Instructor: Tom Keck
Phone: (315) 443-5862
E-mail: tmkeck@maxwell.syr.edu
Class meets: TBA
Office Hours: TBA

Course content and objectives

In this course, we will explore the development of the American constitutional order over time. In doing so, we'll be examining questions like the following: Does the current American republic have a meaningful relationship to the one envisioned by the framers? How much change has taken place in the structure and purpose of our governing institutions? 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?

We'll examine these questions in a number of specific historical contexts, and you should wind up learning a fair amount about the key moments and periods in American constitutional development. More importantly, I hope the course will sharpen your sense of some fundamental empirical questions about our political system that remain unanswered and, most importantly of all, your understanding of how we, as political scientists, might best answer these questions.

recommend attending lectures for Con Law II whenever possible.

Course readings

The following books will be available at the University Bookstore. The list is long and the total price is significant; if this poses a hardship for anyone, please do not hesitate to let me know.

• Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Harvard, 2005).

• Bruce Ackerman, We the People, Volume 2: Transformations (Harvard, 2000).

• Akhil Amar, The Bill of Rights: Creation and Reconstruction (Yale, 1998).

• Howard Gillman, The Constitution Besieged: The Rise and Decline of Lochner Era Police Powers Jurisprudence (Duke, 1993).

• Thomas M. Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago, 2004).
• Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford, 2004).
• Robert G. McCloskey, The American Supreme Court, Fourth Edition, revised by Sanford Levinson (Chicago, 2004).

• Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago, 1994).

• Lucas Powe, The Warren Court and American Politics (Harvard, 2000).

• Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007).

Some of the required readings for the course are not available in the required books. Those that are underlined are available on the internet and are linked from the on-line version of this syllabus. Those that are not underlined will be distributed in class.

Course requirements

Course grades will be based on class participation, several analytic essays responding to course readings, and a longer research paper (or research proposal) on a topic of your choice. For the written work, you have two options: (a) four analytic essays on the weekly readings, plus a 10-12 page research proposal; or (b) two analytic essays on the weekly readings, plus an 18-20 page research paper. 

Class participation (25%): 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 recently been one myself). If there is a particular class session for which you are unprepared, please let me know in advance.

Analytic essays (12.5% each):  These are five-page papers analyzing a debate raised in the course readings.  They are designed to give you a chance to reflect more carefully on some of the issues we are discussing in class. In at least some of these papers, I'd like you to examine one or more of the recommended readings for that week as well, bringing them to bear on a question raised in the required reading. (It is okay, however, to do an occasional paper that focuses solely and closely on the required readings.) In considering the recommended readings, try to situate the required readings within the broader literature in some way, teaching the rest of the class something about the recommended reading (which they won't have read). In writing all of these papers (and indeed in preparing for class each week), you should be cognizant of matters of both substance and method. Most importantly, however, you should advance some argument of your own that is relevant to that week's topic. If that's not enough to think about, three further requirements for this assignment:

• I'd like at least one student to write a paper every week. I'll take volunteers to start, but assign people as necessary.

• Everyone must submit at least one of these papers by February 14.

• All of these papers should be submitted via attachment to the class listserv, ideally by 4:30 p.m. on the day before class meets (though I'm happy to allow occasional violations of this deadline).

Research proposal (25%): This is a 10-12 page paper in which you will delve more deeply into a topic of your choosing that is related to the course material. At a minimum, this proposal should include a clear statement of an empirical research question; a preliminary answer to that question (i.e., a hypothesis); 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.

Research paper (50%):  This is similar to the research proposal, but it should be 18-20 pages and should look more like a completed project. By the time you turn it in, it should be "finished" in the sense that it is fit for me to read. But I encourage you to select an ambitious topic, and I recognize that you may not be able to complete the project to fruition in the course of one semester. As such, it's fine for your paper to include sections (or footnotes) that say something like, "In a future version of this paper, I would . . ." or "I plan to supplement the foregoing argument with an analysis of . . ." The main difference between the proposal and the paper is that for the paper, you should actually complete some original research (as opposed to just proposing some), but this difference lies at the margins. We'll talk more about this as the semester progresses.

