American Constitutional Development
Political Science 711 (Spring 2014)
Instructor: Tom Keck
Phone: (315) 443-5862
Class meets: W 9:30-12:15, MAX 309A
Office Hours: W 1:30-3:00, EGG 100
Course content and objectives
In this course, we will explore the development of the American constitutional order over time. In doing so, we will examine questions like the following: Does the current American republic have a meaningful relationship to the one envisioned by the framers? To what extent, and in what ways, have our governing institutions changed since 1789? How have those changes been brought about, and by whom? Transformative judicial opinions? Reconstructive presidential actions? Popular demands? What is left of the authority of the Constitution if our understanding of it keeps changing as society changes? What role have constitutional ideas and institutions played in broader patterns of political development? Conversely, what role have such broader political developments played in shaping the Constitution?
My principal goals for the course, the applicability of which will vary from student to student, are (a) to prepare you to write a doctoral dissertation in the field of law and courts; (b) to prepare you to teach undergraduate courses in Constitutional Law, which is a marketable skill whether or not you are planning to write a dissertation in the field; (c) to improve your grasp of American political and constitutional history in ways that will profitably inform a wide variety of research projects in American politics; and (d) to prepare you for qualifying exams in the fields of American Politics and Law & Courts. If none of those options seem relevant to you, the course should at least help you have informed conversations about American constitutionalism with present and future colleagues, and perhaps we can identify some other relevant goals as well.
As we proceed through the semester, some of you may find it helpful to review the syllabi for my undergraduate Constitutional Law courses, PSC 324 and PSC 325. I also have audio recordings of some of my lectures in those courses, which I can make available for anyone who's interested.
The following books will be available at the University Bookstore, but I do not expect you to purchase all of them. When deciding which ones to purchase, I recommend starting with the ones listed as required, but you may not even need to purchase all of those. We'll talk about this on the first day of class.
Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Harvard, 2005).
Akhil Amar, The Bill of Rights: Creation and Reconstruction (Yale, 1998).
Michael Kent Curtis, Free Speech, "The People's Darling Privilege" (Duke, 2000).
Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford, 2004).
David Rabban, Free Speech in its Forgotten Years (Cambridge, 1999).
Gerald Rosenberg, The Hollow Hope, 2nd edition (Chicago, 2008).
Akhil Amar, America's Constitution: A Biography (Random House, 2005).
Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (Cambridge, 2014).
Justin Crowe, Building the Judiciary: Law, Courts, adn the Politics of Institutional Development (Princeton, 2012).
Howard Gillman, The Constitution Besieged: The Rise and Decline of Lochner Era Police Powers Jurisprudence (Duke, 1993).
Risa Goluboff, The Lost Promise of Civil Rights (Harvard, 2010).
Gillman, Graber, Whittington, American Constitutionalism, vol. 1 (referred to as GGW vol. 1 below)
Gillman, Graber, Whittington, American Constitutionalism, vol. 2 (referred to as GGW vol. 2 below)
Mark Graber, A New Introduction to American Constitutionalism (Oxford, 2013).
Stephen Griffin, Long Wars and the Constitution (Harvard, 2013).
Thomas M. Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago, 2004).
George Lovell, This is Not Civil Rights (Chicago, 2012).
As this list suggests, we will be reading selections from a wide range of books this semester. As indicated in the course schedule below, some of these selections will be available under the "Assignments" tab in Blackboard or in a box of readings located in Eggers 100. We'll discuss all of this during our first meeting.
Course grades will be based on class participation, three analytic essays engaging with the course readings, and a longer research proposal on a topic of your choice.
Class participation (25% of the total grade): All students should come to class every week with a point of view (or at least some thoughtful questions) about the assigned materials. Since the class will be conducted in a seminar format, this is our single most important requirement. I expect everyone to participate in the debates raised by the readings -- to think about the arguments, reject some positions, embrace others, and defend the choices you make. This means that you should be an active, critical, and tenacious reader. At the same time, remember that it is always easier to find the weakness of an argument than to appreciate its strengths, and so you should make a special effort to understand the author's point of view. The reading load is heavy, but I do recognize that a graduate student's schedule can at times be overwhelming. (It's been a while, but I was once a grad student myself). If there is a particular class session for which you are unprepared, please let me know in advance.
