics of the new nation, both sides claimed adherence to the constitution as one of their highest values.

 

An aside:

The NY Times's anonymous op-ed of Sept. 5

 

Reconstruction

Reading assignments

  • for Mon. Sep. 10: Ackerman WPT2, chapters 4, 5, 6 (87 pages)
  • for Wed. Sep. 12: Ackerman WTP2 chs 7, 8 (67 pages)

Essay assignment to be turned in Mon., Sep. 10 by students whose last names begin with A through F in the alphabet.

Other discussion items for Chapters 4-5-6

  • What constitutional justifications were suggested for Reconstruction? That is, on what basis could Congress exclude the seceded states from Congress? Occupy them militarily? Require them to ratify certain new constitutional amendments? What problems arise with each explanation?
  • What were the “two cycles” of higher lawmaking that followed the Civil War? What events accomplished their respective “phases” (signal, proposal, etc.)? (Part of the answer will depend on the material in Chapters 7 and 8.)
  • Explain why the each of the following meet Ackerman’s definition of a “convention”:
    • Parliament following the Glorious Revolution of 1688;
    • The Philadelphia Convention of 1787;
    • The 39th Congress.

Discussion items for Chapters 7-8

  • What expression of popular sovereignty could be said to have legitimated the higher lawmaking of Reconstruction?
  • Why are President Andrew Johnson and the Supreme Court important to the process of higher lawmaking that was accomplished by the Radical Republicans in the 39th and 40th Congresses?
  • How was Reconstruction “consolidated” as higher lawmaking? Ackerman explains this by describing the processes of "triggering," "ratification" (going beyond the mere state legislative approvals of Amendments), and "consolidation."

Notes and links

  • The Qualifications Clause (Art. I Sec. 5): "Each House shall be the judge of the elections, returns and qualifications of its own members"
  • The Guaranty Clause (Art. IV Sec. 4): "The United States shall guarantee to every state in this Union a republican form of government""
  • The Reconstruction Amendments
  • The Reconstruction Congresses

Take-aways

Reconstruction, and the ratification of the Reconstruction Amendments, was an episode of higher lawmaking that in important respects did not conform to the Article V process.

  • The strict forms of Article V were observed: proposal by 2/3 vote of House and by Senate, of members present and voting; ratification by legislatures in 3/4 of the states.
  • Yet certain constitutional notions and republican principles were stretched: how could the exclusion of Southern Senators and representatives from Congress be justified? Was ratification in the former confederate states coerced and hence not free?

Yet the Amendments were and are accepted as such. How did they gain such legitimacy?

Constitutional visions following the war:

  • Presidential reconstruction: emancipation; and re-establishment of the Union on constitutional terms otherwise identical to those in use prior to the Civil War.
  • Congressional reconstruction: imposition of federal enforcement of equal political and civil rights upon states, both during Reconstruction, and potentially permanently.
    • This was admittedly an imperfect achievement: enforcement in the South weakened quickly, and was never imposed on Northern states.
  • The Radicals' vision: permanent disfrachisement of the former rebels; redistribution of Southern lands to the freed people.

How institutionally-based political resistance mades informal higher lawmaking possible in Reconstruction: the requirement for frequent national elections, and the entrenchment and empowerment of opposition in major institutions of government (here, the presidency and the Supreme Court), simulteaneously made it difficult to carry out informal higher lawmaking but also afforded the ability to demonstrate sidespread and sustained popular support for it.

 

The New Deal

Some background: Law in the Lochner era

Reading assignments

  • for Mon. Sep. 17: Ackerman WPT2, chapters 9, 10, 11 (90 pages)
  • for Wed. Sep. 19: Ackerman WTP2, chapters 12, 13 (75 pages)

Essay assignment to be turned in Mon., Sep. 17 by students whose last names begin with G-Z.

  • What factors helped set up the 1936 election as a "triggering election," a sort of interim referendum, on the constitutionality of the New Deal? Discuss not just the issues at stake, but also the actions of politicians, officials, and supporters during period leading up to the election.

Other discussion topics for Chapters 9-11

  • What is the "myth of rediscovery"? Why does Ackerman criticize it in connection with the history of the New Deal?
  • In the end, what would you say was the central "proposal" in New Deal higher lawmaking?
  • What Article V amendments were proposed to accomplish this goal? Why was that approach not pursued?

Discussion topics for Chapters 12, 13

  • What events does Ackerman point to as having marked the consolidation of the New Deal transformation
  • What distinction does Ackerman make between the Supreme Court decisions about New Deal policies immediately after the "switch in time" and decision made after the Court had amassed a majority of FDR appointees?
  • How does Ackerman characterize and criticize attempts at higher lawmaking under the Reagan and George H.W. Bush administrations?
  • How does Ackerman's proposal for a revamped formal higher lawmaking process reflect the processes he observed in Reconstruction and the New Deal?

Notes and links

 

FIRST EXAM

  • Review session Monday Sep. 24
  • In-class exam Wednesday Sep. 26

 

3. The Constitution, Race, and Civil Rights

(2 1/2 weeks)

From the Framing to the Jim Crow Era

Reading assignments for Oct 1-3:

  • William M. Wiecek, "The Witch at the Christening: Slavery and the Constitution's Origins." Shared.
  • Klinkner and Smith, The Unsteady March:  The Rise and Decline of Racial Equality in America Chapters 3 and 4 (63 pages). Shared. Finish Chapter 3 by Monday.

