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Our prescriptive judicial power: constitutive and entrenchment effects of historical practice in federal courts law.


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

  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
     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
     A. The Nonentrenchment of Practice in Federal
        Courts Law
     B. Acquiescence and Prescription
     C. Nonentrenchment and the Critique of Prescription


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 in this area, I suggest, invokes a form of prescription.

Edmund Burke famously said that "[prescription is the most solid of all titles, not only to property, but ... to government.... It is a presumption in favour of any settled scheme of government against any untried project, that a nation has long existed and flourished under it." (22) Burke went so far as to insist that the authority of traditional practice "is a better presumption even of the choice of a nation, far better than any sudden and temporary arrangement by actual election." (23) Customary practice and prescriptive wisdom have long played an important role in American constitutionalism, but they remain underappreciated in constitutional theory. Reliance on tradition has been criticized from multiple directions as either too easy to manipulate (and therefore a cover for judicial activism) (24) or too confining (and therefore likely to lock in an unjust status quo). (25) And from a more positivist standpoint, reliance on historical practice in constitutional interpretation arguably permits changes in constitutional meaning that circumvent both Article V's amendment process and more general limits on judicial lawmaking. (26)

Distinguishing between the constitutive and entrenchment aspects of constitutionalism helps to address these criticisms. Much past practice in the federal courts field derives its authority from longstanding usage, largely independent of legitimation through some form of acquiescence. But because little of that practice is entrenched against legal change, it simply does not raise the same concerns about "constitutional adverse possession" that arise when historical practice is used to "gloss" the meaning of constitutional text. The weight of the "dead hand of the past" (27) is less oppressive when past practices are subject to legislative override.

Conversely, the incremental and evolutionary reform that prescription also entails is easier to defend when it does not involve change in the meaning of entrenched constitutional principles and structures. I do not deny that courts make law when, for example, they import common law or equitable principles to define the scope of federal jurisdiction or recognize and limit remedies against government actors. This sort of judicial lawmaking--the subject of an extensive literature on federal common law--raises legitimacy problems of its own. (28) But the courts do not circumvent Article V so long as they do not seek to confer any sort of entrenched status on these norms. And the more general critique of judicial lawmaking is surely less compelling when such lawmaking conforms to roles that our courts have exercised since the beginning of the Republic. There is a certain circularity, of course, in saying that tradition legitimizes the courts' reliance on tradition. But prescriptive authority necessarily embraces that sort of circularity. (29)

By surveying the uses of historical practice, I hope to make three broader contributions to the literature in constitutional theory. As Richard Fallon has noted, all participants in debates about constitutional interpretation seem to agree that history is relevant to that enterprise; it turns out, however, that history is used in multifarious ways and not simply to establish the original understanding of constitutional text. (30) The first contribution, then, is simply to expand our understanding of how past practices figure into debates about constitutional law.

The second contribution bears on the literature of constitutional change. That literature is driven by a single compelling observation--that the structure of contemporary American governance and the array of rights that individuals possess are hard to square with the original understanding of the Constitution's text, including the textual amendments. (31) The most prominent theories of constitutional change outside Article V--such as Bruce Ackerman's theory of "constitutional moments" (32)--have dazzled more than they have persuaded. (33) If some form of "living constitutionalism" is a fact of modern life, we need a much more specific (and plausible) account of its mechanisms and some notion how those mechanisms are disciplined and constrained. I submit that historical practice plays a leading role in this story.

Finally, this Article draws on a philosophical tradition that is often neglected in constitutional debates. Those debates are dominated, on the Right, by a majoritarian and ultimately rationalistic vision that employs originalism as a constraint on the counter-majoritarian power of judges. (34) The Left, on the other hand, embraces a vision of living constitutionalism as a means of either furthering progressive moral values (35) or carving out a wider sphere for technocratic pragmatism. (36) This Article builds instead on an older tradition of classical conservative thought emphasizing a Burkean commitment to prescriptive knowledge and organic, incremental change. Part of my objective here is to elaborate what a Burkean constitutional theory might look like. (37)

Part I of this Article lays some theoretical groundwork. I try to be more specific about what we mean by reliance on historical practice, discuss the distinct constitutive and entrenchment functions of constitutions, and introduce Burke's theory of prescription. Part II assesses several specific areas in which federal courts law relies upon historical practice: the doctrine of precedent; incorporation into federal doctrine of preexisting bodies of law, such as the English common law or equity practice; and the canons of statutory construction. None of these areas invokes practice as a historical "gloss" on the Constitution's text in the manner of Noel Canning and similar separation of powers cases, and each tends to derive the legitimacy of practice from long duration rather than from notions of interbranch acquiescence.

Part III draws some general conclusions. I argue that using historical practice as a gloss on constitutional text to resolve contested questions of separation of powers is neither the most common nor the most important way in which such practice contributes to our law. Entrenching such practice against legal change, I argue, tends to be counterproductive. Moreover, reliance on practice is best justified on prescriptive grounds. The primary alternative--practice as acquiescence--is both descriptively implausible and normatively unappealing. In the end, I hope to show that attendance to the uses of practice in the somewhat more prosaic setting of federal jurisdiction can both allay certain fears about reliance on practice and contribute to important current debates about constitutional interpretation.


