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.