Research Assignment

Answer one of the following

Option 1:

In Federalist 78, Hamilton argued that the judiciary has “neither force nor will, but merely judgment” and must rely on the other branches to carry out its rulings. Test his claim against one Supreme Court decision that provoked a political backlash. Do not choose Brown, Roe, Dobbs, Obergefell, or Citizens United.

Use three kinds of research:

• The president. Using the American Presidency Project (presidency.ucsb.edu), find what the sitting president said about the decision in the year after it: statements, press conferences, speeches, or signing statements. Quote at least two, with dates. Then determine what the administration did to enforce, ignore, or undercut the ruling.
• Congress.gov. Find legislation members introduced within two years of the decision to reverse, limit, or punish it.
• Newspapers. Using ProQuest Historical Newspapers or another library database, find reactions from at least two other elected officials in the month after the decision. 

Cite at least one scholarly source on presidential or congressional responses to the Court.

Did the backlash change anything? Did the president enforce the decision, resist it, or evade it? Did Congress pass any of the bills? Decide whether your case shows a Court as weak as Hamilton described, or stronger than he expected. Draw on Federalist 78 and Tocqueville.

Option 2

From the Cook list of "tossup" or "lean" House and Senate races, pick one incumbent running for reelection. Investigate whether the prospect of losing has changed how that official represents constituents. Has electoral pressure made the incumbent more responsive, or chiefly changed the campaign’s message? Focus on one issue. Compare the incumbent’s earlier record with campaign actions and statements. Look for changes in votes, policy positions, constituent service, or public appearances. Distinguish changes in conduct from changes in emphasis. Use Publius and Tocqueville’s discussion of elections and democratic government, as well as other class materials, to assess how elections hold officials accountable.  

Begin with the incumbent’s official (House, Senate)and campaign websites. Check claims against legislative records and independent reporting, especially local coverage. Use earlier news stories and archived webpages to establish what the incumbent said and did before the campaign.  (At least three sources must date from after September 1, 2026.) A competitive race alone does not prove that fear of defeat caused a change: look for evidence connecting the pressure to the official’s conduct.

Requirements

• Length: Essays must be double-spaced and no more than six pages long. I will not read past the sixth page.
• Format: Submit as a Word document only. Do not submit PDFs or Google docs. Cite all sources with endnotes (not footnotes) in Chicago/Turabian style. Endnote pages do not count toward the page limit.
• For every primary source, give the full URL or database document number in your endnote. I will check citations at random. Cite Federalist and Tocqueville by page number in the editions on our syllabus.
• AI Policy: You may use AI to locate primary and secondary sources, but you may not copy AI-generated summaries or arguments into your essay. Misrepresenting AI output as your own work is plagiarism and may result in referral to the Academic Standards Committee.
• Writing: Watch your spelling, grammar, diction, and punctuation. Errors will count against you. 
• Deadline: Upload essays to Canvas by 11:59 PM, Friday, November 13 (revised deadline). If you have trouble with Canvas, email it to me as a Word attachment. I reserve the right to dock essays a grade point for one day’s lateness, and a full letter grade thereafter.

The Law

Research paper

For next time:

Wurman, ch. 7-8, epilogue.

Federalist # 84

The Seneca Falls Declaration,  http://www.fordham.edu/halsall/mod/senecafalls.asp

Two words to know about the law:  legal fees.

A couple of basic distinctions

Statutes, Regulations, Judge-made law

The Dangers of the Law

• Tocqueville (p. 267): "Our written laws are often hard to understand, but everyone can read them, whereas nothing could be more obscure and out of reach of the common man than a law founded on precedent.”
• Prosecutorial discretion
• Three felonies a day
• Most district attorneys are elected officials.
• "In most developed countries, particularly in continental Western Europe, Canada, and Japan, prosecutors are resolutely nonpolitical and nonpartisan. They are expected to make decisions about individual cases on their merits, without regard to public attitudes, opinions, and emotions or to politicians’ preferences or priorities. In the United States, however, local chief prosecutors in 45 states are elected (Perry 2006).1 In the federal system, US attorneys are appointed on the basis of partisan and sometimes ideological criteria. American prosecutors sometimes openly and unashamedly take media reactions, public opinion, and political considerations into account when deciding what cases to prosecute and how to handle them."
• Most sheriffs are elected officials.

Trials and Juries:  Anatomy of a Murder

• Less than three percent of criminal cases go to trial.  The rest end in plea deals.
• The "joy" of jury duty
• My jury experience
• Tocqueville (p. 275):

Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.

Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is its greatest advantage. It should be regarded as free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.

Civil and criminal cases

• Even if they win acquittal in a criminal cases, defendants might still face civil suits. See O.J. Simpson
• Multiple civil suits
• Trump abuse of E. Jean Carroll
• Trump defamation of E. Jean Carroll

Appellate Courts

• The Structure
• Guide to Supreme Court decisions
• The Senate and Supreme Court nominations
• SCOTUS demographics
• Tocqueville (p. 270): “There is hardly a political question in the United States which does not sooner or later turn into a judicial one”  
• One example of many:  the travel ban.
• Judging and history (Wurman, ch. 6) and sense v. application (pp. 38-40)

Legislative Branch II

For a week from today:

• Tocqueville, pp. 99-105, 262-276
• Federalist # 78.
• Wurman, ch. 6.

Drawing on the Boehner, Franken, or Underwood readings, identify one aspect of congressional life you would enjoy and one that would drive you crazy. Would you thrive on bargaining, making speeches, helping constituents? What would test your patience or tempt you to compromise your ideals? Be candid. You need not pretend that you would make a great lawmaker.

Burke, Reflections on the French Revolution: 

In all bodies, those who will lead, must also, in a considerable degree, follow.

Hill leadership

• House (Boehner on power)
• Senate  (Franken on Mitch)

Mike Wirth and Dr. Suzanne Cooper-Guasco:

How is Congress representative?

Federalist 57:

The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.

More on Demographics of Congress

HOW DOES LAUREN UNDERWOOD REPRESENT HER COMMUNITY?

WHAT IS THE PERSONAL SIDE OF CONGRESSIONAL SERVICE?

• Death threats

 

Federalist 63:

As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

BUT DOES THE SYSTEM WORK WITH POLARIZED AND NATIONALIZED  PARTIES? 

There are bipartisan bills:  Franken and service dogs

BESIDES PASSING BILLS, MEMBERS OF CONGRESS:

• SERVE AS CONSTITUENT CONCIERGES
• MAKE APPEARANCES IN THE CONSTITUENCY
• MAKE SPEECHES
• DO MEDIA INTERVIEWS
• ISSUE PRESS RELEASES AND SOCIAL MEDIA POSTS

HOLD HEARINGS:  FRANKEN REFLECTIONS

• 
  

Thinking about Congress, the presidency, emergencies, and foreign policy

Presidents and Emergency Powers

Governors actually have primary responsibility.

Tocqueville:

Now, it is this clear perception of the future, based on judgment and experience, which must often be lacking in a democracy. The people feel more strongly than they reason; and if present ills are great, it is to be feared that they will forget the greater evils that perhaps await them in case of defeat (p. 223).

[The] great privilege enjoyed by the Americans is not only to be more enlightened than other nations but also to have the chance to make mistakes that can be retrieved (p. 225).

 One kind of mistake, however, is not retrievable.

Legislative Branch I

 For Wednesday, Franken, Boehner, Underwood.

On March 8, 1983, President Reagan spoke to the National Association of Evangelicals in Orlando, He expressed his views on the Soviet Union, famously calling it an "evil empire." He defended the Judeo-Christian traditions against the Soviet Union's totalitarian leadership and lack of religious faith, saying that these differences were at the heart of the conflict between the two nations.

Click here to see the typescript of the speech.  

This document makes clear that Reagan did not simply read the words before him:  he played a very active part in writing the speech itself.  One amusing sidelight:  speechwriter Tony Dolan included a spurious quotation from Alexis deTocqueville -- which Reagan changed:

Federalist 47: "From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,'' or, "if the power of judging be not separated from the legislative and executive powers,'' he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other."

Federalist 48: The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.

Federalist 51 (again) [A]nd to render them, by different modes of election and different principles of action, as little connected with each other as their common functions and their common dependence on the society will admit.  An example from an article by Gov 20H alum Hans Nichols

ARTICLE ONE

SECTION 1 
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

SECTION 2

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen..

Federalist 57: Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other

 Persons.Akhil Amar on the Three-Fifths Clause:

The radical vice of Article I as drafted and ratified was that it gave slaveholding regions extra clout in every election as far as the eye could see - a political gift that kept giving. And growing. Unconstrained by any explicit intrastate equality norm in Article I, and emboldened by the federal [3/5] ratio, many slave states in the antebellum era skewed their congressional-district maps in favor of slaveholding regions within the state. Thus the House not only leaned south, but also within coastal slave states bent east, toward tidewater plantations that grabbed more than their fair share of seats. ... The very foundation of the Constitution’s first branch was tilted and rotten.

