Intro. What Is Included and Sourced in the Constitution Annotated: Non-Judicial Sources of Constitutional Meaning in Lower Court Opinions

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 longstanding 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

Although the statutory mandate underlying the Constitution Annotated involves only Supreme Court decisions, the treatise would have major gaps, and be less rich and accessible for its readers, if it were to ignore how the Constitution has been interpreted by non-judicial actors. On the other hand, 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's) 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 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


  1.  Jump to essay-1See 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.  Jump to essay-2See 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.  Jump to essay-3See Gerhardt, supra note 1, at 780.
  4.  Jump to essay-4Id.
  5.  Jump to essay-5491 U.S. 397 (1989).
  6.  Jump to essay-6See Gerhardt, supra note 1, at 780.
  7.  Jump to essay-7Id.
  8.  Jump to essay-8See Tushnet, supra note 1, at 439--40.
  9.  Jump to essay-9See Nixon v. United States, 506 U.S. 224 (1993).
  10.  Jump to essay-10See generally Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 33–35 (1996).
  11.  Jump to essay-11See Gerhardt, supra note 1, at 780.
  12.  Jump to essay-12Jama 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.  Jump to essay-13Constitutional 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), (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.  Jump to essay-14See Gerhardt, supra note 1, at 780.
  15.  Jump to essay-15For 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 135 S. Ct. 2584 (2015). That debate is noted in the Constitution Annotated. See Amdt14.S1.4.3.1 Equal Protection: Overview.
  16.  Jump to essay-16See, e.g., 573 U.S. 513, 544 (2014).
  17.  Jump to essay-17See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).
  18.  Jump to essay-18See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
  19.  Jump to essay-19See Learned Hand, Due Process of Law and the Eight-Hour Day, 21 Harv. L. Rev. 495, 503 (1908).