For both the research proposals and research papers, your topic must be approved by me no later than March 7. (In fact, you'll be making a short presentation on your work in progress that day.) To get started on identifying an appropriate empirical question, you might consider the following:

• Is there some event, conflict, or development in American political history that interests you? Did that event have a constitutional dimension? How so?
• Is there a particular Supreme Court decision that interests you? How can we best explain that decision? What sorts of factors might have led the Court to decide the case as it did?
• What sort of impact did that decision have on the American political system? On public policy? On constitutional development?
• Is there a particular feature of the American constitutional order, broadly defined, that strikes you as unusual in the universe of constitutional democracies? The two-party system? The electoral college? The vice presidency? Life-appointed judges? The difficulty of formal amendment? The fragmentation of political authority? Etc. How has this feature shaped the course of American politics?

In thinking about your papers, you may wish to consult my list of recommended readings and my on-line paper expectations. Both are designed primarily for undergraduates, but may be of help nonetheless. We'll have presentations of the almost-completed works on May 2, and the proposals and papers themselves are due on May 8. I hope you will consider this assignment to be part of an ongoing work-in-progress. It could represent an early stab at your dissertation research, for example, or it could be revised into a conference paper.

A note on professional development: While we're on the subject, I encourage everyone (or at least 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 misconduct: SU's Academic Rules and Regulations require students to "exhibit honesty in all academic endeavors. Cheating in any form is not tolerated, nor is assisting another person to cheat. The submission of any work by a student is taken as a guarantee that the thoughts and expressions in it are the student's own except when properly credited to another. Violations of this principle include giving or receiving aid in an exam or where otherwise prohibited, fraud, plagiarism, . . . or any other deceptive act in connection with academic work. Plagiarism is the representation of another's words, ideas, programs, formulae, opinions, or other products of work as one's own, either overtly or by failing to attribute them to their true source" (Syracuse University Bulletin 2003-2004: p. 2). In addition to these rules, 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 additional action.

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 have any disability that may prevent you from fully demonstrating your abilities in this course, you should contact me as soon as possible to discuss accommodations necessary to ensure your full participation and to facilitate your educational opportunities.

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

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 provide me with an email address during the first week of class. I'll make these addresses available to everyone in the class, so we can reach each other as necessary.

Course schedule

January 17: Course introduction. No reading.

I. Ideas, Interests, and Institutions in American Constitutional Development

January 24

The Court, the law, and constitutional development

To get started, I thought it would be helpful for us to read a short, comprehensive history of the American Supreme Court, and McCloskey's book--first published in 1960--is still the best one available. In reading it, you should begin to get a sense of the broad sweep of the Court's history. What have been its most influential decisions? Most successful? Most disastrous? Has the Court's role in the American political system changed over time? How so? For better or worse? To what extent does it make sense to think about the Court as a "legal" rather than a "political" institution? Have the Court's decisions reflected a principled effort to impose constitutional limits on American politics, or have they simply reflected the changing political preferences of the American people? Or is this a poor way to frame the alternatives?

• Alexander Hamilton, The Federalist #78
• McCloskey, The American Supreme Court, entire, but esp. ch. 1-7
• Selections from Gillman, Graber, Whittington casebook

Recommended

• Howard Gillman, "Robert G. McCloskey, Historical Institutionalism, and the Arts of Judicial Governance." In The Pioneers of Judicial Behavior, ed. by Nancy Maveety (Ann Arbor: The University of Michigan Press, 2003): 336-60.

• Howard Gillman, "Martin Shapiro and the Movement from 'Old' to 'New' Institutionalist Studies in Public Law Scholarship," Annual Review of Political Science 7 (2004): 363-82.

