Historical Gloss and Originalism

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Michael D. Ramsey

            Professor Curtis Bradley has given us a magnificent account of how historical practice between the political branches has informed constitutional understanding.  Although he draws his principal examples from foreign affairs law, the implications of his study are much broader, as “historical gloss” (as he and Justice Frankfurter call it) is not only a foreign affairs law phenomenon.  (Consider for example the Supreme Court’s majority opinion in the Noel Canning case concerning recess appointments, which the book discusses at the outset.) And attention to this approach is especially timely as the current Supreme Court implements – or at least purports to implement – an approach to constitutional interpretation centered on “text, history and tradition.”  Professor Bradley’s book prompts a number of questions about the relationship between historical gloss, originalism, and “history and tradition,” on which I’ll offer a few preliminary thoughts.

            First, to what extent is historical gloss, as Professor Bradley describes it, different from originalism?  Originalism in its most common modern form looks to the original public meaning of the Constitution’s text at the time of enactment – but in most versions that inquiry is informed in part by post-enactment historical practice.  Originalists differ among themselves as to how long after enactment practices continue to be relevant, but at least some (including Justice Scalia) have been willing to consider practices substantially distant from enactment.  To the extent historical gloss looks deeply back into history to assess traditional practices, it may thus substantially overlap with originalist approaches, even though the two have different objects in mind.

            The practical difference between the two thus may come from the extent to which historical gloss can arise from relatively recent, as opposed to longstanding, practices.  Few if any originalists would consider practice of, say, the late twentieth century to be relevant to 1788 meaning.  So historical gloss gains its distinctiveness by being somewhat less historical. In contrast, practices dating almost to the founding era, such as the use of non-treaty executive agreements, may seem paradigmatic examples of historical gloss yet also be entirely compatible with originalism.  In this sense Professor Bradley’s book may at times strain too hard to trace historical practices to near the founding era; his approach may have more distinctive force to the extent the practices he describes are of somewhat more modern origin.

            The Justices’ recent opinions have grappled with this relationship between originalism and historical gloss.  In particular, the Court’s originalist-oriented Justices seem to lack consensus on whether their “history and tradition” formulation is just a tool for identifying the original public meaning of constitutional text, or whether it is a separate interpretive category.  Consider, for example, the concurring opinions of Justice Kavanagh and Justice Barrett in U.S. v. Rahimi – the former seeming to take a broad view of the role of post-ratification practices, with the latter declaring that “evidence of ‘tradition’ unmoored from original meaning is not binding law.”   Or Justice Kagan’s concurrence in Community Financial Services, joined by both Justices Kavanaugh and Barrett but no other originalist-oriented Justice – concluding that “[l]ong settled and established practice’ may have ‘great weight’” in interpreting constitutional provisions.”   Or the opinions of Justice Thomas (for the majority) and Barrett (concurring) in Vidal v. Elster – the former relying heavily on historical practice and the latter (joined by no other originalist-oriented Justice) doubting its relevance. 

To the extent the Justices think history-and-tradition is a separate consideration from original meaning, it is not clear that it is anything other than a different name for historical gloss.  Professor Bradley’s book may thus reinforce the idea that gloss/history-and-tradition can have interpretive force apart its relevance to original meaning, supporting some Justices’ extension of history-and-tradition inquiries into time periods that pure originalists would dismiss as irrelevant.

            Second, if historical gloss is separate from originalism, what happens when they conflict?  Professor Bradley’s work seems generally to think of historical gloss as filling gaps (in a constitutional framework that he regards as having considerable gaps); Justice Frankfurter’s idea of historical gloss from the Youngstown case seems similar (he wrote that practice “cannot supplant the Constitution”).  But it is quite possible to imagine direct conflicts, where practice has evolved away from original limitations.  At least some of the Justices in the Noel Canning case thought it was (or might be) an example: the text, Justice Scalia wrote that Presidents had over time come to ignore.  Or to take a foreign affairs law example, at least some scholars (including me) read the Constitution’s text to substantially constrain the President’s war-initiation powers, while as Professor Bradley shows these limitations have substantially eroded in more recent practice.

