Legal History Article

Historical Gloss and the Separation of Powers

Vol. 126 No. 2 Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, accounts of how historical practice should inform the separation of powers often require “acquiescence” by the branch of government whose prerogatives the practice implicates. Such acquiescence is commonly seen as critical for historical practice to have the force of law. Yet the concept of acquiescence has been treated much too casually in the literature.