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

C. Canons of Statutory Construction

The canons of statutory construction defer to historical practice in at least three senses. The first is that most of these rules themselves represent venerable traditions of interpretation. Abbe Gluck's recent work has investigated the fascinating and difficult question of whether methodologies of statutory construction are themselves law--so that, for instance, federal courts interpreting state statutes would be required to apply state canons of construction. (198) But whether or not that is true, there is no doubt that the canons also represent longstanding regularities of practice within the judiciary. (199) Federal courts apply the canons because previous courts have applied those canons. And the stability of the canons is thought to provide a baseline against which Congress can legislate. (200)

The second and third ways in which the canons defer to historical practice turn on the nature of the canon in question. The statutory interpretation literature generally divides rules of interpretation into two classes: descriptive canons, which embody judgments about how the enacting legislature most likely would have preferred to resolve ambiguities that arise within a statute; and normative canons, which implement other values that the legislature may or may not share. (201) Descriptive canons generally seek to assess legislative preferences by reference to regularities in past legislative practice--the judgment, for example, that when the legislature passes a new statute, it generally does not mean to disrupt other aspects of the law unless it specifically says that it does. (202) These canons thus embody deference to past legislative practice.

Normative canons, on the other hand, are problematic precisely because they so often fly in the face of likely legislative preference. (203) The rule of lenity, for example, holds that "when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language." (204) This approach cannot, to put it mildly, plausibly rest on a judgment that legislators generally look out for and mean to protect the interests of criminal defendants; rather, it is traditionally justified as protecting due process values of fair notice. (205) As the rule of lenity suggests, sometimes normative canons trace directly to constitutional principles. Often, however, the values protected are more diffuse. The rule disfavoring repeals of preexisting law by implication from a new statute, (206) for example, is hard to ground in any specific constitutional principle.

David Shapiro has demonstrated, however, that canons like the one against implied repeals serve a broader function of maintaining continuity and coherence in the law. For Professor Shapiro, the most important interpretive canons "are those that aid in reading statutes against the entire background of existing customs, practices, rights, and obligations--in other words, those that emphasize the importance of not changing existing understandings any more than is needed to implement the statutory objective." (207) This view of the canons takes in those rules of construction, like the rule of lenity or the presumption against preemption, (208) that point to specific constitutional principles, because those canons harmonize new laws with those principles without forcing an evaluation of actual constitutional conflict. (209) But as the rule against implied repeals suggests, Shapiro's notion of coherence also includes integration with the vast mass of preexisting subconstitutional law. (210) The canons respect the fact that subconstitutional law often plays a critical role in constituting our institutions, so that a repeal of a preexisting statute, regulation, or common law doctrine may be just as disruptive as a statute that undermines some constitutional value. (211)

Professor Shapiro's notion of statutory construction as an instrument of continuity with past practice is nowhere more apparent than with respect to statutes construing the authority of the federal courts. In Murdock v. City of Memphis, the Supreme Court construed an amendment to the statutory section prescribing the Court's jurisdiction over appeals from the state courts to permit only review of federal questions, not any state law issues that might also be necessary to resolve the entire dispute. (212) It did so notwithstanding a recent amendment that arguably broadened the Court's jurisdiction, noting that if it were Congress's intent to "revers[e] the policy of the government from its foundation in one of the most important subjects on which [Congress] could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention." (213)

A different result in Murdock would have disrupted the established relationship between state and federal law. As Martha Field has explained, if the United States Supreme Court could substitute its own view of state law for that of the highest state court, "it would not be possible to identify any body of law as 'state law.' It is thus because of Murdock that the whole concept of state law as distinct from federal law is a meaningful one." (214) While Murdock purported only to construe the Supreme Court's jurisdictional statute, it is a profoundly constitutive decision; it is, as Professor Field observes, "such a fundamental part of our way of thinking about the boundary between state and federal power that many of our suppositions, constitutional and otherwise, are built upon it." (215) The Court's construction of the statutory amendment was thus predicated on the need to ensure continuity with this broader web of past (and ongoing) practices.

Likewise, the Court's jurisdiction-stripping precedents--which consistently construe jurisdictional statutes in such a way as to minimize encroachments on the longstanding scope of federal jurisdiction--demonstrate the strength of the continuity impulse even in the teeth of aggressive new statutory language. (216) In INS v. St. Cyr, for example, the Court confronted a statutory text that seemed unequivocally to deprive federal courts of jurisdiction to review deportation orders. (217) The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provided that "[notwithstanding any other provision of law ... no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" certain enumerated criminal offenses. (218) Nonetheless, the Court found that this provision was not sufficiently clear to proscribe review by writ of habeas corpus: "[T]o conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law," the Court said, noting that "[t]he writ of habeas corpus has always been available to review the legality of Executive detention." (219) Moreover, the Court's prior precedents had demanded explicit textual references to habeas corpus in order to foreclose that remedy--a reference that, for all its aggressive language, the IIRIRA provision failed to include. (220)

Amanda Tyler has explained that St. Cyr and similar cases rely on "a combination of the canon against implied repeals and a clear statement rule protecting structural harmony, as well as a heavy dose of stare decisis--namely, continuing and strong reliance on the model set forth in Yerger." (221) One might also think of the Court's requirement of a super-strong clear statement in order to cut off federal jurisdiction as embodying a constitutional norm against jurisdiction stripping, albeit one defeasible by Congress if it acts with sufficient clarity. (222) These two views are not necessarily in tension. Hard constitutional limits on jurisdiction-stripping are hard to identify, (223) and the strongest arguments against such measures will generally be that they fly in the face of centuries of institutional practice concerning the relationship between Congress, the federal courts, and the courts of the states. (224) The canons of construction, in Professor Shapiro's model, exist primarily as a means for ensuring that new legislation does not unduly disrupt such practices. (225) What cases like St. Cyr illustrate most vividly is that the canons may be employed to enforce such continuity even in the teeth of what Congress almost surely intends. (226)

Of course, not everyone accepts Professor Shapiro's view of statutory construction as a means primarily of maintaining continuity with the past. As Professor Tyler points out,
   [P]roponents of an engineering vision of courts in the realm of
   statutory interpretation generally contend for an interpretive
   approach by which courts "update" the legislature's work and
   absolve that body of the need to police judicial constructions that
   may no longer remain in keeping with prevailing political or
   social norms. (227)


William Eskridge thus argues that statutes "should--like the Constitution and the common law--be interpreted 'dynamically,' that is, in light of their present societal, political, and legal context." (228)

But as Professor Eskridge's invocation of the common law suggests, even "dynamic" takes on statutory interpretation are not fundamentally inconsistent with an emphasis on continuity with past practice. In Burke's thought, organic growth is the flipside of prescriptive authority. For Burke, "the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission; without at all excluding a principle of improvement." (229) In Swift v. Tyson, for example, Justice Story construed the Rules of Decision Act to be consistent with preexisting practice--in both America and elsewhere--extracting a general body of commercial law principles from the customs of merchants. (230) Maintaining continuity with that longstanding practice also solidified the dynamic role of the federal courts in developing a nationally uniform body of commercial principles. (231)

But Burke insisted on an incremental method of change in which "[b]y a slow but well-sustained progress, the effect of each step is watched," and that any reforms "proceed[] upon the principle of reference to antiquity ... [and] be carefully formed upon analogical precedent, authority, and example." (232) As later students of Burke have pointed out, this is the method of the common law tradition, whereby "custom was constantly being subjected to the test of experience, so that if immemorial it was, equally, always up to date." (233) Justice Story's general commercial law, for example, was tied to and disciplined by existing practice and the need to coordinate with other courts applying the same body of law. (234) Much as the common law tradition has frequently facilitated organic growth in American constitutionalism, (235) so too the canons of interpretation have facilitated institutional change by cushioning the shocks that might otherwise deter or short-circuit reform. (236)

III. THE CONSTITUTIVE AND ENTRENCHMENT EFFECTS OF PRACTICE

The doctrines just discussed hardly exhaust the many ways in which federal courts law incorporates and defers to historical practice. Indeed, I have left out many of the more prominent examples in order to shine some light on instances in which the dynamic may be less obvious. But the examples I have highlighted are enough, I think, to support a few more general points about deference to historical practice in this area. Crucially, federal courts law uses historical practice in ways that diverge from its use in high-profile separation of powers disputes like Noel Canning and Zivotofsky. It is, I suggest, a mistake to focus only on these "big cases."

Two points of divergence are critical. First, federal courts law uses practice primarily to supplement and fill gaps in other sources of binding law--not to "gloss" the meaning of particular constitutional provisions. Largely because of this, federal courts law rarely entrenches past practice against change by ordinary legal means. Second, federal courts law generally does not rely on some theory of acquiescence by the other branches to justify reliance on past practice. In many settings, such acquiescence seems largely beside the point. Instead, the examples I have canvassed tend to rely on practice based on its longstanding pedigree. Federal courts law thus embraces--albeit often implicitly--a prescriptive rationale for past practice. I argue below that this rationale is normatively superior to an acquiescence model of historical practice.

A. The Nonentrenchment of Practice in Federal Courts Law

The vast majority of historical practices I have surveyed help constitute our judicial institutions--and in this sense properly fall under the rubric of "constitutional" interpretation--without entrenching those practices against change by ordinary political processes. The constitutive and entrenchment functions of constitutional law do not necessarily run together, and in federal courts law one frequently sees the former without the latter. This is true of each set of practices surveyed in the preceding Part.

The common law, for example, has generally been defeasible by statute; indeed, it was generally received into American law under the express condition that this would be so. (237) Both state and federal legislatures have interstitially supplanted that body of law as they deemed necessary. (238) Specific imports--such as the common law immunities of individual government officers or the equitable principles built into the abstention doctrines--can be modified or repealed by legislation. (239) Likewise, both the general maritime law and the general commercial law have often been altered or superseded by federal and state legislation. (240)

The canons of construction are likewise largely unentrenched. This is obviously true with respect to the canons' impact on construction of particular statutes; when canons grounded in established practice influence the construction of a statute, Congress may override the courts' work. (241) The same thing is generally true of the canons themselves. Certainly the courts themselves change the canons over time, employing them more insistently in some eras than others, creating new canons from time to time, and allowing others to fall into disuse. To the considerable extent that descriptive canons of construction reflect patterns of legislative practice, they necessarily change as that practice changes over time. (242) Congress is able to control the process of interpretation by legislating general rules of construction (although these are often ignored) (243) and by enacting interpretive principles in particular statutes. (244)

The harder question is whether Congress may override particular normative canons--particularly those grounded in constitutional values. Although I cannot develop the point here, an attempt to prevent the courts from considering constitutional principles in statutory cases would, at least in some circumstances, present grave separation of powers concerns. (245) When Congress has effectively sought to do so, its actions seem best understood not as precluding the courts from considering the Constitution but as either an exercise of its considerable power over remedies or a restriction on the courts' jurisdiction to decide a class of cases at all. But the critical point remains that canons set only default rules, and so Congress can always overcome them simply by clearly expressing its intent. In this ultimate sense, no canon is entrenched.

Judicial precedent presents a more difficult case. We must consider, first, the practice of stare decisis itself, and, second, the entrenchment of particular decisions. Scholars have debated whether Congress may override the doctrine of stare decisis by statute. (246) If there is a limit on this option, however, it seems likely to stem from general separation of powers concerns about the encroachment of one branch into the functions of another--not from a notion that stare decisis is itself constitutionally entrenched. Certainly courts have long felt free to tailor the rules of stare decisis to particular situations and to set the force of precedent aside under particular circumstances. Even if some basic level of precedential force is constitutionally entrenched, that protection is unlikely to extend to the varied details of current practice with respect to precedents.

What about the entrenchment of particular decisions? Most judicial precedents, of course, are not constitutional ones and thus can generally be altered or overridden by ordinary legislation. (247) That is ordinarily not possible in constitutional cases, (248) but the Court has compensated by lowering the threshold for judicial overruling of constitutional precedents. (249) Moreover, the elements of the Court's stare decisis calculus--especially the workability of the prior precedent and changes to its legal or factual underpinnings--speak directly to concerns about entrenchment of past practice in the face of a changing world. (250) Constitutional precedents are largely entrenched against change from outside the Court, however, (251) and that has made the Court's frequent recourse to a common law-like approach to constitutional development controversial. (252)

Even in the context of high-profile interbranch disputes, the Court has generally been reluctant to entrench practice against change through ordinary legislation. The Youngstown concurrences, for example, viewed presidential authority as largely a function of congressional authorization or prohibition. Both Justices Jackson and Frankfurter turned to past practice in service of that inquiry--that is, they looked to past practice to determine whether Congress had, in fact, authorized or prohibited the sort of executive action in question. (253) But nothing in this approach entrenched the past practice against legislative change; even in areas where Congress had broadly authorized (or at least acquiesced in) executive action, Congress remained free to repeal that authorization and replace it with a prohibition.

