The Art of the Con (Law)

By Aycock, Anthony | Information Today, March 2016 | Go to article overview

The Art of the Con (Law)


Aycock, Anthony, Information Today


Same-sex marriage is the most potent civil rights issue since that of the days of Rosa Parks, Medgar Evers, and Martin Luther King Jr. It is also the most fractious. People on both sides of the divide have wide-ranging, impassioned arguments. On June 26, 2015, the U.S. Supreme Court legally settled those arguments, ruling that marriage is a right that must be extended to everyone in all 50 states, including same-sex couples.

Before this ruling, same-sex marriage was legal in 37 states and the District of Columbia, but it was banned everywhere else. According to Gallup polls, public opinion has shifted significantly over the years, from 27% of Americans approving of same-sex marriage in 1996 to 60% in 2015. And with state governments in open conflict, we needed to hear from the nation's highest court. The ruling proceeded from a single question: Are bans on same-sex marriage constitutional?

In some ways, the U.S. Constitution is similar to the Bible. Both are centuries-old documents with multiple authors who worked under a system of values we struggle to re-create. Both were assembled by committees--the Constitution by the Founding Fathers, the Bible by the early Christian church. Both influenced, and were influenced by, other texts of their eras. Both give rise to different, sometimes warring, interpretations. And both have passages that can be twisted to condone nearly anything.

Americans look to the Constitution for the answers to all our problems as a nation. It is important, then, to know precisely what it says. Equally important is knowing how to navigate the 200-plus years of analysis and opinion surrounding the document. Here, then, is a quick guide to the best information out there on constitutional issues.

Law Sources

Primary sources are the law--the statutes, court opinions, and regulations that order U.S society. Secondary sources are books, articles, websites, and other documents that discuss or analyze the law.

* Legal Information Institute (law.cornell.edu)--When it comes to constitutional law (con law), primary sources include, of course, the Constitution itself. There are any number of places online where you can read it. I recommend this one, which has both annotated and unannotated versions. Annotations are useful for understanding all the issues, but they can overwhelm you. The single sentence of the 11th Amendment--"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State"--has 35 paragraphs of annotations.

* FindLaw (findlaw.com)--The Constitution has little relevance without the case law interpreting it. The best source of U.S. case law online is FindLaw. The site includes Supreme Court decisions that date to 1760, when Thomas Jefferson was still a teenager. The cases are browsable by year and U.S. Reports volume number (see Chapter 1 of my book, The Accidental Law Librarian, for more about this) and are searchable by party name, case title, citation, full text, and docket number. There is also an archive of case summaries from September 2000 to the present. The federal circuit courts get involved in constitutional issues too, and FindLaw has the text of these cases dating to the mid-1990s.

Constitutional History

Many Americans have only a scant understanding of the Constitution's history. They know it was written by the Founding Fathers back in the 1700s after the Revolutionary War. However, the details of its composition, the triumphs and failures of the Founding Fathers, and the realization that this was an incendiary document that created a form of government without parallel on Earth tend to be lost, which is a pity. The history of the Constitution is fascinating, as these sources will confirm.

* The U.S. Constitution (history . …

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