Modes of Constitutional Analysis: Historical Practices (Part 8) [January 13, 2022]   [open pdf - 693KB]

From the Document: "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 [Congressional Research Service] Report R45129, Modes of Constitutional Interpretation [hyperlink].) 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 [hyperlink] 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."