Constitution Annotated: A Research Guide

"Constitution Annotated: A Research Guide.

A research guide on the Constitution of the United States of America: Analysis and Interpretation ("Constitution Annotated") and related constitutional law resources.

Consistent with the mission of the Library of Congress’s Congressional Research Service (CRS), the Constitution of the United States of America: Analysis and Interpretation; ("Constitution Annotated") provides authoritative, objective, and non-partisan legal analysis of Supreme Court case law and, where relevant, historical practices that have defined the text and interpretation of the Constitution. In publication for over 100 years, the Constitution Annotated provides essential information to Congress and the public at large about the Constitution's history, meaning, and interpretation.

This research guide is dedicated to helping the general reader navigate and understand the Constitution Annotated, whether they are seasoned attorneys, university students writing a term paper, or anyone interested in the Constitution and how it relates to current issues...:
Constitution Annotated 

The Modes of Constitutional Analysis: Judicial Precedent (Part 4)

"This Legal Sidebar Post is the fourth in a nine-part series that discusses certain “methods” or “modes” of analysis that the Supreme Court has employed to determine the meaning of a provision within the Constitution. (For additional background on this topic and citations to relevant sources, please see CRS Report R45129, Modes of Constitutional Interpretation).

The Supreme Court’s prior decisions on questions of constitutional law are the most commonly cited source of the Constitution’s meaning. For most Justices, if not all, judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts. Although the Court routinely purports to rely upon precedent, iit is unclear how often precedent has actually constrained the Court’s decisions because the Justices have latitude in how broadly or narrowly they choose to construe their prior decisions.

In some cases, however, a single precedent may play a particularly prominent role in the Court’s decisionmaking. For example, a plurality of Justices relied on Roe v. Wade as controlling precedent in their opinion in Planned Parenthood v. Casey. In that case, the plurality reaffirmed Roe’s holding that a woman has a protected liberty interest in terminating her pregnancy prior to fetal viability, stating that the essential holding of Roe “should be retained.” Another example of the heightened role that precedent can play in constitutional interpretation is the Court’s decision in Dickerson v. United States. That case addressed the constitutionality of a federal statute governing the admissibility of statements made during police interrogation, a law that functionally would have overruled the Court’s 1966 case Miranda v.Arizona. In striking down the statute, the majority declined to overrule Miranda, noting that the 1966 case had “become embedded in routine police practice to the point where the warnings have become part of our national culture.”

More often, the Court reasons from the logic of several precedents in rendering its decisions. An example is Arizona State Legislature v. Arizona Independent Redistricting Commission, which held that the voters of Arizona could remove from the state legislature the authority to redraw the boundaries for legislative districts and vest that authority in an independent commission. In so holding, the Court examined the Elections Clause, which states that the “Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The Court determined that the term “Legislature” encompassed the voters of a state making law through a referendum. In reaching this determination, the Court relied on three cases from the early twentieth century to support a more expansive view of the term “Legislature.” The Court described one of these cases from 1916, Ohio ex rel.Davis v. Hildebrant, as holding that a state referendum was “part of the legislative power” and could be “exercised by the people to disapprove the legislation creating congressional districts.."
Constitutional Analysis 

The Modes of Constitutional Analysis: Original Meaning (Part 3)

"This Legal Sidebar Post is the third in a nine-part series that discusses certain “methods” or “modes” of analysis that the Supreme Court has employed to determine the meaning of a provision within the Constitution. (For additional background on this topic and citations to relevant sources, please see CRS Report R45129, Modes of Constitutional Interpretation)

Whereas textualist approaches to constitutional interpretation focus solely on a document’s text, originalist approaches consider the Constitution’s meaning as understood by at least some segment of the populace at the time of the Founding. Though this method has generally been called “originalism,” constitutional scholars have not reached a consensus on what it means for a judge to adopt this methodology for construing the Constitution’s text. Disagreements primarily concern which sources scholars should consult when determining the Constitution’s “fixed meaning.” Originalists, however, generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other interpreters) is to construct this original meaning.