January 31

The political foundations of judicial power

• Whittington, The Political Foundations of Judicial Supremacy, entire
• Klarman, From Jim Crow to Civil Rights, preface and introduction

Recommended

• Jonathan Casper, "The Supreme Court and National Policy Making," American Political Science Review 70:1 (March 1976): 50-63.

• David Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago, 2005).

• Robert Dahl, "Decision-Making in a Democracy: The Supreme Court as a National Policy Maker," Journal of Public Law 6 (1957): 279-95.
• 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 96:3 (September 2002): 511-24.
• Mark Graber, "The Non-Majoritarian Problem: Legislative Deference to the Judiciary," Studies in American Political Development 7 (1993): 35.

• Mark Graber, "Constructing Judicial Review," Annual Review of Political Science 8 (2005): 425-51.

• George Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge, 2003).
• Kevin McMahon, Reconsidering Roosevelt on Race (Chicago, 2004).

• Terri Peretti, In Defense of a Political Court (Princeton, 1999).

• Mitchell Pickerill and Cornell Clayton, "The Rehnquist Court and the Political Dynamics of Federalism," Perspectives on Politics 2:2 (June 2004): 233-48.

• Richard Posner, "Foreword: A Political Court," Harvard Law Review (November 2005).

• Jeffrey Rosen, The Most Democratic Branch (Oxford, 2006).

II. Constitutional development from the founding to the war on terror

February 7

The Founding

How democratic was the Madisonian Constitution? What were its key features? How did Madison's views differ from those of other members of the founding generation? What are the most significant legacies of the original Constitution for our constitutional democracy today?

• Akhil Amar, America's Constitution: A Biography, selections
• Robert Dahl, How Democratic is the American Constitution?, selections
• Stephen Elkin, Reconstructing the Commercial Republic, selections
• Paul Finkelman, Slavery and the Founders, selections
• Sanford Levinson, Our Undemocratic Constitution, selections

• Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism, selections

• David Brian Robertson, The Constitution and America's Destiny, selections

• Rogers Smith, Civic Ideals, selections

Recommended

Ralph Ketcham, Framed for Posterity, selections

Jack Rakove, Original Meanings (Vintage, 1997).

Phillip Kurland and Ralph Lerner, eds., The Founders' Constitution.

February 14

The Jeffersonian Revolution

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.

Three interrelated developments: the substantial revision of the Constitution accomplished in 1791, Thomas Jefferson's capture of the presidency ten years later, and the Court's establishment of judicial review during Jefferson's first term. Some questions to consider: Was the Bill of Rights fundamentally consistent with the original Constitution or did it mark a radical departure? Or something in between? Did the Constitution almost fail in 1800? Why? What saved it? What impact did the election of 1800 have on the presidency? The Court? Other constitutional developments?

• Amar, The Bill of Rights, selections
• Ackerman, The Failure of the Founding Fathers, entire

Recommended

• William Casto, The Supreme Court in the Early Republic (South Carolina, 1995).
• Mark Graber, "Federalist or Friend of Adams: The Marshall Court and Party Politics," Studies in American Political Development 12 (1998): 229-66; "Establishing Judicial Review: Marbury and the Judicial Act of 1789," Tulsa Law Review 38 (Summer 2003): 609.

• Michael Klarman. 2001. "How Great Were the 'Great' Marshall Court Decisions?" Virginia Law Review 87 (October):1111.

• 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. 

• Sean Wilentz, The Rise of American Democracy.

February 21

Slavery and the Constitution in Jacksonian America

• Mark Graber, Dred Scott and the Problem of Constitutional Evil

Recommended

• Gerard N. Magliocca, Andrew Jackson and the Constitution

February 28

Civil War and Reconstruction

As you read the book, consider the following questions: How does Amar's account of the founding compare to Nedelsky's? Was the Constitution remade during Reconstruction? In what sense? Was "the Constitution" that we refer to today born in 1789 or 1868? Why is the Fourteenth Amendment so significant?

Reminder: Everyone must turn in at least one paper by this week.

• Amar, The Bill of Rights, selections
• Ackerman, We the People, selections

Recommended reading

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).