However, the Court's most recent presidential power decision-- Zivotofsky v. Kerry (254)--goes a giant step further. In that case, the majority concluded from past practice not only that the President has authority to endorse or not endorse the claims of foreign sovereigns to particular territory but also that this power is exclusive of Congress. (255) Congress could not, in other words, limit the President's authority by statute (as it had tried to do with respect to passports of infants born in Jerusalem). (256) The past practice of presidential recognition and congressional acquiescence had become constitutionally entrenched; presumably the only way to strip the President of this authority now would be to amend the Constitution.

The primary analogy in federal courts law is the Court's state sovereign immunity jurisprudence, which derives from longstanding common law practice a broad immunity against private suits that is not defeasible by federal legislation. (257) One might be tempted to call this principle of immunity a "gloss" on the text of the Eleventh Amendment, but the Court has clearly ruled out that interpretation. As Justice Kennedy has said, the phrase "Eleventh Amendment immunity" is "convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment." (258) Rather, the principle of immunity supplements the text; it is "a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today." (259)

This is not the place to renew old debates about the soundness of the Court's state sovereign immunity jurisprudence. It is sufficient to say that the Court's position is highly controversial both on the Court and in the academy. (260) Justice Stevens has written, for example, that "[t]he kind of judicial activism manifested in cases like Seminole Tribe [and] Alden v. Maine ... represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises." (261) I submit that an important driver of this controversy is the Court's attempt to confer on freestanding historical practice the same constitutionally entrenched status as the constitutional text itself. The Court has reached "[b]ehind the words of the constitutional provisions," as it said in Monaco u. Mississippi, for "postulates which limit and control" based in common law practice (262)--and it has entrenched those postulates against legislative alteration. As Justice Souter pointed out in Seminole Tribe, the Court's state immunity cases share the "characteristic vice" of Lochner v. New York, (263) in which the Court "treated the common-law background ... as paramount, while regarding congressional legislation to abrogate the common law ... as constitutionally suspect." (264)

I suspect that Zivotofsky, which featured the same basic notion of presidential power immune from legislative limitation that one finds in the infamous Bush administration "torture memos," (265) will prove similarly controversial. Entrenching practice raises a particularly difficult boundary problem that has bedeviled most practice-based theories of constitutional law. (266) If some practices are to have constitutional status, then it becomes critical to define with precision which practices are entrenched and which are not--and to justify the status of the favored practices. It is often exceedingly difficult to draw that line, and failure to draw it in a determinate and predictable way may well undermine the Court's legitimacy. (267)

This problem either does not arise or arises in a considerably more tractable form when practices supplement other sources of law but remain defeasible by ordinary legislation. That is why it is often helpful to decouple the constitutive function of extraconstitutional materials, like practice, from any claim to an entrenchment function. I do not mean to suggest that all doctrines that both supplement the constitutional text by reliance on practice and entrench that practice against change through ordinary legal processes are misguided. My point is simply that such instances will always be more vulnerable to general criticisms of reliance on historical practice, such as arguments that such reliance amounts to "constitutional adverse possession," that it unduly freezes the progressive development of the law, or conversely, that it provides ready fodder for judge-driven constitutional change. I consider these criticisms in greater detail in the next section.

B. Acquiescence and Prescription

The use of past practice in federal courts cases often displays a second difference from its use in high-profile interbranch controversies like Noel Canning and Zivotofsky. In the latter sort of case, courts often ground the authority of past practice in the acquiescence of rival branches. (268) The Zivotofsky court, for example, found that "[f]rom the first Administration forward, the President has claimed unilateral authority to recognize foreign sovereigns," and "[f]or the most part, Congress has acquiesced in the Executive's exercise of the recognition power." (269) This is not new. In Youngstown, for instance, Justice Frankfurter emphasized the weight of presidential practice "long pursued to the knowledge of the Congress and never before questioned." (270) Scholars have generally approved of this practice. My colleague Jeff Powell, for example, has written that "[a]greement between the political branches on a course of conduct is important evidence that the conduct should be deemed constitutional." (271)

Acquiescence plays a considerably less central role in federal courts cases. The basic limitation on federal judicial power--subject matter jurisdiction--is particularly hostile to any notion of acquiescence.
   [T]he rule, springing from the nature and limits of the judicial
   power of the United States, is inflexible and without exception,
   which requires this court, of its own motion, to deny its own
   jurisdiction, and, in the exercise of its appellate power, that of
   all other courts of the United States, in all cases where such
   jurisdiction does not affirmatively appear in the record. (272)


This means that "no action of the parties can confer subject matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, principles of estoppel do not apply, and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings." (273) As a result, "[e]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it." (274) As with the parties, so too with Congress: the Court has made clear that Congress may not--by deliberate act, much less by acquiescence--confer federal jurisdiction that Article III does not permit. (275)

Many federal courts cases do involve interinstitutional conflicts at some level, but either the nature of those conflicts or the posture in which they arise may make acquiescence less salient. For example, the Seminole Tribe case held that Congress may not abrogate state sovereign immunity when it uses its general legislative powers under Article I; (276) it thus adjusted the allocation of power between Congress and the States. But the opinions in that case do not speak of acquiescence. (277) Perhaps this is because acquiescence is more difficult to measure when it involves the actions of the fifty States vis-a-vis Congress. Or perhaps it is because although abrogation of sovereign immunity implicates the power of Congress over the States, it most directly affects the rights of individual plaintiffs suing the government. We do not generally look to acquiescence to establish the Government's rights and immunities vis-a-vis individuals. Many instances of judicial reliance on past practice in federal courts cases--such as the individual officer immunity cases or the abstention cases--involve individual rights claims in which it would seem odd to allow Congress's acquiescence to diminish the rights of private plaintiffs. (278)

Most cases involving the judicial power implicate both structural and individual rights concerns in this way. As the Court recognized in Commodity Futures Trading Commission v. Schor, for example, Article III "serves both to protect 'the role of the independent judiciary within the constitutional scheme of tripartite government' ... and to safeguard litigants' 'right to have claims decided before judges who are free from potential domination by other branches of government.'" (279) Schor and similar cases have held the individual interest to be waivable but only by the individual litigant. (280) And the structural interest is generally treated as nonwaivable by such litigants. (281)

Waiver of structural interests by the acquiescence of institutional actors is a more mixed bag. In the conditional spending cases, for example, the Court has allowed states to agree to statutory conditions that Congress could not impose directly without violating principles of federalism. (282) But the Court's federalism cases have also rejected arguments from acquiescence. In New York v. United States the Court considered "what appears at first to be a troubling question: How can a federal statute be found an unconstitutional infringement of state sovereignty when state officials consented to the statute's enactment?" (283) Justice O'Connor's answer stemmed from the fundamental nature of structural principles:
   The Constitution does not protect the sovereignty of States for the
   benefit of the States or state governments as abstract political
   entities, or even for the benefit of the public officials governing
   the States. To the contrary, the Constitution divides authority
   between federal and state governments for the protection of
   individuals....

      Where Congress exceeds its authority relative to the States,
   therefore, the departure from the constitutional plan cannot be
   ratified by the 'consent' of state officials. (284)


Because structural principles benefit everyone, then, they cannot be waived or bargained away by office-holders in particular units of the government.

One might argue that separation of powers and federalism are just different in this regard, perhaps because the branches of the federal government are coequal interpreters of the Constitution and (so the argument might go) the states are not. But Justice O'Connor's opinion in New York explicitly equated federalism and separation of powers, insisting that "[t]he Constitution's division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment." (285) Hence, "[t]he constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States." (286) Tellingly, Congress's decision to pass a law encroaching on its own powers has not generally prevented litigants from successfully challenging such a law on separation of powers grounds. In Clinton u. City of New York, for example, the Court struck down the line-item veto statute on separation of powers grounds notwithstanding Congress's own decision to back the law. (287) Concurring, Justice Kennedy wrote that "[i]t is no answer, of course, to say that Congress surrendered its authority by its own hand.... Abdication of responsibility is not part of the constitutional design." (288)

Broad notions of acquiescence are problematic for a second reason, grounded in the general inability of one Congress to bind its successors. (289) As Justice Souter explained in United States u. Winstar Corp., that principle derives from English political theory and practice but survives, in a more limited fashion, in America. (290) Hence Chief Justice Marshall's opinion in Fletcher v. Peck accepted the general principle "that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature." (291) 292 293 The notion that any given Congress may, through a course of action or simply by inaction, permanently cede power to another branch seems to fly in the face of this venerable principle. As Justice Kennedy put it in the line-item veto case, "[t]he Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow." (292)

Chief Justice Marshall's discussion in Fletcher recognized that America's commitment to notions of higher law unknown in England necessarily imposed two crucial limits on parliamentary sovereignty. A legislature might create vested rights which a subsequent legislature must honor, and a legislature's sovereignty is also limited more broadly by the requirements of the federal Constitution. (293) One might thus argue that acquiescence is simply a tool for ascertaining the meaning of these constitutional limitations--not an attempt by current political actors to bind their successors outside the Constitution. But that argument only works if we treat governmental practices simply as potentially persuasive evidence of what the Constitution means, without conferring on those practices any independent power to fix or change that meaning. Acquiescence would thus merely add to the persuasiveness of a branch's past interpretation of constitutional meaning, because an at-least-potentially rivalrous branch has concurred in that interpretation. (294)

My sense is that cases like Zivotofsky tend to give past acquiescence more weight than this, and to that extent they raise considerable theoretical and practical difficulties. To the extent that postratification practice influences a court to choose a less plausible interpretation of a provision's original meaning, one might object that such reliance amounts to a constitutional amendment outside Article V. Any use of practice raises problems of indeterminacy, but entrenching that practice against ordinary legal change raises the stakes considerably. And much of the writing on acquiescence has documented the advantage it affords to the more active branch. It is easy for the President to take actions establishing a particular practice, but because Congress generally cannot act without passing a law, it is difficult for Congress to affirmatively oppose presidential actions asserting executive prerogatives. (295)

Conversely, political actors may be reluctant not to assert their prerogatives in particular instances for fear of establishing an adverse precedent. In 2002, for example, Vice President Richard Cheney invoked executive privilege and refused to disclose details of meetings that he held with officials from the troubled Enron Corporation. (296) It is far from clear that anything scandalous transpired, but Cheney would have had significant incentives to invoke the privilege regardless, lest he set an adverse precedent that such meetings are not covered. These sorts of incentives exacerbate the difficulty of political compromise--a commodity that is already in short supply.

The federal courts cases suggest a different ground for reliance on past practice. For the most part, federal courts cases seem to rely on past practice simply because it is past. Federal courts doctrine incorporates the common law and equity practice because it has been around for a long time and is already integrated into innumerable aspects of our law. The canons of statutory construction persist because they themselves represent a longstanding part of the process of construction and, equally important, they integrate new law with old law. And, as I have already discussed, the most persuasive judicial precedents are those that have been repeatedly reaffirmed and applied over long periods of time.

Past practice thus enjoys prescriptive authority in this field. (297) One might argue for this authority on any number of grounds. Burke argued that repeated and longstanding practices embodied a higher form of rationality, based on the concurrence of many minds over generations, rather than the limited reason of present-day lawmakers. (298) As David Strauss has written,
   The central traditionalist idea is that one should be very
   careful about rejecting judgments made by people who were
   acting reflectively and in good faith, especially when those
   judgments have been reaffirmed or at least accepted over time.
   Judgments of this kind embody not just serious thought by one
   group of people, or even one generation, but the accumulated
   wisdom of many generations. They also reflect a kind of rough
   empiricism: they do not rest just on theoretical premises; rather,
   they have been tested over time, in a variety of circumstances,
   and have been found to be at least good enough. (299)


Others stress the disruptive effect of uprooting longstanding practices on settled expectations, as well as the difficulties of foreseeing all the potential consequences of such changes. (300) Anthony Kronman has even argued that continuity with the social norms and projects of past generations is what distinguishes humans from animals. (301) And still others have emphasized the sheer difficulty of undertaking anything new if one must constantly reinvent the wheel by reevaluating established ways of doing things. (302)

I have little to add to these justifications here. My primary interest is in the frequent critiques of giving legal force to the past. I turn to those criticisms in the next section.

C. Nonentrenchment and the Critique of Prescription

Reliance on historical practice in constitutional law has been criticized from a number of different perspectives. Frequent critiques include the notions that employing past usage in constitutional interpretation results in a form of "constitutional adverse possession," that respect for settled authority represents too great a concession to the "dead hand of the past," and that--somewhat inconsistently with the first two critiques--allowing judges to invoke nonconstitutional practices licenses judicial activism by conferring too much flexibility on judges. These are all criticisms worth taking seriously, and any court relying on historical practice would do well to keep them firmly in mind. The critical point, however, is that each of these critiques applies most strongly when past practice is elevated to the status of a constitutionally entrenched norm.

