Encyclopedia of the American Constitution

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Encyclopedia of the American Constitution

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Bibliographic Details

  • Title: Encyclopedia of the American Constitution
  • Editors: Leonard W. Levy, Dennis J. Mahoney and Kenneth L. Karst
  • Publisher: Cengage Gale, United States
  • Publication Dates: 1986, 1992 and 2000
  • LC Call Number: Reference Collection: KF4548 .E53 2000
  • ISBN 10: 0028648803
  • ISBN 13: 9780028648804

Table of Contents

  • Prefaces
  • List of Articles
  • Lists of Contributors
  • Encyclopedia of the American Constitution
  • Appendix 1: The Call for the Federal Constitutional Convention
  • Appendix 2: Articles of Confederation
  • Appendix 3: The Constitution of the United States
  • Appendix 4: Resolution Transmitting the Constitution to Congress
  • Appendix 5: Washington’s Letter of Transmittal
  • Appendix 6: The Birth of the Constitution: A Chronology
  • Appendix 7: Important Events in the Development of American Constitutional Law
  • Glossary
  • Indexes

Publisher Description

This 6-vol. set of the 1987 Dartmouth Medal winner includes all of the material from the original 4-vol. set and 1992 Supplement, as well as updated original articles and completely new articles covering recent concepts and court cases since 1992. New material is alphabetically integrated throughout the set. Appendices include a case index and primary documents. Among the new articles in this edition are adoption, race, and the Constitution; birthright citizenship; Clinton v. Jones; disability discrimination; hate crimes; modern militias; Violence Against Women Act; and more.The articles in the set provide comprehensive coverage of all aspects of constitutional law, as well as biographies of people who have had an impact on our government s legal framework (Supreme Court Justices, Presidents, Cabinet Members, Lawyers, and more). Judicial decisions handed down by the Supreme Court are also analyzed. Congressional laws, executive orders and other public acts that impacted our legal structure are also examined. Finally articles also cover historical periods (of the Court as well as of US Historical eras). Contributors all focused solely on the constitutional aspects of the many topics covered in this six-volume set and they are professionals who also had their own impact — lawyers, historians, and political scientists.

Prefaces

Preface (1986)

