the THEORY and POLITICS of CONSTITUTIONS

Lecturer: Jonathan Bruno Spring 2017 jbruno@fas.harvard.edu Office: Griswold 116 617-496-2808 Office Hours: TBD Government 94CN the THEORY and POLITICS of CONSTITUTIONS Course Description: Constitutions are everywhere. In the United States, the federal constitution seems to frame and scaffold every civic question we face. Its words ring in our ears: We the People, respecting an establishment of religion, the equal protection of the laws. Yet we rarely consider what the constitution or any constitution is actually supposed to accomplish. What are its aims, and how should it structure political life? Why should a democratic society even have a constitution? How are constitutions made, and how do they change? What is the significance of national constitutions in a globalizing world? This seminar explores the theory and practice of constitutionalism. It sits at the crossroads of political theory, comparative politics, and public law. This is not a course in U.S. constitutional law. Although the U.S. will serve as a recurring case study, we will not be reading many Supreme Court opinions, or discussing familiar doctrinal subjects like free speech or equal protection. (For students interested in the major doctrines of U.S. constitutional law and their history, I recommend Government 1510 with Professor Fallon). Instead, we will be exploring normative and empirical questions about the purpose, design, implementation, and evolution of constitutions in democratic (and democratizing) nations. The course is divided into four parts. In the first, we take up a pair of bedrock theoretical questions: What Is a Constitution? And What Is It For? Our efforts to answer these questions acquaint us with leading theories of constitutionalism, and with some of the major differences among national constitutions. In unit two, we turn to the politics of Making and Changing Constitutions. Here we explore questions of legitimacy and institutional design, and evaluate the idea of popular constitutionalism. In addition, we analyze several recent experiments in constitutional creation and amendment. Unit three is devoted to the various challenges of Implementing Constitutions. We consider the question of the legitimacy of judicial review, as well as the competing approaches to constitutional interpretation (including approaches dominant outside the U.S.). In addition, we study how institutions other than high courts contribute to the (de)stabilization of constitutions. Finally, in unit four we consider National Constitutions and International Politics, focusing on the influence of treaties and other international standards on domestic constitutional politics. Requirements and Grading: DISCUSSION (30%). Thoughtful participation in class discussion is essential. This means, in the first place, that faithful attendance and completion of all readings before class is required. (Please note that I will call on students individually with questions about the assigned readings.) Students will be evaluated not only for the quantity but the quality of their contributions. Remember that the most meaningful forms of participation go beyond summarizing the course material or advancing opinions without argument. High-quality 1

discussion typically involves: (i) raising questions that clarify the stakes of (or that otherwise illuminate) the issues under discussion; (ii) making connections between the readings and the lines of debate that have emerged in class discussion, especially across weekly meetings; (iii) developing substantive criticisms of the arguments or analysis found in the course materials, without making straw men of them; (iv) proposing novel lines of argumentation, even if these are tentative or incompletely developed; and/or (v) marshaling new bits of evidence to help us evaluate the theories or interpretations under consideration. MEMO & PRESENTATION (20%). Each student will serve as discussant during one meeting of the seminar. (Dates will be assigned during our first session.) The discussant has two jobs. His or her first job is to prepare a 1-2 page memo for the class, emailed to the instructor by 10am on the day of the relevant session. (Memos submitted after 10am but before class will receive half-credit; memos not submitted before the beginning of class will receive zero credit.) This memo will be distributed as a handout at the beginning of class. It should begin to place the readings into conversation, and should articulate three clear questions for discussion. Discussion questions must not have obvious answers; their purpose is not to test whether we have done the reading, but to get us thinking about questions not explicitly raised in the readings. The discussant s second job is to kick off the discussion with a 10-minute oral presentation at the beginning of class. In substance, this presentation should roughly mirror your memo: please plan to make a few key connections between the readings, and then pose your three discussion questions. FINAL PAPER (50%). The seminar culminates in a 20-25 page research paper, due on the date listed by the Registrar as our final exam date. Your research paper should be a sustained exploration of some topic related to the theme of the course; it should address a clear, specific question about the theory or politics of constitutions, and develop an original argument in response. Your research question may be primarily normative or primarily empirical. If the latter, consider what evidence you will offer in support of the argument numerical data, analyzed using quantitative methods? one or more interpretive case studies? Whatever the research question, your paper should engage with at least two of our assigned texts, plus at least two other sources not on the syllabus. To help students progress toward a successful final paper, two intermediate tasks will be required. First, each student should pitch a final paper idea to the instructor (in office hours) before our seventh class meeting. Second, each student should submit a 3-4 page prospectus by 5pm on the Friday before our eleventh class meeting. This prospectus should include a clear statement of your research question, and a preview of your likely answer, including a discussion of any data, methods, or argumentative strategies you plan to use in the final paper. (Successful completion of these two tasks will account for 10% of your course grade; the remaining 40% will be determined by your final paper.) Readings and Resources: Most assigned readings will be made available in electronic format on the course website. An indispensable online database of constitutional texts can be found at www.constituteproject.org. The course has only one required text. Students should acquire a copy of the following book, which will also be placed on reserve at Lamont Library: Mark A. Graber, A New Introduction to American Constitutionalism (New York: Oxford University Press, 2013). 2

