After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession

70 Pages Posted: 11 Jan 2015 Last revised: 31 Oct 2018

See all articles by Curtis Bradley

Curtis Bradley

Duke University School of Law

Neil Siegel

Duke University School of Law

Date Written: January 10, 2015

Abstract

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a useful entry point into critically analyzing the concept of constitutional “liquidation,” which the majority in Noel Canning seemed to conflate with historical gloss but which seems more consistent with the approach to historical practice reflected in Justice Scalia’s concurrence in the judgment. Finally, this Article argues that the historical gloss approach, when applied cautiously and with sensitivity to the potential concerns raised by Justice Scalia and others, is not vulnerable to the charge of licensing executive aggrandizement by “adverse possession.”

Keywords: historical gloss, constitutional interpretation, recess appointments, constitutional liquidation, textualism

Suggested Citation

Bradley, Curtis and Siegel, Neil, After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession (January 10, 2015). 2014 Supreme Court Review 1; Duke Law School Public Law & Legal Theory Series No. 20015-6. Available at SSRN: https://ssrn.com/abstract=2547962

Curtis Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Neil Siegel

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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