PS 3255 Development of the American Constitution

Fall 2019

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:

  • The only required text for purchase is McCormick, The Presidential Game (Oxford University Press, 1982).
  • Some readings can be obtained through direct links in the outline below. If you have trouble obtaining one of these, please let me know immediately. You are still responsible for the reading.
  • Readings outside the required textbooks and not directly linked below are available in the shared Box folder, indicated by Shared.

I. Introduction

Mon Aug 26

Intro discussion

Wed Aug 28

Read before class:
Aziz Z. Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy.” UCLA Law Review (Feb. 2018), pp. 78-169. Click here to obtain online.

Write and turn in before class Wednesday:

  • What sort of democratic or constitutional failure do H&G argue is an immediate threat to the U.S.? How, in their view, could such a thing happen?
  • [For this assignment only, adhere to a strict length limit of 200 words (4/5 page). 10 points possible.]

Discussion notes


II. The Electoral System

A. Political Parties

Reading and discussion notes on The Presidential Game

Wed Sept. 4

Read before class:

  • McCormick The Presidential Game: Chapters 1-3 (72 pages).

Mon Sept 9

Read before class:
McCormick The Presidential Game:

  • from Chapter 5: pages 117-middle of 126; and top of 136-163
  • from Chapter 6: pages 182-206

Write for students whose last names begin with A-J, to turn in before class Monday:

  • Why, according to party politicians and activists in the 1840s, was their party a good feature in the American system of government? How do these explanations comport with the Framers' intent? What main principles of American self-government developed since the Framing are invoked or implied by these explanations?

Wed Sept 11

Read before class:

  • McCormick The Presidential Game: Epilogue (207-238)
  • plus additional readings below

B. The Presidential (and Legislative Election) Game Today

1. Gerrymandering, Voter Registration, Campaign Finance, and Rigged Primaries

Wed. Sept. 11

Reading and discussion notes on the modern presidential game

Read before class:

2. The Electoral College and its Discontents

Mon. Sep 16

Reading and discussion notes on the Electoral College

Read before class:

  • The National Popular Vote proposal: Explore the website a bit to understand their goal and method.
  • A quick-reference guide: National Archives and Records Administration, “What are the Roles and Responsibilities…in the Electoral College Process?” Part of NARA's website The Electoral College. Note especially the calendar of events.
  • Do Electors have a choice?
  • Norman J. Ornstein, “What Happens If the 2020 Election Is a Tie?” The Atlantic (Jul. 11, 2019) Click here to obtain on their website.
  • skim: Chris Land and David Schultz, “On the Unenforceability of the Electoral Count Act.” Rutgers Journal of Law & Public Policy Vol. 13, No. 4 (Fall 2016), pp. 340-387. Click here to obtain online. Try to answer three questions:
    • What went wrong in 1876-77?
    • What does the Electoral Count Act provide?
    • Why, broadly speaking, are the authors skeptical?
  • skim: Senate Select Committee on Intelligence, Report on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election. Volume 1: Russian Efforts Against Election Infrastructure. Click here to obtain online. 61 pages, heavily redacted. What sorts of concerns ought one to have about future elections?

Write for students whose last names begin with K-Z, to turn in before class Monday:

  • McCormick suggested that the original implementation of the presidential selection process disappointed many of the intentions of the Constitution's framers. Explain two ways in which the present-day version of the presidential game changes this assessment, whether bringing it more into line with Framer expectations or pushing it even further afield. (You may, if you wish, give one example of each.)

III. Who Is a Citizen?

A. Reconstruction, the 14th Amendment, and Jim Crow

Reading and discussion notes on Reconstruction, Jim Crow, Civil Rights

Wed Sept 18

Read before class:

  • John Harrison, “The Lawfulness of the Reconstruction Amendments.” Univ. of Chicago Law Review (2001). Skip Sec. I.A.1; skip Sec II.B, except for its Intro and pp. 449-451. (Total assigned: about 55 pages.) Click here to obtain online.
  • Klinkner with Smith, The Unsteady March, ch. 3 “…Reconstruction and Second Retreat” (33 pages). Shared.

Mon Sept 23

Read before class:

  • Klinkner with Smith, The Unsteady March, ch. 8, “…The Civil Rights Revolution, 1954-1968” (46 pp). Shared.
  • Feder, “Federal Affirmative Action Law: A Brief History.” CRS Report (2015). Click here to obtain online.
  • Liptak, "Supreme Court Invalidates Key Part of Voting Rights Act." New York Times (June 2013) Click here to find online.
  • Bill McCarthy, “Have Trump judicial nominees refused to say Brown vs. Board was properly decided?” Politifact (Jul. 25, 2019). (“Mostly true.”) Click here to obtain online.

