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Dates and durations approximate.
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Outline and Assignments
Note: Readings outside the required textbooks not directly linked below are available from this course's Blackboard site.
Reading assignment for Thursday Sept. 1
- Marshall, “Commentary: Reflections on the Bicentennial of the United States Constitution.” (in reserve readings list on Blackboard)
- Reynolds, “Another View: Our Magnificent Constitution.” (Blackboard)
- "The Mount Vernon Statement" (Blackboard)
- Geoffrey R. Stone, "Our Fill-in-the-Blank Constitution." NY Times Apr. 14, 2010. Click here to obtain online.
- Schmidt, "The Tea Party and the Constitution." Only through Part II required (24 pages). (Blackboard)
- What is constitutional conservatism?
- If one is not a constitutional conservative, what might be one’s approach to the Constitution be instead?
- What is the connection between the goals of the Tea Party movement and the Constitution?
- Ted Cruz's emphasis on his "constitutional conservatism" in his run for the Repubilcan presidential nomination
- the discussion in the current presidential campaign of the Supreme Court
2. Framing Institutions
Reading assignment for Tuesday Sept. 6
- Ackerman book, chapters 1-3 (At least chapter 1 and 2 by Tuesday)
- The Articles of Confederation
Essay Assignment for Tuesday Sept. 6
Ackerman claims he is going to establish a new and different argument about how, in the U.S., legitimate constitutional change is accomplished. What is his new argument? How does it differ from the conventional account -- either according to Ackerman, or according to the other accounts you have read in the course so far? Comments on Sept. 6 essay and grading.
Some additional study questions
1. Terms to understand in Ackerman: higher lawmaking; dualism; the monopolistic view; the "professional narrative"; formalism; popular sovereignty
2. What do "rules of recognition" have to do with the rule of law?
3. What formal and informal rules about higher lawmaking existed prior to the Philadelphia Convention?
4. What rules governed the process of writing and ratifying the Constitution?
5. How did the Constitution achieve initial legitimacy?
Presidential elections and parties
Reading assignment for Sept. 13 & 15
- McCormick book, excerpts as follows: Chapters I, II, III entire (75 pages; by Tuesday). For the remaining three chapters, by Thursday, 105 additional pages as follows:
- Chapter IV: pages 76-88; 94, last para., and 95, first para.; p. 108, top, through 116 (about 17 pages total)
- Chapter V: 117-130; 154, middle, through 163 (25 pages total)
- Chapter VI: pages 164-167; 173-174 top; 177, middle, through 182 (about 8 pages total), and the conclusion on pp. 182-206. You might find it helpful to begin with the conclusion. (About 32 pages overall)
- Epilogue: entire (31 pages).
Essay Assignment for Tuesday Sept. 13
What features of the original Constitution were designed to discourage the development of parties? What factors contributed to the development of parties nevertheless? Comments on Sept 13 essay and grading
The development of political parties in Congress (Hoadley article; not assigned)
For reference: Leip's Atlas of Presidential Elections
Not required: Several students expressed an interest in how the Electoral College eligibility and selection work today. This report from the Congressional Research Service has the latest information on the subject.
Reading assignment for Sept. 20 & 22
All available on the course Blackboard site:
- Lessig and Sunstein, "The President and the Administration." Skim 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
- Fisher, Presidential War Power, Chapter 2 “Precedents from 1789-1900.”
- Yoo memo: "The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them."
Essay Assignment for Tuesday Sept. 20
Article II Section 1 says "The executive power shall be vested in a President." Some legal scholars have interpreted this to be a statement about separation of powers, and to mean that the President alone is to have sole and complete authority to direct the operations of all executive branch agencies. How might the design of early cabinet departments bear on our interpretation of this clause? Comments on Sept. 20 essay and grading. Comments on Sept 20 essay and grading.
Congressional "Authorization for Use of Military Force" of Sept. 18, 2001. Also (recommended not required), you might be interesting in the following Radiolab podcasts on the very broad "60 words" of actual authorizing language in the AUMF:
- original piece on the origin of the AUMF;
- a follow-up on its implications for future presidential actions.
3. Empire of Liberty
Reading assignments for Sept 27-Oct 6
All posted on the course Blackboard site, except for the web links shown below:
- For Tueday 9/27: Knowles, “The Balance of Forces and the Empire of Liberty: States’ Rights and the Louisiana Purchase.” This is a very long but rich article; for our purposes, you may OMIT the following parts:
- Part IV after the introductory section
- Part V section A
- all footnotes EXCEPT note 23 on p. 350. This leaves about 34 pages to read.
- For Thursday 9/29: Graber, "Settling the West: The Annexation of Texas, The Louisiana Purchase, and Bush v. Gore."
