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Millburn History Consortium
July 28-31, August 4-7, 2008The Constitution and Ordered Liberty
Note: We strongly recommend that participants arrive for the Summer Seminar having completed all assigned readings. Readings marked with a ^ are found in the Seminar Notebook.
- Books:
- Alonzo Hamby, Liberalism and Its Challengers
- Paul Hollander, The End of Commitment: Intellectuals, Revolutionaries, and Political Morality in the Twentieth Century
- Thornton Wilder, The Happy Journey to Trenton and Camden
- Tom Wolfe, Radical Chic & Mau-Mauing the Flak Catchers
Day One: The Constitution and the "Social Question"; Progressivism
Readings:
In the aftermath of the Civil War and Reconstruction, Americans turned their attention to the astonishingly rapid socioeconomic transformation wrought by the industrial revolution. Rural and small-town America became an urban nation and the greatest industrial power in the world. The stress and strain of this radical had profound political and constitutional effects, as statesmen wrestled with what was called "the social question." In the last quarter of the late 19th century, the United States became even more legally and politically liberal or "laissez-faire," with government’s role largely limited to economic promotion and distribution rather than regulation or redistribution. The crisis of the 1890s, however, marked a shift toward a more ambivalent attitude in political economy, and a gradual shift toward intervention and statism in the "progressive era."
What were the principal issues and institutions in late 19th century American politics? What was the relationship between government and business? What were the main limitations on government regulation? What were the chief organizational responses to the urban and industrial revolutions? How did the crisis of the 1890s alter American political development?
The progressive movement was a mood among middle-class professionals that order needed to be imposed on the chaotic American free enterprise system. Progressives addressed most of the same concerns as the Populists, but did so from a broader base, in a less angry, alienated, and apocalyptic way, for many progresses were themselves products of the economic system that they sought to reform. Thus, the progressive movement was thoroughly ambivalent, and progressives frequently took opposite sides on many issues, and produced contradictory legislation with often unintended consequences. But the one unifying theme of progressivism was statism: at one level or another, progressives called for increased governmental power to deal with social problems. It was in this period that the term "liberal" was inverted from its 19th century laissez-faire to its 20th century big-government definition.
What were the characteristics of the progressive movement? How did the progressives’ understanding of the American Constitution differ from the founders’? What were the sources of progressive constitutional thought? How did Theodore Roosevelt and Woodrow Wilson demonstrate a new view of federal and executive power? How did the progressives expand government power? How did the federal judiciary respond to progressive socioeconomic regulation? What effect did World War One have on American government? In what ways did the 1920s extend or reject progressivism?
- ^Michael Les Benedict, "Laissez-Faire and Liberty"
- ^Michael Les Benedict, "Victorian Moralism and Civil Liberty in the Nineteenth- Century United States," in The Constitution, Law, and American Life (Donald G. Nieman ed., 1992).
- ^Samuel P. Hays, The Response to Industrialism (first edition, University of Chicago Press, 1957).
In the aftermath of the Civil War and Reconstruction, Americans turned their attention to the astonishingly rapid socioeconomic transformation wrought by the industrial revolution. Rural and small-town America became an urban nation and the greatest industrial power in the world. The stress and strain of this radical had profound political and constitutional effects, as statesmen wrestled with what was called "the social question." In the last quarter of the late 19th century, the United States became even more legally and politically liberal or "laissez-faire," with government’s role largely limited to economic promotion and distribution rather than regulation or redistribution. The crisis of the 1890s, however, marked a shift toward a more ambivalent attitude in political economy, and a gradual shift toward intervention and statism in the "progressive era."
What were the principal issues and institutions in late 19th century American politics? What was the relationship between government and business? What were the main limitations on government regulation? What were the chief organizational responses to the urban and industrial revolutions? How did the crisis of the 1890s alter American political development?
The progressive movement was a mood among middle-class professionals that order needed to be imposed on the chaotic American free enterprise system. Progressives addressed most of the same concerns as the Populists, but did so from a broader base, in a less angry, alienated, and apocalyptic way, for many progresses were themselves products of the economic system that they sought to reform. Thus, the progressive movement was thoroughly ambivalent, and progressives frequently took opposite sides on many issues, and produced contradictory legislation with often unintended consequences. But the one unifying theme of progressivism was statism: at one level or another, progressives called for increased governmental power to deal with social problems. It was in this period that the term "liberal" was inverted from its 19th century laissez-faire to its 20th century big-government definition.