Take the "adverse possession" critique first. In NLRB v. Noel Canning, for example, Justice Scalia's concurrence objected to the majority's reliance on past practice to expand the scope of the President's power to make recess appointments. (303) "The majority justifies those atextual results on an adverse-possession theory of executive authority," he complained, because "Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor." (304) Rather than defend an adverse possession approach in principle, the majority unsurprisingly denied that this was what it was up to. (305) And as my colleagues Curt Bradley and Neil Siegel have shown, there are important differences between the historical gloss approach approved in Noel Canning and the rule of adverse possession in property law. (306) Most important, "[r]elying on historical practice to help resolve uncertainties about such allocations [of constitutional power] is different from allowing it to alter a clearly established allocation." (307) But it is not that different. Just as canons of statutory construction play a significant role only when they cause a court to adopt a statutory reading contrary to what they would have adopted if they had applied only the other traditional sources of statutory meaning, (308) so too historical practice is most significant when it tips the balance in favor of one constitutional interpretation rather than another. (309) In such cases, practice changes constitutional meaning from what it would otherwise be--at least to some extent.

Ambiguities plague the constitutional text, and courts often have to resolve them somehow. Hence, the more appropriate question may not be whether it is legitimate for historical usage to shape constitutional meaning but rather how past practice compares to other sources of constitutional meaning. But even from this perspective, there is something unattractive about the incentives that relying on practice gives to the various institutions of government to aggressively stake out their positions and maximize their own prerogatives. It is rather like allowing the foxes to design the security system for the henhouse. In this sense--the incentives that it gives to bad behavior--reliance on practice can resemble adverse possession.

This objection is far more troubling, however, when the rights and prerogatives secured in this manner are perpetual--that is, when reliance on past practice entrenches that practice against alteration by ordinary legal means. Hence, it is important to Professors Bradley and Siegel's qualified defense of practice in Noel Canning that it rarely confers rights of the President that Congress cannot regulate. (310) They note that "in foreign affairs settings such as war powers, executive agreements, the termination of treaties, and the like, substantial historical practice supports unilateral presidential authority, but little practice establishes that Congress is disabled from restricting or regulating that authority." (311) The Court's subsequent decision in Zivotofsky v. Kerry, of course, casts some doubt on this conclusion. (312) But the federal courts doctrines I have surveyed here do have that character--that is, they employ past practice to supplement the constitutional text and set default rules, but they do not purport to elevate that practice to entrenched constitutional status. To my mind, this strikes the right balance between the need for some source of law to answer questions unresolved in the constitutional text and the imperative to prevent (or at least mitigate) institutional self-aggrandizement.

A second objection to prescription is--not surprisingly--that it is too conservative. One need not be a Jeffersonian intent on holding a revolution every generation to be troubled by the prospect of locking in past practice. (313) For example, Justice Scalia suggested in Burnham v. Superior Court of California that procedural practices, such as "tag" jurisdiction, that have endured throughout our history are always consistent with "due process." (314) "The short of the matter," Scalia said, "is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of 'traditional notions of fair play and substantial justice.'" (315) This drew a strong academic dissent from David Strauss, who argued that traditionalism "is not remotely an acceptable approach" because it would lock us in to any number of deplorable practices. (316)

I have assessed general arguments against traditionalism elsewhere; (317) for present purposes, two points are critical. First, as with "adverse possession," concerns about the dead hand of past practice stifling innovation and change become radically less compelling when past practice is not constitutionally entrenched. The primary role of historical practice in federal courts law is to fill gaps--to supply procedures, remedies, or defenses that are necessary to constitute a functioning judicial system but unspecified in the constitutional text or the various judiciary acts. Far from embodying a "dead hand," this sort of supplementation enables the legal system to live and function effectively. (318) And with only rare exceptions-- for example, state sovereign immunity--these gap-fillers are not themselves entrenched against change through ordinary legislation. Moreover, the courts themselves have modified past practices in light of contemporary necessities. (319)

Second, the past practices upon which federal courts doctrine relies are frequently themselves highly dynamic bodies of law. As Justice Scalia has noted, "[t]here is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change." (320) Incorporating the common law or equity practice into various aspects of federal courts law not only facilitates the ability of that law to fulfill its (frequently progressive) purposes, (321) but it also incorporates a tradition of judicial innovation in response to changing institutional needs. Even if, for example, the canons of construction may blunt some of the impact of reformist legislation, the imperative to integrate reform with existing legal structures and norms may ultimately make reform more palatable by reducing its associated risk of disruption. And the common law vision of constitutional law, defined primarily by judicial precedent, has frequently helped constitutional law address changing social practices and conditions. (322)

Five years after slamming Justice Scalia's traditionalism as "just not an acceptable creed," (323) Professor Strauss wrote an important article advocating "Common Law Constitutional Interpretation." (324) That article rejected claims that the common law is too conservative, noting that "at various periods in its history the common law has shown a great capacity for innovation." (325) My point is not to accuse one of our most thoughtful legal scholars of inconsistency; rather, he was--in a sense--right both times. (326) Both the conservatism that Strauss criticized and the organic reformism that he praised are essential elements of Burke's theory of prescription. (327) If reliance on past practice rests on norms of prescription, then that may encourage courts to implement that reliance in the organic, incremental, and disciplined fashion that prescription celebrates.

These observations, alas, play right into the third and final criticism of reliance on past practice: far from being too conservative, reliance on settled authority facilitates judicial activism by loosening the constraints on judicial reasoning. (328) Certainly, the strong role for practice described here empowers judges by proliferating the sources to which they may turn in construing the constitutional text, and by condoning the use of practice to supplement that canonical text in unprovided-for areas. In this sense, reliance on practice risks replicating the stock criticism of legislative history, which is that it is like "looking over a crowd and picking out your friends." (329) Hence, Judge Kozinski has argued that constitutionalizing past practices "will allow judges to pick and choose those ancient practices they find salutary as a matter of policy, and give them constitutional status." (330) On the other hand, the authority of established norms and practices is likely to rule out certain forms of activism, such as a reading of the Vesting Clause of Article I that invalidates the administrative state or a reading of the Fourteenth Amendment that enforces Rawlsian egalitarianism.

Reliance on practice is like any other modality of constitutional interpretation, in that it can get out of hand if not disciplined by the conventions of legal argument and the norms of the judicial craft. (331) It is unclear that any theory of the sources of constitutional interpretation can truly constrain courts. (332) What we can do is insist that most instances of judicial creativity remain subject to democratic checks. It is worth noting that Burke's notion of prescription comes from a legal system built on a baseline of parliamentary sovereignty. Both the authority of tradition and the common law's potential for organic growth and judicial creativity are tempered, in British law, by the democratic authority of Parliament to overrule traditions that are no longer useful or innovations that press too far. This comparative law point simply underscores the argument with which I began this Part--that is, that in most cases, historical practices should not be constitutionally entrenched unless they stem clearly and directly from the text of the Constitution. As long as that is true, excesses of both conservatism and activism will be subject to correction by later legislatures and courts.

CONCLUSION

Burkean invocations of prescription have always rung a bit strange in America. (333) Our Constitution is not, like Burke's, "a prescriptive Constitution ... whose sole authority is, that it has existed time out of mind." (334) Americans have, rather, a constitutive document, whose authority can be grounded in specific democratic exertions, with a canonical text that can be parsed and debated, and identifiable Framers whose intents and understandings can be plumbed. We have this arrangement, moreover, as the result of a revolution that was, at least in part, a rather emphatic rejection of the prescriptive force of longstanding British institutions. (335)

Nonetheless, just as the new American nation adopted the English common law as a familiar, off-the-shelf set of default principles for the resolution of disputes after the Revolution, we have also adopted a broad tendency to rely on past practices to resolve present legal quandaries. This tendency is nowhere more evident than in the law of federal courts, which at every turn relies on extensive bodies of doctrinal precedents, incorporates preexisting bodies of law, and employs canons of statutory construction to harmonize new enactments with past practice. Although constitutional theory is beginning to wake up to the significance of historical practice as a distinctive modality of constitutional interpretation, theorists will do well not to overlook this body of law in favor of more high-profile interbranch disputes over the separation of powers. Because federal courts law grounds its reliance on past usage in prescriptive authority and generally does not entrench practice against change through ordinary legislation, it provides a healthier model for how practice should figure across the board.

(1.) See 134 S. Ct. 2550, 2577 (2014) (holding that the Recess Appointments Clause permits appointments during both inter- and intra-session recesses and covers vacancies that arise prior to the recess but does not permit appointments when the Senate is in pro forma session).

(2.) See 135 S. Ct. 2076, 2093-94, 2096 (2015) (holding that Congress may not require the Secretary of State to designate "Israel" as the place of birth on a passport issued to a citizen born in Jerusalem, in contravention of executive policy).

(3.) See, e.g., Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1, 56-65; Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 412-13 (2012); Shalev Roisman, Constitutional Acquiescence, 84 Geo. Wash. L. Rev. 668, 702-10(2016).

(4.) By "federal courts law," I mean the body of law governing the jurisdiction and remedial powers of the federal judiciary, as well as that judiciary's interaction with state law and state courts. See generally Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 VAND. L. Rev. 953, 961-63 (1994) (discussing the somewhat fuzzy boundaries of the federal courts field). I also construe the term to include recurrent institutional problems arising in federal litigation, such as the federal courts' stance toward statutes and their own precedents. These are not exclusively problems of federal courts law, but they are much-discussed in that field.

(5.) See, e.g., Boumediene v. Bush, 553 U.S. 723, 795 (2008) (striking down restrictions on judicial review of determinations that Guantanamo Bay detainees were enemy combatants under the Suspension Clause); Ex parte McCardle, 74 U.S. (7 Wall.) 506, 512-13, 515 (1868) (upholding a restriction on the Supreme Court's jurisdiction to review challenges to military reconstruction of the South, albeit noting other avenues of appeal).

(6.) See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

(7.) See Carey v. Piphus, 435 U.S. 247, 257-58 (1978).

(8.) See Tower v. Glover, 467 U.S. 914, 920 (1984). Although Harlow v. Fitzgerald, 457 U.S. 800 (1982), extended qualified immunity beyond the scope of the common law, later cases have made clear that the common law remains highly relevant, especially when immunity claims are made in new contexts. See Richardson v. McKnight, 521 U.S. 399, 404-07 (1997) (considering historical practice and the common law in rejecting qualified immunity claimed by prison guards employed by a private contractor); Tower, 467 U.S. at 921 (considering an immunity claim by a public defender in light of the common law immunities of English barristers).

(9.) See Giles v. Harris, 189 U.S. 475, 486 (1903).

(10.) See, e.g., Alden v. Maine, 527 U.S. 706, 715 (1999) (grounding state sovereign immunity in the English common law); Ex parte Young, 209 U.S. 123, 161-62 (1908) (recognizing private remedies against state officials, notwithstanding sovereign immunity, based in part on traditions of equitable relief against government officials in English practice).

(11.) See, e.g., David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 925-26 (1992).

(12.) See, e.g., Younger v. Harris, 401 U.S. 37, 43 (1971) (relying on longstanding equitable principles to forbid federal judicial interference with ongoing state criminal proceedings); Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 624 (1874) (rejecting arguments that an amendment to the Supreme Court's jurisdictional statute was intended to fundamentally alter the relationship between that court and the state courts).

(13.) See, e.g., Anastasoff v. United States, 223 F.3d 898, 903 (8th Cir.) (suggesting that stare decisis is part of the meaning of the "judicial power"), vacated as moot, 235 F.3d 1054 (8th Cir. 2000).

(14.) See Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 415, 420 (2007) [hereinafter Young, Outside the Constitution].

(15.) See Karl Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 3 (1934). The notion that a constitution functionally includes all the legal materials that define, facilitate, and constrain a government's exercise of its powers is commonplace in British law, which has long defined the "Constitution" as simply the sum of these materials. See A.V. Dicey, Introduction to the Study of the Law of the Constitution 22-23 (5th ed. 1897).

(16.) See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2095 (2015).

(17.) See, e.g., Joseph Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries, in Constitutionalism: Philosophical Foundations 152, 153 (Larry Alexander ed., 1998); Young, Outside the Constitution, supra note 14, at 415-28.

(18.) See, e.g., Tower v. Glover, 467 U.S. 914, 920 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).

(19.) See Tower, 467 U.S. at 920 ("On its face [section] 1983 admits no immunities.").

(20.) See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 165-66 (1996) (Souter, J., dissenting) (criticizing the majority for conferring constitutional status on state sovereign immunity that forecloses alteration by statute).