For many years, some prominent scholars (such as Robert Bork) argued that in interpreting the Constitution, one should look to the original intent of the people who drafted, proposed, adopted, or ratified the Constitution to determine what those people wanted to convey through the text. According to this view, original intent may be found in sources beyond the text, such as debates in the Constitutional Convention or the Federalist Papers. For example, in Myers v. United States, Chief Justice William Howard Taft, writing for the majority, held the President did not need legislative approval to remove an executive branch official who was performing a purely executive function. The Court sought the original meaning of the President’s removal power by looking at English common law, the records of the Constitutional Convention, and the actions of the first Congress, among other sources. Relying on these various sources, in his opinion for the Court, Chief Justice Taft wrote that “the debates in the Constitutional Convention indicated an intention to create a strong Executive.” Notably, in Myers the Court did not look at sources that would likely indicate what ordinary citizens living at the time of the Founding thought about the President’s removal power>

Over the course of Justice Antonin Scalia’s nearly thirty-year tenure on the Supreme Court, he and several prominent scholars explained that, as originalists, they were committed to seeking to understand the Constitution’s original public meaning. This method considers the plain meaning of the Constitution’s text as it would have been understood by the general public, or a reasonable person, who lived at the time the Constitution was ratified. This approach has much in common with textualism, but is not identical. The original public meaning approach to understanding the Constitution is not based solely on the text; rather, it draws upon the text’s original public meaning as a broader guide to interpretation.."
Constitutional Analysis 

The Modes of Constitutional Analysis: Textualism (Part 2)

"This Legal Sidebar Post is the second in a nine-part series that discusses certain “methods” or “modes” of analysis that the Supreme Court has employed to determine the meaning of a provision within the Constitution. (For additional background on this topic and citations to relevant sources, please see CRS Report R45129, Modes of Constitutional Interpretation.)

Textualism is a mode of legal interpretation that focuses on the plain meaning of a legal document’s text. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time the terms were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. In other words, they are concerned primarily with the plain, or popular, meaning of the Constitution’s text. Textualists are generally unconcerned with a decision’s practical consequences; rather, they are wary of the Court acting to refine or revise constitutional texts.

The Justices frequently rely on the text in conjunction with other methods of constitutional interpretation. The Supreme Court will often look to the text first before consulting other potential sources of meaning to resolve textual ambiguities or to answer fundamental questions of constitutional law not addressed in the text. For example, in Trop v. Dulles, a plurality of the Court held that the Eighth Amendment prohibited the government from revoking the citizenship of a U.S. citizen as a punishment. When determining that a punishment that did not involve physical mistreatment violated the Constitution, the Court first looked briefly to the Eighth Amendment’s text, emphasizing that the “exact scope” of the phrase “cruel and unusual punishment” had not been “detailed by [the] Court.” The plurality then turned to other modes of interpretation, such as moral reasoning and historical practices, in deciding the case.

The Trop plurality’s use of textualism in combination with other interpretive methods is distinguishable from a stricter textualist approach espoused most famously by Justice Hugo Black. Consistent with his view that those interpreting the Constitution should look no further than the literal meaning of its words, Justice Black contended that the First Amendment’s text—which states “Congress shall make no law . . . abridging the freedom of speech, or of the press”—absolutely forbids Congress from enacting any law that would curtail these rights..."
Constitutional Analysis  

The Modes of Constitutional Analysis: An Introduction (Part 1)

"This Legal Sidebar Post is the first in a nine-part series that discusses certain “methods” or “modes” of analysis that the Supreme Court has employed to determine the meaning of a provision within the Constitution. (For additional background on this topic and citations to relevant sources, please see CRS Report R45129, Modes of Constitutional Interpretation.)