The appropriate role of history has long been a staple of debates about constitutional meaning. Attention has focused, however, on the use of historical materials to ascertain the intent of the constitutional Framers and the original understanding of terms appearing in the constitutional text. (38) Philip Bobbitt's well-known modalities of constitutional argument, for example, defined the "historical" modality as focused on "the intentions of the framers and ratifiers of the Constitution"; none of his six modalities afforded a place to past practices that did not go to original intent. (39) But as Richard Fallon recently observed, "increasingly tired, stylized debates" about originalism in constitutional interpretation obscure the wide variety of ways in which history may influence the determination of constitutional meaning. (40) Post-founding practice, for example, may provide insights into the original understanding of constitutional terms, resolve disputes about that meaning that existed at the Founding, or suggest organic growth of constitutional meaning over time. (41)

Historical practice has particular significance in federal courts law. The constitutional text says little about the judicial power, and both the convention and ratification debates focused largely on other topics. (42) As a result, the structure of the federal judicial system, its modes of proceeding, and its relation both to the other national branches of government and to the state governments have been fleshed out through a wide variety of subconstitutional practices. These include a succession of judiciary statutes enacted by Congress, rules of procedure promulgated by the courts in the exercise of delegated authority, a robust array of common law and equitable doctrines, and a plethora of less formal norms and ways of proceeding that have grown up over time. These enactments and practices have legal force in their own right, but they also inform our understanding of "the judicial power" in Article III.

Notwithstanding the pervasive impact of historical practice on the law of federal jurisdiction, the phenomenon remains understudied in this field. Much of the recent literature on historical practice as a modality of constitutional interpretation focuses on separation of powers. (43) With certain important exceptions, (44) historical writing about federal jurisdiction has been in the originalist vein. (45) This may be more the case today than in the golden age of Legal Process scholarship that once dominated and defined the field of federal jurisdiction. That scholarship was often functionalist in its orientation, and when it turned to history it frequently looked to practice across the broad sweep of our national experience, not simply to the Founding era. (46) Nonetheless, the broader current of contemporary constitutional theory may have something to add to the way that federal courts scholarship has thought about historical practice. And the federal courts literature may have something useful to say to the broader current of constitutional theory.

A. What Do We Mean by "Practice," and How Do Courts Rely on It?

It will help to begin by defining somewhat more precisely what we mean by historical practice. "Practice" is, of course, a very broad term; the Oxford English Dictionary defines it, for instance, as simply "[a]n action" or "a deed" and contrasts it with "theory." (47) This definition is broad enough to include virtually any binding legal materials, such as a statute or a constitutional provision. To speak of historical practice as a distinct source of legal meaning, however, we need to distinguish it from past governmental actions that bind courts and other decision makers of their own force. For purposes of this discussion, I take a "practice" to be any past action of a public or private actor that is invoked to resolve a present legal dispute even though it has no direct binding effect on that dispute.

Common definitions of "practice" often incorporate the additional element of repetition and regularity; the Oxford English Dictionary speaks of "[t]he habitual doing or carrying on 0/something," "usual, customary, or constant action or performance," or "[a] habitual action or pattern of behaviour." (48) Hence, Justice Frankfurter emphasized the authority of a "systematic, unbroken, executive practice, long pursued;" (49) likewise, Noel Canning and Zivotofsky looked to past congressional and executive actions for a pattern of behavior, not simply a single authoritative instance. (50) have little doubt that the influence of a practice will be at least partly a function of the degree and consistency of its repetition. At this definitional stage, however, I do not want to rule out the possibility that a single act might not have authoritative influence in certain situations. (51)

What practice counts, temporally speaking? As one "present at the creation" of our government, at a time when American government had no truly "longstanding" practice of its own, James Madison understandably emphasized the force of precedents set by early politicians and courts in elucidating constitutional meaning. (52) But whether or not that very early practice has unique or even exclusive force in other areas of constitutional law, (53) the law of federal courts has frequently relied on both historical practice that long predates the Constitution (for example, the traditions of English practice at common law and in equity and admiralty (54)) and that developed considerably after ratification (for example, conventions about the role of the United States Supreme Court vis-a-vis state courts (55)). In these scenarios, the force of practice comes not so much from the status of politicians and judges closely associated with the Founding itself but rather from the weight of longstanding usage over time.

Courts have relied on practice and usage in a variety of ways. Justice Frankfurter wrote in Youngstown that "[d]eeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them." (56) This statement, occurring just before Frankfurter's oft-quoted mention of "gloss," (57) neatly articulates the two ways in which historical practice generally enters into constitutional analysis: practice helps us interpret the meaning of provisions in the constitutional text; and practice also supplements that canonical text, filling in its many gaps and thus becoming part of our "constitution outside the Constitution."

