Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics
31 Pages Posted: 11 Nov 2020
Date Written: August 30, 2020
This Essay examines Justice Kagan’s electoral college decision in Chiafalo v. Washington, which uses historical gloss—post Founding historical practices—to give meaning to the Constitution and to do so in a manner that is arguably inconsistent with the text and structure of the Constitution. We argue that Justice Kagan, the democracy Justice, uses historical gloss instrumentally to constitutionalize a particular and modern view of political participation—which is best reflected by American political practices—and to reject an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Chiafalo is an attempt to update and modernize our understanding of representation and political participation. We explore some issues that are raised for the historical gloss literature and for the practice of law and democracy when gloss is used in this way to interpret the Constitution.
Keywords: Chiafalo; faithless electors, historical gloss, historical practice, representation, textualism
Suggested Citation: Suggested Citation