American Exceptionalism as Constitutionalism

American Exceptionalism as Constitutionalism Professor Roger Pilon, Ph.D., J.D. American Institute on Political and Economic Systems July 2011 I. Course Overview The Politics component of the American Institute on Political and Economic Systems (AIPES) is designed to help students from a variety of mostly Central and Eastern European nations to deepen their understanding of the basic moral, political, and legal principles of a free society by looking mainly at how those principles have been understood, instituted, and followed, or not followed, in America. The guiding principles of the American system of government were set forth in 1776 in America s founding document, the Declaration of Independence. They have inspired countless millions around the world ever since, encouraged people from every nation on earth to leave their homelands to start life anew in America, and given rise to the idea that America is exceptional among nations a nation of nations, defined not by religious, ethnic, or other such considerations, but by its founding principles. By the end of the twentieth century, with the collapse or decline of communism nearly everywhere, America was left as the world s only superpower. People in emerging nations were thus especially interested to learn more about the American system of government one of the aims of the AIPES program. More broadly, however, people in all nations have come to recognize the failures of socialism, especially in contrast to those political systems that respect individual liberty, free markets, and democratic government dedicated to securing freedom through the rule of law. Still, the forces that would check that freedom are far from gone; and misunderstandings abound, even in America, which those forces are only too anxious to exploit. To address those issues, we will first look very briefly at the notion of American exceptionalism as evidenced in the principles of the Declaration of Independence, at the Declaration s appeal to natural law, at the implementation of that law and those principles in the United States Constitution, and finally at some of the problems that surround American constitutionalism today, especially as those arise from the conflict between democracy and liberty, resulting in the rise of effectively unlimited government, problems that are often far greater in other democracies. In America, and increasingly in other democracies as well, those problems end up ultimately in the courts. To a large extent, therefore, the course will focus on how courts address those problems and thus on the complex connections between morality, politics, and law. For context, we will review briefly the history of democracy, from its origins in ancient Greece to its demise midway through the reign of the Roman Empire, its rebirth here and there during the middle ages and the early modern period, and finally its growth in America, where it has been secured by the U.S. Constitution since 1789 the world s

AIPES/Pilon/July 2011 2 longest standing written constitution still in place. That will set the stage for a much deeper examination of the principles underlying a free society, which will take us back to ancient Greece and to the idea of natural law, which two millennia later would inspire America s Founding Fathers. We will trace the higher law background of the Constitution over that period, especially as it served to underpin English institutions, particularly the common law. Much of that, and more, was drawn together by John Locke in 1690 in his Second Treatise of Government, which guided Thomas Jefferson as he drafted the famous phrases of the Declaration. We will look at Locke s theory of rights, his theory of property, and his social contract theory of political and legal legitimacy, all of which is essential for understanding the American system of government. That will put us in a good position to revisit the Declaration and the Constitution in a more detailed way. Here we will look at the Founders philosophy of government; their theory of legitimacy; the division of powers (federalism), separation of powers, and other checks and balances; the role of the courts; and the Bill of Rights. After that, plus a few readings from the Federalist Papers, we should have a fairly clear picture of the kind of world the Founders envisioned: one where individuals were free to pursue happiness, by their own lights, with government dedicated mainly to securing their right to do so. There was a crucial problem with the original Constitution, however its oblique recognition of slavery, made necessary to ensure union among the states. The Framers hoped slavery would wither away in time. It did not. It took the Civil War (1861-1865) to end slavery and the ratification of the Civil War Amendments to the Constitution to bring the states under the Bill of Rights, thus completing the Constitution at last by bringing into it the grand principles of the Declaration, especially equality before the law. It will be important to look at that amendment process because the Fourteenth Amendment (1868), which incorporated those principles against the states, is the source today of a good deal of constitutional confusion about what states and the courts can and cannot do. We will then turn to what is doubtless the most fundamental issue in American constitutional law the size and scope of government. Having recently fought a war to rid themselves of overweening government, the Framers of the Constitution were not about to impose that kind of government on themselves. In fact, James Madison, the principal author of the Constitution, wrote in Federalist 45 that the powers of the new government would be few and defined. Thus, we look next at the reasons why, for nearly 150 years, Americans lived largely under constitutionally limited government. Today, however, our governments federal, state, and local are leviathans. How did that happen under a constitution that provided for only limited government? We take up that crucial question next. The answer begins by noting the fundamental shift in the climate of ideas that came to be called the Progressive Era, running from the late nineteenth century through the early decades of the twentieth century. Calling for active government to solve social and economic problems, Progressives disparaged America s founding principles, which limited the size and scope of government. Not until the New Deal, however, which began after the election of Franklin Roosevelt as president in November of 1932, were Progressives in a position to implement their programs in a