What were the characteristics of the progressive movement? How did the progressives’ understanding of the American Constitution differ from the founders’? What were the sources of progressive constitutional thought? How did Theodore Roosevelt and Woodrow Wilson demonstrate a new view of federal and executive power? How did the progressives expand government power? How did the federal judiciary respond to progressive socioeconomic regulation? What effect did World War One have on American government? In what ways did the 1920s extend or reject progressivism?
Day Two: The New Deal
Readings:
Focus Questions:
In the New Deal era, the American people made a commitment to federal regulation of the economy and to American leadership in world affairs. A relaxation of constitutional restraints on government power, particularly the deferential position of the Supreme Court, facilitated these changes. Under the general welfare and interstate commerce powers, Congress became an all-purpose government that largely relegated the states to administrative subdivisions. In both policymaking and quotidian operation of the government, Congress delegated vast powers to the president and the new bureaucracy.
What was the constitutional basis for New Deal legislation? What constitutional problems did it pose? What was the reaction of the Supreme Court and the outcome of Roosevelt’s confrontation with it? How did the New deal affect American federalism? How did World War II affect American constitutional principles? How did the Cold War? How were the states forced to comply with national standards regarding criminal procedure, moral legislation, and other matters?
- Alonzo Hamby, Liberalism and Its Challengers (Oxford, 1992), chs. 1-4.
Focus Questions:
In the New Deal era, the American people made a commitment to federal regulation of the economy and to American leadership in world affairs. A relaxation of constitutional restraints on government power, particularly the deferential position of the Supreme Court, facilitated these changes. Under the general welfare and interstate commerce powers, Congress became an all-purpose government that largely relegated the states to administrative subdivisions. In both policymaking and quotidian operation of the government, Congress delegated vast powers to the president and the new bureaucracy.
What was the constitutional basis for New Deal legislation? What constitutional problems did it pose? What was the reaction of the Supreme Court and the outcome of Roosevelt’s confrontation with it? How did the New deal affect American federalism? How did World War II affect American constitutional principles? How did the Cold War? How were the states forced to comply with national standards regarding criminal procedure, moral legislation, and other matters?
Day Three: The Constitution and the "Culture War"
Readings:
Focus Questions:
- ^Alvin Gouldner, The Future of Intellectuals and the Rise of the New Class
- ^David Potter, "The Roots of American Alienation" and "Rejection of American Society"
- Hamby, chs. 5-end
Focus Questions:
The most significant change in the second half of the twentieth century was the great cultural revolution that climaxed in the late 1960s. An expanding set of dissident and marginalized groups and individuals who regarded themselves as victims—blacks and other ethnic minorities, women, students, the elderly, disabled, criminals, pacifists, environmentalists, and homosexuals—regarded themselves as victims, or advocates of the victimized an abused. Their claims represented, at the least, a radical extension of the traditional American principles of liberty and equality and, in some cases, a revolt against deeply engrained religious, moral, and political norms. Constitutionally, this revolt challenged the legitimacy of much of American political culture, as the New Deal liberal regime became reviled as "the establishment." The most remarkable feature of the era was the reassertion of judicial power, as the Supreme Court recovered from its Post-Court-packing deference and became a leader, and the most hotly contested institution, in the late twentieth century "culture wars."
What "new classes" did the New Deal state empower? How did the status of black Americans change from Reconstruction to World War II? What was the basis of the Supreme Court’s Brown decision? What problems did it present? What effects did it have? How did the relationship of religion and public life change after World War II? What was the basis for the adoption of affirmative action in employment, education, and voting in the 1960-70s? What were the sources of the Watergate crisis? How did the Supreme Court contribute to late 20th century "culture war"?
What "new classes" did the New Deal state empower? How did the status of black Americans change from Reconstruction to World War II? What was the basis of the Supreme Court’s Brown decision? What problems did it present? What effects did it have? How did the relationship of religion and public life change after World War II? What was the basis for the adoption of affirmative action in employment, education, and voting in the 1960-70s? What were the sources of the Watergate crisis? How did the Supreme Court contribute to late 20th century "culture war"?
Day Four: Day Four: Trip to the Whitney Museum—Abstract Expressionism and Minimalism
Day Five: Can There Be an "After Socialism"?
