Constitution Annotated

Introduction — Constitution Annotated Methodology

Essays on this page (15)

Intro.4 Constitution Annotated Methodology

Intro.4.1 Overview of Constitution Annotated Methodology

This essay explains the methodology for the current edition of the Constitution of the United States: Analysis and Interpretation (commonly known as the Constitution Annotated)—that is, the rules and principles that dictate the organization and construction of the document. Consistent with the mission of the Library of Congress’s Congressional Research Service,1 the Constitution Annotated provides an objective, comprehensive, authoritative, non-partisan, and accessible treatment of one of the most—if not the most—contentious legal issues in modern American society: how to read and interpret the Constitution. As the only constitutional law treatise2 formally authorized by federal law,3 the Constitution Annotated functions as the official Constitution of record, describing how the Constitution has been construed by the Supreme Court and other authoritative constitutional actors since the drafting and ratification of the Nation’s Founding document. In particular, the Constitution Annotated provides annotations4 addressing the historical origins and interpretation of each article and amendment of the Constitution.

Producing such a treatise is a daunting task. While the Constitution and its current Amendments contain a little more than 7,500 words,5 a seemingly endless stream of commentaries has attempted to explain the document’s meaning and reach. The various sources discussing the Constitution provide a vast array of modern interpretations of the Constitution—and an immense challenge to any attempt to synthesize these sources in a single treatise. A further challenge is that expositions of the Constitution, like other legal works, can be inaccessible to many readers because they are intended for a narrow audience of attorneys specializing in “constitutional law”—that is, the body of principles and rules derived from the Constitution.6 Also, perhaps because American constitutional law raises certain fundamental issues that define aspects of the U.S. political system,7 discussions of constitutional law often approach the Constitution with a distinct point of view that may obfuscate, politicize, or simply ignore key issues. In addition, the Constitution Annotated confronts the unique challenge that it is not intended to be a static document; federal law requires that it be updated regularly by the Librarian of Congress, who has delegated this responsibility to the Congressional Research Service.8

With these challenges in mind, this essay seeks to provide a transparent methodology for the drafting of the Constitution Annotated and, in particular, for selecting sources for inclusion in the Constitution Annotated and organizing its content. It is anticipated that this methodology will guide future updates and revisions of the Constitution Annotated, ensuring a consistent approach over time. However, keeping in mind that “[a] foolish consistency is the hobgoblin of little minds,”9 certain departures from this methodology may be made in certain cases in either the current edition or in future editions.

Notes
  1. 2 U.S.C. § 166 (establishing and discussing the duties of the Congressional Research Service). ↩
  2. A “treatise” is an “extended, serious, and usually exhaustive book on a particular subject.” See BLACK’S LAW DICTIONARY 1732 (10th ed. 2014). ↩
  3. See 2 U.S.C. § 168. ↩
  4. An annotation is a legal term of art that refers to a work that “explains” or critically analyzes a “source of law.” See BLACK’S LAW DICTIONARY 109 (10th ed. 2014). ↩
  5. See Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 MICH. L. REV. 391, 399 (2008) (“Overall, the U.S. Constitution is exceptional among written constitutions both in its age and its brevity. It is the oldest currently in effect and . . . is among the shortest at 7591 words including amendments . . . .”). ↩
  6. See BLACK’S LAW DICTIONARY 378 (10th ed. 2014) (defining “constitutional law” as the “body of law deriving from the U.S. Constitution and dealing primarily with governmental powers, civil rights, and civil liberties.”). ↩
  7. See Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 333 (2005) (“Judicial review can be understood as attractive precisely because it is embedded in politics, but is not quite of it. Politics and law are not separate, they are symbiotic. It would be remarkable to believe judicial review could operate entirely independent of politics or would be tolerated as such.”). ↩
  8. See 2 U.S.C. § 168. ↩
  9. RALPH WALDO EMERSON, Self Reliance, in ESSAYS AND ENGLISH TRAITS 66 (Charles William Eliot ed., 1909). ↩

Intro.4.2 Information Included in the Constitution Annotated

One key aspect of the methodology for the Constitution Annotated is its criteria for determining what source materials are to be considered in drafting its annotations. Lacking such criteria, the Constitution Annotated would risk being inconsistent in its treatment of particular topics, thereby undermining its overall goal of providing objective, comprehensive, coherent, accessible, and authoritative information about how the Constitution has been construed. The following essays explain the overarching rules for determining when to incorporate particular types of sources within the Constitution Annotated.

