Neacsu and Callister on From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources

Dana Neacsu, Columbia University; Barnard College, and Paul D. Callister, University of Missouri, Kansas City, School of Law, have published From From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources. 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) 1 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) 2 completed that transformation. Roberts cited secondary authorities 111 times in approximately 10,000 words 3 , 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.

Download the article from SSRN at the link.