And not just the first branch. The Article II electoral college sat atop the Article I base: The electors who picked the president would be apportioned according to the number of seats a state had in the House and Senate. In turn, presidents would nominate cabinet heads, Supreme Court justices, and other Article III judges.

Consequences of the Three-Fifths Clause.  From William Lee Miller, Arguing About Slavery:

Five of the first seven presidents were slaveholders, for thirty-two of the nation’s first thirty-six years forty of its first forty-eight, fifty of its first sixty four, the nation’s president was a slaveholder. The powerful office of Speaker of the House was held by a slaveholder for twenty-eight of the nation’s first thirty-five years. The president pro tem of the Senate was virtually always a slaveholder. The majority of the cabinet members and — very important — of justices of the Supreme Court were slaveholders. The slaveholding Chief Justice Roger Taney, appointed by slaveholding President Andrew Jackson to succeed the slaveholding John Marshall, would serve all the way through the decades before the war into the years of the Civil War itself; it would be a radical change of the kind slaveholders feared when in 1863, President Lincoln would appoint the anti-slavery politician Salmon P. Chase of Ohio to succeed Taney.

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

Background on the size of the House of Representatives -- And commentary from a familiar source

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers;and shall have the sole Power of Impeachment.

Section 3

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. [Seventeenth Amendment changed the procedure]

SENATOR DARLINE GRAHAM SUCCEEDED HER BROTHER.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. ...

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Tocqueville (p. 200):  "When one enters the House of Representatives at Washington, one is struck by the vulgar demeanor of that great assembly...A couple of paces away is the entrance to the Senate, whose narrow precincts contain a large proportion of the famous men of America."

Federalist 63: As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. 

SECTIONS 4 THROUGH 10

Demographics of Congress

=============
Thnking about Congress, the presidency and foreign policy

 Tocqueville:

Now, it is this clear perception of the future, based on judgment and experience, which must often be lacking in a democracy. The people feel more strongly than they reason; and if present ills are great, it is to be feared that they will forget the greater evils that perhaps await them in case of defeat (p. 223).

[The] great privilege enjoyed by the Americans is not only to be more enlightened than other nations but also to have the chance to make mistakes that can be retrieved (p. 225).

Congressional leadership.  
Burke, Reflections on the French Revolution: 

In all bodies, those who will lead, must also, in a considerable degree, follow. They must conform their propositions to the taste, talent, and disposition, of those whom they wish to conduct: therefore, if an assembly is viciously or feebly composed in a very great part of it, nothing but such a supreme degree of virtue as very rarely appears in the world, and for that reason cannot enter into calculation, will prevent the men of talent disseminated through it from becoming only the expert instruments of absurd projects! 

Simulation Day!

 For Monday, read 

• Hamilton, Federalist # 47, 48, 57, 63.
• Tocqueville, 196-230.
• Ronald Reagan, Remarks at the Annual Convention of the National Association of Evangelicals in Orlando, Florida, March 8, 1983.

For your writeup, pick one thing you learned about the presidency in class this week and apply it to this week's news.

https://www.cfr.org/education/teach/simulations/regulating-ai

President Arya
Vice President  Jessica
Secretary of Defense Graham
Secretary of State Muskaan
Secretary of Energy Edden
Secretary of Commerce Gavia
Secretary of Labor Philip
Attorney General Ben
Secretary of Homeland Security Caleb
Chair, Federal Trade Commission Lucas
Assistant to the President for National Security Affairs (aka the National Security Advisor) Annie Chen
U.S. Permanent Representative to the United Nations Nikhil
Chief of Staff Sabi
Director of the Office of Science and Technology Policy Aryaa
Director of National Intelligence Lily
CIA Director Isabella 
FBI Director Nate
White House Counsel  Alex
Chairman of the Joint Chiefs of Staff Annie Long

NSC members should consider the following policy options:

Pursue an international governing regime for AI. An international framework could produce widely adopted, responsible AI regulations that limit the worst harms of AI. Taking a leading role in negotiations could maximize U.S. influence over their outcome. However, an international framework would be difficult to negotiate. It could force the United States to compromise by accepting limitations it deemed harmful to innovation or allowing practices it deemed against its interests or values. Moreover, slow negotiations could fail to reach decisions at a pace required to keep up with the speed of AI development.