Intro.4.3 Supreme Court Decisions

Intro.4.3.1 Treatment of Supreme Court Cases Generally

Supreme Court decisions addressing questions of constitutional law are primary sources of constitutional law, commonly used in compiling the Constitution Annotated. After all, the Court plays a prominent role in interpreting the Constitution, and no constitutional law treatise can credibly exist without a robust discussion of the Supreme Court’s interpretations of the Constitution.1 Moreover, the statute underlying the publication of the Constitution Annotated requires that the Librarian of Congress2 provide “annotations of decisions of the Supreme Court of the United States . . . construing provisions of the Constitution” through the end of the October 1971 term, with biennial updates and decennial editions thereafter.3

Specifically, this federal statute can be seen to impose three interrelated constraints upon the sources consulted in producing the Constitution Annotated. First, in keeping with the language regarding “decisions” of the Court, the Constitution Annotated focuses primarily (but not exclusively)4 upon the Supreme Court’s majority or plurality opinions—i.e., the ultimate determinations and dispositions on a matter by the Supreme Court.5 Separate opinions from individual Justices found in concurrences to and dissents from majority decisions are not, as a general rule, discussed in detail in the Constitution Annotated unless they (1) provide insight into the majority opinion (e.g., explain something that might be opaque from the majority opinion alone); or (2) are eventually adopted by a majority of the Court or otherwise influence future Court decisions. Second, the authorizing statute requires a discussion of decisions that directly “constru[e] provisions of the Constitution.”6 As such, the treatise’s focus is on constitutional law. This restriction is at times challenging because constitutional law often serves as the foundation for other areas of law.7 However, as a rule, the Constitution Annotated does not discuss other areas of law unless doing so is necessary to an understanding of specific constitutional issues. Third, while the statute mandates annotations of the Court’s constitutional decisions through “the end of the October 1971 term,” it also contemplates the Constitution Annotated being updated on an ongoing basis to include cases from subsequent Court terms. As a result, the Constitution Annotated generally differs in its treatment of cases from before the October 1971 term, and those from the October 1971 term and subsequent terms. As a rule, decisions from earlier terms are noted, if at all, only in background discussions, while decisions from later terms are noted in the text, in a footnote, or in a table appended to the Constitution Annotated.

Of course, the statutory mandate from Congress to annotate decisions of the Supreme Court “construing provisions of the Constitution” begs the question of what it means for the Court to interpret a constitutional provision. As one of the central actors in interpreting the Constitution,8 the Supreme Court regularly issues opinions that discuss, and often provide the final word on, how particular provisions of the Constitution are to be understood.9 Generally, the question of whether to include a Court decision in the Constitution Annotated is relatively easy, as when the Court asks whether particular provisions of the Constitution permit certain acts by the political branches. Other decisions can be comfortably excluded because they focus on questions other than constitutional interpretation (e.g., federal common law practices; questions of statutory interpretation that do not touch on matters of constitutional law).10 There are, however, certain “gray” or unsettled areas of constitutional law where the choice of whether to include a decision, or even whether there is any Court decision to include, is not so obvious. These areas frequently involve preemption, qualified immunity, habeas corpus, statutory claims, and common law doctrines, each of which is discussed separately in the essays that follow.