Electronic Devices: Laptops, tablets, mobile phones, and other devices may not be used in class. Students who violate this policy will be asked to leave immediately. Collaboration and Academic Integrity: The discussion of ideas is integral to learning in this course. Students are encouraged to engage with one another, and with the course material, in conversation outside the classroom (including in study groups). However, written work should always be your own. It is appropriate to talk through your ideas and test out your arguments on other class members, but not to incorporate their words directly into your writing without attribution. All sources must be cited, and the contributions of others clearly acknowledged. Please follow the notes and bibliography system outlined in the Chicago Manual of Style. This course is governed by the Harvard College Honor Code: Members of the Harvard College community commit themselves to producing academic work of integrity that is, work that adheres to the scholarly and intellectual standards of accurate attribution of sources, appropriate collection and use of data, and transparent acknowledgement of the contribution of others to their ideas, discoveries, interpretations, and conclusions. Cheating on exams or problem sets, plagiarizing or misrepresenting the ideas or language of someone else as one s own, falsifying data, or any other instance of academic dishonesty violates the standards of our community, as well as the standards of the wider world of learning and affairs. Academic Accommodations: Students seeking reasonable accommodation because of a documented disability should speak to me as soon as possible, presenting their Faculty Letter from the Accessible Education Office (AEO). All discussions will remain confidential, though I reserve the right to consult the AEO regarding appropriate implementation. 3

COURSE PLAN (This is all but certain to change. Some readings will be classified as recommended.) UNIT I: What Is A Constitution? And What Is It For? Week 1 Introducing the Concept of a Constitution Wilson, James. Remarks of James Wilson in the Pennsylvania Convention to Ratify the Constitution of the United States, 1787. In Collected Works of James Wilson, Volume I, edited by Kermit L. Hall and Mark David Hall, 178 93. Indianapolis: Liberty Fund, 2007. Paine, Thomas. Rights of Man (excerpts). In Rights of Man, Common Sense, and Other Political Writings, edited by Mark Philp. New York: Oxford University Press, 1995. Grimm, Dieter. Types of Constitutions. In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó, 98 132. New York: Oxford University Press, 2012. Week 2 Democracy, Liberty, and Constitutional Purposes Lerner, Hanna. Making Constitutions in Deeply Divided Societies. New York: Cambridge University Press, 2011. (ch. 1) University Press, 2013. (chs. 2, 3, 8) Alexander, Larry. Constitutionalism and Democracy: Understanding the Relation. In The Idea of Constitutionalism, edited by Steven Kautz et al., 161 9. Philadelphia: University of Pennsylvania Press, 2011. Week 3 Constraining Ourselves, Managing Risks 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. Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press, 1995. (ch. 5) Vermeule, Adrian. The Constitution of Risk. New York: Cambridge University Press, 2013. (chs. 1, 2) 4

