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The James Madison Seminar on Teaching American History

Somerset County History Consortium
June 26-30, July 5-7, 2006

The Constitution and Ordered Liberty

Note: We strongly recommend that participants arrive for the Summer Seminar having completed all Background and Primary Readings. Readings marked with a ^ are found in the Seminar Notebook.

Day One: The Constitution and the "Social Question" (Paul Moreno)

Readings:
  • ^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).
Focus Questions:
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?


Day Two: Progressivism (Paul Moreno)

Readings:
  • ^Hays, The Response to Industrialism
  • ^Morton White, Social Thought in America (Viking, 1949).
Focus Questions:
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 Three: The New Deal (Paul Moreno)

Readings:
  • 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 Four: Trip to the Whitney Museum-Abstract Expressionism and Minimalism

Day Five: The Constitution and the "Culture War" (Paul Moreno)


Readings:
  • ^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"?


Day Six: Cold War Revisionism (Harvey Klehr)


Readings:
  • ^Robert Gabrick and Harvey Klehr, Communism, Espionage and the Cold War, National Center for History in the Schools, UCLA
  • ^Bruce Craig, Treasonable Doubt: The Harry Dexter White Spy Case, pp. 263-78
  • ^Alan Weinstein, Perjury: The Hiss-Chambers Case (rev. ed, 1997), pp. 449-64
  • ^Ellen Schrecker, Many Are the Crimes, McCarthyism in America, pp. 119-53
  • ^John Haynes, Red Scare or Red Menace? pp. 89-112
  • ^Martin Redish, The Logic of Persecution: Free Expression and the McCarthy Era, pp. 1-22


Day Seven, a.m.: Rock and Rationality (Carson Holloway)


Readings:
  • ^Plato's Republic, Bks. 2 and 3: 386a-403c, 419a-425a (pp. 63-82, 97-102 of the Bloom translation)
  • ^Friedrich Nietzsche, "Richard Wagner at Beyreuth," in Untimely Meditations (Cambridge University Press), pp. 195-254
  • ^Allan Bloom, Closing of the American Mind, pp. 68-81
  • ^Robert Pattison, The Triumph of Vulgarity, chs. 1, 7, and 8
Focus Questions:
Plato's Republic:
  • 1) What changes to the city's poetry does Socrates propose? What are the purposes of the changes?
  • 2) What does Socrates mean by the "style" of the city's music? What style does he recommend and why?
  • 3) Why does Socrates take so seriously the kinds of musical harmonies and rhythms used in the city?
  • 4) Why, according to Socrates, is the rearing in music "most sovereign"?
  • 5) Why does Socrates think that the ways of music are never moved without the greatest political laws being changed?
Nietzsche's "Richard Wagner in Bayreuth":
  • 1) How does Nietzsche's understanding of the cultural and political importance of music resemble that of Plato?
  • 2) How does Nietzsche's account of music and its purposes differ from that of Plato?
  • 3) Why, according to Nietzsche, is Wagner's music so great?
  • 4) What does Nietzsche hope that Wagner's music will accomplish for Germany?
Bloom's The Closing of the American Mind:
  • 1) Why might Bloom suspect that rock music "dissolves the beliefs and morals necessary for a liberal society"?
  • 2) Why does Bloom think that rock music impairs the ability of young people to pursue a liberal education?
Pattison's The Triumph of Vulgarity:
  • 1) How does Pattison's understanding of rock music resemble Bloom's?
  • 2) How does Pattison differ from Bloom in his understanding of the relationship of rock music to higher education?
  • 3) What does Pattison mean by "vulgarity"? Why does he think rock music stands for vulgarity?
  • 4) Why does Pattison think that rock's vulgarity is in harmony with the spirit of democracy?
  • 5) According to Pattison, what are the vices and virtues of vulgarity?


