NORTHERN ILLINOIS UNIVERSITY

DEPARTMENT OF POLITICAL SCIENCE

 

POLITICAL SCIENCE 450                                                   OFFICE:  ZULAUF 307

AMERICAN POLITICAL THOUGHT                                OFFICE HOURS:  11-11:50 MTWTH

PROFESSOR GLENN                                                           & BY APPOINTMENT. Call 753-1091

FALL 2004                                                                             or gglenn@niu.edu

 

THE PURPOSE OF THIS COURSE

 

            This course focuses on the following questions.  What does it mean to have a Constitution, to have the kind of Constitution we have, and how is that Constitution supposed to matter for the kind of democratic political life we are supposed to have?  What is the relation of the Declaration of Independence and the American Constitution to American democracy?  Does the Constitution embody the fundamental principles and institutions of what our democracy is?  Or is it simply a contract by which the American people authorize those institutions to rule them?  Or is there any relation at all between the Constitution and American democracy?

            Our study approaches the Constitution primarily through the political thought and action of political leaders and not primarily through the thought and action of judges.  Indeed, one purpose of the course is to make a theme of the difference between the Constitution and constitutional law, and of what difference that difference makes for our understanding of what American democracy is supposed to be.  We give substantial emphasis to the thought of the Constitution’s Founders (or “Framers”) and to that of later statesmen who have had to grapple with the problematic relation of the Constitution to democracy.  While some attention is paid to the thought of both judges and scholars, we focus on the thought of those who have had responsibility for acting and who could be held accountable for what they said and did.  This focus treats the Constitution as the normative foundation for our democratic political life as a whole, that is, including the political thoughts and actions of citizens and their elected and removable representatives.

 

COURSE POLICIES

ATTENDANCE

 

            Attendance at each class is a necessary condition for success in this course.  It is also required.  Attendance is taken and grades reduced for more than three absences.  See below under Basis of Grading.  Written explanations for absences are expected as a courtesy and should be submitted as soon as possible afterwards.  “Absence” means lateness as well as non-attendance.  Students are expected to be in class at the beginning of the class.  Operationally, “absence” means not being present when attendance is taken.  As a courtesy, students are requested to document absences in writing, e.g., a physician’s note.  Whether documentation is adequate is the sole discretion of the instructor.

 

INTELLECTUAL EXPECTATIONS

 

            Success in this class also depends upon demonstrating, both on a daily basis and in written work, the capacity to think analytically by reading texts of a fairly high level of literacy, grasping the arguments being made, seeing relationships between parts of the arguments, detecting strengths and weaknesses in them, and reasoning about them so as to make thoughtful judgments about which are better and worse.

 

CLASS PARTICIPATION

 

            Class will be conducted like a seminar in that much more of the daily discussion will depend on each student than is the case in most lecture/discussion courses.  Students are expected to prepare for class by doing the readings to be discussed that day, to bring the appropriate readings to class, and be prepared to engage in the dialectical exchanges through which the class is largely conducted.

            Good quality class participation is required and is a substantial part of the final grade.  “Good quality” does not mean merely talking frequently.  It means 1) giving day to day evidence of having studied the readings, 2) being able to reflect and comment intelligently on the issues raised in the readings and lectures, 3) asking apt questions, and 4) showing evidence of making progress in fitting together the pieces into a larger whole.  Good performance on the written work is necessary but not sufficient to receive one of the best course grades.

 

WRITTEN ASSIGNMENTS

 

1)      Both undergraduate and graduate students will have a take-home midterm consisting of 500-600 word essays. These will be handed out 10/5 and are due 10/19.

2)      Both undergraduate and graduate students will have an in-class final examination Tuesday 12/7 from 6-7:50pm. The final will be short answers and essays. Makeup exams are given only if 1) the student has had good attendance and 2) the reason for the absence is documented in writing by the next class after the absence. ‘Documented’ means a physician's note or its equivalent. Whether documentation is adequate is at the discretion of the instructor.