Notes
  1. THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES ix (Kermit L. Hall et al. eds., 1992) (“Because the Court is the highest tribunal for all cases and controversies arising under the Constitution . . . , it functions as the preeminent guardian and interpreter of the Constitution.”). ↩
  2. The Librarian of Congress has delegated this responsibility to the Congressional Research Service. ↩
  3. 2 U.S.C. § 168. ↩
  4. As discussed below, appropriate attention will be paid to the manner in which historical practices, such as how Congress has understood or exercised its powers over time, are pertinent to the explication of a particular clause, section, or provision of the Constitution. ↩
  5. The term “decision” necessarily entails the controlling determinations from the Supreme Court. See BLACK’S LAW DICTIONARY 493 (10th ed. 2014) (defining the term “decision” as “a judicial . . . determination after consideration of the facts and the law; esp., a ruling, order, or judgment pronounced by a court when considering or disposing of a case.”). The Supreme Court normally decides cases by majority rule, which in modern times would require the votes of at least five Justices to join an opinion for it to be a majority opinion for the Court. See 28 U.S.C. § 1 (establishing a Supreme Court consisting of a Chief Justice and eight associate justices). In a minority of cases, however, no opinion receives the full support of a majority of the participating Justices. A plurality of the Supreme Court cannot establish binding precedent. Instead, under the Marks rule, where a majority of the Court cannot agree on a particular opinion, the opinion reaching the majority result on the narrowest grounds controls. See Marks v. United States, 430 U.S. 188, 193 (1977). ↩
  6. 2 U.S.C. § 168. ↩
  7. Cf. Henry P. Monaghan, The Supreme Court 1974 Term, Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 2 (1975) (arguing that the Constitution “establish[es] a nationwide floor below which state experimentation will not be permitted to fall”). ↩
  8. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the [Constitution] enunciated by this Court . . . is the supreme law of the land . . . .”); see generally Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). ↩
  9. See Ryan J. Owens & Donald A. Simon, Explaining the Supreme Court’s Shrinking Docket, 53 WM. & MARY L. REV. 1219, 1271 (2012) (noting that while the Court in the 1940s regularly heard over 200 cases per term, now the number of cases the Court hears averages about eighty cases per term). ↩
  10. See The Supreme Court 2018 Term, The Statistics, 133 HARV. L. REV. 412, Table III (2019) (noting that during the October 2018 Supreme Court term, one third of the Court’s opinions could be viewed as constitutional law cases). ↩

Intro.4.3.2 Preemption Cases

Cases determining whether federal law displaces state law are, at bottom, constitutional law cases insofar as they at least implicitly involve the Supremacy Clause and its mandate that the laws of the United States made in pursuance of the Constitution “shall be the supreme Law of the Land.”1 However, preemption cases, by their nature, tend to focus on the meaning of particular federal and state laws and are typically resolved by focusing on a specific federal statute and the intent of the Congress that enacted the statute.2 Many Supreme Court preemption cases do not discuss generally applicable principles of preemption or the broader meaning of the Supremacy Clause. While including preemption cases that broadly shed light on the doctrine of preemption, the Constitution Annotated generally does not include cases involving the application of preemption with respect to specific statutory schemes.

Notes
  1. U.S. CONST. art. VI, cl. 2. ↩
  2. As the Supreme Court has noted, the Supremacy Clause creates a “rule of decision” for courts and does not itself provide any substantive rights. See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324–25 (2015). ↩

Intro.4.3.3 Qualified Immunity Cases

In cases where plaintiffs seek monetary damages from federal or state government officials, the Supreme Court, in a doctrine commonly referred to as “qualified immunity,” has held that liability exists only when the government official’s conduct violates “clearly established statutory or constitutional rights.”1 Determining whether a constitutional right is “clearly established” is related to determining what that constitutional right entails. However, these two inquiries are conceptually distinct. The Court has held that a court does not necessarily need to determine whether a constitutional right has been violated in order to afford a government official qualified immunity.2 Moreover, for a constitutional right to be “clearly established,” “[t]he contours of th[at] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”3 As a consequence, a ruling that a government official is entitled to qualified immunity may provide little insight into the scope of the underlying constitutional right. Only qualified immunity cases that inform the general understanding of the scope of particular constitutional rights are, as a rule, included in the Constitution Annotated.

