American Constitutional Development (PSC 711) (Spring 2023)

Instructor: Tom Keck
Phone: (315) 443-5862
E-mail: tmkeck[at]syr.edu 
Class meets: W 9:30-12:15, EGG 306B
Office Hours: By appointment

Class Delivery Format: As of now, our class is scheduled to meet fully in person. If public health conditions necessitate, we may switch to online or hybrid models as the semester proceeds. If/when we do so, our online platform will be Zoom. I am also open to holding office hours meetings by Zoom as well as in person.

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 key works in the field, both classic and contemporary;
  3. Prepare students to write a dissertation in the field of law and courts;
  4. 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;
  5. Improve students’ grasp of American political and constitutional history in ways that will profitably inform a wide variety of research projects on American politics;
  6. Prepare students for qualifying exams in the fields of American Politics and Law & Courts;
  7. Train students in the art of reading, integrating, and evaluating social science research, both critically and with a generosity of spirit; and
  8. 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. Much of the time, we will adopt an American political development perspective on the U.S. constitutional system, which means that our analytical focus will often be on questions of ideational and institutional continuity and change. However, always in the background and sometimes in the foreground will be questions regarding the health of U.S. constitutional democracy. Is our constitutional democracy in the midst of a crisis? If so, what are its key sources and parameters? Which prior episodes in American constitutional development can best help us understand our current situation? What developments in other constitutional democracies can best help us understand it?

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, both available here. I may sometimes make reference to the textbook for those courses, which is American Constitutionalism, edited by Howard Gillman, Mark Graber, and Keith Whittington (and sometimes referred to as “GGW.”) I also have audio and/or video recordings of some of my lectures in those courses, which I can make available for anyone interested.

Course readings

We will be reading all or part of lots of books this semester. On the first day of class, we can talk about the best options for making sure everyone has access to the readings. I have not submitted a book order at the University Bookstore, but am open to doing so if it would be helpful. If you are interested in beginning to build a personal library of law and courts titles, I recommend any or all of the books that are listed in the course schedule below. If not, you should be able to make it through the class without purchasing any of them.

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 prepared to contribute to a discussion of the readings. Since the class will be conducted in a seminar format, this is our single most important requirement. As one component of this preparation, starting with our second class session, please come to each class with at least one discussion question in hand–i.e., a question, drawn from the readings, on which a) you would genuinely like to deepen your understanding via further discussion; or b) you already have a clearly formed view, but you anticipate that others around the table may have a different take.

To identify good discussion questions, you’ll need to 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 each 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. The papers are due in class on the day for which the readings are assigned.

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 the end of the semester, 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 dissertation 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).

APPLICATION OF APD TOOLS TO CONTEMPORARY CONSTITUTIONAL SYSTEM

Identify some significant way in which our constitutional democracy is currently operating in ways that fail to live up to key principles of constitutionalism and/or democracy, as you understand them. What are those principles? Define them as clearly as possible. How precisely is our political system failing to live up to those principles? Be as concrete and specific as possible. What episodes from our constitutional history and/or the experience of other constitutional democracies can best help us understand the current situation?

Regardless of which format you settle on, your topic must be approved by me before the semester reaches its midpoint. In thinking about your project, 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 whose table of contents you will begin to monitor on a regular basis.

Course policies

Academic integrity: The Syracuse University Academic Integrity Policy holds students accountable for the integrity of the work they submit. Students should be familiar with the policy, as it is their responsibility to ensure that they adhere to it. Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty in this type of course is plagiarism, which consists of the use of someone else’s language, ideas, information, or original material without acknowledging the source. Students found in violation of the policy are subject to grade sanctions determined by the instructor, as well as non-grade sanctions determined by relevant School or College Dean’s office.

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 accommodations: If you believe that you need accommodations for a disability, please contact the Center for Disability Resources (CDR), located in Huntington Hall (443-4498). CDR is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters when appropriate. Since accommodations may require early planning and generally are not provided retroactively, please contact CDR as soon as possible.

