Professors Jamin Raskin and Jeff Blattner
firstname.lastname@example.org and email@example.com
Course Description and Overview Law school education tends to be organized around the image of a lawyer arguing before a judge. But what if we replaced this image with a lawyer organizing a protest movement, running for office, making a speech, drafting legislation, or casting a vote in Congress?
The subject of this Class is the dynamic interaction of democratic process, individual leadership, political rhetoric, legislative institutions, the Constitution and the law governing elections. It is organized around a series of problems and inquiries designed to develop and sharpen your skills as a lawyer engaged in public things and as an effective political organizer, leader or legislator if you choose to follow a path of public service.
The Class has two parts. The first examines the politics of law: the legislative process and the complex dialectics of social movement, personal leadership and public rhetoric that interact with that process to bring, or stifle, political change in America. The second reverses the focus and examines the law of politics, specifically significant historical and contemporary problems in the arrangement of American political democracy, elections and citizenship. The constant factor in our deliberations is the inextricable relationship between law and politics.
There will be between 50 and 100 pages of reading on average per week; please do your readings thoroughly in advance. Most of the readings are available on-line through our class site. Others are available through the hyperlinks contained in this syllabus.
Students should prepare to answer the most important problems and questions raised in the syllabus and by the readings; on many class days, we ask you to prepare with a partner or to deliver a written response. We will occasionally bring guests to class.
Professor Raskin’s office hours are immediately after class or by appointment. Professor Blattner’s office hours are by appointment. We are happy to meet with you individually or in small groups over the course of the semester. You can reach us at firstname.lastname@example.org or email@example.com or Professor Raskin by phone at (202) 274-4011 (AU) or (202) 957-7539 (cell) and in the Maryland Senate at (301) 858-3634.
Your grade will be based 25% on the quality and consistency of your seminar participation and 75% on your final paper, which should be original, well-documented, creative and--in the best-case scenario (this is our definition of an A paper)-- publishable. The paper must be at least 20 pages, it should be double-spaced and have footnotes, and it may concern any topic covered or suggested by the class that we approve in advance. We will discuss topics in class and you should present us with an outline by Monday, March 28. Please email both professors a final copy of your paper by Friday, April 29 at 5:00 PM.
Students are encouraged to do an Externship in conjunction with class, either in the Maryland General Assembly (in Annapolis), on Capitol Hill, or in the Council of the District of Columbia. We will be happy to help you set this up. Many students have already arranged their externships; please let us know as soon as possible if you would like to do one. In prior years, students have found doing an externship a great way to enrich their understanding of the concepts discussed in class and also made important contacts for the development of their careers. Students who do not do externships have a standing invitation to come see the Maryland Senate in action this semester and I will let you know when various things are happening.
Reading and Class Assignments The Politics of Law in Democracy: Where Does Law Come From? Class 1 (January 11): Democracy Versus Representation. What is the relationship between democracy and representation? Are they complementary or antithetical? What does the concept of representation mean? How do the requirements of legal representation (representation by an attorney) differ from the requirements of political representation (representation by an elected official)? We will examine different theories of how elected representatives ought to function in relationship to their followers and constituencies. What should a legislator do if she disagrees with a majority of her constituents on an issue? Should the constituency educate the representative or the representative educate the constituency? Should they part ways? We will examine the Hobbesian theory of “authorization” in representation, agency theory, descriptive representation, symbolic representation, Burkean and Madisonian theories of trusteeship and microcosm in representation, and liberal theories of representation. Class Guest, Maryland Delegate Johnny Olszewski, Jr. Delegate Olszewski (“Johnny O.”) is a young Maryland Delegate representing conservative blue-collar Democrats in Dundalk outside of Baltimore. In a classic political dilemma created by the legislative push in Maryland for marriage equality for gays and lesbians in 2009, Johnny O. was forced to choose between his conscience and the majority sentiment of his constituents. He will discuss this dilemma and how he tried to resolve it. Delegate Olszewski was defeated in his run for the State Senate in November 2014 and is now working on his graduate dissertation. ORClass Film:Eyes on the Prize: The Mississippi Freedom Democratic Party. What were the dilemmas of political and legal representation faced specifically by Fannie Lou Hamer, Bob Moses, Hubert Humphrey, President Johnson, and Joseph Rauh in the controversy over the seating of the MFDP Delegates at the 1964 Democratic National Convention?
