Against Historical Practice: Facing Up to the Challenge of Informal Constitutional Change
35 Constitutional Commentary (2020) (Forthcoming)
26 Pages Posted: 27 Sep 2019
Date Written: 2019
Contentious disputes over war powers and judicial nominations in the Obama and Trump administrations as well as recent Supreme Court cases have drawn increased attention to the use of historical “practice” in American constitutional law. The use of governmental practice to inform legal analysis has a long pedigree in the American constitutional tradition. In this essay I argue that it is nonetheless fundamentally flawed in multiple ways that suggest it should be replaced or, at least, reconstructed. Practice-based accounts of constitutional law should be understood as raising the crucial question of how to understand informal constitutional change. This is change that is in some sense legal, perhaps even equivalent in significance to a formal amendment, but falls outside the Article V process. To replace the use of practice, I advocate an approach which I call “constitutional change as state building.”
In Part I, I review two types of appeals to practice that are suggested by the literature. First, there is the “comity” version associated with Justice Frankfurter’s influential test in Youngstown. Second, there is the “invitation to struggle” version suggested by Edward Corwin’s famous remark concerning the locus of constitutional power in foreign policy. This latter version is perhaps best exemplified by the controversy over presidential war powers. I argue that both of these versions are underdeveloped. They tend to bypass the relationship of the various incidents of the use of governmental power to the kind of contextual shifts best analyzed by historians. In addition, they fail to answer the practical question of how we are to know when enough incidents of “practice” are sufficient to generate law.
To develop my argument, I specify seven objections to practice-based accounts of constitutional law in Part II. I illustrate the force of these objections in Part III by discussing several examples drawn from the dispute over presidential war powers. Part IV presents my alternative theory, constitutional change as state building, which requires incidents of governmental action to be institutionalized in a constitutional order before they can be regarded as valid law.
Keywords: historical practice, informal constitutional change, state building, war powers
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