3)      There may also be unannounced quizzes from time to time covering the reading 

      assignment for that day. Quizzes cannot be made up.

4)      All students are required to do one of the following.

A.     Undergraduates and non-political theory graduate students are to do a 900-1000 word paper on “the Electoral College.” The paper topic and directions are attached to this syllabus. The paper is due September 28.

B.     Political theory graduate students are to do a 1500 word review of the recent book by Paul Carrese, The Cloaking of Power: Montesquieu, Blackstone and the Rise of Judicial Activism (2003). The aim of this review is to help such students see to what extent the nature and problem of the judicial power as we study it in this class is related to the understanding of judicial power in the modern political philosophy. The paper is due Tuesday Nov. 23.

 

BASIS OF GRADING

 

The final grade is based equally on 1) class participation, 2) exams and any quizzes, and 3) papers. Quizzes count less but are especially determinative in close cases. The grade produced by these measures of performance will be reduced by one grade for each absence after 3.  

 

TEXTS AND READINGS

 

1. The Federalist Papers ed. by Jacob Cooke

2. What the Anti-Federalists Were For ed. Herbert Storing.

3. A reading packet available at the Village Commons Bookstore (a few copies may also be

    available at the Holmes Center Bookstore).

 

Each student should buy their own copies of the texts and readings. The appropriate readings are to be brought to each class. Readings will be used and discussed in each class. Students are expected to cite appropriate readings in the daily class discussion.

 

COURSE SCHEDULE

 

8/24     

Introduction.  Constitution and Regime: Why Study the Founding?

The Constitution versus Constitution Law. Relation for the Judiciary to the Constitution.

 

I. America's Political Theory: Our beginning as a nation.  ‘Founded’ as distinguished from ‘grown’ regimes. What principles of right justify a nation separating itself from the rest of humanity?

 

A. The Declaration of Independence. What does it teach? Does Lincoln correctly understand it or does he change its meaning?

            1. Thomas Jefferson, The Declaration of Independence July 4, 1776, (RP, pp. 4-6).

            2. Abraham Lincoln, The Gettysburg Address (1963), (RP, pp. 3-4).

 

B. Are the principles of the Declaration true or are they merely the prejudices of dead white males? And why should the answer to that question matter to us? What if we don’t believe in ‘true’ but only in ‘true for me’?  Are the principles of the Declaration principles of right or only of power?

1. Carl Becker, The Declaration of Independence (1948), Introduction & Ch. VI, 

                 (RP, pp. 7-31).

2. Charles Kesler, “Education, Cultural Relativism, and the American Founding,”               

     (RP, pp. 32-38).

 

8/31     Review Paper Topic. Due 9/28. “Why did the Founders give us the Electoral College?”

            Details attached to this syllabus.

 

C. What is the relation of the political teaching of the Declaration of Independence to the Constitution? Does the Declaration require democracy or is it compatible with other forms of government? What does ‘democracy’ mean in the context of the Declaration?  Is there more than one kind of democracy compatible with the Declaration and the Constitution?

1. Martin Diamond, “The Declaration and the Constitution: Liberty, Democracy, and the

     Founders” (1975), and “The Revolution of Sober Expectations” (1976)

     (RP, pp. 39-51; 51-62).

            2. Harry Jaffa, “How to think about the American Revolution” (1978), (RP, pp. 63-76).

 

9/7

II. What form of government does the Constitution establish? The view from the Founding.

A. A democratic-republic (say the Federalists). But popular governments have characteristic defects. How their new political science helps remedy these defect. Federalist Papers #’s 9 and 10 (Cooke, pp. 50-65).

 

             A1. The argument for the Anti-Federalists also being “founders”. Storing, What the 

             Anti- Federalists Were For (1981), Ch. 1. (pp. 3-6).

 

9/14

            A 2. Is the Constitution democratic?

              1. The Progressive Answer: No. 

                 a. J. Allen Smith, The Spirit of American Government, (1919), (RP, pp. 93-107).

     b .Michael Parenti, “The Constitution as an Elitist Document”(1980),

         (RP, pp.107-121).

