It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As the Essay explains, these differing justifications have differing methodological implications, and disaggregating them helps explain variations in the types of evidence that courts have credited in discerning gloss. Perhaps most notably, it helps explain why courts are often less demanding in requiring evidence of institutional acquiescence than commonly recited standards for gloss would tend to suggest.

Introduction

In discerning the Constitution’s separation of powers among the three branches of the federal government, it is common for courts, the political branches, and academic commentators to give weight to post-Founding governmental practice. There is substantial uncertainty, however, about the proper methodology for determining such “historical gloss.” In order to make progress on the methodological questions, this Essay contends that it is important to consider the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As the Essay explains, these differing justifications have differing methodological implications. This Essay considers in particular the differing implications that these justifications have for what constitutes relevant “practice” for purposes of determining gloss, and for the extent to which there must be a showing of institutional “acquiescence” in the practice. As the Essay shows, disaggregating the justifications for gloss helps explain variations in the types of evidence that courts have credited in discerning gloss. Perhaps most notably, it helps explain why courts are often less demanding in requiring evidence of institutional acquiescence than commonly recited standards for gloss would tend to suggest.

In recent scholarship and Supreme Court opinions, there has been increased attention to the relevance of post-Founding governmental practice in discerning the Constitution’s distribution of authority among the three branches of the federal government, as well as between the two houses of Congress.1 This approach to constitutional interpretation can be termed the “historical gloss” approach, after Justice Felix Frankfurter’s description and defense of it in his concurrence in Youngstown Sheet & Tube Co v Sawyer.2 Frankfurter wrote separately in Youngstown to emphasize the interpretive significance of “[d]eeply embedded traditional ways of conducting government,” which he contended could not “supplant the Constitution or legislation, but [could] give meaning to the words of a text or supply them.”3 Consistent with this idea, Frankfurter contended that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, . . . may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.”4

Although the Supreme Court has invoked gloss in a number of separation-of-powers decisions, both before and after Youngstown, its most extended consideration of this approach to constitutional interpretation occurred in 2014, in National Labor Relations Board v Noel Canning.5 In that case, the Court interpreted the Recess Appointments Clause of the Constitution, which provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session,”6 as allowing the president to make recess appointments during breaks within a yearly session of Congress and to fill governmental posts that become vacant before the breaks.7 In doing so, the Court placed “significant weight” on historical governmental practice relating to appointments.8 The Court explained that such weight was appropriate because the relevant constitutional text was ambiguous and “the interpretive questions before us concern the allocation of power between two elected branches of Government.”9 Reviewing its precedent, the Court observed that it had “treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.”10 The following year, in Zivotofsky v Kerry,11 the Court again gave weight to historical governmental practice in concluding that the president had an exclusive power to recognize foreign sovereigns and their territories, and in doing so it invoked its analysis from Noel Canning.12

Outside the courts, the gloss approach has long been a prominent feature of executive branch legal reasoning. To take just a few examples from the last several decades, executive branch lawyers have invoked gloss in support of a broad executive authority to conclude binding international agreements without obtaining the advice and consent of two-thirds of the Senate;13 a unilateral executive authority to terminate or suspend treaty obligations;14 a presidential power to initiate certain military conflicts without congressional authorization;15 and an exclusive presidential authority to recognize foreign sovereigns and their territory.16 As these examples illustrate, invocations of gloss are especially common with respect to matters relating to US foreign relations, although they are not confined to that subject area. Although less systematically studied, gloss reasoning has also been common in deliberations and debates within Congress about the separation of powers.17

The effect of gloss is sometimes so strong that it essentially eliminates constitutional debate. For example, the argument (associated most notably with Justice Joseph Story18) that the text of Article III requires that Congress vest the federal courts with the full extent of the judicial power described in that Article is a nonstarter in light of the fact that Congress has never done so.19 Similarly, the Senate’s power to attach reservations to its advice and consent to treaties is beyond serious question, in large part because the Senate has engaged in this practice—without significant objection by the executive branch—for much of American history.20 Another example of constitutional authority that is now largely taken for granted as a result of long-standing practice is the president’s authority, without seeking authorization from Congress, to use military force to protect and rescue Americans endangered abroad.21

Despite the importance and prevalence of the gloss approach to constitutional interpretation, its methodological underpinnings have received relatively little attention. For example, Professor Philip Bobbitt’s influential account of the “modalities” of constitutional interpretation does not even expressly consider gloss. Although Bobbitt refers to “history” as a modality, he defines it purely in originalist terms as focused on the intentions or understandings of the Framers and ratifiers of the text.22

The methodological issues implicated by the gloss approach include the following: What counts as relevant “practice”? What is the required frequency, consistency, and duration of the practice? How does one decide on the proper level of generality at which to describe the practice? To what extent must there be institutional “acquiescence” or some other understanding of the practice? And how does gloss relate to other approaches to constitutional interpretation?23 Professor Trevor Morrison and I considered the role of historical gloss at length in a 2012 article, Historical Gloss and the Separation of Powers,24 and some of what is discussed here draws from that article. Nevertheless, our central focus in that article was demonstrating how modern congressional-executive relations complicate efforts to rely on governmental practice when interpreting the separation of powers,25 and we generally avoided taking a position on the proper methodology for “doing gloss.”

