This guide is part of a series of guides with readings about issues of race, class, gender, sexuality, and disability in traditional first-year courses.
Note: The aspects of constitutional law covered in upper-level courses such as Equal Protection and the First Amendment often deal with race, class, sex, and sexuality. Including books and articles on those topics would overwhelm this reading list. This list focuses on topics typically covered in the first-year course: the structures of government and the processes of constitutional adjudication.
Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999-1089 (2014), journal website
Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution’s creation, drafting, and ratification.
George Anastaplo, 'Racism,' Political Correctness, and Constitutional Law: A Law School Case Study, 42 S. Dak. L. Rev. 108-64 (1997), HeinOnline.
In the fall of 1995, students in a meeting complained of allegedly racist remarks by Prof. Anastaplo in his Constitutional Law class. Over the next several months, he discussed the issue in lectures to his students and memos to his colleagues. This law review article reproduces those documents.
Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1512-97 (1991), HeinOnline.
For Property, includes roots of title in the New World (pp. 1521-23) and slavery (pp. 1523-26). Race and the constitution is discussed at 1539-54.
Anthony E. Cook, The Temptation and Fall of Original Understanding, 39 Duke L.J. 1163 (1990) (reviewing Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1989)), journal site
Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography): Explains why the version of historicist judicial philosophy embraced by Robert Bork's conception of original understanding is an impoverished approach to constitutional interpretation. Argues further that Bork's insistence on a color-blind Constitution silences the very voices who must be heard -- those of African-Americans, whom the Thirteenth, Fourteenth, and Fifteenth Amendments were designed to protect.
Cheryl Hanna, Gender as a Core Value in Teaching Constitutional Law, 36 Okla. City U. L. Rev. 513-24 (2011), HeinOnline
Michael Schoeppner, Legitimating Quarantine: Moral Contagions, the Commerce Clause, and the Limits of Gibbons v. Ogden, 17 J. S. Legal Hist. 81 (2009), HeinOnline (discussing Gibbon v. Ogden in the context of Southern state "laws limiting the ingress of 'colored seamen' into their jurisdictions").
Abstract: Contradictory approaches to defining male and female can create bizarre and confusing results as transsex persons cross state lines and find that their legal sex changes according to the laws of a given jurisdiction. Recent U.S. decisions establishing a person's legal sex have adopted a kaleidoscope of approaches that range from the absurd (a man must be able to fertilize ovum and beget offspring, while women must produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other one-half of the states. This article discusses the constitutional implications of the varied approaches to determining a person's legal sex. It concludes that states that refuse to recognize an amended birth certificate from a sister state violate principles of full faith and credit and unconstitutionally infringe upon the right to travel under the dormant Commerce Clause. In addition, when states impose sex tests that are based on gender stereotypes and force people to live as the sex that conflicts with their self-identified sex, they violate the Fourteenth Amendment's equal protection and substantive due process mandates.
[T]wo key constitutional cases involving immigration and citizenship, Chae Chan Ping v. United States and Fong Yue Ting v. United States, profoundly affect the development of the American national identity, but are notably absent from the legal curriculum. These two cases are the roots of Congress's plenary power over immigration, which maintains that "the power of Congress over the admission of aliens to this country is absolute."' This plenary power has effectively immunized the federal government's substantive immigration decisions from judicial scrutiny.