- also, read this short newsmagazine piece on the 1997 "Republic of Texas" siege
- For Tueday 10/4: Fletcher, “The Iron Cold of the Marshall Trilogy.” Read only the Intro and Part I, 627-648; skim remainder for theme.
- For Thursday 10/6: Levinson, "Why the Canon Should Be Expanded to Include the Insular Cases and the Saga of American Expansionism."
- also, read this short excerpt from the Court's opinion in Hawaii v. Mankichi
- not assigned: short excerpt from the Court's opinion in Downes v. Bidwell
Essay Assignment for Tuesday Sept. 27
Explain, in Knowles's terms, what was the effect of the Louisiana Purchase on the future use of formal amendments to alter the Constitution. Comments on Sept. 27 essay and grading.
Essay Assignment for Tuesday Oct. 4
Under the Constitution and the Supreme Court decisions discussed by Fletcher, did the Native American tribes or nations have the status of sovereign nations? Explain. Comments on Oct. 4 essay and grading.
Essay Assignment for Tuesday Oct. 11
The extension of U.S. government jurisdiction to new lands has often posed new questions, or created new practices, of constitutional application and interpretation. Drawing on the list below of big ideas from our course so far, discuss ONE respect in which our four “empire” episodes -- Louisiana, Texas, Native American lands, and insular territories -- demonstrate similar or related features of constitutional development.
(Note: If you can only relate three of the episodes in this way, then say why you think the fourth does not fit. Or if only two, then say why the other two don’t fit. But the more that fit, the better!)
Ideas from the class to use in comparing the four Empire episodes. Choose particular instances, aspects, or forms of them as you wish.
- Principles of republican government
- The Framers’ original intent; or the importance, restoration, or violation of original intent
- Unconventional higher lawmaking
- Settlement of constitutional controversies; or, things that are more important to settle, than to settle right
- Particular constitutional rights and powers: the executive power, the power to make war, powers reserved to the states, the treaty power
- The role of non-judicial precedent, that is, the acceptance of previous practice as constitutionally permitted
Territorial evolution of the U.S. (Wikipedia maps)
Present-day Republic of Texas enthusiasts (not to be confused with Texas secession advocates):
- The Republic of Texas (apparently no longer active--maybe because of that 2015 FBI raid on their "congress")
- Texas Nationalist Movement
Native Americans and the Constitution (time line and maps)
- Review session Tuesday Oct. 11. Here are some additional study notes. (Updated 5:30 Sunday 10/9.)
- In-class exam Thursday Oct. 13.
- Notes on expected answers and grading
FALL BREAK: no class Tuesday Oct. 18
reading assignment for Oct 20:
- Ackerman book, chapters 4-8
Essay Assignment for Tuesday Oct. 25
What events during Reconstruction amounted to a "switch in time"? In terms of the process of "functional phases" in unconventional higher lawmaking (that is, signaling, proposal, triggering, ratification, consolidation), what did these switches in time accomplish? Comments on Oct. 25 essay and grading.
Civil War-era constitutional issues apart from Reconstruction
- 13th Amendment ratification (Presidential Proclamation No. 52, 1865)
- 14th Amendment possible ratification (Presidential Proclamation No. 11, 1868
- 14th Amendment ratification (Presidential Proclamation No. 13, 1868
The New Deal
- Read webpage on Law in the "Lochner era"
- Lochner v. New York (1905) (abridged)
- Ackerman book, chapters 9-12: to begin discussion Thurs. 10/27, finish (with essay assignment) Tue. 11/1.
Essay Assignment for Tuesday Nov. 1
Beginning with the Supreme Court's 1937 "switch in time," Ackerman applies a "two-phase view" to the Court decisions that followed. What distinguishes these "phases"? Comments on this essay and grading.
- Preamble of the Bituminous Coal Conservation (Guffey-Snyder) Act of 1935
- Carter v. Carter Coal Co. (1936) (excerpt)
- NLRB v. J&L Steel Corp. (1937) (excerpt)
5. Constitutional Rhetoric
reading assignments for Nov 3-8:
- Sehat book (entire)
- By Thursday 11/3: chapters 1-5 (which correspond to all the historical eras we've covered so far in the course)
- By Tuesday 11/8: chapters 6-8 (since the New Deal)
Essay Assignment for Tuesday Nov. 8
How did Ronald Reagan employ Founder rhetoric prior to his 1980 run for the presidency? According to Sehat, why did he de-emphasize it in 1980? At what point did he take it up again, and why? Comments on this essay and grading.
