The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too

Guest Blogger

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

Julian Davis Mortenson

With its publication, Curt Bradley’s Historical Gloss and Foreign Affairs becomes the standard reference on the historical role of custom and tradition in defining the President’s relationship with Congress and with the law of the land.

Debates about those relationships have long been vexed, particularly on questions of national security and foreign affairs. The text of the Constitution does not say much about presidential power. Nor, because of jurisdictional and prudential limitations, have the courts been in a good position to generate a more particularized body of judicial precedent on these questions over time. These background conditions, Bradley argues, have required custom and tradition to take on load-bearing duty as a source of legal meaning on the separation of powers. From there, he charts the consistency with which American constitutional law has reflected this reality across a wide array of controversies in foreign affairs.

Bradley’s book is thoroughly persuasive on both counts. Also cogent is his insistence on the need for scrupulous care when analyzing custom and tradition, the complexities of which are often, well, glossed over. On this score, Bradley’s critique of Zivotofsky v. Clinton is characteristically precise. In that case, the Supreme Court held that the President has an exclusive constitutional power to recognize foreign states. As Bradley deftly explains, however, the court’s analysis of evidence from custom and tradition rested on a category error. The majority collected numerous examples of presidents recognizing foreign governments. But none involved a legal structure like the one presented in Zivotofsky—i.e., Youngtown Zone 3 presidential action that defied a duly enacted statute. The majority’s evidence, Bradley observes, may well support an inherent presidential authority to recognize foreign states in the face of legislative silence—i.e., in Youngstown Zone 2. But the issue actually presented by the case was completely different. Bradley is entirely right to call for higher analytical standards than this.

More generally, the book succeeds comprehensively in its effort to establish the long historical pedigree—from the moment the U.S. Constitution was ratified—of using custom and tradition as an interpretive “gloss” for its text. The balance of this post will build on and extend that point.

Because in fact, the pedigree of this approach can be traced far back into English history, long before any of the first North American constitutions came into being. As scholars from William Blackstone and A.V. Dicey to Mary Bilder and Jonathan Gienapp have detailed, English lawyers and parliamentarians regularly debated custom and tradition as a source of constitutional meaning. While Bradley makes brief reference to that background, he is tentative about drawing a tight connection to American interpretive practice, because the English practice of debating political precedents is often described in the context of common law reasoning about an unwritten constitution (14).

I would shed this caution. The use of custom and tradition as a source of legal meaning in English constitutional practice was not limited to unwritten constitutional norms or common law style reasoning. To the contrary, arguments about previous political practice were regularly deployed as a “gloss” when interpreting written legislative instruments—including quintessentially constitutional ones like Magna Charta, the 1628 Petition of Right, the 1689 Bill of Rights, and the 1701 Act of Settlement. This means that the American practice of glossing constitutional text with a close, legalistic analysis of political precedents followed a well-grooved path from the very first days of the republic.

Consider the debates at Westminster and Whitehall about two famous constitutional controversies in the late eighteenth century. Both episodes pressed on the basic structure of the English constitution. Both episodes turned on the interpretation of textual enactments. And in both episodes, the legal substance of the debates drilled down in persistent detail on exactly the kind of scrupulous parsing of political practices as an interpretive guide to textual enactments that Bradley’s book charts in the United States.

In 1766, the Crown responded to crop failures throughout Europe by prohibiting the export of British wheat. Because this embargo violated three statutes, it was defended as an exercise of the King’s prerogative power to suspend the laws. The problem for the Crown was that the 1689 Bill of Rights—a statute enacted during the Glorious Revolution and universally understood as a pillar of the English constitution—provided that “the pretended power of suspending of the laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.” The meaning of this text was at the heart of a fiery debate. And a persistent focal point of that debate was a close parsing of earlier decisions by the Crown and Parliament to decide whether they supported the Crown’s reading of the Bill of Rights in 1776. What exactly was the Crown’s explanation for not imposing an embargo in 1709 and 1756? Were the challenges of those years comparably urgent? How about the intermittent royal prohibitions on exporting gunpowder—had that been with the “consent of parliament,” express or otherwise? The discussion would be at home in any chapter of Bradley’s book.

The same dynamic was reported across the pages of American newspapers in 1775, when the Crown’s movement of German troops into the British possession of Gibraltar prompted another constitutional uproar. Once again, one of the core legal difficulties in the public and parliamentary debates involved the text of the 1689 Bill of Rights, which provided that “the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.” Here too, alongside wide-ranging debates about the letter and spirit of that legislative enactment, parliamentarians and pamphleteers launched into minute analysis of what earlier English monarchs had done, and how earlier English parliaments had responded. How had Parliament explained its rejection of William III’s request to keep his Dutch guard in London? How had historical contestation over the classification of English possessions like Calais, Dunkirk, and Tangier been resolved? What to make of the protest lodged against George II’s use of Hanoverian troops in 1742? And so on—again, with precisely the kind of legalized detail and scrupulous attention to the institutional context of each earlier episode that Bradley calls for in modern American cases like Zivotofsky.

In the Anglo-American legal tradition that was the interpretive backdrop for the U.S. Constitution, the detailed and legalistic parsing of political precedents as a “gloss” on the meaning of constitutional texts was just how you ran the railroad. Emphasizing this point is especially important at a moment where originalism has become so influential in both the courts and the other political branches of government. If the interpretive convention Bradley describes was already an ordinary practice at the Founding—and it was—then it would seem historical gloss ought to be a constitutive element of constitutional meaning even for originalists. Not as a flash-freeze version of liquidation that would cease to operate soon after ratification, as some originalists have suggested, but as an ongoing living process that would continue as long as the document did. And that means the tradition Bradley charts stands on even broader jurisprudential footing than his already wide-ranging and authoritative account has space to document.