Intro.5 Organization of the Constitution Annotated
Intro.5.1 Overview of Constitution Annotated Organization
Constitutional law treatises are organized in various ways. For example, some prominent treatises are organized around a limited number of general concepts, most commonly (1) the relationship between the Federal Government and the states (i.e., federalism); (2) the relationship between the different branches of the federal government (i.e., separation of powers); and (3) the relationship between the government and citizens (i.e., individual rights).1 In many cases, these treatises focus on these general topics without addressing more context-specific issues, such as the constitutional rules undergirding modern criminal or civil procedure. Other treatises take a historical approach, moving chronologically from interpretations of the Constitution advanced at the beginning of the Nation’s history to modern understandings.2
The Constitution Annotated has long been unique among treatises on constitutional law, not only for its non-partisan mission, but also because it addresses the various provisions of the Constitution in the order they appear in that document: Article by Article, Amendment by Amendment, Section by Section, Clause by Clause. This structural approach can be useful in providing information about the Constitution to a broad audience, because no prior knowledge of particular constitutional concepts or history is needed to identify where in the treatise information about a provision exists. The clause-by-clause approach of the ConstitutionAnnotated also allows readers to grapple with the meaning of specific language in particular clauses or sections without being distracted by tangential discussions.
Nonetheless, this approach is not without its disadvantages. Perhaps most notably, constitutional law has often proved to be atextual in the sense that certain basic understandings of the Constitution are not tied to specific language within the Constitution. For example, the right to travel does not exist within the plain text of the Constitution, but is instead the product of several constitutional law doctrines.3 As a result, the historic structure of the Constitution Annotated risks omitting critical sources—which do not focus on a specific constitutional provision—from the volume. Conversely, constitutional norms can be rooted in multiple articles or amendments. For example, the concept of “due process” is invoked in both the Fifth and Fourteenth Amendments, with often overlapping meanings. As a consequence, following the structure of the Constitution in setting forth the material in the ConstitutionAnnotated can, at times, lead to the unnecessary duplication.
With these considerations in mind, the current edition of the Constitution Annotated primarily follows the Article-by-Article/Amendment-by-Amendment structure of prior editions—and retains the “essay” as the fundamental building block of the content4—with a few changes intended to avoid certain disadvantages of a purely structural approach. In particular, essays in the current edition are organized in three categories: (1) Introduction to the Constitution Annotated; (2) the U.S. Constitution Preamble, Articles, and Amendments, and (3) Appendix and Resources to the Constitution Annotated.
Notes
See, e.g., KATHLEEN M. SULLIVAN & NOAH FELDMAN, CONSTITUTIONAL LAW (18th ed. 2013). ↩
See, e.g., PAUL BREST ET. AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS (5th ed. 2006). ↩
See Jones v. Helms, 452 U.S. 412, 418–19 (1981) (“The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.”). ↩
The fundamental building block of the Constitution Annotated is the “essay.” The content may take the form of a single standalone essay or a group of essays (multiple essays grouped under a common heading). ↩
Intro.5.2 Introductory Materials in the Constitution Annotated
This part of the Constitution Annotated includes broad introductory essays covering historical background, providing authorization information, addressing ratification and overarching constitutional issues, and more. A few key introductory essays are summarized below:
• Historical Note on the Adoption of the Constitution. This essay1 provides a brief
introduction to the formation of the U.S. Constitution. It discusses the general
rationales for the Nation’s Founding document and how the Constitution was drafted,
introducing readers to historical themes discussed in various places throughout the
document. More detailed background on individual clauses of the Constitution is
provided within the essays on individual articles and amendments.
• Basic Principles Underlying the Constitution. These essays2 introduce basic themes
and concepts that commonly arise in constitutional interpretation, regardless of the
particular question. Specifically, the essays discuss the threshold question of what
agents of the government interpret the Constitution before addressing federalism,
separation of powers, and individual rights. By providing insights into these common
“issues,” which recur in later essays, the Constitution Annotated can avoid both
omitting such critical, overarching concepts from specific annotations and repeating
introductory discussions of these concepts at each point where they are mentioned.
• Ways to Interpret the Constitution. These essays3 describe current, widely accepted
modes of constitutional interpretation. They are intended to introduce readers to the
different methods that courts and other commentators may apply when construing the
Constitution, such as originalism, textualism, and common-law constitutionalism. By
providing readers with a basic understanding of key approaches to reading the
Constitution, these essays help inform the more specific discussions of individual
articles and amendments that follow.
