Freedom and Oligarchy in the Constitution Seminar LAW-884

In this seminar, we will explore the history, theory, and application of republican legal ideas in American constitutional law. By “republican” we will mean the long tradition of legal thought running from the Roman Republic through the English and American Revolutions (not the “Republican” Party). This republican tradition focuses on two contrasts: personal freedom versus domination, and public freedom versus oligarchy. A republican constitution aims to structure government to make citizens individually free from domination and collectively free from oligarchy. The first part of the seminar will take up theoretical questions: What is republican freedom? What is oligarchy? What is republican constitutionalism? Does the Constitution have a moral aim? What do different interpretive methodologies—e.g., originalism, purposivism—say about republican values? In the second part of the seminar, we will explore these ideas in historical context, focusing on founding era and Reconstruction debates about citizenship, class, and power. Finally, in the third part of the seminar, we will ask about contemporary applications of these theoretical and historical ideas. We will look at both constitutional law proper—including separation of powers and judicial review—but also the constitutional dimensions of other areas of law like election law and administrative law. We will conclude the seminar by considering specific proposals for constitutional reform and by asking whether a republican constitution is something we can or should try for today. This course is appropriate for any upper-level law student with an interest in learning more about the political ideas that influenced the American constitutional tradition. We will read scholarship by political philosophers, political theorists, historians, and legal scholars alongside judicial opinions and original historical documents. There are no prerequisites other than the 1L curriculum. No prior experience with political philosophy will be presumed, but it will help if students have some interest in the field.

Instructor: Colin Bradley