Constitutional Theory POLS 4130 Spring 2019 Main 326 Tuesday and Thursday 10:30 am-11:45 am

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1 Constitutional Theory POLS 4130 Spring 2019 Main 326 Tuesday and Thursday 10:30 am-11:45 am Robert E Ross robert.ross@usu.edu 328B Old Main Office Hours: Tuesday and Thursday 12:00 pm-1:00 pm (or by appointment) Course Synopsis Most courses involving the Constitution primarily focus on what the Supreme Court has said about the Constitution (constitutional law) rather than what the Constitution itself might mean to other political actors. The Court s role as supreme arbiter of constitutional meaning is well established in American politics. However, political actors (such as lawyers, judges, politicians, and ordinary citizens) generally talk about the Constitution and the Court as if the Court can get the Constitution wrong. By so doing, these actors presuppose that the Constitution has meaning independent of what the Court (or any other interpreter) might say it means. We will take this presupposition seriously and explore the meaning of the Constitution from its political and theoretical foundation. In so doing, we will (hopefully) better understand its meaning and the ways in which this governing document empowers and constrains politics. Required Texts The Federalist Papers with Introduction and Notes by Charles R. Kesler (Signet Classics) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press) Course Format This course is primarily discussion based. I will lecture on some occasions to give necessary historical background, but every class will consist of a good deal of discussion. This means that you will have to read each text carefully and thoroughly. My expectation is that you will read actively that is, you should read and take note of what intrigues you about the text, what you find puzzling or frustrating or downright wrong. Moreover, merely bringing a rudimentary understanding based on some Wikipedia summary will not sufficiently prepare you to grapple with these difficult texts. Course Goals This course aims to: 1. Learn fundamental principles, generalization, and theories Much of the course will focus on historical information that will be vital in understanding the development of the ideas and practices that shaped the meaning of the Constitution. While I do not require extensive memorization of historical facts (like dates when papers were published or debates transpired), I will expect you to learn important factual information as it relates to the content of the course. The exams will be the primary means of assessing this goal.

2 2. Learn to analyze and critically evaluate ideas, arguments, and points of view Guaranteed, you will disagree (sometimes deeply) with some of the political views of the texts and the individuals in the classroom. Rather than simply dismissing their positions as irrelevant of misguided (putting it nicely), we will endeavor to engage with them, and each other, in a charitable and meaningful way. Class discussion and the writing assignments will be the means of assessing this goal. 3. Learning to apply course material (to improve thinking, problem solving, and decisions) Much of what we read provides historical context to and justification for the creation and development of our Constitution. By studying these texts, we can better engage with questions of using these historical documents to understand the Constitution in contemporary politics. The Constitutional Convention and final paper will be the primary means of assessing this goal. Assignments and Grading Writing Assignments (125 points) There will be a total of two writing assignments throughout the semester. The first will focus on understanding the argument an author is putting forth. This is an important part of academic writing because the better you understand the author s argument, the better you are able to engage with them in an academic dialogue. The first assignment (25 points) will involve the Levinson book. You will choose one chapter and write a paper (4-5 pages, double-spaced) that includes the following: 1) a brief summary of Levinson s argument, 2) the argument from the chapter you found most convincing and why, and 3) the argument from the chapter you found least convincing and what he could do to strengthen it. The bulk of this writing assignment should consist of addressing and substantiating the second and third point. The paper will be due in-class on the day the chapter is assigned. So, if you choose to write on his argument in chapter 4, your paper will be due at the beginning of class on March 18 th. For the final writing assignment (100 points), your paper will be based on the constitution produced during our class constitutional convention. Your paper will choose one aspect of the new, class constitution that deviates from the actual Constitution. Your paper (8-10 pages, double-spaced) will address this change by exploring 1) the historical and theoretical foundation of the original aspect, 2) the theoretical justification for the change, and 3) a normative evaluation of the new change (can be for or against). The final paper will be due Wednesday, May 1st at 4:30pm in the political science office (320 Old Main). I will place a box with my name and our course name where you can submit your paper. I do not accept submissions, and there will be a 5-point penalty for each day your paper is late. Exams (100 points total) There will be two exams (50 points each) throughout the semester. The exams will consist of both multiple choice and short-answer identifications of key concepts or arguments. Please note, the exams will be administered during class on the assigned days. No make-up exams will be allowed unless prior arrangements are made.

