American Exceptionalism as Constitutionalism
Professor Roger Pilon, Ph.D., J.D.
American Institute on Political and Economic Systems
July 2011
I. Course Overview
The Politics component of the American Institute on Political and Economic
Systems (AIPES) is designed to help students from a variety of mostly Central and
Eastern European nations to deepen their understanding of the basic moral, political, and
legal principles of a free society by looking mainly at how those principles have been
understood, instituted, and followed, or not followed, in America.
The guiding principles of the American system of government were set forth in
1776 in America’s founding document, the Declaration of Independence. They have
inspired countless millions around the world ever since, encouraged people from every
nation on earth to leave their homelands to start life anew in America, and given rise to
the idea that America is “exceptional” among nations—a nation of nations, defined not
by religious, ethnic, or other such considerations, but by its founding principles.
By the end of the twentieth century, with the collapse or decline of communism
nearly everywhere, America was left as the world’s only superpower. People in emerging
nations were thus especially interested to learn more about the American system of
government—one of the aims of the AIPES program. More broadly, however, people in
all nations have come to recognize the failures of socialism, especially in contrast to
those political systems that respect individual liberty, free markets, and democratic
government dedicated to securing freedom through the rule of law. Still, the forces that
would check that freedom are far from gone; and misunderstandings abound, even in
America, which those forces are only too anxious to exploit.
To address those issues, we will first look very briefly at the notion of American
exceptionalism as evidenced in the principles of the Declaration of Independence, at the
Declaration’s appeal to natural law, at the implementation of that law and those principles
in the United States Constitution, and finally at some of the problems that surround
American constitutionalism today, especially as those arise from the conflict between
democracy and liberty, resulting in the rise of effectively unlimited government,
problems that are often far greater in other democracies. In America, and increasingly in
other democracies as well, those problems end up ultimately in the courts. To a large
extent, therefore, the course will focus on how courts address those problems and thus on
the complex connections between morality, politics, and law.
For context, we will review briefly the history of democracy, from its origins in
ancient Greece to its demise midway through the reign of the Roman Empire, its rebirth
here and there during the middle ages and the early modern period, and finally its growth
in America, where it has been secured by the U.S. Constitution since 1789—the world’s
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longest standing written constitution still in place. That will set the stage for a much
deeper examination of the principles underlying a free society, which will take us back to
ancient Greece and to the idea of natural law, which two millennia later would inspire
America’s Founding Fathers. We will trace the “higher law” background of the
Constitution over that period, especially as it served to underpin English institutions,
particularly the common law. Much of that, and more, was drawn together by John Locke
in 1690 in his Second Treatise of Government, which guided Thomas Jefferson as he
drafted the famous phrases of the Declaration. We will look at Locke’s theory of rights,
his theory of property, and his social contract theory of political and legal legitimacy, all
of which is essential for understanding the American system of government.
That will put us in a good position to revisit the Declaration and the Constitution
in a more detailed way. Here we will look at the Founders’ philosophy of government;
their theory of legitimacy; the division of powers (federalism), separation of powers, and
other checks and balances; the role of the courts; and the Bill of Rights. After that, plus a
few readings from the Federalist Papers, we should have a fairly clear picture of the kind
of world the Founders envisioned: one where individuals were free to pursue happiness,
by their own lights, with government dedicated mainly to securing their right to do so.
There was a crucial problem with the original Constitution, however—its oblique
recognition of slavery, made necessary to ensure union among the states. The Framers
hoped slavery would wither away in time. It did not. It took the Civil War (1861-1865) to
end slavery and the ratification of the Civil War Amendments to the Constitution to bring
the states under the Bill of Rights, thus “completing” the Constitution at last by bringing
into it the grand principles of the Declaration, especially equality before the law. It will
be important to look at that amendment process because the Fourteenth Amendment
(1868), which “incorporated” those principles against the states, is the source today of a
good deal of constitutional confusion about what states and the courts can and cannot do.
We will then turn to what is doubtless the most fundamental issue in American
constitutional law—the size and scope of government. Having recently fought a war to
rid themselves of overweening government, the Framers of the Constitution were not
about to impose that kind of government on themselves. In fact, James Madison, the
principal author of the Constitution, wrote in Federalist 45 that the powers of the new
government would be “few and defined.” Thus, we look next at the reasons why, for
nearly 150 years, Americans lived largely under constitutionally limited government.
