Course Schedule

Constitutions are about power, what it is to be used for, by whom, and according to what understandings and justifications. Constitutional conflicts concern the reach and limits of government power: state and local power versus federal power; legislative versus judicial power; public governmental power versus private liberty. Constitutional conflicts, at the same time, concern questions of interpretive authority. Who has the right to say what the Constitution means and demands? The courts? The federal or state lawmakers? The people themselves? Constitutions, also, are about political community. Who belongs, in the U.S. Constitution's words, to "We, the People"? Who counts as a full, rights-bearing citizen? And what are his or her rights?

These are the main issues of constitutional history; no wonder its currents and conflicts have involved more than the courts. This course will weave together U.S. constitutional history in the courts with the history of constitutional conflicts in American politics, culture and society. At the same time, we will explore the uses of history in constitutional interpretation. What kind of authority should past generations’ constitutional understandings and commitments enjoy in today’s constitutional contests? What does it mean to be “faithful” to the Constitution as a centuries-old text and a centuries-long experiment in self-government? In what ways are we bound by the words and deeds of the past? In what we ways are we free to construct new constitutional meanings and principles? And what can we learn from the ways that past generations addressed these questions?

This year, we will focus chiefly on the first century of American constitutional experience. We’ll examine the founding of the republic and the framing and Antebellum history of the Constitution as a great experiment in self-government. We’ll also study the same period as a great constitutional experiment in federalism - in creating and managing a union of states with profoundly different social orders, values and interests. One main theme will be the protracted conflicts and accommodations between North and South. The coming of the Civil War repays careful attention because it remains the most important constitutional crisis in our history. The War and its aftermath, the period known as Reconstruction, and the Civil War and Reconstruction Amendments (13th, 14th, and 15th Amendments), constituted a Second Founding, no less significant than the first. The authority of the national government over the states was transformed, and with it, the meaning of American democracy. From a slaveholding, racially exclusive republic, America reconstituted itself into a racially inclusive republic of equal citizens. We’ll study this Second Founding, then its unraveling in the constitutional law and politics of the late 19th century, and then its revival in the Civil Rights era of the mid-20th century.

Prerequisite: U.S. Constitutional Law I.

This course will be taught entirely online via Zoom.

Constitutions are about power, what it is to be used for, by whom, and according to what understandings and justifications. Constitutional conflicts concern the reach and limits of government power: state and local power versus federal power; legislative versus judicial power; public governmental power versus private liberty. Constitutional conflicts, at the same time, concern questions of interpretive authority. Who has the right to say what the Constitution means and demands? The courts? The federal or state lawmakers? The people themselves? Constitutions, also, are about political community. Who belongs, in the U.S. Constitution's words, to "We, the People"? Who counts as a full, rights-bearing citizen? And what are his or her rights?

These are the main issues of constitutional history; no wonder its currents and conflicts have involved more than the courts. This course will weave together U.S. constitutional history in the courts with the history of constitutional conflicts in American politics, culture and society. At the same time, we will explore the uses of history in constitutional interpretation. What kind of authority should past generations’ constitutional understandings and commitments enjoy in today’s constitutional contests? What does it mean to be “faithful” to the Constitution as a centuries-old text and a centuries-long experiment in self-government? In what ways are we bound by the words and deeds of the past? In what we ways are we free to construct new constitutional meanings and principles? And what can we learn from the ways that past generations addressed these questions?

This year, we will focus chiefly on the first century of American constitutional experience. We’ll examine the founding of the republic and the framing and Antebellum history of the Constitution as a great experiment in self-government. We’ll also study the same period as a great constitutional experiment in federalism - in creating and managing a union of states with profoundly different social orders, values and interests. One main theme will be the protracted conflicts and accommodations between North and South. The coming of the Civil War repays careful attention because it remains the most important constitutional crisis in our history. The War and its aftermath, the period known as Reconstruction, and the Civil War and Reconstruction Amendments (13th, 14th, and 15th Amendments), constituted a Second Founding, no less significant than the first. The authority of the national government over the states was transformed, and with it, the meaning of American democracy. From a slaveholding, racially exclusive republic, America reconstituted itself into a racially inclusive republic of equal citizens. We’ll study this Second Founding, then its unraveling in the constitutional law and politics of the late 19th century, and then its revival in the Civil Rights era of the mid-20th century.

Prerequisite: U.S. Constitutional Law I.

