American Constit. Development (Spring 2018)

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 (appointment required)

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 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 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 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

  • Akhil Amar, The Bill of Rights: Creation and Reconstruction (Yale, 1998). ISBN: 978-0300082777
  • Michael Kent Curtis, Free Speech, “The People’s Darling Privilege” (Duke, 2000). ISBN: 978-0822325291 (hardcover only, unfortunately)
  • Michael J. Klarman, The Framers’ Coup (Oxford, 2016). ISBN-13: 978-0199942039 (hardcover only, unfortunately)
  • David Rabban, Free Speech in its Forgotten Years (Cambridge, 1999). ISBN: 978-0521655378
  • Gerald Rosenberg, The Hollow Hope, 2nd edition (Chicago, 2008). ISBN: 978-0226726717

Recommended books

  • Bruce Ackerman, We the People, vol. 3: The Civil Rights Revolution (Harvard, 2014). ISBN: 978-0674983946
  • Elizabeth Beaumont, The Civic Constitution (Oxford, 2014). ISBN: 978-0199940066
  • Justin Crowe, Building the Judiciary (Princeton, 2012). ISBN: 978-0691152936
  • Howard Gillman, The Constitution Besieged: The Rise and Decline of Lochner Era Police Powers Jurisprudence (Duke, 1993).
  • Risa Goluboff, The Lost Promise of Civil Rights (Harvard, 2010).
  • Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge, 2008). ISBN: 978-0521728577
  • Ran Hirschl, Towards Juristocracy (Harvard, 2007). ISBN-13: 978-0674025479
  • 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). ISBN: 978-0195310184
  • George Lovell, This is Not Civil Rights (Chicago, 2012).
  • Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002). ISBN-13: 978-0521789714
  • Rogers Smith, Civic Ideals (Yale, 1999). ISBN: 978-0300078770

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. The GGW textbook will also be available 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. 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 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).

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 consists of 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, together with a link to an on-line appointment calendar. When the available slots fill up, I try to add some additional ones when I can, so that link should generally be the first place you look. If you don’t see any workable time slots there, 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 16: Course introduction. No required reading for today.

January 23: 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 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 Klarman’s account, 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.

  • Klarman, Framers’ Coup, pp. 1-256

Recommended reading

  • Bruce Ackerman, We the People, Volume 2: Transformations, “Reframing the Founding” (chapter 2)
  • Akhil Amar, America’s Constitution: A Biography, ch. 1-3
  • 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, chapter 2
  • Paul Finkelman, Slavery and the Founders, especially “Making a Covenant with Death” (chapter 1)
  • Calvin Johnson, Righteous Anger at the Wicked States
  • Ralph Ketcham, Framed for Posterity
  • Larry Kramer, The People Themselves
  • Alison LaCroix, The Ideological Origins of American Federalism
  • Sanford Levinson, Our Undemocratic Constitution
  • 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: “The Constitution and the Quest for National Citizenship”
  • Sean Wilentz, The Rise of American Democracy, prologue and chapter 1
  • Gordon Wood, The Creation of the American Republic, 1776-1787

January 30: 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?

Recommended reading

  • Akhil Amar, The Bill of Rights, ch. 1-6
  • Akhil Amar, America’s Constitution: A Biography, ch. 9
  • Leonard Levy, Legacy of Suppression
  • Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788
  • Herbert Storing, What the Anti-Federalists Were For

February 6: 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 related to one another, so be sure to think about that issue while you’re doing the reading.

February 13: The Establishment of 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 in part 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. 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? Note that if you have not yet submitted a paper, you should do so this week.

  • Marbury v. Madison (1803)
    • GGW vol. I, pp. 106-112; or full-text version available here
  • Mark Graber, “Establishing Judicial Review: Marbury and the Judicial Act of 1789,” Tulsa Law Review 38 (Summer 2003): 609.
  • Sylvia Snowiss, Judicial Review and the Law of the Constitution, ch. 1-3 (on Blackboard)
  • Justin Crowe, Building the Judiciary, ch. 2
  • Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”, ch. 2-3

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
  • Elkins and McKitrick, The Age of Federalism
  • Barry Friedman, The Will of the People, “Independence” (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).
  • Michael Klarman, “How Great Were the ‘Great’ Marshall Court Decisions?” Virginia Law Review 87 (October 2001): 1111-1184.
  • Jack Knight & Lee Epstein, “On the Struggle for Judicial Supremacy,” Law and Society Review 30 (1996): 87-130.
  • Sanford Levinson, “Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn’t Either.” Wake Forest Law Review 38 (Summer 2003): 553.
  • Robert McCloskey, The American Supreme Court, ch. 1-3
  • Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis; The Deadlocked Election of 1800
  • Stephen Skowronek, The Politics Presidents Make, chapter 4
  • Rogers Smith, Civic Ideals, ch. 7
  • Keith Whittington, Constitutional Construction, “The Chase Impeachment and Shaping the Federal Judiciary” (chapter 2); “Judicial Review of Congress Before the Civil War.” Georgetown Law Journal 97 (June 2009): 1257-1331.
  • Sean Wilentz, The Rise of American Democracy, section I.