In the summer of 1787 delegates from the various states met in Philadelphia; because they succeeded in their task, we now call their assembly the Constitutional Convention. By September 17 the delegates had completed the framing of the Constitution of the United States. The year 1987 marks the bicentennial of the Constitutional Convention. This Encyclopedia is intended as a scholarly and patriotic enterprise to commemorate the bicentennial.
No encyclopedia on the Constitution has heretofore existed. This work seeks to fill the need for a single comprehensive reference work treating the subject in a multidisciplinary way.
The Constitution is a legal document, but it is also an institution: a charter for government, a framework for building a nation, an aspect of the American civic culture. Even in its most limited sense as a body of law, the Constitution includes, in today’s understanding, nearly two centuries’ worth of court decisionsinterpreting the chart er. Charles Evans Hughes, then governor of New York, made this point pungently in a 1907 speech: ‘‘We are under a
Constitution, but the Constitution is what the judges say it is.’’ Hughes’s remark was, if anything, understated. If the Constitution sometimes seems to be chiefly the product of judicial decisions, it is also what Presidents say it is-and legislators, and police officers, and ordinary citizens, too. In the final analysis today’s Constitution is the product of the whole political system and the whole history of the many peoples who have become a nation. ‘‘Constitutional law is history,’’ wrote Professor Felix Frankfurter in 1937, ‘‘But equally true is it that American history is constitutional law.’’
Thus an Encyclopedia of the American Constitution would be incomplete
if it did not seek to bridge the disciplines of history, law, and political science.
Both in identifying subjects and in selecting authors we have sought to build
those bridges. The subjects fall into five general categories: doctrinal concepts
of constitutional law (about fifty-five percent of the total words); people
(about fifteen percent); judicial decisions, mostly of the Supreme Court of
the United States (about fifteen percent); public acts, such as statutes, treaties,
and executive orders (about five percent); and historical periods (about
ten percent). (These percentages are exclusive of the appendices-printed
at the end of the final volume-and bibliographies.) The articles vary in
length, from brief definitions of terms to treatments of major subjects of
constitutional doctrine, which may be as long as 6,000 words, and articles on
periods of constitutional history, which may be even longer. A fundamental
concept like ‘‘due process of law’’ is the subject of three 6,000-word articles:
Procedural Due Process of Law (Civil), Procedural Due Process of Law
(Criminal), and Substantive Due Process of Law. In addition, there is a 1,500-
word article on the historical background of due process of law. The standard
length of an article on a major topic, such as the First Amendment, is 6,000
words; but each principal component of the amendment-Freedom of
Speech, Freedom of the Press, Religious Liberty, Separation of Church and
State-is also the subject of a 6,000-word article. There are also other,
shorter articles on other aspects of the amendment.
The reader will find an article on almost any topic reasonably conceivable.
At the beginning of the first volume there is a list of all entries, to spare the
reader from paging through the volumes to determine whether particular
entries exist. This list, like many another efficiency device, may be a mixed
blessing; we commend to our readers the joys of encyclopedia-browsing.
The Encyclopedia’s articles are arranged alphabetically and are liberally
cross-referenced by the use of small capital letters indicating the titles of
related articles. A reader may thus begin with an article focused on one
feature of his or her field of inquiry, and move easily to other articles on
other aspects of the subject. For example, one who wished to read about the
civil rights movement of the 1950s and 1960s might begin with the largescale
subject of Civil Rights itself; or with a particular doctrinal topic (Desegregation,
or Miscegenation), or an article focused on a narrower factual
setting (Public Accommodations, or Sit-Ins). Alternatively, the reader might
start with an important public act (Civil Rights Act of 1964), or with a biographical
entry on a particular person (Martin Luther King, Jr., or EarlWarren).
Other places to start would be articles on the events in particular eras
(Warren Court or Constitutional History, 1945-1961 and 1961-1977). The
reader can use any of these articles to find all the others, simply by following
the network of cross-references. A Subject Index and a Name Index, at the
end of the last volume, list all the pages on which the reader can find, for
example, references to the freedom of the press or to Abraham Lincoln. Full
citations to all the judicial decisions mentioned in the Encyclopedia are set
out in the Case Index, also at the end of the final volume.
The Encyclopedia’s approximately 2,100 articles have been written by 262
authors. Most of the authors fall into three groups: 41 historians, 164 lawyers
(including academics, practitioners, and judges), and 53 political scientists.
The others are identified with the fields of economics and journalism. Our
lawyer-authors, who represent about three-fifths of all our writers, have produced
about half the words in the Encyclopedia. Historian-authors, although
constituting only about sixteen percent of all authors, produced about onethird
of the words; political scientists, although responsible for only onesixth
of the words, wrote more than a quarter of the articles. Whether this
information is an occasion for surprise may depend on the reader’s occupation.
In addition to the interdisciplinary balance, the reader will find geographical
balance. Although a large number of contributors is drawn from the
School of Law of the University of California, Los Angeles, the Claremont
Colleges, and other institutions in California, most come from the Northeast,
including twelve from Harvard University, thirteen from Yale University, and
nine from Columbia University. Every region of the United States is represented,
however, and there are many contributors from the South (Duke
