601:527. Constitutional Change (3) W
Prerequisite: Constitutional Law
Enrollment limited to 20 students, no final exam.
This course explores constitutional change in American history, and how we understand such change as expressed in judicial opinions, legal/constitutional scholarship, and popular consciousness. Constitutional change has occurred in two broad ways: (1) by adding text to the Constitution through the amendment process set forth in Article V (such as the 14th and 19th Amendments) and (2) by major changes in how the (unchanged) constitutional text is understood by the courts and other institutions (e.g. Congress’ expanded commerce power during the New Deal, school desegregation in Brown v. Board of Education, and women’s rights in the 1970s.) The two methods of change—textual and interpretive—repeatedly interact, e.g. Brown v. Board of Education involved debates about the proper understanding (including the “original meaning”) of the 14th Amendment’s text, as well as the contemporary meaning of racially segregated public schools. This course will focus on both specific examples of constitutional change, and on theories about how we understand such change, notably the varieties of “orginalism” and more flexible or “living” approaches to the Constitution. In addition to the specific examples of commerce power, race and gender noted above, other examples may include (but not limited to) the emergence of the national security state after World War II; the rise of conservative constitutionalism after 1980, the movement for gay rights, and developments after Sept.11, 2001 about executive power and national security.
Students will read scholarship about constitutional interpretation and constitutional change, judicial opinions and historical materials, engage in research, participate in discussion, and write and present papers on topics related to these themes.