February 20: Slavery

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?

  • Klarman, The Framers’ Coup, 257-304
  • Dred Scott v. Sandford (1857)
    • GGW vol. II, pp. 200-207
  • Akhil Amar, The Bill of Rights, ch. 7
  • Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”, ch. 5-10
  • Mark Graber, Dred Scott and the Problem of Constitutional Evil, part II

Recommended reading

  • Robert Cover, Justice Accused: Antislavery and the Judicial Process
  • Justin Crowe, Building the Judiciary, ch. 3
  • Don Fehrenbacher, The Dred Scott Case
  • Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery
  • Barry Friedman, The Will of the People, “Defiance” (ch. 3)
  • 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, chapter 5 and 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 27: 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. But we’ll likely focus on two 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 the total volume of reading listed here is on the heavy side. Despite that fact, I also recommend taking a few minutes to review Dahl’s article from earlier in the semester. It has nothing to do with Reconstruction, but does directly address the relationship of the Court and governing regimes.

  • Akhil Amar, The Bill of Rights, chapters 8-12 and afterword
  • 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 (in box)
  • Michael Klarman, From Jim Crow to Civil Rights, ch. 1-2

Recommended reading

  • Bruce Ackerman, We the People, volume 2: Transformations, Part II
  • Elizabeth Beaumont, The Civic Constitution, ch. 4
  • Richard Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859-1877
  • Justin Crowe, Building the Judiciary, ch. 4
  • Lee Epstein and Thomas G. Walker, “The Role of the Court in American Society: Playing the Reconstruction Game,” in Contemplating Courts, ed. Lee Epstein (CQ Press, 1995)
  • Eric Foner, Reconstruction
  • Barry Friedman, The Will of the People, ch. 4
  • Earl M. Maltz, Civil Rights, The Constitution, and Congress, 1863-1869
  • William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine
  • Julie Novkov, Racial Union
  • Stephen Skowronek, The Politics Presidents Make, chapter 6
  • Rogers Smith, Civic Ideals, ch. 9-10
  • Richard Vallely, The Two Reconstructions, ch. 5
  • Justin Wert, Habeas Corpus in America, ch. 3
  • Rebecca Zietlow, Enforcing Equality, ch. 3

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? Does Rabban’s account of free speech during this period confirm or unsettle Gillman’s account of the Court’s jurisprudence regarding property and contract rights?

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
  • Mark Graber, Transforming Free Speech, ch. 1
  • Ken Kersch, Constructing Civil Liberties, ch. 3
  • 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

March 27: 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 (in box)
  • Kevin McMahon, Reconsidering Roosevelt on Race, ch. 3-4 (on Blackboard)
  • Rebecca Zietlow, Enforcing Equality, ch. 4: “Belonging and Social Citizenship: The New Deal and the Wagner Act” (on Blackboard)
  • Thomas Keck, The Most Activist Supreme Court, ch. 1-2 (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
  • Peter Irons, The New Deal Lawyers
  • Peter Irons, Justice at War
  • Robert Jackson, The Struggle for Judicial Supremacy
  • Thomas Keck, The Most Activist Supreme Court, chapters 1-2
  • William Leuchtenburg, “The Origins of Franklin D. Roosevelt’s ‘Court-Packing’ Plan,” Supreme Court Review (1966) 347-400; The Supreme Court Reborn
  • Robert McCloskey, The American Supreme Court, ch. 7
  • Julie Novkov, Constituting Workers, Protecting Women
  • Lucas Powe, The Warren Court and American Politics, “The Supreme Court, 1935-1953” (chapter 1)
  • Stephen Skowronek, The Politics Presidents Make, chapter 7

April 3: The Roots of Modern Civil Liberties

  • GGW, vol. 2, pp. 479-493, 504-509, 544-547, 549-553, 586-590 (in box)
  • Robert Cover, “The Origins of Judicial Activism in the Protection of Minorities,” Yale Law Journal 91 (June 1982): 1287-1316 (on line)
  • 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 (in box)
  • Risa Goluboff, The Lost Promise of Civil Rights, ch. 6-8 (on Blackboard)
  • George Lovell, This is Not Civil Rights, ch. 2 (on Blackboard)
  • David Rabban, Free Speech in its Forgotten Years, ch. 6, 8 (on Blackboard)

Recommended reading

  • Justin Crowe, Building the Judiciary
  • Barry Friedman, The Will of the People, ch. 6
  • Howard Gillman, “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
  • Michael Klarman, From Jim Crow to Civil Rights, chapters 4-5
  • Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution
  • William Ross, A Muted Fury
  • Rogers Smith, Civic Ideals, ch. 12

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? 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.

