American Constitutional Development

PSCI 7381/SOC 5390

Fall 2006

Professor Pamela Brandwein

Office: GR 3.526
Hours: Tuesday, 2-4pm and by appointment
Phone: 972-883-2934
pbrand@utdallas.edu

Course Description: This course examines the development of American constitutional law, focusing on
questions of institutional order and change. Students will learn a great deal about constitutional doctrines
pertaining to economic rights, civil rights, and civil liberties, but this is not merely a course about legal
doctrine. The study of constitutional development generates unique insights about the Constitution, and
this course will introduce students to historical institutionalism. Toward that end, we will examine the
following questions from an historical-institutional perspective: What is the relationship between
Supreme Court decision-making and social, political, and economic contexts? How have interpretations
of the Constitution changed over time? What differences exist between 19th and 20th century constitutional
orders and what accounts for these institutional transformations? What role do Congress, party agendas,
political regimes, and social movements play in shaping the development of constitutional doctrine and
practice? What is the relationship between the rise of corporate capitalism and modern constitutionalism?
The course is organized chronologically and will cover key periods in American constitutional history,
including the Founding, the Civil War/Reconstruction era, the New Deal constitutional revolution, the
Civil Rights era, and the rise of modern constitutional conservatism. In the course of studying changes in
the Court’s constructions of economic rights, civil rights, and civil liberties, we will examine various
models of constitutional decision-making and constitutional change, as well as frameworks for
understanding American political thought. We will also discuss the normative question of how
constitutional change should take place in a political system structured by a written constitution. Toward
the end of the course, we will examine theories of institutional change in light of the substantive readings
covered over the semester.

Learning Objectives: To analyze the Supreme Court as an institution and its relationship to the other
national branches; to assess the development of American constitutional law as it pertains to economic
rights, civil rights, and civil liberties; to bridge the literatures of American political development and
American constitutional history.

Required Materials:

Howard Gillman, The Constitution Beseiged: The Rise of Lochner Era Police Powers
Jurisprudence (Durham, NC: Duke University Press, 1993).

Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism
(Berkeley: University of California Press, 1992).

Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (NY:
Vintage, 1996).
 Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-
1961 (Oxford University Press, 1994).

Melvin Urofsky and Paul Finkelman, Documents of American Constitutional and Legal History,
vols. 1 and 2, Second Edition (Oxford University Press, 2002).

• Books are available for purchase at the Campus Book Store and Off Campus Books.
• A required collection of book chapters is available on Electronic Reserve. The direct URL to
the e-reserve listing is: http://utdallas.docutek.com/eres/coursepage.aspx?cid=122 You may
access the materials by using the direct URL or by clicking on “Course Reserve” on the
library’s Search page. The password is acondev
• A required collection of journal articles is available through the McDermott Library Catalog.

Suggested Materials:

Robert G. McCloskey, The American Supreme Court, 4th Edition, Revised by Sanford Levinson
(Chicago: University of Chicago Press, 2004).

Melvin Urofsky and Paul Finkelman, A March of Liberty : A Constitutional History of the United
States, vols. 1 and 2, Second Edition (Oxford University Press, 2002).

Grading Policy

• Two papers, 7-10 pages each (50%). Topics will be distributed in class. No additional
research is expected, or permitted, for these papers.
• One research paper, 10-15 pages, and oral presentation (30%). In this paper, you are expected
to address a topic related to constitutional development that we are not specifically addressing
in the course. In the alternative, you may delve more deeply into one of the topics we have
covered in class. In either case, your topic must be approved by me. At the end of the course,
you will be asked to make a 10-minute presentation to the class on your topic and take
questions. The purpose of this is to present the class with something new: be clear, concise,
and interesting.
• Class participation, including two scheduled presentations in which you lead seminar
discussion, (20%).

Course Policies

Attendance at seminar sessions is mandatory and all students are expected to come to class fully
prepared to be active participants. Late work will be accepted only with prior approval.

Students must submit all written work in both hardcopy and electronic form. Hardcopies must be
submitted in class. The same material must be submitted electronically to http://turnitin.com
(Create your own user profile and then log on to the class, American Constitutional Development.
The class ID number is: 1557127. The enrollment password is: Hubble. You will need this
information to create your user profile.)
A Note on the Readings

Studies of constitutional development examine long-term processes and present a large amount of
historical and legal material. Constitutional development is, therefore, a book rather than an
article-oriented field. The material covered, moreover, transcends standard disciplinary lines,
covering social, political, economic, and intellectual developments. No single course could
possibly cover everything in the field, and so there are gaps in coverage. If you are interested in
learning more about an aspect of constitutional development that is not covered in the course, you
will have the opportunity to explore that material in your final research paper. The course will
also, hopefully, provide you with the conceptual tools you will need to master additional material
at a later time.

