The Use and Limits of Longstanding Practice: A Theory of Historical Gloss

61 Pages Posted: 19 Feb 2022 Last revised: 19 Sep 2022

Date Written: September 8, 2022

Abstract

Supposedly at a time of originalism, a different kind of history has taken hold in constitutional law, one focused not on founding-era history but on longstanding, post-adoption practices. Scholars have noted this turn to “historical gloss,” but they have been more concerned with fitting gloss into other theories than explaining its use and limits. That omission is significant. As this Article shows, gloss has taken at least three vastly different forms: Positive gloss, which treats the longevity of a practice as supporting its constitutionality; negative gloss, which uses a longstanding failure to act as evidence that the practice is unconstitutional; and mandatory gloss, which requires longevity for a practice to be constitutional. The taxonomy reveals that courts have made of longstanding practice whatever suits their ends, unconstrained by a theory as to what justifies and limits the use of longevity in constitutional law.

This Article provides that theory. It argues that historical gloss is the interpretive deference owed to a constitutional convention, which is a rule guiding the exercise of public power that developed out of longstanding practice and that courts will recognize but not enforce. Ordinarily, the fact of a practice reveals little about its constitutionality. When a convention guides the practice, however, officials deliberately continue it according to a widely accepted understanding that they have the authority to both carry out the practice and to break from it but for the convention. It is this established understanding of the Constitution that historical gloss defers to as a form of convention recognition. But consistent with the prohibition on convention enforcement, it does not suggest that the practice is the only use of public power. Thus, under the convention theory of gloss, longstanding practice can suggest what the Constitution permits but not what it prohibits.

The Article then evaluates the three uses of gloss against that theory. Though gloss scholars defend negative and mandatory gloss for the settlement and the wisdom they reflect, both treat a longstanding practice as justification for blocking new practices. That is convention enforcement and it is prohibited. By contrast, positive gloss recognizes conventions by giving substantial, but not dispositive, weight to established understandings of public power. Indeed, against new originalism and liquidation theory, positive gloss suggests that longevity is not just a practical tool to help courts when they cannot interpret the Constitution, but rather a crucial constraint on courts’ interpretive discretion. Balancing this constraint with the importance of leaving space for new practices to develop, the convention theory of gloss corrects common errors in the case law and literature by showing the powerful yet narrow constitutional relevance of a longstanding, post-adoption practice.

Keywords: constitutional law, historical gloss, constitutional theory, constitutional conventions

Suggested Citation

Livingstone, Spencer, The Use and Limits of Longstanding Practice: A Theory of Historical Gloss (September 8, 2022). Available at SSRN: https://ssrn.com/abstract=4035100 or http://dx.doi.org/10.2139/ssrn.4035100

Spencer Livingstone (Contact Author)

Yale University ( email )

493 College St
New Haven, CT CT 06520
United States

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