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 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 for 1L students: you must have taken Con Law I to register for this class.