Analytic essays (15% each, 45% total): Each student will complete three of these during the course of the semester. Each one should be about 4-5 pages, and each is due in class during the week that we are discussing the material that you address in the essay. I would like everyone to submit at least one of these papers in the first month or so of the semester.
You can write about anything that is relevant to the week's readings, but you should be sure to do so in a way that advances an argument of your own, rather than simply summarizing the arguments made by the scholars we are reading. My recommendation is to pick one of the required readings assigned for a particular week; if it's a portion of a larger work, find a copy of the whole book and read as much of it as you can; then critically engage with the work's central argument.
The papers themselves are due in class, but a day or so beforehand (or earlier if you can), you should email all members of the class with a quick summary of what you are planning to write. We will use Blackboard's "send email" feature for this task.
Research proposal (30% of the total grade):
For this assignment, you should prepare a proposal for a research project within the field of American constitutional development, broadly defined. We will talk further about the precise form that this paper should take, but I encourage you to think of it as something that you will continue to work on in the future, rather than as a discrete assignment that you will be done with in May. For example, you could think of it as a first draft of a disseration proposal, a proposal for an NSF Dissertation Improvement Grant, or a conference paper. In this light, you should feel free to conceive of a research project that you cannot actually complete by the end of our semester. Put another way, the "finished" proposal can be a work in progress, although it should, of course, evidence a significant amount of work already completed.
In thinking about what you might want to write about, I encouage you to start by trying to identify a puzzle of some sort that merits further examination. As we work our way through the required readings, keep your eyes peeled for apparent incongruities between your observation of the real world (or the historical record of the real world) and the existing scholarly literature. Is there a particular event (or set of events) that seems not to fit with existing scholarly descriptions of American constitutionalism? Does this suggest that the existing accounts are wrong or incomplete? Or that the event is not as it first appears? Starting with week one, I will repeatedly press each of you to begin identifying fruitful research questions along these lines (and I will sometimes suggest some of my own as well).
When "finished," these proposals should be roughly 10-15 pages. Depending on the particular form that your proposal takes, it should probably include a clear statement of an empirical research question; a preliminary answer to that question (i.e., a hypothesis, though you need not use such lingo); a clear statement of why this question is interesting or significant, and how it fits with the existing literature; a preliminary description of how you would go about answering this question; and a thorough bibliography.
Your topic must be approved by me no later than the date of our last class before Spring Break. In fact, you'll be making a short presentation on your work in progress that day. In thinking about your proposal, you may wish to consult this set of written paper expectations that I sometimes distribute to undergraduates; some of these guidelines may be old hat to you, but take a quick look just in case. We will have presentations of the almost-completed works during our final class session, and the proposals themselves will be due roughly a week after that.
A note on professional development: While we're on the subject, I encourage those of you who are Ph.D. students in political science to do the following things before the end of the semester (if you haven't done them already): (a) become a member of APSA; (b) identify at least one conference in the coming year which you will attend; (c) identify at least one professional journal which you will begin to read on a regular basis.
Academic integrity: The Syracuse University Academic Integrity Policy and the Maxwell School's Code of Conduct hold students accountable for the integrity of the work they submit. Students should be familiar with these policies, as it is their responsibility to ensure that they adhere to them. Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty is plagiarism, which SU policy defines as "the use of someone else's language, ideas, information, or original material without acknowledging the source." In addition to the rules specified in the SU and Maxwell policies, you may not submit written work in this class that has also been submitted in another class, unless you have received express written permission to do so from the instructors of both classes. If you are caught violating any of these rules, my policy is to assign an F for the course and then to refer the matter to the Maxwell Dean's Office for possible additional sanctions.
