PS 5291 American Constitutional Development

Spring 2018

The development of American understandings of the Constitution, from the Framing era to the present. The course focuses on important changes in constitutional meaning and application; the processes by which such change occurs; and the role of constitutional issues in American political rhetoric and political strategy. In doing so, it develops ideas about constitutional interpretation, constitutional theory, and political argument. This course is intended primarily to supplement the training of graduate students specializing in associated fields such as judicial politics and American political institutions.

 

Course Outline and Approximate Schedule

I. Conceptual background

Jan. 17
Preliminaries

Please read in advance of the first meeting:

  • Russell Hardin, "Why a Constitution?" In Bernard Grofman and Donald Wittman, eds., The Federalist Papers and the New Institutionalism, pp. 100-120. (New York: Agathon Press, 1989). Shared.

Jan. 24
Main ideas: Constitutional development

  • Karen Orren and Stephen Skowronek, The Search for American Political Development (Cambridge 2004). Chapter 4, pp. 120-143. Shared.
  • Ronald Kahn and Ken I. Kersch, "Introduction," Chapter 1 in Kahn and Kersch, eds., The Supreme Court & American Political Development. University Press of Kansas (2006). Shared.
  • Keith E. Whittington, Constitutional Construction. (Harvard Univ. Press 2001), Chapter 1. Shared.
  • Aziz Z. Huq and Tom Ginsburg, "How to Lose a Constitutional Democracy" SSRC working paper (January 18, 2017), 78 pages. Forthcoming, UCLA Law Review Vol. 65 (2018). Click here to obtain online.

Jan. 31
Three American Republics?

  • Bruce Ackerman, We The People: Volume 2, Transformations. (Harvard Univ. Press, 1998).

Feb. 7
Main Ideas: Constitutions and their meaning

  • An example of the Article-V oriented "professional narrative" to which Ackerman referred:
    • William Bradford Reynolds, "Another View: Our Magnificent Constitution." Vanderbilt Law Review 40 (Nov. 1987), pp. 1343-1351. Click here to obtain online.
    • For reference, here's the speech/article Reynolds is criticizing: Thurgood Marshall, "Commentary: Reflections on the Bicentennial of the United States Constitution." Harvard Law Review Vol. 101, No. 1 (Nov. 1987), pp. 1-5. Click here to obtain online.
  • Barry R. Weingast, "The Political Foundations of Democracy and the Rule of Law." APSR (1997). Click here to obtain online.
  • Randall Calvert, "Rational Actors, Equilibrium, and Social Institutions." In Knight & Sened, eds., Explaining Social Institutions (1998). (Skim for main ideas; don't do the math!). Shared.
  • David Strauss, "Common Law, Common Ground, and Jefferson's Principle." Yale Law Journal, Vol. 112, No. 7 (May, 2003), pp. 1717-1755. Click here to obtain online.
  • Stephen R. Munzer and James W. Nickel, "Does the Constitution Mean What It Always Meant?" Columbia Law Review, Vol. 77, No. 7 (Nov., 1977), pp. 1029-1062. Click here to obtain online.

 

II. Development of Formal Institutions

Feb. 14
Elections and parties

  • Richard P. McCormick, The Presidential Game: The Origins of American Presidential Politics (Oxford, 1982). Chapters 1-3 (72 pages) and pages 182-206 from Chapter 6. Shared.
  • Steven Levitsky and Daniel Ziblatt, "How a Democracy Dies." The New Republic (Dec. 7, 2017). Click here to obtain online.
  • Kathleen Bawn et al., "A Theory of Political Parties: Groups, Policy Demands, and Nominations in American Politics." Perspectives on Politics Vol. 10, Iss. 3 (Sep. 2012), pp 571-597. Click here to obtain online.

Feb. 21
The executive and presidential powers

  • Lawrence Lessig and Cass R. Sunstein, "The President and the Administration." Columbia Law Review, Vol. 94, No. 1. (Jan., 1994), pp. 1-123. Click here to obtain online.
  • Stephen Skowronek, "The Conservative Power of Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive." Harvard Law Review Vol. 122 (2009), pp. 2070-2103. Click here to obtain online.
  • McNollgast, "The Political Origins of the Administrative Procedure Act." Journal of Law, Economics, & Organization Vol. 15, No. 1 (Apr., 1999), pp. 180-217. Click here to obtain online.
  • Jeffrey Crouch, Mark J. Rozell, and Mitchel A. Sollenberger, "The Law: The Unitary Executive Theory and President Donald J. Trump." Presidential Studies Quarterly Vol. 47, Iss. 3 (Sep. 2017), pp. 561-573. Click here to obtain online.

Feb. 28
The justice system

  • Keith E. Whittington, "Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution." Studies in American Political Development, Vol. 9 (Spring 1995), pp. 55-116. Click here to obtain online.
  • Gary D. Rowe, "The Sounds of Silence: United States v. Hudson & Goodwin, the Jeffersonian Ascendancy, and the Abolition of Common Law Crimes." Yale Law Journal Vol. 101, No. 4 (Jan. 1992), pp. 919-948. Click here to obtain online.
  • Jed Handelsman Shugerman, "The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service." Stanford Law Review Vol. 66 Issue 1 (Jan. 2014), pp. 121-172. Click here to obtain online.
  • 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.