You will not be responsible for knowing every detail of every reading. You will be responsible,
however, for learning the general puzzles, approaches, and findings of the works we cover. With
the goal of becoming literate in this field, you should approach every reading with the following
set of questions in mind. These questions will form the basis for class discussion, and for written
assignments. Additional, more specific questions, accompany each week’s topic.

What are the puzzles or questions that animate this reading?

How does the reading set up a model of inquiry aimed at addressing these puzzles/questions?
What is the central argument?
Whom is the author writing against? In what scholarly debate is the author engaged?
What evidence is presented to support the central argument?
To what extent is this evidence persuasive?
What is the author’s understanding of stability and change in constitutional meaning?
In what ways does the author’s “model” of stability and change speak to other readings?
What are the chief virtues and weaknesses of the reading?
What questions for further research arise from this reading?

Academic Calendar:

8/22 Introduction to Course

8/29 Conceptualizing the Supreme Court as an Institution

Ronald Kahn and Ken Kersh, The Supreme Court and American Political Development (Kansas,
2006), 1-30. (Electronic Reserve)

Cornell Clayton, “The Supreme Court and Political Jurisprudence: New and Old
Institutionalisms,” in Clayton and Gillman, eds., Supreme Court Decision-Making: New
Institutionalist Approaches (Chicago, 1999), 15-41. (Electronic Reserve)

Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy

Maker,” Journal of Public Law 6 (1957): 279-295. (Electronic Reserve)
 Howard Gillman, “The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism
and the Analysis of Supreme Court Decision-Making, in Clayton and Gillman, eds., Supreme
Court Decision-Making: New Institutionalist Approaches (Chicago, 1999), 65-87. (Electronic
Reserve)

Lee Epstein & Jack Knight, “The New Institutionalism, Part II,” Law and Courts Newsletter
(Spring 1997), 4-9. http://www.law.nyu.edu/lawcourts/pubs/newsletter/spring97.pdf

Howard Gillman, “A Response to Lee Epstein and Jack Knight,” Law and Courts Newsletter
(Spring 1997), 10-13. http://www.law.nyu.edu/lawcourts/pubs/newsletter/spring97.pdf

Suggested:
Rogers M. Smith, “Political Jurisprudence, the New Institutionalism, and the Future of
Public Law,” American Political Science Review 82 (1988): 89-108. (Library Catalog)

Mark Graber, “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary,”

Studies in American Political Development 7 (1993): 35-73 (Electronic Reserve)

Questions

1. How do these authors conceptualize Supreme Court decision-making?

2. What are the similarities and differences between the “old” and “new”
institutionalisms?
3. What differences exist between Gillman and Epstein/Knight?

9/5 Constitutionalism and Models of Constitutional Change

Herman Belz, A Living Constitution or Fundamental law? American Constitutionalism in

Historical Perspective (Rowman and Littlefield, 1998), 1-14. Available online:
http://www.constitution.org/cmt/belz/lcfl.htm

Sanford Levinson, “How Many Times Has the Constitution Been Amended? Accounting for
Constitutional Change,” in Sanford Levinson, ed., Responding to Imperfection: The Theory and
Practice of Constitutional Amendment, (Princeton University Press, 1995), 13-36. (Electronic
Reserve)

Stephen M. Griffin, “Constitutionalism in the United States: From Theory to Politics,” in Sanford
Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional
Amendment, (Princeton University Press, 1995), 37-61. (Electronic Reserve)

Bruce Ackerman, We the People: Transformations (Harvard University Press, 1996), 3-22.
(Electronic Reserve)

Suggested:
McCloskey, The American Supreme Court, 1-15.

Questions

1. What is the right answer to Levinson’s question? Why?

 2. What might we learn about constitutional change if we accept Griffin’s suggestion
that we move from “theory to practice”?
3. How does Ackerman conceptualize constitutional change?
4. What similarities and differences exist among these models of constitutional change?
Would you characterize these models as “legal” or “political”

9/12 The American Political Tradition

Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought
Since the Revolution (Harcourt, Brace, 1955), 3-32 (Electronic Reserve)

Samuel Huntington, American Politics: The Promise of Disharmony (Belknap, 1981), 1-41, 61-
84 (Electronic Reserve)

James Morone, The Democratic Wish: Popular Participation and the Limits of American
Government (Yale, 1998), 1-73 (Library Catalog, ONLINE e-book)

Rogers M. Smith, “Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America,”
American Political Science Review 87 (1993): 549-666. (Library Catalog)

Questions

1. What kind of relationship does each author posit between ideas and politics? To what
extent are these models consistent with one another?
2. To what extent are these authors persuasive in arguing for the importance of ideas in
politics?
3. Do the processes modeled here have anything to do with constitutional law? What are
the mechanisms by which these processes might influence constitutional law?

