KC Johnson

US Constitutional History (spring 2021)

This course examines American constitutional history from the colonial era to the present.


  • Midterm and final examinations: 40%
  • Moot Court: 25%
  • Participation: 25%
  • Quizzes: 10%


Primary documents—such as court rulings, congressional documents, and relevant policy-related material—are posted on the course website. All journal articles will be e-mailed.


  • Civil Rights
  • Civil Liberties
  • Educational Issues
  • Economic Issues
  • Religious Liberty

Current Events in Constitutional History:

This course deals with issues that resonate in current affairs. I urge you to keep up (as do I) with current constitutional questions, from a variety of ideological perspectives, at the websites below:

American Constitution SocietyBalkinization
Constitutional Law Prof BlogElection Law Blog
How AppealingNational Review: Bench Memos
Scotus BlogSlate‘s Jurisprudence
The Wall Street Journal: legal reportingVolokh Conspiracy

Contact info:

email: kcjohnson9@gmail.com

cell: 207-329-8456

office hours: Zoom, by appointment


Week of 2-1: From Colonial Foundations to the Revolution

Week of 2-8: Adopting the Constitution

  • Shlomo Slonim, “Securing States’ Interests at the Constitutional Convention: A Reassessment,” Studies in American Political Development(2000), (with Gordon Wood reply).
  • Jack Rakove, “Thinking Like a Constitution,” Journal of the Early Republic (2004).
  • US Constitution (as written, 1787)
  • Bill of Rights (1789).
  • Brutus v.  Federalist, New York ratifying debate, re:
  • size of the republic; Brutus No. 1; Federalist No. 10
  • judicial power: Brutus No. 11; Federalist No. 78
  • military affairs: Brutus No. 8; Federalist No. 8

Week of 2-15: Evolution of Constitutionalism

  • Arthur Garrison, “The Internal Security Acts of 1798: The Founding Generation and the Judiciary during America’s First National Security Crisis,” Journal of Supreme Court History (2009)
  • Johann Neem, “Developing Freedom: Thomas Jefferson, the State, and Human Capability,” Studies in American Political Development (2013)
  • Stephen Engel, “Before the Countermajoritarian Difficulty: Regime Unity, Loyal Opposition, and Hostilities toward Judicial Authority in Early America,” Studies in American Political Development (2009)
  • Sedition Act (1798)
  • Virginia Resolution (1798)

Week of 2-22: Slavery & Union

  • Justin Crowe, “Westward Expansion, Preappointment Politics, and the Making of the Southern Slaveholding Supreme Court,” Studies in American Political Development (2010)
  • Dred Scott v. Sanford (1857)
  • William Gienapp, “Abraham Lincoln and the Border States,” Law and History Review (1992).
  • James Simon, “Lincoln and Chief Justice Taney,” Journal of Supreme Court History (2010)

Week of 3-1: Reconstruction & Gilded Age

  • Kurt Lash, “John Bingham and the Second Draft of the Fourteenth Amendment,” Georgetown Law Journal (2011).
  • Eric Schepard, “Great Dissenter’s Greatest Dissents: The First Justice Harlan, the ‘Color-Blind’ Constitution and the Meaning of His Dissents in the ‘Insular Cases’ for the War on Terror,” American Journal of Legal History (2006)
  • Civil Rights Cases (1883)
  • Plessy v. Ferguson (1896)

Week of 3-8: Progressivism & the Law

  • George Lowell, “’As Harmless as an Infant’: Deference, Denial, and Adair v. United States,” Studies in American Political Development (2002).
  • David Bernstein, “Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism,” Georgetown Law Journal (2003).
  • Amendments 16-19

Midterm Exam

Week of 3-15: Interwar Era

  • James Henretta, “Charles Evans Hughes and the Strange Death of Liberal America,” Law and History Review (2008).
  • Michael Klarman, “Scottsboro,” Marquette Law Review
  • Kevin McMahon, “Constitutional Vision and Supreme Court Decisions: Reconsidering Roosevelt on Race,” Studies in American Political Development (2002)
  • Wickard v. Filburn (1942)

