CONSTITUTIONALISM AND DEMOCRACY Alexander Kirshner Alexander.kirshner@duke.com Office Hours: Weds 10-11 Weds: 3:20-5:35 312 Perkins Library In December 2000, in a 5-4 decision, the Supreme Court of the United States determined the outcome of a presidential election. The justices drew their authority from the U.S. Constitution. Is the fact that nine justices influenced the outcome of a presidential election consistent with democratic norms? If so, why? Generally, we think of democracy as standing for the rule of the many. Constitutions and, in particular, the practice of judicial review appear to empower a small group of individuals. Are the ideals of constitutionalism and democracy necessarily in tension with one another? Or do these ideals mesh together? If so, how? In addition to these issues, this course will examine the following questions: What is a constitution? Do all democracies have them? Does a constitution protect citizens rights? The course will provide students with a theoretical and historical introduction to constitutional and democratic theory. Students will acquire the tools necessary to understand how these important institutions function together and the circumstances in which they can undermine one another. II Requirements: 8 reading responses- about 2 pages (300 to 500 words). These brief essays should not summarize the week s reading (I have already read the readings), but outline an interesting position and argue for that position. The responses are due by 11:00 pm on the night before the seminar. A final paper (around 20 pages). A draft of the paper is due before Thanksgiving break Thursday, 11:59 pm November 15 th. The draft should be the first 7-10 pgs of the essay. It should include an outline for the rest of the work. You will receive a grade and extensive comments on the interim paper. These will be the bulk of the comments you will receive on the paper. Please schedule a meeting with me to discuss your paper topic (the meeting with me must occur before October 1). The final draft of the paper is due by 11:59 pm December 10 th. 1
You will present your paper on the last day of class. Work that is handed in late will be penalized by a third of a grade. Another third of a grade will be penalized every 24 hours the paper is late. Class participation is expected. All students should come to class fully prepared to be active participants. Bring hard copies of all assigned material to class. No in- class use of computers, cell phones and so on. No food either. GRADING The paper is worth 50 percent of the course grade. The draft is worth 20 percent of the course grade. The reading responses are worth 20 percent of the course grade. Class participation is worth 10 percent of the course grade. COURSE TEXTS Most readings will be posted online or sent via email: Required course books are available at the Duke University Bookstore: o Robert Dahl, A Preface to Democratic Theory o Bruce Ackerman, We the People: Volume 1 o John Hart Ely, Democracy and Distrust 2
CLASS SCHEDULE Week 1: Defining the Problem: Democracy and Constitutionalism (Aug 29) Week 2: Defining Democracy: Popular Sovereignty and Democratic Authority (Sept 5) Wollheim, Richard (1962). "A Paradox in the Theory of Democracy". Philosophy, Politics and Society. P. Laslett and W. G. Runciman. Oxford, Basil Blackwell: 71-87. Aristotle, Politics book III chapters 6-11 and book IV chapters 8-9 Selections from Rousseau, Schumpeter and Gutmann and Thompson Week 3: Theories of Democratic Value: Instrumental vs Intrinsic Accounts (Sept 12) Richard Arneson, Democracy is not Intrinsically Just, Justice and Democracy: Essays for Brian Barry, Cambridge, Cambridge University Press, 2004: pp. 40-58. Waldron, Disagreement and Democracy, Cambridge University Press: pp. 88-118 Week 4: What do Constitutions do? (Constrain) (Sept 19) The Federalist Papers 47-51, 62 Dahl, Robert. A Preface to Democratic Theory. Chicago, IL: University of Chicago Press, 1956. pp. 1-62, 81-85, 124-151 Walter Murphy, Constitutions, Constitutionalism and Democracy in Constitutionalism and Democracy: transitions in the contemporary world ed. Douglas Greenberg, New York, Oxford University Press, 1993. Cecile Fabre, A Philosophical Argument for a Bill of Rights British Journal of Political Science, Vol. 30, No. 1 (Jan., 2000): pp. 77-98 Week 5: What do Constitutions do? (Empower) (Sept 26) Constitution of the United States The Federalist Papers, 34 John Searle, The Construction of Social Reality, New York: The Free Press, 1995: 37-51. Russell Hardin, Why a constitution? In B. Grofman, & D. Witman (Eds.), The federalist papers and the new institutionalism. New York: Agathon Press. (1989): pp. 100 120. Douglass C. North; Barry R. Weingast Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth- Century England The Journal of Economic History, Vol. 49, No. 4. (Dec., 1989), pp. 803-832. 3
Week 6: The Best Check on Democracy: Judicial Review (Oct 3) The Federalist Papers, 78 Robert Dahl Decision- Making in a Democracy: The Supreme Court as National Policy Maker, Journal of Public Law 6 (1957) Antonin Scalia, Originalism: The Lesser Evil, 57 University of Cincinnati Law School (1988-89): pp. 849-865. Week 7: Democracy as Constitutionalism (1) (Oct 10) Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution. Cambridge, MA, Harvard University Press. 1-38 Ronald Dworkin, Law s Empire, selections Week 8: Democracy as Constitutionalism (2) (Oct 17) Corey Brettschneider When the State Speaks, What Should It Say? The Dilemmas of Freedom of Expression and Democratic Persuasion Perspectives on Politics (8/4-2010): pp 1005-1019 Corey Brettschneider A Transformative Theory of Religious Freedom: Promoting the Reasons for Rights Political Theory (2010); pp. Ronald Dworkin, Foreword Extreme Speech and Democracy (Ivan Hare & James Weinstein eds., 2009). Week 9: Democracy as Constitutionalism (3) (Oct 24) Waldron, Core Case Against Judicial Review Yale Law Journal, 115, 1346-1406 Week 10: Popular Constitutionalism and Constitutional Change (Oct 31) Bruce Ackerman We the People ch. 1,2, 7, 9-11 William W. Fisher, The Defects of Dualism The University of Chicago Law Review, Vol. 59, No. 2 (Spring, 1992), pp. 955-980 Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, Law and Social Inquiry 25 (2000) 4
Week 11: Constitutionalism in the Service of Democracy (1) (Nov 7) Stephen Holmes, Precommitment and the paradox of democracy, in Constitutionalism and Democracy, ed. Elster and Slagstad, 195 240. Jeremy Waldron, Disagreement and Precommitment, in Law and Disagreement, 255 81. Week 12: Constitutionalism in the Service of Democracy (2) (Nov 14) Ely, John Hart, Democracy and Distrust, Cambridge, Harvard University Press, 1980: Chapters 1-973- 179. Lucas v. Colorado Gen. Assembly, 377 U.S. 713 (1964) Week 13: Presentation of Papers (Nov 28) 5