Early in the United States’ history, the Supreme Court began exercising the power it is most closely and famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison, the Supreme Court asserted and explained the foundations of its power to review the constitutionality of federal governmental action. If a challenged governmental action is unconstitutional, the Court may strike it down, rendering it invalid. When performing the function of judicial review, the Court must necessarily ascertain the meaning of a given constitutional provision before applying its interpretation of the Constitution to the particular governmental action under review.

The need to determine the Constitution’s meaning through the use of methods of constitutional interpretation and, perhaps, construction, is apparent from the document’s text itself. While several parts of the Constitution do not lend themselves to much debate as to their intended meaning, much of the Constitution is broadly worded, leaving ample room for the Court to interpret its provisions before applying them to particular legal and factual circumstances. For example, the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment’s text alone does not squarely resolve whether the “right of the people to keep and bear arms” extends to all citizens or merely is related to, or perhaps conditioned on, service in a militia. This ambiguity prompted the closely divided 2008 SupremeCourt decision that ruled in favor of the former interpretation.

The Constitution’s text is also silent on many fundamental questions of constitutional law, including questions that its drafters and those ratifying the document could not have foreseen or chose not to address. For example, the Fourth Amendment, ratified in 1791, does not on its face resolve whether the government may perform a search of the digital contents of a cell phone seized incident to arrest without first obtaining a warrant. Thus, interpretation is necessary to determine the meaning of ambiguous constitutional provisions or to answer fundamental questions left unaddressed by the drafters. Some commentators have also noted the practical need for constitutional interpretation to provide principles rules, or standards to govern future conduct of regulated parties, as well as political institutions, branches of government, and regulators..."
Constitutional Analysis 

What is the Constitution Annotated?

"For over a hundred years, the Constitution Annotated—officially The Constitution of the United States of America: Analysis and Interpretation—has served as Congress’s Constitution of record. A Senate document, the Constitution Annotated surveys and illuminates how the Supreme Court of the United States has interpreted every provision of the Constitution throughout the nation’s history.

Because the Constitution shapes congressional oversight and legislative actions, Congress has ensured its availability to members of Congress from the Republic’s earliest days. Beginning in 1795, “for the more general promulgation of the laws of the United States” (ch. 50, 1 Stat. 443 (1795)) Congress required “a complete edition of the laws of the United States, comprising the constitution” and other laws of the land, to be collected and printed. On March 3, 1797, Congress passed legislation (ch. 27, 1 Stat. 517) to print a personal copy of the above-mentioned collection for each member. By the 1830s, these copies were indexed so that members could quickly locate relevant provisions. Lists of Supreme Court decisions interpreting constitutional provisions were featured in copies of the Constitution that Congress provided to members in 1896. By the turn of the century, the length of these lists of decisions led to another innovation—a Constitution annotated (50 Cong. Rec. 197 (1913)) with explanations of Supreme Court decisions that interpreted constitutional provisions. This annotated version proved popular not only with Congress but also with the general public. Responding to public demand, Congress provided for the publication of additional copies of the annotated Constitution so they could be distributed to federal courts, depository libraries, and sold to the public. This version of the document has evolved into today’s hard-bound Constitution Annotated, which is published every 10 years with a supplement insert issued every two years containing cumulative updates. The next hard-bound edition, which has grown to almost three thousand pages, is scheduled to be published in 2022.

In 1970, Congress charged the Librarian of Congress with maintaining the Constitution Annotated, and the Librarian, in turn, has delegated this responsibility to the Congressional Research Service (CRS). Consistent with CRS’s mission, the Constitution Annotated (or CONAN) provides Congress and the general public with authoritative, objective, and nonpartisan information on the Constitution..."
Constitution Annotated 

Appointment and Confirmation of Executive Branch Leadership: An Overview

"The Constitution divides the responsibility for populating the top positions in the executive branch of the federal government between the President and the Senate. Article II, Section 2 empowers the President to nominate and, by and with the advice and consent of the Senate, to appoint the principal officers of the United States, as well as some subordinate officers.