Notes
  1. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ↩
  2. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (rejecting the proposition that a qualified immunity inquiry must necessarily resolve whether a constitutional right has been violated before determining whether the underlying constitutional right was clearly established). ↩
  3. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). ↩

Intro.4.3.4 Federal Habeas Claims and State Court Convictions

Pursuant to the relevant provisions of the federal habeas statute, a federal court may not issue a writ of habeas corpus—that is, an order releasing a person from imprisonment or detention1—with respect to any claim that was adjudicated by a state court unless the underlying state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”2 A federal habeas petition will generally be granted as a result of a constitutional error only if the state court: (1) arrived “at a conclusion opposite to that reached by [the Supreme Court] on a question of law or . . . decide[d] a case differently than [the] Court has on a set of materially indistinguishable facts;” or (2) “identifie[d] the correct governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”3 As a consequence of the governing standard in habeas cases, the Supreme Court may not opine on the scope of the underlying constitutional right, but instead merely address whether the state court erred in its assessment of the constitutional right. Such cases are, as a rule, generally not included in the Constitution Annotated.

Notes
  1. See Habeas Corpus, BLACK’S LAW DICTIONARY 825 (10th ed. 2014) (defining the writ of habeas corpus to be “[a] writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal.”). ↩
  2. See 28 U.S.C. § 2254(d)(1). ↩
  3. See Williams v. Taylor, 529 U.S. 362, 412–13 (2000). ↩

Intro.4.3.5 Statutory Claims

While the Court’s decisions opining on how to construe a statute1 are generally excluded from the Constitution Annotated, certain cases involving statutory interpretation may be included insofar as constitutional considerations influence the Court’s approach to construing legislative text. Some such cases involve the doctrine of constitutional avoidance—i.e., the long-standing interpretative rule followed by the Supreme Court that counsels that when a particular reading of a statute would raise serious doubts about the statute’s constitutionality, a court interpreting the statute must “first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”2 Other cases involve the construction of statutes intended to parallel or supplement specific constitutional rights. However, as a rule, such cases are included only when the interpretation of the statute is inextricably intertwined with the interpretation of a constitutional provision. Two examples may serve to illustrate this.

The first involves the Religious Freedom Restoration Act of 1993 (RFRA),3 which Congress enacted in the wake of the Court’s 1990 decision in Employment Division v. Smith repudiating the methodology used in earlier cases to analyze claims asserting a violation of the Free Exercise Clause of the First Amendment.4 These earlier cases had adopted a balancing test—often referred to as the “strict scrutiny” test—that weighed whether the challenged action imposed a “substantial burden” on the practice of religion and, if so, whether the challenged action served a “compelling government interest.”5 However, the Smith Court rejected that approach, allowing generally applicable laws to apply to religious practices without being subject to strict scrutiny.6 In response, Congress enacted RFRA, which prohibits the Federal Government,7 as a matter of federal statutory law, from substantially burdening a person’s exercise of religion unless the government demonstrates that the challenged action serves a compelling government interest and is the least restrictive means of furthering that interest.8 As a result, while the Court’s modern RFRA jurisprudence touches on issues of religious liberty, the test imposed by RFRA is distinct from even the pre-Smith Free Exercise case law and, at bottom, does not interpret the Constitution. As a consequence, while the Constitution Annotated references certain RFRA cases, it does not purport to address RFRA cases in detail.

The second example involves the Electronic Communications Privacy Act of 1986 (Wiretap Act).9 This Act authorizes a judge (after receiving an application from the government) to enter an order allowing for the interception of wire, oral, or electronic communications upon finding “probable cause” that an individual is committing, has committed, or is about to commit specified offenses.10 The Act does not define what is meant by “probable cause.” However, courts construing the probable cause requirement in the Wiretap Act have concluded that it is “co-extensive with the Constitutional requirements embodied” in the Fourth Amendment.11 Thus, if the Court were to rule that the Wiretap Act’s probable cause requirement was satisfied in a particular case, this ruling would warrant inclusion in the Constitution Annotated if it rests on grounds that inform our understanding of the Fourth Amendment’s probable cause requirement.