Today, however, our governments—federal, state, and local—are leviathans. How
did that happen under a constitution that provided for only limited government? We take
up that crucial question next. The answer begins by noting the fundamental shift in the
climate of ideas that came to be called the Progressive Era, running from the late
nineteenth century through the early decades of the twentieth century. Calling for
“active” government to solve “social and economic problems,” Progressives disparaged
America’s founding principles, which limited the size and scope of government. Not until
the New Deal, however, which began after the election of Franklin Roosevelt as president
in November of 1932, were Progressives in a position to implement their programs in a
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far reaching way; and even then they largely failed, initially, because the courts stood
their ground, for the most part, enforcing the provisions of the Constitution that limited
government.
In 1937, however, shortly after his landslide 1936 reelection, President Roosevelt
unveiled his infamous scheme to pack the Supreme Court with six new members. There
followed an uproar in the country: not even the overwhelmingly Democratic Congress
would go along with the scheme. Nevertheless, the Court got the message: there was the
famous “switch in time that saved nine” (members of the Supreme Court), and the Court
began “rewriting” the Constitution without benefit of constitutional amendment. We will
examine in some detail how that was done—how the constitutional floodgates were
opened to allow the modern redistributive and regulatory state to pour through. But the
main points to be drawn from that seminal episode in American constitutional history—
the divide between essentially limited and effectively unlimited government—concern
the crucial role the courts play, or fail to play, in preserving constitutional government;
the interplay between politics and law; and the importance of the climate of ideas in
which all of that unfolds. Ideas matter. They frame the debate, setting limits on what can
and cannot be said—or done.
We will then outline the current debate in American constitutional law about how
to interpret the Constitution, distinguishing the three main schools—modern liberals (in
the American sense), conservatives, and libertarians or classical liberals—and applying
that analysis to both domestic and foreign affairs. The focus to this point in the course
will have been mainly on domestic affairs internal to the United States. But of course the
Constitution empowers the government to deal with external affairs as well. The
Constitution’s discussion of such powers, however, is far less detailed than its discussion
of domestic powers: much is left to political, not legal, determination. Over the course of
the war on terror, after the attacks of September 11, 2001, those issues have been hotly
debated, not only in America but around the world. They involve complex questions that
we will at least touch upon.
Finally, we will illustrate those three approaches to constitutional interpretation
with a few legal opinions involving the scope of government power and the protection of
individual rights. The course will conclude with a brief discussion of the problems that
arise when the universal principles underpinning the American system of government are
ignored. And because similar problems arise under parliamentary systems, we will reflect
briefly on whether they are better able to address them.
II. Course Readings and Requirements
Discussion leaders: Ms. Mari Matjus
Mr. Sam Potolicchio
My sessions will combine straight lecturing with Socratic student exchanges,
aimed at engaging students in the discussion as much as is possible in a large class. They
will be based mainly on the readings, including my own writings, but will also go beyond
the readings to discuss issues on which there may be no suitable readings.
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Just below I have keyed the readings to each class period, but we may speed up or
slow down as the course unfolds. As you will see, there is a lot of reading for this course,
perhaps more than any of you will be able to do. Accordingly, I have listed the readings
as “required” and “recommended”—the latter for those students who may want to expand
their understanding of the subject.
To do well in the course and get the most from it, students are strongly
encouraged to complete the readings before arriving in Prague. The AIPES program,
once you do arrive, is quite full. My lectures and questions will assume that students have
done the required readings and have at least looked at the recommended readings. And
the discussion leaders with whom you will meet in smaller groups will be especially
concerned that you have done the reading.
Finally, at the conclusion of the AIPES program students will take a one and onehalf hour “closed-book” essay exam in the Politics component—no books, papers, or
notes. The exam is designed to test your mastery of the subject; it will contain no
surprises. You will be asked to write (legibly, please!) on two interrelated subjects:
1. Discuss the “Higher Law” background of the United States Constitution.
2. Discuss constitutional interpretation and the climate of ideas.
III. Syllabus
Tuesday, July 12:
Session I: Introduction; Several Issues; American Exceptionalism; First Principles
Academic life under communism: Colin Woodard, “A World Transformed.”
Still a world of sovereign nations: John Bolton, “America’s Interests and the U.N.”