(21.) See, e.g., Zivotofsky, 135 S. Ct. at 2091; NLRB v. Noel Canning, 134 S. Ct. 2550, 257172 (2014); see also Bradley & Siegel, supra note 3, at 54 ("Under most accounts of historical gloss, there must be some acquiescence in the practice by the other political branch of government in order for the practice to be credited."); Roisman, supra note 3, at 669-71.

(22.) Edmund Burke, Speech on Parliamentary Reform (June 16, 1784), in 4 The Writings and Speeches of Edmund Burke 215, 219 (Paul Langford ed., Clarendon Press 2015) [hereinafter Burke, Parliamentary Reform].

(23.) Id.

(24.) See, e.g., J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 Cardozo L. Rev. 1613, 1615 (1990).

(25.) See, e.g., David A. Strauss, Tradition, Precedent, and Justice Scalia, 12 CARDOZO L. Rev. 1699, 1708 (1991) [hereinafter Strauss, Tradition].

(26.) See, e.g., Noel Canning, 134 S. Ct. at 2617 (Scalia, J., concurring in the judgment) (arguing that by relying on ambiguous historical practice rather than the constitutional text, "[t]he majority replaces the Constitution's text with a new set of judge-made rules to govern recess appointments").

(27.) See, e.g., Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1127 (1998) (discussing the "dead hand problem" in constitutional law).

(28.) See generally Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 883 (1986); Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 8 (1985); Ernest A. Young, Preemption and Federal Common Law, 83 Notre Dame L. Rev. 1639, 1640 (2008).

(29.) See Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1808 (2015) [hereinafter Fallon, History] ("[A]ny practice-based theory of law contains an irreducible element of circularity: what is accepted as law determines what the law is, either directly in cases of consensus or partly when otherwise disputable questions must be resolved based on a mix of fit with past practice and normative attractiveness.").

(30.) See id. at 1755-56.

(31.) See Young, Outside the Constitution, supra note 14, at 455.

(32.) 1 Bruce Ackerman, We the People: Foundations 6-7 (1991); see also Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1059-60, 1093-95 (1988); Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457 (1994).

(33.) See, e.g., Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1286-1301 (1995) (unpersuaded).

(34.) See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).

(35.) See, eg., Ronald Dworkin, Law's Empire 410-11 (1986); Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder, Keeping Faith with the Constitution, at xv-xxi (2010); Rebecca L. Brown, Assisted Living for the Constitution, 59 DRAKE L. Rev. 985, 999 (2011); Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969).

(36.) See, eg., Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 5-6 (2005); Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 1-10 (1990).

(37.) A limited constitutional literature on Burke has developed in recent years, but it has been written primarily by scholars who self-identify as progressives. See, eg., Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353 (2006). That literature is useful and interesting, but for obvious reasons its embrace of Burke is partial and limited. For an exploration grounded more thoroughly in Burke's writings and speeches, see Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619 (1994) [hereinafter Young, Rediscovering Conservatism].

(38.) Compare, e.g., Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226 (1988) (defending focus on the Framers' intent), with Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980) (just like it sounds).

(39.) Philip Bobbitt, Constitutional Interpretation 12-13 (1991).

(40.) Fallon, History, supra note 29, at 1753.

(41.) On history's relation to the organic growth of constitutional meaning, see Young, Rediscovering Conservatism, supra note 37, at 688-712.

(42.) See generally Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1, 47 (7th ed. 2015) [hereinafter Hart & Wechsler].

(43.) See, eg., sources cited supra note 3.

(44.) A recent panel of the Association of American Law Schools Section on Federal Courts addressed 'The Role of History in the Federal Courts Canon." See Fallon, History, supra note 29; Tara Leigh Grove, Article 111 in the Political Branches, 90 Notre Dame L. Rev. 1835 (2015); Amanda L. Tyler, Assessing the Role of History in the Federal Courts Canon: A Word of Caution, 90 NOTRE Dame L. Rev. 1739 (2015) [hereinafter Tyler, History].

(45.) See Tyler, History, supra note 44, at 1739 ("[I]n the federal courts arena--more so than in the broader domain of constitutional law--originalism has always wielded tremendous influence over much of the judicial and scholarly thinking.").

(46.) See, e.g., Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 523-26, 530-33 (1954); Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 543-47 (1954).

(47.) Practice, Oxford English Dictionary (3d ed. 2006) (definition 2b); see also id. ("The actual application or use of an idea, belief, or method, as opposed to the theory or principles of it.") (definition 2a).

(48.) Id. (definitions 3a, 3b); see also id. ("Law. An established legal procedure, esp. that of a court of law; the law and custom on which such procedure is based.") (definition 3c).

(49.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring).

(50.) See NLRB v. Noel Canning, 134 S. Ct. 2550, 2561-64 (2014); Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091-94 (2015).

(51.) For example, George Washington's decision not to run for a third term is a classic example of a historical practice that shaped public understandings of the Presidency. See, e.g., Stephen M. Griffin, Understanding Informal Constitutional Change 13-14 (Tulane Univ. Sch. of Law Pub. Law & Legal Theory Working Paper Series, Paper No. 16-1, 2016), http://ssrn. com/abstract=2724580 [https://perma.cc/3BHK-C9P3] (discussing the significance of this example). That decision derived considerable force from subsequent presidents' repeated efforts to conform their practice to Washington (at least until Franklin D. Roosevelt). See id. But much of its force surely derived from the prestige and personal authority of Washington himself. See, e.g., Richard Brookhiser, Founding Father: Rediscovering George Washington 185-90 (1996) (discussing the power of Washington's example).

(52.) See The Federalist No. 37, at 241, 245 (James Madison) (Isaac Kramnick ed., 1987); see also, e.g., Stanley Elkins & Eric McKitrick, The Age of Federalism 55-58 (1993) (discussing how very early interactions between President Washington and the Senate demonstrated the unworkability of the Senate "advising" the President before he took action on a matter, establishing a precedent emphasizing ex post "consent").

(53.) See Bradley & Siegel, supra note 3, at 29-41 (canvassing and rejecting arguments for exclusive reliance on early practice in the broader separation of powers context); see also William Baude, Liquidation and Federal Judicial Power 4 (Oct. 2015) (unpublished manuscript) (on file with the William & Mary Law Review) (arguing that Madison gave primacy to later practice).

(54.) See infra Part II.B.

(55.) See, e.g., Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1874) (construing amendments to the Supreme Court's jurisdictional statute not to disrupt the longstanding relationship between the Court and the state courts).

(56.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring).

(57.) See id. ("It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.").

(58.) The FEDERALIST No. 37, supra note 52, at 244; see also id. at 245 ("When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.").

(59.) Id.

(60.) See, e.g., 1 Annals of Cong. 495 (1789) (Joseph Gales ed., 1834) (Madison arguing to his colleagues in the First Congress that their practice regarding presidential removal of executive branch officers "will become the permanent exposition of the Constitution" on that point); see also Bradley & Siegel, supra note 3, at 34 (emphasizing that "Madison referred both to practice and to judicial decisions as involved in liquidation").

(61.) See NLRB v. Noel Canning, 134 S. Ct. 2550, 2561-64, 2570-73 (2014).

(62.) 87 U.S. (20 Wall.) 590, 630-31 (1874). This rule is subject to an important exception where state law issues are antecedent to a federal question, see, e.g., Henry P. Monaghan, Supreme Court Review of State Court Determinations of State Law in Constitutional Cases, 103 Colum. L. Rev. 1919 (2003); Hart & WECHSLER, supra note 42, at 487-88, but that exception is also grounded in historical practice dating back at least to Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).

(63.) See Alden v. Maine, 527 U.S. 706, 713 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 69 (1996); see also Monaco v. Mississippi, 292 U.S. 313, 322 (1934) ("Manifestly, we cannot rest with a mere literal application of the words of [section] 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control.").

(64.) See Noel Canning, 134 S. Ct. at 2567-68.

(65.) Some commentators have seen an important difference between the use of practices stretching over the course of our history to interpret ambiguous constitutional text ("gloss") and a focus on immediate postratification practice to fix the meaning of ambiguous terms ("liquidation"). The important point for my purposes, however, is simply that both gloss and liquidation employ practice as an interpretive tool for discerning the meaning of ambiguous constitutional text.

(66.) See Younger v. Harris, 401 U.S. 37, 43-44 (1971) (relying on English equity practice for rule barring federal court interference with pending state court criminal proceedings).

(67.) U.S. Const, art. II, [section] 3.

(68.) Zivotofsky v. Kerry, 135 S. Ct. 2076, 2085 (2015).

(69.) Id. at 2084 (citing an international law treatise).

(70.) See id. at 2091-94.

(71.) See, e.g., Louis Henkin, Foreign Affairs and the United States Constitution 1315 (2d ed. 1996) (identifying executive foreign affairs powers that are "missing" from the constitutional text but that have been filled in by practice).

(72.) 135 S. Ct. at 2096.

(73.) See, e.g., John Rawls, Political Liberalism 227-30 (1993) (identifying "constitutional essentials"); Adam Tomkins, Public Law 3-6 (2003); Raz, supra note 17, at 153-54.

(74.) See Raz, supra note 17, at 153-54; Young, Outside the Constitution, supra note 14, at 415-16. The British Constitution, for example, is generally not entrenched because the Crown in Parliament retains authority to make or unmake any law. See Tomkins, supra note 73, at 16-17.

(75.) See The Federalist No. 37, supra note 52, at 243-45; see also Missouri v. Holland, 252 U.S. 416, 433 (1920) (Holmes, J.) ("[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.").

(76.) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

(77.) See Young, Outside the Constitution, supra note 14, at 418-20.

(78.) See generally Llewellyn, supra note 15, at 6 (discussing the nation's "working Constitution"). As Stephen Griffin has pointed out, Professor Llewellyn took practice to have more than a gap-filling role; the practice is the Constitution, even when it may be inconsistent with textual rules. See Griffin, supra note 51, at 12.

(79.) See generally Hart & Wechsler, supra note 42, at 1-47; Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development 24-31 (2012).

(80.) Young, Outside the Constitution, supra note 14, at 454, 473.

(81.) See id. at 455.

(82.) See Fallon, History, supra note 29, at 1817 ("At an early point in our history, The Correspondence of the Justices and the acceptance of its rationale by the Supreme Court, presidents, and the American public placed advisory opinions in the category of the constitutionally forbidden.").

(83.) See Young, Outside the Constitution, supra note 14, at 454-55. Other theories of a "functional" or "small c" constitution typically do assert that these additional rules and institutions are entrenched to some degree. See, e.g., Ackerman, supra note 32, at 6-7; William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 1-2, 7-8 (2010); Llewellyn, supra note 15, at 26-29. This creates a lot of pressure to define what is in and what is out--a burden that, in my view, these other theories have largely failed to carry. See Young, Outside the Constitution, supra note 14, at 448-54.

(84.) NLRB v. Noel Canning, 134 S. Ct. 2550, 2617 (2014) (Scalia, J., concurring in the judgment).

(85.) See, e.g., Quackenhush v. Allstate Ins. Co., 517 U.S. 706, 732 (1996) (Scalia, J., concurring) (noting that the abstention doctrines, which are grounded in equity practice, are subject to Congress's legislative power).

(86.) See, e.g., INS v. St. Cyr, 533 U.S. 289, 314 (2001) (holding Congress's power to restrict federal court jurisdiction subject to a strong clear statement rule but not constitutionally prohibited altogether).

(87.) See Prescription, Oxford English Dictionary (3d ed. 2007) (defining "prescription" as "ancient or continued custom, esp. when regarded as authoritative" and a "[c]laim founded upon long use").

(88.) Burke, Parliamentary Reform, supra note 22, at 219.

(89.) Id.

(90.) Id. at 219-20.

(91.) See J.G.A. Pocock, Burke and the Ancient Constitution: A Problem in the History of Ideas, in Politics, Language and Time: Essays on Political Thought and History 202, 227 (1971).

(92.) 1 William Blackstone, Commentaries *67-68; see also id. at *64 (observing that the unwritten laws of England "receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom").

(93.) Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029, 1032-33 (1990).

(94.) See id. at 1065-66. For a different argument that the past has authority simply because it is the past, see Raz, supra note 17, at 173 (arguing that "[c]onstitutions, at least old ones, do not derive their authority from the authority of their authors," but rather "are valid just because they are there, enshrined in the practices of their countries").

(95.) See, e.g., Roisman, supra note 3, at 703-04 (stating, with little elaboration, that past practice cannot have authoritative force without some further normative reason behind it).

(96.) One hopes that the long-awaited completion of the definitive Clarendon Press edition of Burke's writings and speeches, see supra note 22, and several recent biographical studies, see, e.g., Richard Bourke, Empire and Revolution: The Political Life of Edmund Burke (2015); David Bromwich, The Intellectual Life of Edmund Burke: From the Sublime and Beautiful to American Independence (2014), may rekindle broader interest in Burke's thought.