AIPES/Pilon/July 2011 3 far reaching way; and even then they largely failed, initially, because the courts stood their ground, for the most part, enforcing the provisions of the Constitution that limited government. In 1937, however, shortly after his landslide 1936 reelection, President Roosevelt unveiled his infamous scheme to pack the Supreme Court with six new members. There followed an uproar in the country: not even the overwhelmingly Democratic Congress would go along with the scheme. Nevertheless, the Court got the message: there was the famous switch in time that saved nine (members of the Supreme Court), and the Court began rewriting the Constitution without benefit of constitutional amendment. We will examine in some detail how that was done how the constitutional floodgates were opened to allow the modern redistributive and regulatory state to pour through. But the main points to be drawn from that seminal episode in American constitutional history the divide between essentially limited and effectively unlimited government concern the crucial role the courts play, or fail to play, in preserving constitutional government; the interplay between politics and law; and the importance of the climate of ideas in which all of that unfolds. Ideas matter. They frame the debate, setting limits on what can and cannot be said or done. We will then outline the current debate in American constitutional law about how to interpret the Constitution, distinguishing the three main schools modern liberals (in the American sense), conservatives, and libertarians or classical liberals and applying that analysis to both domestic and foreign affairs. The focus to this point in the course will have been mainly on domestic affairs internal to the United States. But of course the Constitution empowers the government to deal with external affairs as well. The Constitution s discussion of such powers, however, is far less detailed than its discussion of domestic powers: much is left to political, not legal, determination. Over the course of the war on terror, after the attacks of September 11, 2001, those issues have been hotly debated, not only in America but around the world. They involve complex questions that we will at least touch upon. Finally, we will illustrate those three approaches to constitutional interpretation with a few legal opinions involving the scope of government power and the protection of individual rights. The course will conclude with a brief discussion of the problems that arise when the universal principles underpinning the American system of government are ignored. And because similar problems arise under parliamentary systems, we will reflect briefly on whether they are better able to address them. II. Course Readings and Requirements Discussion leaders: Ms. Mari Matjus Mr. Sam Potolicchio My sessions will combine straight lecturing with Socratic student exchanges, aimed at engaging students in the discussion as much as is possible in a large class. They will be based mainly on the readings, including my own writings, but will also go beyond the readings to discuss issues on which there may be no suitable readings.

AIPES/Pilon/July 2011 4 Just below I have keyed the readings to each class period, but we may speed up or slow down as the course unfolds. As you will see, there is a lot of reading for this course, perhaps more than any of you will be able to do. Accordingly, I have listed the readings as required and recommended the latter for those students who may want to expand their understanding of the subject. To do well in the course and get the most from it, students are strongly encouraged to complete the readings before arriving in Prague. The AIPES program, once you do arrive, is quite full. My lectures and questions will assume that students have done the required readings and have at least looked at the recommended readings. And the discussion leaders with whom you will meet in smaller groups will be especially concerned that you have done the reading. Finally, at the conclusion of the AIPES program students will take a one and onehalf hour closed-book essay exam in the Politics component no books, papers, or notes. The exam is designed to test your mastery of the subject; it will contain no surprises. You will be asked to write (legibly, please!) on two interrelated subjects: 1. Discuss the Higher Law background of the United States Constitution. 2. Discuss constitutional interpretation and the climate of ideas. Tuesday, July 12: III. Syllabus Session I: Introduction; Several Issues; American Exceptionalism; First Principles Academic life under communism: Colin Woodard, A World Transformed. Still a world of sovereign nations: John Bolton, America s Interests and the U.N. Culture clashes: Tony Blaire, Making Muslim Integration Work. The difficulties of constitution drafting: Noah Feldman, Foundering. Identity: Natan Sharansky, Democracies Can t Compromise on Core Values. Distrust of government: William A. Galston: In Government America Must Trust. American Exceptionalism: President Ronald Reagan: Farewell Address. First Principles: Roger Pilon, Preface, Cato Institute Declaration/Constitution. Estonia s Examples: Jackson Diehl, The Washington Post, 13 May 2011. http://www.washingtonpost.com/opinions/2011/05/13/afaxxy3g_print.html Wednesday, July 13: Session II: History of Democracy; English History; Justification Required Readings: Robert Dahl, On Democracy, ch. 2.