This Essay contends that, in order to gain traction on the methodological questions, it is important first to consider the potential justifications for relying on historical practice when discerning the separation of powers. As this Essay shows, different potential justifications for gloss have differing methodological implications. This disaggregation of justifications helps explain variations in the types of evidence that courts have credited in discerning gloss. Perhaps most notably, it helps explain why courts are often less demanding in requiring evidence of institutional acquiescence than commonly recited standards for gloss would suggest.

  • 1. See, for example, Zivotofsky v Kerry, 135 S Ct 2076, 2091–94 (2015); National Labor Relations Board v Noel Canning, 134 S Ct 2550, 2559 (2014). See also Curtis A. Bradley and Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv L Rev 411, 417–24 (2012) (describing the prevalence of arguments rooted in historical gloss).
  • 2. 343 US 579, 610–11 (1952) (Frankfurter concurring).
  • 3. Id at 610 (Frankfurter concurring).
  • 4. Id at 610–11 (Frankfurter concurring).
  • 5. 134 S Ct 2550 (2014).
  • 6. US Const Art II, § 2, cl 3.
  • 7. Noel Canning, 134 S Ct at 2567, 2573.
  • 8. Id at 2559 (emphasis omitted).
  • 9. Id.
  • 10. Id at 2560.
  • 11. 135 S Ct 2076 (2015).
  • 12. See id at 2091, 2096.
  • 13. See Office of Legal Counsel, Whether Uruguay Round Agreements Required Ratification as a Treaty: Memorandum Opinion for the United States Trade Representative, 18 Op Off Legal Counsel 232, 233 (Nov 22, 1994) (contending that for this issue “a significant guide to the interpretation of the Constitution’s requirements is the practical construction placed on it by the executive and legislative branches acting together”).
  • 14. See John C. Yoo and Robert J. Delahunty, Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council: Authority of the President to Suspend Certain Provisions of the ABM Treaty *13 (DOJ, Nov 15, 2001), archived at http://perma.cc/Q6AR-KCBX (“The normative role of historical practice in constitutional law, and especially with regard to separation of powers, is well settled.”).
  • 15. See Office of Legal Counsel, Authority to Use Military Force in Libya: Memorandum Opinion for the Attorney General *7 (Apr 1, 2011), archived at http://perma.cc/B9R5-L5YN (“This understanding of the President’s constitutional authority reflects not only the express assignment of powers and responsibilities to the President and Congress in the Constitution, but also, as noted, the ‘historical gloss’ placed on the Constitution by two centuries of practice.”).
  • 16. See Brief for the Respondent, Zivotofsky v Kerry, Docket No 13-628, *26 (US filed Sept 22, 2014) (available on Westlaw at 2014 WL 4924107) (“More than two hundred years of historical practice confirms what the Constitution’s text and structure make clear: The recognition power belongs exclusively to the Executive.”).
  • 17. See generally, for example, Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex L Rev 773 (2014) (documenting the use of gloss reasoning in Congress about the Constitution’s distribution of authority to terminate or suspend treaty obligations); Curtis A. Bradley and Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Georgetown L J 255 (2017) (documenting the use of gloss reasoning in Congress about whether it has the constitutional authority to change the size of the Supreme Court and restrict its jurisdiction).
  • 18. See Martin v Hunter’s Lessee, 14 US (1 Wheat) 304, 328 (1816) (Story) (“The language of [Article III] throughout is manifestly designed to be mandatory upon the legislature.”).
  • 19. See Daniel J. Meltzer, The History and Structure of Article III, 138 U Pa L Rev 1569, 1585–86 (1990) (noting that the first Judiciary Act did not extend full Article III jurisdiction to the federal courts).
  • 20. See Curtis A. Bradley and Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U Pa L Rev 399, 404–10 (2000).
  • 21. See Curtis A. Bradley and Jean Galbraith, Presidential War Powers as an Interactive Dynamic: International Law, Domestic Law, and Practice-Based Legal Change, 91 NYU L Rev 689, 713–18 (2016).
  • 22. See Philip Bobbitt, Constitutional Interpretation 12 (Basil Blackwell 1991) (describing the historical modality as “relying on the intentions of the framers and ratifiers of the Constitution”); Philip Bobbitt, Constitutional Fate: Theory of the Constitution 9 (Oxford 1982) (“Historical arguments depend on a determination of the original understanding of the constitutional provision to be construed.”).
  • 23. See Alison L. LaCroix, Historical Gloss: A Primer, 126 Harv L Rev F 75, 77–79 (2013).
  • 24. See generally Bradley and Morrison, 126 Harv L Rev 411 (cited in note 1).
  • 25. See id at 448 (arguing that the “descriptive shortcomings” of James Madison’s ideas about the separation of powers “carry several significant implications for relying on ideas of institutional acquiescence to resolve separation of powers controversies”).