73 Pages Posted: 10 Dec 2015 Last revised: 20 Jul 2017
Date Written: December 9, 2015
When courts, scholars, and government decision makers debate constitutional separation of powers questions, they primarily analyze past branch practice to divine the answer. Yet, despite the long pedigree and widespread contemporary use of this method of constitutional interpretation, precisely how interpreters should look to past practice has remained surprisingly under theorized. This Article analyzes, critiques, debunks, and ultimately resurrects the predominant method of looking to past practice in constitutional separation of powers law — the acquiescence approach.
Under the acquiescence approach, past practice is deemed to be indicative of constitutional meaning if one of the branches has acted consistently and the other has “acquiesced” in that action. However, as the Article establishes, this approach relies on an embedded — but unrecognized — assumption: that branch conduct is motivated primarily by constitutional analysis. Yet, as the Article explains, this assumption is simply not categorically true. Branch conduct might be motivated by any number of non-constitutional reasons, including ignorance, apathy, policy agreement, politics, other legal authority, or coercion. In addition, acquiescence suffers from a deep normative flaw: Its very structure will tend to privilege the more active and powerful branch. After fleshing out these descriptive and normative critiques, the Article shows how they undermine the traditional justifications for acquiescence. To determine if acquiescence is worth salvaging, it explores possible alternatives to acquiescence, ultimately concluding that that the best way forward is to keep acquiescence, but change it. The Article then proposes a novel method of finding acquiescence called the “articulation or deliberation approach” that is sensitive to the problems identified above. It then explains the new approach’s unique benefits and costs, and applies it to two contemporary case studies.
In the process, the Article identifies a lack of rigor and consistency in how past practice has been used that has enabled interpreters to manipulate it. To combat such manipulation and promote more accurate assessments of past practice, the Article calls for more nuanced and systematic analysis of past practice under the new acquiescence approach. Finally, throughout, the Article calls attention to a surprisingly fruitful lens of comparative analysis to the customary international law literature, which helps illuminate common problems and solutions relating to the use of past practice in interpreting public law.
Keywords: Constitutional Law, Constitutional Theory, Separation of Powers, Public Law, Historical Practice, Customary International Law, Constitutional Interpretation, Executive Power, Acquiescence
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