Constitutional Theory Courses

In the mid-1980s, a scholarly movement to become known as "Critical Race Theory" (CRT) developed in legal academia. Early critical race theorists--including Derrick Bell, Mari Matsuda, Charles Lawrence, Richard Delgado, Kimberle Crenshaw, and Patricia Williams--challenged the substance and style of conventional legal scholarship. Substantively, race crits rejected formal equality, individual rights, and colorblind approaches to solving legal problems. Stylistically, critical race scholars often employed new methodologies for legal scholarship, including storytelling and narrative. The Critical Race Theory Colloquium is designed to expose students to core CRT principles and interrogate CRT's possibilities and limitations. This endeavor will require students to think critically about race and racism in conjunction with other intersecting structures of oppression and hierarchy. The Critical Race Theory Colloquium employs a workshop-format that enables students to engage leading scholars in the field of Critical Race Theory. The first part of the semester will involve a general overview of Critical Race Theory. During the remaining meetings, invited scholars will present works-in-progress for discussion. To prepare, students will write short reaction papers that include three questions for further discussion. Final grades depend on the reaction papers, class participation, and attendance. UPPER-CLASS WRITING REQUIREMENT: This class may not be used to satisfy the requirement. **A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

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FALL 2025: LAW JD 731 A1, Sep 2nd to Dec 19th 2025

This seminar will explore basic issues of jurisprudence as they arise in contemporary battles between originalism and its critics. What are the principal arguments for originalism and criticisms of it? What are the major varieties of originalism and alternatives to it? Does originalist analysis of “text and history”—as many originalists claim—avoid the need for normative judgments in constitutional interpretation? Or do originalists engage in “historical ventriloquism”—putting their normative arguments concerning text, history, and tradition in the mouths of historical framers, ratifiers, or lexicographers? We will consider such issues in three constitutional law contexts: the right to bear arms; substantive due process; and freedom of speech. (1) Originalism and the right to bear arms. The Supreme Court has based its major decisions protecting an individual right to bear arms on originalism. Do Heller v. District of Columbia, New York State Rifle & Pistol Association v. Bruen, and United States v. Rahimi vindicate originalism as yielding objective answers of historical fact about constitutional meaning or, to the contrary, do they suggest that history and originalism itself is a site of contestation between competing understandings of our constitutional commitments? How does the Court actually use history and tradition in these cases? (2) Originalism and basic liberties. The Court’s decisions protecting or rejecting basic liberties under the Due Process Clause have vacillated between two competing approaches: a narrow conception of “history and tradition” in Washington v. Glucksberg and Dobbs v. Jackson Women’s Health Organization and a broader conception of tradition as a “living thing”—to be elaborated through “reasoned judgment” in common law constitutional interpretation—in Planned Parenthood v. Casey and Obergefell v. Hodges. Does protection of the right of pregnant persons to decide whether to terminate their pregnancies or the rights of same-sex couples to marry necessarily reject originalism in favor of a moral reading of the Constitution? How does the Court actually use history and tradition in denying rights in Glucksberg and Dobbs? In service of originalism as commonly understood or instead in support of conservative moralism and traditionalism? Does the Due Process Clause or the Equal Protection Clause provide the better ground for protecting such basic liberties? What are the criteria for deciding between these grounds? (3) Originalism and freedom of speech. Originalism is notably absent from the Court’s decisions protecting freedom of speech, including those where it clashes with securing the status of equality for all, e.g., LGBTQ+ rights in 303 Creative LLC v. Elenis. What accounts for this absence? What might it suggest about the Court’s “selective originalism”? Are there better ways of accommodating conflicts between such constitutional values than the Court’s absolutist protection of freedom of speech to the exclusion of equality for all? UPPER-CLASS WRITING REQUIREMENT: This class may be used to satisfy the requirement. ** A student who fails to attend the initial meeting of a seminar, or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

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SPRG 2026: LAW JD 835 A1, Jan 12th to Apr 22nd 2026

In this course we will study historical and contemporary issues situated at the intersection of race and law. We will also critically examine the role that law has played in creating, maintaining, sustaining, and resisting various systems of power in the United States. Together, we will analyze varying propositions stemming from our legal system, like the claim of systemic oppression, the existence of an egalitarian legal system, and the systemic nature of racial injustice. Moreover, we will examine what role law has played in influencing the conception of race and the settings in which race operates. We will approach these questions through the lens of territorial expansion in the United States, focusing on major movements in the fields of Federal Indian Law, territorial governance, and the Supreme Court’s interpretation of the Reconstruction Amendments. Final research paper in lieu of exam. UPPERCLASS WRITING REQUIREMENT: Students may use this class to satisfy the requirement.

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FALL 2025: LAW JD 878 A1, Sep 2nd to Dec 19th 2025

In the United States, and around the world, many people still suffer from basic lack of access to sexual and reproductive health services. This course explores the role of law in understanding the distribution of access to SRH services and care. We will draw on various theoretical and doctrinal tools including critical legal theory, critical race theory, sociology of science, human rights, feminist theory, and a range of public health methods to understand the current state of the law and the possibilities and limitations of legal reforms. The course will foreground issues of race and reproduction as well as the politics of public health law (including the role of scientific evidence and medical expertise in courts). We will examine various sites of lawmaking including courts and legislatures and we will pay attention to the legal reforms offered by social movements both for and against greater access to services and care.

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FALL 2025: LAW JD 775 A1, Sep 2nd to Dec 19th 2025