These positions are generally filled through the advice and consent process, which can be divided into three stages:
1. The White House selects and clears a prospective appointee before sending a formal nomination to the Senate.
2. The Senate determines whether to confirm a nomination. For most nominations, much of this process occurs at the committee level.
3. The confirmed nominee is given a commission and sworn into office, after which he or she has full authority to carry out the duties of the office.

The President may also be able to fill vacancies in advice and consent positions in the executive branch temporarily through other means. In some cases, the President may be able to designate an official to serve in a vacant position on a temporary basis under the Federal Vacancies Reform Act or under statutory authority specific to the position. Alternatively, if circumstances permit and certain conditions are met, the President could choose to give a recess appointment to an individual. Such an appointment would last until the end of the next session of the Senate. In practice, recess appointments have become less common in recent years.

Congress has selectively included certain types of statutory provisions when establishing specific executive branch positions. These provisions include those that require appointees to have specified qualifications, set fixed terms of office, limit the circumstances under which the President can remove an officeholder, specify how the chair of a collegial board or commission will be selected and may be removed, and allow an incumbent to remain in office past the end of a term until a successor is appointed (also referred to as a holdover provision). Although these types of provisions may be found in the establishing statutes for a variety of positions, they are particularly common for members of regulatory and other collegial boards and commissions. In some cases, these types of provisions have influenced the dynamics of the Senate confirmation process. They may also be factored into the selection and vetting process in the Administration..."
Executive Branch Leadership 

Presidential Disability Under the TwentyFifth Amendment: Constitutional Provisions and Perspectives for Congress

"Sections 3 and 4 of the Twenty-Fifth Amendment to the U.S. Constitution provide for presidential disability or inability.

Section 3 of the amendment sets the procedure whereby a President may declare himself or herself “unable to discharge the powers and duties” of the office by transmitting a written declaration to this effect to the President pro tempore of the Senate (President pro tem) and the Speaker of the House of Representatives (Speaker). For the duration of the disability, the Vice President discharges the President’s powers and duties as Acting President. When the President transmits “a written declaration to the contrary” to the President pro tem and the Speaker, he or she resumes the powers and duties of the office. Section 3 is intended to cover either unanticipated disability, such as injury or illness, or anticipated disability, such as medical treatment. It has been activated three times under circumstances in which the President underwent general anesthesia for medical treatment. It was informally implemented by President Ronald Reagan in 1985 and was formally implemented twice by President George W. Bush, in 2002 and 2007, under similar circumstances.

Section 4 provides for instances of contingent presidential disability. It was intended by the Twenty-Fifth Amendment’s authors to provide for cases in which a President was unable or unwilling to declare a disability. In these circumstances, the section authorizes the Vice President and a majority of either the Cabinet, or such other body established by law (a presidential disability review body), acting jointly, to declare the President to be disabled. When they transmit a written message to this effect to the President pro tem and the Speaker, the Vice President immediately assumes the powers and duties of the office as Acting President.

If the President, at a time of his choice, transmits a written message to the President pro tem and the Speaker that no disability exists, he or she resumes office. The Vice President and a majority of the Cabinet or disability review body may, however, contest this finding by a written declaration to the contrary to the aforementioned officers, delivered within four days of the President’s declaration. Congress then decides the question, assembling within 48 hours if it is not in session. If Congress decides by a two-thirds vote of both houses that the President is unable to discharge the duties of the office, the Vice President continues as Acting President until the disability is resolved. If the two-thirds margin is not obtained, or if Congress is in session at the time but does not vote on the question within 21 days of receiving the requisite declaration, then the President resumes the powers and duties of the office. Similarly, if Congress is not in session at the time, and assembles as required by Section 4, but does not vote within 21 days of the day on which it is required to assemble, then the President resumes the powers and duties of the office..."
Twenty Fifth Amendment 

Police Reform and the 116th Congress: Selected Legal Issues

"Nationwide protests during the spring and summer of 2020 related to police use of force have prompted calls for increased congressional regulation of federal, state, and local law enforcement.There are an array of legal issues related to federal regulation of law enforcement, including the scope of Congress’s constitutional authority to legislate on law enforcement reform, current federalregulation of law enforcement, and various questions raised by reform proposals introduced in the 116th Congress.

