Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation of powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This Article argues that "big cases make bad theory"--that the focus on high-profile cases of this type distorts our understanding of how historical practice figures into constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, where practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role structuring and filling gaps in the judicial architecture, that practice is, in contrast to the practices in Noel Canning and Zivotofsky, rarely entrenched against ordinary legal change. Second, the authority of historical practice in high-profile separation of powers disputes generally rests on a theory of acquiescence by one branch in the other's actions; the federal courts cases, in contrast, ignore acquiescence and instead ground practice's authority in its longstanding observance.
The use of historical practice in federal courts law rests on a theory of prescription--that is, past practice derives authority from its sheer pastness. This Article explores the centrality of prescription in Burkean political theory and suggests that cases relying on past practices can contribute to the development of a distinctively Burkean theory of constitutional law. This theory suggests that past practice plays an important constitutive role, but, as in the federal courts cases, that role is not entrenched against ordinary legal change. The fact that historical practice is not entrenched--and can be changed through democratic processes--helps to answer several key criticisms of relying on practice in constitutional adjudication.
Table of Contents Introduction I. Historical Practice and Constitutional Functions A. What Do We Mean by "Practice," and How Do Courts Rely on It? B. The Constitutive and Entrenchment Functions of Constitutions C. Acquiescence and Prescription II. Historical Practice in Federal Courts Law A. Judicial Precedent B. Incorporation of Extant Bodies of Law C. Canons of Statutory Construction III. The Constitutive and Entrenchment Effects of Practice A. The Nonentrenchment of Practice in Federal Courts Law B. Acquiescence and Prescription C. Nonentrenchment and the Critique of Prescription Conclusion INTRODUCTION
A spate of recent, high-profile separation of powers cases at the Supreme Court has turned a spotlight on courts' reliance on historical practice in constitutional cases. In NLRB v. Noel Canning, the Court looked to the practice of past Presidents and Congresses in resolving three questions about the meaning of the Recess Appointments Clause. (1) Likewise, in Zivotofsky v. Kerry, the Court relied on executive practice and Congress's acquiescence to determine that Congress may not regulate the President's power to recognize (or not recognize) the territorial claims of foreign governments. (2) These and other cases have prompted an outpouring of scholarship concerning the courts' reliance on historical practice outside the usual parameters of originalist interpretation--that is, the use of historical practices that are not evidence of the Founders' intentions or understandings but that nonetheless may help resolve disputed questions of constitutional meaning. (3)
In this Article, I suggest that high-profile disputes over the separation of powers can tell us only part of the story concerning the role of historical practice in constitutional analysis. I shift focus from separation of powers disputes to the somewhat more prosaic terrain of federal courts law. (4) That field, to be sure, has its share of high-stakes, interbranch confrontations--for example, over Congress's authority to restrict the federal courts' jurisdiction. (5) But federal courts doctrine often looks to historical practice in less dramatic ways. Consider, for example, a typical civil rights suit against a state officer under 42 U.S.C. [section] 1983 alleging an unreasonable search or seizure in violation of the Fourth Amendment. In adjudicating such a case, a court is likely to frame the plaintiff's reasonable expectation of privacy in terms of common social practices; (6) to look to common law practice in assessing both the measure of damages (7) and the defendant's official immunity; (8) and to assess the availability of an injunction against future intrusions in light of the traditions of equity. (9)
Because it focuses on high-profile separation of powers disputes, the existing literature on historical practice in constitutional adjudication tends to ignore the sort of case just described. But practice is in fact pervasive in federal courts law. That body of law borrows from the common law and equity practice in shaping judicial procedure and remedies; (10) it employs canons of statutory construction designed, at bottom, to harmonize new law with longstanding practice; (11) and it structures the intricate relationship between the federal and state judicial systems by constant reference to longstanding usage. (12) These sorts of reliance on past practice differ in important ways from use of practice in cases like Noel Canning or Zivotofsky. Practice in federal courts law often bears a different relationship to the constitutional text, for example, and it rests on a different justificatory rationale. I submit that we miss a lot about historical practice by focusing only on the high-profile cases. One might thus sum up the line taken here as "big cases make bad theory"--or at least incomplete theory.
Shifting the focus to federal courts law and the judicial power entails a second analytical move as well. This Article considers a variety of ways in which historical practices influence judicial decision-making--including judges' reliance on past precedents, their incorporation of preexisting common law or equitable doctrines to fill numerous gaps in our procedural and remedial regime, and the employment of canons of statutory construction--that are sub-constitutional in nature. One might say that these practices are all "constitutional" in that they involve constructions of the "judicial power" recognized in Article III. (13) But while that is true, it also seems a bit broad. It is more precise to say that these practices each perform a constitutional function--they help constitute the judicial power that Article III incompletely specifies--and thus form part of our "constitution outside the Constitution." (14) This notion, that the canonical text of the Constitution includes only a subset of the principles that constitute our government, goes back at least as far as Karl Llewellyn's idea of a "working constitution" in 1934. (15) I build on that notion here to suggest that any effort to assess the courts' reliance on historical practice in public law should include not only its use to resolve controversies about the constitutional text but also the broader set of practices that constitute much of our working system of governance. Federal courts law provides particularly fertile ground for that broader assessment.
My exploration of the courts' reliance on historical practice in the context of disputes about the judicial power yields two primary conclusions. The first is that using such practices to interpret the meaning of particular constitutional terms--which I will call historical "gloss"--is probably not the most common or the most important role that historical practice plays. When courts use practice to "gloss" a constitutional term, they tend to entrench that practice against change through ordinary legal means. Hence, in Ziuotofsky, the majority read past practice by the President either recognizing or refusing to recognize territorial claims of foreign governments as a gloss on the meaning of Executive power, such that Congress could not regulate that practice by statute. (16) Constitutionalizing past practices dramatically raises the stakes of that kind of interpretation and may create all sorts of perverse incentives.
Much use of practice in federal courts law, however, supplements the text by filling in the many gaps in Article Ill's plan for the judicial system. Critically, historical practice that supplements the constitutional text need not be--and generally is not--itself constitutionally entrenched. The jurisprudential literature on constitutional functions distinguishes between the constitutive function (establishing, empowering, and limiting governmental institutions) and the entrenchment function (immunizing those institutions from change through ordinary legal processes). (17) Much--but not all--of the historical usage pervading federal courts law performs a constitutive function but remains subject to change through ordinary legislation. Current law's borrowing of common law principles of official immunity, (18) for example, can be changed through statutory enactment. (19) Incorporation of historical practice tends to be most controversial when this is not the case--when, for example, common law immunities are given entrenched constitutional status. (20)
My second point is that reliance on historical practice in federal courts law frequently rests on a justificatory basis different from the rationales featured in cases like Noel Canning and Zivotofsky. Those cases--and much of the academic literature that has grown up around them--speak primarily of rival institutions' acquiescence in a particular branch's exercise of power. (21) Much of the reliance on historical usage that I explore here, however, occurs in contexts in which acquiescence seems largely beside the point. Instead, the turn to practice rests on more amorphous notions that past usage has its own legitimacy, if not authority, based on its very pastness. Much reliance on historical practice...