Culture clashes: Tony Blaire, “Making Muslim Integration Work.”
The difficulties of constitution drafting: Noah Feldman, “Foundering.”
Identity: Natan Sharansky, “Democracies Can’t Compromise on Core Values.”
Distrust of government: William A. Galston: “In Government America Must Trust.”
American Exceptionalism: President Ronald Reagan: “Farewell Address.”
First Principles: Roger Pilon, “Preface,” Cato Institute Declaration/Constitution.
Estonia’s Examples: Jackson Diehl, The Washington Post, 13 May 2011.
http://www.washingtonpost.com/opinions/2011/05/13/AFAxXy3G_print.html
Wednesday, July 13:
Session II: History of Democracy; English History; Justification
Required Readings:
Robert Dahl, On Democracy, ch. 2.
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Plato, Euthyphro.
Recommended Readings:
Greg Mahler, Comparative Politics, ch. 5, “The Executive,” pp. 106-109.
Thursday, July 14:
Session III: Natural Law; Legal Positivism; the “Higher Law” of the Constitution
Edward S. Corwin: The “Higher Law” Background of American Constitutional Law.
Friday, July 15:
Session IV: Rights; Property; the Social Contract; the Declaration of Independence
John Locke: The Second Treatise of Government, §§ 1-15, 25-51, 95-131.
The Declaration of Independence (copies to be delivered at AIPES orientation).
Roger Pilon, The Purpose and Limits of Government, Cato’s Letters No. 13.
Monday, July 18:
Session V: The United States Constitution; the Federal Court System
Required Readings:
The U.S. Constitution (copies to be delivered at AIPES orientation).
U.S. Courts: Comparing Federal and State Court Systems; Federal Courts Map.
Recommended Reading:
The Federalist Papers, Nos. 45, 51, 78.
Tuesday, July 19:
Session VI: Limited Government: Powers
Required Reading:
Col. David Crocket, “Not Yours to Give.”
Highly Recommended Reading:
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Charles Warren, Congress as Santa Claus.
Wednesday, July 20:
Session VII: Completing the Constitution; the Fourteenth Amendment: Rights, Equality
Robert J. Reinstein, “Completing the Constitution: The Declaration of Independence,
Bill of Rights and Fourteenth Amendment.”
Thursday, July 21:
Session VIII: The Progressive Era; the New Deal
Required Reading:
Richard A. Epstein, “The Monopolistic Vices of Progressive Constitutionalism.”
Recommended Reading:
William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional
Revolution in the Age of Roosevelt, ch. 4.
Friday, July 22:
Session IX: Constitutional Interpretation Today; Domestic Affairs
Roger Pilon, “The United States Constitution: From Limited Government to
Leviathan.”
Recommended Reading (Foreign Affairs):
Federalist Society Debate: “Federalism: Executive Power in Wartime.”
Session X: Classic and Recent Supreme Court Decisions
Powers: Marbury v. Madison; United States v. Lopez; Gonzales v. Raich.
Rights: Lucas v. South Carolina Coastal Council; Lawrence v. Texas.
IV. Sources
Colin Woodard, “A World Transformed: Academe in Eastern Europe 20 years after the
fall of Communism,” The Chronicle of Higher Education, October 25, 2009:
http://chronicle.com/article/A-World-Transformed/48884/.
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John Bolton, “America’s Interests and the U.N.,” Hillsdale College Imprimis, April 2008.
http://www.hillsdale.edu/news/imprimis/archive/issue.asp?year=2008&month=04.
Tony Blair, “Making Muslim Integration Work,” Wall Street Journal, November 9, 2010.
http://online.wsj.com/article/SB10001424052702303362404575580700415413596.html?
mod=WSJ_Opinion_LEFTTopOpinion.
Noah Feldman, “Foundering,” New York Times Magazine, July 31, 2005.
http://www.nytimes.com/2005/07/31/magazine/31WWLN.html?_r=3&or=&pagewanted
=print
Natan Sharansky, “Democracies Can’t Compromise on Core Values,” Wall Street
Journal, June 16, 2008. http://online.wsj.com/article/SB121358021414976189.html.
William A. Galston, “In Government America Must Trust,” Brookings, March 3, 2010.
http://www.brookings.edu/opinions/2010/0303_government_trust_galston.aspx?p=1.