University, University of Virginia, University of North Carolina, University
of Texas, etc.), from the Midwest (University of Chicago, University of Notre
Dame, University of Wisconsin, University of Michigan, etc.), and from the
Northwest (University of Oregon, Portland State University, University of
Washington, etc.). There are several contributors from foreign countries,
including Austria, Canada, and Great Britain.
Every type of academic environment is represented among the eighty-six
colleges and universities at which the authors work. The contributors include
scholars based at large public universities smaller state colleges, Ivy League
universities, private liberal arts colleges, and religiously affiliated institutions.
Not all of the authors are drawn from academia; one is a member of Congress
and nine are federal judges. In addition, other government offices, research
institutions, libraries, newspaper staffs, and law firms are represented.
Each article is signed by its author; we have encouraged the authors to
write commentaries, in essay form, not merely describing and analyzing their
subjects but expressing their own views. On the subject of the Constitution,
specialists and citizens alike will hold divergent viewpoints. In inviting authors
to contribute to the Encyclopedia, we have sought to include a range
of views. The reader should be alert to the possibility that a cross-referenced
article may discuss similar issues from a different perspective-especially if
those issues have been the subject of recent controversy.We hope this awareness
will encourage readers to read more widely and to expand the range of
their interests concerning the Constitution.
Planning of the Encyclopedia began in 1978, and production began in
1979; nearly all articles were written by 1985. Articles on decisions of the
Supreme Court include cases decided during the Court’s October 1984 term,
which ended in July 1985. Given the ways in which American constitutional
law develops, some of the subjects treated here are moving targets. In a
project like this one, some risk of obsolescence is necessarily present; at this
writing we can predict with confidence that some of our authors will wish
they had one last chance to modify their articles to take account of decisions
in the 1985 term. To minimize these concerns we have asked the authors of
articles on doctrinal subjects to concentrate on questions that are fundamental
and of enduring significance.
We have insisted that the authors keep to the constitutional aspects of
their various topics. There is much to be said about abortion or antitrust law,
or about foreign affairs or mental illness, that is not comprehended within
the fields of constitutional law and history. In effect, the title of every article
might be extended by the phrase ‘‘. . . and the Constitution.’’ This statement
is emphatically true of the biographical entries; every author was admonished
to avoid writing a conventional biography and, instead, to write an appreciation
of the subject’s significance in American constitutional law and history.
We have also asked authors to remember that the Encyclopedia will be
used by readers whose interests and training vary widely, from the specialist
in constitutional law or history to the high school student who is writing a
paper. Not every article will be within the grasp of that student, but the vast
majority of articles are accessible to the general reader who is neither historian
nor lawyer nor political scientist. Although a constitutional specialist
on a particular subject will probably find the articles on that specialty too
general, the same specialist may profit from reading articles in other fields.
A commerce clause expert may not be an expert on the First Amendment;
and First Amendment scholars may know little about criminal justice. The
deluge of cases, problems, and information flowing from courts, other agencies
of government, law reviews, and scholarly monographs has forced constitutional
scholarship to become specialized, like all branches of the liberal
arts. Few, if any, can keep in command of it all and remain up to date. The
Encyclopedia organizes in readable form an epitome of all that is known
and understood on the subject of the Constitution by the nation’s specialist
scholars.
Because space is limited, no encyclopedia article can pretend to exhaust
its subject. Moreover, an encyclopedia is not the same kind of contribution
to knowledge as a monograph based on original research in the primary
sources is. An encyclopedia is a compendium of knowledge, a reference work
addressed to a wide variety of interested audiences: students in secondary
school, college, graduate school, and law school; scholars and teachers of
constitutional law and history; lawyers; legislators; jurists; government officials;
journalists; and educated citizens who care about their Constitution
and its history. Typically, an article in this Encyclopedia contains not only
cross-references to other articles but also a bibliography that will aid the
reader in pursuing his or her own study of the subject.
In addition to the articles, the Encyclopedia comprises several appendices.
There is a copy of the complete text of the Constitution as well as of George
Washington’s Letter of Transmittal. A glossary defines legal terms that may
be unfamiliar to readers who are not lawyers. Two chronologies will help put
topics in historical perspective; one is a detailed chronology of the framing
and ratification of the Constitution and the Bill of Rights, and the other is a
more general chronology of American constitutional history. Finally, there
are three indexes: the first is an index of court cases, with the complete
citation to every case mentioned in the Encyclopedia (to which is attached
a brief guide to the use of legal citations); the second is an index of names;
and the third is a general topical index.
For some readers an encyclopedia article will be a stopping-point, but the
articles in this Encyclopedia are intended to be doorways leading to ideas
and to additional reading, and perhaps to the reader’s development of independent
judgment about the Constitution. After all, when the American
Constitution’s tricentennial is celebrated in 2087, what the Constitution has
become will depend less on the views of specialists than on the beliefs and
behavior of the nation’s citizens.

