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- Title: 84-323 Scribner
- Type: Notes
- School: UWO
- Course: GERMAN 323
- Term: Fall
Constitutionalism Comparative Syllabus-1 PS323: Comparative Constitutionalism University of Wisconsin, Oshkosh Fall Semester 2008 Meeting Time: T/Th 11:30-1pm Meeting Room: S. Halsey 310 Professor Druscilla Scribner Department of Political Science Office: 423, Clow Faculty Building Phone: 424-0924 E-mail: scribned@uwosh.edu Office hours: Thursdays 1-4 Course Description: This course analyzes the origins and role of constitutions in contemporary comparative politics. The nature of constitutional development has fundamentally changed since the fall of communism. In contrast to the historical development of constitutionalism in Great Britain or the United States, nations transitioning to democratic processes must often agree to new political rules within relatively short time frames and under the terrific political and social strains of ethnic, religious, linguistic differences as well as experiences of civil war or state sponsored repression. This course examines the theory and practice of constitutionalism comparatively in developing and developed countries. What is a constitution? What kinds of rights, if any, should be included in a constitution? What purposes do, or should, constitutions serve? How are constitutions crafted, maintained, changed and ultimately protected and enforced? Under what circumstances will a constitution be stable and effective? How do constitutions accommodate cultural differences (ethnic, linguistic, religious) while also protecting individual rights in a diverse and sometimes violent world? To address these questions we will consider constitutional development experiences and significant case law from a number of different countries outside the U.S., including: Canada, India, Germany, Japan, Hungary, South Africa, and Nigeria. We will use what we have learned to reflect on recent challenges to constitution building in Iraq. By the end of the course, you will have developed a deeper understanding of, and be able to think and write critically about, the nature and the problems of constitutional design, constitutional protections of rights (whether individual or collective), and the institutions that sustain constitutionalism, including constitutional courts and their justices as well as international law courts of justice. Course Policies: Readings: There are no books to purchase for this course. All readings are on the course D2L website and e-reserve (there are many, though some are mercifully short). To tackle this reading well, you should read actively ~ learn and practice how to skim for the key ideas and supporting evidence. Jot down notes on the main argument, on what you consider to be important information, and note any questions/concerns you may have so that you may bring questions up in class. Comparative Constitutionalism Syllabus-2 I. Participation and Attendance (10%): This is an upper division political science course. This is not primarily a lecture course; the class is designed to promote discussion and each student is expected to contribute significantly. Lectures, when given, supplement the reading material and country cases. Students should to come to class meetings prepared to discuss central questions, puzzles and concerns that arise from course readings assigned for that day. Active participation and regular attendance are expected; missing more than two classes throughout the semester will negatively affect your overall participation grade. Student participation will be evaluated by the frequency and quality of each student s voluntary comments in class, by their ability and willingness to ask and answer questions whether posed by the professor or fellow students, and by their performance on un-announced in-class activities (if you show up, but do not actively contribute to discussion you can expect a C for this portion of your grade). II. Discussion (20%): Students (as part of a small group) are required to present the readings and lead discussion two (2) times during the course. (Print out and read the D2L handout on student-lead discussion goals and expectations). III. Short papers (50%): Students must write four short papers (about 1200 words