PS 4532 Seminar in Constitutional Politics

Fall 2017

American voters overturned the anticipations of most political observers when they selected Donald J. Trump as president in the 2016 election. Their intentions, and of course the statements and actions of Trump and his administration during its early months, raise fundamental questions about the nature, practice, and prospects of American constitutional government.

For students who have already done upper-division course work in American or comparative political institutions, this course offers an opportunity to combine what they have learned with pertinent advanced material on the nature of constitutionalism and on current challenges to American constitutionalism, and to pursue and share with one another their original individual research on topics of their own choosing touching on those areas. Material to be covered prior to the research projects includes the development of modern American constitutional ideologies; American constitutional crises; constitutional failures in other democratic countries; and present critical constitutional issues in the U.S.

Prerequisite: A previous course at the 300-level or above in constitutional politics, constitutional law, or law and society; or, with instructor's permission, other relevant advanced coursework.

 

Course Outline and Approximate Schedule

Introduction

Week 1 (Aug 31)

Course logistics

Introductory remarks

In-class readings and discussion

 

The possibility of democratic failure

Week 2 (Sep. 7)

Week 2 will begin with discussion of paper topics you might be interested in. Come to class with a couple of ideas in mind on which you have done a small amount of preliminary research.

Readings for discussion in class:

 

Development of current U.S. political ideologies and coalitions

Week 3-5 (Sep. 14, 21, 28)

For week 3 (Sep. 14) read the items under "Parties, ideologies, coalitions" and "20th -- and 21st? -- century liberalism"

Parties, ideologies, coalitions

  • Gary Miller and Norman Schofield, "The Transformation of the Republican and Democratic Party Coalitions in the U.S." Perspectives on Politics Vol. 6, No. 3 (Sep. 2008), pp. 433-450. Click here to obtain online.

20th -- and 21st? -- century liberalism

From classical liberalism to progressivism to 20th-century American liberalism

  • Byron Dexter, "Herbert Croly and the Promise of American Life." Political Science Quarterly Vol. 70, No. 2 (Jun., 1955), pp. 197-218. Click here to obtain online.
  • Recommended only: Gary Gerstle, "The Protean Character of American Liberalism." American Historical Review, Vol. 99, No. 4 (Oct., 1994), pp. 1043-1073. Click here to obtain the full article online.
  • Brief excerpts distributed via email.

The New Deal Constitution

Civil rights

Identity politics

Recommended only: from progressivism to liberalism (to interest-group liberalism) back to progressivism again: two very short readings:

 

Conservatives and their constitution

For week 4 (Sept. 21): From anti-New Deal to Conservative Movement

  • Kim Phillips-Fein, Invisible Hands (2010). Excerpts as follows (about 175 pages total)
    • all of Chapters 1, 2, 4, 6, 7, 8, 10 (about 165 pages), plus the following pages (begin with the first full paragraph; go to end of subsection, unless indicated):
    • 56-58 subsection, "Dozens of organizations... sprang into existence" and full paragraph on 60, "…nightmarish fears inspired by anticommunism"
    • 111-114 subsection on Reagan's career at GE, to end of chapter
    • 188 (last 2 lines) and all of 189
    • 205-206: The Chamber of Commerce bridged between business's anti-regulation, anti-welfare state advocacy and the opposition to civil rights, day rights, feminism, antiwar movement
    • In the Epilogue, the first section (on 263-265) and the final paragraph (269).
  • Excerpts from Thomas Mann & Norman Ornstein, It's Even Worse Than It Looks, rev. ed. (2016):
    • Read carefully Chapter 2 (50 pages)
    • Skim Introduction and Chapters 1 and 3 (58 pages).

