Exam 2 grading notes
1. Name one important source of “institutional resistance” and one important
source of “institutional leverage” in the process of congressional (second-“cycle”)
Reconstruction, and tell why each was significant for higher lawmaking.
The terminology here is from Ackerman’s account of the framing: institutional
resistance is the ability of higher lawmaking opponents to block the reform effort due to
their powers of office in government; or the presence of legal or strong normative
constraints that would tend to prevent the proposal from being accepted. Example: the
pre-existing amendment rules in the Articles of Confederation; the ability of the state
legislatures to instruct their delegates to the Philadephia Convention. Institutional
leverage is the use of normal, well-accepted (pre-proposal) governmental processes in
apparent support of the proposal, to contribute legitimacy to the higher lawmaking effort.
Examples: the use of state ratifying conventions organized by the existing state
legislatures; the action of the Confederation Congress in transmitting the proposed
Constitution to the states for their action without acting on it themselves.
Unfortunately nearly all answers neglected to apply this terminology, sometimes
treating institutional resistance simply as opposition by officials, and institutional
leverage simply as the use of power to overcome opponents. Most answers did give the
perfectly good example of the presidential veto or Supreme Court ability to rule
Reconstruction unconstitutional; an even better example, given by some, was the
president’s power as commander in chief to direct the military forces operating in the
former Confederacy. An excellent example of institutional leverage is the use by the
Radicals of state constitutional conventions and of the Article-V amendment process,
including the participation of southern state citizens and southern state legislatures, to
accomplish their goals. A few answers also mentioned the Republicans’ repeated
election victories during Reconstruction (up through 1872, at least), which is another
good example of institutional leverage.
Most answers offered, as examples of institutional leverage, the “unconventional
threats” of impeachment and jurisdiction-stripping. But impeaching a president had
never been done before; and stripping the Court of appeals jurisdiction, unusual in any
circumstances, was extremely questionable after the Court had already heard a case. The
very fact that these threats were “unconventional” means that these exercises of
congressional power could not have had the effect of inheriting legitimacy from the use
of well-accepted political processes.
2. During the presidential cycle of Reconstruction, South Carolina was at first
reluctant and then agreed to ratify the proposed 13th Amendment. Why does
Ackerman call this a “switch in time”—that is, what are the important ways in
which South Carolina’s action resembles the classic switch in time by the Supreme
Court in 1937? How did South Carolina’s action help achieve ratification in the
presidential cycle of higher lawmaking?
They changed their minds under unconventional pressure from Johnson, who
threatened to keep them under the rule of his provisional governor and to see that they
were denied their representation in Congress if they did not ratify.
Ackerman argues that their action set off a “bandwagon” of ratifications from
other reluctant new southern legislatures, making it possible to ratify the 13th on
Johnson’s terms—that is, counting the southern states in both numerator and
denominator, with (nearly) all southern states ratifying. In particular, it wasn’t just one
more state ratification.
3. According to Ackerman, what was the “proposal” in New Deal higher
lawmaking? By what action was it “ratified”?
The fullest account of the “proposal” is that the Constitution should henceforth be
interpreted to permit the sort of federal policies affecting the economy that are
exemplified by the programs of the Second Hundred Days. In particular, as FDR urged
in his speeches and press conferences from just after the Schechter decision until the
election, constitutional interpretation should be revised to broaden the class of things that
can be regulated as interstate commerce, and the idea of “liberty of contract” (central to
Lochner) should be considerably restricted in favor of state and federal regulatory power.
(Many answers mentioned the First Hundred Days with equal significance; but
both Ackerman and Sehat distinguish the two batches of laws, Ackerman because the
programs of the Second Hundred Days were less radical and Sehat because the Second
Hundred Days focused on gaining the approval of labor and related constituencies rather
than on business, as in the First Hundred Days.)
Ratification consisted of the revised approach of the Court beginning in 1937, as
nearly all answers said. In the “first phase,” the Court upheld the programs of the Second
Hundred Days; and in the “second phase,” or “transformational” decisions, they actually
enunciated new doctrines to put FDR’s favored constitutional approach into effect.
4. It’s often said we should be skeptical of claims that an election expresses a
“mandate” for particular new government actions. Drawing on the accounts of
both Ackerman and Sehat, explain what factors should lead us, nevertheless, to
conclude that voters in the 1936 election were expressing their agreement to the
proposal that the Supreme Court should accept the policies of the New Deal.
For Ackerman, the answer should revolve around his argument about why 1936
qualified, at the time, as a triggering election. This depended on the higher lawmaking
proposal being the central issue of the campaign, about which the two parties strongly
disagree; high public attention to that issue throughout the campaign; and an
overwhelming election victory. Ackerman recounts, importantly, how FDR clearly stated
his proposal for a new constitutional approach. Sehat contributes additional explanation
for both the issue focus—FDR’s many speeches and the continuing role of the American
Liberty League in opposing him on exactly those grounds—and the public attention, due
to the highly publicized speeches given by those two sides. Additional both sides
conducted their duel in terms of constant Founder rhetoric, sharpening all the more
clearly what was at stake in the election. Both authors also comment on the contribution
made by the timing of additional adverse Court decisions during the campaign.
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5. Give three examples of claims about the Founders’ principles that are common
features of Founder rhetoric. In each case, identify one politician who used that
claim, and toward what goal it was used.
Some abbreviated examples follow, with no attention to the “goal.” We were
fairly loose in grading the latter, as long as it didn’t merely re-state the principle. There
were other principles-politicians in addition to those listed here who received full credit
as well.
• limited federal government (Jefferson, Jackson, Reagan)
• states’ rights (Calhoun, secessionists; segregationists)
• minimal government (Jefferson, Reagan)
• protection of property rights; free market (A.L.L., Reagan)
• fiscal austerity (Jefferson, Jackson, Reagan)
• “freedom,” “liberty” (pretty much everybody not more concerned about (“union”)
• equality (Lincoln)
• create prosperity; empower the union (Clay, Webster, FDR)
• strengthening the bonds of union (Clay, Webster, Lincoln)
6. In terms of constitutional reasoning, how did the Court get from the “separate
but equal” doctrine of Plessy v Ferguson (1896) to the “separate is inherently
unequal” doctrine of Brown v. Board of Education (1954)?
All the answers given restricted attention to the series of cases recounted by
Straus in portraying Brown as a classic instance of doctrinal revision when a central
precedent proves unreliable as a guide to deciding future cases. That part of your answer
should definitely include the 1914 McCabe decision requiring, wherever segregation was
mandated, that a first-class railroad coach be available to Black passengers whenever one
was provided for White passengers, regardless of the level of customer demand. Nearly
all answers then proceeded through the appropriate litany of state-supported segregated
professional schools.
In addition, however, the Brown Court cited two other important factors that made
it appropriate to overturn Plessy’s acceptance of separate-but-equal facilities in
education. First was the demonstration by psychology experiments (the Clark doll
studies) that segregated schooling seemed to accompany poor self image among Black
children. Second was the argument that public schools play a vastly more important role
in society by 1954 than they had in 1868, making the Framers’ narrow expectations about
the acceptability of school segregation no longer relevant to “equal protection of the
laws.” A fully satisfactory answer should have mentioned at least one of these features.
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