            In the Noel Canning case, Justice Scalia argued that the text’s original public meaning overrode practice (as Justice Black did in Youngstown, in response to Frankfurter).  But that’s not necessarily so.  Most originalist judges and theorists accept, to an extent, that entrenched judicial precedent should (sometimes) override original meaning.  It isn’t clear why non-judicial precedent – the practices of the non-judicial branches – should not also override it.  For example, as Professor Bradley describes, making international agreements on matters that the original Constitution reserved for treaties is, at least in some areas, now routinely done by congressional-executive agreements that bypass the treatymaking clause’s supermajority vote.  It seems unlikely that even an originalist court, if the constitutionality of such agreements came before it, would find them invalid in the face of their wide acceptance in practice, even if the text’s original meaning indicated otherwise.  If that is so, historical gloss may provide a constraint on the potential of originalism to disrupt apparently settled practice.  In an excellent review of Professor Bradley’s book, originalist-oriented scholar Julian Ku takes this view, while also expressing concern that too aggressive uses of historical gloss might undermine key constitutional protections of separation of powers.

            Third, how much does historical gloss add to originalism as a gap-filler as practical matter?  This question raises a related consideration: whether historical gloss is always (or nearly always) permissive.  Professor Bradley’s examples are all (or almost all) ones in which historical gloss permits a challenged action despite potential constitutional objections.  Similarly, Frankfurter in Youngstown saw historical gloss as potentially validating challenged executive branch actions.  If historical gloss is mostly a gap-filler and if it mostly defends challenged political branch actions, it may not add much to originalism.  At least in some versions, where the original public meaning is unclear, originalism may conclude that the Constitution does not provide a basis for judicial intervention against the political branches.  (For a strong version of this approach, see here from originalist-oriented scholar John McGinnis.)  On this view, historical gloss may merely confirm what originalism would indicate in any event.  But if historical gloss can constrain the political branches – that is, if traditional non-exercise of a power evolves into a constitutional lack of power – historical gloss would sometimes have restrictive force on the political branches beyond what originalism may provide.  And of course a similar question may be asked about the Court’s history-and-tradition formulation, whether or not it is distinct from historical gloss.

Finally, like all approaches that rely on customary practice to establish law, historical gloss prompts the question how much practice is enough?  That challenge in turn has at least two components.  One is a matter of volume – are a handful of instances suffiicent?  And is it merely a matter of numbers, or are there considerations of (for example) importance, prominence, and degree of reflection and consensus at the time?  The second – perhaps even more troublesome – is a question of generality: how broadly or narrowly are past practices to be described and applied?  (For a previous assessment of this challenge, see here.)  Professor Bradley’s book usefully reflects on these questions, without offering a definitive methodology, both in general terms at the outset and as applied to specific foreign affairs practices as the book progresses.

            The interaction between historical gloss and originalism may offer a way to think about part of this problem.  It is not clear that the standard for establishing gloss, either for the prevalence of a past practice or the closeness of its resemblance to a modern practice under challenge, needs to be the same in all analyses.  The prior discussion suggests that gloss does a different amount of work in different situations.  That might suggest more demanding requirements in some situations than others.  Where gloss is invoked to confirm what seems to be the most plausible reading of the Constitution’s text and structure or to fill gaps in text and structure by allowing flexibility to the political branches, we might be content with a modest showing.  In contrast, where gloss is asked to play a more powerful role – where it is invoked to override clear text and structure, or where it is used to limit rather than empower the political branches – we might be more demanding.  One might say this was the Court’s core error in Noel Canning: not that the majority invoked historical practice, but that it invoked a relatively inconsistent and contested historical practice to override specific constitutional text.

            The Court’s originalist-oriented Justices are increasingly facing these questions as they struggle to apply “text, history and tradition” to a range of topics.  Professor Bradley’s book is nominally about historical gloss in foreign affairs, but its assessment of historical gloss has much wider implications.  How the Justices understand the relationship between originalism and historical gloss is likely to have significant affects far beyond the Court’s relatively infrequent encounters with foreign affairs law.

Michael D. Ramsey is Warren Distinguished Professor of Law, University of San Diego School of Law. You can reach him by e-mail at mramsey@sandiego.edu.