For week 5 (Sept. 28): The new new right: Tea Partiers and Nationalists

 

 

  • Excerpts (118 pages, plus some skimming) from Theda Skocpol & Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism (Updated ed., 2016).
    • Skim the Introduction -- get an idea of the time line & of the authors' overall argument and methods.
    • Skim Chapter 1 for a general picture of the demographics, opinions, and prior politics of Tea Party members.
    • Read chapters 2-4 (106 pages).
    • Skim introductory sections of chatper 5 and 6.
    • In chapter 6, read the section "The Paradoxes of Tea Party Citizenship," pages 197-201.
    • Read the Epilogue (8 pages).
  • The Trump coalition
    • Sean Trende, three-part series on the Trump coalition on RealClearPolitics. (Each part includes a link to the earlier parts, but not to the later ones.)
      • Part I "The Meaning of Trump" (Jan. 27, 2016)
      • Part II "Cruz, Trump and the Missing White Voters" (Jan. 28, 2016)
      • Part III "Why Trump? Why Now?" (Jan. 29, 2016),
    • Arlie Russell Hochschild, "Trump's Biggest Fans." Mother Jones (Aug. 28, 2016). Click here to obtain online.
  • Trumpism?
    • skim: Publius Decius Mus, "The Flight 93 Election." American Greatness website (Sep. 5 2016). Pre-election, pro-Trump view arguing why conservatives should support Trump. The author, actually Michael Anton, is now a senior national security official in the Trump administration. Click here to obtain online. Concerning one of Anton's claims:
      • Graph of U.S. homicide rate, 1900-2006 from a talk by Randolph Roth, author of American Homicide (Belknap Press, 2009).
      • More graphs (beginning on p. 36; scroll down) on U.S. larceny (1933-1998) and homicide (1900-1998) rates, from the Justice Research and Statistics Organization (about).

 

FIRST ESSAY

Oct. 5:

  • Topic: an aspect of the relationship between constitutional government and Americans' political interests, beliefs, and coalitions
    • Keeping in mind that you'll be writing further about a specific Trump-era constitutional issue, choose one such issue or group of issues and explore the positions taken on that issue by various ideological and party groups. You should make reference to a variety of position statements, being careful to identify accurately the political identities of their authors.
  • 4-5 pages, to be revised & incorporated
  • paper due Monday Oct. 2, to be returned to you with comments on Thursday
  • be prepared to give an informal 5-10 minute presentation of your findings in class
  • revisions to be turned in by Thursday, Oct. 19

 

Protective institutions?

Informal institutions and norm-breaking

For Oct. 12:

Four subtopics:
(1) this pre-Trump journal article:

  • Julia R. Azari and Jennifer K. Smith, "Unwritten Rules: Informal Institutions in Established Democracies." Perspectives on Politics Vol. 10, No. 1 (March 2012), pp. 37-55. Click here to obtain online.

(2) Commentary and opinion on so-called norm-breaking by Trump

  • Skim: E.J. Dionne, Jr., Norm Ornstein, and Thomas E. Mann, "How the GOP Prompted the Decay of Political Norms." The Atlantic (Sept. 19, 2017). About 10 pages of large print, including displays. Click here to obtain online. Except for updating with the Garland nomination, this article largely reflects themes in Mann-Ornstein book, but puts the discussion in terms of norm-breaking.
  • "Constitutional rot"?
    • Jack Balkin, "Constitutional Rot and Constitutional Crisis," in Balkinization blog (May 15, 2017). About 4 pages of small print. Click here to obtain online.
    • Jack Balkin, "Trumping the Constitution," in Balkinization blog (June 14, 2017). 5 1/2 pages of small print. Click here to obtain online.
  • Some additional cogent viewpoints and examples:
    • Emily Bazelon, "How Do We Contend With Trump's Defiance of Norms?" New York Times Magazine (July 11, 2017). 4 1/2 pages, printed out. Click here to obtain online.
    • first & last section: Michael C. Dorf, "Would a Trump Self-Pardon Precipitate a Constitutional Crisis?" Verdict: Legal Analysis and Commentary from Justia (26 July 2017). 8 1/2 pages large print. Click here to obtain online. Essay begins with discussion of self-pardon, ends with a couple of other well-stated examples.
    • Brendan Nyhan, "Norms Matter." Politico Magazine (Sep./Oct. 2017). About 3 pages. Click here to obtain online. Several briefly described examples.
  • Explore a bit: "Norms Watch" column in the blog Just Security, appearing weekly (on Fridays) and compiled here.

