At the Federalist Society Blog, Julian Ku (Hofstra): How Should Historical Gloss Inform Our Interpretation of the Constitution? (reviewing Curtis Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice [Harvard Univ. Press 2024]). From the introduction:
Justice Frankfurter’s appeal to historical government practice [in the Steel Seizure case] —“the gloss which life has written”—does not fit neatly into either originalist or nonoriginalist approaches to constitutional interpretation. But reliance upon historical gloss is often decisive in resolving the most contentious questions of constitutional law relating to foreign affairs and separation of powers, argues Professor Curtis Bradley in his timely and authoritative Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. Bradley’s study reveals why originalists should welcome the use of historical gloss as a crucial interpretive ally in fending off nonoriginalist appeals to interpretive methods untethered to either text or history. Historical gloss is not originalism, and it should not replace originalist interpretation. But it is hard to imagine a functional originalist Constitution without it.
Historical gloss refers to “[d]eeply embedded traditional ways of conducting government” by the executive and legislative branches that arise over decades or even centuries of practice that can help to explain unclear text or fill textual gaps. For example, the Constitution says that the Senate shall give “advice and consent” for any treaties, but every president since Washington has ignored the “advice” requirement and negotiated treaties without any Senate consultation, seeking only the Senate’s “consent.” The Supreme Court has never considered this issue, in no small part because historical gloss shows that there is a consistent and long-standing interpretation accepted by both the executive and the Senate.
And from later on:
A more serious originalist criticism of historical gloss is that it might be used to override—rather than supplement—originalist interpretations of the constitutional text. The clearest example of the power of historical gloss to defeat an originalist position occurred outside the foreign affairs context in the Supreme Court’s 2014 decision in NLRB v. Noel Canning, where the Court partially limited the presidential recess appointments power.
In that case, the Court refused to allow President Obama to unilaterally appoint executive officials during a three-day Senate recess. The Court’s majority, in an opinion by Justice Breyer, held that historical gloss led to the conclusion that a three-day recess was not long enough to support the use of the recess appointments power. But historical gloss also led Justice Breyer to reject the originalist view, espoused in Justice Scalia’s concurrence, that the recess appointments power can only be used during inter-session recesses. In other words, while there were strong originalist arguments for this more restrictive view, the lack of historical gloss convinced a majority of the Court to forge a middle way.
Noel Canning illustrates the tension between originalism and historical gloss. While historical gloss usually can be said to reflect the constitutional understandings of the different political branches over time, in the case of recess appointments, it seems that the president and Congress might have failed to understand the originalist position rather than evolving a common understanding of it with experience over time. Indeed, Noel Canning is a cautionary tale for historical gloss enthusiasts: the non-originalist result has created uncertainty over how long a recess must be to allow a recess appointment, and it has opened the door to presidents’ manipulation of the recess appointment power to aggrandize their power over appointments at the expense of the Senate.
The Noel Canning dilemma reminds constitutional interpreters to be cautious about relying too much on historical gloss, especially when there is a solid originalist alternative. Yet it is also hard to imagine a purely originalist constitution, particularly in the realm of foreign affairs, without the valuable insights historical gloss provides about how prior presidents and congresses conceived of their constitutional powers. Courts that undervalue historical gloss might be tempted, for instance, to intervene on originalist grounds to invalidate practices such as the widespread use of congressional-executive agreements or to sharply restrict unilateral presidential uses of military force. Such disruptions to long-standing practices of the political branches should rarely occur since the task of courts should be, if at all possible, to avoid creating inter-branch conflict and constitutional crises.
Bradley does not express a strong view on whether and how historical gloss should be used in conjunction (or in opposition) to originalism. His work is primarily descriptive and allows readers to draw their own normative conclusions. This careful, nuanced, and unbiased approach, which is characteristic of all of Bradley’s scholarship, has made him the leading authority on the actual content of the law of foreign relations. But like any good scholar, his work leads to more questions than answers. The rest of the foreign affairs law world, both scholars and practitioners, will have their work cut out for them as they try to combine the importance of historical gloss with the ongoing normative struggle over the proper method of constitutional interpretation.
Posted at 6:29 AM