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: Office hours will be by appointment, with both Zoom and in-person options. When you need to see me, just email with some day/time windows that work on your end, and I’ll get back to you with an appointment (and a Zoom link if necessary). All students should check their SU email accounts regularly throughout the semester, as I will sometimes use Blackboard’s “send email” feature to contact all members of the class.

Course schedule

January 18: Course Introduction

We’ll spend some time reviewing course logistics today, but we’ll start with a discussion of a recent op-ed by Joey Fishkin and William Forbath, co-authors of one of the books we’ll be reading this semester. The op-ed advances some normative critiques of the contemporary Supreme Court, but it rests those critiques on some key empirical claims rooted in extensive historical and legal research on the U.S. Constitution and its development across time. Let’s see if we can extract some of those empirical claims, and begin thinking together about how we might best go about evaluating them.

January 25: Philadelphia, 1787

This week, we turn our attention to 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 chapter 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 the events immediately preceding the Philadelphia Convention, and with the Convention itself. As you read Fishkin & Forbath’s, Klarman’s, and Teachout’s accounts, 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? Come to class prepared to discuss your lesson plan.

Also, starting this week, please come to each class with at least one discussion question in hand–i.e., a question, drawn from the readings, on which a) you would genuinely like to deepen your understanding via further discussion; or b) you already have a clearly formed view, but you anticipate that others around the table may have a different take.

  • Fishkin & Forbath, Anti-Oligarchy, Intro & ch. 1 (on Blackboard; ebook also available via Bird)
  • Klarman, Framers’ Coup, Intro & ch. 3, and more if you can (on Blackboard)
  • Zephyr Teachout, Corruption in America, pp. 56-80 (on Blackboard)

Recommended reading

  • Bruce Ackerman, We the People, Volume 2: Transformations, ch 2: Reframing the Founding
  • Akhil Amar, America’s Constitution: A Biography, ch. 1
  • Robert Dahl, How Democratic is the American Constitution?; “James Madison: Republican or Democrat?,” Perspectives on Politics 3 (Sept. 2005): 439-48
  • Stephen Elkin, Reconstructing the Commercial Republic, ch. 2
  • 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
  • Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism
  • Jack Rakove, Original Meanings
  • David Brian Robertson, The Constitution and America’s Destiny
  • Rogers Smith, Civic Ideals, ch. 5
  • Sean Wilentz, The Rise of American Democracy, prologue and chapter 1
  • Gordon Wood, The Creation of the American Republic, 1776-1787

February 1: Slavery and the Constitution

Returning to our discussion of the founding, how did the white 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?

  • Paul Finkelman, Slavery and the Founders, ch. 1 (on Blackboard)
  • Michael Klarman, Framers’ Coup, 257-304 (on Blackboard)
  • Eric Foner, Free Soil, Free Labor, Free Men, ch. 3: “Salmon P. Chase: The Constitution and the Slave Power”
  • Dred Scott v. Sandford (1857), as excerpted in GGW vol. II (3rd ed.), pp. 199-205 (on Blackboard)

Recommended reading

  • Akhil Amar, America’s Constitution: A Biography, ch. 2
  • Robert Cover, Justice Accused: Antislavery and the Judicial Process
  • Justin Crowe, Building the Judiciary, ch. 3
  • Don Fehrenbacher, The Dred Scott Case
  • Fishkin & Forbath, Anti-Oligarchy, ch. 2
  • Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery
  • Barry Friedman, The Will of the People, ch. 3
  • Mark Graber, Dred Scott and the Problem of Constitutional Evil
  • Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875
  • Gerard N. Magliocca, Andrew Jackson and the Constitution
  • Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846
  • Stephen Skowronek, The Politics Presidents Make, ch. 5 & 6 (focusing on Jackson and Lincoln)
  • Rogers Smith, Civic Ideals, ch. 8
  • Justin Wert, Habeas Corpus in America, ch. 2
  • William M. Wiecek,  The Sources of Anti-Slavery Constitutionalism in America, 1760-1848
  • Sean Wilentz, The Rise of American Democracy

February 8: Ratification and the Bill of Rights

Almost as soon as it took effect, the 1787 Constitution was significantly modified. Does that fact signal some substantial problems with the original design? Why did the framers have to work so hard to sell it to the American people? What’s the central theme of The Federalist, their most enduring written effort to do so? 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 the list of recommended readings below, I particularly recommend Herbert Storing’s short book on the Anti-Federalists.

Recommended reading

  • Akhil Amar, America’s Constitution: A Biography, ch. 9
  • Saul Cornell, The Other Founders
  • Leonard Levy, Legacy of Suppression
  • Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788
  • Jack Rakove, Original Meanings, ch. 10: Rights
  • Herbert Storing, What the Anti-Federalists Were For

February 15: Thinking about American constitutional development

We turn next to three questions that will preoccupy us throughout the semester: 1) What is the best explanation of Supreme Court decision-making? 2) In what ways (if any) do court decisions influence policy and politics? 3) How and why does the Constitution’s meaning change over time? I’d like us to talk about each question individually, but also about how they relate to one another, so be sure to think about that issue while you’re doing the reading.

The list of readings below includes some classic works in public law, the most important of which is Dahl’s 1957 article; every grad student studying law & courts should definitely be familiar with that one.

Recommended reading

February 22: The Establishment of Judicial Review

We turn our attention this week to Marbury v. Madison (1803) and the establishment of judicial review. Does Dahl’s account from last week help us understand this establishment? How about Graber’s? What is the conventional story of Marbury? Is that story accurate? If you had one hour to teach a room full of undergrads about the case, what would you emphasize? Note that if you have not yet submitted a paper, you should do so this week.

  • Marbury v. Madison (1803), as excerpted in GGW vol. I (2nd ed.), pp. 106-112 (on Blackboard); or full-text version available here
  • Sylvia Snowiss, Judicial Review and the Law of the Constitution, ch. 1-3 (on Blackboard)
  • Keith Whittington, Repugnant Laws, ch. 2-3 (on Blackboard)

Recommended reading

  • Bruce Ackerman, The Failure of the Founding Fathers
  • Phillip Blumberg, Repressive Jurisprudence in the Early American Republic
  • William Casto, The Supreme Court in the Early Republic
  • Justin Crowe, Building the Judiciary, ch. 2
  • Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”, ch. 2-3
  • Barry Friedman, The Will of the People, ch. 2
  • Mark Graber, “Federalist or Friend of Adams: The Marshall Court and Party Politics,” Studies in American Political Development 12 (1998): 229-66; “The Problematic Establishment of Judicial Review,” in The Supreme Court in American Politics, ed. by Howard Gillman & Cornell Clayton (Kansas 1999); “Establishing Judicial Review: Marbury and the Judicial Act of 1789,” Tulsa Law Review 38 (Summer 2003): 609.
  • 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
  • Jack Rakove, Original Meanings, ch. 10; “The Origins of Judicial Review: A Plea for New Contexts”; “Judicial Power in the Constitutional Theory of James Madison”
  • Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis; The Deadlocked Election of 1800
  • Stephen Skowronek, The Politics Presidents Make, ch. 4
  • Rogers Smith, Civic Ideals, ch. 7
  • Keith Whittington, Constitutional Construction, ch. 2 (on the impeachment of J. Chase)
  • Sean Wilentz, The Rise of American Democracy, section I.

March 1: The Constitution and American Empire

To what extent, and in what ways, did the Constitution shape the process of U.S. territorial expansion in the 19th century? How about the reverse? Note that we may also spend some time today checking in with everyone about the status of your final papers.

