Sam Issacharoff and Trevor Morrison have posted this draft on SSRN (forthcoming, California Law Review). Here is the abstract:
Constitutionalism has never been exclusively reduced to the written text either in terms of its commands or its interpretation. In the United States, lived experiences and institutional arrangements “can inform our determination of what the law is,” as the Supreme Court recently noted. Nevertheless, the precise relation between written text and settled institutional practice remains a subject of disagreement and even confusion. The scholarly literature has only recently begun to treat these issues with the seriousness they deserve.
We bring to this debate a sensibility that beneath the constitutional text there lies a world of institutional settlement—or constitution by convention—in which all institutional actors allow time-tested resolutions of a range of questions to play a significant and sometimes dispositive role in determining the content of the law. Much of the time, this process of institutional accommodation and settlement takes place beyond the reach and view of the judiciary. A constitutional system governed by convention is, first and foremost, a system generated by the actors responsible for the day-to-day running of the government itself. The growing literature on law and legal interpretation outside the courts recognizes this important fact. Occasionally, however, the courts are called upon to adjudicate cases that turn on whether and to what extent certain asserted institutional arrangements and conventions exist, and whether and to what extent those arrangements and conventions should be accorded legal status to bind other actors. In those cases, courts very often do grant legal weight to institutional accommodations embedded in repeated historical practice.
Not every practical resolution of how to get things done carries legal or other normative weight and we do not mean to suggest that every traditional way of doing things should or does take on legal status. But in a constitutional order responsible for governing an immense and complicated polity, the need to find workable solutions to everyday problems of government is bound to find its way into the law over time.
We make no effort to hide the source of our concern. In the United States, and across much of the democratic world, established structures of governance are perceived to be failing and are being systematically challenged. As this constitutional saga unfolds, the question of settled practice takes a central role in assessing which transgressions of governing norms are permissible, and which are not. When the transgressing authority takes the form of a largely unchecked executive, whether in the U.S. or abroad, a central responsibility falls to the courts to reinforce what are often imprecise constitutional boundaries. Here our use of the concept of convention as a constraint pushes beyond traditional understandings. Older accounts have treated conventions as institutional settlements meaningful to the political branches but not enforceable in the courts. Ours by contrast introduces a role for courts both in identifying conventions that have proven themselves to be practically useful and in integrating that experiential wisdom into formal, judicially elaborated constitutional doctrine.
Our undertaking proceeds in two basic parts. In Part I, we lay out some of the elements of our understanding of what is entailed in looking to historical practice and institutional settlement to answer constitutional questions. This is the domain of Justice Frankfurter’s “historical gloss,” and practices that remain within the scope of that gloss should in our view be treated as presumptively permissible. Departures from settled institutional practices, on the other hand, merit no such deference and require fresh examination and justification. To concretize our conceptual approach, we proceed to demonstrate the pervasiveness of practice-based conventions in a wide range of public law contexts.
In Part II, we take up a set of case studies that illustrate some of the challenges courts can face when trying to sustain settled institutional arrangements in the face of shifting political tides. Specifically, we discuss President Obama’s recess appointments, President Trump’s travel ban, and Congress’s subpoenas of President Trump’s financial records.