High Court Justices Go Digital to Access Founding-Era Documents

Tony Mauro

07-25-2008

U.S. Supreme Court justices on both sides in the landmark D.C. v. Heller gun rights case resorted to original documents in making their case about the meaning of the Second Amendment. But they used a little-known digital resource to get there, a project whose mission is to digitize thousands of Founding-era documents that shed light on the original meaning of the Constitution.

The Constitutional Sources Project, which launched publicly last September, has digitized and made freely available online more than 11,000 historical documents relating to the Constitution and the amendments. Among them are at least 20 documents cited by majority and dissenting opinions in Heller, says the project's co-founder and executive director Lorianne Updike.

"We were very pleased to be a resource for the highest court in the land," Updike says.

The Court's opinions don't actually cite the project's Web site as the source, but Updike has a pretty good idea that it's where at least some of the documents were found by the justices and their clerks. She actually "trained" Justices Antonin Scalia, Stephen Breyer and Samuel Alito Jr. on navigating the site, which enables them to click on different clauses of the Constitution and find relevant documents.

Each document is in searchable digital form, but also included is a scanned version of the original, so it can be viewed in its original form as well.

The project is housed at Winston & Strawn's Washington, D.C., offices, where partner Gene Schaerr was one of the founders and creators of the project. More than 20 years ago when he clerked at the Supreme Court, Schaerr and fellow clerk Randall Guynn -- now with Davis Polk & Wardwell in New York -- had a hard time tracking down original documents relating to the First Amendment's establishment clause for research they were doing. Ever since, Schaerr has worked to find ways of getting as many Founding documents online as possible.

At first, the idea was to partner with the National Archives or Library of Congress as well as a university, but that was "way too bureaucratic," Updike says. So a smaller group was formed, and the project was begun quietly in 2005. Updike has raised $1.6 million from law firms, foundations and small donors, who can "adopt a document" online. Word has spread; last month the Web site attracted its 1 millionth visitor.

"The overriding purpose is to expand the public understanding of the Constitution and its history," says Schaerr, who heads the firm's appellate and critical motions practice.

When D.C. v. Heller arrived at the Supreme Court, lawyers for both sides approached the project for quick access to documents they knew would be important to the case.

Alan Gura, who argued and won the case against D.C.'s handgun ordinance, called the project "a powerful source" that helped him track down helpful documents, according to a release from the project. Thomas Goldstein of Akin Gump Strauss Hauer & Feld, part of the team that defended the District, says the project was important in the effort to "get the constitutional history right."

Updike is glad that both sides used the Web site, because it underscores that the project has no hidden agenda or ideological bent. She is concerned that parties using the site will "cherry-pick" documents that help their argument, and she is working on ways to rank documents in terms of their reliability and relevance.

For now, she says, the best guarantee that the documents won't be misused is that "we make sure everyone has access to the same thing." She adds, "The project has taken on a life of its own."