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Methods of InterpretationHow the Supreme Court Reads the Constitution$
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Lackland H. Bloom Jr

Print publication date: 2009

Print ISBN-13: 9780195377118

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780195377118.001.0001

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Tradition and Practice

Tradition and Practice

(p.133) five Tradition and Practice
Methods of Interpretation

Lackland H. Bloom

Oxford University Press

This chapter examines the Court's use of tradition and practice in constitutional interpretation. First, it looks at how the Court has relied on longstanding congressional or executive practice especially in the area of separation of powers. Next it considers three specific areas of law in which tradition and practice has played a significant role—the First Amendment public forum doctrine, the Establishment Clause, and due process of law. Then, it discusses several issues that arise with respect to tradition and practice including reliance on international practice, the appropriate level of generality to describe a practice, evolving standards, and a living constitution. Finally, it explores the Court's treatment of changing, declining or the absence of traditions and practices as well as the evaluation of them.

Keywords:   longstanding practice, Separation of Powers, Establishment Clause, public forum, due process, international practice, level of generality, evolving standards, living constitution, changing practice

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