PS 3255 Development of the American Constitution

Fall 2018

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

 

News Item

Neal K. Katyal and George T. Conway III, "Trump’s Appointment of the Acting Attorney General Is Unconstitutional." NY Times Nov. 8. (2018).

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.
  • Grading notes.

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

Take-aways

The New Deal era resulted in a dramatic change in reigning interpretations of important constitutional provisions

  • The Commerce Clause -- what is interstate commerce?
  • The Fifth and Fourteenth Amendment proscription of takings of "liberty" without "due process of law"
  • The separation of powers, and the extent to which Congress may delegate quasi-legislative powers to executive branch agencies.

Unlike Reconstruction, this instance of higher lawmaking did not involve Article-V amendments in any way.

  • Ackerman tries to attribute this to the fact that the New Deal proponents were the president and Congress, with the Court providing the resistance.
  • However, he also notes that the administration tried but wasn't able to formulate amendments that (1) would pass quickly and (2) would not present a danger of going too far under later interpretation.

The "ratification" step here involved acceptance of FDR's preferred interpretations by the Supreme Court following the "switch in time." The new doctrines presented in the later, "transformative" decisions play the role of Article-V amendments.

Later attempts at higher lawmaking, Ackerman argues, attempt to place too much emphasis on transformation of the Court and not enough on demonstrating sustained electoral support.

 

FIRST EXAM

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

 

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

  • for Mon. Oct. 1:
    • William M. Wiecek, "The Witch at the Christening: Slavery and the Constitution's Origins" (17 pages). Shared.
    • Klinkner with Smith, The Unsteady March:  The Rise and Decline of Racial Equality in America Chapter 3 (33 pages). Shared. Finish Chapter 3 by Monday.
  • for Wed. Oct. 3: Klinkner with Smith, The Unsteady March, Chapter 4 (29 pages). Shared.

Essay assignment to be turned in Mon., Oct. 1 by students whose last names begin with A-F

  • From the narrative of Chapter 3 of The Unsteady March, choose three government actions—whether by the Court, the executive branch, Congress, or state governments—that limited the civil rights policies put in place by the Reconstruction Amendments and by the principal laws made pursuant to their enforcement clauses: the Civil Rights Acts of 1866 and 1875 and the Enforcement Acts of 1870-71. Choose one weakening action each from the 1870s, the 1880s, and the 1890s or later. In each case, describe, as best you can from the information given by Klinkner, the policies that were weakened, how they were weakened, and by whom.
  • Grading notes.

Two preliminary remarks on Klinckner

Klinkner's main theme overall is: in American history, racial progress follows major wars; and there is always a great reversal of whatever progress is made then—including the present time.

The big questions we'd like to answer with Chapters 3 and 4: what happened to that strong northern support for the Radical Republicans in the 1860s, and how did we get from Reconstruction to Jim Crow?

Other items for class discussion

  • Laws intended to promote civil rights
  • Court decisions and state actions that limited those laws’ effects
  • The growth of “scientific racism” and its applications to history and politics

Notes and Links on Race, The Constitution, and the Jim Crow Era

 

The Civil Rights Revolution

Reading assignments for Oct 8-10:

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

Essay assignment to be turned in Mon., Oct. 8 by students whose last names begin with G-Z

  • Explain briefly how the "Civil Rights Revolution" can be considered, according to Ackerman, as a full cycle of informal higher lawmaking.
  • Grading notes.

Other items for class discussion on Ackerman, "The Living Constitution"

  • Justify or criticize Ackerman's identification of the "functional phases."
  • What role is played by "landmark legislation"? Was there no landmark legislation defining New Deal higher lawmaking?
  • What is a "superprecedent"? What is their role in informal higher lawmaking? Why is Brown considered by some to be a superprecedent? Do you think there are any superprecedents from the New Deal?
  • How does Ackerman compare superprecedents with landmark legislation in defining higher lawmaking?
  • What actions by President Nixon or the Nixon Administration helped consolidate the Civil Rights Revolution?

Notes and Links on The Civil Rights Revolution

Reading assignments for Oct 17:

  • Brown v. Board of Education, Supreme Court decision (1954). Online.
  • The Southern Manifesto
  • Snyder, "How the Conservatives Canonized Brown." Rutgers Law Review (2000). Read the entire introductory section (pages 383-391), and Section II through the end of II A. (pages 414-420) on Nixon's "southern strategy." Online.
  • Denniston, "Opinion recap: Voting law in deep peril." SCOTUSblog (June 25, 2013). (2 or 3 pages.). Online. On the Supreme Court's voiding of the "pre-clearance" provisions of the Voting Rights Act in Shelby County v. Holder (2013).
  • Issues for class discussion

    • What constitutional basis does Chief Justice Warren offer for the Brown decision? Does the decision overturn Plessy?
    • What effect do you suppose Brown and the Southern Manifesto might have had on the legitimacy of the Constitution?
    • (Based on the Snyder article:) What position did Nixon adopt with respect to civil rights in 1968?
    • (Based on the Denniston article:) According to the majority decision in the Shelby County case, what was the majority's argument for why the existing pre-clearance requirements were no longer constitutionally permitted?

     

    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.

    Essay assignment to be turned in Mon., Oct. 22 by students whose last names begin with A-F

    • How did political parties come into being? What role did they play in the early presidential election process?
    • Grading notes.

