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1 1 (January 13, 2022)

handle is hein.crs/govefcw0001 and id is 1 raw text is: Congressional ______ SResearch Service 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 R45 129, 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 Congressional Research Service https://crsreports.congress.gov LSB10686 CRS Legal Sidebar Prepared for Members and Committees of Congress

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