Legal Sidebari

The Modes of Constitutional Analysis:
Historical Practices (Part 8)
January 13, 2022
This Legal Sidebar Post is the eighth in a nine-part series that discusses certain “methods” or “modes” of
analysis that the Supreme Court has employed to determine the meaning of a provision within the
Constitution. (For additional background on this topic and citations to relevant sources, please see CRS
Report R45129, Modes of Constitutional Interpretation.)
Judicial precedents are not the only type of precedents that are arguably relevant to constitutional
interpretation. Prior decisions of the political branches, particularly their long-established, historical
practices, are an important source of constitutional meaning to many judges, academics, and lawyers.
Courts have viewed historical practices as a source of the Constitution’s meaning in cases involving
questions about the separation of powers, federalism, and individual rights, particularly when the text
provides no clear answer.
An example of judicial reliance on historical practices—sometimes described as tradition—in
constitutional interpretation is the Supreme Court’s decision in National Labor Relations Board v.
Canning. When determining, among other things, that the President lacked authority to make a recess
appointment during a Senate recess of fewer than 10 days, the Court cited long-settled historical practices
showing an absence of a settled tradition of such recess appointments. The Court determined these
historical practices were relevant to the resolution of a separation-of-powers question that the Constitution
did not specifically address.
Another example of the influence of historical practices on constitutional interpretation is the Court’s
decision in Zivotofsky v. Kerry. In that case, the Supreme Court held that the President had the exclusive
power to recognize formally a foreign sovereign and its territorial boundaries, and that Congress could not
effectively require the State Department to issue a formal statement contradicting the President’s policy
on recognition. In deciding the case, the Court relied in part on the long-standing historical practice of the
President in recognizing foreign sovereigns without congressional consent.
An example of the use of historical practices as a method of constitutional interpretation in a case
involving the limits of government power is Marsh v. Chambers. In Marsh, the Court considered whether
the First Amendment’s Establishment Clause, which prohibits laws “respecting an establishment of
religion,” forbade the State of Nebraska from paying a chaplain with public funds to open each legislative
session with a prayer in the Judeo-Christian tradition. The Court held that the state’s chaplaincy practice
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did not violate the Establishment Clause, attaching significance to the long-standing practices of Congress
(including the Congress that adopted the First Amendment as part of the Bill of Rights) and some states in
funding chaplains to open legislative sessions with a prayer. The Court wrote: “The opening of sessions of
legislative and other deliberative public bodies with prayer is deeply embedded in the history and
tradition of this country. From colonial times through the founding of the Republic and ever since, the
practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”
The debate over historical practices as a mode of interpretation echoes many of the elements of debates
over original meaning, judicial precedent, and arguments based on a “national ethos.” Functionalists, for
example, attach considerable importance to historical practices as a source of constitutional meaning,
while formalists generally regard them as irrelevant. Those employing this method often argue that, when
the Constitution’s text is ambiguous, the use of historical practices has legitimacy as an interpretive tool.
They also contend that such an approach provides an objective and neutral basis for decisionmaking,
leading to more predictability and stability in the law upon which parties can rely. Moreover, according
interpretive significance to historical practices in cases concerning the allocation of power among the
branches of government may help to preserve settled expectations that have resulted from long-standing
compromises among the branches regarding such allocations.
Those opposing reliance on historical practices as a source of the Constitution’s meaning argue that it
may be difficult to establish definitively what the relevant historical practices are in order to interpret the
Constitution properly. They suggest that not all historical practices are authorized by the Constitution’s
written text, and that historical sources may differ and thus might not be helpful in illuminating patterns in
historical practices. Such commentators also warn that this methodology could allow judges to engage in
a form of what has been called “law office history”—simply choosing the sources that support the
historical practices they wish to ratify or reject. Thus, it could be argued that historical practices may not
lend themselves to easy, consistent, or clear interpretation. Moreover, they can lead to results inconsistent
with the Constitution’s original meaning.
Another possible problem with reliance on historical practices in constitutional interpretation, according
to some critics, is that courts could end up legitimizing long-standing historical practices that offend
modern moral principles, such as slavery or segregation. Giving historical practices a special place in
constitutional interpretation could lead courts to fail to protect minority rights or to preserve the basic
structure of government established by the Constitution. At the same time, reliance on historical practices
might undermine the political branches’ attempts to be innovative or ability to apply novel solutions to old
problems.

Author Information

Brandon J. Murrill

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of

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information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
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