Student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous.
Reasonable accommodation: If you believe that you need accommodations for a disability, please contact the Office of Disability Services (ODS), located in Room 309 of 804 University Avenue (ph. 443-4498), to discuss your needs and the process for requesting accommodations. ODS is responsible for coordinating disability-related accommodations and will issue students with documented disabilities Accommodation Authorization Letters, as appropriate. Since accommodations may require early planning and generally are not provided retroactively, please contact ODS as soon as possible.
Religious holidays: SU’s religious observances policy recognizes the diversity of faiths represented among the campus community and protects the rights of students, faculty, and staff to observe religious holy days according to their tradition. Under the policy, students are provided an opportunity to make up any examination, study, or work requirements that may be missed due to a religious observance provided they notify their instructors before the end of the second week of classes. An online notification process will be available through MySlice/Student Services/Enrollment/My Religious Observances from the first day of class until the end of the second week of class.
Office hours and email communication: My regular office hours are listed above, but you are welcome to make an appointment for some other time, or simply to drop by. If you just have a quick question, I encourage you to reach me by email. In addition, all students should check their SU email accounts regularly throughout the semester, as we will often use Blackboard's "send email" feature to contact each other.
January 15: Course introduction. No required reading for today.
January 22: Philadelphia, 1787
We begin with the founding--that is, the drafting of the Constitution in Philadelphia in the summer of 1787 and its subsequent ratification by popularly elected conventions in each state. We could, of course, start even earlier. As American political development scholars have long emphasized, all political change takes place on a prior ground; all new institutions are created by pre-existing ones, and the same is certainly true of the 1787 Constitution. If you're interested in the years leading up to the Constitutional Convention, you might start with GGW's chapter on the colonial period (vol 1, ch. 2). Another valuable source is The Founders' Constitution, edited by Phillip Kurland and Ralph Lerner, which organizes key primary documents by reference to the clause of the constitutional text to which they are most relevant.
We will start, however, with a set of primary documents contained in GGW's chapter on the founding. As you review these materials, think about the following question: If you had one hour to teach a room full of undergraduates about the 1787 Constitution, what would you emphasize? Then take a look at the selections from Amar, Smith, and Nedelsky; do they change your mind at all? Come to class prepared to discuss your lesson plan.
Bruce Ackerman, We the People, Volume 2: Transformations, "Reframing the Founding" (chapter 2)
Robert Dahl, How Democratic is the American Constitution?
Robert Dahl, "James Madison: Republican or Democrat?," Perspectives on Politics 3 (Sept. 2005): 439-48
Stephen Elkin, Reconstructing the Commercial Republic, chapter 2
Paul Finkelman, Slavery and the Founders, especially "Making a Covenant with Death" (chapter 1)
Calvin Johnson, Righteous Anger at the Wicked States
Ralph Ketcham, Framed for Posterity
Larry Kramer, The People Themselves
Alison LaCroix, The Ideological Origins of American Federalism
Sanford Levinson, Our Undemocratic Constitution
Jack Rakove, Original Meanings
David Brian Robertson, The Constitution and America's Destiny
Sean Wilentz, The Rise of American Democracy, prologue and chapter 1
Gordon Wood, The Creation of the American Republic, 1776-1787
January 29: Ratification and the Bill of Rights
Almost as soon as it took effect, the 1787 Constitution was significantly modified. Why? What defects needed repair? Was the Bill of Rights fundamentally consistent with the original Constitution, or did it mark a radical departure? What is the overriding theme of those first ten amendments? In the GGW materials, pay particular attention to James Madison's June 1789 speech proposing the Bill of Rights, also available on-line. Compare Madison's proposed amendments to the actual Bill of Rights that we wound up with. Which is better?