 Congress has extensive power to regulate federal law enforcement. However, federalism principles embodied in the Constitution place limits on Congress’s power to regulate state and local police—an issue that the Constitution generally entrusts to the states.Congress, however, possesses some authority to regulate state and local law enforcement.Two primary tools Congress may use to act in this area are statutes designed to enforce the protections of the Fourteenth Amendment and legislation requiring states to take specified action in exchange for federal funds disbursed under the Spending Clause.

Legislating within the scope of its enumerated powers, Congress has enacted multiple statutes that regulate federal, state, and local law enforcement. Key existing legal authorities related to federal regulation of law enforcement include Department of Justice (DOJ) civil enforcement against patterns and practices of unconstitutional policing, laws imposing civil and criminal liability for officer misconduct, and grant conditions designed to spur state and local compliance with federal policies. Federal courts have supplemented these statutory authorities with certain judicially created doctrines defining the contours of liability for police misconduct..."
Police reform 

Congress and Law Enforcement Reform: Constitutional Authority

"Nationwide protests in response to the publication of video footage of a Minneapolis police officer pressing his knee into the neck of George Floyd leading to his death have generated renewed interest in the issue of reforming the policing practices of state and local officials. As discussed in more detail in this companion sidebar, several existing federal laws seek to prevent and redress constitutional violations by state and local law enforcement officials. However, because the Constitution generally grants states the authority to regulate issues of local concern—which includes policing and criminal law—Congress is limited in its ability to legislate on matters related to state and local law enforcement—limits that may inform any new laws Congress seeks to enact on this evolving issue. This Sidebar begins with an overview of Congress’s authority to enact legislation and the limits on those powers. It then discussesin more detail two of the enumerated powers—congressional powers that are found within the Constitution—that may be most relevant when Congress legislates on matters relating to state and local law enforcement..."
Law enforcement reform

Impeachment and Removal

"The impeachment process provides a mechanism for removal of the President, Vice President, and other “civil Officers of the United States” found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places the responsibility and authority to determine whether to impeach an individual in the hands of the House of Representatives. Should a simple majority of the House approve articles of impeachment specifying the grounds upon which the impeachment is based, the matter is then presented to the Senate, to which the Constitution provides the sole power to try an impeachment. A conviction on any one of the articles of impeachment requires the support of a two-thirds majority of the Senators present.

Should a conviction occur, the Senate retains limited authority to determine the appropriate punishment. Under the Constitution, the penalty for conviction on an impeachable offense is limited to either removal from office, or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.” Although removal from office would appear to flow automatically from conviction on an article of impeachment, a separate vote is necessary should the Senate deem it appropriate to disqualify the individual convicted from holding future federal offices of public trust. Approval of such a measure requires only the support of a simple majority.

 Key Takeaways of This Report

 The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal “civil officers” upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors.
 A simple majority of the House is necessary to approve articles of impeachment.
 If the Senate, by vote of a two-thirds majority, convicts the official on any article of impeachment, the result is removal from office and, at the Senate’s discretion, disqualification from holding future office.
 The Constitution does not articulate who qualifies as a “civil officer.” Most impeachments have applied to federal judges. With regard to the executive branch, lesser functionaries—such as federal employees who belong to the civil service, do not exercise “significant authority,” and are not appointed by the President or an agency head—do not appear to be subject to impeachment. At the opposite end of the spectrum, it would appear that any official who qualifies as a principal officer, including a head of an agency such as a Secretary, Administrator, or Commissioner, is likely subject to impeachment.
 Impeachable conduct does not appear to be limited to criminal behavior. Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.
 The House has impeached 19 individuals: 15 federal judges, one Senator, one Cabinet member, and two Presidents. The Senate has conducted 16 full impeachment trials. Of these, eight individuals—all federal judges—were convicted by the Senate..."
Impeachment and removal

