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 decisions interpreting the charter. 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 large- scale subject of Civil Rights itself; or with a particular doctrinal topic (De- segregation, 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 Earl Warren). 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 one- third of the words; political scientists, although responsible for only one- sixth 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.