3 Constitutional Convention (50 Points total) The final three weeks of class, we will have a mock-constitutional convention. The purpose of this convention is to create a new constitution and not just recreate the old one. Attendance and participation are vital for this simulation to work. As such, there will be 30 points allocated for attendance and participation. You will start with the 30 points, but will be penalized 5 points for each day of the convention you miss. At the beginning of the convention (April 4 th ), you will need to submit your version of James Madison s Vices in which you diagnose the problems with Constitution that you would like remedied at the convention (10 points). The second assignment will be due the second week of the convention (April 16 th ) and will explain your plan for the new constitution (like the Virginia Plan or New Jersey Plan). This can be a collaborative assignment (10 points). Grading Scale A A B B B C C C D D D F 59-0 Tentative Reading Schedule Week 1 01/08: Introduction 01/10: Louis Michael Seidman, Let s Give Up on the Constitution in The New York Times (Canvas) The Federalist No. 49 The Principles of the Founding and the Crisis of the Political System of the United States, Week 2 01/15: The Declaration of Independence and Articles of Confederation (Canvas) 01/17: No Class Week 3 01/22: Vices of the Political System of the United States (Canvas) 01/24: Thomas Jefferson to James Madison, Sept. 6, 1789 (Canvas)

4 The Constitutional Convention: the Alternative Plans Week 4 01/29: Notes of Debates, May 29, 30, 31 (Canvas) 01/31: Notes of Debates, June 15 and 18 (Canvas) The Constitutional Convention: Constructing Congress Week 5 02/05: Notes of Debates, June 26 and 29 (Canvas) 02/07: Notes of Debates, July 2, (Canvas) The Constitutional Convention: Constructing the Executive Week 6 02/12: Notes of Debates, July 17, 19, and 26 (Canvas) 02/14: Notes of Debates, September 7-8 (Canvas) Week 7 02/19: Exam 1 Debate over the Constitution: We the People and A More Perfect Union 02/21: The Federalist No. 1, 37, and 38 Week 8 02/26: The Federalist No. 10; Essays of Federal Farmer and Brutus No. 1 (Canvas) Debate over the Constitution: Federalism and the Separation of Powers 02/28: The Federalist, No. 39 and 47; Brutus No. 2 (Canvas) Week 9 03/05: The Federalist, No. 48 and 51; Brutus No. 5 (Canvas) Debate over the Constitution: The Powers of Congress and Representation 03/09: The Federalist, No. 23; Brutus No. 3 and 4 (Canvas) Week 10: Spring Break 03/12: No Class 03/14: No Class Week 11 03/19: The Federalist, No and Debate over the Constitution: Representation and The Executive 03/21: Federal Farmer No. 7 and 9 Week 12 03/26: The Federalist, No Debate over the Constitution: Judiciary 03/28: The Federalist, 78 and 81; Federal Farmer No. 14 (Canvas) Week 13 04/02: Exam 2 04/04: Constitutional Convention; Our Undemocratic Constitution, Prelude and Introduction

5 Contemporary Constitutional Theory Week 14: Constitutional Convention 04/09: Constitutional Convention; Our Undemocratic Constitution, Chapter 1 Vices Due at the beginning of class 04/11: Constitutional Convention; Our Undemocratic Constitution, Chapter 2 Week 15 04/16: Constitutional Convention; Our Undemocratic Constitution, Chapter 3 Plan Due at the beginning of class 04/18: Constitutional Convention; Our Undemocratic Constitution, Chapter 4 Week 16 04/23: Constitutional Convention; Our Undemocratic Constitution, Chapter 5-7 and CODA Final Paper Due Wednesday, May 1 at 4:30pm in the political science office (320 Old Main).