American Constitutional Development
Political Science 711 (Spring 2012)

Syracuse University

Instructor: Tom Keck
Phone: (315) 443-5862
E-mail: tmkeck@maxwell.syr.edu
Class meets: T 12:30-3:15, Tolley 204
Office Hours: T 3:30-4:30 or by appointment, 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, and perhaps even listen to some lectures, for my undergraduate Constitutional Law courses, PSC 324 and PSC 325. Audio recordings of all lectures in both classes are available on-line, linked from the syllabi.

Course readings

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 designated with an asterisk (*) below. But you may not even need to purchase all of those. We'll talk about this on the first day of class. 

As this list suggests, we will be reading selections from a wide range of books this semester. As indicated in the course schedule below, many of these selections are available in pdf form, under the "Assignments" tab in Blackboard; on electronic reserve, also accessible through Blackboard; on-line, linked from this syllabus; and/or in hard copy, in a box of readings located in Eggers 100. We'll discuss all of this during our first meeting.

Course requirements

Course grades will be based on class participation, three analytic essays engaging with the course readings, and a longer research paper (or 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 (having once been one 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 I'd like these papers to serve two goals in particular. First, and most importantly, you should use them to engage with some aspect of the week's readings in a critical way; in other words, you should advance an argument of your own, rather than simply summarizing the arguments made by the scholars we are reading. Second, you should strive to teach the other members of the class about something that they may not know. In this light, it may be necessary to read beyond the required readings during the weeks that you are writing. This could mean additional chapters beyond those selections that I have required from a particular book, or it could mean an article or (portions of) a book that appears on the list of recommended readings for that week.

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 paper or proposal (30% of the total grade):

For this assignment, you should prepare an initial draft of a larger research paper on a subject of your choice (within the field of American constitutional development, of course). 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" paper 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 papers should be roughly 10-15 pages. Depending on the particular form that your paper 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.

Depending on the form that your paper takes, I may add some additional requirements to go along with it. If you style it as an early draft of a conference paper, for example, I will ask you to prepare an abstract of fewer than 500 words, and to identify one or more conferences to which you would be willing (at least hypothetically) to submit this abstract as a proposal for presentation. If you style it as a proposal for funding, I will ask you to identify one or more sources of funding to which you would be willing to submit that proposal (again, at least hypothetically). I will provide some guidance on all this in class.

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.

And back to the research papers: 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 papers, 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 papers themselves will be due roughly a week after that.

Course policies

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 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. For fall and spring semesters, an online notification process is 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.

Course schedule

January 17: Course introduction. No required reading for today, but in class, I will distribute chapter one of American Constitutionalism, vol 1: Structures of Government, edited by Howard Gillman, Mark Graber, and Keith Whittington. This is a forthcoming casebook, scheduled for publication in Fall 2012, to which we will make regular reference in class. The individual chapters are available on Blackboard, and I encourage everyone to read/skim as many of them as you can. Henceforward, I refer to the book as "GGW."  

January 24: 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 (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 and Smith; do they change your mind at all?

Recommended

January 31: 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?

Recommended

February 7: 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 Chapter 4 are worth a look, and I higly recommend Keith Whittington's account of the impeachment of Justice Samuel Chase.

Recommended

February 14: Slavery and the Constitution in Jacksonian America

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? In addition to the required readings, I highly recommend Mark Graber's Dred Scott and the Problem of Constitutional Evil, particularly Part II: The Constitutional Politics of Slavery.

Reminder: If you have not yet submitted a paper, you should do so this week.

Recommended

February 21: Civil War and 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, but we will focus on two in particular: (1) During and after the war, the three branches of the federal government engaged in repeated conflicts regarding the limits of presidential power. What implications do President Lincoln's actions and arguments have for modern debates on this issue? How about President Johnson's? (2) 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 is their most significant legacy for 21st-century constitutional conflicts?

Recommended

February 28: The Abandonment of Reconstruction

Why did the promise of the 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.

Recommended

March 6

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 13: Spring break. No class.

March 20: 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? If you have a particular interest in this era, I recommend taking a look at GGW Chapter 7.

Recommended

March 27: The Progressive Era

Now that we've made it to the 20th century, some recognizable debates regarding modern conceptions of civil rights and civil liberties start to emerge. Klarman's 2004 opus on civil rights has received widespread acclaim, which almost justifies its length. Drawing on his account, what was the status of civil rights, particularly for African-Americans, during the Progressive Era? Drawing on Rabban, what was the status of free speech at this time? The materials in GGW Chapter 7 remain relevant this week as well.

Recommended

April 3: 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?

In addition to a number of scholarly works, I've listed a small set of excerpts from GGW Chapter 8; the rest of the chapter is great too, so skim through some of it if you're so inclined. Among the recommended readings, Cover's 1982 article provides a nice account of the origins of modern civil rights and civil liberties jurisprudence, as does Gillman's 1994 article on "preferred freedoms" that is noted above. On this subject, my favorite Supreme Court decisions are Minersville v. Gobitis (1940) and West Virginia v. Barnette (1943).

On a related subject, McMahon's book offers a great account of the constitutional politics of the Roosevelt administration; I've only put one chapter on reserve here, but read more if you can, particularly chapter three on FDR's court-packing plan. 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?

Oh, and one last question to think about: What implications do the New Deal constitutional conflicts have for the constitutionality of President Obama's Affordable Care Act?

Recommended

April 10: 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)

Recommended

April 17: The Great Society and the Warren Court, or The 20th Century Rights Revolution

Picking up on our discussion of Brown, we turn to the broader "rights revolution" of the 1960s. What, precisely, was the Court up to during this remarkable decade? And why? Ely's book is the only work of normative constitutional theory that we're reading this semester, but it's worth looking at for at least two reasons. For one thing, it's the single most influential such work published in the past 40 years or so. In addition, its normative account is presented as a description as well as a justification of the Warren Court, so it is useful in empirical/historical terms as well. According to Ely, what was the Warren Court doing? How, if at all, does Powe's account differ? If you find Powe's account interesting, be sure to check out his longer statement of it in The Warren Court and American Politics, the full text of which is available through Bird Library's website. The materials from GGW chapter 8 remain relevant here, and there is good stuff in GGW Chapter 9 too.

Recommended

April 24: The Republican Realignment and Constitutional Change

To what extent did the Republican Party of the Nixon/Reagan/Bush era succeed in entrenching its governing ideology in constitutional law? Looking to the future, what role is the Roberts Court likely to play in the Obama era, assuming that such an era exists? If you have time, skim some of the relevant materials in GGW chapters nine, ten, and eleven.

Recommended

May 1

Today will be devoted primarily to your presentations on your research papers/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 to think about how this course material relates to your evolving professional identity.

May 7: Final papers due, in my mailbox in Eggers 100.