PS 3255 Development of the American Constitution

Fall 2019

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

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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?

 

Reading and discussion notes

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

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

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

  • Mon. Sept. 30: Finish and review
  • Wed. Oct. 2: In-class exam

 

IV. The Administrative State

 

A. The Executive Branch in the Beginning

Mashaw “American Administrative Law: Federalist Foundations” thru Sec. II (48 pp).

other Assignments TBA.

 

B. Professionalism and Civil Service

Hoogenboom, “The Pendleton Act and the Civil Service” (17 pp., light reading)

Riggs, “Bureaucracy and the Constitution” (7 triple-col. pages, so more like 20)

other Assignments TBA.

 

C. Progressivism and Laissez Faire

Sanders, "Rediscovering the Progressive Era" (15 pp)

Rabin, “Federal Regulation in Historical Perspective” (Sec. I-IV, 45 pp); Secs. II and IV on Court role are esp. useful

Other assignments TBA.

 

D. Commerce Powers and Delegation in the New Deal

Cushman, “The Great Depression and the New Deal.” Notre Dame Legal Studies Paper No. 1312 (2008; last revised 2012). 51 pages. On file. Available at SSRN: https://ssrn.com/abstract=754231

Schiller, “The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law” (42 pp)

Potter, Bending the Rules: Procedural Politicking in the Bureaucracy (Chicago 2019). Chapter 2, “The Nuts and Bolts of Notice-and-Comment”

Other assignments TBA.

 

E. The National Security State

War power; the defense establishment; emergency powers. Assignments TBA.

 

SECOND EXAM

 

  • Mon. Nov. 11: Finish and review
  • Wed. Nov. 13: In-class exam

 

V. Limits on Presidential Power?

 

A. An Internal Separation of Powers?

Green & Roiphe, “Can the President Control the Department of Justice?” (72 pp.)

Other assignments TBA.

 

B. Congressional Oversight

Precedents, investigation powers, etc. Assignments TBA.

 

C. Presidential Removal

History of impeachments; 25th Amendment. Assignments TBA.

 

FINAL PAPER

 

  • due date TBA

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 4-5; after class MW 4-4:30; and by appointment

Assistant to the Instructor: Jeremy Siow
Seigle 254;  WU email wsiow
Office hours Fri. 3-5, 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. The Administrative State
A. The Executive Branch in the Beginning
B. Professionalism and Civil Service
C. Progressivism and Laissez Faire
D. Commerce Powers and Delegation
E. The National Security State
SECOND EXAM
V. Limits on Presidential Power?
A. An Internal Separation of Powers?
B. Congressional Oversight
C. Presidential Removal
FINAL PAPER

 

Other U.S. Constitution online resources

Online historical political data