each depending on the assignment; typed and double spaced). See handout on short paper assignments for further information. IV. Final exam (20%): There is an in-class final essay exam. You may use your notes; but not your readings or your papers on this exam. Grading: I use the University s 93-83-73 grade scheme and final grades will be calculated as follows: I. Participation: 10% II. Discussion: 20% III. Short papers: 50% IV. Final Exam: 20% You may check your grade at any time on D2L. If you are unsatisfied with the way your written work has been graded you may request that it be re-graded. This request must be submitted in writing no later than one week from when your paper/exam is returned. Note that re-grading may result in a grade either higher or lower than the grade you received. Plagiarism and Academic Honesty: Plagiarism is wrong. You should familiarize yourself with the UW policy on scholastic dishonesty and be sure you do not engage in any of the various forms of plagiarism. Note to Political Science Majors: Political Science majors who enrolled in Oshkosh in Fall, 2002 or after should keep exams, final drafts of research papers, and other graded material for their portfolio submitted in PS 401. These papers (long or short) may be placed in your file in the Political Science Department office for safe keeping (Ms. Hammond has a file for each major for this purpose). Comparative Constitutionalism Syllabus-3 Course Schedule: Week 0: Introduction: Sept 4 Thur Constitutionalism: Concepts and questions Kim Lane Scheppele. 2003. The Agenda of Comparative Constitutionalism in Law & Courts (Newsletter of the Law and & Courts Section of the American Political Science Association). Pg. 5-22. On D2L Week 1: Constitutionalism and Democracy Sept 9 Tues What Constitutions Are and What They Do Walter F. Murphy. 1993. Constitutions, Constitutionalism, and Democracy, in Constitutionalism & Democracy: Transitions in the Contemporary World, Douglas Greenberg et al. eds. New York: Oxford University Press. pgs. 3-25. e-reserve: W. Murphy Constitutionalism Herman Schwartz. 2002. The Struggle for Constitutional Justice in PostCommunist Europe. Chicago: University of Chicago Press. Introduction and Ch. 1, pgs. 1-21. e-reserve: Schwartz Introduction Comparative Constitutionalism Syllabus-4 Sept 11 Thur Constitutions without Constitutionalism Brown, Nathan J. Constitutions in a Nonconstitutional World. Albany: State University of New York Press, 2002. pgs. 3-13, 97-110, 195-200. e-reserve: Brown - Nonconstitutional World Okoth-Ogendo, H.W.O. 1993. Constitutions without Constitutionalism: Reflections on an African Political Paradox, in Constitutionalism & Democracy: Transitions in the Contemporary World, Douglas Greenberg et al. eds. New York: Oxford University Press. pgs 65-82. e-reserve: Okoth-Ogendo - Constitutions without Constitutionalism Week 2: US Constitutionalism and the Origins of Judicial Review Sept 16 Tues The American Experience Stephen M. Griffin. 1996. American Constitutionalism: From Theory to Politics. Princeton NJ: Princeton University Press, pp. 9-19, 61-68, 90-99 e-reserve: Griffin American Constitutionalism Sept 18 Thur No class (Dr. Scribner at a Conference) read ahead for next week! Week 3: Rights in Multicultural Democracy Sept 23 Tues The origins and use of judicial review in the U.S. Peter Irons. 1999. A People s History of the Supreme Court. Penguin Books. Ch. 4 (pgs. 36-47), Ch. 26 (pgs333-347), Ch. 30 (pgs. 395-408). e-reserve: Irons-Judicial Review Sept 25 Thur Multicultural Citizenship ~ Strategies Will Kymlicka. 1997. Multicultural Citizenship. Oxford Univ. Press. Pgs 11-48 e-reserve: Kymlicka-Group Rights Weeks 4-5: Multicultural Rights and Constitutionalism Sept 30 Tues Federalism and the protection of minorities Vicki C. Jackson and Mark Tushnet, 2006 Federalism and the Protection/Accomodation of Minorities: Canada, in Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 10401069. (including the Ford v. Quebec Case) e-reserve: Federalism Canada Martha Minnow. 