Intro. What Is Included and Sourced in the Constitution Annotated: Supreme Court Cases Overview

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.


  1.  Jump to essay-1The 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.  Jump to essay-22 U.S.C. § 168.
  3.  Jump to essay-3As 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.
  4.  Jump to essay-4The 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).
  5.  Jump to essay-52 U.S.C. § 168.
  6.  Jump to essay-6Cf. 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).
  7.  Jump to essay-7See 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.).
  8.  Jump to essay-8See 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 80 cases per term).
  9.  Jump to essay-9See 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).