  2. The Traditional Answer: Yes.

                 a. Martin Diamond, “The Federalist” (1959), (RP, pp.121-136).

      

            A 3. Is the Constitution democratic enough?

              1. The Progressive No.

                  a. “Remarks of Thurgood Marshall at the annual seminar of the San

Francisco Patent and Trademark Law Association” May 6, 1987,

 (RP, pp. 136-139).

              2. The Traditional Yes.

                  a. Robert Goldwin, “Why Blacks, Women and Jews are not mentioned    

in the Constitution” (1987), (RP, pp. 140-147).

 

9/21    

B. For the founders the new government is also a “general,” “national” or “federal” government: The constitutional division of power between the new government and the states.  (“Federalism”):  “The proposed constitution is therefore in strictness neither a national nor a federal constitution, but a composition of both.”

1. The Constitution, Art. I, Sec. 8 & 9; Amendments I, X, and XIV (RP, pp. 428-430; 435, 436, 437-438) 

 Federalist Papers #’s 39 and 45 (Cooke, pp. 250-257; 308-314)

2. Storing, Ch. 2, (pp. 9-14 only) (The ambiguity of “Federalist” vs. “anti-Federalist”).Chapters 3 (advantages of a small republic) and 4 (the anti-Federalist different view of what “union” is). (pp. 15-37).

 

9/28     Electoral College Paper Due 

 

C. "Separation of powers"

  1. The Constitution Art. I, Sec. 1, Sec. 2, Cl.5; Sec.3, Cl. 5-7; Sec. 7, Cl. 2 & 3; Art. II.

      Sec. 2, Cl. 1; Amendment 1 (RP, pp. 426, 427, 428, 432, 435).

              2.  Federalist Papers #’s 47-51, and #70 (Cooke, pp. 323-353; pp. 471-472).

                   The distinction between passions and reason (p. 347).  

              3.  Storing, pp. 53-63 (esp. 60-63).  Limited government (p. 53); Responsibility to the 

                   people (pp. 53, 59); simple vs. complex government (p. 54 ff.); balanced government 

                   (p. 59); mixed government (p. 59); “separation of functions” not “separation of

                   powers” (p. 62).

              4. The ‘Electoral College’ Max Farrand ed. The Records of the Constitutional

                  Convention of 1787, (RP, pp. 378-425).                     

 

10/5      Take Home Exam Handed Out. Due 10/19

5. The judiciary. Is “judicial review” consistent with democracy as government by the    people?  Why should unelected and virtually un-removable judges, responsible to and controllable by no one, have a right to reject laws passed by the elected and removable representatives of the people? U. S. Constitution, Article III (RP, pp. 432-433); Federalist Papers #78. (Cooke, pp. 521-530).

 

D. The ‘Bill of Rights’. What did the Founders understand by a “bill of rights”?  What was it supposed to do?  Why did the Federalists initially oppose one? Why did the Anti-Federalists (and Jefferson) insist upon one? What finally led the Federalists to support one? Were the anti-Federalists satisfied with the one they got?

              1. The case against a bill of rights

                    a. Alexander Hamilton, Federalist Papers, #84, (Cooke, pp. 575-87). Find three 

                       arguments in Federalist #84 against adding a bill of rights to the Constitution.

              2. The case for a bill of rights.

                    a. The Anti-Federalists

                       Storing, Ch. 8 "The Bill of Rights", (pp. 64-70).

                   b. Jefferson (and Madison)

                       Jefferson to Madison, December 20, 1787, (RP, pp. 77-79).

                       Madison to Jefferson, October 17, 1788, (RP, pp. 79-82).

                       Jefferson to Madison, March 15, 1789, (RP, pp. 82-83).

           Madison's speech introducing what became the “bill of rights,” June 8, 1789, 

            (RP, pp. 84-93).