February 5: The Revolution of 1800, and Judicial Review
We began our historical tour by discussing the founding, but it turns out that the American constitutional system has had not one, but multiple, founding moments. Or, at least, that is the contention of a number of prominent scholars, most notably Akhil Amar and Bruce Ackerman. This week, we will focus on the so-called "revolution of 1800"--a moment at which the Constitution almost ended in dramatic failure and through which the Constitution's meaning was radically altered. So, at any rate, contends Ackerman.
On a related note, it was from amidst the polarizing political conflicts of 1800 that the Supreme Court's power of judicial review arose. What is the conventional story of Marbury v. Madison (1803)? Is that story accurate?
And finally, what do you make of the Sedition Act, which appears to our modern eyes to be flatly unconstitutional, but which was enthusiastically enforced by federal judges?
In addition to the required readings listed below, the materials in GGW's two chapter fours are worth a look, and I higly recommend Keith Whittington's account of the impeachment of Justice Samuel Chase as well.
Michael Klarman, "How Great Were the 'Great' Marshall Court Decisions?" Virginia Law Review 87 (October 2001): 1111-1184.
Jack Knight & Lee Epstein, "On the Struggle for Judicial Supremacy," Law and Society Review 30 (1996): 87-130.
Sanford Levinson, "Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn't Either." Wake Forest Law Review 38 (Summer 2003): 553.
Robert McCloskey, The American Supreme Court, ch. 1-3
Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis
Stephen Skowronek, The Politics Presidents Make, chapter 4
Rogers Smith, Civic Ideals, ch. 7
Keith Whittington, Constitutional Construction, "The Chase Impeachment and Shaping the Federal Judiciary" (chapter 2)
Sean Wilentz, The Rise of American Democracy, section I.
February 12: Slavery and Civil War
Returning to a topic that we addressed in the context of the founding, how did the southern commitment to slavery shape the Constitution? And how did that Constitution shape political conflict over slavery in turn? What are the implications of the Dred Scott v. Sandford (1857) for current constitutional politics? How about President Lincoln's suspension of habeas corpus in 1861? In addition to the assigned pages from GGW vol. 1, I recommend chapters 5 and 6 of GGW vol. 2, as well as Part II of Mark Graber's Dred Scott and the Problem of Constitutional Evil.
Note that if you have not yet submitted a paper, you should do so this week.
February 19: The Promise and Failures of Reconstruction
Was the Constitution remade during Reconstruction? In what sense? Was "the Constitution" that we refer to today born in 1787 or 1868? The period of Civil War and Reconstruction featured a remarkable array of conflicts regarding almost every feature of the Constitution. We may continue our conversation from last week regarding executive power, as President Johnson's actions and arguments, like President Lincoln's before him, had a significant impact on subsequent developments. But we'll likely focus on two different issues: (1) The Thirteenth, Fourteenth, and Fifteenth Amendments appeared to mark a momentous change in the constitutional status of African Americans. Did these amendments amount to "a new birth of freedom" for the former slaves? For others? What are their chief implications for constitutional conflicts today? (2) Why did the promise of these Reconstruction amendments go unfulfilled for so long? Was this the fault of the Supreme Court? If so, why did a Court built by Presidents Lincoln and Grant abandon African American rights? If not, then whose fault was it? What exactly was abandoned, and when did the abandonment happen? What does this story teach us about the relationship between the Supreme Court and governing political regimes?
Note that Dahl's article has nothing to do with Reconstruction, but does directly address the latter question. It also happens to be the single most influential article on the Supreme Court ever published by a political scientist. Note also that the total volume of reading listed here is on the heavy side. I may shorten it somewhat, but I haven't yet decided how best to do so.