Earl M. Maltz, Civil Rights, The Constitution, and Congress, 1863-1869 (Kansas, 1990).
William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Harvard, 1988).

March 7

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 preliminary hypothesis, a preliminary statement of why this question is interesting or significant, a preliminary description of how you will go about answering the question, and a preliminary bibliography. Bring enough copies for everyone in the class. (Better yet, distribute them ahead of time on the listserv.) We'll go through each one together, offering whatever thoughts, suggestions, questions, or feedback we have.

March 14: Spring break.

March 21

The Lochner Era

What were the justices doing during the Lochner era? What does Gillman means 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?

• Gillman, The Constitution Besieged, entire
• 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 96:3 (September 2002): 511-24

• 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.

• Julie Novkov, Constituting Workers, Protecting Women (Michigan, 2001).

March 28

The New Deal Revolution

If Reconstruction marked a second 'founding moment' in American constitutional development, did the New Deal mark a third? 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?

• Ackerman, We the People, volume 2, ix-95, 255-420

Recommended

Ackerman, We The People: Volume 1: Foundations (Harvard, 1991)

Barry Cushman, Rethinking the New Deal Court (Oxford, 1998)

Laura Kalman, "The Constitution, the Supreme Court, and the New Deal" (with responses by William Leuchtenburg and G. Edward White)

April 4

Civil Liberties

Where did civil liberties jurisprudence come from? Do its roots lie in the 20th century or earlier? What role did the New Deal play in these origins? What was the lesson of the New Deal? If judicial activism was wrong in Lochner, how could it be right in the free speech context?

• Michael Kent Curtis, Free Speech, "The People's Darling Privilege" (Duke, 2000), selections

• David Rabban, Free Speech in its Forgotten Years (Cambridge, 1999), selections

Recommended

• Howard Gillman. 1994. "Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence." Political Research Quarterly 47 (September): 623-53.

• Mark Graber, Transforming Free Speech

• Geoffrey Stone, Perilous Times: Free Speech in Wartime (Norton, 2004).

April 11

Civil Rights

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. Klarman's recent opus has received widespread acclaim, which almost justifies its length. We'll divide up the chapters among ourselves, but everyone should read the sections on Brown.

• Klarman, From Jim Crow to Civil Rights, introduction, ch. 6, conclusion, and at least one other chapter

• Kevin McMahon, Reconsidering Roosevelt on Race, selections

Recommended

Thomas M. Keck, "Party Politics or Judicial Independence"

Gerald Rosenberg, The Hollow Hope (Chicago, 1991)

John Skrentny, The Minority Rights Revolution (Harvard, 2002)

Mark Tushnet, Making Civil Rights Law (Oxford, 1996)

April 18

The Warren Court and the 1960s

• Lucas Powe, The Warren Court and American Politics (Harvard, 2000), selections

Recommended

• Kersch, Constructing Civil Liberties
• Keck, The Most Activist Supreme Court, chapters 1-3

April 25

The Reagan Revolution and the Court

To what extent have American political parties been able to "entrench" their governing ideologies in constitutional law?

• Keck, The Most Activist Supreme Court, selections
• Pickerill and Clayton, selections
• Teles, Parallel Paths, selections

Recommended reading

Jack Balkin and Sandford Levinson, "Understanding the Constitutional Revolution," Virginia Law Review 87 (2001): 1045

Dawn E. Johnsen, "Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change," Indiana Law Journal 78 (Winter-Spring 2003): 363-412

Mitchell Pickerill and Cornell Clayton, "The Rehnquist Court and the Political Dynamics of Federalism," Perspectives on Politics 2:2 (June 2004): 233-48

Mark Tushnet, A Court Divided (Norton, 2005)

May 2

Executive power, national security, and the Constitution

• Gordon Silverstein

Recommended

• Keck, "Neoconservatism and the Courts"

Possible additional class session

Today will be devoted primarily to your presentations on your seminar papers. 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 8: Final papers due.