The Use and Limits of Longstanding Practice in Constitutional Law

Spencer G. Livingstone

Longstanding, post-adoption practice has become prominent in constitutional law, but its proper use remains unclear. As this Article shows, post-adoption longevity takes at least three argumentative forms: positive longevity, which uses the longevity of a practice as evidence of constitutionality; negative longevity, which uses the longstanding absence of a practice as evidence of unconstitutionality; and mandatory longevity, which requires longevity for a practice to be constitutional. Each use recognizes that longevity signals something about non-judicial interpretations of the Constitution, but each differs in what that something is. Prior scholarship has missed this range of appeals to longevity and their many claims about non-judicial interpretation, focusing instead on values that justify longevity itself rather than its particular form. As a result, the literature is missing a theory of longstanding practice that explains not only its proper use in constitutional argument but also its limits.

This Article fills that gap. Drawing on the non-judicial constitutionalism literature, it explains that non-judicial officials interpret the Constitution with different competencies and democratic responsiveness than courts. Longevity’s value is that it draws out deliberate attempts by non-judicial officials to engage with constitutional meaning through those distinctive features. Incorporating the results into constitutional doctrine is essential for correcting the institutional deficiencies that courts face as interpreters. However, the same concern counsels against using longevity to prevent non-judicial officials from continuing to develop new practices that engage with constitutional meaning. These two principles—the incorporation principle and the continuing practice principle—guide the use of longevity in court.

Armed with those principles, the Article then evaluates the three uses of longevity in constitutional law. Mandatory longevity contravenes the continuing practice principle by using longevity to block new practices. Negative longevity mostly goes wrong for the same reason, although the incorporation principle occasionally justifies it. By contrast, positive longevity rightly incorporates non-judicial interpretations while allowing officials to change the practice if they choose. The result is an approach to post-adoption longevity that draws all that can be inferred from a longstanding practice without using that practice to constrain the future.