Historical Gloss and the Separation of Powers

75 Pages Posted: 6 Feb 2012 Last revised: 21 Dec 2014

Curtis A. Bradley

Duke University School of Law

Trevor W. Morrison

New York University School of Law

Date Written: February 5, 2012


Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that is viewed as critical to giving historical practice the force of law. Yet the concept of acquiescence has been treated much too casually in the literature. Claims about acquiescence are typically premised on a Madisonian conception of interbranch competition, pursuant to which Congress and the Executive Branch are each assumed to have the tools and the motivation to guard against encroachments on their authority. It has become apparent from political science scholarship, however, that the Madisonian model does not accurately reflect the dynamics of modern congressional-executive relations. This requires a reexamination of the premises and implications of the idea of institutional acquiescence in particular, and of the role of historical practice more generally. Ultimately, we argue, the problems with the Madisonian model are not fatal to crediting historical practice in interpreting the separation of powers. But they do require more attention to the reasons why such practice is invoked, the extent to which the reasons demand institutional acquiescence, and the precise method by which such acquiescence is identified. To illustrate the importance of each of these questions, we present three case studies of constitutional debates concerning the separation of powers in which practice-based arguments are prominent - war powers, congressional-executive agreements, and removal of executive officers.

Keywords: separation of powers, constitutional interpretation, historical practice, presidential power, war powers

Suggested Citation

Bradley, Curtis A. and Morrison, Trevor W., Historical Gloss and the Separation of Powers (February 5, 2012). Harvard Law Review, Vol. 126. Available at SSRN: https://ssrn.com/abstract=1999516 or http://dx.doi.org/10.2139/ssrn.1999516

Curtis A. Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Trevor W. Morrison

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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