AIPES/Pilon/July 2011 5 Plato, Euthyphro. Recommended Readings: Greg Mahler, Comparative Politics, ch. 5, The Executive, pp. 106-109. Thursday, July 14: Session III: Natural Law; Legal Positivism; the Higher Law of the Constitution Edward S. Corwin: The Higher Law Background of American Constitutional Law. Friday, July 15: Session IV: Rights; Property; the Social Contract; the Declaration of Independence John Locke: The Second Treatise of Government, 1-15, 25-51, 95-131. The Declaration of Independence (copies to be delivered at AIPES orientation). Roger Pilon, The Purpose and Limits of Government, Cato s Letters No. 13. Monday, July 18: Session V: The United States Constitution; the Federal Court System Required Readings: The U.S. Constitution (copies to be delivered at AIPES orientation). U.S. Courts: Comparing Federal and State Court Systems; Federal Courts Map. Recommended Reading: The Federalist Papers, Nos. 45, 51, 78. Tuesday, July 19: Session VI: Limited Government: Powers Required Reading: Col. David Crocket, Not Yours to Give. Highly Recommended Reading:

AIPES/Pilon/July 2011 6 Charles Warren, Congress as Santa Claus. Wednesday, July 20: Session VII: Completing the Constitution; the Fourteenth Amendment: Rights, Equality Robert J. Reinstein, Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment. Thursday, July 21: Session VIII: The Progressive Era; the New Deal Required Reading: Richard A. Epstein, The Monopolistic Vices of Progressive Constitutionalism. Recommended Reading: William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt, ch. 4. Friday, July 22: Session IX: Constitutional Interpretation Today; Domestic Affairs Roger Pilon, The United States Constitution: From Limited Government to Leviathan. Recommended Reading (Foreign Affairs): Federalist Society Debate: Federalism: Executive Power in Wartime. Session X: Classic and Recent Supreme Court Decisions Powers: Marbury v. Madison; United States v. Lopez; Gonzales v. Raich. Rights: Lucas v. South Carolina Coastal Council; Lawrence v. Texas. IV. Sources Colin Woodard, A World Transformed: Academe in Eastern Europe 20 years after the fall of Communism, The Chronicle of Higher Education, October 25, 2009: http://chronicle.com/article/a-world-transformed/48884/.