Notes
  1. “Statutory claims” in this essay refers to assertions of a legal right grounded in a law passed by a legislative body. Federal courts, including the Supreme Court, do not typically engage in extensive interpretations of state law. Under the doctrine announced in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts are bound to follow state law as announced by the highest state court. Id. at 78. Moreover, the Supreme Court will not review judgments of state courts that rest upon adequate and independent state grounds (i.e., nonfederal grounds). See Klinger v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1871); see also Michigan v. Long, 463 U.S. 1032, 1043 (1983) (holding that the Supreme Court has jurisdiction to review a state court ruling “in the absence of a plain statement that the decision below rested on an adequate and independent state ground.”). At times, the Supreme Court has even certified questions to the highest court of a state for that court to provide the definitive interpretation of a statute. See, e.g., Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 398 (1988). In short, it is relatively rare for the Supreme Court to attempt to gauge the meaning of a state law. Consequently, questions of federal statutory interpretation comprise the bulk of the Supreme Court’s docket. See The Supreme Court 2018 Term, The Statistics, 133 HARV. L. REV. 412 (2019). ↩
  2. See Crowell v. Benson, 285 U.S. 22, 62 (1932). ↩
  3. Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb et seq.), declared unconstitutional, City of Boerne v. Flores, 521 U.S. 507, 511 (1997). ↩
  4. See 494 U.S. 872 (1990). ↩
  5. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 210–11 (1972); Sherbert v. Verner, 374 U.S. 398, 408–10 (1963). ↩
  6. See 494 U.S. at 888–89. ↩
  7. As originally enacted, RFRA applied to both federal and state government actions. However, in 1997, the Court struck down the provisions of RFRA that applied to the states as being in excess of Congress’s power under Section 5 of the Fourteenth Amendment. See City of Boerne, 521 U.S. at 511. ↩
  8. See 42 U.S.C. §§ 2000bb, 2000bb-1. ↩
  9. Pub. L. No. 99-508, 100 Stat. 1848 (codified at 18 U.S.C. § 2510 et seq.). ↩
  10. See 18 U.S.C. §§ 2518(1) & (3). ↩
  11. See United States v. Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988). ↩

Intro.4.3.6 Common Law Doctrines

In some cases, the Supreme Court’s rulings expound upon long-established, judge-made doctrines widely referred to as the common law.1 Some of these common law doctrines have their origins in constitutional norms, such as the rules regarding prudential standing2 and the various doctrines requiring the suspension of federal court proceedings in favor of state court proceedings.3 Others have little to do with the Constitution and are justified by more mundane concerns, such as the need for judicial efficiency4 or the lack of a statute or rule to resolve an existing legal issue.5 Cases addressing common law doctrines with constitutional underpinnings are included in the Constitution Annotated insofar as they help to elucidate the scope of the relevant constitutional provision.

Notes
  1. The Supreme Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), broadly announced that “[t]here is no federal general common law.” Id. at 78. Nonetheless, the Supreme Court has recognized that federal common law still exists in two instances: where a federal rule of decision is “necessary to protect uniquely federal interests” and where “Congress has given the courts the power to develop substantive law.” See Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981) (internal citations omitted). ↩
  2. See Gladstone, Realtors v. Bellwood, 441 U.S. 91, 100 & n.6 (1979) (discussing the “nonconstitutional limitations on standing” that derive in part from the Court’s view about the proper role of federal courts in a “democratic society” (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975))). ↩
  3. See, e.g., Younger v. Harris, 401 U.S. 37, 53–54 (1971) (prohibiting federal courts from enjoining certain ongoing state court criminal, civil, or administrative proceedings); R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941) (requiring federal courts to abstain from hearing cases that state courts can resolve by applying state law in a manner that relieves federal courts from making constitutional determinations). ↩
  4. See, e.g., New Hampshire v. Maine, 532 U.S. 742 (2001) (discussing the doctrines of claim and issue preclusion). ↩
  5. See generally LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE 363–71 (1991) (discussing the gap-filling role of federal common law). ↩

Intro.4.4 Lower Court Decisions

Intro.4.4.1 Treatment of Lower Court Decisions Generally

Because the Supreme Court hears only a small percentage of the cases in which its review is sought (and in many cases, parties do not even seek Court review),1 most litigation over the meaning of the Constitution does not reach the High Court. This leaves many constitutional matters to be decided by the lower federal courts and, in particular, the thirteen federal courts of appeal.2 State courts can also play a significant role in construing the U.S. Constitution and any comparable provisions in the state’s constitution.3 While many cases come to the Supreme Court directly from state courts of last resort,4 state courts usually have the last word on the meaning of state law.5 Given the statutory requirement to annotate the Supreme Court’s constitutional decisions, as well as considerations of space, the Constitution Annotated makes only limited references to lower court decisions. As a general rule, such decisions are not included unless they are particularly influential or address significant issues not addressed by the High Court.