This course will cover the history and the judicial interpretation of the First Amendment's free speech clause.  Coverage of modern judicial interpretation will be topical rather than chronological. Subjects will include subversive advocacy, prior restraints, tort law and the First Amendment, offensive speech, symbolic dissent, freedom not to speak, the government as employer, the government's management of public property, access to the mass media, campaign finance, obscenity, and commercial speech. Readings, particularly for the historical portion of the course, will consist of secondary sources as well as legal decisions. NO PREREQUISITES.

This course will cover the history and the recent judicial interpretation of the First Amendment's free speech clause. Beginning with debate over the original meaning of the First Amendment, the course will proceed chronologically through World War I. Subjects will include the Alien and Sedition Laws of 1798,the suppression of abolitionist literature before the Civil War, the range of popular and legal views about the meaning of free speech between the Civil War and World War I, and the suppression of dissent during World War I. Most of the course will address the modern judicial interpretation of free speech that began in the years immediately following World War I. Coverage of modern judicial interpretation will be topical rather than chronological. Subjects will include subversive advocacy, prior restraints, tort law and the First Amendment, offensive speech, symbolic dissent, freedom not to speak, the government as employer, the government's management of public property, access to the mass media, campaign finance, obscenity, and commercial speech. Readings, particularly for the historical portion of the course, will consist of secondary sources as well as legal decisions. NO PREREQUISITES.

This course will cover the history and the recent judicial interpretation of the First Amendment's free speech clause. Beginning with debate over the original meaning of the First Amendment, the course will proceed chronologically through World War I. Subjects will include the Alien and Sedition Laws of 1798,the suppression of abolitionist literature before the Civil War, the range of popular and legal views about the meaning of free speech between the Civil War and World War I, and the suppression of dissent during World War I. Most of the course will address the modern judicial interpretation of free speech that began in the years immediately following World War I. Coverage of modern judicial interpretation will be topical rather than chronological. Subjects will include subversive advocacy, prior restraints, tort law and the First Amendment, offensive speech, symbolic dissent, freedom not to speak, the government as employer, the government's management of public property, access to the mass media, campaign finance, obscenity, and commercial speech. Readings, particularly for the historical portion of the course, will consist of secondary sources as well as legal decisions. NO PREREQUISITES.

This course will cover the history and the recent judicial interpretation of the First Amendment's free speech clause. Beginning with debate over the original meaning of the First Amendment, the course will proceed chronologically through World War I. Subjects will include the Alien and Sedition Laws of 1798,the suppression of abolitionist literature before the Civil War, the range of popular and legal views about the meaning of free speech between the Civil War and World War I, and the suppression of dissent during World War I. Most of the course will address the modern judicial interpretation of free speech that began in the years immediately following World War I. Coverage of modern judicial interpretation will be topical rather than chronological. Subjects will include subversive advocacy, prior restraints, tort law and the First Amendment, offensive speech, symbolic dissent, freedom not to speak, the government as employer, the government's management of public property, access to the mass media, campaign finance, obscenity, and commercial speech. Readings, particularly for the historical portion of the course, will consist of secondary sources as well as legal decisions. NO PREREQUISITES.

This course will cover the history and the recent judicial interpretation of the First Amendment's free speech clause. Beginning with debate over the original meaning of the First Amendment, the course will proceed chronologically through World War I. Subjects will include the Alien and Sedition Laws of 1798,the suppression of abolitionist literature before the Civil War, the range of popular and legal views about the meaning of free speech between the Civil War and World War I, and the suppression of dissent during World War I. Most of the course will address the modern judicial interpretation of free speech that began in the years immediately following World War I. Coverage of modern judicial interpretation will be topical rather than chronological. Subjects will include subversive advocacy, prior restraints, tort law and the First Amendment, offensive speech, symbolic dissent, freedom not to speak, the government as employer, the government's management of public property, access to the mass media, campaign finance, obscenity, and commercial speech. Readings, particularly for the historical portion of the course, will consist of secondary sources as well as legal decisions. NO PREREQUISITES.