Congress’s Authority to Influence and Control Executive Branch Agencies

"The Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created. Even so, the Supreme Court has generally recognized that Congress has broad constitutional authority to establish and shape the federal bureaucracy. Congress may use its Article I lawmaking powers to create federal agencies and individual offices within those agencies, design agencies’ basic structures and operations, and prescribe, subject to certain constitutional limitations, how those holding agency offices are appointed and removed. Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as well as directly counteract, through later legislation, certain agency actions implementing delegated authority.

The most potent tools of congressional control over agencies, including those addressing the structuring, empowering, regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented to the President for signature). The constitutional process to enact effective legislation requires the support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President’s veto..".
Congress authority

Modes of Constitutional Interpretation

"When exercising its power to review the constitutionality of governmental action, the Supreme Court has relied on certain “methods” or “modes” of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional interpretation..."
Constitutional interpretations

Constitution Annotated

"The Constitution of the United States of America: Analysis and Interpretation (popularly known as the Constitution Annotated) contains legal analysis and interpretation of the United States Constitution, based primarily on Supreme Court case law. This regularly updated resource is especially useful when researching the constitutional implications of a specific issue or topic. TheFeatured Topics and Cases page highlights recent U.S. Supreme Court decisions that demonstrate pivotal interpretations of the Constitution's provisions..."
Constitution annotated

26th Amendments

"Passed by Congress March 23, 1971, and ratified July 1, 1971, the 26th amendment granted the right to vote to American citizens aged eighteen or older..."
Read more at the Charters of Freedom...
26th Amendment

Constitution of the United States: Annotated

"The Constitution of the United States of America: Analysis and Interpretation (popularly known as the Constitution Annotated) contains legal analysis and interpretation of the United States Constitution, based primarily on Supreme Court case law..."
Constitution annotated

Access to Government Information In the United States
"The U.S. Constitution makes no specific allowance for any one of the three branches of the federal government to have access to information held by the others. No provision in the U.S. Constitution expressly establishes a procedure for public access to government information.

Congress has legislated various public access laws. Among these laws are two records access statutes,
• the Freedom of Information Act (FOI Act or FOIA; 5 U.S.C. § 552), and
• the Privacy Act (5 U.S.C. § 552a),
and two meetings access statutes,
• the Federal Advisory Committee Act (FACA; 5 U.S.C. App.), and
• the Government in the Sunshine Act (5 U.S.C. § 552b).

The American separation of powers model of government may inherently prompt interbranch conflicts over the accessibility of information. These conflicts are neither unexpected nor necessarily destructive. Although there is considerable interbranch cooperation in the sharing of information and records, such conflicts over access may continue on occasion.

This report offers an overview of the four information access laws noted above, and provides citations to additional resources related to these tools."

Constitutional Limits on Hate Crime Legislation
"Federal and state legislators recognize the special concerns and effects of hate
crimes. Although there is some federal legislation in place, many states have
enacted some form of ethnic intimidation law or bias-motivated sentence-enhancement factors in attempts to curtail hate crimes. Several United States Supreme Court cases provide the framework in which states must legislate to ensure the constitutionality of hate crime legislation. After these landmark cases, the real questions for states involve identifying permissible ways to curtail hate crimes without infringing on any constitutionally protected rights. On the federal level, in light of U.S. Supreme Court cases, the question remains as to what extent Congress can broaden the classes of individuals subject to hate crime legislation. This report discusses constitutional considerations facing both individual states and Congress in enacting hate crime legislation."