Notes
  1. See Ryan J. Owens & Donald A. Simon, Explaining the Supreme Court’s Shrinking Docket, 53 WM. & MARY L. REV. 1219, 1225 (2012) (“Since the 2005 Term, the Court has decided an average of 80 cases per Term” out of potentially thousands of petitions). ↩
  2. As Justice Byron White once explained, “there is not just one Supreme Court in this country, there are 12 regional Supreme Courts [and the specialized Court of Appeals for the Federal Circuit] . . . . For all practical purposes, the development of the federal law is very much in the hands of the 13 circuit courts of appeals.” See Byron R. White, Enlarging the Capacity of the Supreme Court, in THE FEDERAL APPELLATE JUDICIARY IN THE TWENTY-FIRST CENTURY 145 (Cynthia Harrison & Russell R. Wheeler eds., 1989). ↩
  3. See Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 COLUM. L. REV. SIDEBAR 27, 28 (2011) (“Moreover, state courts play a major role in interpreting and enforcing the Federal Constitution, and, perhaps more importantly, state courts are often at the cutting edge of recognizing rights that will eventually spill over into the national constitutional discourse.”). ↩
  4. See The Supreme Court 2018 Term, The Statistics, 133 HARV. L. REV. 412, Table II(E) (2019) (noting that, during the October 2018 Term, fifteen of the 106 cases disposed of by the Supreme Court came from state courts). ↩
  5. State court decisions that are based on federal constitutional law are subject to Supreme Court review. See Klinger v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1871); see also Michigan v. Long, 463 U.S. 1032, 1043 (1983). ↩

Intro.4.4.2 Lower Court Rulings

From time to time, lower court rulings on constitutional law are widely recognized by constitutional scholars to have had a lasting influence on interpretations of the Constitution, perhaps even coming to be adopted or relied upon by the Supreme Court. Examples of influential lower court rulings include Judge Learned Hand’s opinion on the First Amendment and incitement in Masses Publishing Co. v. Patten,1 and Judge Frank Easterbrook’s opinion on the First Amendment and prohibitions on certain sexually explicit material in American Booksellers Ass’n, Inc. v. Hudnut.2 Such influential lower court rulings, which may include opinions by future or retired Supreme Court Justices,3 are included in the Constitution Annotated.

Notes
  1. See 244 F. 535 (S.D.N.Y. 1917), rev’d, 246 F. 24 (2d Cir. 1917). ↩
  2. See 771 F.2d 323 (7th Cir. 1985), aff’d sub nom., 475 U.S. 1001 (1986). ↩
  3. See, e.g., McAuliffe v. City of New Bedford, 29 N.E. 517 (1892) (Holmes, J.) (discussing the constitutional rights of public employees); Hayburn’s Case, 2 U.S. (Dall.) 409, 410 n.2 (1792) (discussing the circuit court rulings issued by Members of the Supreme Court). ↩

Intro.4.4.3 Subjects Lacking Supreme Court Coverage

In cases where the Supreme Court has not spoken on the precise issue, but a lower court has, relevant lower court decisions may be included in the Constitution Annotated. For example, the Supreme Court has rarely interpreted the Third Amendment. Accordingly, the Constitution Annotated discussion of the Constitution’s prohibition on the quartering of soldiers notes a prominent lower court ruling on the issue.1 Discussion of such “gap-filling” lower court opinions is intended to elucidate issues that the Supreme Court has not addressed, but is circumscribed and included only for purposes of noting open questions and apparent limitations in the Supreme Court’s current doctrine.

