POL 192b: Constitutional Theory and Design Fall 2015 Room: tbd W 2:00 4:50PM Professor Jeffrey A. Lenowitz Lenowitz@brandeis.edu Olin-Sang 206 Office Hours: tbd Course Description: We often hear about constitutions. Schoolchildren are frequently taught to revere both their constitution and its authors. Politicians regularly criticize each other for violating them. Conventions and assemblies around the world are currently trying to make new constitutions. Citizens take to the streets to demand constitutional revision and replacement. And, recently, Google decided to launch a digital archive of them. But, what exactly is a constitution? Why should it matter if they are violated? Is there anything really special about those who create them? What purpose do constitutions serve? How are they different or more sacred than ordinary law? This course, which lies at the intersection of political theory, law, comparative politics, and institutional design, focuses on such questions. Specifically, the course divides into three parts. First, we will look at the theory and functions of constitutions. Second, we will examine the diverse array of procedures used to create new constitution, investigate whether these procedures matter, and take a look at a few cases of constitution-making. Third and finally, we will investigate the revision, enforcement, and interpretation of constitutions once they come into effect. This means looking at both amendment procedures and the nature and function of judicial review. Prerequisites: This seminar is designed for advanced undergraduates and graduate students. The readings are challenging and numerous, the subject matter complex, and students will engage with ideas and arguments drawn from the history of political thought, political philosophy, constitutional law, American politics, rational choice theory, comparative constitutionalism, and contemporary political theory. As such, students should have a foundation in political theory, political science, or constitutional law, meaning that they have taken two courses in these areas. Students who do not have this base but still wish to take the course may email me and we can discuss the possibility of an exception. Requirements and Grading: Students are expected to complete all assigned readings in accordance with the class schedule and to be prepared to discuss them in depth. This course combines lectures with
vigorous discussion, neither of which will be useful unless all material is read ahead of time. Attendance is mandatory unless accompanied by a legitimate explanation. Undergraduate Students: - Seminar Participation, 15% - Final Exam, 30% - In-class Presentation, 20% - 2 Short papers (1250-1500 words), 35% o First Paper due at noon, Friday, October 16. o Second Paper due at noon, Friday, December 4. Graduate Students: - Seminar Participation, 30% - Term paper (20-25 pages), 70% **Please note that if you are a student with a documented disability on record at Brandeis University and wish to have a reasonable accommodation made for you in this class, please see me immediately. Academic Integrity: All students are expected to be familiar with and to follow the University s policies on academic integrity (see http://www.brandeis.edu/studentlife/sdc/ai). Faculty may refer any suspected instances of alleged dishonesty to the Office of Student Development and Conduct. Instances of academic dishonesty may result in sanctions including but not limited to, failing grades being issued, educational programs, and other consequences. Technology Policy: Keep all phones and computers away for the duration of the class. Computers can, however, be used to assist in class presentations. Late Assignment Policy: Late assignments will be downgraded a half letter grade per day, including weekends. For example, a B paper due on Friday but handed in on Monday will receive a C. Papers submitted more than four days after the due date will not be accepted. 2
Class Schedule: Part 1: The Theory and Purpose of Constitutions Session 1: Introduction (September 2) - Schmitt, Carl. Constitutional Theory. Translated and edited by Jeffrey Seitzer. Durham, NC: Duke University Press, 2008. 59-96 Session 2: What is and Why a Constitution? (September 9) - Dieter Grimm. Types of Constitutions. - Denis J. Galligan and Mila Versteeg. Theoretical Perspectives on the Social and Political Foundations of Constitutions. 2014 - Hannah Lerner. Making Constitutions in Deeply Divided Societies. Cambridge: Cambridge University Press, 2011. Chapter 1. Session 3: Is it a Precommitment Device? (September 16) - Elster, Jon. Ulysses Unbound. Cambridge: Cambridge University Press, 2000. Chapter 2 - Holmes, Stephen. Precommitment and the Paradox of Democracy. In Constitutionalism and Democracy, edited by Jon Elster and Rune Slagstad. Cambridge: Cambridge University Press, 1988. 