(3) Reaction to Trump's remarks on the Charlottesville protests, blaming "many sides" for violence and noting that there are "many fine people" among protesting white supremacists. Is a widely-held norm being violated, or is this just another partisan issue?

  • Michael M. Grynbaum, " 'Wow': Stunned TV Hosts Reacted in Real Time to Trump." NY Times (Aug. 15, 2017). Click here to obtain online. The video compilation at the top of the article is an impressive summary.
  • David Gelles et al., "Trump Ends C.E.O. Advisory Councils as Main Group Acts to Disband." NY Times (Aug. 15, 2017). Click here to obtain online.
  • Damian Paletta and Jena McGregor, "Trump's business advisory councils disband as CEOs abandon president over Charlottesville views." Washington Post (Aug, 16, 2017). Click here to obtain online.
  • Greg Sargent, "Everyone working for Trump knows his Charlottesville response is an abomination." Opinion: The Plum Line, Washington Post (Aug. 16, 2017). Click here to obtain online.

(4) Could norm-breaking damage civilian control of the military?

  • Matthew Fay, "Persistently Politicizing the Military." Niskanen Center blog (July 28, 2017). Click here to obtain online.
  • Daniel W. Drezner, "Worst. Commander in Chief. Ever." Washington Post (Aug. 15, 2017; op-ed). Click here to obtain online.
  • Fred Kaplan, "Chain of Confusion: Military commanders' rebuke of Trump after Charlottesville points to a crisis for civilian control of the military." Slate (Aug. 16, 2017; op-ed length, about 2 pages). Click here to obtain online. Includes links to their individual statements.
  • An additional source, if needed: Joint Chiefs' tweeted statements are all included in Travis J. Tritten, "US military service chiefs condemn racism, extremism," Washington Examiner (Aug, 16, 2017). Click here to obtain online.

 

Formal and informal institutions of executive-branch "lawmaking"

For Oct. 19: Four full articles (marked **), along with some shorter pieces:

Executive orders, other executive actions, and their reversal

  • ** Vivian S. Chu and Todd Garvey, "Executive Orders: Issuance, Modification, and Revocation." CRS Report, Congressional Research Service (Apr. 16, 2014). Click here to obtain online.
  • Darla Cameron, "What President Obama's executive actions mean for President Trump." Washington Post (updated Jan. 31, 2017). Executive orders, memoranda, etc.; conditions making reversal easy or hard; links to related articles. Click here to obtain online.

Formal regulations

  • Center for Effective Government, "Notice-and-Comment Rulemaking." About 4 pages; you need not go on to the links in the outline at bottom. Most important thing to be aware of: Once a regulation is made in this fashion, repealing it requires the same whole operation be done again. Click here to obtain online.

Independence of Justice

  • ** Katy J. Harriger, "The Law: Executive Power and Prosecution: Lessons from the Libby Trial and the U.S. Attorney Firings." Presidential Studies Quarterly Vol. 38, No. 3 (Sep. 2008), pp. 491-505. Click here to obtain online.

Presidential powers, generally

  • ** Neal Devins and Louis Fisher, "The Steel Seizure Case: One of a Kind?" Constitutional Commentary, Vol. 19 (2002), pp. 63-86. Click here to obtain online. The story of the steel seizure, and the Court's willingness (in those days, as earlier) to rule on executive actions connected with foreign policy.
  • For reference purposes: Youngstown Sheet & Tube Co. v. Sawyer (1952) Supreme Court opinions excerpted by UMKC law professor Doug Linder. Justice Jackson's concurrence is the most famous argument here.

