The approach of this class is dictated by its textbook, a new text that is very different from the others that are available. GGW is organized by historical period, rather than topic: so where a traditional textbook would have a section on “freedom of expression” and trace that idea through a series of historical stages of development (freedom of expression in the 1920s, freedom of expression in the 1960s, freedom of expression in the 1990s). GGW, instead, looks at an historical period and reviews all the major constitutional questions that arose in that time.
The point is to recognize that in different periods, different approaches to interpreting and applying the Constitution have appeared or been dominant, and these approaches often cut across doctrinal subject areas. So, for example, take the case of “textualism,” the idea that the proper way to interpret the Constitution is to focus on the words of the text (the “four corners” of the text). In the late 19th century textualism was largely unknown in judicial opinions. Across fierce disagreements about the nature of property rights and the limits of government authority there was nonetheless widely shared agreement that the Constitution was not to be interpreted word for word or clause by clause as in the manner of a legal document, but rather in terms of its expression of broad philosophical principles. This broadly “interpretivist” approach (a modern term) was applied across a wide range of subjects. So if we want to understand how courts and politicians understood property rights in the late 1800s, we may be better served to compare those understandings with the way freedom of religion was understood in the same period rather than with the way property rights were understood in the 1990s.
That, at any rate, is the premise of the GGW text and of this course. We are studying the historical development of American constitutionalism—not just the legal rules that define constitutional rights and liberties, but the ways of thinking about those subjects that prevailed in different historical periods. This is a class in American history, social and economic development, political theory, and law all rolled together. Because all of those elements meet in debates about the meaning of the U.S. Constitution.