Notes
Intro.6.1 Continental Congress and Adoption of the Articles of Confederation. ↩
Intro.7.1 Overview of Basic Principles Underlying the Constitution to Intro.7.5 Interpreters of the Constitution. ↩
Intro.8.1 Interpreting the Constitution Generally to Intro.8.9 Historical Practices and Constitutional Interpretation. ↩
Intro.5.3 Preamble, Articles, and Amendments
Following the introductory essays, there are three groups of essays, each addressing a separate part of the Constitution (i.e., the Preamble, Articles, and Amendments). Each group of essays generally follows the same basic structure1 consisting of the following components:
• Text of Constitutional Provision: Generally, each essay begins with the text of the
constitutional provision annotated. This is a verbatim reproduction of the text of the
U.S. Constitution as recorded by the National Archives and Records Administration.
Depending on how specific the essay is, the text of the constitutional provision may be
excerpted to highlight particular portions and reflect the essay’s more narrow focus.
• Essay: Essays in the Constitution Annotated consist of annotations explaining the
meaning of a particular constitutional provision, as construed by the Supreme Court
and other relevant authorities. While the number of essays may differ depending on
the constitutional provision under discussion, the following three categories of essays
generally appear:
○ Overview: This essay typically summarizes the material that follows and provides
a roadmap of how the material that follows is organized.
○ Historical Background: This essay or group of essays focuses on the history of
particular highlighted text up to the time of ratification. Such essays may include
the common law origins of particular provisions; records of the debates that
occurred among the Framers during the drafting of the provision; and any other
historical materials that may provide insight into how particular provisions were
understood at the time of their inclusion in the Constitution.
○ Doctrine: This essay or group of essays discusses how particular provisions of the
Constitution have generally been construed following their ratification. This often
takes the form of a group of essays and follows a chronological order, tracing key
developments in the evolution of the interpretation of particular constitutional
provisions from early interpretations to the current doctrine. Importantly, the
phrase “doctrine” is used quite broadly in the Constitution Annotated to encompass
both judicial doctrine and more general understandings of what the Constitution
Certain provisions of the Constitution may not lend themselves to full essays on each provision. In such instances, the constitutional provision may contain a single Constitution Annotated essay that provides an overview, historical background, and the doctrine collapsed in one. ↩
See BLACK’S LAW DICTIONARY 585 (10th ed. 2014) (defining doctrine broadly to mean a “legal principle” that is “widely adhered to”). ↩
Intro.5.4 Appendix and Tables in the Constitution Annotated
Following the essays on the Preamble, Articles, and Amendments, the ConstitutionAnnotated features an Appendix and Tables containing supplemental materials that may be useful to the reader. The Appendix contains an essay explaining the methodology underlying the formation of the Tables,1 and may include additional content in the future. Finally, four tables make up the Resources to the Constitution Annotated: (1) Table of Supreme Court Decisions Overruled by Subsequent Decisions; (2) Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court; (3) Table of Supreme Court Justices; and (4) Table of Cases. Additional materials prepared by the Congressional Research Service relating to the Constitution are available on the Constitution Annotated website, https:// constitution.congress.gov/.2
See Beyond the Constitution Annotated: Table of Additional Resources, https://constitution.congress.gov/resources/additional-resources/. For more information about the content and methodology of each Table, see Appx.1.1 Constitution Annotated Tables Generally. ↩
Intro.5.5 Serial Numbers in the Constitution Annotated
Each essay on the Constitution Annotated website is associated with a unique serial number based on the essay’s position in the Constitution Annotated hierarchy.
The serial number begins with a prefix: Intro for essays in the “Introduction to the Constitution Annotated” category, Pre for essays in the “Preamble to the Constitution” category, Art for essays in the “Articles of the Constitution” category, Amdt for essays in the “Amendments to the Constitution” category, and finally Appx for essays in the “Appendix to the Constitution Annotated” category. Additional prefixes that may follow are: S if the essay annotates a specific constitutional section and C if the essay annotates a specific constitutional clause.
These prefixes are followed by serial numbers that indicate the position of the essay relative to other essays or group(s) of essays in the Constitution Annotated hierarchy. For example:
• Intro.3.1 Ratification of Amendments to the Constitution Generally is an essay in the
Introduction to the Constitution Annotated (Intro.3.1), is in the third group (Intro.3.1),
• Pre.2 Historical Background on the Preamble is the second essay in the Preamble to
the Constitution (Pre.2).