9/19 The Founding Period: Originalism and its Critics

Speech by Edwin Meese III to the American Bar Association, July 1985, reprinted in Jack
Rakove, ed., Intepreting the Constitution: The Debate over Original Intent. (Boston: Northeastern
University Press, 1990), 13-21. (Electronic Reserve)

Speech by Justice William J. Brennan, Jr., prepared for the Text and Teaching Symposium,
Georgetown University, 12 October 1985, reprinted in Jack Rakove, ed., Intepreting the
Constitution: The Debate over Original Intent. (Boston: Northeastern University Press, 1990),
23-34. (Electronic Reserve)

Jack Rakove, Original Meanings, Preface, 3-202, 288-338, 366-68.

Urofsky & Finkelman, Documents, No. 29-32.

Suggested:
Urofsky & Finkelman, March of Liberty, chapter 6.

Questions
 1. What is the nature of the disagreement between Meese and Brennan? Who has the
better argument, in light of Rakove’s book?
2. What model does Rakove present of early American constitutionalism? What was the
role of politics and ideas in the making of the Constitution?

9/26 Reconstruction and the Meaning of “Equal Justice Under Law”

Arthur Bestor, “The American Civil War as a Constitutional Crisis,” American Historical Review
69 (1964): 327-352. (Library Catalog)

Harold Hyman and William Wiecek, Equal Justice Under Law: Constitutional Development,
1835-1875 (Harper, 1982), 386-438, 473-515. (Electronic Reserve)

Michael Les Benedict, “Preserving the Constitution: The Conservative Basis of Radical
Reconstruction,” Journal of American History, Vol. 61, No. 1 (1974), 65-90. (Library Catalog)

Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme
Court Review (1978): 39-79. (Library Catalog)

Pamela Brandwein, “A Judicial Abandonment of Blacks? The Supreme Court and

Reconstruction, Reconsidered,” Law & Society Review, Forthcoming, March 2007. (WebCT)

Urofsky & Finkelman, Documents, No. 100, 110, 117-120, 127, 132-33, 140.

Suggested:
Eric Foner, Reconstruction: America’s Second Revolution, 1863-1877 (NY: Harper &
Row, 1988), 228-280. (Electronic Reserve)
Michael P. Zuckert, “Congressional Power under the Fourteenth Amendment: The Original
Understanding of Section 5,” Constitutional Commentary 3 (1986): 123. (Electronic
Reserve)
Urofsky & Finkelman, March of Liberty, chapter 22.

Questions

1. What was the nature of the “constitutional crisis” in 1861?

2. What was the nature of the federal commitment to black rights, as embodied in both
the Reconstruction Amendments and Court interpretation of those Amendments?
3. What does Benedict mean when he describes the constitutional changes of the
Reconstruction era as “preserving federalism”? Is this an apt description? How might
you critique it?

10/3 “Laissez-Faire Constitutionalism” and Market Liberty

Howard Gillman, The Constitution Besieged.

Urofsky & Finkelman, Documents, No. 131, 134-36, 138-39, 142-43, 146-47, 151.

Suggested:
Urofsky & Finkelman, March of Liberty, chapters 23, 24, 25, plus pp. 579-582, 644-46.
 McCloskey, The American Supreme Court, 81-90.

Questions

1. What was “Lochner era jurisprudence”? Does it represent a “judicial amendment” to

the Fourteenth Amendment?
2. What were the tensions of this era, and how did these tensions affect thinking about
the role of courts in the American polity?
3. What developments led the Court to abandon “economic substantive due process”?
4. What are the major differences between original and modern protections for market
liberty? Is the crisis of this era behind us?

10/10 The New Deal: Rethinking the Constitutional Revolution

Barry Cushman, Rethinking the New Deal Court (Oxford University Press, 1998). (Library
Catalog, ONLINE e-book)

Urofsky & Finkelman, Documents, No. 146, 155, 164, 174, 176, 179, 181, 183-84, 188-89.