The course begins by developing my position on legitimate and valid legal argument in the United States. That position is based on (1) the postulate that to be morally legitimate the use of a legal argument must be consistent with the moral commitments of the society in which the legal argument is being made and (2) an "empirical" conclusion that the United States is a liberal, rights-based society (i.e., a society whose members and governments draw a strong distinction between moral-rights discourse and moral-ought discourse, are committed to moral-rights conclusions) trumping moral-ought conclusions when the two conclusions favor different outcomes, and derive their moral-rights conclusions from a basic commitment to treating all moral-rights- bearing entities for which they are responsible with appropriate, equal respect and concern. The combination of the above postulate and empirical finding lead me to conclude that (1) arguments derived from the liberal principle just articulated are not only inside the law but are the dominant mode of legitimate and valid legal argument in the United States (dominant in that they operate not only directly but also by determining the legitimacy, legitimate variant of, and legitimate weight to be given to the other modes of legal argument that are actually made in our society) and relatedly (2) there are internally-right answers to all legal-rights questions in our society. The second part of the course then explores a variety of moral-philosophical and jurisprudential alternatives to my own. The third part analyzes from my and various alternative moral and jurisprudential perspectives a variety of various judicial opinions that deal with these issues. The fourth part executes parallel analyses of a variety of "appropriate, equal concern"- real Constitutional Law issues and judicial opinions. I expect to focus particularly on affirmative action, the right to die, right to a liberal education, and the possible right to a minimum real income or minimum share of the societal-average minimum real income.

This course will be taught entirely online via Zoom.

The course begins by developing my position on legitimate and valid legal argument in the United States. That position is based on (1) the postulate that to be morally legitimate the use of a legal argument must be consistent with the moral commitments of the society in which the legal argument is being made and (2) an "empirical" conclusion that the United States is a liberal, rights-based society (i.e., a society whose members and governments draw a strong distinction between moral-rights discourse and moral-ought discourse, are committed to moral-rights conclusions) trumping moral-ought conclusions when the two conclusions favor different outcomes, and derive their moral-rights conclusions from a basic commitment to treating all moral-rights- bearing entities for which they are responsible with appropriate, equal respect and concern. The combination of the above postulate and empirical finding lead me to conclude that (1) arguments derived from the liberal principle just articulated are not only inside the law but are the dominant mode of legitimate and valid legal argument in the United States (dominant in that they operate not only directly but also by determining the legitimacy, legitimate variant of, and legitimate weight to be given to the other modes of legal argument that are actually made in our society) and relatedly (2) there are internally-right answers to all legal-rights questions in our society. The second part of the course then explores a variety of moral-philosophical and jurisprudential alternatives to my own. The third part analyzes from my and various alternative moral and jurisprudential perspectives a variety of various judicial opinions that deal with these issues. The fourth part executes parallel analyses of a variety of "appropriate, equal concern"- real Constitutional Law issues and judicial opinions. I expect to focus particularly on affirmative action, the right to die, right to a liberal education, and the possible right to a minimum real income or minimum share of the societal-average minimum real income.

Origins of the Federal Constitution presents an intensive introduction to the historical sources of the Constitution. By reference to original source documents, the class considers the common law and other influences on early American government and justice, such as Locke, Montesquieu, and Blackstone’s Commentaries; the colonial experience leading to and immediately following the American Revolution; documents and debate directly relevant to formation of individual constitutional provisions and amendments; and the initial experience and understanding of the Constitution, through to Story’s Commentaries, in addition to later amendments. The class will also consider the influence and use of this material on modern interpretation of the Constitution.

A coursepack of original documents will be provided to you at no cost. These have largely been selected and edited from The Founders’ Constitution, edited by Philip B. Kurland and Ralph Lerner (University of Chicago Press 1987).

Origins of the Federal Constitution presents an intensive introduction to the historical sources of the Constitution. By reference to original source documents, the class considers the common law and other influences on early American government and justice, such as Locke, Montesquieu, and Blackstone’s Commentaries; the colonial experience leading to and immediately following the American Revolution; documents and debate directly relevant to formation of individual constitutional provisions and amendments; and the initial experience and understanding of the Constitution, through to Story’s Commentaries, in addition to later amendments. The class will also consider the influence and use of this material on modern interpretation of the Constitution.

A coursepack of original documents will be provided to you at no cost. These have largely been selected and edited from The Founders’ Constitution, edited by Philip B. Kurland and Ralph Lerner (University of Chicago Press 1987).

Origins of the Federal Constitution presents an intensive introduction to the historical sources of the Constitution. By reference to original source documents, the class considers the common law and other influences on early American government and justice, such as Locke, Montesquieu, and Blackstone’s Commentaries; the colonial experience leading to and immediately following the American Revolution; documents and debate directly relevant to formation of individual constitutional provisions and amendments; and the initial experience and understanding of the Constitution, through to Story’s Commentaries, in addition to later amendments. The class will also consider the influence and use of this material on modern interpretation of the Constitution.

