American Constitutional Development
Political Science 711 (Spring 2016)

Syracuse University

Instructor: Tom Keck
Phone: (315) 443-5862
E-mail: tmkeck@maxwell.syr.edu
Class meets: T 12:30-3:15, MAX 309B
Office Hours: T 3:30-4:30, Th 11:00-12:00

Course objectives (aka learning outcomes)

My principal goals for the course, the applicability of which will vary from student to student, are to:

 

1) Introduce graduate students to the study of law & courts in general and American constitutionalism in particular;

2) Acquaint students with some of the classic works in the field;

3) Acquaint students with some contemporary research in the field;

4) Train students in the art of reading, integrating, and evaluating social science research, both critically and with a generosity of spirit; 

5) Prepare students to write a doctoral dissertation in the field of law and courts;

6) Prepare students 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;

7) Improve students' grasp of American political and constitutional history in ways that will profitably inform a wide variety of research projects in American politics;

8) Prepare students for qualifying exams in the fields of American Politics and Law & Courts; and

9) Cultivate students' abilities to engage with key social science concepts orally and in writing.

 

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.

 

Course content

 

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?

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.

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 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.

"Required" books 

Recommended books

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 requirements

Course grades will be based on class participation, three analytic essays engaging with the course readings, and a longer research paper/proposal that moves beyond the course readings toward some original research.

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 paper/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. I recommend that the assignment take one of the following forms, but again, we can discuss further which of these would be most beneficial to each of you, and we may come up with additional possibilities as well.

"Replication" assignment

Choose an empirical claim made in Gerald Rosenberg's The Hollow Hope, Jeffrey Segal and Harold Spaeth's The Supreme Court and the Attitudinal Model Revisited, or Ran Hirschl's Towards Juristocracy. (I am open to an alternate source, but it should be of similar prominence to these ones and you have to convince me.) Do one of the following: a) try to replicate that claim; b) try to test that claim against a new empirical context; or c) evaluate that claim from an alternate angle or distinct theoretical lens. Report your findings. Given the time available between now and early May, I anticipate that these assignments will be styled as research proposals rather than completed research papers, but it would of course be helpful if you have at least some preliminary findings to report. When "finished," these proposals should be roughly 10-15 pages, double-spaced. I anticipate that some of the proposals completed for this assignment will develop into published papers, either single-authored or collaborative.

Draft dissertation proposal

If you're planning to write a disseration in the field of law & courts, and if you have some idea (or at least potential idea) of what that project will be about, then one good option is a draft proposal for an NSF Doctoral Dissertation Improvement Grant. The main component of such a proposal is a "project description" that is limited to 10 pages (though single-spaced is okay) and must follow a proscribed format (which I will show you).

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: 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.

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 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 if those days/times don't work for you, just email me with some alternate possibilities and I'll get back to you with an appointment. 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 19: Course introduction. No required reading for today.

January 26: Philadelphia, 1787

We begin with the drafting of the Constitution in Philadelphia in the summer of 1787. 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 chapters on the colonial period. 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.

Recommended

 

February 2: 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? Compare Madison's proposed amendments to the actual Bill of Rights that we wound up with. Which is better? In addition to the readings below, I recommend the materials in GGW vol. 2, pp. 86-102.

Recommended

February 9: 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 vol. 1, ch. 4 and vol. 2, ch. 4 are worth a look, and I higly recommend Keith Whittington's account of the impeachment of Justice Samuel Chase as well.

Recommended

February 16: 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 Dred Scott v. Sandford (1857) for constitutional politics today? 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.

Recommended

February 23: 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.

Recommended

March 1: 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? Does Rabban's account of free speech conflicts during this period confirm or unsettle Gillman's account of the Court's jurisprudence regarding property and contract rights?

Recommended

March 8: 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 15: Spring break. No class.

March 22: 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?

Recommended

March 29: The Roots of Modern Civil Liberties

Recommended

 

April 5: 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? The legal mobilization of social movement organizations? Or something else? Regarding consequences, are you persuaded by Rosenberg's account, Klarman's account, neither, or both? How about Ackerman's? Who has the better account of the causal relationship (if any) between the Brown decision and the landmark civil rights and voting rights legislation of the 1960s? What are the key contemporary implications of these 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) as well.

Recommended

April 12: 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?  

Recommended

April 19: 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

Recommended

 

April 26: Free Speech, and a Comparative Lens

As many of you know, I'm currently in the midst of a long-term, collaborative investigation of constitutional free speech jurisprudence in democratic (and quasi-democratic) nations around the globe. Among other things, this project raises the questions of whether US constitutionalism has been and should be a model for democratic constitutionalism elsewhere. What have been the chief impacts of the judicialization of politics in the US and elsewhere? These questions will be our focus today.  

Recommended

May 3: Today will be devoted primarily to 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 10: Final papers due, in my mailbox in Eggers 100.