Day Seven, p.m. (Rochelle Gurstein)


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
Focus Questions (prepared by A. Scrupski):
To what extent does Rochelle Gurstein's "reticent" adaptation to sexual matters support a personally diffuse rather than genitally concentrated form of sexual attraction and relationship? How has each adaptation been mirrored in the popular music and dance of its time? Which adaptation would seem to contribute more to the sense of uniqueness of the relationship? To the nurturing (child rearing) potential of the relationship? To the strength and endurance of the relationship?

How does Gurstein's treatment of the biologization of sexual attraction complement Robert Pattison's apologetic for the "triumph of vulgarity" in contemporary popular music? How do contemporary arguments for "exposure" in sexual matters replicate the ancient republicans' conception of the public vs. private sphere? How are these phenomena reflected in present-day adolescent views of the publicly available peer group and the family unit as reference groups for standards of personal behavior?

How might one conceive of the reticent disposition as ego-protective in matters of sexual attraction and relationship? How might the exchange of gradually escalating commitments of self by each party to a relationship support or enhance the aura of private preserve that surrounds the personality in social relationships? How do souvenirs, "tokens of affection," remembered melodies, the formality of the dating process, contribute to the aura of privacy?

Compare Gurstein's explanation (following J.G.A. Pocock) of the presumed desertion by the American founders of their belief that personal virtue could be advanced by commercial activity with Richard Bushman's treatment of the same phenomena in Refinement of America. How might the two apparently divergent positions be reconciled? How might the reconciliation constitute a resolution of Alexis de Tocqueville's paradoxical observation that in America self-interest properly understood leads to habits of virtue?

Rochelle Gurstein cites Hannah Arendt's observation that "one of the defining characteristics of the authentically totalitarian structure is the belief that 'everything is possible.'" To what extent does Arendt's observation identify the commonality that Edward Shils suggests unites totalitarianism with antinomianism? Is the belief that there should be no constraints on sexual "possibilities," whether or not they include group sex, anal penetration, or even incest, part and parcel of the belief that once the "invisible hand" (the constraints of the market) are replaced by the hands of the planners, a utopian existence awaits us all? Does Arendt's observation explain the twin preoccupations of the 1960s' New Left -- socialism and free and easy sex? Are Cold War revisionists, apologists for Stalinist imperialism, also at least nascent agents of uninhibited sexual thought and activity? Are the members of Gurstein's "party of exposure" also candidates for Alvin Gouldner's "vanguard party"? (The Future of Intellectuals and the Rise of the New Class. Seabury Press, 1979)

How does the conception of privacy that protects the individual's innermost consciousness from the pornographer's invasion differ from the conception of privacy that is the foundation of Griswold and Roe v. Wade? Is it not anomalous that constitutional sanctioning of pornographic representation stimulates a culture that ultimately requires a corresponding sanction for the consequences of free and unfettered sexual engagement? Might not protection for privacy of individual consciousness obviate the necessity for a new definition of privacy to accommodate abortion?


Day Eight: The Culture Wars: The Constitution and Sexual Autonomy (Carson Holloway)


Readings:
  • ^Griswold v. Connecticut
  • ^Eisenstadt v. Baird
  • ^Roe v. Wade
  • ^Planned Parenthood v. Casey
  • ^Bowers v. Hardwick
  • ^Romer v. Evans
  • ^Lawrence v. Texas
Focus Questions:
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?

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?

How does the Court justify the right to procure an abortion in Roe v. Wade? What interests does it weigh in reaching its decision? To what extent is abortion protected by the decision? What are the most important objections to the decision offered by Justices Rehnquist and White?

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?

In deciding cases, should members of the Court rely on their own moral reasoning or only on the text of the Constitution and our long-standing legal traditions?

Is it a problem if state laws reflect moral judgments that are rooted in the population's religious beliefs?

What are the consequences for the future of American democracy if the Court continues to develop its understanding of the right to privacy along the lines it has developed thus far?

What would be the consequences for American democracy if the Court abandoned the right to privacy and left the controversial moral issues it embraces to the decision of state legislatures?