• ArtI.S2.C5.2 Historical Background on Impeachment is an essay annotating Article I
(ArtI.S2.C5.2), Section 2 (ArtI.S2.C5.2), Clause 5 (ArtI.S2.C5.2), and is the second
essay (ArtI.S2.C5.2) therein.
• Amdt5.9.1 Overview of Takings Clause is an essay annotating the Fifth Amendment
(Amdt5.8.1), is in the eighth group (Amdt5.8.1), and is the first essay (Amdt5.8.1)
therein.
• Appx.1 Methodologies for the Tables is an essay in the Appendix to the Constitution
Annotated (Appx.1) and is the first essay (Appx.1) therein.
When concepts in a particular essay are discussed in another section of the ConstitutionAnnotated, the essay will include cross-references including the relevant essay’s serial number.
Intro.5 Organization of the Constitution Annotated
Intro.5.1 Overview of Constitution Annotated Organization
Constitutional law treatises are organized in various ways. For example, some prominent treatises are organized around a limited number of general concepts, most commonly (1) the relationship between the Federal Government and the states (i.e., federalism); (2) the relationship between the different branches of the federal government (i.e., separation of powers); and (3) the relationship between the government and citizens (i.e., individual rights).1 In many cases, these treatises focus on these general topics without addressing more context-specific issues, such as the constitutional rules undergirding modern criminal or civil procedure. Other treatises take a historical approach, moving chronologically from interpretations of the Constitution advanced at the beginning of the Nation’s history to modern understandings.2
The Constitution Annotated has long been unique among treatises on constitutional law, not only for its non-partisan mission, but also because it addresses the various provisions of the Constitution in the order they appear in that document: Article by Article, Amendment by Amendment, Section by Section, Clause by Clause. This structural approach can be useful in providing information about the Constitution to a broad audience, because no prior knowledge of particular constitutional concepts or history is needed to identify where in the treatise information about a provision exists. The clause-by-clause approach of the Constitution Annotated also allows readers to grapple with the meaning of specific language in particular clauses or sections without being distracted by tangential discussions.
Nonetheless, this approach is not without its disadvantages. Perhaps most notably, constitutional law has often proved to be atextual in the sense that certain basic understandings of the Constitution are not tied to specific language within the Constitution. For example, the right to travel does not exist within the plain text of the Constitution, but is instead the product of several constitutional law doctrines.3 As a result, the historic structure of the Constitution Annotated risks omitting critical sources—which do not focus on a specific constitutional provision—from the volume. Conversely, constitutional norms can be rooted in multiple articles or amendments. For example, the concept of “due process” is invoked in both the Fifth and Fourteenth Amendments, with often overlapping meanings. As a consequence, following the structure of the Constitution in setting forth the material in the Constitution Annotated can, at times, lead to the unnecessary duplication.
With these considerations in mind, the current edition of the Constitution Annotated primarily follows the Article-by-Article/Amendment-by-Amendment structure of prior editions—and retains the “essay” as the fundamental building block of the content4—with a few changes intended to avoid certain disadvantages of a purely structural approach. In particular, essays in the current edition are organized in three categories: (1) Introduction to the Constitution Annotated; (2) the U.S. Constitution Preamble, Articles, and Amendments, and (3) Appendix and Resources to the Constitution Annotated.
Notes
Intro.5.2 Introductory Materials in the Constitution Annotated
This part of the Constitution Annotated includes broad introductory essays covering historical background, providing authorization information, addressing ratification and overarching constitutional issues, and more. A few key introductory essays are summarized below:
• Historical Note on the Adoption of the Constitution. This essay1 provides a brief
introduction to the formation of the U.S. Constitution. It discusses the general
rationales for the Nation’s Founding document and how the Constitution was drafted,
introducing readers to historical themes discussed in various places throughout the
document. More detailed background on individual clauses of the Constitution is
provided within the essays on individual articles and amendments.
• Basic Principles Underlying the Constitution. These essays2 introduce basic themes
and concepts that commonly arise in constitutional interpretation, regardless of the
particular question. Specifically, the essays discuss the threshold question of what
agents of the government interpret the Constitution before addressing federalism,
separation of powers, and individual rights. By providing insights into these common
“issues,” which recur in later essays, the Constitution Annotated can avoid both
omitting such critical, overarching concepts from specific annotations and repeating
introductory discussions of these concepts at each point where they are mentioned.
• Ways to Interpret the Constitution. These essays3 describe current, widely accepted
modes of constitutional interpretation. They are intended to introduce readers to the
different methods that courts and other commentators may apply when construing the
Constitution, such as originalism, textualism, and common-law constitutionalism. By
providing readers with a basic understanding of key approaches to reading the
Constitution, these essays help inform the more specific discussions of individual
articles and amendments that follow.
