Syllabus
* Weekly Schedule * 1st week * What is Constitutionalism; Classical Contractual Theory What are the main differences between Hobbes’s, Rousseau’s, and Locke’s understanding of social contract? * Readings: Thomas Hobbes, Leviathan (ed. by Richard Tuck, revised student edition, Cambridge: Cambridge University Press 1996) (excerpts) Jean-Jacques Rousseau, The Social Contract and The First and Second Discourses (Yale University Press, 2002) (excerpts) John Locke, Two treatises of government and a letter concerning toleration (ed. by Ian Shapiro, Yale University Press 2003) (excerpts) * 2nd week * Modern Contractual Theories How does Rawls’s concept of ‘veil of ignorance’ alter the classical idea of social contract? Habermas’s deliberative model: notions of ‘ideal speech situation’ and ‘public space’ * Readings: John Rawls, A Theory of Justice (Cambridge (Mass.): Belknap Press, 1999) (excerpts) Jürgen Habermas, TBA * 3rd week * Living Constitution v. Originalism What are the basic theoretical differences between living constitutionalism and originalism? Which account is more persuasive? Balkin’s attempt at synthesis * Readings: Antonin Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1997) (excerpts) David Strauss, The Living Constitution (Oxford: Oxford University Press, 2010) (excerpts) Jack M. Balkin, Living Originalism (Cambridge (Mass.): Belknap Press, 2011) (excerpts) * 4th week * Theory of Constitutional Moments Constitutional dualism: formal constitutional change and higher law-making Dynamics of constitutional transformation and its phases Notion of ‘private citizen’ * Readings: Bruce Ackerman, We the People Vol. 1 (Cambridge (Mass.): Belknap Press, 1991) (excerpts) * 5th week * Popular Constitutionalism Schmitt’s concept of the political Who does interpret the constitution? Bickel’s notion of counter-majoritarian difficulty * Readings: Carl Schmitt, The Concept of the Political (University of Chicago Press, 1996) (excerpts) Alexander M. Bickel, The Least Dangerous Branch. (2nd ed. New Haven (Conn.): Yale University Press, 1986) (excerpts) Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004) (excerpts) * 6th week * Deliberative Constitutionalism, Democratic Constitutionalism & Backlash Theory Making decisions through deliberation; deliberation as a method of forming an opinion Society’s role in shaping the constitution; reflexive judiciary Readings: James Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (Oxford: Oxford University Press, 2011) (excerpts) Alexis De Tocqueville, Democracy in America (J.P. Mayer ed., George Lawrence Trans., 1969) (pp. 150-51) Post, Robert & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007). * 7th week * Republican Constitutionalism Liberal notion of freedom as non-interference v. republican notion of freedom as non-domination What is mixed constitution? * Readings: Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press 2000) (excerpts) Federalist Papers (excerpts) * 8th week * Cosmopolitan Theory & Constitutionalism Kant’s concept of hospitality Limits of cosmopolitan theory * Readings: Immanuel Kant, Political Writings (Cambridge University Press, 1991) pp. 93-130 Alexander Somek, The Cosmopolitan Constitution (Oxford: Oxford University Press, 2014) (excerpts) Matthias Kumm, Cosmopolitan Turn in Constitutionalism, in Ruling the World? Constitutionalism, International Law and Global Governance 326 (Jeffrey L. Dunoff & Joel P. Trachtman eds., 2009) * 9th week * Public Choice Theory & Libertarian Approaches to Constitutionalism Basic assumptions of utilitarianism and libertarianism Quick introduction into public choice theory Pareto efficiency and incorporation of independents (Nozick) * Readings: Phillip Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford University Press, 2006) (excerpts) Robert Nozick, Anarchy, State, and Utopia (Wiley-Blackwell, 2001) (excerpts) James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor, the University of Michigan Press 1962) (excerpts) * 10th week * Game Theory of Constitution Quick introduction into game theory Game theory and law Nash equilibrium * Readings: Robert D. Cooter, The Strategic Constitution (Princeton: Princeton University Press, 2000) (excerpts) * 11th week * Constitutionalism Beyond the State I: Societal Constitutionalism Traditional constitutionalism challenged by transnationalization