Constitutional basis of the president's foreign policy powers

  • ** Louis Fisher, "Presidential Inherent Power: The “Sole Organ” Doctrine." Presidential Studies Quarterly Vol. 37, no. 1 (March, 2007), pp. 139-152.

The real dangers are unconventional

  • David Frum, "The Problem with 'Containing' Donald Trump." The Atlantic (Oct. 9, 2017). Click here to obtain online. Worries following Corker's remarks about "day care" in the White House, since it's largely by generals.
  • Benjamin Wittes, "The Disturbing Paradox of Presidential Power." Foreign Policy (Sep. 12, 2017). Click here to obtain online.

 

For Oct. 26:

Bruce Ackerman, The Decline and Fall of the American Republic (2010).

 

SECOND ESSAY

Nov. 2

  • Topic: describing a specific constitutional issue of interest
    • Describe one constitutional issue (or connected set of issues) implicated in some actions or controversies during the Trump presidency. The constitutional stakes may be narrow and legalistic (the emoluments clause) or, at the other extreme, involve distant norms (prosecutorial independence; rejection of white supremacy) of political behavior that are derived from or contribute to constitutional goals and concerns. Establish the arguments--yours, the participants', or both---for why recent political actions do and do not constitute constitutional violations.
    • You may take any side, or no side. Your main job is to clarify the issue, or the claimed issue, and to analyze it.
  • Papers are due via email by 6:00am on Tuesday Oct. 31. Papers received by 6:00pm Monday Oct. 30 will receive 3 extra points credit (out of a possible 100 on the first draft).
  • I will distribute all papers on Tuesday, and once again they will serve as the reading assignment for Thursday Nov. 2. Be prepared to give a couple minutes' verbal introduction to your essay in class to begin the discussion. Be prepared with comments or questions about one another's essays.
  • Revised draft due Nov. 16.

 

Current issues concerning First Amendment rights

Nov. 9

For each of the three issues below -- speech freedom and hate speech; recent trends in the role of media in politics; and new claims about freedom of religion -- be prepared to discuss the general questions given.

Speech freedoms and constitutional democracy
What limits does the law place on hate speech? What dangers could free speech pose to the constitutional system itself?

  • Snyder v. Phelps (2011), the Westboro Baptist Church case.
  • Matal v. Tam (2017), the "Slants" case.
    • "Matal v. Tam." Oyez, 28 Oct. 2017. Click here to obtain online.
    • Eugene Volokh, "The Slants (and the Redskins) win: The government can't deny full trademark protection to allegedly racially offensive marks." The Volokh Conspiracy blog, Washington Post (June 19, 2017). Click here to obtain online.
  • Tim Wu, "How Twitter Killed the First Amendment." New York Times (Oct. 27, 2017). Click here to obtain online.
  • Ryan Holiday, "I Helped Create the Milo Trolling Playbook. You Should Stop Playing Right Into It." Observer (02/07/17). Click here to obtain online.

  • also recommended: Prof. Doug Linder's (UMKC Law) webpage on "Regulation of Fighting Words and Hate Speech" in his site Exploring Constititutional Conflicts (dated 2017 when viewed 10/28/2017). Page is undated; discusses cases up to Snyder v. Phelps (with links to the opinions). Click here to obtain online.

The role of the "press"
What role do the news media play in constitutional democracy? Is this role threatened?

  • Alice Marwick and Rebecca Lewis, "Media Manipulation and Disinformation Online." Data & Society Research Institute report (May 15, 2017). Read pages 2-48 (notice that several pages are just artwork or mostly empty; and pages 50-56. Click here to obtain online.

New claims about freedom of religion
What new claims are being made on behalf of "free exercise of religion"? Does this pose any threat to other rights and freedoms?