Much discussion of relying on historical practice in constitutional law has focused on the first category. Acknowledging that the Founding had failed to resolve all ambiguities in the constitutional document, James Madison said in Federalist No. 37 that indeterminacy is inevitable in "the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated." (58) Hence, "[a]ll new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." (59) And as Madison's subsequent conduct and statements made clear, he thought those subsequent "discussions and adjudications" might well occur outside the courts as well as within them. (60) In this vein, the Noel Canning majority turned to historical interactions between the President and Congress to establish the meaning of the Recess Appointments Clause. (61)

On the other hand, much reliance on past practice in the law of federal courts, which I discuss in Part II, seems supplemental in nature. Article III does not specify the scope of the Supreme Court's appellate jurisdiction; in Murdock v. City of Memphis, however, the Court imposed a strong presumption, derived from longstanding practice, that the Court may not review state courts' resolution of questions of state law. (62) Likewise, the Court has made clear that its broad conception of state sovereign immunity is not a "gloss" on either Article III or the Eleventh Amendment but rather an artifact of preexisting practice under the English common law. (63)

Not surprisingly, however, the line between these two modes is not completely clean even in theory, much less in practice. One might describe phenomena such as the doctrine of precedent or adoption of preexisting bodies of law as a gloss on the meaning of the "judicial power" language in Article III without making any mistake of principle. The key consideration, to my mind, lies in the amount of work that the relevant textual provision does in the analysis. In Noel Canning, for example, the text of the Recess Appointments Clause sharply defined and limited the relevant set of practices, and those practices in turn plainly reflected an effort by the respective political actors to interpret the Clause. (64) Hence, I would treat Noel Canning as a clear case of historical gloss. (65)

At the other end of the spectrum, consider the federal courts importing the longstanding equitable prohibition on enjoining a criminal prosecution to ground the doctrine of Younger abstention. (66) One might say that Younger is a gloss on the "judicial power" as it relates to the powers of federal judges vis-a-vis state courts, but the text of Article III does precious little work in the analysis of historical practice. It seems much more helpful to say simply that Article III leaves the relations of state and federal courts unspecified in a variety of important ways and that Younger abstention supplements the canonical text by helping to constitute that relationship.

The Zivotofsky case poses an intermediate--and therefore more difficult--case. The only constitutional text in sight is Article II, which empowers the President to "receive Ambassadors and other public Ministers." (67) The Court read Founding-era practice as a gloss on that language, concluding "that a Clause directing the President alone to receive ambassadors would be understood to acknowledge his power to recognize other nations." (68) The Court relied on further evidence of practice--this time in international law--to conclude that this recognition power "may also involve the determination of a state's territorial bounds." (69) Finally, the Court canvassed extensive evidence of practices by Presidents and the Congress concerning whether the recognition power is exclusive to the Executive. (70) Whether or not the Court correctly evaluated all this evidence of practice concerning recognition, it seems a considerable stretch to say that Article II's text--which does not use the term "recognition" and covers only receiving ambassadors--is doing much work. Better, I think, to say that the Court is filling in the gaps in the President's power--that is, supplementing the canonical text--by looking to past usage. (71)

A final critical issue involves the status of practice-based norms vis-a-vis legal efforts to alter or override them. In Ziuotofsky, the Court held that Congress could not override the Executive's decision concerning territorial recognition; (72) hence, the Court not only gave legal force to the past practice of Executive recognition but also entrenched that practice against change through ordinary lawmaking. I explore the importance of this move in the next section.

B. The Constitutive and Entrenchment Functions of Constitutions

This Article is about the use of historical practice in constitutional cases, but I am employing a broader-than-usual view of what falls in that category. Contemporary constitutional theory seeks to unpack the various functions of constitutions. (73) As I have developed elsewhere, constitutions typically do at least three things: they constitute the government by creating institutions, defining those institutions' powers and conferring jurisdiction upon them, and articulating rules for their operation; they frequently confer rights on individuals vis-a-vis the government (which is really just the flipside of the constitutive function); and many (but certainly not all) constitutions entrench the institutions and rights they create against easy change in the future. (74) Our Constitution, unlike Britain's, seeks to encapsulate each of these functions in a single, canonical document. Writing in Federalist No. 37, however, James Madison candidly acknowledged the complexity of defining the powers and limits of governmental institutions as well as the difficulty of reducing the requisite concepts to writing. (75)

Hence, as John Marshall wrote in McCulloch, the Constitution's nature "requires [] that only its great outlines should be marked, [and] its important objects designated." (76) This necessary incompleteness means that the Constitution can have no monopoly of the first of its functions; it cannot, in other words, constitute a complete government on its own. Hence, Article I describes Congress in greater detail than the other two branches, yet it leaves out critical details such as structures for deliberation, voting rules, and qualifications to vote in congressional elections. (77) These details have all been filled in through subconstitutional practices--some statutory, some internal House and Senate rules, and some unwritten conventions of behavior. (78) Article III, which describes the judiciary in far less detail, punted most of the crucial questions--such as whether to create lower federal courts at all--to the First Congress and continues to require considerable gap-filling. (79)

I have called the various forms of "ordinary law"--statutes, regulations, conventional practices--that perform these constitutive functions our "constitution outside the Constitution." (80) But that does not mean that these rules and institutions share the entrenched status of the Constitution's canonical text. (81) To be sure, some of the historical practices that have fleshed out the meaning of the Article III judicial power have hardened into rules that Congress may not override. It seems safe to say, for example, that Congress could not now enact a statute empowering the Supreme Court to issue advisory opinions. (82) My point is simply that whether a given practice should be viewed as constitutive of our governmental institutions is a separate question from whether that practice is also entrenched against change through ordinary legal means. (83) In general, most governmental practices are constitutive to at least some degree, but very few are constitutionally entrenched.