Readings:
- Paul Hollander, The End of Commitment: Intellectuals, Revolutionaries, and Political Morality in the Twentieth Century, chs.1, 5, 6, 7, 9, 10
Day Six:
Morning: Civil Rights and Affirmative Action
Readings: All in binder
Can the principles of the American Founding ("We hold these truths to be self-evident, that all men are created equal…") be reconciled with the existence of slavery and racial discrimination? Consider carefully the conditions of the founding and the nature of the Constitution itself, along with the words of Jefferson, Douglass, and Lincoln.
Do we, and should we, look to courts as the primary expositors and defenders of civil rights? What kinds of constitutional questions does judicial engagement in this area raise? What kinds of policy questions? What kinds of social questions? Consider both majority and dissenting opinions in your answers, as well as your own sense of the situation
How should we draw the line between "private" and "public" or "state" conduct for the purposes of proscribing discriminatory conduct and promoting civil rights protections?
What is a precise definition of "affirmative action"? What are the strengths and weaknesses of the judicial branch’s efforts to a) promote affirmative action b) limit affirmative action? Consider both majority and dissenting opinions in your answers, as well as your own sense of the situation.
Afternoon: Black Militancy in the Late 1960's
Reading: Tom Wolfe, "Mau-Mauing the Flak Catchers," in Radical Chic & Mau-Mauing the Flak Catchers
Focus Questions:
Readings: All in binder
- Part I: Civil Rights and American Constitutionalism
- Declaration of Independence
- Thomas Jefferson, Notes on the State of Virginia, Query XVIII, Manners
- Constitution of the United States
- The Federalist, 54
- Thomas Jefferson, Letter to Roger C. Weightman, June 24, 1826
- Frederick Douglass, Fourth of July Oration, July 5, 1852
- Abraham Lincoln, Speech on the Kansas-Nebraska Act, October 15, 1854
- Dred Scott v. Sandford (1857)
- Abraham Lincoln, Speech on Dred Scott, June 26, 1857
- Abraham Lincoln, House Divided Speech, June 16, 1858
- Part II: Segregation and Desegregation
- Plessy v. Ferguson (1896)
- Swann v. Charlotte-Mecklenburg Board of Education (1971)
- Milliken v. Bradley (1974)
- United States v. Fordice (1992)
- Missouri v. Jenkins (1995)
- Part III: State vs. Private Action
- Shelley v. Kraemer (1948)
- Moose Lodge No. 107 v. Irvis (1972)
- Part IV: Affirmative Action
- Regents v. Bakke (1978)
- Richmond v. Croson (1989)
- Adarand v. Pena (1995)
- Grutter v. Bollinger (2003)
Can the principles of the American Founding ("We hold these truths to be self-evident, that all men are created equal…") be reconciled with the existence of slavery and racial discrimination? Consider carefully the conditions of the founding and the nature of the Constitution itself, along with the words of Jefferson, Douglass, and Lincoln.
Do we, and should we, look to courts as the primary expositors and defenders of civil rights? What kinds of constitutional questions does judicial engagement in this area raise? What kinds of policy questions? What kinds of social questions? Consider both majority and dissenting opinions in your answers, as well as your own sense of the situation
How should we draw the line between "private" and "public" or "state" conduct for the purposes of proscribing discriminatory conduct and promoting civil rights protections?
What is a precise definition of "affirmative action"? What are the strengths and weaknesses of the judicial branch’s efforts to a) promote affirmative action b) limit affirmative action? Consider both majority and dissenting opinions in your answers, as well as your own sense of the situation.
Afternoon: Black Militancy in the Late 1960's
Reading: Tom Wolfe, "Mau-Mauing the Flak Catchers," in Radical Chic & Mau-Mauing the Flak Catchers
Focus Questions:
- What does Wolfe mean by the term “Mau-Mau”?
- Who is the Flak Catcher?
- Why have scholars described Wolfe’s style of writing as the “New Journalism”?
- Who has the power?
- What does Wolfe’s story tell us about the state of race relations in America during the late 1960s?
Day Seven:
Morning: The Constitutional Sources of the Culture Wars
Afternoon: How Obscenity Became the Litmus Test for the First Amendment
Readings:
- ^Lochner v. New York
- ^Olmstead v. United States
- ^Katz v. United States
- ^Griswold v. Connecticut
- ^Eisenstadt v. Baird
- ^Roe v. Wade
- ^Planned Parenthood v. Casey
- ^Bowers v. Hardwick
- ^Romer v. Evans
- ^Lawrence v. Texas
- ^Charles J. Cooper, "Limited Government and Individual Liberty: The Ninth Amendment’s Forgotten Lessons," in Eugene Hickok, ed., The Bill of Rights
Does Justice Peckham avoid the charge (levied by Justice Holmes) in Lochner that he has set aside constitutional adjudication for policy-making, thereby destroying the distinction between “judge” and “legislator”?