Notes
Intro.5.3 Preamble, Articles, and Amendments
Following the introductory essays, there are three groups of essays, each addressing a separate part of the Constitution (i.e., the Preamble, Articles, and Amendments). Each group of essays generally follows the same basic structure1 consisting of the following components:
• Text of Constitutional Provision: Generally, each essay begins with the text of the
constitutional provision annotated. This is a verbatim reproduction of the text of the
U.S. Constitution as recorded by the National Archives and Records Administration.
Depending on how specific the essay is, the text of the constitutional provision may be
excerpted to highlight particular portions and reflect the essay’s more narrow focus.
• Essay: Essays in the Constitution Annotated consist of annotations explaining the
meaning of a particular constitutional provision, as construed by the Supreme Court
and other relevant authorities. While the number of essays may differ depending on
the constitutional provision under discussion, the following three categories of essays
generally appear:
○ Overview: This essay typically summarizes the material that follows and provides
a roadmap of how the material that follows is organized.
○ Historical Background: This essay or group of essays focuses on the history of
particular highlighted text up to the time of ratification. Such essays may include
the common law origins of particular provisions; records of the debates that
occurred among the Framers during the drafting of the provision; and any other
historical materials that may provide insight into how particular provisions were
understood at the time of their inclusion in the Constitution.
○ Doctrine: This essay or group of essays discusses how particular provisions of the
Constitution have generally been construed following their ratification. This often
takes the form of a group of essays and follows a chronological order, tracing key
developments in the evolution of the interpretation of particular constitutional
provisions from early interpretations to the current doctrine. Importantly, the
phrase “doctrine” is used quite broadly in the Constitution Annotated to encompass
both judicial doctrine and more general understandings of what the Constitution
means from non-judicial sources.2
Notes
Intro.5.4 Appendix and Tables in the Constitution Annotated
Following the essays on the Preamble, Articles, and Amendments, the Constitution Annotated features an Appendix and Tables containing supplemental materials that may be useful to the reader. The Appendix contains an essay explaining the methodology underlying the formation of the Tables,1 and may include additional content in the future. Finally, four tables make up the Resources to the Constitution Annotated: (1) Table of Supreme Court Decisions Overruled by Subsequent Decisions; (2) Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court; (3) Table of Supreme Court Justices; and (4) Table of Cases. Additional materials prepared by the Congressional Research Service relating to the Constitution are available on the Constitution Annotated website, https:// constitution.congress.gov/.2
Notes
Intro.5.5 Serial Numbers in the Constitution Annotated
Each essay on the Constitution Annotated website is associated with a unique serial number based on the essay’s position in the Constitution Annotated hierarchy.
The serial number begins with a prefix: Intro for essays in the “Introduction to the Constitution Annotated” category, Pre for essays in the “Preamble to the Constitution” category, Art for essays in the “Articles of the Constitution” category, Amdt for essays in the “Amendments to the Constitution” category, and finally Appx for essays in the “Appendix to the Constitution Annotated” category. Additional prefixes that may follow are: S if the essay annotates a specific constitutional section and C if the essay annotates a specific constitutional clause.
These prefixes are followed by serial numbers that indicate the position of the essay relative to other essays or group(s) of essays in the Constitution Annotated hierarchy. For example:
• Intro.3.1 Ratification of Amendments to the Constitution Generally is an essay in the
Introduction to the Constitution Annotated (Intro.3.1), is in the third group (Intro.3.1),
and is the first essay (Intro.3.1) therein.
• Pre.2 Historical Background on the Preamble is the second essay in the Preamble to
the Constitution (Pre.2).
• ArtI.S2.C5.2 Historical Background on Impeachment is an essay annotating Article I
(ArtI.S2.C5.2), Section 2 (ArtI.S2.C5.2), Clause 5 (ArtI.S2.C5.2), and is the second
essay (ArtI.S2.C5.2) therein.
• Amdt5.9.1 Overview of Takings Clause is an essay annotating the Fifth Amendment
(Amdt5.8.1), is in the eighth group (Amdt5.8.1), and is the first essay (Amdt5.8.1)
therein.
• Appx.1 Methodologies for the Tables is an essay in the Appendix to the Constitution
Annotated (Appx.1) and is the first essay (Appx.1) therein.
When concepts in a particular essay are discussed in another section of the Constitution Annotated, the essay will include cross-references including the relevant essay’s serial number.