Doing Gloss

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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, the Essay contends that we first need 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 non-judicial 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 will be shown, 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.

Library of Congress Subject Headings

Constitutional law, Separation of powers, Judicial review