    Other issues for class discussion

    • How did the Framers envision the presidential election process?
    • In what way did the first presidential election, in 1789, contradict that vision and lead to continued contradiction of it in the future?
    • By the late 1830s and early 1840s, how had attitudes and assumptions about political parties changed from the attitudes and assumptions of around 1800?
    • According to Levitsky and Ziblatt, what is the role of political parties in maintaining American democracy? What change in the "presidential game" weakened parties ability to play that role?

    Notes on parties and elections

     

    The Administrative State

    Reading assignments for Oct 29-31:

    • By Monday: Riggs "Bureaucracy & the Constitution" (equiv about 18 pages). Online.
    • By Monday: Lessig and Sunstein, "The President and the Administration." Online. Skim lightly the whole article (123 pages) for their general intention and claims, but focus your reading on these excerpts (total 40 pages plus recommendations):
      • 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)
        • You can find a short historical backgrounder, if needed, on Jackson's "Bank War" at History.com, the History Channel's website.
      • note the helpful table, pp. 120-123, comparing the original 3 cabinet departments
    • Pierce, "Rulemaking and the APA" (15 pages). Online.
    • Center for Effective Government, "Administrative Procedure Act," summary posted online.

    News item: Many Trump administration attempts to reverse prior administrations' executive actions or regulations have failed in the courts due to insufficient justification, in violation of APA and other procedural restrictions. Case in point:

    • Coral Davenport, "Trump’s Environmental Rollbacks Were Fast. It Could Get Messy in Court." NY Times (Jan. 31, 2018). Online.
    • Lisa Friedman and Coral Davenport, “Judge Blocks Disputed Keystone XL Pipeline in Setback for Trump.” NY Times (Nov. 9. 2018). Online.
    • "The judge said an administration had the right to reverse a previous policy, but still must back up its reason for doing so with facts. 'The Department instead simply discarded prior factual findings related to climate change to support its course reversal,' the judge wrote."

    Essay assignment to be turned in Mon., Oct. 29 by students whose last names begin with G-Z

    • What feature of American constitutional structure does Riggs propose as an explanation for the unusual constitutional stability of the U.S.? How does this effect work?
    • Grading notes.

    Other issues for class discussion

    • How did Congress's design of the original Treasury Department differ from its designs of the Departments of War and State?
    • Is prosecution of federal crimes a purely executive function?
    • What powers does the "Opinions Clause" give the President?
    • What clues outside the constitutional text help in discerning the Founding generation's understanding of presidential powers over the executive branch?
    • In the 1834 controversy over the Second Bank of the US: how did President Jackson's position on presidential powers over the Treasury resemble modern-day "unitary executive" reasoning? How did Senator Clay's argument resemble the view of the First Congress?
    • What is an administrative bureaucracy? How does the Constitution provide for one? Why might one be needed? How does the Administrative Procedures Act help clarify this situation?
    • Does the Constitution contemplate "checks and balances" within the executive branch?

    Notes on the administrative state

     

    5. Informal institutions, watchdogs, and playing hardball

    Court appointments and constitutional hardball

    Slides from Nick's lecture on the politics of judicial confirmations.

    Reading assignments for Mon., Nov. 5:

    • Linda Greenhouse, “A Conservative Plan to Weaponize the Federal Courts.” NY Times (Nov. 23, 2017). Online.
      • Greenhouse's link to the Calabresi memo is dead, but if you'd like to see it, I have posted it in the shared folder.
    • 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 (29 pages; we'll discuss the remainder of the paper, 67 pages overall, on Wednesday). Online.

    Essay assignment to be turned in Mon., Nov. 5 by students whose last names begin with A-F

    • How should the "logic of escalation" come into play when politicians decide whether to engage in hardball politics? How does Goodman resolve this tradeoff in advising Democrats about whether to keep "fighting fair"?
    • Grading notes.

    Other issues for class discussion

    • What is meant by political hardball? Is it good or bad?
    • Trace the sequence of arguably hardball actions on the issue of federal judicial nominations, and assess whether or how each of them meets Fishkin & Pozen's criteria. Which steps reflect the "logic of escalation"?
    • What evidence do Fishkin & Pozen offer that the use of constitutional hardball tactics in recent decades is "asymmetric"? What causes do F&P suggest might lead to such asymmetry? How does this compare to the situation during the New Deal?
    • In particular, what is meant by "constitutional restorationism"?
    • How do F&P suggest that Republican and Democratic ideas of constitutional fidelity differ?
    • Compare F&P's vision (in their conclusion) of potential liberal strategies concerning constitutional hardball with the vision of Goodman.

     

    Hardball

    Reading assignments for Wed., Nov. 7:

    • finish Fishkin & Pozen "Asymmetric Constitutional Hardball" (38 pages remaining)

     

    Watchdogs

    Reading assignments for Mon., Nov. 12:

    • Katyal "Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within." (35 pages). Shared. Postponed from Oct. 31.
    • Adair and Simmons, “From Voucher Auditing to Junkyard Dogs: The Evolution of Federal Inspectors General” (10 pages). Shared.
    • Joe Davidson, "As inspectors general are celebrated, VA tried to intimidate its IG." Washington Post (July 10, 2018) (3 pages). Shared.

    Notes on hardball politics

    Notes on executive watchdogs

     

    SECOND EXAM

    • Review session Monday, Nov. 12
    • Additional study notes for Exam 2. These are to be used in combination with the notes, study questions, and essay grading notes posted above.
    • 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

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    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