President Ronald Reagan’s Farewell Address to the Nation, January 11, 1989:
http://millercenter.org/scripps/archive/speeches/detail/3418.
Roger Pilon, “Preface,” The Declaration of Independence and the Constitution of the
United States of America, Cato Institute, 1998. (To be distributed at AIPES orientation).
http://www.cato.org/pubs/articles/preface_pocket-constitution.html.
Robert Dahl, On Democracy (Yale University Press: 1998).
http://www.tfasinternational.org/aipes/academics/government2008/july14ondemocracypil
on2008.pdf.
Greg Mahler, Comparative Politics: An Institutional and Cross-National Approach, 4th
ed. (Prentice-Hall: 2003).
http://www.tfasinternational.org/aipes/academics/government2008/july14mahler5executi
vepilon.pdf.
Plato, Euthyphro, in Four Texts on Socrates, ed. by Thomas G. West and Grace Starry
West (Cornell University Press, 1998).
http://www.tfasinternational.org/aipes/academics/government2008/july15euthyphroplato
pilon2008.pdf.
Edward S. Corwin, The “Higher Law” Background of American Constitutional Law
(original: 42 Harvard Law Review 149-185; 365-409 (1928-1929); Cornell University
Press: 1955; Liberty Fund: 2008).
http://www.tfasinternational.org/aipes/academics/government2008/july15corwinpilon200
8.pdf
John Locke, The Second Treatise of Government, in Two Treatises of Government
(1690), ed. Peter Laslett (Cambridge University Press, 2002).
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http://www.tfasinternational.org/aipes/academics/government2008/july162ndtreatiselock
epilon2008.pdf.
Roger Pilon, The Purpose and Limits of Government, Cato’s Letters No. 13, Cato
Institute, 1999: http://www.cato.org/pubs/catosletters/cl-13.pdf.
U.S. Courts: Comparing Federal and State Court Systems:
http://www.uscourts.gov/about.html.
Federal Courts Map: http://www.uscourts.gov/images/CircuitMap.pdf.
Alexander Hamilton, James Madison, John Jay, The Federalist Papers, ed. Charles
Kessler (Signet, 2003).
http://www.tfasinternational.org/aipes/academics/government2008/july17federalistpaperp
ilon2008.pdf.
Col. David Crockett, “Not Yours to Give,” (speech in Congress, 1827-1833) (originally
published in Edward S. Ellis, The Life of Colonel David Crockett (Porter & Coates,
1884):
http://www.tfasinternational.org/aipes/academics/government2008/davidcrocket2.pdf.
Charles Warren, Congress as Santa Claus (Michie, 1932) (Arno, 1978).
http://www.tfasinternational.org/aipes/academics/government2008/july18congressassanta
pilon2008.pdf.
Robert J. Reinstein, Completing the Constitution: The Declaration of Independence, Bill
of Rights and Fourteenth Amendment, 47 Temple Law Review 361 (1993).
http://www.tfasinternational.org/aipes/academics/government2008/july17reinstiernpilon2
008.pdf.
Richard A. Epstein, The Monopolistic Vices of Progressive Constitutionalism, 2004-2005
Cato Supreme Court Review 11 (2005):
http://www.cato.org/pubs/scr/2005/progressiveconstitutionalism.pdf.
William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in
the Age of Roosevelt (Oxford University Press, 1995).
http://www.tfasinternational.org/aipes/academics/government2008/july21luechtenbergpil
on2008.pdf.
Roger Pilon, The United States Constitution: From Limited Government to Leviathan,
U.S. Senate testimony, October 25, 2005: http://www.cato.org/testimony/ctrp102005.html. Reprinted by the American Institute for Economic Research, 2005:
http://www.tfasinternational.org/aipes/academics/government2008/july24fromlimitedgov
ernmenttoleviathanpilon2008.pdf.
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Richard Epstein, Roger Pilon, Geoffrey Stone, John Yoo, “Federalism: Executive Power
in Wartime,” 5 (2) Georgetown Journal of Law & Public Policy 309 (2007).
http://www.tfasinternational.org/aipes/academics/government2008/july22executivepower
inwartimepilon2008.pdf.
Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803).
United States v. Lopez, 514 U.S. 549 (1995).
Gonzales v. Raich, 545 U.S. 1 (2005).
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
Lawrence v. Texas, 539 U.S. 558 (2003).
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