Bernard Manin, “A Democratic Aristocracy,” Chapter 4 from The Principles of Representative Government, pp.132-160 (1997)
Hanna Fenichel Pitkin, THE CONCEPT OF REPRESENTATION 209-240 (1967).
Eric Burner, and gently he shall lead them: Robert Parris Moses and Civil Rights in Mississippi, pp.169-199
ABA Model Rules of Professional Conduct, Rules1.0-1.18
Class 2 (January 25): Leadership and its VarietiesWe will study examples and counter-examples of three kinds of leadership—political leadership,rhetorical leadership, and legislative leadership, drawing on portraits of Rev. Martin Luther King, Bob Moses, President Franklin D. Roosevelt, Adlai Stevenson and President Lyndon Johnson. Why are Dr. King and Bob Moses “anti-types” according to Garry Wills? What is the relationship between “rhetorical leadership” and “political leadership”? Is the former necessary to the latter? What is the promise of rhetorical leadership; what are its dangers? What is the promise of “organizing leadership” and what are its dangers? What was the political genius of LBJ and what were his unique leadership qualities? What was it about the Senate that made it the perfect fit for his legislative style? Were the qualities that he exhibited inextricably bound to his particular political positions or might they be available to leaders of different political views?
Readings: Please note: this is a lot of reading but it’s very interesting. Please give yourselves 4-5 hours to get it done.
Garry Wills, Electoral Leader, CERTAIN TRUMPETS 23-38 (1994).
Gary Wills, Rhetorical Leader, CERTAIN TRUMPETS 211-226 (1994).
Eric Burner, And gently he shall lead them: Robert Parris Moses and Civil Rights in Mississippi, pp.20-70
Robert Caro, The Presence of Fire, THE YEARS OF LYNDON JOHNSON: MASTER OF THE SENATE, ix-xxiv (2002).
Robert Caro, Seniority and the South, THE YEARS OF LYNDON JOHNSON: MASTER OF THE SENATE, 78-163 (2002).
Robert Caro, Yeas and Nays, THE YEARS OF LYNDON JOHNSON: MASTER OF THE
SENATE 944-989 (2002).
Class 3 (February 1): Political Rhetoric:The Gettysburg Address and Great Speeches in American Politics. Legislative and political success depends upon persuasion, which in turn depends, at least in part, on the art of rhetoric. What was revolutionary, both in style and substance, about the Gettysburg Address, the greatest speech so far in our history? We will read Garry Wills’ essay and analyze its structure, its style and its meaning. For class, each student will take a second speech from the readings and analyze it closely, outlining its structure and key rhetorical techniques, especially the deployment of ethos, pathos and logos. Be prepared to deliver a section or two of the speech and to give your analysis of what you find both most and least effective about it.
Excerpts from AMERICAN SPEECHES: POLITICAL ORATORY FROM THE REVOLUTION TO THE CIVIL WAR:
John C. Calhoun, Speech in the Senate on AntiSlavery Petitions, Washington, DC, Feb. 6, 1837, 293-299.
Lyndon B. Johnson, Address to Congress on Voting Rights, Washington, DC, Mar. 15, 1965, 623-632.
Robert F. Kennedy, Remarks on the Assassination of Martin Luther King, Indianapolis, IN, Apr. 4, 1968, 693-694.
Jesse Jackson, Speech to the Democratic National Convention, San Francisco, CA, July 17, 1984, 741-753.
Excerpts from THE SENATE 1789-1989: CLASSIC SPEECHES 1830-1993, Vol. 3,
Robert C. Byrd, On the Nomination of Clarence Thomas to the Supreme Court, Oct. 15, 1991, 759-768.
Garry Wills, LINCOLN AT GETTYSBURG: THE WORDS THAT REMADE AMERICA 19-40, 90-175, 263 (1992).