Week 4 Individual Rights Constitution of the Republic of South Africa, 1996 Tushnet, Mark. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton: Princeton University Press, 2009. (ch. 7) Nedelsky, Jennifer. The Gendered Division of Household Labor: An Issue of Constitutional Rights. In Feminist Constitutionalism: Global Perspectives, edited by Beverley Baines, Daphne Barak-Erez, and Tsvi Kahana, 15 47. New York: Cambridge University Press, 2012. Hiebert, Janet L. Constitutional Experimentation: Rethinking How a Bill of Rights Functions. In Comparative Constitutional Law, edited by Tom Ginsburg and Rosalind Dixon, 298 320. Northampton, MA: Edward Elgar, 2011. UNIT II: Making and Changing Constitutions Week 5 Constitution-Making and Legitimacy Klein, Claude, and András Sajó. Constitution-Making: Process and Substance. In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó, 419 41. New York: Oxford University Press, 2012. 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, NC: Duke University Press, 1994. Mackinnon, Catherine. Gender in Constitutions. In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó, 397 416. New York: Oxford University Press, 2012. Week 6 How to Build a Constitution Elster, Jon. Forces and Mechanisms in the Constitution-Making Process. Duke Law Review 45 (1995): 364 96. Widner, Jennifer. Constitution Writing in Post Conflict Settings: An Overview. William and Mary Law Review 49 (2007): 1513 37. 5

Abat i Ninet, Antoni, and Mark Tushnet. The Arab Spring: An Essay on Revolution and Constitutionalism. Northhampton, MA: Edward Elgar, 2015. (ch. 2) Landemore, Hélène. Inclusive Constitution-Making: The Icelandic Experiment. The Journal of Political Philosophy 23 (2015): 166 91. [ DEADLINE to pitch final paper idea: before Week 7 ] Week 7 Amendments and Beyond Schwartzberg, Melissa. Democracy and Legal Change. New York: Cambridge University Press, 2009. (ch. 4) Klug, Heinz. Constitutional Amendments. Annual Review of Law and Social Science 11 (2015): 95 110. Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Harvard University Press, 1993. (chs. 1, 10) Dixon, Rosalind and David Landau. Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment. International Journal of Constitutional Law 13 (2015): 606 38. Week 8 Disharmony, Imperfection, and Evolution University Press, 2013. (ch. 6) Jacobsohn, Gary. Constitutional Identity. Cambridge, MA: Harvard University Press, 2010. (ch. 1) UNIT III: Implementing Constitutions Week 9 Judicial Review Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Second Edition. New Haven, CT: Yale University Press, 1986. (ch. 1) Waldron, Jeremy. The Core of the Case Against Judicial Review. Yale Law Journal 115 (2006): 1346 1406. Rosanvallon, Pierre. Democratic Legitimacy: Impartiality, Reflexivity, Proximity. Translated by Arthur Goldhammer. Princeton, NJ: Princeton University Press, 2011. (chs. 8, 9) 6

Rubenfeld, Jed. Legitimacy and Interpretation. In Constitutionalism: Philosophical Foundations, edited by Larry Alexander, 194 234. New York: Cambridge University Press, 1998. Week 10 How to Read a Constitution University Press, 2013. (ch. 4) Scalia, Antonin. Originalism: The Lesser Evil. University of Cincinnati Law Review 57 (1989): 849 66. Souter, David H. Text of David Souter s Commencement Speech. Harvard Gazette (May 27, 2010). Dworkin, Ronald. The Moral Reading of the Constitution. The New York Review of Books (March 21, 1996). Goldsworthy, Jeffrey. Constitutional Interpretation. In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó, 689 717. New York: Oxford University Press, 2012. [ DEADLINE for final paper prospectus: 5pm Friday before Week 11 ] Week 11 Implementation Beyond Courts University Press, 2013. (ch. 5) Kokott, Juliane, and Martin Kaspar. Ensuring Constitutional Efficacy. In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó, 795 815. New York: Oxford University Press, 2012. Elkins, Zachary, Tom Ginsburg, and James Melton. The Endurance of National Constitutions. New York: Cambridge University Press, 2009. (ch. 5) UNIT IV: National Constitutions, International Politics Week 12 Constitutional Politics Across Borders University Press, 2013. (ch. 7) 7

Jackson, Vicki C. Constitutional Engagement in a Transnational Era. New York: Oxford University Press, 2010. (ch. 3, 9) Elkins, Zachary, Tom Ginsburg, and Beth Simmons. Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice. Harvard International Law Journal 54 (2013): 201 34. 8