Write for students A-J to turn in before class Monday:

  • Klinkner discusses a whole series of advances and retreats on civil rights during the late 1880s and during the decades following the Second World War. Your essay should do both of the following:
    • (a.) Describe (in at least as much detail as you can glean from Klinkner) how one feature of the Constitution or of constitutional interpretation contributed to these advances and retreats.
    • (b.) Do the same for one feature which is as distant from constitutional directives as you can find. (For example, Supreme Court decisions that interpret constitutional provisions are pretty close to the Constitution; the actions of state governments are often fairly distant, and those of private organizations even more so.)

B. Immigration and Citizenship

Reading and discussion notes on immigration and citizenship

Wed Sept 25

Read before class:

  • Lorraine Boissoneault, “How the 19th-Century Know Nothing Party Reshaped American Politics,” Smithsonian.com (Jan. 26, 2017) (about 3 pages). Click here to obtain online.
  • Mark Pulliam, "What Did the 14th Amendment Congress Think about 'Birthright Citizenship'?" Posted on Law & Liberty (Aug. 21, 2015) (about 2 1/2 pages). Click here to obtain online.
  • Josh Zeitz, “The 1965 Law That Gave the Republican Party Its Race Problem.” Politico (Aug. 20, 2016) (about 6 pages). Click here to obtain online.
  • Jeh Charles Johnson, "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants." Secretary of DHS memoradum (Nov. 20, 2014) -- the DACA program. Click here to obtain online.
  • CNN reporters, "What is the Flores settlement that the Trump administration has moved to end?" (Aug. 23, 2019). Click here to obtain online.
  • Robert Barnes and Ann E. Marimow, “Supreme Court upholds Trump travel ban.” Washington Post (Jun. 26, 2018). Click here to obtain online.

FIRST EXAM

  • As promised, here are a couple of sample old exams (on material at least somewhat related to what we've been doing this semester) so you can get an idea of the nature of questions to expect.   Sample Exam 1   Sample Exam 2
  • Mon. Sept. 30: Finish and review
  • Tue. Oct. 1: Extra Prof (3-5) and AI (10-12) office hours
  • Wed. Oct. 2: In-class exam

 

IV. Impeachment

Impeachment timeline

A. The current controversy

Discussion notes and links

Read for Monday Oct. 7.
Unless a different link appears, all are available in a subfolder called "Ukraine whistleblower docs" in the shared folder.

  • whistleblower complaint
  • memo of Trump-Zelensky telephone conversation of July 25
  • Relevant portion of U.S. Code: 50 U.S.C. section 3033(k)(5). The beginning of the whistleblower statement cites paragraph (A), but read all of subpart (5). Sec. 3033 of Title 50 is available online.
  • letter from the Intelligence Community Inspector General (ICIG) to the Director of National Intelligence (DNI) transmitting whistleblower complaint (Aug. 26)
  • Opinion of the Department of Justice Office of Legal Counsel (OLC) to the inquiry of the DNI about whether he shouild transmit the complaint itself to the Intel committees
  • First ICIG letter to the House and Senate committees on intelligence (Sep. 9)
  • Second letter from the ICIG to the Intel committees (Sep. 17)
  • House Intel Committee Chairman Schiff's letter to Acting DNI Maguire (Sep. 18)
  • report of DNI testimony: Shane Harris, Karoun Demirjian, and Ellen Nakashima, “Acting intelligence chief Maguire defends his handling of whistleblower complaint in testimony before Congress.” Washington Post (Sep. 26, 2019)

Write for students whose last names begin with K-Z, to turn in before class Monday Oct. 7:

  • What are the issues in determining whether the whistleblower’s report must be transmitted to Congress? How are those issues addressed by the Intelligence Community Inspector General (IC IG) and by the Justice Department’s Office of Legal Counsel (OLC)? What role did the Director of National Intelligence (DNI) play in this process?

 

B. Impeachment basics and history

Impeachment timeline

Discussion notes and links

Read for Wednesday Oct. 9

  • Charles R. Black, Jr., “The Impeachable Offense” (excerpt from Impeachment: A Handbook, 1974) reproduced on Lawfare blog (July 20, 2017) (9+ pages if printed out)
  • Andrew Prokop, “Impeaching the President, Explained.” Vox (Sep. 25, 2019). Broad piece covering background & procedure; Johnson, Nixon, & Clinton; Trump situation.
  • Peter Baker, “News Analysis: Impeachment Battle to Turn for First Time on a President’s Ties to a Foreign CountryNew York Times (Sep. 28, 2019)


**   Fall Break Monday Oct 14   **
 

Previous presidential impeachments

Read for Wednesday Oct. 16

Write for students whose last names begin with A-J, to turn in before class Wednesday Oct. 16:

  • Explain in what sense the current impeachment effort (focusing on President Trump’s dealings with Ukraine and related matters) resembles one of the previous presidential impeachment efforts, that against Johnson, Nixon, or Clinton.

