This seminar will explore various ways in which understandings of government power are informed by historical practice, and not just by analysis of the constitutional text or judicial precedents. Each session will be devoted to the discussion of select articles, book chapters, and executive and congressional materials relating to aspects of the general topic. Some of the sessions will focus on theoretical questions like the relationship between governmental practice and law, the extent to which particular constitutional theories are receptive to practice-based argumentation, and the role of non-judicial precedent. Other sessions will address specific constitutional questions, such as the war powers of Congress and the President, the validity of executive agreements as opposed to Article II treaties, and the scope of the President's removal and recess appointments powers. The seminar will also be interdisciplinary in that it will explore insights from political science about how the branches of the U.S. government actually interact in practice.
Duke Law School will be offering a similar seminar in the fall, and students at the two schools will be encouraged to interact through short online postings about the readings.
Evaluation will be based on (1) a substantial research paper for which minor (or, with advance permission, major) writing credit will be available, (2) online postings, and (3) class participation.