Preface (1992)

The continuing deluge of problems and developments concerning the
Constitution makes an updating of the Encyclopedia of the American Constitution
desirable. The Supreme Court decides at least 250 cases annually,
about 150 of them with full opinions. Before the bicentennial of the ratification
of the Bill of Rights concludes, the Court will have decided about
1,500 cases since we finished the manuscript for the four-volume edition in
mid-1985. New opinions of the Court are having a substantial impact on
most of American constitutional law and the public policies that it reflects.
The Court itself is undergoing major changes in personnel. Chief Justice
Warren Burger and Justices Lewis H. Powell,William J. Brennan, and Thurgood
Marshall have retired. William H. Rehnquist now sits in the center
seat; Antonin Scalia succeeded to Rehnquist’s former position; Anthony Kennedy
became Powell’s successor; David H. Souter holds Brennan’s old chair;
and Clarence Thomas succeeds Marshall. Changes in personnel herald additional
and significant changes in constitutional law. For example, the Senate
Judiciary Committee hearings on the nomination of Robert H. Bork, in
itself a landmark event, reflected a national concern on all sides for the
integrity and impartiality of the Court and its interpretation of the Constitution.
As we finished editorial work on the Encyclopedia in 1985, the Department
of Justice intensified a broad attack on the ‘‘judicial activism’’ of the
Supreme Court, the finality of its decisions, and its incorporation doctrine,
which makes the Bill of Rights applicable to the states. Soon after, the protracted
Iran-Contra inquiries raised some of the most important constitutional
issues since Watergate. New, important, and even sensational developments
of concern to the Constitution have become almost common.
This Supplement to the Encyclopedia has enabled us to present many
topics that we had originally neglected and to cover all major developments
and decisions since 1985; it includes articles on the full range of developxiv
ments in constitutional law. Because we wanted the Supplement to be a freestanding
volume, as well as an additional volume to the original work, we
instructed contributors to introduce each article with a short background to
its topic and to write as if the Encyclopedia did not exist. In addition to
articles on concepts such as abortion, affirmative action, establishment of
religion, equal protection, and free speech, we have included analyses of
major cases. We have treated new developments conceptually, topically, biographically,
historically, and by judicial decision.
We continued our policy of getting a wide range of scholarly opinions. For
the sake of variety, generally we did not ask the authors of the original articles
to ‘‘update’’ their contributions; we sought different authors, sometimes of
differing constitutional persuasions. The Supplement is an independent reference
work.
The Supplement enables us to include articles on topics that we had omitted
from the four-volume set, either as a result of editorial neglect or because
some authors failed to produce the articles and too little time remained to
replace them. As comprehensive as the Encyclopedia is, it has gaps that we
have sought to close with this Supplement (e.g., Court-packing plans, the
Judicial Conference of the United States, original intent, constitutional remedies,
special prosecutors, entitlements, constitutional fictions, the civil
rights movement, gender rights, legal culture, law and economic theory, ratifier
intent, textualism, unenumerated rights, the Senate Judiciary Committee,
and so on). The Supplement also gave us the opportunity to treat at
greater length a variety of topics to which we originally allocated insufficient
space. Although 1,500,000 words for the four-volume set was a huge amount,
we found the publisher’s limitations on length to be too constraining. An
additional volume of over 400,000 words, which Macmillan approved for the
Supplement, gave us space to redo overbrief articles, to repair omissions,
and to update the entire work.
For the most part, the Supplement covers wholly fresh topics, not only
those omitted from the original set but those that have come to attention
since then. When we planned the Encyclopedia in the late 1970s, for example,
the subject of original intent was far less discussed than it was a
decade later. Other comparatively new topics include the relation of capital
punishment to race, the anti-abortion movement, children and the First
Amendment, critical legal studies, the right to die, vouchers, independent
counsel, the balanced budget amendment, the controversy over creationism,
Iran-Contra, ethics in government, criminal justice and technology, political
trials, the Gramm-Rudman Act, patenting the creation of life, government
as proprietor, the Attorney General’s Commission on Pornography, the Boland
Amendment, feminist theories, drug testing, joint-resolutions, constitutional
realism, the Bail Reform Act of 1984, recent appointees to the Court,
low-value speech, unenumerated rights, private discrimination, visas and
free speech, and the Rehnquist Court. The updating of old topics, covering
the period since 1985, also, of course, presents new material. We estimate
that about seventy-five percent of the entries in the Supplement consist of
new topics. Of the total 320 articles in this volume, 247 present entries not
in the original Encyclopedia. Nevertheless, any encyclopedia is merely an
epitome of knowledge, and we again labored under practical constraints on
word lengths. Space is always limited.We do not mislead ourselves or readers
by suggesting that we have managed to cover everything.
The articles in this Supplement, as in the original edition, are intended
primarily to be doorways leading to ideas and to additional reading. Thus,
all articles in this Supplement are elaborately cross-referenced to other
related articles within the same covers and to articles in the original fourvolume
edition. Cross-references are indicated by words set in small capitals.

As in the original edition, we believe readers will find any article on almost
any topic reasonably conceivable or a cross-reference to related topics. The
Supplement contains articles by 178 contributors. Most of the contributors
are academic lawyers who teach constitutional law, but other professors of
law have made contributions, as well as a few lawyers in private practice and
five federal judges. In addition many historians and political scientists are
among the contributors, as are ten deans and three associate deans. We
sought as much interdisciplinary balance as the entries themselves permitted
and, with respect to the location of the contributors, we sought geographical
balance by recruiting authors from the whole of the nation, as well as from
different sorts of institutions. The University of California, Los Angeles, continues
to be the institution with the largest number of contributors, followed
by Harvard University, University of Michigan, Yale University, University of
Minnesota, University of Southern California, Georgetown University, University
of Chicago, New York University, and Stanford University, in that
order. All together, eighty-five institutions have been represented.
Every article is signed by its author. We have encouraged the authors to
write commentaries in essay form, not merely describing and analyzing their
subjects but expressing their own views. Specialists and ordinary citizens
alike hold divergent viewpoints on the Constitution. Readers should be alert
to the likelihood that a cross-referenced article may discuss similar issues
from a different perspective, especially if the issues have been the subject
of recent controversy.