and privatization Constitutional sociology Transnational regimes and new constitutional subjects * Readings: Gunther Teubner, Constitutional Fragments (Oxford: Oxford University Press, 2012) (excerpts) Gunther Teubner, Fragmented Foundations: Societal Constitutionalism beyond the Nation State, in Petra Dobner and Martin Loughlin (eds.) The Twilight of Constitutionalism? (Oxford University Press, 2010) * 12th week * Constitutionalism Beyond the State II: Constitutional Pluralism Plurality of constitutional actors Extraterritorial effects of law Overlapping constitutional authorities Constitutionalization of the EU and WTO * Readings: MacCormick, Beyond sovereign state, 56 Modern Law Review 1, 1-18 (1993) Neil Walker, The Idea of Constitutional Pluralism, 65 Modern Law Review 3, 317-359 (2002) Maduro M. P. Contrapunctual Law: Europe’s Constitutional Pluralism in Action. In Walker, N. Sovereignty in Transition (Portland (Or.): Hart, 2003), pp. 502-537. * *** * Course Policies Electronic devices are allowed, but must be used for the class tasks only. Phones must be in silent mode. Be aware that the Turnitin software might be used to check for plagiarism.
Appendix – Assessment Table
Criteria
Excellent
Very Good
Below Average
Unsatisfactory
Topic Knowledge 20%
Excellent knowledge of the topic beyond what was covered in the class.
Knowledge of the topic as expected from the class coverage.
Poor knowledge of the topic. Unable to use it in further work.
Shows fundamental and structural gaps in the knowledge of the topic.
Coverage of the Task 15%
Covered the task beyond expectations.
Covered the task as expected.
Covered the task partially only.
Failed to cover the task.
Independent/Innovative Thinking 30%
Interesting ideas. Shows ability to think about the topic in innovative ways.
Able to use the knowledge from the class independently.
Does not exceed the solutions outlined in the class.
No new additions.
Persuasiveness and Clarity of Arguments 25%
Arguments are clear; well built. They follow from each other. Very persuasive.
Mostly clear; however, some links are missing.
Not very persuasive. Arguments are rather blurred and do not support each other.
Lacking arguments. Not persuasive at all.
Structure and Language (Engaging; Writing Style) 10%
Very engaging writing style. Easy to follow and understand. Clear structure and no language issues.
Good structure and language. Occasionally difficult to follow. Minor language issues.
Poor structure; the reader can easily get lost. Mul
Annotation
COURSE OVERVIEW
Constitutionalism studies how constitutions constrain and legitimate power, regulate and stimulate society, and correct deficiencies of a legal system. Constitutions have become the reference point for legitimacy of legal and political actions in liberal-democratic political communities. The legitimating potential of constitutions depends to a great extent on their responsiveness to long-term developments in the society. In this course, we will study major contemporary theories of constitutionalism focusing on how they construct the justificatory, regulatory, and corrective functions of higher law. We will start with classical contractual theories and the discussion between proponents of living constitution and originalism to establish the starting point before we look closely at the liberal, republican, and libertarian traditions of modern constitutionalism. First, we will examine contemporary variations of social contract developed by Rawls and Habermas, and subsequently explore the liberal tradition represented by the theory of constitutional moments (Ackerman), popular constitutionalism (Kramer), deliberative constitutionalism (Fishkin), and democratic constitutionalism (Post & Siegel). Next, we will study republican approaches to constitutionalism (Pettit, Federalist Papers) and implications of cosmopolitan theory for constitutionalism (Somek, Kumm). The subsequent sessions will focus on the libertarian tradition. We will read several works that employ public choice theory and game theory for the study of constitution (Nozick, Buchanan & Tullock, Cooter). In the last two sessions, we will examine potential of constitutionalism to organize communities that transcend the state, in particular the theories of societal constitutionalism (Teubner) and constitutional pluralism (MacCormick, Walker).