Tar Heel of the Week: UNC professor tackles constitutional questions

Once a decade, a group within the Library of Congress reworks the annotated version of the U.S. Constitution, a volume thousands of pages long that details every court ruling affecting constitutional law.

This year, historic rulings including the recent one legalizing gay marriage will make their way into the annotations. Also this year, for the first time, the researchers who are working on it decided to bring in outside help. They called on UNC-Chapel Hill law professor Michael Gerhardt.

Gerhardt is no stranger to Washington, D.C. The constitutional law expert served as an adviser during the confirmation hearings of five of the nine current U.S. Supreme Court justices. He has also been an adviser to several administrations and to Congress on issues as diverse at the Affordable Care Act and the impeachment proceedings during the Clinton era.

“When we decided to seek outside consultation on the revisions of this public document, professor Gerhardt’s knowledge of Congress, constitutional law and history made him an excellent choice,” says Karen Lewis, assistant director for the American Law Division of the Congressional Research Service.

William Marshall, a fellow UNC-CH law professor who served as deputy counsel to President Bill Clinton, says Gerhardt’s breadth of knowledge and ability to be nonpartisan make him a perfect choice for this and other national roles.

“He’s known for being very even-handed and fair in his approach to constitutional issues,” Marshall says.

Scholarly path

Gerhardt grew up in Alabama, and was a child as the South struggled with the protests and violence of the civil rights era.

In his youth, he saw landmark civil rights legislation passed and a president brought down by the Watergate proceedings. He also saw the ongoing rivalry between then-Gov. George Wallace and federal judge Frank Johnson over desegregation and other issues.

All helped form his interest in government, and respect for its power to affect change.

“Seeing all that, I developed a fair degree of confidence in what government can do,” he says. “It doesn’t mean I can’t be skeptical of government, but those events formed my understanding of it.”

He studied history and political science at Yale University, with an eye toward going to law school, though he earned a master’s degree in economics first – a background that would later help him deal with tricky government issues such as the debt crisis.

Once in law school, his focus turned to constitutional law, particularly separation of powers.

His choice of specialty led him to academia rather than a law practice. He taught at Wake Forest University, and then at the College William and Mary before moving to Chapel Hill, where his wife is also a law professor.

Gerhardt has written five books on legal topics, in addition to dozens of journal articles, and also works with the National Convention Center in Philadelphia on its events and programs.

He leads the UNC-CH law school’s program in law and government, which brings speakers from the political arena to the university. He also travels regularly for speaking engagements, and weighs in on constitutional issues in the opinion pieces for newspapers.

Adviser to presidents

Gerhardt’s government work started after law school, when he joined the staff of Al Gore, who was running for the U.S. Senate at the time. Later, he would join the transition team at the beginning of Clinton’s presidency, helping to work out a policy for judicial selections.

But his primary involvement in the federal government has been as an adviser to Congress on tricky legal issues of all stripes. Over the years, he’s been called on by both Democrats and Republicans to serve as an impartial source of information on constitutional issues.

“I want to be of service to as many people as possible and ultimately credible to both sides,” he says. “One of the things that I see as an objective is to see if there’s any common ground between both sides.”

Early in his career, he was tapped to be on a national commission focused on impeachment. Later, when Clinton was facing impeachment, Gerhardt advised Congress on the process during the proceedings. He was the only joint witness before the House Judiciary Committee, where he testified about the history and background on impeachment.

Later, he would work on the confirmations of several Supreme Court justices. For the confirmations of Sonia Sotomayor and Elena Kagan, he served as a special counsel to the Senate Judiciary Committee

Those proceedings involve parsing the lengthy applications of each justice, reviewing their statements and rulings on thousands of court cases, highlighting any concerns or areas of questioning during confirmation hearings.

In the early 2000s, Gerhardt advised congressional Democrats on the constitutionality of the filibuster, and he would later weigh in on constitutional issues related to the Affordable Care Act.

Evolving interpretations

But he was still distinctly honored to be asked to help revise the U.S. Constitution Annotated, a hefty volume popularly known as CONAN that details the evolving interpretation of the Constitution. He has become intimately familiar with the document during his career.

It is revised every 10 years, chiefly to include new Supreme Court rulings and their impact on constitutional law.

He started working on the project about two months ago. While it’s too early to comment on specific revisions, he says the volume’s editors want to consider new ways of organizing the material, which over the past hundred years has been revised in an ad hoc way.

They might, for instance, consider creating sections on issues such as gay marriage that had not been considered in earlier additions.

Revisions will likely include new ways of managing the electronic version of the document, ideally allowing it to be more easily searched and perhaps updated more frequently with new rulings.

The book is used primarily by attorneys and lawmakers, but is also of use to scholars, students and others seeking to understand constitutional issues.

“We want to make sure it remains useful and increase its utility,” he says.

And, of course, Gerhardt will help to insert an unbiased account of the recent series of rulings regarding gay marriage, the Citizens United campaign finance ruling, the Affordable Care Act and several rulings on capital punishment.

Gerhardt sees all this as adding to the significance of his task, but doesn’t see the recent spate of significant rulings as uniquely interesting.

“In constitutional law, if you look back at any time period, there’s always something happening,” he says.

This story was originally published July 11, 2015 at 5:13 PM with the headline "Tar Heel of the Week: UNC professor tackles constitutional questions."