AIPES/Pilon/July 2011 7 John Bolton, America s Interests and the U.N., Hillsdale College Imprimis, April 2008. http://www.hillsdale.edu/news/imprimis/archive/issue.asp?year=2008&month=04. Tony Blair, Making Muslim Integration Work, Wall Street Journal, November 9, 2010. http://online.wsj.com/article/sb10001424052702303362404575580700415413596.html? mod=wsj_opinion_lefttopopinion. Noah Feldman, Foundering, New York Times Magazine, July 31, 2005. http://www.nytimes.com/2005/07/31/magazine/31wwln.html?_r=3&or=&pagewanted =print Natan Sharansky, Democracies Can t Compromise on Core Values, Wall Street Journal, June 16, 2008. http://online.wsj.com/article/sb121358021414976189.html. William A. Galston, In Government America Must Trust, Brookings, March 3, 2010. http://www.brookings.edu/opinions/2010/0303_government_trust_galston.aspx?p=1. President Ronald Reagan s Farewell Address to the Nation, January 11, 1989: http://millercenter.org/scripps/archive/speeches/detail/3418. Roger Pilon, Preface, The Declaration of Independence and the Constitution of the United States of America, Cato Institute, 1998. (To be distributed at AIPES orientation). http://www.cato.org/pubs/articles/preface_pocket-constitution.html. Robert Dahl, On Democracy (Yale University Press: 1998). http://www.tfasinternational.org/aipes/academics/government2008/july14ondemocracypil on2008.pdf. Greg Mahler, Comparative Politics: An Institutional and Cross-National Approach, 4 th ed. (Prentice-Hall: 2003). http://www.tfasinternational.org/aipes/academics/government2008/july14mahler5executi vepilon.pdf. Plato, Euthyphro, in Four Texts on Socrates, ed. by Thomas G. West and Grace Starry West (Cornell University Press, 1998). http://www.tfasinternational.org/aipes/academics/government2008/july15euthyphroplato pilon2008.pdf. Edward S. Corwin, The Higher Law Background of American Constitutional Law (original: 42 Harvard Law Review 149-185; 365-409 (1928-1929); Cornell University Press: 1955; Liberty Fund: 2008). http://www.tfasinternational.org/aipes/academics/government2008/july15corwinpilon200 8.pdf John Locke, The Second Treatise of Government, in Two Treatises of Government (1690), ed. Peter Laslett (Cambridge University Press, 2002).

AIPES/Pilon/July 2011 8 http://www.tfasinternational.org/aipes/academics/government2008/july162ndtreatiselock epilon2008.pdf. Roger Pilon, The Purpose and Limits of Government, Cato s Letters No. 13, Cato Institute, 1999: http://www.cato.org/pubs/catosletters/cl-13.pdf. U.S. Courts: Comparing Federal and State Court Systems: http://www.uscourts.gov/about.html. Federal Courts Map: http://www.uscourts.gov/images/circuitmap.pdf. Alexander Hamilton, James Madison, John Jay, The Federalist Papers, ed. Charles Kessler (Signet, 2003). http://www.tfasinternational.org/aipes/academics/government2008/july17federalistpaperp ilon2008.pdf. Col. David Crockett, Not Yours to Give, (speech in Congress, 1827-1833) (originally published in Edward S. Ellis, The Life of Colonel David Crockett (Porter & Coates, 1884): http://www.tfasinternational.org/aipes/academics/government2008/davidcrocket2.pdf. Charles Warren, Congress as Santa Claus (Michie, 1932) (Arno, 1978). http://www.tfasinternational.org/aipes/academics/government2008/july18congressassanta pilon2008.pdf. Robert J. Reinstein, Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment, 47 Temple Law Review 361 (1993). http://www.tfasinternational.org/aipes/academics/government2008/july17reinstiernpilon2 008.pdf. Richard A. Epstein, The Monopolistic Vices of Progressive Constitutionalism, 2004-2005 Cato Supreme Court Review 11 (2005): http://www.cato.org/pubs/scr/2005/progressiveconstitutionalism.pdf. William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (Oxford University Press, 1995). http://www.tfasinternational.org/aipes/academics/government2008/july21luechtenbergpil on2008.pdf. Roger Pilon, The United States Constitution: From Limited Government to Leviathan, U.S. Senate testimony, October 25, 2005: http://www.cato.org/testimony/ctrp102005.html. Reprinted by the American Institute for Economic Research, 2005: http://www.tfasinternational.org/aipes/academics/government2008/july24fromlimitedgov ernmenttoleviathanpilon2008.pdf.

AIPES/Pilon/July 2011 9 Richard Epstein, Roger Pilon, Geoffrey Stone, John Yoo, Federalism: Executive Power in Wartime, 5 (2) Georgetown Journal of Law & Public Policy 309 (2007). http://www.tfasinternational.org/aipes/academics/government2008/july22executivepower inwartimepilon2008.pdf. Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803). United States v. Lopez, 514 U.S. 549 (1995). Gonzales v. Raich, 545 U.S. 1 (2005). Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Lawrence v. Texas, 539 U.S. 558 (2003).