Pursue federal regulation measures. This option could entail executive action to set standards for AI use within the United States. Such action would grant the federal government significant influence over AI governance within U.S. borders and could prioritize striking a balance between protecting Americans and fostering innovation. To the extent that U.S. AI technology is used internationally, national regulations could also have some measure of global influence. However, regulatory regimes are notoriously slow to develop and may inevitably be reactive in nature when faced with such a fast-moving technology, unnecessarily and slowing down AI adoption in the United States while other countries race ahead.

Limit AI governance. This option could entail limiting new AI regulations, rejecting the development of international AI bodies or agreements, rolling back existing governance mechanisms, or demanding a moratorium on all moves to regulate AI at the state level. This could help to maximize AI development and adoption by creating an enabling environment for rapidly-evolving use cases and technological capabilities. It would also require a high risk tolerance for dangerous uses of AI at scale, and it would give primacy to a small number of AI developers at the expense of allowing democratic mechanisms to balance societal impacts and priorities.

Executive Branch

 Questions on the simulation? 

Office hour today: 1:15-2:15

On a lighter note... The presidency clip that everybody always remembers long after they have forgotten The Federalist.

The Constitution and Federalist

ARTICLE II 

The 25th Amendment

Presidential Succession Act

Federalist 70 "The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers."

Federalist 71. "It is one thing to be subordinate to the laws, and another to be dependent on the legislative body.

Federalist 73"But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other."

Presidential staff  and democratic writing

Congress checking the president: NAIL:

• Nominations
• Appropriations
• Investigations/Impeachment
• Legislation

Informal pressure:  Harry Reid and Gates

WWI, WWII, the Cold War, and the War on Terror all contributed to the growth of presidential power.

Federalist 8: "It is of the nature of war to increase the executive at the expense of the legislative authority."

Democracy in America: "If executive power is weaker in America than in France, the reason for this lies perhaps more in circumstances than in the laws. It is generally in its relations with foreign powers that the executive power of a nation has the chance to display skill and strength. If the Union’s existence were constantly menaced, and if its great interests were continually interwoven with those of other powerful nations, one would see the prestige of the executive growing, because of what was expected from it and of what it did."

Complexity of the national security establishment

Broken Links:

• Stephen Hadley
• Mike Mullen, chair of JCS
• Regional and functional combatant commanders

Gates

The secretary of defense is second only to the president in the military chain of command (neither the vice president nor the chairman of the Joint Chiefs of Staff is in the chain at all), and any order to American forces worldwide goes from the president to the secretary directly to the combatant commanders (although as a practical matter and a courtesy, I routinely asked the chairman to convey such orders). More important than any of the meetings, the secretary makes life-and-death decisions every day—and not just for American military forces. Since 9/11, the president has delegated to the secretary the authority to shoot down any commercial airliner he, the secretary, deems to be a threat to the United States. The secretary can also order missiles fired to shoot down an incoming missile. 

 Nuclear war steps

Accidental/unknown launch

Tom Nichols: "In 1973, an Air Force nuclear-missile officer named Harold Hering asked a simple question during a training session: “How can I know that an order I receive to launch my missiles came from a sane president?” The question cost him his career. Military members are trained to execute orders, not question them.

Constitutionalism II

For weekly reflection:  a very brief non-binding description of your role's stake in AI policy.   Also, a very brief description of the constitutional basis of that job.  (In most cases, the Constitution does not specifically mention these jobs.)

For Monday

• Hamilton, Federalist # 70, 71, 73
• Tocqueville, pp. 121-138, 690-695
• Gates-Duty (On Canvas)

Wurman and the meaning of meaning:

• Originalism:  original public meaning and original intent
• Original application and original sense.

From last time: Faction

• Federalist 10

39, 49, 51.

Federalist 39 and Federalism:

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

SPENCER COX COMMENTED ON THE VALUE OF FEDERALISM. 

Federalist 51

• Separation of Powers: "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place."
• "In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other; at the same time that each will be controlled by itself. " 

Is the Founding legitimate?  

• Federalist 39:  "derives all its powers directly or indirectly from the great body of the people."
• Federalist 49: Madison quotes Jefferson: "As the people are the only legitimate fountain of power.."

Federalist 49  

• "Veneration"
• James Ceaser: "The idea of reverence for the Constitution was a creation of The Federalist. But why did The Federalist create this doctrine of constitutional reverence?"

Veneration: 

• Norms
• The Constitution and oaths
• Citizenship
• Military oath
• Presidential oath