 

More on the laws, procedures, and precedents of impeachment

Readings for Mon. Oct. 21

U.S. Congress, House Committee on the Judiciary, "Report by the Staff of the Impeachment Inquiry on the Constitutional Grounds for Presidential Impeachment." (93d Cong. 2d Sess., Feb. 1974). Page references below are to this published edition.

  • (recommended only:) I. Introduction, on relevant constitutional clauses and background of the report (2 pages)
  • (required:) Section II B 3. Grounds for impeachment (you’ve already seen some of this in Black) (pp. 2258-62)
  • Section II C The American Impeachment Cases (all 3 subsections: pp. 2262-67
  • Section III The Criminality Issue (pp. 2267-71)
  • How to obtain -- two choices:

Sarah Burns, "If impeachment comes to the Senate – 5 questions answered." Posted at The Conversation (Oct. 15, 2019). Internal Senate rules pertaining to impeachment.

  • Recommended only: U.S. Senate, United States Senate Manual, 104th Congress (S. Doc. 104-1), “Rules for Impeachment Trials, pp. 177-185. Posted by the Government Printing Office.
  • Recommended only: Rachel Bade and Erica Warner, "McConnell tells Senate Republicans to be ready for impeachment trial of Trump." Washington Post (Oct. 16, 2019). Talking about six-day-a-week sessions for four weeks; says Chief Justice Roberts will decide procedural points.

Writing Assignment for Mon. Oct 21 (students K-Z)

  • Is "An impeachable offense…whatever a majority of the House of Representatives considers to be at a given moment in history"? Can the Senate refuse to try an impeachment? In both cases, Why (and how) or why not?

 

C. Congress’s investigative powers: subpoenas vs. executive privilege

Impeachment timeline

Discussion notes and links

Readings for Wed. Oct. 23

Trump v. Mazars (DC Circuit Court, 2019)

  • Required: part II (pp. 11-20 on history of congressional investigation and subpoena powers). Entire opinion in shared readings folder.
  • possibly more interpretation or excerpts TBA

Congressional Research Service, "Congressional Subpoenas: Enforcing Executive Branch Compliance." (Mar. 27, 2019; author Todd Garvey, but not shown on title page). Online. Read the following excerpts:

  • The 1-page summary at the beginning.
  • Section on "The Historical Process: Inherent Contempt," on pages 12-16.

Josh Chafetz, "Congress’s Constitution." University of Pennsylvania Law Review Vol 160, No. 3 (Feb. 2012), pp. 715-778. Online from JSTOR.

  • Intro (pp. 716-24)
  • section IB, “Contempt,” pp. 735-42.

 

Executive privilege

Readings for Mon. Oct 28

Margaret Taylor, "Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches." Posted at Lawfare (Jan. 30, 2019). Print version 8 pages.

Carol Holt, "Executive Privilege." Presidential Studies Quarterly, Vol. 16, No. 2, Congress, the Court, and the Presidency in National Security Policy (Spring 1986), pp. 237-246. Online from JSTOR

Reporters Committee for Freedom of the Press, "Assertions of Executive Privilege from Kennedy to Obama." Table (showing president, year, controversy, success) Online.

Writing Assignment for Mon. Oct 28 (Students A-J)

  • The Trump administration has asserted "absolute immunity" against congressional demands for information about a wide range of conversations among presidential advisors. See for example this Washington Post article. Compare this claim with the historical notion of executive privilege. But if the subjects of subpoenas just refuse to respond, what recourse does a congressional committee have?

 

D. Executive powers and presidential powers

Discussion notes and links

Readings for Wed. Oct. 30 & Mon. Nov. 4

Lawrence Lessig and Cass R. Sunstein, "The President and the Administration." Columbia Law Review, Vol. 94, No. 1. (Jan., 1994), pp. 1-123. Online from JSTOR; or, for a more compact and searchable download, use this copy from the shared readings folder.

  • For Wednesday 10/30: we will discuss Section I and Sections II A-C, and maybe F-G (so, read at least pp. 1-38 and skip ahead to 72-84.
  • For Monday 11/4: read remainder of the article (including especially Section II D-E).

Writing Assignment for Mon. Nov. 4 (Students K-Z)

Originalist proponents of the strong unitary executive derive the theory based on the what they claim is the original meaning of the Constitution’s Vesting Clause (and specifically of “the executive power”), as well as the Take Care clause. Compare this with the approach of Lessig and Sunstein. (1) Do L&S support a strong “unitary executive” interpretation of presidential power? (2) Do they base their conclusion on the original meaning of the Constitution? Explain.

Readings for Wed. Nov. 6

Richard H. Pildes, “Law and the President: The expansion of executive power in the American political landscape,” (review of Posner and Vermeule, The Executive Unbound) in Harvard Law Review Vol. 125 (Apr. 2012).