A coursepack of original documents will be provided to you at no cost. These have largely been selected and edited from The Founders’ Constitution, edited by Philip B. Kurland and Ralph Lerner (University of Chicago Press 1987).

This course will offer an intensive examination of the way the Constitution (and then controversies involving the Constitution) handled variosu issues involving race.  We will begin with the debates at the Philadelphia Conventiona about slavery.  Most of our time will undoubtedly be spent on the treatment of Blacks, both as enslaved and as "free" persons, but attention will also be paid to members of Indigenous Nations and Asians (as in the aptly named Chinese Exclusion Cases).  Although the arrival of the Reconstruction Amendment will obviously be an important part of the course, we shall spend a fair amount of time looking at ante-bellum materials.  The course will conclude with the 1903 Alabama case Giles v. Harris, in which the Supreme Court basically gave up on enforcing the Fifteenth Amendment and its ostensible prohibition of racial discrimination with regard to voting.  

Although there will be a final examination--of two question to be answered in two hours--the grade will also be based on two "response papers" to given assignments of. your choice.  Each response paper should be approximately 1200-1500 words.  Should any of you, after grading the final exam and the response papers, be at the cusp between two grades, then class participation (or its lack) will determine the final grade.  

This course will offer an intensive examination of the way the Constitution (and then controversies involving the Constitution) handled variosu issues involving race.  We will begin with the debates at the Philadelphia Conventiona about slavery.  Most of our time will undoubtedly be spent on the treatment of Blacks, both as enslaved and as "free" persons, but attention will also be paid to members of Indigenous Nations and Asians (as in the aptly named Chinese Exclusion Cases).  Although the arrival of the Reconstruction Amendment will obviously be an important part of the course, we shall spend a fair amount of time looking at ante-bellum materials.  The course will conclude with the 1903 Alabama case Giles v. Harris, in which the Supreme Court basically gave up on enforcing the Fifteenth Amendment and its ostensible prohibition of racial discrimination with regard to voting.  

Although there will be a final examination--of two question to be answered in two hours--the grade will also be based on two "response papers" to given assignments of. your choice.  Each response paper should be approximately 1200-1500 words.  Should any of you, after grading the final exam and the response papers, be at the cusp between two grades, then class participation (or its lack) will determine the final grade.  

This course will offer an intensive examination of the way the Constitution (and then controversies involving the Constitution) handled variosu issues involving race.  We will begin with the debates at the Philadelphia Conventiona about slavery.  Most of our time will undoubtedly be spent on the treatment of Blacks, both as enslaved and as "free" persons, but attention will also be paid to members of Indigenous Nations and Asians (as in the aptly named Chinese Exclusion Cases).  Although the arrival of the Reconstruction Amendment will obviously be an important part of the course, we shall spend a fair amount of time looking at ante-bellum materials.  The course will conclude with the 1903 Alabama case Giles v. Harris, in which the Supreme Court basically gave up on enforcing the Fifteenth Amendment and its ostensible prohibition of racial discrimination with regard to voting.  

Although there will be a final examination--of two question to be answered in two hours--the grade will also be based on two "response papers" to given assignments of. your choice.  Each response paper should be approximately 1200-1500 words.  Should any of you, after grading the final exam and the response papers, be at the cusp between two grades, then class participation (or its lack) will determine the final grade.  

This course will explore constitutional issues surrounding claims of race and sex discrimination. The course is historical, covering antebellum, Civil War, and post-Fourteenth Amendment controversies. We will examine race and sex in several contexts (e.g., segregation, military policy, education, affirmative action) and consider a broad range of theoretical approaches. The course is designed to provide a close understanding of both historical and contemporary analyses. The materials on race occupy approximately two-thirds of the overall course. Prerequisite: Con Law I.

This course will explore constitutional issues surrounding claims of race and sex discrimination. The course is historical, covering antebellum, Civil War, and post-Fourteenth Amendment controversies. We will examine race and sex in several contexts (e.g., segregation, military policy, education, affirmative action) and consider a broad range of theoretical approaches. The course is designed to provide a close understanding of both historical and contemporary analyses. The materials on race occupy approximately two-thirds of the overall course. Prerequisite: Con Law I.