One of the principal sources of discomfort about the use of historical practice in constitutional law stems from the fear that past practices will either alter entrenched constitutional norms or come to be entrenched against change in their own right. Writing separately in Noel Canning, for example, Justice Scalia worried that relying on historical practice allows the Executive to "accumulate power through adverse possession," in violation of entrenched constitutional norms. (84) But to say that American law sometimes "constitutionalizes" historical practice is all too often to conflate the different things that constitutions do. Many instances of reliance on historical practice--especially in the law of federal jurisdiction--treat that practice as constitutive without entrenching it against legal change; (85) other instances entrench past practice only partially, without putting it on the same plane as the Constitution itself. (86) Distinguishing between the different roles practice plays will help in assessing the normative attractiveness of appeals to practice in this area.

C. Acquiescence and Prescription

Edmund Burke referred to reliance on longstanding practice in government as "prescription"--a word we do not use so much nowadays but which helpfully adds the notion of legal force to more general terms like "custom" or "historical practice." (87) Prescription embodies "a choice not of one day, or one set of people" but rather "a deliberate election of ages and of generations; it is a Constitution made by ... the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time." (88) Against Enlightenment rationalists who set out to question "unthinking" adherence to tradition, Burke insisted that prescription involved a higher form of rationality. "[M]an is a most unwise and a most wise being," he argued. (89) "The individual is foolish. The multitude for the moment is foolish, when they act without deliberation; but the species is wise, and when time is given to it, as a species it almost always acts right." (90)

As J.G.A. Pocock has demonstrated, Burke's theory of prescription was rooted in the classic English doctrine of the ancient constitution that undergirded the development of the English common law. (91) William Blackstone's Commentaries begin their discussion of the common law with an account of longstanding custom. (92) For Anthony Kronman, this sort of reasoning from prescriptive authority makes law inherently different from philosophy:
   [T]he past is, for lawyers and judges, a repository not just of
   information but of value, with the power to confer legitimacy on
   actions in the present, and though its power to do so is not
   limitless, neither is it nonexistent. In philosophy, by contrast,
   the past has no legitimating power of this sort. (93)

In a profound meditation on Burke, Professor Kronman argues that the past's authority is distinct from any utilitarian or fairness-based argument for precedent--that the past is, at bottom, essential to what "makes us who we are" as human beings. (94) These sorts of arguments get short shrift in contemporary discourse. (95) One suspects that nonspecialists rarely study Burke nowadays. (96)

But in any event, one need not go this far to accept the force of prescriptive reasoning. More practical rationales, resting on the need to treat some things as settled in order to address present problems in a manageable way, accord authority to past practice simply because it is longstanding and settled. (97) Likewise, concerns about the disruptive effect of radical change tend to support an incremental approach to constitutional development that takes much of past practice as given at any particular stage. (98)

Burke's notion that practice derives its authority from longstanding usage--that the past has authority simply because it is the past--runs counter to much contemporary discussion of historical practice as an aid to constitutional interpretation. That literature tends to ground the force of practice in the acquiescence of critical actors. (99) Likewise, Supreme Court opinions resolving high-profile separation of powers disputes among the branches of the national government tend to emphasize one branch's acquiescence (or lack thereof) to the exercise of power by a rival branch. (100) To be sure, one may understand any longstanding usage as resting on a form of acquiescence; if the relevant political or legal actors had not accepted the practice over time, they would have changed it. Blackstone, for example, required that a custom "must have been peaceable, and acquiesced in; not subject to contention and dispute"; this was because "customs owe their original to common consent." (101) But the sort of acquiescence entailed by prescriptive authority tends to take place over a more extended period of time and to involve a more diffuse set of actors than that involved in high-profile separation of powers disputes. Moreover, the authority of longstanding practice tends not to depend on any sort of explicit airing of the relevant issue, to which the affected party might have been expected to object.

Interesting debates exist about the relationship between custom and the common law, Blackstone's particular theories of general and local custom, and the extent to which those theories were found persuasive in America. (102) But the basic point is simply that longstanding usage was integral to the English common law, (103) and this notion of prescriptive authority would have been part of the Founders' basic intellectual equipment. Some influential figures in the early Republic, such as Thomas Jefferson, labored mightily to reject English traditionalism, and that way of thinking scored important victories in preventing any blanket reception of the common law into the federal Constitution and rejecting federal prosecutions for federal common law crimes. (104) Nonetheless, the newly independent states' universal reception of the English common law (105) and the Framers' direct incorporation of many common law concepts into the Constitution itself (106) suggest that the undeniable innovation of a written, higher-law Constitution was grafted onto a broader legal system that derived significant authority from ancient usage. (107) As my colleague Stephen Sachs has observed, "[n]ot even the American Revolution severed our links to the legal past: the change in government wasn't thought to produce a wholesale change in law, especially private law." (108)

Moreover, because the new written Constitution provided only a framework of government and was designed to be accessible to the People at large, it necessarily lacked the institutional detail necessary to form a working government. (109) Postratification practice (defined broadly to include not simply informal actions but also subconstitutional enactments and judicial decisions) has filled that gap. Many features of the early practice--such as the rejection of impeachment as a remedy for perceived judicial errors, (110) the prohibition on common law crimes, (111) the bar on advisory opinions, (112) the crucial distinction between remedies against the sovereign and remedies against the sovereign's officers, (113) and the requirement that judicial judgments be immune from nonjudicial revision (114)--have endured for centuries.