  • Micah Schwartzman, Richard Schragger, and Nelson Tebbe, "The New Law of Religion." Slate (July 3, 2014). Click here to obtain online.
  • Roger Parloff, "Christian Bakers, Gay Weddings, and a Question for the Supreme Court." The New Yorker (Mar. 6, 2017). Click here to obtain online.
  • Scott Shackford, "Justice Department Takes Baker's Side in Gay Wedding Cake Case Before Supreme Court." Reason.com (Sep. 7, 2017). Click here to obtain online.

 

Note: Essay 2 revision due Nov. 16.

 

On Nov. 16, we'll do two topics: a new constitutional convention AND the hackground to Watergate.

The possibility of an Article V constitutional convention

Nov. 16. Be prepared to discuss these proposals for a constitutional convention. Who are the supporters? What are their issue goals, and what are their strategies? What do you think will happen if they succeed in calling such a convention?

 

Historical precedent? The Watergate scandal

Nov. 16

  • Fred Emery, Watergate, chapters 1-4 (about 100 pages)
  • Be prepared to comment on this question: What is wrong, in terms of constitutional democracy, with the activities discussed by Emery prior to the Watergate burglary?
  • There is a good "cast of characters" just before Chapter 1. It will also be helpful to make use of a good Watergate timeline, for example:
    • One with numerous but terse entries from The Washington Post. This one focuses on the dates of particular Washington Post reports, not always on the dates of events. A better detailed-but-terse timeline might be...
    • ...this one from Wikipedia
    • Here is a recent, brief but descriptive one from the PBS Newshour.

Nov. 30

  • Fred Emery, Watergate, remainder (about 380 pages)

 

THIRD ESSAY

Dec. 7

  • Topic: constitutional prospects on your issue from essay 2
    • With reference to the constitutional issue to identified in Essay 2: does this issue present a threat to the administration's survival? A threat of some significant constitutional failure? A threat to democracy generally? As appropriate, refer in your explanation to issues of weakening democratic or civic norms; rhetorical or ideological developments that threaten some aspect of constitutional functioning; and to relevant historical or comparative examples.

 


This page written by Randall Calvert  2017
Comments and questions to calvert at wustl.edu
Thursday 2:30-5:30
classroom: Seigle 111

Jump directly to CURRENT topics & assignments

Textbooks

all except Ackerman are available at the Campus Store:

  • Bruce Ackerman, The Decline and Fall of the American Republic (2010)
  • Kim Phillips-Fein, Invisible Hands (2010)
  • Theda Skocpol & Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism (2016)
  • Thomas Mann & Norman Ornstein, It's Even Worse Than It Looks, rev. ed. (2016)
  • Fred Emery, Watergate (paperback edition, 1995)

Course Requirements

Three papers, at least as shown in course outline and schedule at left. Each is to be at least 1600 words in length, and the total length of the three essays is to be at least 5700 words (for example, two essays of 1600 words and one essay of 2500).

  • Using Times New Roman 12 point with 1-inch margins, a 1600-word essay will amount to about 4-5 pages in text length.  In all cases, don't worry if the length is a bit greater.
  • These aren't formal research papers, but rather more in the nature of well informed long-form essays. You should bring in outside material to apply course ideas to a chosen topic. The more you can connect ideas from the assigned readings to your essay topic, the better.

Revised essays. As required for every WI course, you must revise each essay based on my feedback concerning both style and content. Graded first-try essays will be handed back within a few days, and the revisions will be due several days later, as specified in the course outline and schedule.

The course grade will be derived as follows: 2/3 from the main essays and 1/3 from weekly discussion

  • In turn, the essay grade will be weighted as follows: 2/3 for the first drafts, 1/3 for re-written drafts.
  • weekly discussion includes classroom participation, brief presentations of your essay research, and any weekly precis on the readings.
  • I will give you private feedback on class participation along the way.

Resources

Trump timelines