Class 4 (February 8, 2015): A Case Study in the Forms of Rhetoric: the Politics of Religion, 1960 and 2008.Ancient rhetoric was a formal system for organizing and classifying speech and, at the same time, achieving both understanding and eloquence in public. What are the essential components of political rhetoric? Writing Assignment: Write a close textual comparison of 1-2 pages comparing John F. Kennedy’s speech on religion and politics in 1960 with Governor Mitt Romney’s speech on religion and politics in 2008. How do they compare in terms of substance, style and rhetorical technique? What assumptions is each candidate making about his audience and what it wants to hear? In-Class Assignment: Prepare as a candidate for Congress in your home state and give a speech about the proper place of religious faith in public life and how religion figures into your own political thinking.
Harold Holzer, THE LINCOLN-DOUGLAS DEBATES 40-135 (1993).
John F. Kennedy, Address to the Greater Houstonian Ministerial Association (Sept. 12, 1960).
Mitt Romney, Faith in America, Address at the George Bush Presidential Library
(Dec. 6, 2007).
Excerpts from THE CAMBRIDGE COMPANION TO ANCIENT RHETORIC:
Catherine Steel, Divisions of Speech 77-91
John Winthrop, “City on a Hill” Sermon (1630).
Class 5 (February 15)): What is N in Rousseau’s Formula; Who Belongs to “the People”? There are hidden ambiguities in the theory of democratic sovereignty. 1. Majority of what? Should a majority (or plurality) be counted on the basis of all eligible voters or all voters who actually show up and participate? A fascinating window on to this debate appeared in the form of a recent inquiry by the National Mediation Board about whether to reverse decades of policy by shifting from a majority-of-the-electorate rule to a majority-of the-voters rule under the Railway Labor Act for the conduct of union representation elections. Where do you come down on it? Was my submission to the NMB a diversion from democratic principles? 2. Must the People be Citizens for Purposes of Voting? For purposes of reapportionment? Non-citizens have traditionally been counted in the census and calculated as part of the reapportionment process. Now there is an effort in the Evenwel case to argue that only voters should be counted for the purposes of reapportionment. Is this the constitutional standard? Is it feasible? Meantime, in the 18th and 19th centuries, non-citizens participated pervasively in American elections, voting in nearly two dozen states at the local, state and national levels. Should non-citizens actually be granted the right to vote in local or other elections today? 3. Felon Disenfranchisement: Felons who do good time and are released from state custody have voting rights in most states but some 5 million are still disenfranchised in about a dozen states. Does the disenfranchisement of former felons violate Equal Protection or the Voting Rights Act?
National Mediation Board, In Re Fleet Service Employees of Continental Airlines
(2009) (Comments of Professor Jamin Raskin in Support of Proposed Rule)
National Mediation Board, In Re Fleet Service Employees of Continental Airlines
(2009) (Adoption of Rule)
Jamin Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and
Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391 (1993).
Paul David Meyer, Citizens, Residents, and the Body Politic, 102 Cal. L. Rev. 465 (2014).
Takoma Park Share the Vote campaign materials
Ernest Drucker and Ricardo Barreras, The Sentencing Project, STUDIES OF VOTING BEHAVIOR AND FELONY DISENFRANCHISEMENT AMONG INDIVIDUALS IN THE CRIMINAL JUSTICE SYSTEM IN NEW YORK, CONNECTICUT, AND OHIO (2005).
Roger Clegg, George Conway, and Kenneth Lee, The Case Against Felon Voting, 2 U. St. Thomas J.L. & Pub. Pol’y 1 (2008).