1990. Putting Up and Putting Down: Tolerance Reconsidered in Comparative Constitutional Federalism, Europe and America, re-printed in Jackson, Vicki C. and Mark Tushnet, 2006 Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 11281138. e-reserve: Minnow Tolerance Oct 2 Thur The multicultural Indian Constitution Arend Lijphart, ''Constitutional Design in Divided Societies'' in Journal of Democracy - Volume 15, Number 2, April 2004, pp. 96-109 (13 pgs) On D2L Comparative Constitutionalism Syllabus-5 Sam Fali Nariman. 1985. The Indian Constitution: An Experiment in Unity and Diversity (selections re-printed in Jackson and Tushnet, 2006. Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 12271245). e-reserve: Indian Constitution Comparative Constitutionalism Syllabus-6 Oct 7 Tues Affirmative action in India Marc Galanter. 1989. Law and Society in Modern India. New Delhi: Oxford University Press. (selections from pgs 185-207 re-printed in Jackson and Tushnet, 2006. Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 1282-1291). e-reserve: Galanter India Thomas Sowell. 1990. Preferential Policies: An International Perspective (selections re-printed in Jackson and Tushnet, 2006. Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 12981304). e-reserve: Affirmative Action India Oct 9 Thur Permanent minorities and internal minorities Nathan Glazer Individual Rights against Group Rights in The Rights of Minority Cultures edited by Will Kymlicka 1996, Oxford Univ. Press. Pgs. 123138. e-reserve: Glazer-Group Rights Leslie Green Internal Minorities and their Rights in The Rights of Minority Cultures edited by Will Kymlicka 1996, Oxford Univ. Press. Pgs. 257-272. e-reserve: Green-Internal Minorities Excerpt from: Seyla Benhabib, The Claims of Culture. 2002. Princeton Univ. Press. Reprinted in: Readings in Comparative Politics, Kesselman and Krieger, 2006. e-reserve: Benhabib-Claims of Culture. Week 6: Constitutionalism Imposed ~ Germany Post WWII Oct 14 Tues Germany ~ Introduction Paper one due! Vicki C. Jackson and Mark Tushnet, 2006 Germany and its Federal Constitutional Court, in Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 525-535. e-reserve: Germany-Background Donald P. Kommers. 1997. The Basic Law and Its Interpretation, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd edition. Durham, NC: Duke University Press. pp. 30-57. e-reserve: Kommers-Germany s Basic Law Oct 16 Thur Germany: Constitutional interpretation (Individual freedoms) Donald P. Kommers. 1997. The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd edition. Durham, NC: Duke University Press. pp. 300-313 (Mephisto Case (1971) and Life Imprisonment Case (1977) and related commentary) e-reserve: Kommers-Human Dignity Comparative Constitutionalism Syllabus-7 Vicki C. Jackson and Mark Tushnet, Comparative Constitutional Law (New York: The Foundation Press, 1999), pp. 1390-1409 (includes German School Prayer Case (1979) and German Classroom Crucifix Case (1995) and comments/questions). e-reserve: Germany-Religion Cases Comparative Constitutionalism Syllabus-8 Week 7: Constitutionalism Imposed ~ Japan Post WWII Oct 21 Tues Japan Introduction Lawrence W. Beer. 1990. Constitutionalism and Rights in Japan and Korea, in Louis Henkin and Albert J. Rosenthal, eds., Constitutionalism and Rights: The Influence of the United States Constitution Abroad. New York: Columbia University Press, pp.225-243. e-reserve: Beer Japan John O. Haley. 1995. Political Culture and Constitutionalism in Japan in Daniel P. Franklin and Michael J. Baun, eds., Political Culture and Constitutionalism. London: M.E. Sharpe. pgs 98-115. e-reserve: Haley Political Culture Japan Oct 23 Thur Japan: Constitutional interpretation (Freedom of Religion) David M. O Brien and Yasuo Ohkoshi. 1996. To Dream of Dreams: Religious Freedom and Constitutional Politics in Post-War Japan. Honolulu: University of Hawaii Press. pgs. 32-62. e-reserve: O Brien and Ohkoshi Religious Freedom Japan Kakunaga v. Sekiguchi (case excerpts) in Jackson, and Tushnet. 2006. Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 1409-1422. e-reserve: Kakunaga v. Sekiguchi Week 8: Post-Communist Constitutionalism: Hungary Oct 28 Tues Introduction to Eastern Europe Paper two due! Bruce Ackerman. 2002. The Future of Liberal Revolution. Selections reprinted in Jackson, and Tushnet. 2006. Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 303-312 e-reserve: Ackerman-Liberal Revolution Stanley N. Katz, Constitutionalism in East Central Europe: Some Negative Lessons from the American Experience, selections reprinted in Comparative Constitutional Law, Jackson and Tushnet, eds. 2nd 2006. New York: The Foundation Press. pgs. 320-323. e-reserve: Katz-Lessons Oct 30 Thur Hungary Constitutional interpretation (Social Welfare Rights) Sajo and Losonci. 1993. Rule by Law in East Central Europe: Is the Emperor s New Suit a Straitjacket? in Constitutionalism & Democracy: Transitions in the Contemporary World. Selections reprinted in Jackson and Tushnet. 2006. Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 327-338 e-reserve: Rule by Law Comparative Constitutionalism Syllabus-9 Hungarian Benefits Case (and commentary). Reprinted in Jackson, and Tushnet. 2006. Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs 1709-1737. e-reserve: Hungarian Benefits Case Week 9: Post-Communist Constitutionalism ~ Lesson and Issues Nov 4 Tues The Post-Communist Divide Rupnik, Jacques, The Postcommunist Divide, in Journal of Democracy 10.1 (1999) 57-62. On D2L Stephen Holmes. 1997. What Russia Teaches Us Now: How Weak States Threaten Freedom, The American Prospect (Jul-Aug):30-39. On D2L Nov 6 Thur Catch-up / Recovery (no class Dr. Scribner at a Conference) Week 10: Constitutionalism in Transition: South Africa Nov 11 Tues South Africa Constitutional transition Reynolds, Andrew ''Constitutional Engineering in Southern Africa'' in Journal of Democracy 6.2 (1995) 86-99 (13 pgs) http://muse.jhu.edu/journals/journal_of_democracy/v006/6.2reynolds.ht ml Vicki C.Jackson and Mark Tushnet, 2006. South Africa s Two-Stage Process in Comparative Constitutional Law 2nd Edition. New York: The Foundation Press. pgs. 280-285 (includes Certification of the Constitution of the R.S.A. case). e-reserve: South Africa-Certification Nov 13 Thur South Africa Constitutional Interpretation (Social Welfare Rights) Government of the Republic of South Africa v. Grootboom and Minister of Health v Treatment Action Campaign excerpted in Comparative Constitutional Law, Jackson and Tushnet, eds. 2nd 2006. New York: The Foundation Press: 1671-1694. e-reserve: South Africa v. Grootboom Cass Sunstein. 2001. Designing Democracy: What Constitutions Do. Oxford University Press. pgs. 221-237 (Ch. on economic and social rights). e-reserve: Sunstein-Economic Rights Week 11-12 Constitutional Transition: From South Africa to Nigeria Nov 18 Tues South Africa Constitutional Interpretation Paper three (case brief and analysis) due! Three South Africa Constitutional Court cases to choose from (all posted on D2L) Bhe v Magistrate, Khayelitsha and others (customary law) Carmichele v Minister of Safety and Security and Another (genderbased violence) Minister of Home Affairs and Another v Fourie and Another (same sex marriage) Comparative Constitutionalism Syllabus-10 Nov 20 Thur Nigeria Suberu, Rotimi T., 1995. Institutions, Political Culture, and Constitutionalism in Nigeria, in Daniel P. Franklin and Michael J. Baun, eds., Political Culture and Constitutionalism. London: M.E. Sharpe. pgs.197-218. e-reserve: Suberu-Nigeria Nov 25 Tues Islamic law and liberal constitutionalism The Talibanization of Nigeria: Sharia Law and Religious Freedom, a Freedom House Report (skim it s long but very interesting) On D2L *Film (watch and discuss in class): Death by stoning justice, punishment, and human rights Nov 27 Thur Thanksgiving! Comparative Constitutionalism Syllabus-11 Week 13 Post-Conflict Constitution Building-Iraq Dec 2 Tues Constitutional Design in Divided Societies Paper four due! Review: Arend Lijphart, Constitutional Design in Divided Societies in Journal of Democracy - Volume 15, Number 2, April 2004, pp. 96-109 (13 pgs) On D2L Dawn Brancati, ''Can Federalism Stabilize Iraq?'' in The Washington Quarterly - Volume 27, Number 2, Spring 2004, pp. 7-21 (14 pgs) On D2L Dec 4 Thur Iraq Nathan Brown. 2002. Constitutions in a Non-Constitutional World (Albany: State University of New York Press. pgs 42-46, 61-66, 86-87 e-reserve: Brown-Iraq Stanley N. Katz, "Gun Barrel Democracy? Democratic Constitutionalism Following Military Occupation: Reflections on the U.S. Experience in Japan, Germany, and Afghanistan and Iraq, Princeton Law & Public Affairs Working Paper No. 04-010. On D2L Week 14 Final Exam Dec 9 Tues Final Exam (in-class essay; open note)
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