Bruce Ackerman, We the People, volume 2: Transformations, Part II
Richard Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859-1877
Justin Crowe, Building the Judiciary, ch. 4
Lee Epstein and Thomas G. Walker, "The Role of the Court in American Society: Playing the Reconstruction Game," in Contemplating Courts, ed. Lee Epstein (CQ Press, 1995)
Eric Foner, Reconstruction
Barry Friedman, The Will of the People, ch. 4
Earl M. Maltz, Civil Rights, The Constitution, and Congress, 1863-1869
William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine
Julie Novkov, Racial Union
Stephen Skowronek, The Politics Presidents Make, chapter 6
Rogers Smith, Civic Ideals, ch. 9-10
Richard Vallely, The Two Reconstructions, ch. 5
Justin Wert, Habeas Corpus in America, ch. 3
Rebecca Zietlow, Enforcing Equality, ch. 3
February 26: The Gilded Age, aka the Lochner Era
What were the justices doing during the Lochner era? What does Gillman mean when he describes this era as a story of "judicial fidelity to crumbling foundations"? Is he right? What is Lochner's legacy for the contemporary Court? Is the argument in Gillman's 2002 article consistent with the argument in his 1993 book?
Richard Bensel, The Political Economy of American Industrialization, 1877-1900
David Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform
Daniel Carpenter, The Forging of Bureaucratic Autonomy
Justin Crowe, Building the Judiciary, ch. 5
William Forbath, Law and the Shaping of the American Labor Movement
Barry Friedman, The Will of the People, ch. 5
Howard Gillman, "More on the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law," Political Research Quarterly 49 (June 1996): 415-37
Mark Graber, Transforming Free Speech, ch. 1
Ken Kersch, Constructing Civil Liberties, ch. 3
George Lovell, Legislative Deferrals
Maglioca, The Tragedy of William Jennings Bryan
Robert McCloskey, The American Supreme Court, ch. 5-6
Nell Irvin Painter, Standing at Armageddon: United States, 1877-1919
Elizabeth Sanders, Roots of Reform
Stephen Skowronek, Building a New American State
Rogers Smith, Civic Ideals, ch. 11
March 5: No new reading this week. Instead, we'll conduct a workshop on our final papers. Come to class with a brief written synopsis of your proposed project. At a minimum, this should include a preliminary statement of a research question, a provisional answer to that question, a preliminary statement of why this question is interesting or significant, a preliminary description of how you will go about confirming your provisional answer to the question, and a preliminary bibliography. Bring enough copies for everyone in the class. (Better yet, distribute them ahead of time through Blackboard.) We'll go through each one together, offering whatever thoughts, suggestions, questions, or feedback we have.
March 12: Spring break. No class.
March 19: The New Deal
If Reconstruction marked a second (or third) founding moment in American constitutional development, did the New Deal mark a third (or fourth)? Put another way, was the Constitution amended during the New Deal era? If so, what were the changes, exactly? And why weren't they formally added to the constitutional text? If not, how do we explain the dramatic differences between the constitutions of 1900 and 2000? Recalling our discussion of Robert Dahl and the "regime politics" approach to the Court, what are the lessons of the New Deal for understanding the relationship between the Court and broader political developments?
Barry Cushman, Rethinking the New Deal Court
Barry Friedman, The Will of the People, ch. 7
Peter Irons, The New Deal Lawyers
Peter Irons, Justice at War
Robert Jackson, The Struggle for Judicial Supremacy
Thomas Keck, The Most Activist Supreme Court, chapters 1-2
Ken Kersch, Constructing Civil Liberties
William Leuchtenburg, "The Origins of Franklin D. Roosevelt's 'Court-Packing' Plan," Supreme Court Review (1966) 347-400; The Supreme Court Reborn
Robert McCloskey, The American Supreme Court, ch. 7
Julie Novkov, Constituting Workers, Protecting Women
Shawn Francis Peters, Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution
Lucas Powe, The Warren Court and American Politics, "The Supreme Court, 1935-1953" (chapter 1)
Stephen Skowronek, The Politics Presidents Make, chapter 7
March 26: The Roots of Modern Civil Liberties
April 2: Brown v. Board