Evenwel v. Abbott, Lyle Denniston, The choice — be bold or practical - SCOTUSblog
Evenwel v. Abbott, Lyle Denniston, “How to measure ‘one person, one vote’”
Class 6 (February 22): “Three-Fifths,” 270, and the Red States and Blue States: the Slave Power, Congress, the Electoral College, and the National Popular Vote PlanThe infamous “three-fifths compromise” marked a founding and radical departure from Rousseau’s democratic formula of 1/N (although the exact politics of the compromise were quite the reverse of what is commonly thought). This rule for calculating the large slave population in the reapportionment process dramatically shaped American politics and history. What was the “slave power”? Why was Jefferson called “Negro President”? How did these constitutional and political arrangements influence our history? To what extent do presidential elections still have a Southern accent because of the 3/5 compromise? Popular dissatisfaction with the Electoral College, which Thomas Jefferson called a “dangerous blot” on the Constitution, led both to some early constitutional reform and continuing proposals for abolition. But the small states in Congress, and other erstwhile skeptics of change, have blocked repeal. In 2007, the National Popular Vote movement scored a breakthrough when Maryland became the first state to initiate and join an interstate compact of states that would commit to cast their presidential electors for the winner of the national popular vote (rather than the winner in their individual states). Since then, Hawaii, Illinois, New Jersey, California, Massachusetts, Vermont, the District of Columbia, Rhode Island, Vermont, and Washington have adopted the plan, meaning that, under the terms of the Agreement, it is more than half-way to enactment. Is the National Popular Vote Compact constitutional? How would it work? Is it time, and is this the right way, to replace the current regime?
Garry Wills, NEGRO PRESIDENT 50-89.
Jamin Raskin, Neither the Red States Nor the Blue States, But the United States: the National Popular Vote and American Political Democracy, ELECTION L.J. (2008).
Alexander Belenky, The Good, the Bad, and the Ugly: Three Proposals for
Introducing a National Popular Vote to the United States, 106 MICH. L. REV. 110
National Popular Vote Campaign, EVERY VOTE EQUAL1-31 (2008).
Max Ehrenfreund, How A Constitutional Quirk Could Guarantee A GOP Win In 2016, Washington Post (November 10, 2014).
Reid Wilson, The GOP’s Electoral College Scheme, The National Journal (Dec. 17, 2012), http://www.nationaljournal.com/columns/on-the-trail/the-gop-s-electoral-college-scheme-20121217.
The Law of Politics and Legislative Process Class 7 (February 29) The “Two-Party System,” “Bizarrely Drawn” Districts, and the Redistricting Trap: Controversies Over “Racial” and Partisan Gerrymandering:1. It is a commonplace to observe that the “two party system” is central to American politics and government. But what is that “system” precisely? A constitutional requirement or an unconstitutional imposition? A rhetorical fiction or a political-science prediction? The instantiation of popular democracy or an anticompetitive threat to it? We will examine the workings of the “two-party system” through partisan redistricting and “gerrymandering.” Was the Court correct to say in Vieth that partisan gerrymandering is not justiciable because there are no workable judicial standards for defining and managing it? Are there viable alternatives to the aggressive computerized gerrymandering that has taken over American politics and led to polarization and reduced electoral competition? If interested in writing a paper on this, check out Common Cause’s “Gerrymander Standard” Writing Competition at http://www.commoncause.org/issues/voting-and-elections/redistricting/gerrymander-standard-writing-competition.html There is a $5,000 first prize for solving the puzzle! 2. Nothing is more common in American political discourse, from George Washington to Barack Obama, than denouncing partisanship and faction and declaring an intention to rise “above” it. But is partisanship (and are parties) all bad? What might be said for the utility of partisanship in legislative and public politics? 3. Ever since its decision in Shaw v. Reno in 1993, the Supreme Court has considered majority-African American and majority-Hispanic legislative districts presumptively unconstitutional if they display “uncouth” perimeters or are based on discernibly “racial” legislative motivations. Does this line of authority constitutionalize a presumptive right of white citizens to be in political majorities? Whatever the constitutional merits of the issue, do methods exist to transcend the continuing toxic debate over “racial gerrymandering”? Are there feasible techniques of proportional representation that can liberate us from all forms of gerrymandering?
Shaw v. Reno, 509 U.S. 630 (1993).
Vieth v. Jubelirer, 541 U.S. 267 (2004)
Transcript of Oral Argument, Alabama Legislative Black Caucus v. Alabama, U.S. Supreme Court (November 12, 2014).
Jais Mehaji and Rob Richie, Gerrymandering in Michigan and the Super District Remedy, FairVote, (July 20, 2011), http://www.fairvote.org/research-and-analysis/blog/gerrymandering-in-michigan-and-the-super-district-remedy/
Check out these fine websites on redistricting:
http://www.redistrictinggame.org/ and http://www.gerrymanderingmovie.com/index.php.