Notes
  1. See Third Amendment: In General (noting Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982)). ↩

Intro.4.5 Non-Judicial Sources of Constitutional Meaning

The Judiciary is not the only branch of government with a role in interpreting the Constitution. Since the Nation’s Founding, the Legislative and Executive Branches, through their respective officers, have continuously participated in construing the Constitution in both formal and informal ways, providing a rich history that informs modern interpretations of the Constitution.1 In addition, various non-governmental actors—from academic legal scholars to “ordinary” citizens—have at times played a pivotal role in interpreting the Constitution and the basic norms that underlie it.2

Interpretations of the Constitution outside the courts occur in three primary contexts.3 First, non-judicial actors may opine on the meaning of the Constitution with respect to matters that could be, or have been, subject to judicial review.4 For example, in the wake of the Court’s 1989 decision in Texas v. Johnson, holding that a Texas law criminalizing the burning of the U.S. flag violated the First Amendment,5 Congress enacted a similar federal law, functionally voicing its disagreement with the Court’s interpretation of the First Amendment in Johnson.6 Second, non-judicial constitutional interpretations may occur in contexts that are not generally subject to judicial review.7 Court-made doctrines, like the political question doctrine and the constitutional standing doctrine, can result in entire provisions of the Constitution being interpreted solely by the political branches or non-governmental actors.8 For example, the Court has held that the propriety of a Senate trial of impeachment is a political question that cannot be resolved by a federal court.9 As a result, questions regarding the limits of the power to try impeachments are heavily influenced by both long-standing practices of the Senate, as well as new developments that prompt changes in such practices.10 Third and finally, non-judicial interpretations of the Constitution may occur in areas where, while not wholly immune from judicial review, the judiciary has tended to defer to the political branches.11 Presidential authority over foreign affairs is an example of such a field.12

Because nearly infinite understandings of the Constitution exist outside of formal court opinions, the use of non-judicial sources in the Constitution Annotated must be limited in some way, in part, to ensure that the focus of the Constitution Annotated remains upon the Supreme Court decisions noted in the statutory mandate.13 In the interests of balancing these concerns, the Constitution Annotated generally limits its usage of non-judicial sources to situations where (1) judicial interpretation has no role, or a very limited role, in constitutional construction, or (2) non-judicial actors provide an important interstitial role in informing the general understanding of specific constitutional provisions. Examples of such topics include:

presidents’ pardon decisions, presidents’ proposing national legislation, presidents’

vetoing legislation, the deliberations of members of Congress over the standards for

impeachment and removal, representatives’ and senators’ votes for and against

legislation, presidents’ negotiating treaties, senators’ determining whether to ratify

treaties, presidents’ standards for nominations, senators’ determinations of the

standards for confirmation, presidents’ standards for removing executive officials, the

Congress’s standards for approving international agreements made by means other

than treaties, presidents’ under-enforcement of federal laws and executive orders, the

Congress’s decisions on how to discipline its own members for their misconduct in

office, and the uses of military force without declarations of war.14

The Constitution Annotated also uses non-judicial sources to supply relevant factual information that the Court may have omitted from its decision, but which is arguably key to understanding the decision. Also, on occasion, the Constitution Annotated notes that a debate about a particular constitutional provision or Supreme Court precedent exists, and cites secondary sources evidencing the existence of such a debate.15

With respect to which non-judicial sources to use, the Constitution Annotated concentrates upon sources that are influential to decision makers in the field, or are widely regarded as authoritative or influential within the legal profession. Some non-judicial interpretations of the Constitution can influence the actions of decision makers and, accordingly, are worth citing in the Constitution Annotated despite their advocacy of particular points of view, because of their effects on how particular provisions of the Constitution are implemented in practice. For example, the Department of Justice’s Office of Legal Counsel’s (OLC) opinions on the Recess Appointments Clause were discussed and relied on by the Supreme Court in NLRB v. Noel Canning, demonstrating the influence of that office’s legal determination on constitutional law.16 Examples of such “influential” sources, beyond opinions by the OLC, include legal decisions by the Government Accountability Office. In other cases, there is near consensus within the legal profession (including the Justices on the Supreme Court) that certain non-judicial sources are influential and/or authoritative on particular issues. Often these sources are ones that have long affected constitutional interpretation, such as Sir William Blackstone’s Commentaries on the Laws of England; the Federalist Papers; Justice Joseph Story’s Commentaries on the Constitution; then-Professor Louis Brandeis’s early writings on the right to privacy;17 Professor James Bradley Thayer’s works on the nature of judicial review;18 and then-private practitioner Learned Hand’s writings on economic due process rights.19