  • Paul Frymer, Building an American Empire, ch. 1-5 (on Blackboard)

Recommended reading

  • Julian Go, Patterns of Empire
  • Aziz Rana, The Two Faces of American Freedom

March 8: Civil War & Reconstruction

One thing that’s challenging about teaching the Civil War & Reconstruction in a survey course like this is that there were so many momentous constitutional conflicts that it’s hard to even scratch the surface–slavery & emancipation, of course, but also core questions regarding secession (is the Union perpetual?), executive power (Lincoln unilaterally suspended habeas corpus, and Johnson got impeached for trying to unilaterally undermine Reconstruction), federalism (did the Anti-Federalists get it backwards when they said states would protect us from federal tyranny?), and constitutional liberty & equality (sec. 1 of the 14th Amendment is the textual basis for virtually all modern civil rights & liberties decisions). I’d happily spend a week on each of those topics, but since we only have one, I thought we’d focus on the congressional effort to recover from a near-collapse of democratic government.

  • Fishkin & Forbath, Anti-Oligarchy, ch. 3 (ebook available via Bird)
  • Richard Vallely, The Two Reconstructions, chapters 2-4 (on Blackboard)
  • Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction, ch. 1, and more if you can (on Blackboard)
  • Mark Graber, “Constructing Constitutional Politics” (on Blackboard)

Recommended reading

  • Bruce Ackerman, We the People, volume 2: Transformations, Part II
  • Elizabeth Beaumont, The Civic Constitution, ch. 4
  • 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
  • Michael Klarman, From Jim Crow to Civil Rights, ch. 1-2
  • Gerald Magliocca, “Amnesty and Section Three of the Fourteenth Amendment”
  • William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine
  • Julie Novkov, Racial Union
  • Stephen Skowronek, The Politics Presidents Make, ch. 6
  • Rogers Smith, Civic Ideals, ch. 9-10
  • Justin Wert, Habeas Corpus in America, ch. 3
  • Rebecca Zietlow, Enforcing Equality, ch. 3

March 15: Spring break, no class.

March 22: 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?

Recommended reading

  • 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
  • Andrew Cohen, Contraband
  • 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
  • George Lovell, Legislative Deferrals
  • Gerard Magliocca, 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
  • Keith Whittington, Repugnant Laws, ch. 5

March 29: 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 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?

  • Bruce Ackerman, We the People, Volume 2: Transformations, ch. 10-12 (on Blackboard)
  • Fishkin & Forbath, Anti-Oligarchy, ch. 6 (ebook available via Bird)
  • Rebecca Zietlow, Enforcing Equality, ch. 4: “Belonging and Social Citizenship: The New Deal and the Wagner Act” (on Blackboard)
  • Keith Whittington, Repugnant Laws, ch. 6 (on Blackboard)

Recommended reading

  • David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal
  • Barry Cushman, Rethinking the New Deal Court
  • Barry Friedman, The Will of the People, ch. 7
  • Kevin McMahon, Reconsidering Roosevelt on Race, esp. ch. 3-4
  • Peter Irons, The New Deal Lawyers; Justice at War
  • Robert Jackson, The Struggle for Judicial Supremacy
  • Laura Kalman, FDR’s Gambit
  • Thomas Keck, The Most Activist Supreme Court, ch. 1-2
  • Robert McCloskey, The American Supreme Court, ch. 7
  • Julie Novkov, Constituting Workers, Protecting Women
  • Lucas Powe, The Warren Court and American Politics, ch. 1
  • Stephen Skowronek, The Politics Presidents Make, ch. 7

April 5: The Roots of Modern Civil Rights & Civil Liberties Jurisprudence

Free speech is sometimes regarded as the most important right in a constitutional democracy, and U.S. courts are sometimes regarded as exceptional in their sweeping libertarian protection of this right. When did U.S. courts actually start protecting it, and how sweeping was that protection? How, if at all, does this early history continue to shape free speech disputes today? Likewise, how might a close look at the early history of civil rights lawyering alter our understandings of the Constitution’s protections for racial equality today?