195-241. Session 4: Is it an Equilibrium point? (September 30) - Hardin, Russel. Why a Constitution? In The Federalist Papers and the New Institutionalism, edited by Bernard Grofman and Donald Wittman, 100-120. New York, Agathon Press, 1989. - Heckathorn, Douglas and Steven Maser. Bargaining and Constitutional Contract. American Journal of Political Science 31 (1987), 142-168. Part II: Constitution-making Session 5: Who Can Make a Constitution? (October 7) - Statement of Berkshire Country Representatives, November 17, 1778. In The Popular Sources of Authority: Documents on the Massachusetts Constitution of 1780. Edited by Oscar and Mary Handlin. Cambridge: Harvard University Press, 1996. 374 379 3
- Sieyes, Emmanuel Joseph. What is the Third Estate? In Sieyes: Political Writings. Edited by Michael Sonenscher. Cambridge: Cambridge University Press, 2003. 93-105, 127-144, 151-154. - Arato, Andrew. Dilemmas Arising from the Power to Create Constitutions in Eastern Europe. In Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, edited by Michel Rosenfeld, 57-84. Durham: Duke University press, 1994. Session 6: How to Make a Constitution I (October 14) - Mark Tushnet. Constitution-Making: An Introduction. Texas Law Review. Volume 91. - Elster, Jon. Forces and Mechanisms in the Constitution-Making Process. Duke Law Review 45 (1995): 364-396. - Arato, Andrew. Conventions, Constituent Assemblies, and Round Tables: Models, principles and elements of democratic constitution-making. Global Constitutionalism. Volume 1, Issue 1, March 2012. Session 7: How to Make a Constitution II (October 21) - Tom Ginsburg, Zachary Elkins, and Justin Blount. Does the Process of Constitution-making Matter? - Yash Ghai and Guido Galli. Constitution Building Processes and Democratization. Stockholm, International Institute for Democracy and Electoral Assistance, 2006. - Widner, Jennifer. Constitution Writing in Post Conflict Settings: An Overview. William and Mary Law Review 49 (2007) - First Paper Due In Class Session 8: Constitution-Making in South Africa (October 28) - Ebrahim, Hassen and Laurel Miller. Creating the Birth Certificatie of a New South Africa: Constitution Making After Apartheid. In Framing the State in Times of Transition: Case Studies in Constitution Making, edited by Laurel E. Miller, 111-157. Washington, D.C.: United States Institute of Peace Press, 2010. - Heinz Klug. Participating in the Design: Constitution Making in South Africa. Session 9: Constitution-Making in America (November 4) 4
- Elster, Jon. "Constitutional Bootstrapping in Philadelphia and Paris." In Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, edited by Michel Rosenfeld, 57-84. Durham: Duke University press, 1994. - Ackerman. We the People: Transformations. P. 32-68 Part 3: Amending, Enforcing, and Interpreting Constitutions Session 10: Changing and Amending Constitutions I (November 11) - Levinson, Sanford. How many times has the United States Constitution been amended? In Responding to Imperfection, edited by Sanford Levinson, 13-36. Princeton University Press, 1995. - Lutz, Donald. Towards a Theory of Constitutional Amendment. In Responding to Imperfection, edited by Sanford Levinson, 237-274. Princeton University Press, 1995. - Lawrence G. Sager. The Birth Logic of a Democratic Constitution. In Constitutional Culture and Democratic Rule. Edited by John Ferejohn, Jack N. Rakove, and Jonathan Riley, 110-144. Cambridge University Press, 2001. Session 11: Changing and Amending Constitutions II (November 18) - Schwartzberg, Melissa. Democracy and Legal Change. Cambridge: Cambridge University Press, 2007. Chapters 1, 2, 4, and 6. - Rosalind Dixon. Constitutional Amendment Rules: A Comparative Perspective. 2011 Session 12: Interpretation and Judicial Review I (December 2) - Knight, Jack. Institutionalizing Constitutional Interpretation. In Constitutional Culture and Democratic Rule, edited by John Ferejohn, Jack N. Rakove, and Jonathan Riley, 361-392. Cambridge University Press, 2001. - Waldron, Jeremy. The Core of the Case Against Judicial Review. Yale Law Journal, 115 (2006). - Raz, Joseph. On the Authority and Interpretation of Constitutions: Some Preliminaries. In Constitutionalism: Philosophical Foundations. Edited by Larry Alexander. Cambridge: Cambridge University Press. 152 193. Session 13: Interpretation and Judicial Review II (December 9) - Dworkin, Ronald. The Moral Reading of the Constitution. New York Review of Books. March 21, 1996 5
- Marmor, Andrei. Interpretation and Legal Theory. Second Edition. Oxford: Hart Publishing, 2005. Chapter 9. - Antonin Scalia. Originalism: The Lesser Evil. University of Cincinnati Law Review, 57 6