(97.) See, e.g., Charles Fried, Saying What the Law Is: The Constitution in the Supreme Court 6-9 (2004); Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 599 (1987).

(98.) See Michael Oakeshott, On Being Conservative, in Rationalism in Politics and Other Essays 407, 410-12 (new & expanded ed. 1991); Young, Rediscovering Conservatism, supra note 37, at 654-56 (discussing Burke's preference for incremental change).

(99.) See, e.g., Bradley & Siegel, supra note 3, at 54 ("Under most accounts of historical gloss, there must be some acquiescence in the practice by the other political branch of government in order for the practice to be credited."); Bradley & Morrison, supra note 3, at 414 ("The most common reason [for invoking historical practice in the separation of powers context] appears to be the idea that the cited practice involves the 'acquiescence' of one branch in the actions of the other."); see also Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev. 109, 134 (1984) (arguing that for a historical practice to have force in construing the separation of powers, "the other branch must have been on notice" of the practice and "must have acquiesced" in it).

(100.) See, e.g., Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091 (2015); NLRB v. Noel Canning, 134 S. Ct. 2550, 2571-73 (2014); Dames & Moore v. Regan, 453 U.S. 654, 684 (1981); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring) (emphasizing the force of presidential practice "long pursued to the knowledge of the Congress and never before questioned").

(101.) 1 Blackstone, supra note 92, at *77. There are, however, important differences between the sort of acquiescence involved in many separation of powers disputes and "consent" as that term is generally understood. See Bradley & Siegel, supra note 3, at 54 n.240 ("To the extent that historical gloss is premised only on the acquiescence of the affected branch, it is not thought to require an actual agreement or bargain between the branches.").

(102.) See, e.g., David J. Bederman, Custom as a Source of Law 27-41 (2010).

(103.) See, e.g., J.G.A. Pocock, The Ancient Constitution and the Feudal Law 30-31 (1987).

(104.) See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 132-42 (1996) (Souter, J., dissenting); Charles Warren, A History OF the American Bar 224-25 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution).

(105.) See, e.g., Ford W. Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L. Rev. 791, 791 (1951).

(106.) See, e.g., U.S. CONST, art. I, [section] 9 (protecting the common law writ of habeas corpus); id. amend. VII (protecting the common law right to a civil jury trial).

(107.) See, e.g., William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830, at 96-100 (1975) (discussing the continuity of common law practice in the state courts before and after the Revolution); Stewart Jay, Origins of Federal Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1234-35, 1238 (1985) [hereinafter Jay, Federal Common Law II] (surveying the continuing importance of the English common law in the early Republic after independence).

(108.) Stephen E. Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813, 1822 (2012).

(109.) See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (observing that a constitution's "nature ... requires, that only its great outlines should be marked, its important objects designated").

(110.) See, e.g., Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815, at 422-25 (2009).

(111.) See, e.g., Gary D. Rowe, Note, The Sound of Silence: United States v. Hudson & Goodwin, the Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes, 101 Yale L.J. 919, 922-23 (1992).

(112.) See Correspondence of the Justices, Letter from Chief Justice Jay and Associate Justices to George Washington, President of the United States (August 8, 1793), in HART & WECHSLER, supra note 42, at 52 (declining to render an advisory opinion on legal questions submitted by Secretary of State Thomas Jefferson on behalf of the Washington administration involving the interpretation of treaties between the United States and France).

(113.) See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 857 (1824) (articulating the "party of record" rule that a suit against the government's officers will not be treated as against the sovereign for purposes of sovereign immunity); see also Ex parte Young, 209 U.S. 123,167-68 (1908) (holding that state sovereign immunity does not bar a suit against a state officer for prospective relief); United States v. Lee, 106 U.S. 196, 219-20, 223 (1882) (permitting a suit against military officers acting on behalf of the United States to proceed).

(114.) See Hayburn's Case, 2 U.S. (2 Dali.) 409, 409 (1792). It is worth noting that Hayburn's Case itself did not produce an opinion for the Court. See id. at 409-10. It is, rather, an instance of practice consisting of the Court's prejudgment proceedings in the case as well as correspondence from the circuit courts regarding the matter. See also Hart & WECHSLER, supra note 42, at 83-85.

(115.) See Hall, supra note 105, at 800-02.

(116.) See Sachs, supra note 108, at 1821 (noting that after the American Revolution, "the Founders didn't declare a legal Year Zero, nor did they repeal and replace all prior law," in contrast to the French revolutionaries, who did generally abrogate all former laws and replace them with the Code Napoleon).

(117.) See, e.g., Hall, supra note 105, at 798-800; Sachs, supra note 108, at 1821-23.

(118.) See Tomkins, supra note 73, at 16-17.

(119.) See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 139, 160-64 (1996) (Souter, J., dissenting); Jay, Federal Common Law II, supra note 107, at 1254.

(120.) See, e.g., Field, supra note 28, at 922 ("Erie [and] Murdock ... are a well-established foundation of the system on which many of our suppositions concerning federalism have been built. Even if not constitutionally required in any strict sense, they appear to be permanent features of our system.").

(121.) See, e.g., Boumediene v. Bush, 553 U.S. 723, 739-52 (2008) (canvassing both English and early American practice on judicial review of executive detention, although concluding that the common law did not definitively answer the question before the Court); Rasul v. Bush, 542 U.S. 466, 473-75, 481-82 (2004) (relying on English and American practice in defining the territorial reach of the writ); Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945) (Frankfurter, J., dissenting) (observing that habeas corpus is "a writ antecedent to statute ... throwing its root deep into the genius of our common law"). Indeed, the Court has tended to resist efforts to restrict its habeas jurisdiction by statute, even though its habeas jurisprudence is not otherwise particularly friendly to petitioners. See, e.g., Boumediene, 553 U.S. at 792 (invalidating restriction on habeas review of petitions by Guantanamo detainees under the Suspension Clause); Michael Williams v. Taylor, 529 U.S. 420, 431-36 (2000) (narrowly construing new statutory restriction on availability of evidentiary hearings in federal habeas proceedings).

(122.) See, e.g., United States v. Nixon, 418 U.S. 683 (1974); John P. MacKenzie, Court Orders Nixon to Yield Tapes; President Promises to Comply Fully, WASH. POST (July 25, 1974), https://www.washingtonpost.com/politics/court-orders-nixon-to-yield-tapes-president -promises-to-comply-fully/2012/06/04/gJQAZSw0IV_story.html [https://perma.cc/TK8V-VH95].

(123.) See, e.g., Bobbitt, supra note 39, at 13 (identifying the "doctrinal" modality of "applying rules generated by precedent").

(124.) See, e.g., Sup. Ct. R. 10 (articulating criteria for granting certiorari); H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 33-34 (1991) (explicating the considerably more complex patterns of practice underlying Rule 10); Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev. 1, 2-7 (2015) (discussing panel assignment).

(125.) See Rules Enabling Act, Pub. L. No. 73-415, 48 Stat. 1064 (1934) (codified as amended at 28 U.S.C. [section] 2072 (2012)) (delegating to the Supreme Court the authority to promulgate rules of procedure).

(126.) Other examples would include the Chief Justice's administrative powers over the judicial branch, see, e.g., Theodore W. Ruger, The Judicial Appointment Power of the Chief Justice, 7 U. Pa. J. Const. L. 341, 350 (2004), and the dramatic authority of the Panel on Multidistrict Litigation to control the litigation of mass torts and other sorts of aggregate litigation, see, e.g., Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71 (2015).

(127.) See Moliere, The Bourgeois Gentleman act 2, sc. 4 (1670), reprinted in Moliere--Four Plays (Carl Milo Pergolizzi trans., 1999).

(128.) See, e.g., Ernest A. Young, Supranational Rulings as Judgments and Precedents, 18 Duke J. Comp. & Int'l L. 477, 492-93, 500-02 (2008) (distinguishing between the judgment and precedential force of judicial rulings).

(129.) 561 U.S. 593 (2010).

(130.) 35 U.S.C. [section] 101 (2012).

(131.) Bilski, 561 U.S. at 601 (quoting Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980)).

(132.) Id. at 601-02.

(133.) Id. at 602 (citing Le Roy v. Tatham, 55 U.S. (14 How.) 156, 174-75 (1852)).

(134.) See, e.g., Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23, 25, 32 (1994).

(135.) See, e.g., Lyle Denniston, Is a Recess Appointment to the Court an Option?, SCOTUSBLOG (Feb. 14, 2016, 12:24 AM), http://www.scotusblog.com/2016/02/is-a -recess-appointment-to-the-court-an-option/ [https://perma.cc/RX9M-3KCT] (parsing the Noel Canning opinion to assess the possibility of a recess appointment following the death of Justice Antonin Scalia).

(136.) See, e.g., Daniel A. Farber, The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited, 1982 U. III. L. Rev. 387, 407-08; Walter F. Murphy, Who Shall Interpret ? The Quest for the Ultimate Constitutional Interpreter, 48 Rev. Politics 401, 406-11 (1986).

(137.) See generally Ernest A. Young, Constitutionalism Outside the Courts, in The Oxford Handbook of the U.S. Constitution 843 (Mark Tushnet, Mark A. Graber & Sanford Levinson eds., 2015) (discussing the reasons why judicial interpretations of the Constitution tend to have a unique settlement function).

(138.) Payne v. Tennessee, 501 U.S. 808, 828 (1991) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)); cf. Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1540-41 (2000) (arguing that stare decisis is subject to legislative abrogation).

(139.) Cf. Sachs, supra note 108, at 1865 (discussing stare decisis as a backdrop).

(140.) See, e.g., Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir.) (striking down rule prohibiting citation to unpublished opinions), vacated as moot, 235 F.3d 1054 (8th Cir. 2000); Erica S. Weisgerber, Note, Unpublished Opinions: A Convenient Means to an Unconstitutional End, 97 Geo. L.J. 621, 622 (2009); see also James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article 111 Courts, 98 Colum. L. Rev. 696, 702-03 (1998). But see Hart v. Massanari, 266 F.3d 1155, 1159-69 (9th Cir. 2001) (Kozinski, J.) (denying that stare decisis is baked into the "judicial power" language in Article III).

(141.) Anastasoff, 223 F.3d at 903. Judge Kozinski's effort to refute Judge Arnold's argument questioned the notion that past practice should be constitutionalized but primarily argued that Arnold had misconstrued the practices of early courts and lawyers. See Hart, 266 F.3d at 1163-69.

(142.) Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991) (quoting Patterson v. McClean Credit Union, 491 U.S. 164, 172-73 (1989)). Congress can, however, effectively override certain constitutional decisions by granting statutory rights where the Court has refused to extend constitutional ones. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 714-17 (2005) (explaining that the Religious Land Use and Institutionalized Persons Act of 2000 [section] 3, 42 U.S.C. [section] 2000cc-1(a)(1)-(2) (2012), extends statutory rights against burdens on religious exercise imposed by generally applicable laws that the Court had refused to extend under the First Amendment in Employment Division v. Smith, 494 U.S. 872 (1990)).

(143.) See, e.g., Hilton, 502 U.S. at 202 ("Congress has had almost 30 years in which it could have corrected our decision in Parden if it disagreed with it, and has not chosen to do so. We should accord weight to this continued acceptance of our earlier holding."). There are, of course, any number of reasons not to infer too much from legislative inaction. See, e.g., Johnson v. Transp. Agency, 480 U.S. 616, 672 (1987) (Scalia, J., dissenting) ("The 'complicated check on legislation' erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice." (quoting The Federalist No. 62, at 378 (James Madison) (Clinton Rossiter ed., 1961))).

(144.) See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991) (stressing the particular need for flexibility "in constitutional cases, because in such cases 'correction through legislative action is practically impossible"' (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407 (1932) (Brandeis, J., dissenting))).

(145.) See, e.g., Hilton, 502 U.S. at 203.

(146.) See 554 U.S. 570, 623-26 (2008); 307 U.S. 174, 178 (1939).

(147.) Heller, 554 U.S. at 638 (Stevens, J., dissenting). For similar emphasis on the concurrence of many judges, see Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 839-40 (1987).

(148.) See Heller, 554 U.S. at 623-24.

(149.) See Strauss, Tradition, supra note 25, at 1706 ("It is one thing if a judicial precedent has been followed on many occasions, has become widely accepted by society, and has created a web of institutions dependent on it.... It is a different matter if a precedent is relatively recent and has not met widespread acceptance--especially if the precedent itself overturned a widespread practice."); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 130 (1996) (Souter, J., dissenting) (demonstrating at exhaustive length the error of the Court's prior holding in Hans v. Louisiana, 134 U.S. 1 (1890) but declining to call for overruling the century-old precedent).

