CHAPTER 3 UNITED STATES CONSTITUTIONAL LAW RESEARCH
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Chapter 3 UNITED STATES CONSTITUTIONAL LAW RESEARCH
A. OVERVIEW OF THE LEGISLATIVE SYSTEM
Legislative materials are the second form of primary authority. As discussed in Chapter 2, the main goal of the researcher is to find primary authority to support the client's position. The constitutions and statutes on both the federal and state level constitute such authority.
Federal legislative material is based on the hierarchy of law. This law consists of three tiers. Article 6 of the United States Constitution declares that the Constitution is the supreme law of the land. Thus, the Constitution becomes the first tier of legislative materials. However, the United States Constitution also enumerates certain powers to Congress in Article 1, Section 8. Using these enumerated powers, Congress passes statutes. This type of legislation forms the second tier. Congress also has the authority to create administrative agencies to make the day-to-day rules and regulations that implement the statutes. These agencies' rules and regulations become the third tier.
HIERARCHY OF AUTHORITY
Constitution
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Statutes
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Administrative Rules and Regulations
In addition to the legislative enactments, the Constitution implicitly provides a check and balance system that includes the judicial branch of government. This means that the United States Supreme Court and the other created courts have the power to interpret the constitutional, statutory, and administrative rulings.
All of this law has a tremendous impact on legal research. To do a thorough job of legal research, the researcher must find the law on all three tiers as well as any judicial opinions that interpret each of these laws. Due to the volume of material, the beginner may become overwhelmed and conclude that this must be the most difficult form of legal research. However, once the research process becomes more familiar, the researcher begins to understand that researching legislative materials is a relatively straightforward procedure.
Because the United States Constitution is the supreme law of the land, our discussion will begin at this point.
B. CONSTITUTIONAL LAW LOCATION METHODS
The initial question that may perplex the researcher is why a constitutional provision is needed. It is apparent that one would try to find such a provision if the client's problem raised a direct constitutional issue. However, a less obvious reason is that the researcher may need to find the authority for a statute or administrative rule or regulation. Whenever there is a question of legislative or administrative authority, the researcher should consider the possibility that the authority is based on a constitutional provision.
There are many treatises, law review articles, and other secondary sources that provide a wealth of information about the historical background of the Constitution and its provisions. The researcher simply needs to be aware that such resources are readily available through the card catalog of any library. However, the text of this section will focus on the other research tools for finding the appropriate constitutional provision and interpretive case law.
The text of the United States Constitution may be found in the codes for federal statutory materials. For example, it may be found in the official publication, the United States Code (U.S.C.). However, the major emphasis of this chapter will be placed on the two unofficial annotated codes, the United States Code Annotated (U.S.C.A.) (published by Thomson-West) and the United States Code Service (U.S.C.S.) (published by LexisNexis), because they are the publications that the researcher most frequently uses due to the research aids that are available and the annotation of judicial opinions.
All three of these codes are organized in the same manner. The constitutional provisions are listed in order of article and section number or amendment numbers. The statutory volumes are arranged according to subject matter and statutes are placed in 50 subject titles. However, the research procedure for finding a provision is the same for all of the codes. Because there are no references to interpretive cases in the U.S.C., the unofficial annotated codes are more commonly used.
There are several important differences between the two unofficial codes because of the different philosophies between West and LexisNexis. West purports to provide comprehensive coverage of all federal and state cases. Also, West will refer the researcher to its publications such as the digests, encyclopedias, practice books, and form books. In contrast, LexisNexis provides fewer cases but longer abstracts and will refer the researcher to the Total Client Service Library which contains mostly secondary authority.
Does the subject matter raise a constitutional issue; is there a statute that implements the Constitution; or is the authority of the administrative agency questioned? If so, use one of the following methods:
1. Descriptive Word Method: Use the key words and phrases in the General Index of the constitutional volumes.
2. Topic Method: Go to the volume on that subject and then use the specific Individual Subject Index. Note: There are no cross references in the codes which lead the researcher to the constitutional provision.
Do you have a case that interprets a constitutional provision and you want more cases on this point? If so, use one of the following methods:
3. Look under the Index of Notes of Decision in the U.S.C.A. or U.S.C.S. for the constitutional provision you are researching and find the most appropriate note. Then check the bound volumes, pocket parts, and pamphlet supplements, if any.
4. Obtain the topic and key number from the "one good case" and use it in the various federal digests.
The following example will demonstrate how a constitutional problem can be researched when a direct constitutional issue is involved.
EXAMPLE...
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