Class Guest: Rob Richie from FairVote. Class 8 (March 14): The Two-Party System andPolitical Discourse and Competition: the Problems of Debate Exclusion and America’s Signature Fetish. If political discourse and competition of ideas are central to democratic process, the law governing political debates and ballot access is important, albeit nearly invisible. What are the constitutional and statutory frameworks governing institutional debate sponsorship and methods for selecting candidate participation in American politics? Was the Forbes decision correct? What are the constitutional and statutory frameworks governing access to the ballot? Was Jenness v. Fortson correct? In the wake of Forbes, can you come up with a candidate debate protocol for public and private media that you think is fair and democratic but still excludes “Willy Wacko” (in the words of Chief Justice Rehnquist from the oral argument in the Forbes case)? (Should “Willy Wacko” be excluded?) Can you come up with a candidate and party qualification rule for ballot access that is fair and democratic but does not lead to clutter and confusion? For an in-class exercise, you and your partner should either develop a fair and constitutional set of candidate inclusion criteria for the Commission on Presidential Debates in the 2016 presidential election or else develop a model rule for Congressional candidates to qualify for ballot presence. What do you think of Level the Playing Field’s proposal to the FEC?
Forbes v. Arkansas Educational Television Commission (1998)
Raskin, “Arrogant Orwellian Bureaucrats,’” excerpt of Chapter 6 from Overruling Democracy: the Supreme Court versus the American People.
FEC Petition by Level the Playing Field for More Inclusive Candidate Debate Criteria, http://sers.fec.gov/fosers/showpdf.htm?docid=306278
Nancy Rosenblum, Chapter 8:Centrism and Extremism and an Ethic of Partnership inOn the Side of the Angels, 369-411.
(For those who get truly obsessed with the issue, you can also read on your own my article called “The Debate Gerrymander” in 77 Texas Law Review 1943 (1999).)
Class 9 (March 21): 21st Century Exclusion: Suppressing the Vote and Disenfranchisement of the District. 1. If the vote is “fundamental,” is it okay to enact measures to suppress turnout? 2. Many students will doubtless move to Washington, D.C. upon graduation. Remember this: the 600,000 citizens of Washington are the only residents of a capital city on earth who lack voting representation in their national legislature. What difference does this make, if any? Is it constitutional? Does the majority-African American character and “bizarrely drawn” perimeter of the District change the analysis? Would it be constitutional for Congress to give District residents a vote in the House of Representatives (but not the Senate), as is currently being proposed? Are there other viable alternatives, such as retrocession to Maryland or a constitutional amendment establishing the right of all citizens to vote and be represented?
Crawford v. Marion County Election Board,553 U.S. 181 (2008)
Frank v. Walker, (7th Cir. October 10, 2014) (Posner J. dissenting from denial of rehearing en banc).
Rick Hasen, Voter Suppression’s New Pretext, New York Times (November 15, 2013)
Texas v. Holder, (D.D.C. 2012), vacated and remanded in light of Texas v. Shelby, ___ U.S. ___ (2013).
Garry Wills, J.Q. Adams: The Federal (Slave) District, NEGRO PRESIDENT 200-213 (2003).
Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000).
Garry Young, The District of Columbia and Its Lack of Representation in Congress: What Difference Does It Make?*
Class 10 (March 28): Congressional Committees and the House of Representatives: What are the purposes of congressional hearings and committees? What’s behind the introduction of legislation? What is the impact of the House Rules for considering bills on the outcome of the legislation?
House Practice: A Guide to the Rules, Precedents and Procedures of the House, Chapter 11: Committees (2003)
Congressional Research Service, The Committee Markup Process in the House of Representatives (2006)
Congressional Research Service, “The Legislative Process on the House Floor: An Introduction” (2006)
H. Res. 903, A Rule for the Consideration of Health Care Legislation (2009)
Class 11 (April 4): Senate Floor Procedures and the Filibuster: How is the Senate different from the House? Is it “the world’s greatest deliberative body” or something else? What are the virtues and vices of the filibuster, and were the Democrats right to exercise the “nuclear option”?