Prescription is a fundamentally predemocratic rationale for legal norms. As I will show, however, it persists throughout American legal practice. The most obvious example is American states' reception of the English common law after the Revolution. While the reception itself was generally accomplished by legislative adoption and therefore a matter of democratic choice, the reception statutes made no effort to review and distinguish among substantive common law norms. Rather, reception was a democratic decision to adopt the pre-Revolution law simply because it had been the law for a very long time and its results were generally perceived to be satisfactory. (115) Just as the English legal system had transitioned from monarchy to parliamentary democracy over time, while retaining the common law and any number of other predemocratic survivals, the newly independent American colonists grafted a new commitment to constitutionalism onto a preconstitutional English system that, in most respects, was thought to be working reasonably well. There was no Bastille to storm and no French Revolution-style effort to rethink the legal system from the ground up. (116)

Both the nature of the prescriptive legal sources adopted in American law and the dynamics of their integration with majoritarian democracy and constitutionalism have important implications for the ways prescriptive practice can function in constitutional interpretation. As I hope to demonstrate in the remainder of this Article, prescriptive practice has always played an important and pervasive constitutive role. Reliance on past practice absolved the successful revolutionaries of any need to make the world anew; it allowed them to rely on preexisting institutions and norms, holding most of the legal system constant and allowing them to focus on articulating the limited but important ways in which the new government would differ from the old. (117) But the notion of entrenching past practice would have run counter to both the way those practices had always worked and the new commitments to majoritarianism and constitutionalism. The English common law had generally not been entrenched, but--like the rest of English law, including constitutional law--had remained subject to alteration by a sovereign Parliament. (118) And the Philadelphia convention rejected proposals for a common law reception provision in the Constitution itself precisely because that might have rendered the common law immutable. (119)

I do not argue here that historical practices should never be treated as shaping or supplementing constitutional meaning in a way that cannot be modified through ordinary legislation. But we should be terribly cautious about doing that. It is, after all, a mode of constitutional interpretation with little support in historical practice.


This Part explores a variety of elements of federal courts law that, in one way or another, involve reliance on historical practices. I begin with three sets of familiar phenomena: judicial reliance on past decisions under the doctrine of stare decisis; federal incorporation of preexisting bodies of law, such as the English common law; and use of the canons of construction in interpreting federal statutes. These phenomena are so familiar that we generally do not think of them as part of the broader category of reliance on historical practice that figures in cases like Noel Canning or Zivotofsky.

Federal courts law does rely on practice in ways more analogous to Noel Canning and Zivotofsky. The basic structure of federal jurisdiction, such as the scope of the Supreme Court's review in cases arising under state law or in the state courts, have acquired a strong sociological entrenchment arising from longstanding practice. (120) The availability and parameters of habeas corpus review are largely framed by practice. (121) And the amenability of senior executive officials to federal judicial process has been established largely by the President's decision to comply at key points in our history. (122) Nonetheless, a key part of my argument is that reliance on practice is pervasive and routine and that reliance on past practice in these more prosaic settings can shed important light on the broader phenomenon.

A. Judicial Precedent

We generally think of judicial precedent and the doctrine of stare decisis as their own modality of interpretation--not part of a broader reliance on historical practice. (123) But generally speaking, the "practice" that courts engage in overwhelmingly involves the decision of cases. There are, to be sure, certain aspects of internal housekeeping, such as the assignment of panels and cases or the Supreme Court's certiorari policies, (124) as well as certain rulemaking functions of broader significance, (125) when judges engage in "practices" outside the decision of cases. (126) But the overwhelming majority of judicial practice consists of deciding cases. The influence that past decisions have in resolving present controversies is the most familiar example of judicial reliance on past practice--so familiar, in fact, that judges following precedent may be no more aware that they are invoking historical practice than Moliere's bourgeois gentleman was that he was speaking prose. (127)

Judicial precedent fits my definition of practice in two distinct respects. First, a prior decision is itself a past act by another actor that lacks direct binding authority on a current dispute. A judicial decision's direct binding force is generally limited to the parties; this force is captured by the doctrine of res judicata, not stare decisis. (128) The influence of the past court's decision is also conceptually distinct from the binding force of the underlying positive law--typically, a statute or constitutional provision--that the prior decision applied. Consider, for example, the Supreme Court's recent patent law decision in Bilski v. Kappos. (129) Section 101 of the Patent Act broadly states that "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor." (130) Nonetheless, "[t]he Court's precedents provide three specific exceptions" for '"laws of nature, physical phenomena, and abstract ideas."' (131) Acknowledging that "these exceptions are not required by the statutory text," the Court observed that "they are consistent with the notion that a patentable process must be 'new and useful.'" (132) "And, in any case," the Court said, "these exceptions have defined the reach of the statute as a matter of statutory stare decisis going back 150 years." (133) Bilski is thus a particularly self-conscious example of a course of decisions, taking place over an extended period of time, that supplements the meaning of the original textual provision that those decisions interpret and apply.