 

10/12

III. Controversies Concerning the basis on which, and by whom, the Constitution is to be interpreted?

A. How the Founders thought the Constitution’s grant of powers were to be interpreted.” Why did the debate over "express" versus "implied" powers erupt immediately and between the two main advocates for adoption of the Constitution? What does this tell us about the Constitution itself?

              1. The Constitution, Art. I. Sec, 8, 10 (RP, pp. 428, 430) and Federalist Papers #’s 33

                  and 44 (Cooke pp. 203-208; 299-308)                      

              2. Madison's “Speech in Congress during debate on the tenth amendment,”

                  August 18, 1789, (RP, p.148).

              3. Hamilton’s “Opinion on the Constitutionality of the National Bank,” February 

                  23, 1791, (RP, pp. 148-151).

              4. Madison’s “Speech on the National Bank Bill,” February 2, 1791, (RP, pp. 151-157).

              5. The Neutrality Proclamation of 1793 and the “Pacificus-Helvidius Debate”

                  a. George Washington, The Neutrality Proclamation, (RP, p. 158).

                  b. Alexander Hamilton, Pacificus #1, (RP, pp. 158-161).

                  c. James Madison, Helvidius #1, (RP, pp. 161-165).

                           

 

10/19 Take-Home Exam Due

 

B. Does the Constitution made the Federal government or the States final (sovereign) interpreters of the Constitution? Madison and Jefferson’s Kentucky and Virginia Resolutions about the nature of the Constitutional contract. Is this theory consistent or inconsistent with the Constitution?

              1. The Alien and Sedition Acts (1798), (RP, pp. 165-168).

              2. Jefferson, The Kentucky Resolutions of 1798 and 1799, (RP, pp. 168-176).

              3. Madison, The Virginia Resolutions of 1798, (RP, pp. 176-180). What do the  

                  Kentucky and Virginia Resolutions mean by “interposition” and “nullification”?

              4. State Replies to the Virginia and Kentucky Resolutions, (RP, pp. 180-181).

              5. John C. Calhoun, Fort Hill Address (1831), (RP, pp.181-182).

  6. South Carolina Ordinance of Nullification (1832) and President Andrew

      Jackson’s Proclamation to the People of South Carolina (1832), (RP, pp.183-184).

  7. South Carolina Declaration of the Cause of Secession (1861), (RP, pp.185-88).

 

10/26

 

C. Which branch of the federal government should ‘finally’ interpret the Constitution? :  A debate about the constitutional meaning of separation of powers.

              1. The Supreme Court.

                  a. Federalist Papers #78, pp. 524-25 only (“If it be said . . . are not fundamental.”).

                  b. Chief Justice John Marshall, Marbury v. Madison (1803), (RP, pp.189-194).

  2. The Supreme Court: But . . .

                  a. The Court is bound by Congressional/Executive interpretations of the

                    Constitution -- Stuart v. Laird (1803) and its consequences.

                    Glenn, (1990) “Transformation of the Bill of Rights from Community Defining 

                    Declarations into Judicially Enforceable law up to Dred Scott”, Parts II and III,

                     (RP, pp. 295-303).

                 b. Justices can be replaced by established constitutional means (elections?) so the

                     Court can be made to overrule itself.

                     Abraham Lincoln, “Speech on the Dred Scott Decision” (1857) and “First                          

                     Inaugural Address” (1861), (RP, pp. 213-215).

                 c. The people should be able to control all their public servants, including

                     judges -- (The Progressive Critique).

                        Theodore Roosevelt, “The Heirs of Abraham Lincoln,” (1913), (RP, pp. 224-230).

                 d. The Court should be able to giver new meaning to the Constitution.

                     1. [Justice] Robert Jackson, “Preface” to The Struggle for Judicial Supremacy,

                         (1941), (RP, pp. 236-242). -- (Defends the view that the Constitution gives the

                         people the right, through their representatives, to solve their political and

                         economic problems without interference from the Court).