Preface (2000)

This second edition of the Encyclopedia of the American Constitution represents
the compilation of twenty years’ work. It gathers together in one
source all of the articles written for the original four-volume set published
in 1986; articles in the supplementary volume published in 1992; and new
articles on developments in the 1990s. Our initial intention was to publish a
second supplementary volume, but as publication drew near it became clear
that the combination of the original work with two supplements, each with
articles of relevance to researchers and students of particular topics, would
be unwieldy. For example, one looking for an overview of Freedom of Speech
would have had to look up articles in three separate volumes to form a complete
picture.With this second edition, all articles on a single topic are placed
together and dated, for easy retrieval in one search.
This edition contains 361 new articles by 237 authors. Some of these authors
contributed to the original Encyclopedia or Supplement I or both, but
we have sought to expand the list to include a new generation of scholars.
As before, most of the contributors are academic lawyers, yet some articles
are written by judges, practicing lawyers, historians, or political scientists.
Every article is signed by its author.We have continued to encourage writers
to use the essay form, expressing their own views as they wish.We recruited
authors with the purpose of presenting a wide range of views. For new articles
on some controversial subjects we have sought to provide contrasting
views under the same title (e.g., Same-Sex Marriage, I and II; Workplace
Harassment and Freedom of Speech, I and II).
The substantial new material of this edition focuses mainly on the constitutional
issues arising since the publication of Supplement I in 1992. During
this time, two new Justices have joined the U.S. Supreme Court: Justice Ruth
Bader Ginsburg replaced Justice Byron R. White, and Justice Stephen G.
Breyer replaced Justice Harry A. Blackmun.We have been saddened during
these years by the deaths of Chief Justice Warren E. Burger, and Justices
William J. Brennan, Jr., Thurgood Marshall, Lewis F. Powell, Jr., and Harry
A. Blackmun.
We have not only updated topics covered in earlier volumes, but also included
a great many articles on topics not previously covered. Some of these
articles represent relatively new subject matter (e.g., DNA testing and genetic
privacy, the Internet and freedom of expression, the Twenty-Seventh
Amendment). Others offer new perspectives on doctrinal or historical subjects
of longer standing (e.g., deliberative democracy, economics of affirmative
action, jury service as a political right, the Seneca Falls Convention).
During the past decade, the constitutional philosophy of the Rehnquist
Court has become more identifiable, clarified by many decisions of significant
constitutional import. Although easily labeled as ‘‘conservative,’’ the
Court has in fact been as activist as its recent predecessors in setting forth
new doctrine. Nowhere is this more evident than in the Rehnquist Court’s
rulings scaling back the ability of criminal defendants to use the writ of
habeas corpus to obtain federal judicial review, and its rulings in the area of
federalism, where expansive notions of states’ rights have cabined federal
power for the first time since the days of the New Deal. In a notable decision,
the Court refused to create a new constitutional right to die with the aid of
a physician; in another, it clearly held for the first time that people using the
public streets have a constitutional right to loiter without police interference.
In other areas of vibrant national interest, such as free speech, abortion,
voting rights, and affirmative action, the Court has continued generally along
the paths of its predecessors, although often reshaping the precise contours
of controlling doctrine.
Although the courts remain the primary subject of constitutional analysis,
we have broadly defined the subject of this Encyclopedia to include legislative
developments on issues of constitutional import (e.g., welfare rights);
historically significant incidents that evaded judicial review (e.g., the impeachment
of President William J. Clinton); and developments in the realm
of theory (e.g., critical race theory). Such an approach corresponds to a recently
expanded body of scholarly work challenging the view that the judiciary
is the sole interpreter of the Constitution. The original volumes of the
Encyclopedia shared this broad definition of constitutional law.
To encourage browsing we have continued the original practice of incorporating
extensive cross-referencing into the articles. A cross-reference is
indicated by small capitals, enabling the reader to know where he or she can
turn to discover more on related topics. Often the reader who follows these
signs will find the issues discussed from a different perspective. With only a
handful of exceptions, this second edition’s coverage of topics ended in mid-
1999, when we ‘‘closed the book’’ at the end of the Supreme Court’s October
1998 term.
We are grateful to Elly Dickason and Brian Kinsey of Macmillan Reference
for their unfailing help throughout the planning and the editorial process
that produced this second edition. We are indebted as well to the numerous
authors who contributed to this project; both their patience and
insight were requisite for the project’s fulfillment. Finally, we owe everything
to our loving wives, Elyse Levy, Smiley Karst, and Melissa Bomes, for their
support and encouragement throughout the long years of editing this Encyclopedia.

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