This course will explore constitutional issues surrounding claims of race and sex discrimination. The course is historical, covering antebellum, Civil War, and post-Fourteenth Amendment controversies. We will examine race and sex in several contexts (e.g., segregation, military policy, education, affirmative action) and consider a broad range of theoretical approaches. The course is designed to provide a close understanding of both historical and contemporary analyses. The materials on race occupy approximately two-thirds of the overall course. Prerequisite: Con Law I.

This course will explore constitutional issues surrounding claims of race and sex discrimination. The course is historical, covering antebellum, Civil War, and post-Fourteenth Amendment controversies. We will examine race and sex in several contexts (e.g., segregation, military policy, education, affirmative action) and consider a broad range of theoretical approaches. The course is designed to provide a close understanding of both historical and contemporary analyses. The materials on race occupy approximately two-thirds of the overall course. Prerequisite: Con Law I.

This course is about reproductive rights under U.S. law and reproductive justice in U.S. policy and practice. We will consider sex, parenting, pregnancy, labor & delivery, reproduction, and contraception as rights and as targets of regulation. We will also learn to analyze issues of law and policy through a reproductive justice framework. We will consider and evaluate reproduction as experienced by racial minorities, LGBTQ populations, incarcerated women, and disabled people, among others.

This course is about reproductive rights under U.S. law and reproductive justice in U.S. policy and practice. We will consider sex, parenting, pregnancy, labor & delivery, reproduction, and contraception as rights and as targets of regulation. We will also learn to analyze issues of law and policy through a reproductive justice framework. We will consider and evaluate reproduction as experienced by racial minorities, LGBTQ populations, incarcerated women, and disabled people, among others.

The course will deal with the post-Court-packing Supreme Court, across the total range of constitutional issues, right up to the present. The focus will be less on doctrine and more on how the Surpeme Court fits within the political sphere. As such it will look more like a political science course and there will be no casebook. Instead four books on the Court will be used, two by Lucas A. Powe, Jr., (The Supreme Court and the American Elite; The Warren Court and American Politics) and one by Joan Biskupic, Nine Black Robes.

The course will deal with the post-Court-packing Supreme Court, across the total range of constitutional issues, right up to the present. The focus will be less on doctrine and more on how the Surpeme Court fits within the political sphere. As such it will look more like a political science course and there will be no casebook. Instead four books on the Court will be used, two each by Lucas A. Powe, Jr., (The Supreme Court and the American Elite; The Warren Court and American Politics) and Mark Tushnet (A Court Divided; In the Balance). All are available in paperback.

Federalism is a contient aspect of American constitutionalism.  That being said, it is also important to recognize that literally from the very beginning of the constitutional republic in 1789, the operative meaning of "American federalism" has always been a source of contention, which, of course, became bitter enough by 1860 to trigger secession and a subsequent war that killed approximatly 750,000 combatants (who may or may not be identified as "Americans").  So we will be looking at a lot of the "theoretical" issues surrounding federalism, beginning with the possible meanings of "We the People" that purported "ordain" the new polity.  Is there one singular "American people" (and, if so, who is contained within it?), or is the "united States" (as some copies of the Declaration of Independence spelled the name of the new country) composed of the uneasy joinder of distinctly separate "peoples" living in the different states? The first Supreme Court case we will read--and ponder for at least a full class--will be beginning Chisholm v. Georgia (1793), concerning so called "sovereign immunity" of states from being sued in federal courts.  We'll also be reading the Kentucky and Virgninia Resolutions of 1798-99 and their particular take on the basis of the Union, including the possibilities of "nullification" and even, perhaps, secession.  But, obviously, these "theoretical" issues are complemented by extremely "practical" concerns.  How should one respond to states that attempt to secede; and even after secession is subdued (by force), what might "reconstruction" of a federal union might mean, in both theory and in practice?  Moreover, it will be helpful, in understanding "American federalism," to pay at least limited attention to other forms of federalism around the world.  Should, for example, all sub-national units be viewed as "equal" (symmetcial federalism), or is it both necessary and proper to recognize that some such units are so substantially different from others, as with, for example, language or concentration of natural resources, that it is legitimate to adopt "asymmetical federalism."  

We will pay suitable attention to classic Supreme Court cases and to more recent articlations by the Court as to the complexities generated by subnational-states in a Union.  But "suitable" does not mean exclusive. And, of course, Supreme Court decisions must always be understood in terms of their wider political and historical contexts.  

Distribution of powers between federal and state governments; constitutional limitations on and judicial review of governmental action.