Alison LaCroix: Historical Gloss: A Primer
At the Harvard Law Review Forum, Alison LaCroix (University of Chicago Law School): Historical Gloss: A Primer (responding to Curtis A. Bradley and Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012)). From the introduction:
In their provocative article, Professors Curtis Bradley and Trevor Morrison seek to fill a scholarly gap focusing on the Frankfurterian strand of separation of powers reasoning. They describe their project as examining the "role of historical practice in discerning the separation of powers," with special attention to the "actual dynamics of congressional-executive relations. From historical practice, or historical gloss (about which terms more infra), Bradley and Morrison turn to a related inquiry raised in Justice Frankfurter’s concurrence [in Youngstown Sheet & Tube Co. v. Sawyer]. According to the concurrence, evidence of the "gloss which life has written upon" the words of the Constitution could be divined from a "systematic, unbroken executive practice" if that practice was accompanied by "long-continued acquiescence" by Congress. Bradley and Morrison follow Justice Frankfurter’s analysis by first considering the meaning of acquiescence and then suggesting that acquiescence is necessary in order for a given set of practices to constitute a sufficient gloss on executive power to become a source of presidential authority.
This short response addresses three central themes raised by Bradley and Morrison’s article: the meaning of historical practice; its shortcomings as a source of constitutional authority; and the significance of the "Madisonian model" for the separation-of-powers scheme offered by the article.
And from the body of the response:
Here lies a deeper confusion in the article. To mount an argument for the continued relevance of historical gloss to separation of powers disputes, as Bradley and Morrison do, is to make a broader claim about the proper sources of constitutional authority. They characterize the goal of their project as descriptive: "to specify what is entailed in historical practice¬–based arguments about executive and legislative power, and to identify the factors that are critical for evaluating such arguments." Moreover, they take pains to disclaim normativity: for instance, while they advert to the growth of executive power since World War II, they note, "Unlike some, we do not intend this description to reflect any normative judgment."
On the contrary, however, the central premise of Bradley and Morrison’s argument is that historical practice continues to be, and ought to be, a valuable interpretive tool. Indeed, they state that "[t]o the extent past practice predicts the future actions of the branches, it should arguably inform legal analysis because descriptions of what the law is should have some correspondence to operational reality." For Bradley and Morrison, then, defining the "operational reality" that currently obtains between institutions is a necessary predicate to determining what the future relationship of those institutions should look like. The article thus circles back to the question that Bradley and Morrison claim to be avoiding: how should historical practice be used in constitutional interpretation? And, more important, where does historical practice acquire its authority?
In my view, the Frankfurterian appeal to practice (or, one might say, custom) is a potentially powerful competitor to originalism in constitutional interpretation -- one often overlooked in the traditional opposition of originalism vs. nonoriginalism. But it has its limitations, some of which this short article points out quite sharply.