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 Congress—by whom the responsibility has been delegated, ultimately, to the Congressional Research Service—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.2
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)3 upon the Supreme Court's majority or plurality opinions—i.e., the ultimate determinations and dispositions on a matter by the Supreme Court.4 Separate opinions from individuals 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.5 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.6 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,7 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.8 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).9 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.