Readings: Course Packet:
Congressional Research Service, “The Legislative Process on the Senate Floor:
An Introduction” (2012).
Senator Byrd on the Filibuster (1995).
Todd Purdum, An Idea Whose Time Has Come, 230-311 (2014)
Akhil Amar, “Each House may determine the Rules of its Proceedings” America's Unwritten Constitution: The Precedents and Principles We Live By 361-68 (2012).
John O. McGinnis and Michael B. Rappaport, The Constitutionality of Legislative
Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995).
The Senate Invokes The Nuclear Option, November 21, 2013, excerpt from debate, Congressional Record November 21, 2013, S8414-23
Senator Hatch on the Regular Order in the Senate, February 12, 2015
Class 12 (April 11): The Crumbling Wall of Separation Between Corporate Wealth and Public Elections. In the Citizens United decision (2010), the Supreme Court, by a vote of 5-4, struck down prohibitions on corporate political spending in election campaigns. Are corporations indeed like citizens or groups of citizens in the political process; are they subordinate “creatures of the state”; or have they grown more powerful than both the citizenry and the state? What are the implications of the decision for the ban on corporate contributions in federal elections which goes back to the Tillman Act of 1907? Should municipal corporations now be able to intervene in partisan election contests too? 501C(3) non-profits? Foreign corporations? Must all restrictions on corporate campaign money be lifted?
Citizens United v. Fed. Election Comm’n, 130 S.Ct. 876 (2010).
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
City of Boston v. Anderson, 439 U.S. 1389 (1978).
Jamin Raskin, Democracy and the Corporation, OVERRULING DEMOCRACY 171-197 (2003).
Jamie Raskin, “A Shareholder Solution to ‘Citizens United,’” Washington Post, October 3, 2014, http://www.washingtonpost.com/opinions/a-shareholder-solution-to-citizens-united/2014/10/03/5e07c3ee-48be-11e4-b72e-d60a9229cc10_story.html
McCutcheon vs FEC, U.S. Supreme Court (April 2, 2014)
Class 13 (April 18?) Lobbying, Bribery andCorruption. What do lobbyists do? What gives lobbyists “influence”? What are the federal rules governing the activities of lobbyists? What does it mean for the legislative process or a legislator to be “corrupted”? How do we define corruption and what is the baseline against which we are measuring it? Are all campaign contributions corrupting? Are none of them? How do we know the difference between legitimate “political expression” and bribery? Is it constitutional to limit lobbyist influence after McCutcheon vs. FEC?
Campaign Contributions and Federal Bribery Law, 92 HARV. L. REV. 451 (1978).
South Carolina’s Ban on Lobbyist Fundraising, S.C. Code §2-17-80
NCSL, “Limits on Contributions During the Legislative Session”
“Lobbying Law in the Spotlight: Challenges and Proposed Improvements,” Report of the Task Force on Federal Lobbying Laws, Section of Administrative Law and Regulatory Practice, American Bar Association (2011)
Class 14 (April 25??): Does Democratic Reform this Century Require a Constitutional Amendment?Is the Political Process “broken” and what could be done about it? Has the combination of the structure of the Senate, the filibuster, political apportionment, and the “constitutionalizing” of campaign finance created legislative “sclerosis”? What would a modern constitutional convention look like? Could there be agreement on changes? Is the Constitution too hard to amend?
Readings: Course Packet:
Constitution of the United States, art. V
Thomas Jefferson,Letter to Samuel Kercheval, Monticello, July 12, 1816
Sanford Levinson, Disenchantment and Desire, Our Undemocratic Constitution 167-180 (2006)
Akhil Amar, The Consent of the Governed: Constitutional Amendment Outside Article V (1994)
William Van Alstyne, The Limited Constitutional Convention: The Recurring Answer (1979)
Jamie Raskin, Democratic Capital: A Voting Rights Surge in Washington Could Strengthen the Constitution for Everyone, William and Mary Law Review (2014)
Lawrence Lessig, Keynote Address from the Left, Conference on a Constitutional Convention (you can begin at the 35:00 mark)