  • Brown v. Board of Education (1954)
    • GGW vol. II, pp. 459-462
  • Michael Klarman, From Jim Crow to Civil Rights, chapters 6-7
  • Gerald Rosenberg, The Hollow Hope, Part I: Civil Rights (ch. 2-5)
  • Bruce Ackerman, We the People, vol. 3, ch. 3-4

Recommended reading

  • Jack Bass, Unlikely Heroes
  • Anthony Chen, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941-1972
  • Mary Dudziak, Cold War Civil Rights
  • John Hart Ely, Democracy and Distrust
  • Jennifer Hochschild, The New American Dilemma
  • Jeffrey Hockett, A Storm over this Court
  • Thomas M. Keck, “Party Politics or Judicial Independence: The Regime Politics Literature Hits the Law Schools” (a review essay). Law and Social Inquiry 32:2 (Spring 2007): 511-44; “Does the Court Follow the Election Returns?” Reviews in American History 32 (December 2004): 602-609
  • 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
  • Jack Peltason, 58 Lonely Men
  • Rob Saldin, War, the American State, and Politics Since 1898
  • John Skrentny, The Minority Rights Revolution, chapters 1-3
  • Mark Tushnet, Making Civil Rights Law
  • Richard Vallely, The Two Reconstructions, chapters 7

April 17: 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 reading

  • Ellen Ann Andersen, Out of the Closet and Into the Courts
  • William Eskridge, “Backlash Politics: How Constitutional Litigation has Advanced Marriage Equality in the United States“
  • Charles H. Franklin and Liane C. Kosaki. 1989. “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion.” American Political Science Review 83:3 (Sept.): 751-771.
  • David J. Garrow, Liberty and Sexuality
  • Evan Gerstmann, The Constitutional Underclass
  • Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.” North Carolina Law Review 63 (1985): 375-86.
  • Thomas M. Keck, Judicial Politics in Polarized Times
  • Richard S. Price and Thomas M. Keck, “Movement Litigation and Unilateral Disarmament”
  • Reva B. Siegel, “Text in Context: Gender and the Constitution from a Social Movement Perspective,” Univ. of Penn. Law Review 150 (2001): 297
  • John Skrentny, The Minority Rights Revolution

April 24: Making Sense of the Trump Era, and a Comparative Lens

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? What are likely to be his most significant impacts on the Constitution? To what extent should we expect constitutional structures to constrain his ambitions?

We will also turn our attention to constitutional development elsewhere in the world, both for its own sake and on the theory that a comparative lens may help us understand American constitutional development in a new light. Among other things, we might think about whether US constitutionalism has been and should be a model for democratic constitutionalism elsewhere. One way to approach these questions is to try to assess the chief impacts of judicial empowerment.

Recommended

  • Erik Bleich, The Freedom to be Racist?
  • Corey Brettschneider, When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality (2012)
  • Sujit Choudhry, “Migration as a New Metaphor in Comparative Constitutional Law.” In The Migration of Constitutional Ideas, ed. by Sujit Choudhry (New York: Cambridge University Press, 2006): 1-35.
  • Charles Epp, The Rights Revolution (1998)
  • Tom Ginsburg, Judicial Review in New Democracies (2003)
  • Hare and Weinstein, eds., Extreme Speech and Democracy
  • Herz and Molnar, eds., The Content and Context of Hate Speech
  • Ran Hirschl, “The Judicialization of Mega-Politics and the Rise of Political Courts.” Annual Review of Political Science 11 (2008): 93-118; Comparative Matters: The Renaissance of Comparative Constitutional Law (2014)
  • Diana Kapiszewski; Gordon Silverstein; and Robert A. Kagan, eds., Consequential Courts: Judicial Roles in Global Perspective (2013)
  • Thomas M. Keck, “Data Collection Practices to Facilitate Qualitative and Multi-Method Research on Constitutional Courts”
  • Ronald Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (2006)
  • Richard Moon, The Constitutional Protection of Freedom of Expression (2000)
  • Miguel Schor, “The Strange Cases of Marbury and Lochner in the Constitutional Imagination”
  • Martin Shapiro, Courts: A Comparative and Political Analysis (1981)
  • Stephen Skowronek, The Politics Presidents Make, chapter 8; “The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive,” Harvard Law Review 122: 2070 (2009)
  • Alec Stone Sweet, “Why Europe Rejected American Judicial Review: And Why It May Not Matter.” Michigan Law Review 101 (August 2003): 2744-2780; The Judicial Construction of Europe (2004)

May 1: 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.