Notes
  1. See Michael J. Gerhardt, The Constitution Outside the Courts, 51 DRAKE L. REV. 775, 777 (2003) (“It is hard to overstate the range or significance of constitutional decision making that occurs outside the Court.”); Mark V. Tushnet, The Constitution Outside the Courts: A Preliminary Inquiry, 26 VAL. U. L. REV. 437, 437–38 (1992) (arguing that “Constitutional law is obsessed with the Supreme Court,” and that there is a “much richer terrain to explore” with regard to noncourt actors and their interpretations of the Constitution); Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 985–86 (1987) (“The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions.”). ↩
  2. See LARRY KRAMER, THE PEOPLE THEMSELVES 8 (2004) (“Both in its origins and for most of our history, American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution. Final interpretive authority rested with ‘the people themselves,’ and courts no less than elected representatives were subordinate to their judgments.”); see generally Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 898–99 (2005) (describing a “growing body of scholarship” discussing the concept of “popular constitutionalism,” the idea that “the People and their elected representatives should—and often do—play a substantial role in the creation, interpretation, evolution, and enforcement of constitutional norms.”). ↩
  3. See Gerhardt, supra note 1, at 780. ↩
  4. Id. ↩
  5. 491 U.S. 397 (1989). ↩
  6. See Gerhardt, supra note 1, at 780. ↩
  7. Id. ↩
  8. See Tushnet, supra note 1, at 439–40. ↩
  9. See Nixon v. United States, 506 U.S. 224 (1993). ↩
  10. See generally MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 33–35 (1996). ↩
  11. See Gerhardt, supra note 1, at 780. ↩
  12. Jama v. Immigration & Customs Enf ’t, 543 U.S. 335, 348 (2005) (noting the Court’s “customary policy of deference to the President in matters of foreign affairs”). ↩
  13. Constitutional interpretations from non-court actors can also raise concerns about sources’ objectivity. Various commentators have suggested that constitutional law is more prone than other areas of law to being “manipulate[d] . . . for political purposes.” See generally Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 CONST. COMMENT. 461, 464 (2009); see also id. at 461 (“The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of lawyers.”). As a consequence, indiscriminate use of such sources in the Constitution Annotated could be at odds with the mission of providing objective, non-partisan, and authoritative analysis of the Constitution. Moreover, beyond considerations of objectivity, academic writing on the Constitution can, at times, be esoteric and may not warrant an extended discussion in this volume. See, e.g., Video: Annual Fourth Circuit Court of Appeals Conference, C-SPAN (June 25, 2011), https://web.archive.org/web/20110713081110/http://www.c-span.org/Events/Annual-Fourth-Circuit- Court-of-Appeals-Conference/10737422476-1/ (statement of Chief Justice John Roberts, Jr. stating: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”). ↩
  14. See Gerhardt, supra note 1, at 780. ↩
  15. For example, in the wake of the Court’s 2015 ruling in Obergefell v. Hodges, which prohibited a state from defining marriage as exclusively between a man and a woman, there was debate about whether the logic of Obergefell could apply in contexts not involving same-sex marriage. See 576 U.S. 644 (2015). That debate is noted in the Constitution Annotated. See Amdt14.S1.8.13.1 Overview of Fundamental Rights. ↩
  16. See, e.g., 573 U.S. 513, 544 (2014). ↩
  17. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 195 (1890). ↩
  18. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893). ↩
  19. See Learned Hand, Due Process of Law and the Eight-Hour Day, 21 HARV. L. REV. 495, 503 (1908). ↩