In constitutional law, the originalist critique of stare decisis has long insisted that judicial precedents interpreting the Constitution are not the same--and consequently lack the same authority--as the authoritative document itself. (134) For our purposes, the Supreme Court's decision interpreting the Recess Appointments Clause in Noel Canning is not intrinsically different from the congressional and executive interpretations of the clause that the Justices debated in their opinions. Both involve interpretations of a constitutional provision by one or another branch of government at some time in the past. In the next dispute raising a recess appointments issue, the Noel Canning opinion will be one more past practice interpreting the clause that may bear on the present dispute. (135) The relative authority of past judicial interpretations vis-a-vis executive or legislative interpretations turns on complex matters of separation of powers, the res judicata effect of prior judgments on the original parties, the remedies granted in the prior litigation, and the like. (136) But if judicial precedents are typically more binding than legislative or executive ones, (137) it is not because adherence to judicial decisions is any less a matter of deferring to historical practice.

Second, the rule of stare decisis--that is, the respect that judges accord to prior decisions--is itself a judicial practice. The Constitution does not itself explicitly articulate a rule of precedent, and the Supreme Court has said that stare decisis is simply "a principle of policy and not a mechanical formula of adherence to the latest decision." (138) The various nuances of the doctrine of precedent--the factors involved in its application, for example, or the notion that precedent binds more strongly in statutory cases than in constitutional ones--are likewise simply rules of practice distilled from the Court's long experience deciding cases. (139) When courts follow the rule of stare decisis, they are adhering to the way they have done things in the past.

Notwithstanding the Court's statements that stare decisis is a "principle of policy," one often sees arguments that stare decisis is inherent in the meaning of the "judicial power" conferred on the federal courts by Article III. (140) I have considerable sympathy for that view, but I want to remain agnostic about it here. The important point is that the Article III claim is itself a good example of constitutional argument grounded in historical practice. Judge Richard Arnold's famous opinion in Anastasoff, for example, urged that "in the late eighteenth century, the doctrine of precedent was well-established in legal practice (despite the absence of a reporting system), regarded as an immemorial custom, and valued for its role in past struggles for liberty." (141) Judge Arnold's view treats practice as a gloss on Article Ill's "judicial power;" the Supreme Court's more conventional invocation of stare decisis as a "rule of policy" accords that practice its own independent force. But whether courts respect stare decisis as a gloss on Article III or simply because it is a longstanding way of proceeding, the authority of past cases rests on past practice.

Like other forms of reliance on historical practice, the doctrine of precedent takes into account the actions of actors outside the courts. Precedential weight varies, for example, according to whether other actors may correct the courts' errors. Hence, the Court has said that "[c]onsiderations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done." (142) One could frame this point as one of acquiescence: If Congress has not overridden a court's past construction of a statute, it may be read as agreeing with (or at least accepting) that construction. (143) But the Court generally stresses not acquiescence but whether or not other avenues remain open to correct judicial mistakes. (144) Further, the reliance inquiry built into the stare decisis doctrine assesses whether other actors--most often private individuals but also public actors such as state governments--will be adversely affected by overruling a prior decision. (145)

The precedential value of a prior decision often seems more categorical than the sorts of nonjudicial practices at issue in Noel Canning or Zivotofsky. But when courts call precedents into question, the similarities between stare decisis and other practice-based forms of argument come into focus. Consider, for example, the debate in District of Columbia u. Heller concerning the force of the Court's prior decision in United States v. Miller, which had seemed to embrace an interpretation of the Second Amendment grounded in militia service. (146) In urging the Court to follow Miller, Justice Stevens's dissent emphasized that "hundreds of judges have relied on the view of the Amendment we endorsed there." (147) The majority instead stressed defects in the Miller Court's decisional process, such as the defendant's failure to appear and the Court's own failure to discuss the history of the Second Amendment (148)--much as the Justices in Noel Canning and Zivotofsky debated the extent to which past legislative and executive practices reflected considered constitutional judgments or had been consistent over time. Although in principle a single decision may set a binding precedent, repetition, longevity, and consensus plainly matter. (149) Indeed, some justices seem increasingly unwilling to accept a single decision, or even a course of a few decisions, as binding until they have been repeatedly reaffirmed over an extended period. (150) It may well be that courts generally view stare decisis as more obligatory than reliance on other forms of historical practice, but these sorts of examples demonstrate that there is no difference in kind.