  • Laura Weinrib, The Taming of Free Speech, intro & ch. 4-6 (ebook available via Bird)
  • Risa Goluboff, The Lost Promise of Civil Rights, intro & ch. 6-8 (on Blackboard)

Recommended reading

  • Robert Cover, “The Origins of Judicial Activism in the Protection of Minorities,” Yale Law Journal 91 (June 1982): 1287-1316 (online)
  • Megan Ming Francis, Civil Rights and the Making of the Modern American State
  • Howard Gillman, “Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence.” Political Research Quarterly 47 (September 1994): 623-53; “Regime Politics, Jurisprudential Regimes, and Unenumerated Rights,” University of Pennsylvania Journal of Constitutional Law 9:1 (Oct. 2006): 107-119
  • Mark Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism
  • Ken Kersch, Constructing Civil Liberties
  • George Lovell, This is Not Civil Rights
  • David Rabban, Free Speech in its Forgotten Years
  • Laura Weinrib, “Rethinking the Myth of the Modern First Amendment,” in The Free Speech Century, ed. by Geoffrey Stone and Lee Bollinger
  • Emily Zackin, “Popular Constitutionalism’s Hard When You’re Not Very Popular: Why the ACLU Turned to Courts,” Law & Society Review 42 (June 2008): 367-96

April 12: Brown v. Board

This week, we will explore the causes and consequences of the single most significant Supreme Court decision of the 20th century–Brown v. Board of Education (1954). 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, both, or neither? 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 LGBT 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.

  • Brown v. Board of Education (1954), as excerpted in GGW (on Blackboard)
  • Michael Klarman, From Jim Crow to Civil Rights, chapters 6-7 (on Blackboard)
  • Gerald Rosenberg, The Hollow Hope, ch. 2-5 (on Blackboard)

Recommended reading

  • Ellen Ann Anderson, Out of the Closet and Into the Courts
  • 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
  • Thomas M. Keck and Logan Strother, “Judicial Impact”
  • Michael Klarman, “Rethinking the Civil Rights and Civil Liberties Revolution”
  • 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: Rosenberg, McCann, and the New Institutionalism.” In David A. Schultz, ed., Leveraging the Law: Using the Courts to Achieve Social Change (New York: Peter Lang, 1998): 63-134
  • Rob Saldin, War, the American State, and Politics Since 1898
  • John Skrentny, The Minority Rights Revolution, ch. 1-3
  • Mark Tushnet, Making Civil Rights Law
  • Richard Vallely, The Two Reconstructions, ch. 7

April 19: The Conservative Revolt

  • Fishkin & Forbath, Anti-Oligarchy, ch. 7-8 (ebook available via Bird)
  • Tsai and Ziegler, “Abortion Politics and the Rise of Movement Jurists”

Recommended reading

  • Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution
  • Thomas Keck, The Most Activist Supreme Court in History
  • Ken Kersch, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism
  • Steve Teles, The Rise of the Conservative Legal Movement

April 26: Democratic Backsliding in Comparative Perspective

This week, we’ll attempt to make some sense of the Trump era (if that’s a thing) in American constitutional development. Where does President Trump fit in the 200-year story that we’ve explored so far? Did the events of Trump’s four years in office come out of nowhere, or were they the product of long-simmering developments? Do these events raise cause for serious concern about the health of U.S. constitutional democracy? How well does the U.S. story fit with broader patterns of democratic erosion worldwide?

Recommended reading

  • Laura Gamboa, Resisting Backsliding
  • Stephan Haggard and Robert Kaufman, Backsliding: Democratic Regress in the Contemporary World
  • David Landau and Rosalind Dixon, Abusive Constitutional Borrowing
  • Steve Levitsky and Daniel Ziblatt, How Democracies Die
  • Kenneth M. Roberts, “Parties, Populism, and Democratic Decay”
  • Kim Lane Scheppele, “Autocratic Legalism”

Date and Time TBD: Student presentations

Either during our final class session or perhaps at an alternate day/time, each student will present their final paper/proposal to the class. You will each have a brief timeslot in which 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. While your classmates are presenting, you should also practice your kind but critical listening skills, and you should make your best effort to verbally engage with each presentation that we hear.

May 10: Final papers due. Please submit via email attachment.