Intro.1.1 Methodology for the Constitution Annotated: Overview

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 and, more specifically, the Congressional Research Service,1 the Constitution Annotated seeks to provide an objective, comprehensive, authoritative, 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 attorneys within the Library of Congress's 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 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.

Footnotes

  1.  Jump to essay-12 U.S.C. § 166 (establishing and discussing the duties of the Congressional Research Service).
  2.  Jump to essay-2A treatise is an extended, serious, and usually exhaustive book on a particular subject. See Black's Law Dictionary 1732 (10th ed. 2014).
  3.  Jump to essay-3See 2 U.S.C. § 168.
  4.  Jump to essay-4An 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.  Jump to essay-5See 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.  Jump to essay-6See 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.  Jump to essay-7See 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.  Jump to essay-8See 2 U.S.C. § 168.
  9.  Jump to essay-9Ralph Waldo Emerson, Self Reliance, in Essays and English Traits 66 (Charles William Eliot ed., 1909).