Week of 3-22: National Security & Civil Rights

  • William Wiecek, “The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. United States,” Supreme Court Review (2001)
  • Korematsu v. United States (1944)
  • Michael Belknap, “God and the Warren Court: For a ‘Wholesome Neutrality’,”Seton Hall Constitutional Law Journal (1999)
  • Michael Klarman, “Is the Supreme Court Sometimes Irrelevant? Race and the Southern Criminal Justice System in the 1940s”, Journal of American History (2002)
  • Sweatt v. Painter (1950)
  • Miranda v. Arizona (1965)

Week of 3-29: Spring Break

Week of 4-5: Confirmation Controversies

  • Chris Hickman, “Courting the Right: Richard Nixon’s 1968 Campaign against the Warren Court,” Journal of Supreme Court History
  • Richard Hixson, Pornography and the Justiceschapter 4 (click on “contents” in the google books link)
  • Gary Wills, “Thomas’ Confirmation,” New York Review of Books

Week of 4-12: Nixon & Reagan

  • Hugh Davis Graham, “Richard Nixon and Civil Rights: Explaining an Enigma,” Presidential Studies Quarterly (1996)
  • Mark Rozell, “President Nixon’s Conception of Executive Privilege: Defining the Scope and Limits of Executive Branch Secrecy,” Presidential Studies Quarterly (1992)
  • Steven Teles, “Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment,” Studies in American Political Development (2009)
  • Vesla Weaver, “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development (2009)
  • United States v. Nixon (1974)

Week of 4-19: Political & Cultural Controversies

  • Linda Greenhouse and Reva Siegel, “Before (and After) Roe v. Wade,” Yale Law Journal
  • Andrew Koppelman, “Romer v. Evans and Invidious Intent,” William and Mary Bill of Rights Journal (1997)
  • Michael Klarman, “Bush v. Gore Through the Lens of Constitutional  History,” California Law Review (2001)
  • Bush v. Gore (2000)

Week of 4-26: The Bush & Obama Years

  • Rosemary Foot, “Exceptionalism Again: The Bush Administration, the ‘Global War on Terror’ and Human Rights,” 26 Law and History Review (2008).
  • John Yoo, Office of Legal Counsel memo, justifying use of “enhanced interrogation techniques” against Guantanamo detainees. (This memo was subsequently repudiated by the OLC.)
  • Joseph Fishkin, “The Dignity of the South,” Yale Law Journal
  • Tom Goldstein, “We’re Getting Wildly Different Assessments,” Scotusblog
  • Hamdan v. Rumsfeld (2006)
  • Obergefell v. Hodges (2015)

Week of 5-3: The Trump Era

Week of 5-10: Moot courts

Learning objectives for this course include: (1) ability to read and interpret key historical sources, including primary sources, court cases, and congressional debates; (2) ability to determine how important themes in U.S. constitutional history change over time; (3) ability to present key legal arguments orally. Item (1) will occur throughout the course; item (2) will occur in the midterm and final examination; item (3) will occur in the moot court.

The faculty and administration of Brooklyn College support an environment free from cheating and plagiarism. Each student is responsible for being aware of what constitutes cheating and plagiarism and for avoiding both. The complete text of the CUNY Academic Integrity Policy and the Brooklyn College procedure for implementing that policy can be found at this site: http://www.brooklyn.cuny.edu/bc/policies. If a faculty member suspects a violation of academic integrity and, upon investigation, confirms that violation, or if the student admits the violation, the faculty member MUST report the violation.

In order to receive disability-related academic accommodations students must first be registered with the Center for Student Disability Services. Students who have a documented disability or suspect they may have a disability are invited to set up an appointment with the Director of the Center for Student Disability Services, Ms. Valerie Stewart-Lovell at 718-951-5538. If you have already registered with the Center for Student Disability Services please provide me with the course accommodation form and discuss your specific accommodation with me (which will, of course, be granted).

State law regarding non-attendance because of religious beliefs can be found in the Bulletin.

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