Mar. 7 TBD (see below under III)

(Mar. 14 Spring Break)

Mar. 21 discussion of student projects

 

III. Informal institutions & constitutional change

Topics & readings for Mar. 7, Mar. 28, Apr. 4, Apr. 11, Apr. 18 and Apr. 25 TBD; suggestions welcome.

Possible additional topics and readings include:

Informal institutions

  • 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.
  • Gretchen Helmke and Steven Levitsky, "Informal Institutions and Comparative Politics: A Research Agenda." Perspectives on Politics Vol. 2, No. 4 (Dec., 2004), pp. 725-740. Click here to obtain online.
  • John M. Carey, "Parchment, Equilibria, and Institutions." Comparative Political Studies Vol 33, Issue 6-7 (Sept. 2000), pp. 735-761. Click here to obtain online.
  • E.J. Dionne, Jr., Norm Ornstein, and Thomas E. Mann, "How the GOP Prompted the Decay of Political Norms." The Atlantic (Sept. 19, 2017) Click here to obtain online.

Slavery, secession, and reconstruction

  • William M. Wiecek, "The Witch at the Christening: Slavery and the Constitution's Origins." In Levy and Mahoney, eds., The Framing and Ratification of the Constitution (Macmillan, 1987), pp. 167-184. Shared.
  • Arthur Bestor, "The American Civil War as a Constitutional Crisis." The American Historical Review Vol. 69 (1964), pp. 327-352. Click here to obtain online.
  • Barry R. Weingast, "Political Stability and Civil War: Institutions, Commitment, and American Democracy." In Bates et al., eds., Analytic Narratives (Princeton Univ. Press, 1998). Shared.
  • Avidit Acharya, Matthew Blackwell, and Maya Sen, "The Political Legacy of American Slavery." Journal of Politics Vol. 78 No. 3 (July 2016), pp. 621-641. Click here to obtain online.

Jim Crow and civil rights

  • Jeffery A. Jenkins, Justin Peck, and Vesla M. Weaver, "Between Reconstructions: Congressional Action on Civil Rights, 1891-1940." Studies in American Political Development Vol. 24 (Apr. 2010), pp. 57-89. Click here to obtain online.
  • Richard M. Valelly, "Party, Coercion, and Inclusion: The Two Reconstructions of the South's Electoral Politics." Politics & Society Vol 21, Issue 1 (Mar. 1993), pp. 37-67. Click here to obtain online.
  • David A. Strauss, "The Common Law Genius of the Warren Court." William & Mary Law Review vol. 49 issue 3 (2007-2008), pp. 845-879. Click here to obtain online.
  • Bruce Ackerman and Jennifer Nou, "Canonizing the Civil Rights Revolution: The People and the Poll Tax." Northwestern University Law Review Vol. 103, No. 1 (2009), pp. 63-148. Click here to obtain online.
  • Brad Snyder, "How the Conservatives Canonized Brown v. Board of Education." Rutgers Law Review Vol. 52 No. 2 (Winter 2000), pp. 383-494. Click here to obtain online.

Empire: Constitutional implications of territorial acquisition

  • Robert Knowles, "The Balance of Forces and the Empire of Liberty: States' Rights and the Louisiana Purchase." Iowa Law Review Vol. 88, Issue 1 (Oct. 2003), pp. 343-419. Shared.
  • Gary Lawson and Guy Seidman, "The First 'Incorporation' Debate," in Levinson and Sparrow, eds., The Louisiana Purchase and American Expansion, 1803-1898 (21 pages). Shared.
  • Charles Stewart III and Barry R. Weingast, "Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development." Studies in American Political Development Vol. 6 (Fall 1992), pp. 223-271. Click here to obtain online.
  • [the Insular Cases]
  • [Indian Law: The Constitution and Native Americans]
  • [The national security state]

 

Additional possible topics:

  • Constitutional change via a convention of the states?
  • The constitutional significance of "landmark legislation" or "superstatutes"
    • via Ackerman on the civil rights revolution;
    • or more broadly via Eskridge & Ferejohn, A Republic of Statutes
  • Presidential powers in foreign and military policy
  • Presidential removal and replacement
  • More on elections & parties, the executive branch, or the justice system
    • development of the administrative state
    • development of the welfare state
    • independence of US Attorney investigation/prosecution
  • More on economic regulation: the Gilded Age / Lochner Era / Progressive Era; the New Deal

 


This page written by Randall Calvert ©2018
Comments and questions to calvert at wustl.edu
Wednesday 4:00-6:00
classroom: Seigle 272

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Where to obtain readings

Students should order on their own:

  • Bruce Ackerman, We The People: Volume 2, Transformations. Harvard Univ. Press (1998)

Links are supplied in the Course Outline for all readings available online. Additional readings will be made available in a shared Box folder.

Course Requirements

  • Weekly precis: for each week's readings, email me and your fellow students by noon each Wednesday with a page or so commenting on some aspect or aspects of at least two of the assigned readings (two chapters, if only a single book is assigned). You should propose an interesting issue in the readings for possible discussion in class.
  • Research proposal: By end of semester, you should complete a 10-15 page (that is, about 1800-2500 words) research proposal examining APD-related questions using statistical or positive-theory methods; or if you prefer, one using the methods and perspectives of APD or normative theory. We will set aside one class meeting, sometime in March, for preliminary discussion of your research plans.