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. Shared.
  • 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.
    • For curiosity or reference, you can find the very short full opinion in US v. Hudson & Goodwin here.
  • 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
The origin of American judicial review

  • Brutus, essays XI, XII, XV brief excerpts (thanks to Mrs. Newmark's APGov site at Raleigh Charter HS); and Alexander Hamilton, The Federalist #78.
  • Robert Lowry Clinton, "Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison." American Journal of Political Science Vol. 38, No. 2 (May, 1994), pp. 285-302. Click here to obtain online. We will not discuss the two game theory sections, on pp. 288-294.
  • Sanford Levinson, "Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn't Either." Wake Forest Law Review Vol. 38 Issue 2 (2003), pp. 553-578. Click here to obtain online.
    • Note to future users: The two replies Levinson includes at the end of his article are the best part, once you've read the article itself. The ultimate conclusion is: yes, we should teach Marbury -- but let's be clear on the reasons!
  • Sylvia Snowiss, "From Fundamental Law to the Supreme Law of the Land: A Reinterpretation of the Origin of Judicial Review." Studies in APD Vol. 2 Issue 1 (1987), pp. 1-67. Shared.

(Mar. 14 Spring Break)

Mar. 21 discussion of student projects

 

III. Informal institutions & constitutional change

Mar. 28
Slavery, secession, and the long-run electoral consequences

  • 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.

Apr. 4
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.
  • Mark Tushnet, "Constitutional Hardball." John Marshall Law Review Vol. 37, Issue 2 (Winter 2004), pp. 523-553. Click here to obtain online.
  • Joseph Fishkin and David E. Pozen, "Asymmetric Constitutional Hardball." Columbia Law Review Vol. 118, Issue 1 (2018), pp. 1-64. Click here to obtain online pre-print.
  • Daphna Renan, "Presidential Norms and Article II." Harvard Law Review, forthcoming (Vol. 131, June 2018) (88 pages). Shared.

Apr. 11
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. Skip all but the Intro of Section IV; and skip sub-section V.A. Shared.
  • Mark A. Graber, "Settling the West: The Annexation of Texas, The Louisiana Purchase, and Bush v. Gore." Chapter 5 in Levinson and Sparrow, eds., The Louisiana Purchase and American Expansion, 1803-1898 (Rowman & Littlefield, 2005). Shared.
  • Sanford Levinson, "Why the Canon Should Be Expanded to Include The Insular Cases and the Saga of American Expansionism." Constitutional Commentary Vol 17, Issue 2 (Spring 2000): pp. 241-266. Click here to obtain online.
  • 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. Shared.

Apr. 18
The commerce power and the gilded age

  • Howard Gillman, "How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891." American Political Science Review Vol. 96 No. 3 (Sept. 2002), pp. 511-526. Click here to obtain online.
  • Elizabeth Sanders, "Rediscovering the Progressive Era." Ohio State Law Journal Vol 72 No. 6 (2011), pp. 1281-1294. Click here to obtain online.
  • Robert L. Rabin, "Federal Regulation in Historical Perspective." Stanford Law Review Vol. 38 (May 1986), pp. 1189-1326. We will discuss only the Intro and Sections I through IV, about 47 pages, covering the populist/progressive era. Click here to obtain online.
  • William E. Forbath, "Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law." Law & Social Inquiry Vol. 16, Issue 1 (Winter 1991), pp. 1-34. Click here to obtain online.

Apr. 25
The Civil Rights Revolution


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.