The reasons that we follow past judicial interpretations are basically similar to those for deferring to other forms of historical practice. They involve the same notions of intellectual humility and the need to avoid social disruption that Burke invoked in defense of prescription:
   An ignorant man, who is not fool enough to meddle with his
   clock is however, sufficiently confident to think he can safely
   take to pieces, and put together at his pleasure, a moral machine
   of another guise importance and complexity, composed of far
   other wheels, and springs, and balances, and counteracting and
   co-operating powers. Men little think how immorally they act in
   rashly meddling with what they do not understand. Their
   delusive good intention is no sort of excuse for their presumption.
   They who truly mean well must be fearful of acting ill. (151)

Burke's mechanical metaphor suggests that any given precedent may have become integrated into the legal mechanism such that the effects of overruling it may be hard to anticipate. Moreover, there is no a priori reason to think that judges today are smarter than the judges of yesteryear. As Paul Brest has observed, "a doctrine that survives over a period of time has the approval of a court composed, in effect, of all the judges who have ever had occasion to consider and apply it." (152)

Finally, judicial precedent also performs a settlement function, allowing the work of the law to proceed without reinventing the wheel in every new case. (153) As Charles Fried has put it, "[w]e want to avoid being like the man who cannot get to work in the morning because he must keep returning home to make quite sure that he has turned off the gas." (154) But reliance on other forms of historical practice--at least when they are not contested--also performs this function. At least for purposes of the present discussion, it is hard to see any reason to distinguish in principle between reliance on settled judicial practices of interpretation (precedent) and reliance on other forms of historical practice.

B. Incorporation of Extant Bodies of Law

A related form of reliance on primarily judicial practice occurs in the many different areas in which the law of federal jurisdiction incorporates preexisting--and generally very old--bodies of non-constitutional law. Sometimes this incorporation has been mandated by statute. In the Process Acts of 1789 and 1792, for example, Congress required federal courts adjudicating suits at law to follow the forms of proceeding in the states in which they sat; (155) this generally meant that they would follow the English common law, as received by the relevant American state. (156) In equity and admiralty cases, the 1792 Act directed federal courts to employ the forms of proceeding used by English equity and admiralty courts. (157) Likewise, the federal piracy statute incorporates the definition of piracy in "the law of nations." (158) Each of these preexisting bodies of law was binding somewhere else but lacked direct force in American federal cases; in that context, each was simply the longstanding practice of another jurisdiction.

In other areas, the federal courts have taken it upon themselves to adopt these preexisting bodies of law. Courts have grounded the sovereign immunity of government institutions--both federal and state--in the common law tradition inherited from England. (159) The individual immunities of government officers have similar roots. (160) The various abstention doctrines rest in substantial part on the discretionary practices of English common law and equity courts, (161) and equity practice likewise provides remedies against unlawful state action. (162) Although the admiralty provisions of both Article III and the various judiciary acts are purely jurisdictional in form and do not specify the body of law to be applied, federal courts have read those provisions to incorporate the general maritime law, or lex mercatoria, which is a form of customary international law. (163)

The history of the "general common law" provides a particularly striking example of judicial incorporation of preexisting law. Cases like Swift v. Tyson read the Rules of Decision Act (164) to permit federal courts sitting in diversity to apply the general commercial law--another subclass of customary international law that was, as Justice Story explained, "not the law of a single country only, but of the commercial world." (165) Swift incorporated practice in a double sense: The court adopted the practices of prior courts (including state and foreign courts) in applying the general commercial law, and that law itself derived its norms from the customs of merchants engaged in commercial intercourse. (166) When Erie Railroad Co. v. Tompkins overruled Swift, it hardly rejected this process of incorporation; rather, it required federal courts to defer more strictly to the practices of the several states, which had themselves incorporated the lex mercatoria and the common law. (167) And when courts continue to make federal common law based on the presence of uniquely federal interests, they have continued to draw on the general commercial law. (168)

Federal courts law incorporates the English common law and equitable practice, as well as the broader customs of maritime and commercial law, as a pragmatic solution to the generality of the Article III judicial power and its instantiation in the various judiciary acts. The Framers of these mandates left innumerable questions unanswered, and they could afford to do so because the common law background either already answered them or provided resources to do so in the future. As Peter Du Ponceau put it in the early nineteenth century, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore ... [and] cannot learn another system of laws without learning at the same time another language." (169) Rebels against British rule, the founding generation nonetheless saw little need--and perhaps had little ability--to remodel the entire legal system; instead, the preexisting law shaped the new government at every turn. (170) Federal courts law maintains this basic conservatism today, preferring in nearly every instance "off the shelf' solutions based on some preexisting source of law to formulating new legal rules out of whole cloth. (171)

This sort of incorporation is by no means confined to federal courts law, of course. Search and seizure law, for example, incorporates important elements of the common law of property. In assessing the reasonableness of a search, the Court has noted "the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules." (172) The substantive due process cases have frequently invoked common law principles in defining the "liberty" protected by the Fifth and Fourteenth Amendments. (173) More broadly, the Court's incorporation jurisprudence applying the Bill of Rights to the States relies not on Justice Black's theory that the Fourteenth Amendment renders the first eight amendments directly authoritative in state cases but rather on the more indirect notion that the Bill of Rights provides a helpful guide to identifying the principles of "fundamental fairness" that the Fourteenth Amendment protects. (174) As the younger Justice Harlan put it, "the Bill of Rights is evidence ... of the content Americans find in the term 'liberty' and of American standards of fundamental fairness." (175)

My friend and colleague Stephen Sachs has described our English inheritance of the common law and equity principles as a "constitutional backdrop." (176) He rightly observes that "[o]ur founding document is firmly rooted in the common law tradition, in which each new enactment is layered on top of an existing and enormously complex body of written and unwritten law." (177) Professor Sachs's discussion is tremendously helpful in illuminating the extent to which our legal system in general--and constitutional law in particular--builds on a body of preexisting legal principles and practices. But exploring the divergences between Sachs's account and my own will help illuminate the approach advanced here.