(150.) See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 97-98 (2000) (Stevens, J., concurring in part and dissenting in part) ("Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe [holding that Congress may not abrogate states' sovereign immunity] as controlling precedent."); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Expense Bd., 527 U.S. 666, 699 (1999) (Breyer, J., dissenting) ("I am not yet ready to adhere to ... Seminole Tribe."); see also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 836-37 (2007) (Breyer, J., dissenting) (continuing to reject strict scrutiny for "benign" racial classifications despite several prior holdings establishing that standard); Adam Liptak, Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term, N.Y. Times (July 10, 2016), http://www.nytimes.com/2016/07/11/us/politics/ruth-bader-ginsburg-no-fan-of-donald -trump-critiques-latest-term.html [https://perma.cc/2KEE-8GGR] (reporting Justice Ginsburg's avowal of willingness to reconsider District of Columbia v. Heller). See generally Allison Orr Larsen, Perpetual Dissents, 15 Geo. Mason L. Rev. 447 (2008).

(151.) Edmund Burke, An Appeal from the New to the Old Whigs (August 3,1791), in 4 The Writings and Speeches of Edmund Burke, supra note 22, at 472; see also Young, Rediscovering Conservatism, supra note 37, at 648-50.

(152.) See Brest, supra note 38, at 228.

(153.) See, e.g., Benjamin N. Cardozo, The Nature of the Judicial Process 149 (1921) ("[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.").

(154.) Fried, supra note 97, at 7.

(155.) See Act of May 8, 1792, ch. 36, [section] 2, 1 Stat. 275, 276 (repealed 1872); Act of Sept. 29, 1789, ch. 21, [section] 2, 1 Stat. 93, 93-94 (repealed 1792).

(156.) See Anthony J. Bellia, Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 667-68 (2015).

(157.) See id. at 614.

(158.) 18 U.S.C. [section] 1651 (2012).

(159.) See, e.g., Alden v. Maine, 527 U.S. 706, 713 (1999) (grounding state sovereign immunity in the common law rather than the text of the Eleventh Amendment); United States v. Lee, 106 U.S. 196, 205 (1882) (observing that "the doctrine [of federal sovereign immunity] is derived from the laws and practices of our English ancestors"); The Siren, 74 U.S. (7 Wall.) 152, 153-54 (1868) (grounding sovereign immunity in the "familiar doctrine of the common law"). The Court has often been at pains to insist that state sovereign immunity does not rest only on the common law. Sometimes the Court has pointed to still other bodies of preexisting law. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 69 (1996) (pointing out that the Court's decision expanding state immunities in Hans v. Louisiana, 134 U.S. 1 (1890), "found its roots not solely in the common law of England, but in the much more fundamental 'jurisprudence in all civilized nations"' (quoting Hans, 134 U.S. at 17)). And sometimes the Court has relied on more abstract notions of state sovereignty. See Alden, 527 U.S. at 733-34. But when the Court says that immunity from suit was "a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today," it is grounding that immunity in the preexisting English common law background. Id. at 713; see Pennsylvania v. Union Gas Co., 491 U.S. 1, 31-32 (1989) (Scalia, J., concurring in part and dissenting in part) ("[T]he doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away."); see also Samantar v. Yousuf, 560 U.S. 305, 311 (2010) ("The doctrine of foreign sovereign immunity developed as a matter of common law long before the [Foreign Sovereign Immunities Act] was enacted in 1976." (emphasis added)). In any event, whatever the precise source of governmental immunity, all the candidates involve preexisting legal principles that bind simply because they are longstanding historical practices. See, e.g., Hans, 134 U.S. at 15 ('The truth is that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the constitution when establishing the judicial power of the United States.").

(160.) See, e.g., Wyatt v. Cole, 504 U.S. 158, 163-64 (1992); Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982); Scheuer v. Rhodes, 416 U.S. 232, 239-41 (1974); Spalding v. Vilas, 161 U.S. 483, 494-99 (1896); see also Samantar, 560 U.S. at 325 (holding that the individual immunities of foreign officers are governed by the common law). As Scheuer points out, however, official immunity "has been the product of constitutional provision as well as legislative and judicial processes." 416 U.S. at 240. But even the legislative immunities, which derive in part from the Speech and Debate Clause of Article I, have been importantly shaped by past practice. See Tenney v. Brandhove, 341 U.S. 367, 372-75 (1951) (grounding legislative immunities in English parliamentary practice).

(161.) See, e.g., Younger v. Harris, 401 U.S. 37, 43-44 (1971); R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500-01 (1941); see also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 717 (1996) (noting that "[o]ur longstanding application of these [abstention] doctrines reflects 'the common-law background against which the statutes conferring jurisdiction were enacted"' and emphasizing the equitable roots of those doctrines (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 359 (1989))).

(162.) See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) ("The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.").

(163.) See, e.g., Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996) ('"With admiralty jurisdiction' ... 'comes the application of substantive admiralty law."' (quoting E. River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986))); Panama R.R. Co. v. Johnson, 264 U.S. 375, 386 (1924); see also William Tetley, The General Maritime Law--The Lex Maritima (with a Brief Reference to the Ius Commune in Arbitration Law and the Conflict of Laws), 20 Syracuse J. Int'l L. & Com. 105, 108 (1994) ("The general maritime law is a ius commune, is part of the lex mercatoria and is composed of the maritime customs, codes, conventions and practices from earliest times to the present, which have had no international boundaries and which exist in any particular jurisdiction unless limited or excluded by a particular statute."); Ernest A. Young, Preemption at Sea, 67 Geo. Wash. L. Rev. 273, 281-82 (1999) [hereinafter Young, Preemption at Sea].

(164.) Judiciary Act of 1789, ch. 20, [section] 34, 1 Stat. 73, 92 (1789).

(165.) 41 U.S. (16 Pet.) 1, 19 (1842). See generally William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1515 (1984); Jay, Federal Common Law II, supra note 107, at 1263-64.

(166.) See, e.g., Randall Bkidwell & Ralph U. Whitten, The Constitution and the Common Law: The Decline of the Doctrines of Separation of Powers and Federalism 61-69 (1977) (describing the customary character of the general commercial law).

(167.) 304 U.S. 64, 79-80 (1938). See generally Ernest A. Young, A General Defense of Erie Railroad Co. v. Tompkins, 10 J.L. Econ. & Pol'y 17 (2013) [hereinafter Young, Defense of Erie].

(168.) See, e.g., Clearfield Tr. Co. v. United States, 318 U.S. 363, 367 (1943) (concluding that "the federal law merchant ... stands as a convenient source of reference for fashioning federal rules applicable to these federal questions"). See generally Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 509-12 (2006).

(169.) Peter S. Du Ponceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States 91 (Philadelphia, Abraham Small 1824).

(170.) See, e.g., NELSON, supra note 107, at 67 ('There is no evidence that any of the men who led Massachusetts into the War of Independence or any of those who followed acted for the purpose of bringing about fundamental changes in the rules and institutions of which the legal system was comprised.... The legal system that emerged from the war was, in short, virtually identical to the old colonial legal system."); Sachs, supra note 108, at 1821-23. Professor Nelson goes on to document that "thereafter change was dramatic," but these changes had to do with adapting the common law to the needs of the growing Republic and important shifts in the responsibilities of judge and jury; there was no wholesale rejection of English law. Nelson, supra note 107, at 8-10, 67, 165-74.

(171.) See, e.g., Hart & Wechsler, supra note 42, at 747-52 (discussing the practice of supplying limitations periods for federal causes of action that lack them by borrowing from analogous state statutes of limitation). State law qualifies as a "practice" in this context, because it is "borrowed" in situations in which it lacks direct legal force. Such state law practices may or may not be of longstanding duration. Similar borrowing also takes place to resolve ambiguities in federal statutory terms. See, e.g., Field v. Mans, 516 U.S. 59, 69 (1995) ("It is ... well established that '[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms."' (alteration and omission in original) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989))).

(172.) Georgia v. Randolph, 547 U.S. 103, 111 (2006); see also United States v. Jones, 132 S. Ct. 945, 949-51 (2012) (acknowledging the reliance of Fourth Amendment jurisprudence on the common law of trespass); Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (1978) (noting that "reference to concepts of real or personal property law" can ground a reasonable expectation of privacy under the Fourth Amendment).

(173.) See, e.g., Cruzan v. Mo. Dept, of Health, 497 U.S. 261, 269-70 (1990) (relying on the common law doctrine of informed consent to identify a "liberty interest" in refusing life-sustaining medical treatment); Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989) (stating that "the legal issue in the present case reduces to whether the relationship between persons [here] has been treated as a protected family unit under the historic practices of our society," and looking to the common law to define those practices).

(174.) See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 759-66 (2010).

(175.) Duncan v. Louisiana, 391 U.S. 145, 177 (1968) (Harlan, J., dissenting).

(176.) Sachs, supra note 108, at 1816.

(177.) Id. at 1822.

(178.) Compare, e.g., Lee v. Weisman, 505 U.S. 577, 622-25 (1992) (debating the significance of Thanksgiving proclamations for the Establishment Clause), with id. at 633-35 (Scalia, J., dissenting) (same).

(179.) Sachs, supra note 108, at 1823.

(180.) Id.

(181.) See id.

(182.) For example, Professor Sachs cites longstanding customary international law rules governing interstate borders, which not only have continuing legal force but are effectively insulated from change by constitutional prohibitions on reassigning territory from one state to another. See id. at 1828-34.

(183.) See Paul Samuel Reinsch, English Common Law in the Early American Colonies 58 (De Capo Press 1970) (1899) ("The process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles."). See generally Hall, supra note 105, at 805-07.

(184.) See, e.g., N.C. Gen. Stat. [section] 4-1 (2016) ("All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State."). See generally Hall, supra note 105. One state received the common law through judicial decision. See Baldwin v. Walker, 21 Conn. 168, 181 (1851) ("We have, in our judicial practice, adopted so much of the common law as was operative as law, in the father-land, when our ancestors left it, and which was adapted to the new state of things here, under our colonial condition. This was our inheritance.").

(185.) See, e.g., Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 144 (1829) (Story, J.) ("The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation."); ROSCOE POUND, The Formative Era of American Law 20 (1938) ("Legislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America.").

(186.) See Jay, Federal Common Law II, supra note 107, at 1254-62; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 137-42 (1996) (Souter, J., dissenting) (discussing this history).

(187.) Letter from John Marshall to St. George Tucker (Nov. 27, 1800), reprinted in Jay, Federal Common Law II, supra note 107, app. A, at 1326; see also James Madison, Report on the Resolutions, in 6 The Writings of James Madison 341 (Gaillard Hunt ed., 1906) [hereinafter Madison, Report on the Resolutions] (rejecting any general reception of the common law into federal law). Justice Story seems to have believed that the Constitution and relevant federal statutes did permit federal courts to rely on the common law in certain criminal cases. See Hart & Wechsler, supra note 42, at 640-41 (discussing Story's position in United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816)). But this is a long way from a general reception.

(188.) 33 U.S. (8 Pet.) 591, 658 (1834). Professor Sachs writes that "the decision in Wheaton didn't actually get rid of the 'common law of the United States,"' citing admiralty law as a counter-example. Sachs, supra note 108, at 1883. But maritime law was not treated as federal law until the Supreme Court's much-criticized decision in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). See Fletcher, supra note 165, at 1549; Young, Preemption at Sea, supra note 163, at 319-25. Prior to that, it was considered to be "general" law, neither state nor federal in nature. See Hart & WECHSLER, supra note 42, at 690. Moreover, maritime law has not generally been understood as synonymous with "common law." See Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 362-65 (1959) (holding that "admiralty" is a distinct class of jurisdiction from "suits ... at common law or in equity ... arising under the ... laws of the United States" (quoting Judiciary Act of 1875, ch. 137, [section] 1, 18 Stat. 470, 470)); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1280-83 (1996) (demonstrating maritime law's roots in customary international law); Tetley, supra note 163, at 109-14 (documenting the origins of maritime law in the law of nations). Likewise, it is relatively well settled that the general commercial law applied under Swift v. Tyson was not considered federal. See Fletcher, supra note 165, at 1574-75. Its force depended on state choice of law rules mandating its application in commercial cases. See Bridwell & Whitten, supra note 166, at 72-73.

(189.) See infra note 200 and accompanying text.

(190.) See, e.g., Sachs, supra note 108, at 1816, 1878 (arguing that backdrops are insulated against most kinds of legal change); id. at 1873-75 (suggesting that the English common law doctrine of sovereign immunity is immune from congressional abrogation).

(191.) See Nelson, supra note 107, at 8-10.

(192.) See U.S. Const, art I, [section] 9, cl. 2; see also Judiciary Act of 1789, ch. 20, [section] 14, 1 Stat. 73, 81-82 (1789) (conferring authority on the federal courts to issue writs of habeas corpus for prisoners in federal custody).

(193.) See Act of Feb. 5, 1867, ch. 27, 14 Stat. 385, 385 (1867).

