Academic journal article William and Mary Law Review

Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law

Academic journal article William and Mary Law Review

Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law

Article excerpt

Abstract

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. …

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