                     2. Glenn (1995) “Civil Liberties and the Possibility of Constitutional

                         Originalism,” (RP, pp. 328-330) -- (Commentary on what Attorney General

                         Robert Jackson attacked and on what Justice Robert Jackson defended.)

           

 

11/2

              3. Each branch is final in its own sphere (“Departmentalism”).

a. Madison, “Speech on the removal power of the President” June 17, 1789,

     (RP, pp. 195-200).          

                 b. Jefferson to Spencer Roane, Sept. 6, 1819 and Jefferson to Judge William                                     

                     Johnson, June 12, 1823, (RP, pp.  201-206).

                 c. Andrew Jackson, “Message on the veto of the bank bill” July 10, 1832,

                     (RP, pp. 207-212). -- (beginning of the explicit argument that the Supreme Court 

                      has usurped democracy).                                     

     d. The Lincoln/Taney dispute concerning habeas corpus.

                     1. Chief Justice Roger Taney, Ex Parte Merryman (1861), (RP, pp. 216-219).

                     2. Abraham Lincoln, “Message to Congress in Special Session” (July 4, 1861),

                         (RP, pp.219-220).                                               

                     3. Edward Bates, “Opinion of Attorney General Bates on the President's Power                        

                         to suspend the writ of habeas corpus,” July 5, 1861, (RP, pp. 221-224).

       e. Franklin D. Roosevelt, “The Court Disapproves,” Introduction to 1935 volume of                            

           Roosevelt's Public Papers and Addresses, (RP, pp. 230-236) -- (Is the Supreme

           Court part of "the government" or not?)

 

11/9

D. Recent controversy concerning what the Constitution is and on what basis it should be interpreted.

            1. The “living Constitution” position.

     a. Justice William J. Brennan, Jr., Speech at Georgetown University, October 12,

             1985, “Construing the Constitution,” (RP, pp. 252-260).

                 b. Rejoinder by Walter Berns, “The Words According to Brennan,” (RP, pp.289-291).

2. The "original intent" position.

                 a. Chief Justice William Rehnquist, “The Notion of a Living A Constitution” (1976),         

                     (RP, pp. 242-251).

                 b. Attorney General Edwin Meese, Speech at Tulane University, October 21, 1986, 

                     “The Law of the Constitution,” and his defense of this speech in a letter to the 

                      Washington Post, Nov. 13,   1986, (RP, pp. 266-268).                  

 

11/16  

 

3. The natural right position.

  a. Harry V. Jaffa, “What Were the ‘original intentions’ of the Framers of the

     Constitution of the United States?” (1987), (RP, pp. 269-288).

 

E. The Modern “bill of rights” as the “living Constitution’s” substitute for the Declaration’s natural rights teaching.

  1. The first 10 amendments were not originally “the bill of rights”

      Glenn (1990), “Transformations of the Bill of Rights from Community Defining                             

      Declarations into Judicially Enforceable Law up to Dred Scott”, Parts I, II, III,

                  (RP, pp. 291-303).

 

11/23    Book Review Due

 

              2. How the first 10 amendments were transformed into “the bill of rights” and into                              

                  judicially enforceable law.

                 a. Glenn (1989), “The Bill of Rights: Community Defining Declarations or Judicially                     

                     Enforceable Law”, Parts I and II, (RP, pp. 344-360).

                 b. Glenn (1990), “Transformations of the Bill of Rights from Community Defining                             

                      Declarations into Judicially Enforceable Law up to Dred Scott”, Part V,

                       (RP, pp. 305-307).

                 c. Glenn “Justice Black and the Transition to Judicial Enforceability: The

                       ‘Absolute’ Bill of Rights”, Parts I-IV (RP, pp. 361-377).

 

11/30

 

3. Modern “civil liberties” becomes “the living Constitution’s” substitute for natural rights: And the modern Supreme Court establishes its supremacy over Congress, the Executive, the States, and the People.

  a. Glenn (1995), “Civil Liberties and the possibility of Constitutional Originalism,”

   (RP, pp. 312-343).

 

12/7     FINAL EXAM:  In class, essay and short answer.