(194.) Brown v. Allen, 344 U.S. 443 (1953); see Hart & Wechsler, supra note 42, at 1194 ("[P]ostconviction relief was not the original office of habeas corpus, which focused instead on whether extra-judicial detention--most often by the executive--was authorized by law.").

(195.) See generally Note, From Judicial Grant to Legislative Power: The Admiralty Clause in the Nineteenth Century, 67 Harv. L. Rev. 1214, 1215-26 (1954).

(196.) See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 404 (1971) (Harlan, J., concurring) (invoking "the distinctive historical traditions of equity as an institution" to affirm the federal courts' power to recognize other remedies, including damages relief, against federal officers for constitutional violations); Ex parte Young, 209 U.S. 123,167-68 (1908) (extending officer suits to state officers and claims for prospective relief that do not rest on invasion of a common law interest); United States v. Lee, 106 U.S. 196, 236-39, 241 (1882) (recognizing that the national government inherited the English crown's immunity at common law, but holding by analogy to the petition of right that this immunity did not bar suits against officers for prospective relief).

(197.) 367 U.S. 497, 522 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds). Justice Harlan wrote:
   Due process has not been reduced to any formula; its content cannot
   be determined by reference to any code. The best that can be said
   is that through the course of this Court's decisions it has
   represented the balance which our Nation, built upon postulates of
   respect for the liberty of the individual, has struck between that
   liberty and the demands of organized society. If the supplying of
   content to this Constitutional concept has of necessity been a
   rational process, it certainly has not been one where judges have
   felt free to roam where unguided speculation might take them. The
   balance of which I speak is the balance struck by this country,
   having regard to what history teaches are the traditions from which
   it developed as well as the traditions from which it broke. That
   tradition is a living thing. A decision of this Court which
   radically departs from it could not long survive, while a decision
   which builds on what has survived is likely to be sound. No formula
   could serve as a substitute, in this area, for judgment and
   restraint.


Id. at 542; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848-50 (1992) (plurality opinion of O'Connor, Kennedy, and Souter, JJ.) (adopting Justice Harlan's reasoning); Young, Rediscovering Conservatism, supra note 37, at 695 (arguing that "Justice Harlan's dissent in Poe demonstrates the application of the common-law model [of constitutionalism] to resolve actual cases").

(198.) See Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as "Law" and the Erie Doctrine, 120 Yale L.J. 1898, 1907 (2011).

(199.) See, e.g., Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341, 344-45 (2010) (discussing the canons as a form of customary law).

(200.) See, e.g., Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 531 n.22 (1983) ("Congress ... appear[s] to have been generally aware that the statute would be construed by common-law courts in accordance with traditional canons."); see also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517 (making this point about the Chevron rule construing statutory ambiguity as legislative intent to delegate interpretive authority to agencies). Scholars have questioned whether legislators are actually aware of judicial canons of statutory construction--and thus whether those canons can function as a baseline in this way. See, e.g., Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 597-600 (2002). But the most recent empirical work on that subject suggests a higher degree of legislative awareness of the canons than the earlier academic conventional wisdom supposed. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 929 (2013).

(201.) See, e.g., Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You?, 45 Vand. L. Rev. 561, 563 (1992); Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex. L. Rev. 1549, 1586-87 (2000) [hereinafter Young, Constitutional Avoidance].

(202.) See Ross, supra note 201, at 563.

(203.) See id.; see also Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 Geo. L.J. 353, 389-91 (1989) (suggesting that these sorts of canons raise legitimacy problems as a form of judicial lawmaking).

(204.) McNally v. United States, 483 U.S. 350, 359-60 (1987).

(205.) See, e.g., Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 332 (2000).

(206.) See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984) ("[W]here two statutes are 'capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective."' (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34 (1974))).

(207.) Shapiro, supra note 11, at 925.

(208.) See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

(209.) See Ernest A. Young, The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey, 98 Calif. L. Rev. 1371, 1372 (2010) [hereinafter Young, Statutory and Constitutional Interpretation].

(210.) See, e.g., Norfolk Redevelopment & Housing Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30, 35 (1983) ("It is a well-established principle of statutory construction that '[t]he common law ... ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose."' (quoting Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 623 (1813))).

(211.) See Sachs, supra note 108, at 1838-43 (discussing the notion of "defeasibility" in integrating new law with preexisting arrangements).

(212.) 87 U.S. (20 Wall.) 590, 632-33 (1874).

(213.) Id. at 619.

(214.) Field, supra note 28, at 921.

(215.) Id. at 920.

(216.) See, e.g., Ex parte Yerger, 75 U.S. (8 Wall.) 85, 105-06 (1868) (construing 1868 statute depriving the United States Supreme Court of habeas jurisdiction not to affect the original writ of habeas in the 1789 Judiciary Act); see also Felker v. Turpin, 518 U.S. 651, 660 (1996) (construing restrictions on habeas in the 1996 Antiterrorism and Effective Death Penalty Act to nonetheless permit some habeas review under Yerger). See generally Hart & Wechsler, supra note 42, at 316-18, 336-38; Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 Nw. U. L. Rev. 1389, 1438-60 (2005) [hereinafter Tyler, Canons]; Young, Constitutional Avoidance, supra note 201, at 1553-73.

(217.) 533 U.S. 289, 298 (2001).

(218.) 8 U.S.C. [section] 1252(a)(2)(C) (2012).

(219.) St. Cyr, 533 U.S. at 305.

(220.) See id. at 311-13.

(221.) Tyler, Canons, supra note 216, at 1459.

(222.) See Young, Constitutional Avoidance, supra note 201, at 1602-13.

(223.) See id. at 1553-73; see also Hart & Wechsler, supra note 42, at 295-345 (surveying the terrain); Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 Vill. L. Rev. 1030, 1030-38 (1982) (finding few, if any, limits).

(224.) See, e.g., Bator, supra note 223, at 1038-39 (concluding that certain restrictions on the Supreme Court's appellate jurisdiction would "violate the spirit of the Constitution [by disrupting longstanding assumptions about the Court's role] even if it would not violate its letter").

(225.) See supra notes 207-11 and accompanying text.

(226.) See, e.g., Young, Statutory and Constitutional Interpretation, supra note 209, at 138791 (arguing that the canons of statutory construction help ensure that statutes cohere with constitutional values).

(227.) Tyler, Canons, supra note 216, at 1390.

(228.) William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1479 (1987).

(229.) Edmund Burke, Reflections on the Revolution in France (1790), reprinted, in 8 The Writings and Speeches of Edmund Burke 53, 84 (Paul Langford ed., Clarendon Press 1989) [hereinafter Burke, Reflections].

(230.) 41 U.S. (16 Pet.) 1 (1842); see, e.g., Bridwell & Whitten, supra note 166, at 61-97; Young, Defense of Erie, supra note 167, at 30-38.

(231.) See, e.g., Morton Horwitz, The Transformation of American Law, 1780-1860, at 245-52 (1977).

(232.) Burke, Reflections, supra note 229, at 81, 217.

(233.) See POCOCK, supra note 91, at 213; see also Young, Rediscovering Conservatism, supra note 37, at 655-56.

(234.) See, e.g., Fletcher, supra note 165, at 1562. Ultimately, the general common law applied under Swift overflowed the constraints that had made it workable in the first half of the nineteenth century, creating the crisis that led to Erie. See generally Lawrence Lessig, Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory, 110 Harv. L. Rev. 1785, 1792 (1997); Young, Defense o/Erie, supra note 167, at 37-38. The broader, late version of the general common law tended to restrict the ability of states to change their laws to suit new financial and regulatory imperatives. See, e.g., Michael G. Collins, Before Lochner--Diversity Jurisdiction and the Development of General Constitutional Law, 74 Tul. L. Rev. 1263, 1265 (2000). Hence, one effect of Erie's decision to overrule Swift was to enhance the dynamism of the legal system by restricting federal courts' authority to disregard state innovations.

(235.) See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965) (relying in part on common law protections of the home and marital privacy to recognize a new right of privacy under the Due Process Clause).

(236.) See, e.g., Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 811 (1994) (demonstrating that the development of a presumption against preemption mitigated the disruptive effect of the Court's expansion of Congress's commerce power during the New Deal).

(237.) See, e.g., Hall, supra note 105, at 798-800 (noting that early state statutes receiving the common law stipulated that it could be modified by subsequent legislation); see also Madison, Report on the Resolutions, supra note 187, at 379-80 (explaining that the reason that the Philadelphia convention rejected receiving the common law into the Constitution was to avoid entrenching common law principles against legislative change).

(238.) See, e.g., Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424, 429 (1997) (noting that the Federal Employers' Liability Act "expressly abolishes or modifies a host of common-law doctrines that previously had limited recovery" in railroad accident cases); Easterling Lumber Co. v. Pierce, 64 So. 461, 461-62, 465 (Miss. 1914) (upholding against constitutional challenge a state statute abrogating the fellow servant rule in tort).

(239.) See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1385 (2015) (noting that "[t]he power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations," and holding that the Medicaid Act foreclosed equitable relief); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 732 (1996) (Scalia, J., concurring) (observing that abstention rules are subject to Congress's legislative power); Mitchell N. Berman, R. Anthony Reese & Ernest A. Young, State Accountability for Violations of Intellectual Property Rights: How to "Fix" Florida Prepaid (And How Not To), 79 Tex. L. Rev. 1037, 1127 (2001) (discussing Congress's power to override the doctrine of qualified immunity for government officers).

(240.) See, e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 354-55 (1995) (observing that, in enacting the Jones Act, 46 U.S.C. [section] 30104, Congress overrode the general maritime rule precluding a seaman's recovery for negligence by his vessel's master or crew); AFC Interiors v. DiCello, 544 N.E.2d 869, 873 (Ohio 1989) (holding that Ohio's adoption of the Uniform Commercial Code had superseded the common law commercial doctrine of accord and satisfaction).

(241.) See, e.g., Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, [section] 929, 124 Stat. 1376, 1864-65 (2010) (codified at 15 U.S.C. [section] 77v (2012)) (overruling the Supreme Court's application of the presumption against extraterritoriality in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010)); see also Young, Constitutional Avoidance, supra note 201, at 1593-99 (discussing canons of construction as "resistance norms" that make certain sorts of legislative actions more difficult without foreclosing them entirely).

(242.) Likewise, rules of interpretive deference to administrative agencies change as agency practice changes. See, e.g., United States v. Mead Corp., 533 U.S. 218, 227-38 (2001) (tailoring the degree of deference to the degree of formality and deliberation in the agency's consideration of the issue).

(243.) See, e.g., Dictionary Act, 1 U.S.C. [section] 1 (2012) (establishing certain interpretive presumptions for federal statutes); Rowland v. Cal. Men's Colony, 506 U.S. 194, 196, 199 (1993) (considering the force of the Dictionary Act's presumptions).

(244.) See, e.g., War Powers Resolution [section] 8, 50 U.S.C. [section] 1547 (2012) (establishing rules for construing future legislation alleged to authorize the use of military force). Sometimes it does this implicitly. See, e.g., Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 541-43 (1994) (noting Congress's intent that the Federal Employers' Liability Act is to be "liberally construed").

(245.) See, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850-51 (1986) (suggesting that Congress may not encroach upon or aggrandize itself at the expense of the independent judiciary).

(246.) See, e.g., Paulsen, supra note 138.

(247.) See, e.g., William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 334 (1991) (finding that Congress overrides statutory construction decisions more frequently than previously thought).

(248.) But see Katzenbach v. Morgan, 384 U.S. 641, 646-47, 649 (1966) (upholding provisions of the Voting Rights Act that effectively overruled the Court's holding in Lassiter v. Northampton Cty. Bd. of Election, 360 U.S. 45 (1959), that literacy tests for voting do not violate the Equal Protection Clause).

(249.) See, e.g., Agostini v. Felton, 521 U.S. 203, 235 (1997) (observing that the policy of stare decisis "is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions"); Payne v. Tennessee, 501 U.S. 808, 828 (1991) (noting that "the Court has during the past 20 Terms overruled in whole or in part 33 of its previous constitutional decisions").

(250.) See, e.g., Agostini, 521 U.S. at 208, 235-36 (overruling Aguilar v. Felton's prohibition on government aid to religious schools on account of intervening changes in Establishment Clause law); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 544-45 (1985) (overruling the National League of Cities doctrine because it had proven unworkable in actual application). See generally Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992) (plurality opinion of O'Connor, Kennedy, & Souter, JJ.) ("[T]he rule of stare decisis is not an 'inexorable command'.... Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations."). Casey itself illustrates both the weight of stare decisis and the Court's freedom to modify significantly the rules set forth in prior decisions. See id. at 875-76 (rejecting Roe v. Wade's trimester framework in favor of a general "undue burden" standard for evaluating regulation of abortion).