  • You need only skim Section I (pp. 1385-92), which summarizes the argument of Posner & Vermeule and argues that they really mean it, and one should take it seriously.
  • Read Intro and all of Sections II thorugh V (about 36 pages).

 

Impeachment timeline


SECOND EXAM

  • Mon. Nov. 11: Finish and review
  • Tue. Oct. 1: Extra Prof (3-5) and AI (10-12) office hours
  • Wed. Nov. 13: In-class exam

V. Internal checks and balances

A. Justice Department independence

Discussion notes and links

Reading for Mon. Nov. 18

Bruce Green and Rebecca Roiphe, “Can the President Control the Department of Justice?” Alabama Law Review Vol. 70 Issue 1 (2018), pp. 1-75. Click here to obtain online

Reading for Wed. Nov. 20

James Eisenstein, “The U.S. Attorney Firings of 2006: Main Justice's Centralization Efforts in Historical Context.” Seattle University Law Review Vol. 31 issue 2 (Winter 2008), pp. 219-263. Click here to obtain online.

B. Presidential government and constitutional stability

Discussion notes and links

Reading for Mon. Nov. 25

Fred W. Riggs, “Bureaucracy and the Constitution.” Public Administration Review Vol. 54 No. 1 (Jan/Feb 1994), pp. 65-72. Shared.

Neal Katyal, “Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within.” Yale Law Journal, Vol. 115, No. 9 (2006), pp. 2314-2349. Click here to obtain online.

C. Administrative Procedures

Discussion notes and links

Reading for Mon. Dec. 2

Todd Garvey, “A Brief Overview of Rulemaking and Judicial Review.” Congressional Research Service report no. R41546 (Mar. 27, 2017). 17 pages. Click here to obtain online.

Valerie C. Brannon, “Can a President Amend Regulations by Executive Order?” Congressional Research Service “Legal Sidebar” (July 18, 2018) On the occasion of Trump’s attempt to except ALJs from the civil service merit system. 2 1/2 pages. Click here to obtain online

Margot Sanger-Katz, “For Trump Administration, It Has Been Hard to Follow the Rules on Rules.” New York Times (Jan. 22, 2019). Click here to obtain online.

Reading for Wed. Dec. 4

Ben Harrington, “DACA Rescission: Legal Issues and Litigation Status.” Congressional Research Service “Legal Sidebar” report LSB10136 (May 23, 2018). Especially helpful: the section “Primary Legal Issues…” beginning on p. 3. Click here to obtain online.

Michael D. Shear, Julie Hirschfeld Davis and Adam Liptak, “How the Trump Administration Eroded Its Own Legal Case on DACA.” New York Times (Nov. 11, 2019). Click here to obtain online.

Adam Liptak, “Supreme Court Appears Ready to Let Trump End DACA Program.” New York Times (Nov. 12, 2019). Click here to obtain online.


FINAL PAPER ASSIGNMENT

for ALL students; due Fri. Dec 13 at 2:00pm

  • Does the executive branch provide “checks and balances” on presidential power? Would it be consistent with general constitutional principles for the president to be checked in this way?
  • In writing about his topic, in addition to our assigned readings you should consult and refer substantively to either (1) at least one outside academic article on an aspect of your topic, or (2) details from news and other sources on an event relevant to your essay.
  • The more you can explicitly draw on ideas from earlier in the course, the better.
  • Length: The main text of your final essay should be between 1500 and 2000 words in length---about twice the length of one of our weekly essays. If you use one-inch margins and double-spaced, 12-point Times New Roman font, 1500 words will be about six pages, apart from title, references, and any section headings or other white space.

This page written by Randall Calvert ©2019

Mon. & Wed. 2:30-3:50, Wrighton 201

Instructor:  Randall Calvert
Seigle 238;  WU email: calvert
Office hours Tu-Th 3-4, MW 4-4:30, and by appointment

Assistant to the Instructor: Jeremy Siow
Seigle 254;  WU email wsiow
Office hours Fri. 2-4, and by appointment

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U.S. Constitution (Govt Printing Office PDF with index)
- Links to other Constitution resources

Course Description
Requirements
Instructions for Weekly Essay Assignment

course syllabus pdf

Topic outline: click to go to details
I. Introduction
II. The Electoral System
A. Political Parties
B. The Presidential Game Today
III. Who Is a Citizen?
A. The 14th Amendment and Jim Crow
B. Immigration and Citizenship
FIRST EXAM
IV. Impeachment
A. The current controversy
B. Impeachment basics and history
   - More on impeachment
C. Congress’s investigative powers
D. Presidential powers
SECOND EXAM
V. Internal checks and balances
A. Presidential government and stability
B. Justice Department independence
C. Inspectors General
FINAL PAPER

 

Other U.S. Constitution online resources

Online historical political data