Suggested:
Urofsky & Finkelman, March of Liberty, chapters 30-31.
McCloskey, The American Supreme Court, 91-126.

Questions

1. Why do scholars identify 1937 as a pivotal moment in constitutional history? Does

1937 mark the transition to a new constitutional order?
2. Did the Constitution gain or lose legitimacy in the transition that took place in the
1930s? What are the arguments on each side of this question?
3. What model of constitutional change best captures this transition?

10/17 The Rise of the Modern Conception of “Freedom of Speech”

Mark Graber, Transforming Free Speech.

Urofsky & Finkelman, Documents, No. 156-57, 159, 169, 187, 196, 209.

Suggested:
Urofsky & Finkelman, March of Liberty, 613-23, 650-54.

Questions

1. How was freedom of expression conceptualized in the nineteenth century?

2. What led progressives to change First Amendment standards? Was this an
improvement?
3. Why does Graber think it is important to point out that “when broader patterns of
social justification change, the structure of particular political arguments changes”?
 4. Is the transformation of free speech best viewed as a subset of more general
intellectual and political changes, or it is best viewed in terms of the promotion of
short-term policy preferences (think back to Epstein & Knight)?

10/24 “Cause Lawyering,” Social Movements, and Constitutional Change

Mark Tushnet, Making Civil Rights Law.

Urofsky & Finkelman, Documents, No. 199-202.

Suggested:
Urofsky & Finkelman, March of Liberty, chapter 35.

Questions

1. What variables does Tushnet consider most important to the explanation of the rise of
modern civil rights law?
2. What does this story tell us about the relationship between law and social
movements?
3. What was the role of litigation in the constitutional changes discussed by Tushnet?
What was the role of political struggle? What was the role of elites?

10/31 Theories of Institutional and Legal Change

William H. Sewell, “A Theory of Structure: Duality, Agency, and Transformation,” American

Journal of Sociology 98 (1992): 1-29. (Library Catalog)

Karen Orren and Stephen Skowronek, “Institutions and Intercurrence: Theory Building in the
Fullness of Time,” in Ian Shapiro and Russell Hardin, eds., Nomos XXXVIII: Political Order
(NYU, 1996), 111-146. (Electronic Reserve)

Kathleen Thelen, “How Institutions Evolve: Insights from Comparative Historical Analysis” in
James Mahoney and Dietrich Rueschemeyer, eds., Comparative Historical Analysis in the Social
Sciences (Cambridge, 2003), 208-240. (Electronic Reserve)

Paul Pierson, “Not Just What, but When: Timing and Sequence in Political Processes,” Studies in
American Political Development 14 (2000): 72-92. (Electronic Reserve)

Ira Katznelson, “Structure and Configuration in Comparative Politics,” in Mark Lichbach and
Alan Zuckerman, eds., Comparative Politics: Rationality, Culture, and Structure (Cambridge,
1997). (Electronic Reserve)

Questions
1. What models of social structure and institutional change are advanced in these
works? Are these models compatible with one another?
2. These works do not speak explicitly, or they do not speak at length, to constitutional
development. Nevertheless, these works might illuminate constitutional development.
How?
 3. What avenues for future research in constitutional development are suggested by
these works?

11/7 Epilogue: The Rise of Modern Constitutional Conservatism

Herman Belz, A Living Constitution, Chapter 10, 221-272. Available online:

http://www.constitution.org/cmt/belz/lcfl.htm

Jack Balkin and Sanford Levinson, “Understanding the Constitutional Revolution,” Virginia Law
Review 87 (2001): 1045-1104. (Lexis-Nexis)

Urofsky & Finkelman, Documents, No. 254, 261-62, 268.

Suggested:
Mark Tushnet, The New Constitutional Order (Princeton University Press, 2003), 33-95.
(Electronic Reserve)
Urofsky & Finkelman, March of Liberty, pp.975-979, 1022-26.
McCloskey, The American Supreme Court, 244-264.

Questions

1. What is the relationship between conservative intellectual life and the rise of modern
constitutional conservatism? Is this relationship similar to, or different from, the
relationship between intellectual life and constitutionalism in the Reconstruction era?
In the Progressive/New Deal eras? In the civil rights era?
2. Does modern constitutional conservatism appear to be an attempt to return to pre-
New Deal constitutionalism, either in whole or in part?
3. What are the prospects for a sustained constitutional conservatism carrying forward
into the future? Is the question pure one of appointments and electoral politics?

11/14 TBA

11/21 Student Presentations

Final Paper Due: Tuesday, November 28, 7pm, GR 3.526.

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