Study questions and notes--Revised and expanded 11/15
reading assignment for Nov. 10:
- Philip A. Klinkner with Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America (U. Chicago Press 1999). Chapters 3 and 4 (63 pages). Posted on the course Blackboard site
Study questions and notes on Jim Crow--Revised and expanded 11/14
NAACP and the canonization of Brown
reading assignment for Nov. 15:
- The Southern Manifesto
- David A. Strauss, "The Common Law Genius of the Warren Court." William & Mary Law Review, vol. 49 issue 3 (2007-2008), pp. 845-879. Through section that ends on 868. Full article posted on the course Blackboard site
Essay Assignment for Tuesday Nov. 15
How does David Strauss's article answer the Southern Manifesto? Does it leave any part of the Manifesto's argument un-addressed? Comments on this essay and grading.
Study questions and notes on Brown v. Board, common law, and the Southern Manifesto--Revised and expanded 11/15
Brief summaries of the Brown and related decisions:
- Murray v. Maryland, and its appeal to Maryland’s highest court in Murray v. Pearson (1936)<\li>
- Gaines (Missouri ex rel. Gaines v. Canada, 1938)
- Sweatt v. Painter (1950)
- McLaurin v. Oklahoma State Regents (1950)
- Brown v. Board of Education (1954)
- Review session Tuesday Nov. 15
- See enriched Study Question and Notes posted above (boldface red)
- In-class exam Thursday Nov. 17
- Grading notes
reading assignment for Nov. 22
- Ackerman, chapter 13
(No essay Assignment for Tuesday Nov. 22)
The Voting Rights Act
reading assignment for Nov. 29
- One-page section-by-section summary of the Voting Rights Act of 1965
- All of Section 10 from the original VRA (Posted here is the whole act and all its subsequent amended versions, from 1970, 1975, 1982, and 2006
- Brief summary of Court cases to which Ackerman and Nou refer
- posted on the course Blackboard site: Ackerman and Nou, “Canonizing the Civil Rights Revolution.” Northwestern University Law Review, Vol. 103, No. 1 (2009). You are required to read excerpts only, as follows (54 total pages, omitting a lot of Sections II and V):
- Section I: read all (63-69)
- Section II: intro and middle 82-end (top 87) only
- Section III: read all (24 pages)
- Section IV: read all (12 pages)
- Section V: subsections A; B intro, 1, and 2 (7 pages, ending 130)
- Section VI: all, a page and a half
- Randall Calvert & Gary J. Miller, excerpt (5 pages) on the politics of VRA reauthorizations, from "Jim Crow and Civil Rights: A Unified Treatment of Normal Politics and Political Movements," unpublished paper.
- On the Supreme Court decision in Shelby County v. Holder (2013):
- Lyle Denniston, "Opinion recap: Voting law in deep peril." SCOTUSblog (June 25, 2013). (2 or 3 pages.)
- Richard A. Posner, "The Voting Rights Act ruling is about the conservative imagination." Slate "Supreme Court 2013: The Year in Review" (June 26, 2013). (2 or 3 pages.)
- recommended, definitely not required: the entire Shelby County opinion, especially Justice Ginsberg’s dissent (starting on about the 28th page of this slip opinion).
Essay Assignment for Tuesday Nov. 29
Ackerman and Nou portray the "civil rights revolution," beginning with Brown, as having changed -- partly in response to sustained popular support -- the general interpretation of what rights the Constitution guarantees. In short, it was an episode of higher lawmaking. Seen in that light: with respect to the poll tax in particular, what would you say was the ultimate "proposal"? What actions accomplished "ratification"? With respect to voting rights more generally, what evidence is there of "consolidation" of the civil rights revolution -- and what evidence might call consolidation into question?
- (Note on the essay prompt: Ackerman and Nou are telling a rather complicated story here: they warn us to avoid being distracted or misled by the surface meaning of the 24th Amendment or of Justice Douglas’s majority opinion in Harper v. Virginia State Board of Elections (1966); and they recommend special attention to Section 10 of the Voting Rights Act of 1965.)
- Grading notes on this essay
- Map of jurisdictions covered by Voting Rights Act pre-clearance, as of 2008
- Justice Goldberg's memo (1965) dissenting from the preliminary decision in Harper v. Virginia Board of Elections (1966). The full text of the memo occupies pages 322-333 of this article (Schwartz, "More Unpublished Warren Court Opinions," 1986).
7. American Constitutional Development in the Trump Administration
reading assignments for Dec. 1, 6, 8: See this separate page.
NO weekly essay assignment for Tuesday Dec. 6
FINAL PAPER ASSIGNMENT
Due at noon, Monday, Dec. 19
(Length about 2000-3000 words. Turn in using the same upload system as for weekly essays.)