Dana Neacsu (Columbia University in the City of New York) and Paul D. Callister (University of Missouri at Kansas City – School of Law) have posted From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources on SSRN. Here is the abstract:
For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft’s opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice John Roberts’ opinion in Trump v. Slaughter (2026) completed that transformation. Roberts cited secondary authorities 111 times in approximately 10,000 words, employing historians, documentary editions, biographies, constitutional commentators, presidential papers, law review articles, and political writings not merely to illuminate constitutional meaning but to construct it. Secondary sources became constitutional actors.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum