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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 Thur- good 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 developments in constitutional law. Because we wanted the Supplement to be a free- standing 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 Bo- land 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 four- volume 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.