 

The Civil Rights Revolution

Reading assignments for Oct 8-10:

  • Ackerman, "The Living Constitution" (75 pages). Shared. Parts I and II by Monday.

Reading assignments for Oct 17:

  • (Ackerman on anti-subordination)
  • Snyder, "How the Conservatives Canonized Brown," (Intro section only, pp. 383-391)
  • (TBA on reverse discrimination; Shelby decision)

 

4. Gradual Development of Institutions

(2 weeks)

Political Parties and Presidential Elections

Reading assignments for Oct 22-24:

  • McCormick, The Presidential Game. Chapters 1-3 (72 pages) and pages 182-206 from Chapter 6. Finish Chapters 1-3 by Monday.
  • Steven Levitsky and Daniel Ziblatt, "How a Democracy Dies." The New Republic (Dec. 7, 2017). Online.

 

The Administrative State

Reading assignments for Oct 29-31:

  • By Monday: Riggs "Bureaucracy & the Constitution" (equiv about 18 pages)
  • By Monday: Lessig and Sunstein, "The President and the Administration." Skim lightly the whole article (123 pages) for their general intention and claims, but focus your reading on these excerpts (total 38 pages):
    • Introduction and Part I (pp. 2-11)
    • Part II, sections A-B (ending at top of 32)
    • Highly recommended: Section C, pp. 32-38
    • Section II G (including the concluding material for Part II: pp. 78-85)
    • note the helpful table, pp. 120-123, comparing the original 3 cabinet departments
  • Center for Effective Government, "Administrative Procedure Act," summary posted at https://www.foreffectivegov.org/node/226
  • Pierce, "Rulemaking and the APA" (15 pages)
  • Katyal "Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within." In folder on "administration and civil service." (35 pages)

 

5. Informal institutions, watchdogs, and playing hardball

Court appointments and constitutional hardball

Reading assignments for Mon., Nov. 5:

  • Linda Greenhouse, “A Conservative Plan to Weaponize the Federal Courts.” NY Times (Nov. 23, 2017). Online.
  • Rob Goodman, "Hey Democrats, Fighting Fair Is for Suckers: Court-packing! Puerto Rican statehood! Votes for felons! Why—and how—the next Democratic majority should play dirty." Politico (July 04, 2018). Online.
  • Fishkin & Pozen "Asymmetric Constitutional Hardball," sections I and II (25 pages; we'll discuss the remainder of the paper, 63 pages overall, on Wednesday).

Hardball and watchdogs

Reading assignments for Wed., Nov. 7:

  • finish Fishkin & Pozen "Asymmetric Constitutional Hardball" (63 pages total)
  • Adair and Simmons, “From Voucher Auditing to Junkyard Dogs: The Evolution of Federal Inspectors General” (10 pages).
  • Joe Davidson, "As inspectors general are celebrated, VA tried to intimidate its IG." Washington Post (July 10, 2018) (3 pages).

 

SECOND EXAM

  • Review session Monday, Nov. 12
  • In-class exam Wednesday Nov. 14

 

Independent justice?

Reading assignments for Mon., Nov. 19:

  • Green & Roiphe "Can Pres Control the DoJ?" (66 pages).

 

6. Presidential Removal

Reading assignments for Nov. 26-28:

  • Matthews, "9 Questions about Watergate…" Vox
  • Kutler "In the Shadow of Watergate: Legal, Political, & Cultural Implications" (21 pp.)
  • Rich, "Trump+Watergate" (10 pp.)
  • Klarman, "Constitutional Fetishism and the Clinton Impeachment Debate" (28 pp.)

Reading assignments for Dec. 3-5:

  • Brian Kalt, "The Case Against Using the 25th Amendment to Get Rid of Trump." New York Magazine (Oct. 14, 2017) (2 pp.) http://nymag.com/daily/intelligencer/2017/10/the-case-against-using-25th-amendment-to-get-rid-of-trump.html
  • Gillian Metzger, "Impeachment: Partisan Warfare or Defending the Constitutional Order?" Blogpost (6/19/2018) on Lawfare.

 

FINAL PAPER

due Wed. Dec 12

  • TBA

This page written by Randall Calvert ©2018

Mon. & Wed. 2:30-4:00, Seigle 301

Instructor:  Randall Calvert
WU email: calvert
Office hours:  Tu-Th 4:00-5:00; Fri. 1:30-2:30; and by appointment, in Seigle 238

Assistant to the Instructor: Nick Waterbury
WU email nwaterbury
Office hours Thu. 2-4, Seigle 255

jump to CURRENT assignment

Course Description
Requirements
Instructions for Weekly Essay Assignment
Useful Links

Topic outline: to go to details
1. Introduction
2. The Major Episodes of Constitutional Development
FIRST EXAM
3. The Constitution, Race, and Civil Rights
4. Gradual Development of Institutions
5. Informal institutions, watchdogs, and playing hardball
SECOND EXAM
6. Presidential Removal
FINAL PAPER