What is the basis of the right to privacy announced in Griswold v. Connecticut? Why do Justices Black and Stewart deny the existence of such a right? How does it differ from the “right of privacy” that the Court had fashioned based upon the Fourth Amendment?
On what grounds did the Court extend the right to contraception to unmarried couples in Eisenstadt v. Baird? Why did Chief Justice Burger object to this decision? What does Eisenstadt v. Baird suggest about the clarity of the Court’s understanding of the right it fashioned in Griswold?
How does the Court justify the right to procure an abortion in Roe v. Wade? What interests does it weigh in reaching its decision? What are the most important objections to the decision offered by Justices Rehnquist and White? Does Justice Blackmun’s attempt to find the “trimester” framework “embedded” in the Constitution leave him vulnerable to the charge that he is “legislating” rather than “interpreting” the Constitution? What is the other possible constitutional grounding for an abortion right, in Justice Stewart’s opinion?
How does the Court both save and modify Roe in Planned Parenthood v. Casey? How does the Court understand the doctrine of stare decisis and the role of the Court in American society? What criticisms of the Court's approach are offered by Justice Blackmun, Chief Justice Rehnquist, and Justice Scalia?
Why does the Court decline to extend the right to privacy to protect homosexual conduct in Bowers v. Hardwick? Why does Justice Brennan disagree with the Court's view?
What was the purpose of Colorado's Amendment 2? Why does the Court regard it as unconstitutional? Why does Justice Scalia regard the Court's decision as incorrect?
In Lawrence v. Texas, why does the Court depart from its earlier understanding in Bowers v. Hardwick? How does the state law at issue in this case differ from that involved in the Bowers case? How does Justice O'Connor approach the issues differently from the Court? Why is Justice Scalia unpersuaded by the reasoning of the Court?
What does Cooper suggest the risks are of the judiciary adopting a “modern” understanding of the Ninth Amendment?
What is the basis of the right to privacy announced in Griswold v. Connecticut? Why do Justices Black and Stewart deny the existence of such a right? How does it differ from the “right of privacy” that the Court had fashioned based upon the Fourth Amendment?
On what grounds did the Court extend the right to contraception to unmarried couples in Eisenstadt v. Baird? Why did Chief Justice Burger object to this decision? What does Eisenstadt v. Baird suggest about the clarity of the Court’s understanding of the right it fashioned in Griswold?
How does the Court justify the right to procure an abortion in Roe v. Wade? What interests does it weigh in reaching its decision? What are the most important objections to the decision offered by Justices Rehnquist and White? Does Justice Blackmun’s attempt to find the “trimester” framework “embedded” in the Constitution leave him vulnerable to the charge that he is “legislating” rather than “interpreting” the Constitution? What is the other possible constitutional grounding for an abortion right, in Justice Stewart’s opinion?
How does the Court both save and modify Roe in Planned Parenthood v. Casey? How does the Court understand the doctrine of stare decisis and the role of the Court in American society? What criticisms of the Court's approach are offered by Justice Blackmun, Chief Justice Rehnquist, and Justice Scalia?
Why does the Court decline to extend the right to privacy to protect homosexual conduct in Bowers v. Hardwick? Why does Justice Brennan disagree with the Court's view?
What was the purpose of Colorado's Amendment 2? Why does the Court regard it as unconstitutional? Why does Justice Scalia regard the Court's decision as incorrect?
In Lawrence v. Texas, why does the Court depart from its earlier understanding in Bowers v. Hardwick? How does the state law at issue in this case differ from that involved in the Bowers case? How does Justice O'Connor approach the issues differently from the Court? Why is Justice Scalia unpersuaded by the reasoning of the Court?
What does Cooper suggest the risks are of the judiciary adopting a “modern” understanding of the Ninth Amendment?
Afternoon: How Obscenity Became the Litmus Test for the First Amendment
Readings:
- ^ Rochelle Gurstein, The Repeal of Reticence: A History of America's Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art, chs. 1, 2, 4, 11
Day Eight:
"A Republic If You Can Keep It"