This week, we will explore the causes and consequences of the single most significant constitutional development of the 20th century -- the Supreme Court's 1954 Brown decision. Regarding causes, is the Court's decision best understood as a product of national public opinion? Elite opinion? The civil rights commitments of the governing Democratic coalition? The foreign policy commitments of that coalition? The justices' own policy preferences and moral convictions? The justices' fidelity to existing law? Or something else? Regarding consequences, are you persuaded by Rosenberg's account, Klarman's account, neither, or both? What are the key contemporary implications of their arguments for, say, efforts to protect abortion or gay rights via litigation? Particularly for those of you who are writing this week, I recommend taking a look at Klarman's chapters on WWII (ch. 4-5)
Ellen Ann Andersen, Out of the Closet and Into the Courts
Jack Bass, Unlikely Heroes
Anthony Chen, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941-1972
Mary Dudziak, Cold War Civil Rights
John Hart Ely, Democracy and Distrust
Jennifer Hochschild, The New American Dilemma
Jeffrey Hockett, A Storm over this Court
Thomas M. Keck, "Party Politics or Judicial Independence: The Regime Politics Literature Hits the Law Schools” (a review essay). Law and Social Inquiry 32:2 (Spring 2007): 511-44; “Does the Court Follow the Election Returns?” Reviews in American History 32 (December 2004): 602-609
Philip Klinkner and Rogers Smith, The Unsteady March
Richard Kluger, Simple Justice
Michael McCann, "Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive . . .).” Law and Social Inquiry 21 (Spring 1996): 457-82; “Reform Litigation on Trial.” Law and Social Inquiry 17 (1992): 715-43; Rights at Work
Michael Paris and Kevin J. McMahon. 1998.
“The Politics of Rights Revisited:
Jack Peltason, 58 Lonely Men
Rob Saldin, War, the American State, and Politics Since 1898
John Skrentny, The Minority Rights Revolution, chapters 1-3
Mark Tushnet, Making Civil Rights Law
Richard Vallely, The Two Reconstructions, chapters 7
April 9: Gender, Sexual Orientation, and Constitutional Change
What is the key lesson of Roe v. Wade (1973) for the relationship between judicial politics and democratic politics? How about the more recent litigation regarding same-sex marriage? Does the concept of popular constitutionalism help answer these questions?
Reva Siegel, “The Supreme Court 2012 Term, Foreword: Equality Divided.” Harvard Law Review 127:1 (Nov. 2013): 1-94 (in box and on line)
Charles H. Franklin and Liane C. Kosaki. 1989. “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion.” American Political Science Review 83:3 (Sept.): 751-771.
David J. Garrow, Liberty and Sexuality
Ruth Bader Ginsburg, "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade." North Carolina Law Review 63 (1985): 375-86.
Thomas M. Keck, “Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights.” Law and Society Review 43:1 (March 2009): 151-185
Richard S. Price and Thomas M. Keck, "Movement Litigation and Unilateral Disarmament"
Reva B. Siegel, "Text in Context: Gender and the Constitution from a Social Movement Perspective," Univ. of Penn. Law Review 150 (2001): 297
John Skrentny, The Minority Rights Revolution
April 16: Executive Power
Why did executive power emerge as a key arena of constitutional change over the past 40 years? What have been the key engines driving this change? How significant have the changes been? In addition to the readings listed here, I recommend the relevant materials from GGW vol. 1, ch. 9-11
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard, 2010)
Andrew Rudalevige, The New Imperial Presidency (Michigan, 2005)
Stephen Skowronek, The Politics Presidents Make, chapter 8; "The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive," Harvard Law Review 122: 2070 (2009)
Today will be devoted primarily to your presentations of your research proposals. As is often the case at professional conferences, you will have only a short period of time to review your topic, your argument, and your evidence; you will also have to respond to questions from your fellow students and from me. As you prepare your presentations, you should think about how you can teach us something that we might not have known, so make it a point to be interesting and persuasive.
If we have time, we will also reflect back on the course and discuss which readings you found most useful or interesting. This will help me in revising the course for the future and may also help you think about how the course material relates to your evolving professional identity.
May 5: Final papers due, in my mailbox in Eggers 100.