(251.) Nonjudicial actors can, of course, seek to change the composition of the Court in hopes that it will overrule its precedents. Barry Friedman has demonstrated that, in large part because of the political check of new appointments over time, the Court rarely gets too far out of step with public opinion. See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the CONSTITUTION (2009). The Court has sometimes suggested, however, that a change in the court's composition is a particularly unacceptable reason to overrule a prior decision. See Casey, 505 U.S. at 864 (plurality opinion of O'Connor, Kennedy, & Souter, JJ.); Mitchell v. W.T. Grant Co., 416 U.S. 600, 636 (1974) (Stewart, J., dissenting) ("A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.").

(252.) See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 3-47 (1997).

(253.) See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress."); id. at 597-613 (Frankfurter, J., concurring) (evaluating presidential authority to seize private property in light of congressional measures authorizing and forbidding such seizures in different circumstances).

(254.) 135 S. Ct. 2076 (2015).

(255.) Id. at 2094.

(256.) See id. at 2095-96.

(257.) See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996) (holding that Congress generally may not abrogate the states' sovereign immunity by statute).

(258.) Alden v. Maine, 527 U.S. 706, 713 (1999). On the derivation of the immunity principle from common law principles and more abstract notions of state sovereignty, see generally Ernest A. Young, Alden v. Maine and the Jurisprudence of Structure, 41 Wm. & Mary L. Rev. 1601 (2000). Michael Rappaport has suggested that sovereign immunity is instead a gloss on the word "state" as it appears throughout the Constitution. Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions, 93 Nw. U. L. Rev. 819, 830-68 (1999). Certainly the text is not doing much work in this instance. See Young, supra, at 1624-26. And plenty of aspects of statehood under the Constitution, such as the basic power to legislate, are subject to override by a valid federal statute. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 551 (2001) (holding state regulation of tobacco advertising was preempted by federal statute).

(259.) Alden, 527 U.S. at 713.

(260.) See, e.g., William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1033 (1983); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 3 (1988); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1, 1.

(261.) Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 98-99 (2000) (Stevens, J., concurring in part and dissenting in part).

(262.) 292 U.S. 313, 322 (1934).

(263.) 198 U.S. 45(1905).

(264.) Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 166 (1996) (Souter, J., dissenting).

(265.) See, e.g., Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 148-49 (2007) (noting that the memos concluded that Congress could not regulate the exercise of the President's exclusive Commander-in-Chief authority). One can, of course, distinguish the two cases on any number of grounds. My point is simply that the memos relied on the theory that Congress may not use its enumerated powers (such as that to make rules to govern the armed forces) to regulate the President's exercise of his own powers. The Court had never endorsed that theory prior to Zivotofsky.

(266.) See supra notes 81-83 and accompanying text.

(267.) See generally Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 Sup. Ct. Rkv. 125,170-71, 174.

(268.) See generally Glennon, supra note 99; Roisman, supra note 3.

(269.) Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091 (2015).

(270.) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).

(271.) H. Jefferson Powell, The President's Authority over Foreign Affairs: An Executive Branch Perspective, 67 Geo. Wash. L. Rev. 527, 539 (1999).

(272.) Mansfield, Coldwater & Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884).

(273.) Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

(274.) Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95 (1998) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 73 (1997)).

(275.) See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 578 (1992) (striking down federal statute authorizing suit by parties who lacked Article III standing); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (striking down statute expanding the original jurisdiction of the Supreme Court beyond the bounds of Article III).

(276.) See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 75 (1996).

(277.) See id. at 55-76 (not relying on acquiescence).

(278.) See, e.g., Anderson v. Creighton, 483 U.S. 635, 644-45 (1987) (construing scope of official immunity in light of both common law and contemporary necessity, but not relying on any notion of congressional acquiescence).

(279.) 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 583 (1985), and United States v. Will, 449 U.S. 200, 218 (1980)).

(280.) See, e.g., id. at 848-49.

(281.) See id. at 851 ("When these Article III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect."). The Court relied more heavily on the parties' consent to litigate before a non-Article III bankruptcy judge in Wellness International Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1949 (2015). But the Court nonetheless considered the other aspects of the Schor balancing test; consent was not dispositive. See id. at 1944-45.

(282.) See, e.g., South Dakota v. Dole, 483 U.S. 203, 211-12 (1987). But see Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012) (invalidating a conditional spending regime as coercive).

(283.) 505 U.S. 144, 181 (1992).

(284.) Id. at 181-82; see also Bond v. United States, 131 S. Ct. 2355, 2364 (2011) ('The limitations that federalism entails are not ... a matter of rights belonging only to the States.... An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable."). As Justice O'Connor pointed out in New York, moreover, separation of powers serves the same values of individual freedom. See New York, 505 U.S. at 181 ("Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)); see also NLRB v. Noel Canning, 134 S. Ct. 2550, 2592 (2014) (Scalia, J., concurring in the judgment) ("[T]he Constitution's core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights."); Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring) ("Liberty is always at stake when one or more of the branches seeks to transgress the separation of powers.").

(285.) 505 U.S. at 182.

(286.) Id.

(287.) See 524 U.S. at 448-49.

(288.) Id. at 451-52 (Kennedy, J., concurring).

(289.) Although the notion of "parliamentary sovereignty" is generally discussed in the context of legislative lawmaking, it is unclear why it would not apply to lawmaking by the other branches of government as well. We generally do not think that executive orders issued by one President bind his or her successors, and common law decisions of one court can generally be reversed by a later tribunal. Congress can, of course, bind future incarnations of the other branches, but those branches are similarly limited in their ability to bind future versions of themselves.

(290.) See 518 U.S. 839, 872 (1996) (plurality opinion) ("Acts of parliament derogatory from the power of subsequent parliaments bind not.... Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if it's [sic] ordinances could bind the present parliament." (alterations and omissions in original) (quoting 1 BLACKSTONE, supra note 92, at *90)).

(291.) 10 U.S. (6 Cranch) 87, 135 (1810).

(292.) Clinton, 524 U.S. at 452 (Kennedy, J., concurring).

(293.) See Fletcher, 10 U.S. (6 Cranch) at 135-36; see also Winstar, 518 U.S. at 873-74 (discussing Fletcher). Since those constitutional requirements include the Supremacy Clause, a state legislature's sovereignty is necessarily limited by the requirements of a broader set of federal laws.

(294.) Cf. Fed. R. Evid. 804(b)(3) (exception to the general exclusion of hearsay for statements against interest).

(295.) See Bradley & Morrison, supra note 3, at 448-52; Roisman, supra note 3, at 697-98.

(296.) See Akhil Reed Amar, Cheney, Enron, and the Constitution, Time (Feb. 2, 2002), http:// content, time.com/time/nation/article/0,8599,198829,00.html [https://perma.cc/6BSH-VGPG].

(297.) Even prescription incorporates some notion of acquiescence: a longstanding practice derives part of its authority from the fact that, despite its long duration, no one has supplanted it with a different norm. Common law principles that persist to this day, for example, derive special weight from the fact that the legislature has chosen not to alter them. See supra notes 253-60 and accompanying text. But the principal significance of this potential for legislative alteration is as an outer bound to the authority of past practice--not as a source of that authority in the first place.

(298.) See supra notes 87-90 and accompanying text; see also Roger Scruton, The Meaning of Conservatism 31 (rev. 3d ed. 2002) (observing that "tradition really is [] not a custom or a ritual but a form of social knowledge"); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 891 (1996) [hereinafter Strauss, Common Law] ("[T]he traditionalism that is central to common law constitutionalism is based on humility and, related, a distrust of the capacity of people to make abstract judgments not grounded in experience.").

(299.) Strauss, Common Law, supra note 298, at 891-92.

(300.) See, e.g., Oakeshott, supra note 98, at 411.

(301.) See Kronman, supra note 93, at 1051-55.

(302.) See, e.g., Pried, supra note 97, at 7.

(303.) 134 S. Ct. 2550, 2592 (2014) (Scalia, J., concurring in the judgment).

(304.) Id.

(305.) Id. at 2578 (majority opinion).

(306.) See Bradley & Siegel, supra note 3, at 52-55.

(307.) Id. at 53.

(308.) See Young, Constitutional Avoidance, supra note 201, at 1576-77.

(309.) Moreover, Professors Bradley and Siegel concede that sometimes courts give so much weight to practice that it creates ambiguity in the first place. See Bradley & Siegel, supra note 3, at 41-42. That is arguably what happened in Bond v. United States, in which federal law's traditional tendency to leave petty domestic crime to the states seems to have created an ambiguity in the otherwise clear text of the Chemical Weapons Convention Implementation Act. See 134 S. Ct. 2077, 2095 (2014) (Scalia, J., concurring in the judgment).

(310.) See Bradley & Siegel, supra note 3, at 67-68. As they acknowledge, however, Noel Canning left Congress with only indirect means to regulate recess appointments. See id. Presumably, Congress cannot override the Court's determination of the Recess Appointments Clause's meaning. See id. at 1-2.

(311.) Id. at 55.

(312.) See 135 S. Ct. 2076, 2096 (2015) (holding that Congress may not require the Secretary of State to designate "Israel" as the place of birth on a passport issued to a citizen born in Jerusalem, in contravention of executive policy).

(313.) See, e.g., Hart v. Massanari, 266 F.3d 1155, 1163 (9th Cir. 2001) (Kozinski, J.) ("One danger of giving constitutional status to practices that existed at common law, but have changed over time, is that it tends to freeze certain aspects of the law into place, even as other aspects change significantly.").

(314.) 495 U.S. 604, 619 (1990) (plurality opinion).

(315.) Id. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

(316.) Strauss, Tradition, supra note 25, at 1708, 1711-15.

(317.) See Young, Rediscovering Conservatism, supra note 37, at 697-712.

(318.) See, e.g., D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 470 (1942) (Jackson, J., concurring) ("Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes.").

(319.) See, e.g., Anderson v. Creighton, 483 U.S. 635, 644-45 (1987) (rejecting argument that official immunity, though derived from the common law, is strictly limited by English common law rules).

(320.) Georgia v. Randolph, 547 U.S. 103, 144 (2006) (Scalia, J., dissenting).

(321.) See, e.g., Ex parte Young, 209 U.S. 123, 168 (1908) (relying on equity to permit suits to enjoin state officers from violating federal rights); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397-98 (1971) (drawing an analogy to equity to support damages suits against federal officers for violating constitutional rights).

(322.) See Young, Rediscovering Conservatism, supra note 37, at 688-97, 715-24.

(323.) Strauss, Tradition, supra note 25, at 1711.

(324.) Strauss, Common Law, supra note 298, at 879.

(325.) Id. at 888.

(326.) For reasons discussed in more depth elsewhere, I find the conservative aspect of traditionalism considerably more congenial than Professor Strauss does. See Young, Rediscovering Conservatism, supra note 37, at 701-06.

(327.) See supra note 229 and accompanying text.

(328.) See, e.g., Fallon, History, supra note 29, at 1815 (addressing this concern as an "obvious risk").

(329.) See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 648 (1990) (attributing the phrase to Judge Harold Leventhal).

(330.) Hart v. Massanari, 266 F.3d 1155, 1163 (9th Cir. 2001) (Kozinski, J.) (criticizing the argument that Article III incorporates the practice of publishing opinions and giving them stare decisis effect).

(331.) See Young, Rediscovering Conservatism, supra note 37, at 692-93; see also Harry H. Wellington, Interpreting the Constitution: The Supreme Court and the Process of Adjudication 14 (1990); Charles Fried, The Conservatism of Justice Harlan, 36 N.Y.L. Sch. L. Rev. 33, 44 (1991) (stressing craft norms).

(332.) See Fallon, History, supra note 29, at 1813 ("It is difficult if not impossible to imagine a legal theory in which good judging did not require good judgment.").

(333.) See generally Young, Rediscovering Conservatism, supra note 37, at 659-64 (discussing difficulties in translating Burke to America).

(334.) Burke, Parliamentary Reform, supra note 22, at 219.

(335.) See, e.g., Schoolhouse Rock, No More Kings, YouTube (Mar. 5, 2011), https://www. youtube.com/watch?v=cAZ8QJgFHOg [https://perma.cc/SCR2-JDND].

Ernest A. Young, Alston & Bird Professor of Law, Duke Law School. This Article was originally presented at the Duke Law School Federal Courts Roundtable on "Historical Practice and the Federal Judicial Power," held on October 23, 2015. I am grateful to Curt Bradley and Neil Siegel for organizing the roundtable and inviting me to attend, to Hope Staneski for research assistance, and to participants at that roundtable and at the Vanderbilt faculty colloquium, and especially Henry Monaghan, Kevin Stack, and Amelia DeGory for their helpful comments on the manuscript.
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Title Annotation:II. Historical Practice in Federal Courts Law C. Canons of Statutory Construction through Conclusion, with footnotes, p. 579-607
Author:Young, Ernest A.
Publication:William and Mary Law Review
Date:Nov 1, 2016
Words:21524
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