Spencer G. Livingstone (Yale University) has posted Longevity and the Constitution: Making Sense of Historical Gloss on SSRN. Here is the abstract:
Recent constitutional scholarship has drawn on Justice Frankfurter’s Steel Seizure concurrence to explore how longstanding, post-adoption practices can resolve disputes over executive power – a concept known as “historical gloss.” Yet gloss is hardly limited to that context; the Court invokes it in disputes over congressional and judicial power, federalism, and individual rights. While the Court professes an originalist turn, judicial reliance on post-adoption longevity has become widespread. Given their focus on the executive branch, however, gloss scholars have not analyzed this expansion of gloss across constitutional law.
This Article takes up that project. It begins by setting out a taxonomy that reveals historical gloss, properly understood, is not one thing but three: Inclusive gloss, which treats the longevity of a practice as supporting its constitutionality; exclusive gloss, which requires longevity for a practice to be constitutional; and absence gloss, which uses a longstanding failure to act as evidence that the practice is unconstitutional. These uses of gloss all recognize that longevity is constitutionally significant, but they vary in what that significance ought to be.
The Article proceeds to evaluate those uses of gloss in court. To do so, it links historical gloss not to unique features of the executive branch, but to the informal norms of public power that secure American democracy against destructive, though authorized, actions – what scholars call the “small-c constitution.” Drawing on such scholarship, as well as a little-known case that served as a template for Steel Seizure, this Article argues that historical gloss uses longevity as a proxy for whether a practice has become entrenched as the accepted, customary method of exercising public power. Like the rest of the small-c constitution, however, gloss can serve this quasi-constitutional function only if it can also change through practice rather than Article V. Thus, courts should use longevity to support the constitutionality of a practice, as with inclusive gloss, but not to preclude other practices from developing, as with exclusive and absence gloss. That conclusion requires rethinking what courts can infer from gloss in individual cases, especially in separation of powers disputes, as well as reforming key doctrines – including for Article III standing – that rely on gloss errors. Accomplishing both is essential to maintaining the judicial role in a constitutional democracy that rests on a fundamental law both written and practiced.
Highly recommended.