A "backdrop," as Professor Sachs uses the term, is not "historical practice" as I have defined it. A historical practice, for my purposes, is a prior action or rule that does not bind directly within the context of the dispute in which it is invoked. The Constitution itself is not "practice," because it binds us today as law; neither are the portions of the 1789 Judiciary Act that remain in effect today. But many early Presidents' tendency to issue Thanksgiving Day proclamations is a practice that might be relevant to contemporary disputes about the meaning of the Establishment Clause, because they may reflect a longstanding view about the permissibility of official invocations of the Deity. (178) At the same time, of course, those proclamations themselves have no binding force in contemporary Establishment Clause litigation.

For Professor Sachs, legal backdrops are relevant precisely because they continue to have binding legal force today. Because "the Constitution left most preexisting law alone," he says, "[a]ny legal rule that wasn't abrogated by the Constitution's enactment simply kept on trucking after 1788." (179) Hence, the English common law, equity practice, and other bodies of preexisting law "remained in force subject to the Constitution's requirements, to the privileged status of federal law under the Supremacy Clause, and to the ordinary processes of abrogation, amendment, and repeal." (180) For Sachs, the common law is relevant because it simply remains the law--not because it is a practice that may influence the interpretation of existing law or, in some way, supplement the traditionally binding legal materials. Moreover, what makes the common law a constitutional backdrop is that it is "preserved from change" in various ways. (181)

Certainly some aspects of the common law, equity practice, or other forms of preexisting law have continuing force in our legal system. (182) But the transition from English to American law was not seamless, (183) and it differed at the national and state levels. The states did not simply allow the English common law to continue in force. Rather, they expressly "received" it into state law through specific reception statutes or provisions in state constitutions, (184) and they took only those portions they found applicable to their local conditions. (185) And the Framers of the national Constitution explicitly debated--but rejected--a parallel reception of the English common law into national law. (186) Writing to St. George Tucker, John Marshall stated that "I do not believe one man can be found" who maintains "that the common law of England has ... been adopted as the common law of America by the Constitution of the United States." (187) Nor is there any federal statute receiving the common law en masse into national law; hence, the Supreme Court in Wheaton v. Peters found it "clear[] there can be no common law of the United States.... The common law could be made a part of our federal system, only by legislative adoption. When, therefore, a common law right is asserted, we must look to the state in which the controversy originated." (188)

English rules of common law and equity, as well as the broader corpus of maritime law, thus do not become part of federal law because they simply remained in force notwithstanding "the late unpleasantness"--to borrow a Civil War euphemism--between Britain and its American colonies. Rather, they come in because particular provisions of federal law, such as the Process Acts or the Admiralty Clause in Article III, adopted them, or because federal judges, using their more limited authority to adopt federal common law rules to govern the cases before them, imported them as helpful "off-the-shelf' solutions to problems arising in federal litigation. (189) As such, these older bodies of law were practices, whose legal force depended on a current decision to accept them as binding. In most situations, this conceptual hair-splitting will make little difference. But it does matter when aspects of the English "backdrop" are argued to be entrenched against change by ordinary legal means (190)--a problem I return to in Part III.

Incorporation of preexisting bodies of law may have a dynamic as well as a conservative impact on the law. Just as state courts used the common lawmaking powers that they received along with the substantive English common law to adapt that law to the context of the growing American states, (191) so too federal court law has adapted as it adopted preexisting bodies of law. The federal Constitution explicitly incorporated the English common law writ of habeas corpus as a restraint on executive detention, (192) but the Reconstruction Congress extended the writ to persons in state custody, (193) and the Supreme Court ultimately interpreted it as a basis for collateral attack on state convictions (194)--a remedy directed to the unique problems of American federalism. English admiralty law extended only to tidal waters, but American law stretched it to cover all navigable waterways by 1851, which had the intended effect of extending federal maritime jurisdiction to cover a broad swath of interstate commerce. (195) And the Supreme Court has both received and adapted the English common law of sovereign immunity--building upon such English remedies as the petition of right but then extending them to wholly new contexts, such as damages actions against law enforcement officers--to construct a relatively flexible array of remedies against government officials for constitutional violations. (196)

Federal courts law's incorporation of preexisting bodies of law thus illustrates the flip side of prescriptive authority, that is, its pairing of respect for the past with enablement of incremental change and reform. The most eloquent account of "living constitutionalism" in American law, the younger Justice Harlan's dissent in Poe v. Ullman, is squarely grounded in the common law method. (197) By incorporating preexisting bodies of law that themselves presuppose a strong role for judicial elaboration over time, this form of reliance on past practice also injects a degree of fluidity into federal courts doctrine.
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Title Annotation:Abstract through II. Historical Practice in Federal Courts Law B. Incorporation of Extant Bodies of Law, p. 535-579
Author:Young, Ernest A.
Publication:William and Mary Law Review
Date:Nov 1, 2016
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